text:
    CARLO RAIMONDO, Petitioner-Appellant, v. IVAN PAVKOVIC, M.D., et al., Respondents-Appellees.
    First District (2nd Division)
    No. 81-1082
    Opinion filed June 1, 1982.
    Rehearing denied July 27, 1982.
    Mark J. Heyrman, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Gregory J. Ellis, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Petitioner Carlo Raimondo (Raimondo) sought a writ of habeas corpus (Ill. Rev. Stat. 1979, ch. 65, par. 1 et seq.) ordering his release from the custody of the Illinois Department of Mental Health and Developmental Disabilities (the Department). The Department has maintained custody of Raimondo since 1975 pursuant to a criminal court order which committed him following a finding he was not guilty by reason of insanity (Ill. Rev. Stat. 1975, ch. 38, pars. 6 — 2,1005—2—4) of certain crimes with which he had been charged. The circuit court denied the requested relief and set a date for the expiration of Raimondo’s commitment to the Department.

Raimondo appeals, claiming the circuit court erred (1) in failing to address the merits of his petition for a writ of habeas corpus; (2) in denying his motion for a default judgment on the habeas corpus petition; (3) in applying the then-effective provisions of the Unified Code of Corrections (UCC) (Ill. Rev. Stat. 1979, 1980 Supp., par. 1001 — 1—1 et seq.) which concerned dispositions upon findings of not guilty by reason of insanity; and (4) in calculating the expiration date of his commitment, assuming the applicability of those provisions. Raimondo has also filed a motion to strike an argument contained in the appellee’s brief, which we have taken with the case.

Raimondo was arrested on April 1, 1973, charged with the commission of rape and armed robbery on March 29, 1973, and with an unrelated armed robbery on January 21, 1973. After trial for these crimes, the criminal trial court found that Raimondo was not guilty by reason of his insanity at the time the crimes were carried out. The criminal trial court also found that this insanity continued as of that dispositional date, January 9,1975. Consequently, pursuant to the then-effective provisions of the UCC (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b)), the criminal court committed Raimondo to the Department “until he shall have permanently recovered from his insanity.” We note that under that statute, this initial commitment order (the “criminal commitment”) covered a period not to exceed 12 months from the date of its entry. At the end of this 12-month period, Raimondo’s commitment (the “civil commitment”) was governed by the provisions of the then-effective Mental Health Code of 1967 (the MHC) (Ill. Rev. Stat. 1975, ch. 9Bz, par. 1 — 1 et seq.). Thus, Raimondo was in custody under a civil commitment as of January 9, 1976.

During Raimondo’s continuing civil commitment, the legislature altered both relevant statutes. The relevant UCC provision was first amended effective August 1, 1977, by Public Act 80-164. (See 1977 Ill. Laws 803-06.) Briefly, the new statute provided that, when an offender was found not guilty by reason of insanity and was still in need of mental treatment, the court must order “criminal” commitment of the offender to the Department. This criminal commitment was to be for an indefinite period not to exceed the maximum length of time which the offender could have served had he been convicted of the most serious offense charged, less credit for good time behavior, before becoming eligible for parole. Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 2—4(a), (b).

The MHC was repealed and replaced by the Mental Health and Developmental Disabilities Code (the MHDDC) effective January 1, 1979, by Public Act 80-1414. See 1978 Ill. Laws 1462; Ill. Rev. Stat. 1979, ch. 91½, par. 1 — 100 et seq.

The UCC was amended again, effective September 19, 1980, by Public Act 81-1497. (See 1980 Ill. Laws 2530-35.) Briefly, this amendment required the Department to evaluate an offender found not guilty by reason of insanity. The court then held a hearing to determine which of four classifications the offender then came within. If the offender was found to fall within the “subject to involuntary admission” classification, as defined, he was to be committed to the Department for an indefinite period calculated as under the previous version of the UCC. Ill. Rev. Stat., 1980 Supp., ch. 38, pars. 1005 — 2—4(a), (b).

On January 13, 1981, Raimondo filed the present petition against respondents, who are employees of the Department, seeking a writ of habeas corpus ordering his release from the custody of the Department. This petition alleged Raimondo was being unlawfully detained and restrained of his liberty by respondents. The petition further alleged that Raimondo’s lawful period of confinement had expired under any version of the UCC which might be applied.

A hearing was held before the circuit court on January 29, 1981. The circuit court ruled the most recent version of the UCC applied, and continued the case so that an evaluation of Raimondo’s condition could be made. The court ruled the burden would be on the State to prove Raimondo was still in need of commitment.

At the next court appearance, February 26, 1981, Raimondo filed a motion for default judgment against respondents for their alleged failure to properly file a return as required by the provisions of the Illinois habeas corpus statute (Ill. Rev. Stat. 1979, ch. 65, par. 12). The circuit court continued the motion.

On March 12, 1981, the respondents filed a motion to dismiss Raimondo’s petition, asserting Raimondo’s circumstance did not fall within those for which a writ of habeas corpus was proper (see Ill. Rev. Stat. 1979, ch. 65, par. 22), and that he should have filed a petition for discharge under the UCC (Ill. Rev. Stat., 1980 Supp., par. 1005 — 2—4(e)). The circuit court denied the motion for default and continued the motion to dismiss.

At the next hearing held March 20, 1981, the circuit court ruled the petition for writ of habeas corpus was the improper procedure because Raimondo had not exhausted his “administrative remedies.” The court denied the petition, but stated it would treat the petition as one for discharge under the UCC. The court ruled that the most recent version of the UCC should be applicable. Since that provision set a criminal commitment period based upon the maximum sentence which could have been entered upon conviction of the most serious crime which led to the not-guilty-by-reason-of-insanity verdict, and since Raimondo had never been given such a maximum sentence at the time of the initial criminal commitment, the court set the matter for a sentencing hearing.

That sentencing hearing took place on April 9,1981. The State called a single witness in aggravation, and Raimondo called three witnesses in mitigation. The court then sentenced Raimondo hypothetically to serve 100 to 300 years for the rape and armed robbery committed March 29, 1973, and 50 to 100 years for the armed robbery committed January 21, 1973. These sentences were to run consecutively. The court then proceeded to calculate the maximum possible period of criminal confinement of Raimondo to the Department in light of these sentences. The court determined that period would expire no later than November 12, 1986. Raimondo appeals.

I

Raimondo contends the circuit court erred in ruling that his petition for a writ of habeas corpus was not the proper method for seeking his release from the custody of the Department.

The Illinois habeas corpus act provides a prisoner in custody by virtue of process from a court may be discharged for, among other reasons, the occurrence of some act, omission, or event subsequent to the initial lawful imprisonment which entitles the prisoner to discharge. (Ill. Rev. Stat. 1979, ch. 65, par. 22(2).) Neither the UCC (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(j)), nor the MHDDC (Ill. Rev. Stat. 1979, ch. 91½, par. 3 — 905), precludes the availability of the writ in these circumstances. In his petition, Raimondo alleged his period of lawful confinement with the Department had expired. This allegation, if proved, is a basis for relief under the noted section of the habeas corpus act. The circuit court therefore erred in ruling that Raimondo’s petition was improper in these circumstances.

Nevertheless, this error alone does not require reversal since the record makes clear the circuit court did rule on the merits of the substantive relief sought by Raimondo, his release from custody. The validity of the court’s denial of that relief is discussed below.

II

Raimondo asserts the circuit court erred in failing to grant his motion for default judgment based upon respondents’ alleged failure to properly respond to the habeas petition.

The record indicates respondents did indeed fail to comply with the return requirements of the habeas corpus act. (Ill. Rev. Stat. 1979, ch. 65, pars. 6, 12.) Raimondo filed a motion for default judgment pursuant to section 50(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(4)), which governs habeas corpus proceedings. Ill. Rev. Stat. 1979, ch. 65, par. 32.

It is a fundamental principle in Illinois law that a default judgment is not encouraged, but is employed only as a last resort. (See Jones v. Sullivan (1976), 34 Ill. App. 3d 786, 789, 340 N.E.2d 323.) This principle is especially applicable in the quasi-criminal proceedings of this case, where procedural rules are from civil practice but where the outcome has ramifications in criminal law. Thus, while respondents’ failure to comply with the requirements of the habeas corpus act is not condoned, no reversible error resulted from the circuit court’s denial of Raimondo’s motion for default.

Ill

In the central issue of this appeal, Raimondo claims the circuit court erred in applying the provisions of the then-effective version of the UCC and thereby extending the expiration date of his criminal commitment, in violation of the principles of statutory construction and the ex post facto clauses of the Federal and State constitutions. U. S. Const., art. I, sec. 10; Ill. Const. 1970, art. 1, sec. 16.

A.

In order to lend clarity to the confusing but nonetheless crucial chronology of this case, we repeat it here in summary form.

4/1/73 Raimondo arrested

1/9/75 Raimondo found not guilty by reason of insanity; criminal commitment to Department (for statutory period not to exceed 12 months), followed by civil commitment governed by provisions of the MHC

1/9/76 Criminal commitment expires; civil commitment under MHC provisions commences

8/1/77 UCC amended; new provisions lengthen possible criminal commitment

1/1/79 MHC repealed; replaced by MHDDC

9/18/80 Second amendment of UCC

1/13/81 Raimondo filed petition for writ of habeas corpus

4/9/81 Circuit court extends Raimondo’s “criminal” commitment to 11/12/86

B.

Our examination of this chronology in conjunction with relevant legal principles convinces us the circuit court’s disposition of this matter was erroneous.

As noted, when the criminal trial court ordered Raimondo’s criminal commitment to the Department in 1975, the relevant terms of the UCC then in effect provided such criminal commitments were to be for a period “not to exceed 12 months.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b).) After the passage of this 12-month period of criminal commitment, the “detention, care, treatment, and discharge” of the offender was to be governed by the MHC. Consequently, when Raimondo’s period of criminal commitment expired on January 9, 1976, he was thereafter held by the Department under civil commitment pursuant to the MHC. The provisions of the UCC then in effect were no longer relevant to Raimondo’s commitment as of that date, since the UCC specifically made the MHC controlling. The potential for the discharge of Raimondo from such civil commitment thus was governed solely by article X of the MHC (Ill. Rev. Stat. 1975, ch. 91½, par. 10 — 1 et seq.), so long as that statute was in effect.

However, when the MHDDC superseded the MHC on January 1, 1979, this situation changed. The MHDDC explicitly provides that a person committed to the Department pursuant to the UCC may be released “only as provided in the [UCC], as now or hereafter amended.” (Ill. Rev. Stat. 1979, ch. 91½, par. 3 — 200.) (The obvious rationale for this requirement is to allow the criminal courts to maintain supervision of the disposition of persons who are in the custody of the Department as a result of their commission of criminal acts, albeit while suffering from insanity.) Since Raimondo had not sought or otherwise been granted his discharge from the Department in the manner provided by the MHC prior to the repeal of the statute, he was lawfully in the Department’s custody when the MHDDC took effect on January 1, 1979, and thus became subject to its dispositional provisions, including section 3 — 200. (See generally Ill. Rev. Stat. 1979, ch. 91½, par. 6 — 104.) And, as noted, section 3 — 200 made the provisions of the UCC controlling upon the issue of Raimondo’s potential discharge.

Among the provisions of the UCC which at first blush might seem controlling through the application of section 3 — 200 of the MHDDC is the “initial commitment order” clause of section 5 — 2—4(b) (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(b)). Yet, in this particular set of facts, Raimondo had already served that which we have referred to as the criminal commitment period, which period would be entered under the “initial commitment order” clause of section 5 — 2—4(b). Of course, Raimondo’s criminal commitment period had been entered under the earlier version of the UCC. Nevertheless, as of the date the UCC became relevant to Raimondo’s status (January 1,1979), Raimondo was serving a civil commitment. Thus, the circuit court erred in attempting to establish a new criminal commitment period for Raimondo pursuant to the “initial commitment order” clause of section 5 — 2—4(b). While the remainder of that section was applicable, that particular clause could have no impact on Raimondo’s status.

Acceptance of a contrary interpretation would lead to a violation of the ex post facto clauses of the State and Federal constitutions. In order to remain faithful to those clauses, the legislature could not enact a statute which would institute a new period of criminal commitment for a person in Raimondo’s situation simply by amending the UCC to provide for longer criminal commitment periods and by making such amendment of retroactive impact. Nor can the court accomplish this result by making retroactive application of a statute which is clearly constitutional when applied prospectively only. As concerns this case, regardless of the changes in the statutes which govern Raimondo’s civil commitment and the potential discharge therefrom, those amendments cannot be utilized to again subject Raimondo to criminal commitment based upon the same acts which supported the expired 1975 criminal commitment. (See Weaver v. Graham (1981), 450 U.S. 24, 28-31, 67 L. Ed. 2d 17, 22-24, 101 S. Ct. 960, 963-66; Lindsey v. Washington (1937), 301 U.S. 397, 401, 81 L. Ed. 1182, 1185-86, 57 S. Ct. 797, 799; Harris v. Irving (1980), 90 Ill. App. 3d 56, 59-60, 412 N.E.2d 976, appeal denied (1981), 82 Ill. 2d 584; People v. Peach (1976), 39 Ill. App. 3d 757, 759, 350 N.E.2d 583.) The circuit court erred in doing so in this case.

Respondents, represented by the State’s Attorney of Cook County, argue that retroactive application of the “initial commitment order” amendments to section 5 — 2—4(b) of the UCC can be made, and that our supreme court has approved just such an action in People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187. This argument is wholly meritless. The supreme court’s upholding of the application of the UCC amendments in Valdez was clearly because Valdez’ acquittal by reason of insanity occurred after the effective date of those amendments. Here, in contrast, Raimondo’s acquittal occurred long prior to the effective date of the amendments.

The State’s Attorney also claims the changes contained in the UCC amendments were procedural rather than substantive, so that ex post facto considerations are not relevant. We do not agree. See People v. Tennyson (1979), 75 Ill. App. 3d 341, 346, 394 N.E.2d 418.

In sum, then, the only provisions of the amended UCC relevant here are those which pertain to the methods through which a discharge from civil commitment which follows a criminal commitment can be procured. The “sentencing hearing” held by the circuit court had no basis in the UCC and was of no consequence to Raimondo’s status. The court order which effectively reinstated Raimondo’s criminal commitment was erroneously entered and is reversed. The case must be remanded for such further proceedings under the UCC (through the MHDDC) which might be held while adhering to the conclusions we have made in this opinion.

In order to provide some guidance for what may follow upon remand, we point out several avenues which the parties may choose to pursue to determine whether Raimondo should continue to remain in the custody of the Department under civil commitment. First, the Department could issue a determination that Raimondo is no longer subject to involuntary admission and may be discharged. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(d).) Second, Raimondo could file a petition for discharge under the UCC. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(e).) In either case, an evidentiary hearing must be held, with the burden of proof assigned in regard to whichever party commenced the proceeding. (See Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(g).) Third, Raimondo could pursue the merits of his habeas corpus petition, in light of our findings in section I above. However, we initially perceive that the evidentiary requirements for proof of entitlement to discharge under this theory would equate with those necessary were a petition for discharge to be filed under the UCC, given our earlier discussion. In any event, at this juncture we make only suggestions. Our substantive conclusion on the central issue of this appeal is that Raimondo currently remains in the custody of the Department under a valid civil commitment until such time as evidence is presented which would entitle him to discharge under the terms of the UCC.

IV

In light of the above findings, it is unnecessary for us to rule upon the merits of Raimondo’s motion to strike an argument contained in respondents’ appellees’ brief. That argument concerns the correctness of the date set by the circuit court for the expiration of Raimondo’s renewed criminal commitment. Since the court erred in attempting to set any such date, the argument is of no relevance to our disposition of the appeal. We do note, however, that this argument was made by the State’s Attorney without the filing of a cross-appeal. Were the argument relevant to the merits of the appeal, it would have been stricken as improperly made.

For the reasons set forth herein, the judgment of the circuit court of Cook County is reversed and the cause is remanded for such action as may be appropriate pursuant to the provisions of this opinion.

Reversed and remanded.

STAMOS, P. J., and HARTMAN, J., concur.

       The “initial commitment order” clause provides for an initial order of admission (commitment) of a person found not guilty by reason of insanity who remains subject to involuntary admission at the time of disposition. That initial admission is set at an indefinite length not to exceed the maximum sentence possible for the most serious underlying offense, less good time credit, before eligibility for parole. See Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(b).

       We reject Raimondo’s argument that he is entitled to immediate discharge because his lawful civil commitment expired on March 1,1979, when the Department allegedly failed to comply with the requirements of section 3 — 813(a) of the MHDDC. (Ill. Rev. Stat. 1979, ch. SB!, par. 3 — 813(a).) In light of the directive of section 3 — 200, which we discussed, the procedures set forth in section 3 — 813(a) have been superseded by those of the UCC and are inapplicable to this type of case.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    RITA COLNAR, Plaintiff-Appellant, v. THE BALDKNOBBERS, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 81-1166
    Opinion filed June 1, 1982.

      Susan E. Loggans & Associates, of Chicago (Susan E. Loggans and Margaret M. O’Leary, of counsel), for appellant.
    Quinn and Broderick, of Chicago (Thomas C. Broderick, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Rita Colnar, an Illinois resident, sued defendant, The Baldknobbers, Inc., a Missouri corporation, seeking recovery for injuries allegedly sustained on the premises of defendant’s theatre in Branson, Missouri. The trial court dismissed the complaint and quashed service of summons for lack of jurisdiction over defendant. Plaintiff appeals, raising as issues whether the trial court: erred in its consideration of plaintiff’s affidavit; used the correct standard in weighing the affidavits before it; and erred in quashing service of summons for lack of jurisdiction over defendant.

Plaintiff complained that on October 25,1977, she was injured when she fell upon rocks, debris, and other obstructions while walking on defendant’s premises in Branson, Missouri. Defendant, served in Missouri, filed a special appearance and moved to quash for want of jurisdiction. Attached to the motion was an affidavit by Lyle Mabe, president of defendant corporation. Following discovery limited to the issue of jurisdiction, plaintiff responded to defendant’s motion and attached the depositions of Lyle Mabe and Max Tate, the latter being defendant’s stage manager. In response to plaintiff’s request, defendant produced contracts between defendant and Illinois organizations relating to performances apparently consummated in 1979 and 1980. The affidavits, depositions and contracts reveal the following facts.

Defendant is engaged in the business of producing and performing country and hillbilly music, and comedy shows comprised of local talent. Defendant owns no real or personal property and maintains no offices in Illinois. It is not registered to do business in Illinois. Tourists visit Branson to listen to country and folk music, of which defendant is one local attraction. Visitors sometimes arrange for defendant to perform in their hometowns, some of which are out-of-State. Defendant visits Illinois two to five times a year to perform a 2-hour show, usually at fraternal organizations and schools. Contracts to perform are sent to the organizations in Illinois, which return them signed to Missouri. Posters and advertising materials are sent to Illinois only upon the request of the contracting organization and only after a contract is signed. During the performance, souvenirs are sold, such as books and records, which are produced locally. Defendant advertises locally only and, although it has contributed to the Ozark Marketing Council in recent years, whose purpose it is to attract tourists to Branson, there is no evidence such contributions were made the year plaintiff was injured. Formerly, defendant employed a booking agent, Bill Insley; however, the extent of his duties is unclear from deposition testimony and Insley himself was not deposed.

Also attached to plaintiff’s response was plaintiff’s affidavit, alleging that, “while still located in Illinois [she] heard of the Baldknobbers performances and had read literature describing their performances * * *. The things [she] heard about them and the literature is what attracted [her] to see them in Branson, Missouri, on the date of the accident.”

Plaintiff initially argues that the trial court erred in finding her affidavit lacked credibility and was insufficient under Supreme Court Rule 191 (73 Ill. 2d R. 191). During the hearing on defendant’s motion, the trial court stated in passing, “By the way this affidavit is dated December 23, 1980, approximately six months after the depositions of Tate and Mabe.” This was the only trial court reference to the date; it did not state that the affidavit lacked credibility because of its date. The trial court further observed that, as plaintiff never set forth in her affidavit from what source she had heard of the Baldknobbers’ performances, “[t]his does not really appear to be an affidavit that would truly comply with Supreme Court Rule 191 so far as setting forth all the facts that would be within the personal knowledge of the ° 0 * [affiant].” The affidavit was not stricken, however, for noncompliance with Rule 191.

Plaintiff next contends that the trial court incorrectly weighed the affidavits submitted by the parties. She alleges that all uncontroverted affidavit facts must be taken as true, citing Doolin v. K-S Telegage Co. (1979), 75 ni. App. 3d 25, 393 N.E.2d 556, which holds that facts alleged by plaintiff must be taken as true only if defendant’s affidavit fails to negate those facts. She avers that the trial court here disregarded uncontroverted facts alleged by plaintiff. As previously noted, plaintiff’s affidavit fails to set forth what literature she read, e.g., newspaper accounts of the performance, vis-a-vis promotional handbills distributed by defendant. Nor does she disclose the source of what she heard, which would have enabled the trial court to assess what jurisdictional activities, if any, were initiated, maintained or pursued by defendant. As it consisted of mere conclusions without supporting facts (see Amelco Electric Co. v. Arcole Midwest Corp. (1976), 40 Ill. App. 3d 118, 123-24, 351 N.E.2d 349), plaintiff’s affidavit gave little, if any, support to her position; the trial court gave it apt consideration.

Plaintiff maintains the circuit court of Cook County obtained personal jurisdiction over defendant under either the “doing business” doctrine or under sections 17(1) (a) and (3) of the Illinois “long-arm” statute (Ill. Rev. Stat. 1979, ch. 110, pars. 17(1)(a), 17(3)). (See Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 429 N.E.2d 847 (hereinafter “Cook Associates, Inc.”); Braband v. Beech Aircraft Corp. (1977), 51 Ill. App. 3d 296, 367 N.E.2d 118, affd (1978), 72 Ill. 2d 548.) Under either standard, due process requires that a State may assert in personam jurisdiction over a foreign corporation only where that corporation has maintained minimum contacts with the forum (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158), although the Illinois Supreme Court has recently reexamined the parameters of Illinois jurisdiction over nonresident defendants and concluded that “this due process standard represents only the outer limits beyond which a State may not go to acquire jurisdiction over nonresidents [and] * * * the boundaries or limits under our statute are not to be equated with the ‘minimum contacts’ test under the due process clause.” (Cook Associates, Inc., 87 Ill. 2d 190, 197.) We examine first plaintiff’s “doing business” contentions.

Plaintiff argues that reasonable inferences can be drawn from the evidence which demonstrate: defendant employed a promoter to develop business here; defendant distributed posters and sold souvenirs and records here; defendant distributed advertising posters here; and, according to deposition testimony, defendant earned only enough to cover salaries on the road so that it intended to promote business as it performed during its visits to Illinois. As restated in Cook Associates, Inc., the hallmark of “doing business” in Illinois is that a foreign corporation is conducting business here if it is “of such a character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws * * *” of Illinois. (Pembleton v. Illinois Commercial Mens Association (1919), 289 Ill. 99,104,124 N.E. 355, appeal dismissed (1920), 253 U.S. 499, 64 L. Ed. 1032, 40 S. Ct. 483, quoted with approval in Cook Associates, Inc., 87 Ill. 2d 190, 201.) For jurisdictional purposes, “doing business” is a corporation’s operating within the State “not occasionally or casually, but with a fair measure of permanence and continuity,” a standard enunciated by Mr. Justice Cardozo in Tauza v. Susquehanna Coal Co. (1917), 220 N.Y. 259, 267, 115 N.E. 915, 917, and quoted with approval in Cook Associates, Inc., 87 Ill. 2d 190, 202-03. A corporation is then amenable to process in Illinois even for causes of action not arising from its transaction of business in the State. From the foregoing, it cannot be said that defendant was “doing business” in Illinois on the basis of its two to five performances in Illinois per year, as to justify in personam jurisdiction.

In Cook Associates, Inc., plaintiff claimed Lexington United was doing business in Illinois through exhibiting at three trade shows in Chicago, in each of which Lexington received less than $50,000 in orders. Lexington obviously came to Chicago in order to promote its business and make its sales, as did defendant here, as adjunctive activities. Lexington did not fall within the “doing business” standard. (87 Ill. 2d 190, 203.) Although plaintiff at bar urges that defendant has been coming into Illinois for 21 years, the record reflects only that The Baldknobbers have been performing for 21 years, but not where. Plaintiff observes that, of the three shows attended by Lexington in Cook Associates, Inc., two were in the same year, whereas in the instant case, defendant has been coming into Illinois two to five times per year. We find this distinction between Cook Associates, Inc. and the case at bar unpersuasive: defendant’s visits must be characterized as occasional and sporadic.

Cases cited by plaintiff reveal that defendant foreign corporations were found amenable to process because of the extensiveness of their activities in Illinois, absent at bar. Our supreme court determined that Illinois jurisdiction existed in Braband v. Beech Aircraft Corp. (1978), 72 Ill. 2d 548, 382 N.E.2d 252, upon certain facts which revealed that: Beech had an independent dealer in Illinois who agreed to perform warranty work here on all Beech products; Beech was empowered to inspect that business and its records here; Beech maintained listings in Chicago metropolitan area telephone directories; Beech’s marketing manager frequently visited Illinois to promote its aircraft sales; and Beech sponsored sales programs in Illinois. In Perkins v. Benguet Consolidated Mining Co. (1952), 342 U.S. 437, 96 L. Ed. 485, 72 S. Ct. 413, defendant corporation’s president maintained an office, employed personnel, hired a stock transfer agent, possessed bank accounts and conducted board of directors meetings in the forum State. In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, defendant tire manufacturer’s products entered Illinois at the rate as high as 6,000 tires per year for the years 1968 through 1971 and the tire involved in the accident was purchased in Illinois. In Quaker Oats Co. v. Chelsea Industries, Inc. (N.D. Ill. 1980), 496 F. Supp. 85, the court found that the Irish Dairy Board, a defendant, was continuously and systematically doing business within the State of Illinois through its sale of 4,136,000 metric tons of chocolate crumbs and 30 metric tons of casein which entered Illinois, and found that another defendant, North Kerry Milk Products, Limited, did business in Illinois because of its sale of 2,601 long tons of casein in the State. No activities similar to those in the foregoing cases have been undertaken by defendant in Illinois in the present case.

Nor is defendant subject to process under the long-arm statute (Ill. Rev. Stat. 1979, ch. 110, pars. 17(1) (a) and 17(3)). Plaintiff’s cause of action did not lie in the wake of defendant’s transaction of business within Illinois. (First National Bank v. Screen Gems, Inc. (1976), 40 Ill. App. 3d 427, 434, 352 N.E.2d 285.) “Where the jurisdictional activities consist of the solicitation of sales, a cause of action arising from the consequences of such a sale comes within the statutory definition of section 17(3).” (Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 373,370 N.E.2d 1106.) Plaintiff, again arguing that defendant’s two to five performances in Illinois were promotional in nature, urges that she responded to these promotional activities by attending defendant’s performance in Missouri, where she was injured. This contention is not supported in the record. That plaintiff “heard about defendant” in Illinois, and “read literature describing its performances,” which induced her to see defendant perform in Missouri, are allegations too vague to allow the court to conclude that plaintiff’s trip to Missouri was the result of defendant’s activities in Illinois. Cf. Clements v. Barney’s Sporting Goods Store (1980), 84 Ill. App. 3d 600, 406 N.E.2d 43.

For the reasons above stated, the judgment of the circuit court is affirmed.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGELO SANCHEZ, a/k/a Angel Sanchez, Defendant-Appellant.
    First District (5th Division)
    No. 80-1496
    Opinion filed June 4, 1982.
    Rehearing denied July 21, 1982.
    Ralph Ruebner and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and John D. Cecilian, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant Angel Sanchez was found guilty of murder, felony murder, and armed robbery. (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1, 18 — 2.) He was sentenced to 60 years imprisonment for murder and 30 years for armed robbery, both sentences to run concurrently. On appeal he argues that (1) his arrest was illegal because it lacked probable cause and therefore all evidence seized from his person and apartment should have been suppressed; (2) the consent to search form he signed was not voluntarily executed because of his inability to understand English; and (3) his right to a fair trial was unduly prejudiced by the prosecution’s inflammatory comments during closing arguments. We affirm.

On April 26, 1978, Linda Tremaine’s corpse was discovered in her apartment on North Sheridan Road in Chicago. Defendant Angel Sanchez was arrested on April 27,1978, at 10 p.m. and charged with felony murder, murder, and armed robbery.

Defense counsel filed two motions to suppress on May 16,1979. One motion was to suppress illegally seized evidence and the other motion was to suppress Angel Sanchez’ statement pertaining to the crime.

Motion to Suppress Evidence

On June 21, 1979, the trial court heard evidence and arguments on defendant’s first motion. The following testimony was given.

Investigator Chris Grogman of the Chicago Police Department was the first witness called by the defense. He testified that when he arrested defendant at 2452 West Belmont at 10 p.m. on April 27, 1978, he had no warrant and defendant was not acting in violation of any statutes. Grog-man also admitted that certain items of property were taken from Sanchez and from his home after his arrest.

The State then called Investigator Grogman as its witness. He had been assigned to the Tremaine case at 8:30 p.m. on April 26,1978. First he went to the victim’s apartment and viewed the body and the premises. The apartment was in total disarray. The victim was nude and partially covered with a sheet on the bed. She had been stabbed numerous times in the chest and a telephone cord was wrapped around her neck. A knife was on the floor next to the bed. A saucer with red wine in it was also next to the bed. Fingerprints were taken from the scene.

After they left the apartment, Grogman and his partner, Investigator John Durkin, spoke with Linda Turney at 8 p.m. on April 27. She told them that she had observed Linda Tremaine with Angel Sanchez during the late evening hours of April 25,1978, at the Peanut Barrel Tavern near Sheridan and Leland. Turney saw that defendant was accompanied by four male Latinos, but he left the bar with Linda alone. Linda Turney identified defendant by name. She also told Grogman that she saw the deceased with defendant at 2 a.m. on April 26 at the Paradise Lounge, which is located in the same building as Linda Tremaine’s apartment at 4826 North Sheridan.

Grogman and his partner next interviewed Cindy Madison, an employee of the Paradise Lounge. They spoke to her at 9:15 p.m. on April 27, 1978. She said that when Linda Tremaine’s male companion attempted to buy wine, Madison would not sell it to him because he had no identification. Linda Tremaine then paid for the wine and gave it to him. Cindy Madison gave the investigators a general description of the man who had accompanied Linda Tremaine but did not know his name.

Investigator Grogman further testified that after he had talked to Cindy Madison, he returned to the Peanut Barrel, where Linda Turney came up and pointed out a man who stood nearby at the corner of Sheridan and Leland. She said “That’s Angel Sanchez.” Grogman walked over to the man, identified himself as a police officer and asked his name. He replied, “Angelo Sanchez.” Grogman asked him for identification, which he did not have, and then told him he was investigating a murder and would like to talk to him further. Sanchez was wearing a woman’s wristwatch and ring, later identified as belonging to Linda Tremaine.

Subsequently, Grogman and his partner read him the Miranda warnings and took him to the police station. Sanchez told Grogman that he understood his constitutional rights before agreeing to answer some questions.

During cross-examination, Grogman testified that when he first visited Tremaine’s apartment, before apprehending the defendant, he did not know who had been in the apartment during the murder. At the time of Sanchez’ arrest the police were not yet aware that fingerprints lifted at the murder site belonged to defendant.

On June 22,1979, Investigator Thomas Stevens testified for the prosecution. He had been assigned to the case on April 28, 1978. Stevens identified a “permission to search” form which had been signed by Angelo Sanchez, Tony Torrez, and Investigator Walter Kline. Stevens testified that Sanchez read the form and indicated that he understood. Afterward, Torrez, a civilian detention aide, orally translated the form into Spanish and defendant reiterated that he understood it before signing. Torrez went off duty and another Spanish-speaking civilian aide, Alicia Rivera, wrote a summary of the consent form in Spanish. Sanchez read and signed the summary, which gave the police permission to enter his apartment. Stevens then went to defendant’s apartment and removed some items. He also testified that he and defendant had spoken in English.

On cross-examination Officer Stevens testified that he and his partner decided to use interpreters. Stevens did not understand Spanish or know what Torrez said to defendant.

The final witness to appear for the motion to suppress evidence was defendant, who spoke through an interpreter. According to Sanchez, he was arrested by two officers who only asked him if his name was “Richard.” He said his name was Angel Sanchez and was handcuffed, put in a squad car and taken to “a big building” where police officers asked him questions. He said he was not informed of his right to remain silent or to have a lawyer present. He further testified that he was not allowed to sleep, nor was he given food or water from the night he was arrested until the morning of his second day in the lockup.

Defendant further testified that he signed the consent form because he was told that he could not go home if he did not sign it. He did not understand it because it was in English. As to the interpreters, Sanchez testified that he did not understand them because he spoke “different” Spanish than they did. Defendant further stated that he had been in the United States for approximately two years at the time of his arrest and did not speak English at work because his boss speaks Spanish.

On cross-examination Sanchez read the Spanish summary of the consent form. He said that he understood the summary as giving police permission to search his apartment and he knowingly signed it, although he said he was not told that anything would be taken from his apartment. He also said he did not know that he had the right to refuse to sign the documents.

Following Sanchez’ testimony and counsels’ arguments the court ruled that the pohce officers had probable cause to take defendant into custody and remove items from his person and that defendant freely and knowingly consented to the search of his home. Accordingly, all evidence seized from Sanchez and his home was admissible.

Motion to Suppress Confession

Testimony and arguments on defendant’s motion to suppress confession began on July 31, 1979, and was continued in January of 1980. In the interim defendant obtained a new attorney. Much of the testimony is repetitive of that which was offered on the motion to suppress evidence and it is not clear from the record what, if any, incriminating statements were made by defendant. The focus of the motion, apparently, was to establish that defendant’s difficulties in understanding English precluded him from knowingly waiving his Miranda rights.

Assistant State’s Attorney Dennis Dernbach testified on July 31,1979, that he reported to Area 6 Homicide at approximately 2:30 p.m. on April 28,1978, pursuant to Investigator Kline’s request. Defendant was brought up from the lockup to meet Dernbach, who informed Sanchez of his rights after introducing himself as the State’s Attorney. First, Dernbach read him the Miranda warnings in English and then had a community liaison person, Mr. Santena, translate the rights into Spanish. After defendant received the warnings he requested an attorney and further questioning ceased.

When the hearing on defendant’s motion continued in January 1980, Investigator Grogman testified. When he had first spoken to defendant, Sanchez responded in English. He indicated he understood when Grog-man read him the Miranda warnings. The investigator further testified that in a conversation at the police station, defendant spoke English.

Investigator Stevens also testified that he advised defendant of his Miranda rights, which defendant stated that he understood. Next, he gave Sanchez the search consent form, which, again, Sanchez said he understood and finally, Stevens brought in Tony Torrez to read the form in Spanish. Defendant then signed the form. Stevens also told Torrez to give Sanchez the Miranda warnings in Spanish, which he did, and defendant indicated his comprehension. Thereafter, the female interpreter, Alicia Rivera, was brought in to write a summary of the form in Spanish. After defendant signed it, he told Stevens, in English, that he wanted to talk to an attorney before talking to the police. Thereafter, Stevens and Kline took defendant from the interview room back to the lockup. While they were on the elevator, defendant said, in English, “Hey man, I’ve never, I only met Linda once, I never been to her apartment, I don’t even know where she lives.” Stevens further testified that when he first spoke to defendant and gave him his Miranda rights, defendant responded in English. The reason he brought in interpreters was to preclude Sanchez at a later date from asserting that he could not understand English.

Tony Torrez substantiated the testimony regarding his role as interpreter.

Defendant testified on his own behalf that he spoke little English and could not read it. He stated that he had not understood the Miranda warnings. He also said the police had spoken to him first on the elevator on the way back to the lockup. He further testified that he had an Illinois driver’s license and was employed as a mechanic and driver at the time of his arrest. His friends were Latinos who conversed with him in Spanish.

The final defense witness was Rebecca Jamaica, a young woman who had a child by defendant and had maintained contact with him before and during his incarceration. She spoke fluent English and Spanish and testified that Sanchez spoke only a few very basic, small words on the rare occasions he spoke in English.

Following arguments the trial court denied the defense motion, finding that the officers had not faced problems communicating with defendant in English and had only used the Spanish-speaking translators to insure that defendant would be fully informed of his rights and would not later claim that he did not understand. Further, the court noted that defendant’s request for an attorney, after which questioning ceased, was an indication that he understood his rights.

Trial

The trial of Angel Sanchez began on March 31,1980. The first witness was the resident and manager of the victim’s apartment building, who discovered the body at 8 p.m. on April 26,1978, when he went to check on Linda Tremaine, at her mother’s request. He testified that he had gone to bed at 10 p.m. on the night before the murder and he heard no loud or unusual noises.

Officer Frank Rodriquez testified that he went to Tremaine’s apartment on April 26,1978, after receiving a radio call. He saw a long knife by the bed and bloodstains on the pillows. He did not know when the apartment was sealed.

Investigator Grogman next testified regarding his investigation of the crime. He visited the scene of the murder at 9 p.m. on April 26,1978. The following evening he and his partner interviewed Linda and Louis Turney at the Peanut Barrel Tavern and Cindy Madison at the Paradise Lounge. When Grogman returned to the Peanut Barrel Tavern Linda Turney identified defendant as Angel Sanchez. Grogman took Sanchez, who was wearing a woman’s ring and wristwatch, into custody, gave him his Miranda warnings and told him he was investigating a murder. Grogman and his partner took defendant’s fingerprints and photograph. Grogman returned to the Paradise Lounge to show Cindy Madison Sanchez’ mugshot for her identification.

The victim’s mother, Irene Fisher, testified that she saw her daughter for the last time at 3 p.m. on April 25,1978. Linda Tremaine was married but living apart from her husband. On the 25th of April, Linda was wearing a gold wristwatch and a ring. Sometime in the afternoon on April 26, 1978, Mrs. Fisher called her daughter and received a busy signal. After repeated attempts to reach her by telephone, Mrs. Fisher asked the manager of her daughter’s building to check on her. Later, she was informed of her daughter’s death. On April 28, 1978, she talked with Investigator Stevens, who asked her about Linda’s jewelry.

Investigator Stevens, a 10-year police department veteran, testified that in his investigation of the victim’s death, he took the watch and ring from defendant and showed it to Mrs. Fisher, who identified the jewelry as her daughter’s.

Stevens further testified regarding his interview of Sanchez and the sequence of events surrounding defendant’s signing of the consent to search form. At 4 p.m. on April 28, 1978, Stevens and other officers searched defendant’s apartment and found stereo equipment, a small television, a woman’s coat and, on the bed, a white sheet with red stains.

Returning to the victim’s apartment, the investigators found three empty cardboard boxes with the same logo (Gran Prix Electronics) as the stereo equipment in the Sanchez apartment. A warranty card with the logo “Midland Television” was found on the floor next to the victim’s bed. Sanchez’ television was manufactured by Midland and its serial numbers matched those on the warranty card in the victim’s room. Linda Tremaine’s blood type matched the blood on the bed sheet found in Sanchez’ apartment. Sanchez’ fingerprints were on the television but not on the stereo. Linda Tremaine’s fingerprints were not found on either item.

Following medical testimony regarding the cause of death, Cindy Madison testified. She described the events of April 26, 1978, when she saw defendant with Linda Tremaine between 2 and 3 a.m. and sold her wine for Sanchez.

Another witness, Lester Uhlich, then identified the ring and watch as jewelry that Linda Tremaine had worn on April, 22, 1978, when he ate lunch with her.

A fingerprint examiner testified that defendant’s fingerprints were found on the telephone receiver and also on the telephone cord that was wrapped around the victim’s neck. Another print was found on the bottom of a saucer found in her living room.

A police investigator next testified regarding the physical evidence they took from the apartments of the victim and of defendant.

A forensic scientist for the police department next testified that he found traces of spermatozoa on the victim’s vaginal smear. He also found traces of human blood on Sanchez’ fingernail clippings. The State rested after introducing its exhibits into evidence.

Defendant’s first witness was Rebecca Jamaica, who had known him since October 1977. She testified that the Spanish summary of the consent to search form does not indicate any constitutional rights or warnings.

Percy Martin, a doorman at the Sheridan Tap in the 4600s of North Sheridan testified that he knew Sanchez as a regular patron and saw him there 3-4 times between 8 p.m. and 4 a.m. on April 25-26,1978.

The final witness was Sanchez himself. He testified that he met Linda Tremaine at the Peanut Barrel at 8:30 on the night of April 25,1978. After a couple of drinks they left, went to her apartment and had sexual intercourse. He made a phone call from her apartment. Before he left, Linda cooked two eggs, which he ate from a saucer similar to the one on which police found his fingerprints. He left and went to the Sheridan Tap, where he later saw Linda again. She was drinking heavily and became concerned that she would lose her watch and ring so she gave Sanchez her jewelry for safekeeping. In the early morning hours of April 26, 1978, he and Linda went to the Paradise Lounge to buy a bottle of wine. Linda paid for it and then the couple returned to the Sheridan Tap and stayed until closing time. As they walked toward Linda’s apartment building they were confronted by “Tony,” her fiance, who carried a large knife and said he wanted to kill Angel Sanchez. Sanchez then left and did not return to her apartment. He was searching for Linda to return her jewelry on the night of April 27 when he was arrested.

Sanchez further testified that he could speak little English. He identified the consent to search form that he had signed and the Spanish summary but emphasized that he did not understand the document and was never told of its meaning or that he had a right to refuse permission to search his apartment. He stated that the blood on the sheet found in his apartment was a woman acquaintance’s menstrual discharge. He owned the television and stereo equipment found in his apartment and Linda did not give them to him. He had purchased them from two Puerto Ricans on the night before he visited Linda Tremaine’s apartment.

Regarding his inability to communicate or understand English, Sanchez stated that in April of 1978 he did not know the English words for “search,” “permission,” “lawyer,” “right,” and “not.” He speaks Spanish with his friends and although he was deficient in English he knew what the deceased “wanted” on the night of April 25. He also knew enough English to ask her for some food. He had obtained his Illinois driver’s license by going to a driver’s training school.

The defense rested following Sanchez’ testimony. The State then offered some stipulated testimony in rebuttal. Investigator Grogman testified that on the night of defendant’s arrest, at police headquarters, Sanchez said that he acquired the woman’s jewelry from an Indian girl named Rose Marie. Further, the State introduced in evidence Sanchez’ Illinois driver’s license application, on which he had checked two boxes that indicated he could speak and read English.

Following the conference on jury instructions, both sides gave their closing arguments. Defendant objected to several comments made in the State’s rebuttal argument, which we will discuss in the opinion portion of this decision. The jury returned a verdict of guilty on the counts of felony murder, murder, and armed robbery. After a bifurcated death penalty hearing the jury declined to sentence Sanchez to death. Thereafter, the judge heard post-trial motions and sentenced Sanchez to 60 years for murder and 30 years for armed robbery, to run concurrently.

Opinion

Defendant first contends that his warrantless arrest lacked probable cause and that therefore all evidence seized from his person and apartment should have been suppressed as fruits of the illegal arrest. If an arrest is unlawful at its inception, it cannot be justified by the subsequent discovery of incriminating evidence. (People v. Peak (1963), 29 Ill. 2d 343, 194 N.E.2d 322.) To effectuate the protective policies of the fourth amendment items seized pursuant to an illegal arrest must be suppressed. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254.) In the pending case, therefore, the determining issue is the validity of defendant’s arrest.

An arrest cannot be based on a police officer’s “bare suspicion” that the suspected person has committed a crime (People v. Peak); however, an officer has probable cause to arrest if the facts and circumstances within his knowledge “are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” (People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356, 358.) Under this standard courts have observed that whether or not probable cause exists depends on the totality of circumstances known to the arresting officer at the time of arrest. Furthermore, the probable cause determination should not be unduly technical but instead must rely on probabilities measured by the practical considerations of everyday life. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280; accord, People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228.) In assessing the reasonableness of police conduct it is necessary to consider the officer’s duty to maintain order, prevent crime and apprehend criminals, often while acting on a quick appraisal of the information known to him. (People v. McClinton (1978), 59 Ill. App. 3d 168, 375 N.E.2d 1342.) Moreover, a reviewing court will not disturb the trial court’s finding of probable cause unless it is manifestly erroneous (People v. Clay), and it is proper for the court, in reviewing a ruling on a motion to suppress, to consider evidence during trial which assists in establishing the legality of the arrest. People v. Summers (1981), 100 Ill. App. 3d 170, 426 N.E.2d 937.

In light of these principles, and in viewing the testimony on the motions to suppress and at trial, we hold that the trial court’s determination of the probable cause issue is not manifestly erroneous. At the time defendant was arrested on April 27, the police had been apprised of the following facts: the victim had been violently murdered in her apartment and the apartment was in disarray; two witnesses had observed defendant with the victim in the early morning hours of April 26; of these two, Linda Turney knew defendant’s name and pointed him out to Investigator Grogman and Cindy Madison gave him a general description of defendant; at approximately 2 a.m. on April 26 the victim bought wine for defendant at the Paradise Lounge, which was located in her apartment building and the two left the lounge together; red wine was found in the victim’s apartment in a saucer; defendant was wearing a woman’s ring and wristwatch when Investigator Grogman arrested him; and defendant was taken into custody at Sheridan and Leland, near the scene of the crime, on the day the body was discovered. While any one of these facts alone might not be sufficient to establish probable cause we believe that, taken together, they support the arresting officer’s reasonable belief that defendant was the offender. The police were unaware of anyone other than defendant who had seen her alive after he left the Paradise Lounge with her at 2 a.m. on April 26. Moreover, the disordered state of her apartment could well suggest a robbery motive, which could have led Investigator Grogman to be especially alert to the jewelry that defendant was wearing when apprehended. When Linda Turney pointed out Sanchez, Grogman had to quickly appraise the information he knew then and act accordingly.

In another case, we upheld a determination that probable cause existed where the officers at time of arrest knew only that defendant’s fingerprint was present on a crumpled cigarette package in the living room near the murder victim; there was no indication of forced entry and the suspect was known to the victim; and two other possible suspects’ whereabouts on the evening in question had been ascertained. (People v. Summers (1981), 100 Ill. App. 3d 170, 426 N.E.2d 937.) In People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356, an off-duty officer saw two men in a high crime area looking around and walking fast, carrying a television set, a partly concealed shotgun and a bag of items. They told the officer that they were helping their sister move, but then fled when he attempted to summon help. Other officers later arrested defendants after receiving a call about “suspicious” men carrying a television set and a shotgun. The supreme court upheld the probable cause finding despite the dissenting judge’s observation that at the time of the arrest the police did not even know that a burglary had been committed. People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356. See also People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228 (probable cause existed to arrest defendant who had been living with the murdered victim for a month before her death, was last seen with her at 1:30 a.m. on the morning her body was discovered, 5/2 hours later, police knew of no one else who saw her alive after defendant was with her, and defendant left for Ohio in the victim’s car the same day of her death).

We conclude that defendant’s arrest was based on probable cause and the trial court did not err in admitting the evidence taken from Sanchez’ person, the victim’s ring and watch, and Sanchez’ fingerprints and photograph.

Further, we find that the evidence recovered from Sanchez’ apartment was admissible on the basis of his consent to search. Defendant argues that his authorization to the police was not voluntarily given. After reviewing the evidence in the record, however, we reject this contention also. Without repeating the facts at great length we note that Investigators Grogman and Stevens testified that they had had no difficulties communicating with defendant, at least initially, in English, and defendant told them he understood when they advised him of his rights. As an added precaution, Spanish-speaking interpreters, at various times, also read him the Miranda rights. After defendant had read the consent to search form which indicates that consent may be withheld, Tony Torrez read it to him in Spanish. Alicia Rivera then translated a summary in Spanish so that Sanchez could clearly read that he was allowing police officers to enter his apartment. He signed both the English form and Spanish summary. Regarding his own and his female friend’s testimony that he knew little English, it was the trial court’s role to evaluate the witness’ credibility. Furthermore, Sanchez’ Illinois driver’s license indicated that he spoke and read English. In light of the strong indications in the record that Sanchez actually understood English we reject the argument that he was not adequately apprised of his Miranda rights. Moreover, even assuming his English is inadequate, the record amply supports the inference that the police officer’s use of interpreters, who informed him of his rights in Spanish, safeguarded his rights. Additionally, he admitted at trial that he understood what he was signing. Consequently, we reject the argument that his consent to search was involuntarily given because he did not know he had a choice of refusing to sign the form, or that he was told he could not go home until he did. It appears from the record that the trial court’s finding on the consent issue is not against the manifest weight of the evidence.

Finally, defendant contends that he was deprived of a fair trial because of the prosecution’s rebuttal closing argument. Defense counsel objected to the following remarks:

1. “Believe me, if I was in Ecuador today this wouldn’t be happening.”
2. “This interpreter here, here, he is a fine man, he has worked in this courtroom a number of times but he is a waste of your money during this trial, ladies and gentlemen.”
3. “When you see these pictures you will see only animals kill in this way.”
4. “But, unlike him, my parents weren’t out killing people and impregnating sixteen year old girls.”

The trial court sustained objections to the first three remarks and told the jury to disregard the remarks. Generally, the effects of objectionable remarks are said to be “cured” when objections are sustained and the jury is instructed to disregard them. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; cf. People v. Cepek (1934), 357 Ill. 560,192 N.E.2d 573 (trial court’s sustaining of objections does not always cure prejudicial errors).

The first remark is vague and it does not appear to be prejudicial to defendant. The remark was made in the context of thanking the jury for doing their civic duty and telling them that “this is the only country where something like this trial can happen.” Defendant had testified that he was from Ecuador. Although this remark was not relevant to the evidence, it is hardly so inflammatory as to require reversal. The second remark apparently was intended to imply that defendant did not need an interpreter because he understood English. While we agree that the comment was inappropriate, we do not find it to be of the type that would probably inflame the jury. The third remark came at the end of counsel’s argument, and, while again it was not perhaps the best way to phrase the remark, we hardly think that the jury was unduly influenced by the reference to the way an “animal” kills when the nature of the killing was brutally evident to the jury from the testimony and exhibits.

The final remark appears to be the most objectionable. Although counsel made the remark in apparent response to defense counsel’s insinuation that the State’s attorneys were- “insensitive” to the problems of people from other countries, we agree that the comment was improper. Nevertheless, the reference to counsel’s parents’ activities, while it may have been confusing because it makes no sense, was unlikely to have swayed the jury against defendant. Therefore, although the comments, taken together or separately, were not proper comments on the evidence, we do not find that they amount to reversible error. The jury was admonished as to the nonevidentiary effect of counsel’s arguments, and the four remarks defendant singled out did not deprive defendant of a fair trial. See People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 383; People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.

For the reasons herein discussed, we hold that defendant’s arrest was based on probable cause, the search of his apartment was conducted pursuant to his voluntary consent, all evidence recovered from defendant and his apartment was consequently admissible, and the prosecution’s closing argument in rebuttal did not deprive defendant of a fair trial. Therefore, we affirm the judgment of the trial court in its entirety.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       We note from the record that on one occasion, defendant answered a question before the translator interpreted it for him.


text:
    PARKWAY BANK AND TRUST COMPANY, Trustee, et al., PlaintiffsAppellees, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 80-3245
    Opinion filed June 4, 1982.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellant.
    Zulkey & Pikarski, Chartered, of Chicago (Richard E. Zulkey and John J. Pikarski, Jr., of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

This was an action brought against the City of Chicago by owners of property located at 6115-19 North Pulaski Road, Chicago, Illinois, to challenge the constitutionality as applied, of the subject property’s R-3 General Residence District zoning classification. The circuit court declared that the zoning classification was unconstitutional as applied to the property in question, and defendant appeals. The issue for review is whether the evidence establishes that the zoning ordinance is unconstitutional as applied to the subject property. We affirm the judgment of the circuit court.

On June 11, 1979, the owners of the property located at 6115-19 North Pulaski filed a complaint for declaratory and injunctive relief against the City of Chicago. The complaint alleged that the subject property is a black-top parking lot located in a R-3 General Residence District. The complaint prayed that the zoning classification be declared unconstitutional and void as applied to the subject property and that the City be ordered to issue the proper permits and licenses to permit construction of an 11-unit condominium complex in conformance with a R-4 General Residence classification.

At the hearing, John McNeill, one of the owners of the property, testified that his proposed plan for the property would meet all R-4 standards, including at least 11 on-site parking places. It was his opinion that the value of the property under R-3 zoning was $48,000; but, if judicial relief was granted, the property would be worth $88,000.

On cross-examination, McNeill stated that he contracted to buy the property for $64,000 and knew it was zoned R-3, but thought it was a good site for the requested zoning change. He would have never bought the property had he thought a change in zoning impossible. He made a survey on Pulaski Avenue for residential density: the nursing home adjacent to his property was R-4; to the south of the site is a townhouse complex with R-3 zoning; and directly across the street were commercial buildings and a gas station with B-4-1 and B-2-1 zoning.

Thomas Buckley, a city planning and zoning consultant inspected the subject property. He described the uses and zoning of the area surrounding the site: the southeast corner of Glenlake and Pulaski was zoned R-2 Single Family Residence; from West Glenlake to West Granville was R-3 General Residence, which consisted of a 10-unit townhouse, the subject property and the Granville Terrace Nursing Center; across from the site was Ml-1 zoning with manufacturing and commercial uses. It was his opinion that the highest and best use of the property, given the physical adaptability of the property and the overall character of the area, would be R-4 residential. He stated that the subject property was more like the nursing home, since both faced Pulaski, and the nursing home’s occupation exceeded R-3 standards. He also identified the declaratory judgment order which allowed the nursing home to function in a R-4 use. Additionally, he believed that the proposed development of the property would not injure the other uses surrounding it, but would actually improve them.

Patrick Arnold, planner for the City of Chicago, testified that the nursing home to the north of the subject property, though the subject of a declaratory judgment, was in density closer to a R-3 classification. It was his opinion that the R-3 zoning classification was a reasonable boundary serving as a buffer between property classified as manufacturing on the west side of Pulaski and property classified as single-family residential on the east side of Pulaski.

Summary of other witnesses’ testimony revealed that development of the condominium complex on the property would have an adverse effect on the surrounding property, i.e., increased traffic congestion, parking problems and depreciation of adjacent property values. Additionally, testimony revealed that the city council denied the subject property R-4 status.

Opinion

Defendants contend that the plaintiffs failed to establish by clear and convincing evidence that the R-3 General Residence classification was invalid as applied to the subject property.

The constitutional challenge to a zoning ordinance must be measured against the well-established rules. There is the presumption of validity in favor of existing zoning ordinances, and one who attacks the validity of an ordinance must prove by clear and convincing evidence that the ordinance, as applied to their property, is arbitrary, unreasonable and without a substantial relationship to the public health, safety, morals or welfare. (Wundsam v. Gilna (1981), 97 Ill. App. 3d 569, 422 N.E.2d 1109; LaSalle National Bank & Trust Co. v. County of Cook (1981), 94 Ill. App. 3d 341, 418 N.E.2d 932.) This rule recognizes that zoning is primarily a legislative function, and the court’s role is to determine if the exercise of this function invades private constitutional rights without reasonable justification in the public welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.) Further, the standard of review in zoning cases, as in other cases, is that the finding of the trial court will not be disturbed on review unless against the manifest weight of the evidence. (Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 426 N.E.2d 1276.) In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. In re Application of County Collector (1978), 59 Ill. App. 3d 494, 375 N.E.2d 553.

The factors to be considered in determining the validity of a zoning ordinance are (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the vicinity of the subject property. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47,145 N.E.2d 65.) Two additional factors to be considered in determining the validity of a zoning ordinance are the care with which the community has undertaken to plan its land use development and the evidence or lack of evidence of community need for the use proposed by plaintiff. (DeMarie v. City of Lake Forest (1981), 93 Ill. App. 3d 357, 417 N.E.2d 641.) However, no single factor is controlling and the validity of each zoning ordinance is determined by its own facts and circumstances. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48.

With these principles as a frame of reference to assess the trial court’s determination of the invalidity of the zoning ordinance in this instance, the evidence demonstrates that area is a patchwork of different zoning classes and legal nonconforming uses. On the west side of Pulaski from Peterson Avenue to Granville is zoned Ml-1, a restricted manufacturing district; continuing north to Rosemont Avenue, is a B2-1 classification, restricted retail; north of Rosemont for half a block the zoning is R-2; going south beyond Glenlake to Peterson the zoning class is R-2, Single Family Residence; on the east side of Pulaski between Granville and Glenlake, two-thirds of the block is occupied by a 190-bed nursing home with an excepted R-4 use in an R-3 zoning classification; immediately south of the nursing home is the subject property presently used as a parking lot. This use is not permitted under R-3, but is a special use allowed by the Chicago Zoning Board of Appeals. Finally, south of the site is a 10-unit townhouse complex conforming to R-3 use but facing Glenlake Avenue, not Pulaski.

Thus, the existing uses and zoning of surrounding property are not predominantly R-2 and uniform as defendant contends, but a mixture of zoning patterns. When considering this diversity in zoning, a more intense use of the subject property would seem reasonable.

Defendant relies on LaSalle National Bank & Trust Co. v. County of Cook (1981), 94 Ill. App. 3d 341, 418 N.E.2d 932, and Bennett v. City of Chicago (1962), 24 Ill. 2d 270, 181 N.E.2d 96, to support its position. In LaSalle National Bank & Trust Co., plaintiff sought a zoning change for a proposed commercial use. The trial court granted the requested change, and we reversed, finding that the surrounding existing uses were primarily residential in character, and the subject property itself had been improved with single-family residences, unlike the instant matter. Likewise, in Bennett, our supreme court found that the integrity of the R-2 zoning in the given area, buttressed by the fact that the surrounding area north and west was similarly zoned, warrants upholding the present classification. In the present case, there are legal nonconforming uses even within the R-3 zone classification.

Testimony also revealed that under the present zoning classification, the subject property was valued at $42,000 as a vacant improved lot and that it would be more valuable if rezoned and developed. Thus, plaintiffs’ property value seems unreasonably reduced because of the present zoning classification, and this poses an economic hardship upon the owners.

Further, another factor in determining the reasonableness of the present zoning ordinance is whether that classification has a substantial relationship to the public health, safety and welfare. The trial court did consider defendant’s concern about the additional traffic and auto congestion, but the evidence also demonstrated that Pulaski is a heavily traveled thoroughfare and that the townhouse properties faced Glenlake Avenue and not Pulaski. Plaintiff-owners indicated that a parking facility would be included in the proposed development of the property. Moreover, since the subject property is presently a vacant lot used as a parking facility, development of this site would presumably enhance the value of the surrounding single-family residences. As such, the trial court could reasonably conclude that the proposed change would not substantially change the character of the area, but in fact, would improve it.

Our review of the record indicates that the trial court considered these factors and other factors enumerated in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, and subsequent cases and concluded that the validity of the ordinance was overcome by clear and convincing evidence. We do not find this determination to be against the manifest weight of the evidence and are, therefore, affirming the decision of the circuit court.

Affirmed.

LORENZ and MEJDA, JJ^concur.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PINKY HENDERSON, Defendant-Appellant.
    First District (3rd Division)
    No. 80-2976
    Opinion filed June 16, 1982.
    Joseph A. Ettinger and Rick M. Schoenfield, both of Joseph E. Ettinger & Associates, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Pinky Henderson, was charged in two informations with the offenses of possession of a controlled substance and delivery of a controlled substance. (Ill. Rev. Stat. 1977, ch. 56li, pars. 1401(c), 1402(b).) The first information charged that on September 1, 1978, defendant knowingly and unlawfully possessed a substance containing pentazocine, a controlled substance. The second information charged that on August 31, 1978, she knowingly and unlawfully delivered a substance containing pentazocine. Defendant waived her right to a trial by jury, and both charges were tried on a stipulated set of facts. The trial court found defendant guilty of both charges and sentenced her to concurrent periods of probation of thirty months.

The only issue presented on this appeal is whether section 4.1 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91½, par. 120.4 — 1) which permits certain members of the Dangerous Drugs Commission of the State of Illinois (commission) to delegate representatives to serve in their places by written notice to the commission constitutes an unconstitutional delegation of legislative power because no standards are provided for the selection of representatives. Section 4.1, in relevant part, provides:

“There is created the Dangerous Drugs Commission consisting of 11 members as follows: the Director of Mental Health, who shall be chairman, the Superintendent of Public Instruction, the Director of Corrections, the Director of the Department of Law Enforcement, the Director of Public Health, the Director of Vocational Rehabilitation, the Director of Public Aid, the Director of Children and Family Services and 3 additional public members who shall be appointed by the Governor by and with the advice and consent of the Senate. * * * Each member, except the Chairman and the 3 public members, may delegate a representative to serve in his place by written notice to the Commission.” (Emphasis added.)

The record on appeal contains a transcript of proceedings of the commission on August 1,1978, when the commission purported to schedule pentazocine in Schedule II of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56½, par. 1100 et seq.). That transcript, in turn, shows that of the 11 members specifically designated by section 4.1, only four were present at that meeting. The seven members who were authorized by statute to delegate a representative did so. At the meeting, the commission considered a resolution that pentazocine be included in Schedule II. After a lengthy hearing, the commission, composed of four members and seven representatives, voted unanimously that pentazocine be included in Schedule II.

Under the Illinois Controlled Substances Act, the commission may add substances to or delete or reschedule all controlled substances in the schedules established by the Act. (Ill. Rev. Stat. 1977, ch. 56½, par. 1201(a).) Defendant’s argument is that this decision purporting to control pentazocine was void ab initio because the sub delegation of legislative power from individual members of the commission to their representatives was improper and unconstitutional. She contends that the charges against her should therefore be dismissed. For the reasons stated below, we disagree.

Defendant does not contend that the delegation of legislative power to the commission to add to or to delete from the schedules of controlled substances or to reschedule those already controlled is unconstitutional, when it is acting through its regular members. Such an argument would be untenable in light of People v. Avery (1977), 67 Ill. 2d 182, 367 N.E.2d 79. In Avery, our supreme court held that the legislature, under section 201(a) of the Illinois Controlled Substances Act, properly delegated to the Director of Law Enforcement, the authority, with the concurrence and approval of the Dangerous Drugs Advisory Council, to so amend the schedules, and that the legislature has provided intelligible standards to delimit that authority. The Director and Council have since been replaced by the commission, and the commission is subject to the same intelligible standards.

According to defendant, we can uphold the constitutionality of section 4.1 of the Dangerous Drug Abuse Act only if we construe the authority of commission members to delegate representatives to serve to be limited. Specifically, she contends that section 4.1 should be interpreted to allow representatives to serve in the place of commission members only when the function being performed does not involve a final legislative determination. Further, she contends that a decision to add a substance involves such a determination, and that function must be performed by the commission members named by the legislature. She notes, in this regard, the other powers, duties and functions of the commission enumerated in sections 5.1 through 5.14 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1977, ch. 91½, pars. 120.5 — 1 through 120.5 — 14) include many which do not involve final legislative determinations. We are of the opinion, however, that section 4.1 is not susceptible to such a narrow construction. Nothing in the language of that section suggests that the authority of the commission members to delegate representatives should be so narrowly construed. And “ ‘[t]here is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.’ ” (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194, 381 N.E.2d 222.) Thus, we conclude that the legislature, in giving certain commission members the power to delegate a representative, intended that this power could be utilized by them, even when the commission is deciding whether to add, delete or reschedule controlled substances. Consequently, the delegation which occurred here was expressly permitted by section 4.1.

Therefore, we turn to the question of the propriety of the delegation. Defendant’s position is that such delegation was improper because the legislature has not established any qualifications regarding the persons to whom commission members may subdelegate as representatives. She notes that section 4.1 only requires that a commission member give written notice to the commission of his delegation to a representative.

The legality of a subdelegation of an administrative agency’s power is primarily a function of legislative intent. (Hall v. Marshall (E.D. Pa. 1979), 476 F. Supp. 262, 272, affirmed (3d Cir. 1980), 622 F.2d 578; see Fleming v. Mohawk Wrecking & Lumber Co. (1947), 331 U.S. 111, 91 L. Ed. 1375, 67 S. Ct. 1129.) As stated by Professor Davis: “When a statute is interpreted to authorize a subdelegation, a holding of unconstitutionality of the subdelegation is unlikely.” (1 Davis, Administrative Law Treatise sec. 9.06, at 635 (1958); see also 1 Sutherland, Statutory Construction sec. 4.14 (1972); United States Steel Corp. v. Pollution Control Board (1977), 52 Ill. App. 3d 1, 367 N.E.2d 327.) Davis cites the case of Rockland County Anti-Reservoir Association v. Duryea (1953), 282 App. Div. 457, 123 N.Y.S.2d 445, in support of this proposition. That case involved judicial review of a commission’s approval of an application for the construction of an impounding reservoir. The decision was made by a commission composed of three members, one of whom had been designated pursuant to statute by a regular member as a “suitable employee of his department to represent and act for him” in the matter. The petitioners argued that the section of the statute permitting such subdelegation was unconstitutional. In rejecting this argument, the court stated:

“No invalid delegation of legislative authority is involved in a statute authorizing a department head or other executive officer to delegate his powers to a substitute. * * * The Legislature may constitutionally vest the power of decision, in the first instance, in the holders of designated offices and then authorize them to re-delegate or subdelegate the power to other officers or employees to be selected by them. The question of whether a statute authorizes the delegation of the power of decision may sometimes ‘involve a difficult problem of statutory construction’, [citation], but no constitutional question is involved.” 282 App. Div. 457, 464, 123 N.Y.S.2d 445, 45].

A more recent case involving a similar subdelegation is Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Com. (1970), 11 Cal. App. 3d 557, 89 Cal. Rptr. 897. That case involved review of a decision of a commission to deny a permit to fill a parcel of land. The appellant argued that a section of a statute which permitted commission members to designate proxies to act and vote in their place constituted an unconstitutional delegation of legislative power because no standards were provided for the selection of proxies. In finding no improper delegation, the court observed that proxies acting in the place of commission members are guided by the same standards limiting the discretion of regular members. The court stated:

“Here the Legislature has created an administrative tribunal and committed discretionary powers to the commission members and their proxies. This situation is manifestly different from a situation in which the Legislature commits discretionary powers to an administrative tribunal and the members of that tribunal delegate their power to others without any prior authorization from the Legislature. In this latter situation the attempted delegation would clearly be contrary to law and void. But that situation is not present here, because the Legislature specifically authorized proxies to act in the place of the commissioners.” (11 Cal. App. 3d 557, 568, 89 Cal. Rptr. 897, 903.)

Another case involving a similar analysis of a subdelegation issue is Schiefla v. Clark (Emer. Ct. App. 1947), 163 F.2d 685.

Here, the representatives who participated in the decision to control pentazocine are guided by the same intelligible standards that delimit the authority of the regular members. Morover, section 4.1 of the Dangerous Drug Abuse Act contemplates a commission composed of four members who cannot delegate to representatives and seven members who can do so. It is within the power of the General Assembly to grant authority to delegated representatives of commission members. (See Schiefla v. Clark (Emer. Ct. App. 1947), 163 F.2d 685, 687.) The General Assembly, by Public Act 79-1465, effective September 3,1976, added the language permitting delegation of representatives by certain commission members. This shows a legislative intent to have input from the heads of designated State agencies who are commission members, either through the member himself or his representative. We conclude that there was no improper subdelegation of legislative power in this case.

We also observe that several of the cases upon which defendant relies, including Horsman Dolls, Inc. v. State Unemployment Compensation Com. (1946), 134 N.J.L. 77, 45 A.2d 681, appeal dismissed (1947), 329 U.S. 693, 91 L. Ed. 606, 67 S. Ct. 635, are distinguishable because the applicable statutes did not contemplate subdelegation. Thus, in Horsman, the court that held that the unemployment compensation commission may not delegate the power of decision in a controversy over an employer’s contribution rate, found that “there is not a vestige of authority conferred on the Commission by the statute to invest such appointee with power of decision.” 134 N.J.L. 70, 80, 45 A.2d 681, 683.

Accordingly, the convictions of defendant are affirmed.

Affirmed.

McGILLICUDDY and RIZZI, JJ., concur.

       Subsequently, the General Assembly amended section 206 of the Illinois Controlled Substances Act to include pentazocine, effective September 6,1979. (Ill. Ann. Stat., ch. 56½, par. 1206 (Smith-Hurd Supp. 1981).)