author: JUSTICE MILLS PRESIDING JUSTICE WEBBER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN E. SMITH, Defendant-Appellant.
    Fourth District
    No. 4—82—0236
    Opinion filed March 24, 1983.
    — Rehearing denied April 12, 1983.

      WEBBER, P.J., concurring in part and dissenting in part.
    Daniel D. Yuhas and Jonathan C. Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert J. Barry, State’s Attorney, of Lincoln (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Armed robbery at McDonald’s.

Jury trial — guilty—nine years.

On appeal, we are faced with questions involving Miranda warnings, the prosecutor’s examination of two 'witnesses, and whether those witnesses were court’s or hostile.

In summa, we affirm.

Early in the morning on November 19, 1981, an armed robber took approximately $2,600 from the McDonald’s restaurant in Lincoln, Illinois. Terry Logan, Greg Williams, and Karen Vale, all of whom were McDonald’s employees, were eyewitnesses to the crime. The robber was masked and did not speak. None of the three were initially able to identify him. Subsequently, however, Logan identified the defendant, Steve Smith — whom Logan had known prior to the robbery — as the perpetrator. Williams also told police that the robber reminded him of his cousin, Steve Smith.

Based upon these statements, the police obtained a search warrant for Smith’s residence. After completing the search, Smith was arrested and interviewed by Officers Vonderahe and Coombs of the Lincoln Police Department. The interview began as follows:

“Q Okay. Steve, I want to talk with you in reference to the armed robbery that took place at McDonalds restaurant on the morning of the 19th. Are you familiar with this?
A Yeah. My cousin Greg was.
Q Okay. But before I do that I must advise you of your rights. Okay? You have a right to remain silent. You do not have to talk to me unless you want to do so. Do you understand that?
A Uh. Chico told me to get my lawyer. Chico said you guys would railroad me.
Q Do you understand that as I gave it to you, Steve?
A Yeah.
Q If you do want to talk to me, I must advise you that whatever you say can and will be used as evidence against you in court. Do you understand that?
A Yeah.
Q You have a right to consult with a lawyer and to have a lawyer present with you when you’re being questioned. Do you understand that?
A Uh, yeah. I’d like to do that.
Q Okay. If you want a lawyer and if you’re unable to pay for one, a lawyer will be appointed to represent you free of cost. Do you understand that?
A Okay.
Q Do you wish to talk with me at this time without a lawyer being present?
A Yeah and no, uh, I don’t know what’s what really.
Q Well, you either have to agree to talk to me at this time without a lawyer present and if you do agree to talk with me without a lawyer being present you can stop any time you want to.
A All right. I’ll talk to you then.
Q Okay. All you have to do is just tell me I don’t want to talk to you anymore and that ends it. Okay?
A Okay.”

Smith was then interrogated and admitted foreknowledge of the McDonald’s robbery and that he had agreed to dispose of the plunder from the robbery for Terry Logan. Although he recounted in detail how the robbery was to take place, Smith strenuously denied that he was the robber. At one point in his statement, however, the following exchange took place:

“Q I can only tell you this much, Steve. *** [T]he only thing that can help you out now is the truth. Now if you committed the crime along with Logan, all right, you committed it. Then now’s the time to straighten it out and the time to say I did it.
A All right. I — all right. I committed it. I knew about the robbery. I knew about it long before it happened. I was gonna get rid of everything. ***.”

Smith’s motion to suppress these portions of his statement was denied.

On the day of trial, just prior to calling Logan and Williams as witnesses, the State’s Attorney moved to have them declared hostile or court’s witnesses (apparently using the name interchangeably). In support of his motion, the State’s Attorney noted the vacillation in their pretrial statements. The court declared both Logan and Williams to be hostile witnesses.

Smith alleges that this ruling, the prosecutor’s examination of Logan and Williams at trial, and the denial of his motion to suppress require reversal of his conviction.

We disagree.

MOTION TO SUPPRESS

Smith’s argument for suppression is that under Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, once an accused requests assistance of counsel, the police must cease interrogation until counsel is present or the accused initiates further discussion. Smith contends that he requested counsel, none was provided, and he did not initiate further discussions.

Smith correctly states the holding of Edwards, but that case is inapplicable to the fact situation before this court. Smith never made an effective request for counsel so as to invoke the safeguards set forth in Edwards. Rather, he merely expressed an interest in obtaining counsel during the administration of the Miranda warnings and prior to the beginning of any interrogation. The interrogating officer completed the administration of the warnings and asked if Smith wished to speak without counsel. When Smith expressed some confusion about his rights, Officer Vonderahe explained that if defendant agreed to talk, the interview could be stopped at any time. At this point, Smith agreed to speak.

We find People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537, controlling. There, defendant initially waived his Miranda rights, but later stated, “Maybe I ought to have an attorney.” The court held that this was not sufficient to invoke defendant’s right to counsel. The facts here are even more compelling. In Krueger, defendant was fully aware of his Miranda rights and had executed a waiver when he made mention of an attorney. Here, Smith had not even been given the full Miranda warnings when he stated that he would like an attorney. Although Smith’s statement, taken out of context, appears clear and unequivocal, when it is considered with other statements— as it should be — it is clear that Smith was undecided about exercising his right to counsel.

Clearly, Officer Vonderahe did not consider any such request to have been made. He asked Smith for clarification of his statement. Under Krueger, an officer’s subjective belief is entitled to some consideration in determining whether a request for counsel has been made. We think the interrogating officers’ actions here were reasonable. Smith’s statements were not a request for counsel during interrogation. Indeed, interrogation had not begun. There was merely an indecisive inquiry into the right to counsel. When Smith indicated a desire to cease interrogation once it had begun, his wishes were promptly complied with.

No error.

WITNESSES: COURT’S OR HOSTILE?

There was some understandable confusion below between these two concepts. This court recently held that a party seeking to call a witness as a court’s witness must show that (1) he cannot vouch for the witness’ credibility; (2) the testimony will relate to direct issues in the case; and (3) the testimony is necessary to prevent a miscarriage of justice. (People v. Church (1981), 102 Ill. App. 3d 155, 429 N.E.2d 577.) In order to have a witness declared a hostile witness, it must first be demonstrated that (a) he is an occurrence witness; (b) he is being called in good faith; and (c) the party calling him is surprised by his testimony. (Church.) Aside from this, Church indicated that the primary distinction between the two concepts is that a hostile witness may be impeached with prior inconsistent statements, while such impeachment of a court’s witness is not permitted.

In view of the supreme court’s more recent opinion in People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, the continuing validity of this latter distinction is doubtful. Weaver stated that a court’s witness may be impeached with a prior inconsistent statement if he says something which affirmatively damages the party calling him. On the facts before it, the court found no affirmative damage and held impeachment was improper. Here, there was affirmative damage. Logan and Williams both stated that defendant was not the robber.

As the issue here is whether the State was properly allowed to impeach Logan and Williams with prior inconsistent statements, we will consider whether a proper foundation for calling Logan and Williams as either court’s or hostile witnesses was presented. In short, we hold that there was a sufficient showing to declare them court’s witnesses. Both Logan and Williams had made inconsistent statements prior to trial and it was uncertain how they would testify at trial. It is also readily apparent that their testimony would relate directly to the issues in the case. They were, after all, eyewitnesses to the armed robbery. And, for this same reason, their testimony was necessary to prevent a miscarriage of justice.

The foundation for calling the two as hostile witnesses was not present, however. Logan and Williams were, of course, occurrence witnesses. And there is no allegation that the State acted in bad faith in calling them. But, it could not be said — at least when the court declared Logan and Williams hostile prior to trial — that the State was surprised by their testimony. They had not testified to anything. Nor did any surprise occur when Logan and Williams did testify. Both gave testimony consistent with some prior statements but inconsistent with others. The State may have been disappointed, but it was not surprised. See Seibutis v. Smith (1980), 83 Ill. App. 3d 1010, 404 N.E.2d 950.

Thus, it would appear that although the end result achieved in denominating a witness a court’s witness or a hostile witness is the same, a difference between the concepts still exists. Declaring someone a court’s witness is appropriate when the State has reason, prior to the witness testifying, to doubt his credibility. There is no way to satisfy the foundation requirement for declaring a witness hostile until after the witness has begun to testify. Thus, the trial judge here incorrectly designated Logan and Williams as hostile witnesses, but the error does not require reversal. The State was affirmatively damaged by their testimony and they could be impeached with prior inconsistent statements in any event. See Weaver.

We turn then to the question of whether the manner in which the impeachment of Logan and Williams was carried out was an improper attempt to put the substance of their prior statements before the jury. We agree with Smith that such use of prior inconsistent statements is to be condemned (People v. Bailey (1975), 60 Ill. 2d 37, 322 N.E.2d 804), but note that Smith never objected to the form of examination at trial and only raised objections to the examination of Logan in his post-trial motion. Thus, in the absence of plain error, this court will invoke the doctrine of waiver and decline to consider any error. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Baske (1978), 66 Ill. App. 3d 590, 383 N.E.2d 1322 (dealing with failure to object to the State’s failure to perfect impeachment).

We do not believe this error rose to the level of plain error. Primarily, the error was not prejudicial. Smith bases his argument on the fact that in numerous instances, the State’s Attorney made reference to a prior statement by Logan or Williams before they had made an inconsistent statement at trial. While this is true, it belies the fact that the prior statements were by and large acknowledged by both witnesses. The examination at the critical points — where Logan and Williams stated that Smith was not the robber — was in the proper form. Even where the examination was not in the proper form, little harm was done. The correct approach would have been to ask a leading question and when the witness declined to adopt the suggested answer, impeach him with the prior inconsistent statement (which was the basis for the leading question in the first place). The method adopted by the prosecution (“didn’t you say” as opposed to “isn’t it true”) is certainly not to be encouraged, but we cannot say that it amounts to plain error.

Additionally, there was strong circumstantial evidence against Smith — even without the testimony of Logan and Williams. First, Smith matched the general description given by the third eyewitness; second, he possessed a somewhat uncommon weapon (a chrome-plated .44 magnum revolver) similar to the one used by the robber; third, clothing similar to that Karen Vale described the robber as wearing was found in defendant’s possession; and, fourth, evidence tended to establish that Smith possessed some of the proceeds of the robbery. Furthermore, Smith admitted advance knowledge of the robbery and to possession of the proceeds. While he also denied participation in the actual robbery, the jury was not required to believe him.

The evidence in this case was not close, Smith was not prejudiced, and we decline to consider the error in the method by which Logan and Williams were examined.

Affirmed.

GREEN, J., concurs.

PRESIDING JUSTICE WEBBER,

concurring in part and dissenting:

I agree with most of what is said in the principal opinion. There was no violation of Miranda, and in view of Weaver our opinion in Church is of doubtful validity. The entire matter was set to rest by the change in Supreme Court Rule 238 (87 Ill. 2d R. 238), effective April 1, 1982. On whatever theory, impeachment of Logan and Williams was proper.

However, even a casual reading of this record demonstrates that the State’s Attorney was not attempting impeachment but was putting the prior out-of-court statements before the jury as substantive evidence. I disagree that this is not plain error.

The theory of impeachment is that of undermining the credibility of the witness through the use of the prior inconsistent statement. It is not intended to place substantive evidence before the jury. People v. Bailey (1975), 60 Ill. 2d 37, 322 N.E.2d 804.

The State’s Attorney appeared little concerned with the testimony of Logan and Williams before the jury; he was primarily concerned with their out-of-court declarations. His examination of them consisted largely of demanding that they affirm or deny these declarations, and in his closing argument he made several references to them and intimated that they were substantive evidence. The State’s case was almost entirely circumstantial with the exception of the defendant’s own statements. The State’s case was strong, but not overwhelming. The defendant’s identification came only from Logan and Williams, both of them apparently deeply involved in the crime, and no one ever identified the items seized from the defendant as being those either used or taken in the robbery.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v DOUGLAS S. ELLIS et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0494
    Opinion filed March 24, 1983.
    — Rehearing denied April 14, 1983.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellants.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

Defendants were convicted of burglary. Ellis was sentenced to three years’ probation and ordered to make restitution. Simmons was sentenced to four years’ probation and also was ordered to make restitution. On appeal, defendants raise three issues: (1) Did the police have sufficient grounds to detain defendants pursuant to a Terry stop; (2) assuming arguendo that sufficient grounds for a Terry stop existed, was the subsequent detention of the defendants outside the scope of Terry, and (3) were defendants denied the effective assistance of counsel?

On February 22, 1982, an information was filed charging Douglas Ellis and Jerry Simmons with the offense of burglary. Defendants filed a motion to suppress, alleging that evidence and statements were obtained from them pursuant to a stop which was made without either probable cause or a reasonably articulable suspicion. A hearing on the motion was held on April 8, 1982. Officer Calvin Showers testified that on February 19, 1982, at approximately 1:25 a.m., he noticed two men walking across the parking lot of the Holiday Square shopping center in Danville. None of the stores in the shopping center were open at that time of night. The men were between 100 and 200 feet from any of the stores in the shopping center and were walking directly east of a Wendy’s restaurant. The men made no movement toward Wendy’s nor did they look in the windows. Showers explained that there were residences bordering the area in which the men were walking. He stated that it was possible to cut through the parking lot for the purpose of getting to these residential areas.

Showers stated that he drove his police van toward the two men, stopped and asked them for identification. Defendants identified themselves and produced driver’s licenses. Showers retained defendants’ driver’s licenses while he ran a warrant check. An alert tone was subsequently broadcast over the police radio which indicated that a warrant was pending on one of the defendants. At that point, Showers searched Simmons and found an 18-inch pry bar concealed in Simmons’ trousers. Simmons was then handcuffed and transported to jail; Ellis was patted down and subsequently informed that he was free to leave.

Showers testified that later the same day he compared the pry bar to marks made on the door of Depke Welding during a prior burglary. Showers concluded that the pry marks on the door were made with a bar similar to the bar seized from the defendant. Showers then went to Ellis’ residence along with Investigator Garrett of the Dan-ville Police Department. Showers asked Ellis to accompany the officer to the station for questioning. Ellis agreed and went inside the residence to put on his shoes. Showers stated that Ellis told the officers to come in and wait while he got dressed. While in Ellis’ apartment, the officers observed numerous tools and a Jack Daniels gift set in the apartment. Showers recalled that similar items had been mentioned in recent burglary reports; Ellis was then placed under arrest and taken to the police station.

Garrett testified that he interrogated Ellis and Simmons on the day of their arrest. Ellis admitted to committing several burglaries, but stated that he had acted alone. Simmons admitted to the same burglaries, but stated that Ellis had joined with him in these burglaries. Simmons also stated that he and Ellis stole a Pepsi-Cola vending machine from the Redwood Barber Shop. The trial court found that Officer Showers had an “articulable suspicion” sufficient to justify a Terry stop on the defendants and denied their motion to suppress. Before defendants’ bench trial on April 20, 1982, the trial court advised defendant Ellis as follows:

“THE COURT: You are also charged, together with a co-defendant in this case-I have previously advised you both and I would again advise you both at this time that in the event there is any conflict with having one lawyer represent each of you, you would be entitled to a lawyer free of conflict, or in effect, separate lawyers. Do you understand this?
MR. ELLIS: Yes.
THE COURT: It’s my understanding that this matter is being called for trial this morning. The State had originally been granted a severance. The State has agreed with the defendants and each of them that the defendants will stand for trial as originally charged, cases will be consolidated for trial as far as both defendants are concerned; is that correct?
MR. RICHARD: Yes, Your Honor.
MR. NEY: Yes, Your Honor.”

Richard Schomburg testified that on January 29, 1982, he noticed that certain items were missing from his office, including a decorative box of Jack Daniels whisky. He subsequently found pry marks on the service door of his building.

Keith Garrett testified that on February 19, 1982, he obtained statements from the defendants in which each admitted the burglary. The statements were introduced into evidence. Ellis admitted taking a case of Jack Daniels and other items from the premises. Following closing arguments by counsel, the trial court found the defendants guilty of the offense of burglary.

Defendants contend that the trial court erred in denying their motion to suppress because the evidence shows that Officer Showers lacked a sufficient basis to make a Terry stop.

In Terry v. Ohio (1968), 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884, the Supreme Court held that a police officer may stop and question an individual only when he “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ***.” The officer must be able to point to specific facts which lead to inferences which would form a reasonable basis to justify the stop. Sections 107 — 14 and 108 — 1.01 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, pars. 107 — 14, 108 — 1.01) have codified the Terry rules. See People v. Lee (1971), 48 Ill. 2d 272, 269 N.E.2d 488.

Officer Showers testified that he saw defendants walking across the shopping center parking lot at 1:25 a.m. None of the stores in the shopping center were open at that hour. There are residences located close to the parking lot and it is possible to cut through the lot to get to a residential area. The court noted that a rash of burglaries and break-ins had recently occurred in the area.

In determining whether a Terry stop was justified, the court inquires whether, given the facts available to the officer at the time, a person of reasonable caution would believe the action taken to be appropriate. Terry; People v. Corrigan (1977), 45 Ill. App. 3d 502, 359 N.E.2d 1107.

People v. McGowan (1977), 69 Ill. 2d 73, 370 N.E.2d 537, supports the trial court’s decision. In McGowan, two Peoria police officers were emerging from a city parking garage at about 12:50 a.m. when they saw two men emerging from an area next to the Hiram Walker building. Both men were wearing black clothing. One of the officers testified that the area had suffered a number of burglaries. A bar located about two blocks away from the scene was the only business still open and it closed at 1 a.m.

The court concluded that the evidence supported the officer’s claim that he had a reasonable suspicion based on specific facts that criminal activity was afoot. Burglaries were not uncommon in the neighborhood; no stores or other establishments were open at that hour except for a bar, which was due to close in 10 minutes. Based upon these facts, the court held that the officer’s inference of an imminent or recent burglary was reasonable and proper.

We hold that, based upon the facts testified to by Officer Showers at trial, Showers possessed a reasonably articulable suspicion that criminal activity was about to or had occurred. Therefore, he was justified in making a Terry stop and the trial court’s denial of defendants’ motion to suppress was not manifestly erroneous.

Defendants next contend that assuming that sufficient grounds existed to support a Terry stop, Officer Showers’ detention of defendants while a warrant check was being made was beyond the scope of Terry and hence constituted an unlawful arrest.

The question of whether a police officer, having grounds for a valid Terry stop, may detain a person long enough to run a warrant check on that detainee has evidently not been considered by an Illinois court. The closest Illinois case is People v. Canity (1981), 100 Ill. App. 3d 135, 426 N.E.2d 591. In Canity, the Second District affirmed defendant’s conviction for deviate sexual assault against a claim that an investigatory stop was not justified under section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14). The court held that the police officers had not exceeded their authority under 107 — 14 by detaining defendant for 10 to 15 minutes while witnesses were brought to the scene and by requiring defendant to submit to several show-ups. The court found that, given the circumstances, the detention was not unreasonably long.

Professor LaFave, in his treatise on search and seizure, states that an officer may confer with others during a Terry stop to determine whether the person being detained is wanted so long as the detention remains reasonable in its scope. Professor LaFave writes:

“It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained. Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises, locating and examining objects abandoned by the suspect, or talking with other people. If it is known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime. There is no reason to conclude that any investigative methods of the type just listed are inherently objectionable; . they might cast doubt upon the reasonableness of the detention, however, if their use makes the period of detention unduly long or involves moving the suspect to another locale.” 3 La-Fave, Search and Seizure sec. 9.2, at 36-37 (1978).

Courts in other jurisdictions have upheld warrant checks and similar police conduct pursuant to a Terry stop. (See People v. Higbee (1974), 37 Cal. App. 3d 944, 112 Cal. Rptr. 690; State v. Bell (Fla. App. 1980), 382 So. 2d 119; Biggers v. State (1982), 162 Ga. App. 163, 290 S.E.2d 159; Clark v. State (1977), 171 Ind. App. 658, 358 N.E.2d 761; State v. Goebel (1981), 103 Wis. 2d 203, 307 N.W.2d 915.) In Biggers, the court held that a Terry stop of two men in a car parked in a church parking lot was proper and did not become too intense and prolonged when the officer ran a check on the defendants through the National Crime Information Center computer.

Officer Showers’ actions were reasonable and not unduly intrusive. After obtaining identification from both defendants, he ran a warrant check on them. He heard a tone over his radio, which was an indication that a warrant was outstanding against one of the defendants. At that point, he searched Simmons, found a pry bar, and then placed Simmons under arrest. There is no evidence in the record that the warrant check took an unusually long time or was otherwise overly intrusive.

The authorities we have cited lead us to the conclusion that a warrant check pursuant to a Terry stop does not convert a stop into a full-fledged arrest. Therefore, the trial court’s denial of the motion to suppress was correct; no probable cause need have been shown to justify the warrant check.

Defendants’ final contention is that they were denied the effective assistance of counsel. Defendants were represented by the same court-appointed counsel. They maintain that this joint representation prevented counsel from giving his undivided loyalty to either of them.

By failing to raise the conflict of interest issue at trial, defendants have waived any error on appeal. An examination of the record reveals that the trial court apprised defendants of their rights to separate counsel if a conflict existed. No problems with the joint representation were brought to the attention of the trial court by the defendants or their attorney. Furthermore, the issue was not raised in the written post-trial motion. Based on those facts, the doctrine of waiver applies. People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227.

The doctrine of plain error is also not applicable in this case. Defendants had waived a jury trial, so the trial judge was also the trier of fact. At the close of the State’s evidence and before the trial judge read the statements, the trial judge asked counsel whether the statement of either defendant inculpated the other. When the court was informed that Simmons’ statement inculpated Ellis, the court, anticipating a potential Bruton problem (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620), ruled that it would disregard any reference to Ellis in Simmons’ statement.

The trial judge in a bench trial is presumed to have relied only on competent and admissible evidence. (In re Prough (1978), 61 Ill. App. 3d 227, 376 N.E.2d 1078.) Defendants have been unable to show any prejudice resulting from the joint representation and have failed to show that the trial judge relied on any improper evidence in reaching his verdict.

The judgment of the circuit court of Vermilion County is affirmed.

Affirmed.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v ROBERT N. PARKER, Defendant-Appellant.
    Fourth District
    No. 4—82—0344
    Opinion filed March 16, 1983.

      Greaves & Lerner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Parker, a University of Illinois vice-president, was indicted for 157 separate felony thefts of university funds amounting to over $600,000.

His first trial: mistrial.

His second trial: guilty.

His sentence: a single five-year term and a $10,000 fine.

We affirm.

The facts of this case are not really in dispute. A Champaign County grand jury returned an indictment against Robert N. Parker charging him with 157 counts of theft over $300. Each count alleged that Parker had — by means of deception — exerted unauthorized control over funds of the University of Illinois Foundation (UIF) and the U.D. Corporation (UDC). Parker was granted a change of venue and his first trial was held in Jefferson County. It ended in a mistrial when the jury could not reach a verdict. A change of venue to Winnebago County was granted. Following his jury trial there, Parker was found guilty and sentenced.

Parker admits to writing some $600,000 of unauthorized checks on the account of UDC to various Chicago nightclubs and to a number of individuals. He also admitted submitting false vouchers to obtain funds from UIF to cover the checks. He sought to interpose several defenses at trial, namely necessity, compulsion, and insanity. Before this court on appeal, Parker claims numerous errors in instructing the jury, including refusing to instruct regarding these defenses. He also claims: that he was denied due process when the State failed to sua sponte disclose exculpatory material; that venue was not proved beyond a reasonable doubt; that the prosecutor’s closing argument deprived him of a fair trial; and that the sentence imposed was excessive.

We shall discuss the Brady problem first.

Brady v. Maryland

At Parker’s first trial, two psychiatrists — Dr. Grater and Dr. Ziporyn — testified for the defense and Dr. Traugott testified for the People. At the second trial, these three again testified and the People also presented testimony by Dr. Pugh, another psychiatrist. Needless to say, there was a split of opinion among the four doctors on the issue of Parker’s sanity. After Parker’s conviction, it was revealed by way of stipulation that Dr. Pugh had called the State’s Attorney during the hiatus between the first and second trials and had volunteered to both examine Parker and to testify. Because this evidence was not disclosed prior to trial, Parker contends that under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, he was denied due process.

While Brady is factually dissimilar to the case presently at bench, the rule of law it spawned goes beyond its particular facts. The Supreme Court in United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, indicated that the Brady rule applies in at least three situations: (1) where the State knowingly puts on perjured testimony; (2) where the State suppresses exculpatory evidence which is specifically requested by the defense (as was the case in Brady); and (3) where the State fails to disclose, sua sponte, evidence which is both exculpatory and material. Parker contends that the facts of this case fit into the third category.

Under Agurs, the first question for this court in assessing Parker’s contention is whether the evidence regarding Dr. Pugh was exculpatory. It was. Evidence that he volunteered to give an opinion as to Parker’s sanity before having examined him is indicative of bias. Bias can, of course, be used to impeach a witness’ credibility. Impeaching Dr. Pugh’s credibility was certainly exculpatory, as he opined that Parker was sane at the time he performed the actus reus portion of the crime with which he was charged.- If his testimony is shown to be unworthy of the jury’s consideration, then, unless there is other evidence on the sanity issue, the State has not sustained its burden. See Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (defendant’s right to due process was violated where the State failed to disclose that its key witness, a codefendant, had been promised immunity).

In this case, there was other evidence on the sanity issue. This brings us to the second step in the Agurs analysis — the materiality of the evidence showing Dr. Pugh’s bias. Agurs holds that in this context, material evidence is that which creates a reasonable doubt where none existed before. A finding of materiality does not necessarily mean that the evidence would likely have swayed the jury, but its exclusion is certainly not harmless error. See Agurs.

Agurs itself held that evidence of the victim’s prior convictions for weapons offenses was not material in a murder prosecution where defendant stabbed her victim following a “brief interlude in an inexpensive motel room.” (United States v. Agurs (1976), 427 U.S. 97, 98, 49 L. Ed. 2d 342, 347, 96 S. Ct. 2392, 2395.) The rationale stated for the court’s decision was that the jury had before it ample evidence to show that before the interlude, the victim had possessed the weapon which brought about his demise.

Two cases — Giglio and Moore v. Illinois (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562, although they both predate Agurs— nicely set out the parameters of what is material and what is not. Giglio was a forgery prosecution where, as noted above, the government failed to disclose that its key witness was testifying under a grant of immunity. The -witness’ testimony was the only evidence linking defendant to the crime. The court held that the defendant was entitled to a new trial because of the government’s failure to disclose this fact.

Moore was a murder prosecution where the State failed to disclose a statement by a witness that “Slick” (someone other than the defendant) admitted the murder to him. This evidence was not material and there was no error to fail to disclose it because two eyewitnesses identified the defendant as the killer; three persons put defendant in the bar where, and at the time, “Slick” allegedly made his admission; and two witnesses testified to other admissions by the defendant. Consequently, the impeachment value was too insignificant to warrant reversal.

Thus, three factors become significant in determining the materiality of impeachment: (1) the importance of the witness to the prosecution’s case (Giglio); (2) the nature of the evidence itself (Moore); and (3) whether there was other evidence in the case of a similar character (Agurs). (See- also United States v. Nixon (5th Cir. 1981), 634 F.2d 306, and Breest v. Perrin (1st Cir. 1980), 624 F.2d 1112.) Taking these three factors into consideration, we find that the evidence here was not material.

First, Dr. Pugh was not the lynch pin of the State’s case against Robert Parker. Parker’s sanity was the main' issue at trial, but Dr. Pugh’s testimony added little new or different to the State’s case. Rather, it simply echoed the testimony of Dr. Traugott. There was also a good deal of testimony from lay witnesses about Parker’s actions which would support a finding of sanity and which the jury could have considered in refusing to accept the testimony of defendant’s experts.

Defendant’s theory was that he could not conform his actions to the requirements of the law because he was suffering from twin delusional beliefs: (1) his superiors were abusing their position, and (2) by his actions, he was only taking what he deserved. The very foundation of this theory is shaken by the fact that Parker went to considerable lengths to conceal his thefts and was successful in doing so for over five years.

Parker claims that Dr. Pugh’s testimony was significantly different from the other expert testimony because Pugh based his opinion that Parker was sane on the fact that nothing Parker said sounded implausible while no other expert mentioned plausibility as a factor in diagnosing delusional paranoia. The defendant’s argument belies the fact that there was no disagreement that a delusional belief is a false belief held despite the inability to convince even one other person of its validity. Dr. Pugh’s testimony indicates that he was simply extrapolating from that definition — if you cannot convince even one other person that something is true, that something must be implausible.

Additionally, on cross-examination, Dr. Pugh was forced to admit that implausibility was not included in the definition of delusion found in the standard text for diagnosing psychiatric illness (referred to at trial as DSM III). Cross-examination of Dr. Pugh also revealed that he had examined the defendant for only two hours and had never performed any standardized test on him.

Finally, and perhaps most importantly, counsel for the defendant pointed out that Dr. Pugh rendered his opinion without discussing with Parker any of the number of supposedly delusional beliefs which Parker held. Nor did Dr. Pugh personally check to see if the beliefs were held by anyone else (relying instead on representations by others, including the State’s Attorney, that Parker’s beliefs were not shared by others). The record contains scant — if any — evidence that others held Parker’s beliefs regarding his superiors. So, the jury already had before it the insufficiencies of the basis for Dr. Pugh’s opinion. While the evidence that he volunteered to testify might have been helpful, we cannot say that it was material under the Agurs standard. It does not raise a reasonable doubt where none otherwise existed.

VENUE

Turning to the next issue raised by defendant, we find that venue was established in Champaign County beyond a reasonable doubt and that there was not even a sufficient question to warrant instructing the jury on the issue. Venue in a case of theft, including theft by deception, can be had in a county where control over the property is exerted. People v. Whitlow (1980), 86 Ill. App. 3d 858, 411 N.E.2d 1354, aff'd (1982), 89 Ill. 2d 322, 433 N.E.2d 629; People v. Massarella (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436.

In this case, it is clear that Parker wrote the unauthorized checks in Cook County, but this does not mean that venue was proper only there. Janier Koss, Parker’s secretary when he was employed at the University of Illinois, gave uncontradicted and unimpeached testimony that the UDC checks were “covered” with funds from UIF and that to accomplish this transfer, it was necessary to complete a voucher and submit it to the Foundation. Koss testified that these vouchers were prepared by her in Champaign County. The vouchers were an exercise of control which established venue beyond a reasonable doubt. That venue may also have been appropriate in some other county is not enough to raise a jury question as to the issue, and Parker was not entitled to an instruction. See People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774.

CLOSING ARGUMENT

In his rebuttal argument, the State’s Attorney referred twice to Dr. Ziporyn as a “hired gun.” Parker did not immediately object, but moved for a mistrial as soon as the jury had retired to deliberate. The motion was denied, and Parker claims this was error.

The “hired gun” argument was rejected in Regan v. Vizza (1978), 65 Ill. App. 3d 50, 382 N.E.2d 409, not because it is per se error, but because the comment was not supported by the evidence. Although Regan is a civil case, a similar result would obtain in a criminal case — it is error to make comments in closing argument which are not supported by the evidence. See People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.

There is some evidence to support the prosecutor’s argument in this case. His cross-examination of Dr. Ziporyn shows that the doctor had testified for the accused in some 250 to 350 criminal cases and had given the opinion that the accused was insane each time. Ziporyn had not testified for the prosecution in a criminal case since 1965— when he left the staff of the Cook County Circuit Court. Thus, this case is a far cry from Regan, where the treating physician was referred to as a hired gun.

We need not reach this issue, however, because we hold that Parker’s objection was not timely and thus any error was waived. (People v. Gerecke (1977), 45 Ill. App. 3d 510, 359 N.E.2d 1178.) Nor is the comment so prejudicial as to rise to the level of plain error. We do note, however, the disfavor with which this type of argument is regarded and discourage its use in the future. The “hired gun” epithet is simply in bad form.

JURY INSTRUCTIONS

(a) Necessity and Compulsion

Parker claims the court’s instructions to the jury were defective in several regards. His first contention is that it was error to refuse his tendered instructions on the defenses of necessity and compulsion. Parker is only entitled to such instructions if they are supported by the evidence. People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319.

The defense of necessity is codified in section 7 — 13 of the Criminal Code of 1961. (El. Rev. Stat. 1981, ch. 38, par. 7 — 13.) The person raising the defense must (1) be without blame in occasioning or developing the situation, and (2) reasonably have believed that his conduct was necessary to avoid a greater public or private injury than otherwise might have resulted from his conduct.

The defense of necessity is not available to Parker. He initially went to Club Taray of his own volition and thereby made himself a target for the type of people who frequent such places. His repeated returns aided in developing the situation where he had to choose between two evils. And, his choice was not of the lesser evil. It is not reasonable to believe that he had to steal $600,000 to avoid physical harm or to save his reputation. He could have stopped frequenting the Club Taray, reported his activities to his superiors and to the Champaign County police, and thereby avoided having to commit any crime at all.

The defense of compulsion is likewise unavailable to Parker. This defense, which is codified in section 7 — 11 of the Criminal Code of 1961 (111. Rev. Stat. 1981, ch. 38, par. 7 — 11), is available when (1) an offense is committed under the threat of death or great bodily harm, and (2) the person committing the offense reasonably believes that death will result if he fails to perform the act constituting the offense. Here, there was certainly no threat of imminent death or great bodily harm. At most, there is a threat of some unspecified future harm. The evidence does not support a reasonable belief that death or great bodily harm would result if Parker did not steal money from UIF or UDC.

(b) Insanity Defense

Parker also contends that the jury should have been instructed on the result of a verdict of not guilty by reason of insanity. It was not error to refuse either instruction urged by the defendant.

First, the optional portion of Illinois Pattern Jury Instruction (IPI), Criminal, No. 1.01 (2d ed. 1981), which defendant urges should have been given, should only be given where the issue of punishment is raised in final arguments. The question of penalty was never raised by either side at any point in the extended closing arguments in this case. The logic of the committee notes on this instruction is compelling, and we adopt it. The jury should not be told not to do something they may not have considered doing in the first place. Thus, there was no error in refusing to give paragraph 4.

As to the non-IPI instruction offered by the defendant, it is identical to the instruction rejected in People v. Meeker (1980), 86 Ill. App. 3d 162, 407 N.E.2d 1058. Meeker held that the jury should not be told of the consequence of a verdict of not guilty by reason of insanity because it would inject extraneous and irrelevant matters into the jury’s deliberation. We agree and find Meeker controlling here.

(c) Statements by the Defendant

Parker next objects that the jury should not have been instructed on consideration of statements by the defendant. The case relied upon in support of his argument, People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328, is totally irrelevant.

Hicks involved IPI Criminal No. 2.04 (dealing with the failure of the defendant to testify). People’s Instruction No. 8, of which defendant complains, was not IPI Criminal No. 2.04, but IPI Criminal Nos. 3.06, 3.07. Although IPI Criminal No. 2.04 is to be given only upon the defendant’s request, there is no indication that a similar limitation should be put on the use of IPI Criminal Nos. 3.06, 3.07. On the contrary, the purpose of the latter instructions is to call the jury’s attention to the fact that defendant’s statements should be considered without characterizing them as confessions. See IPI Criminal Nos. 3.06, 3.07, Committee Note, at 20 (2d ed. 1981). No error.

(d) Witnesses Testifying Under Grants of Immunity

Parker also contends that it was error to refuse to give his instruction No. 2, which was a non-IPI instruction dealing with the weight to be given testimony of persons testifying under grants of immunity.

Defendant relies on People v. Bertucci (1980), 81 Ill. App. 3d 851, 401 N.E.2d 1123, in support of his argument. Bertucci did hold that it was error to refuse to give a similar instruction but, as defendant acknowledges, found the error to be harmless because the fact that a witness was testifying under a grant of immunity was put before the jury and because a general credibility instruction (IPI Criminal No. 1.02) was given.

IPI Criminal No. 1.02 was also given in this case, and the jury was made aware of the fact that certain witnesses were testifying under grants of immunity. While no mention of immunity was made in closing argument, the error was almost certainly harmless. The witnesses by and large testified as to facts which defendant admitted. And, their testimony, even viewed in the light most favorable to the defendant, was insufficient to establish the defenses of necessity and compulsion.

(e) Reputation Evidence

The final error defendant raises in connection with instructions to the jury is the refusal to give his instruction No. 5, which was IPI Criminal No. 3.16 (reputation evidence). The trial judge refused the instruction because Parker had admitted the thefts. Parker contends here that because insanity involves a change in personality, the fact that he was once considered honest is important. While we agree that evidence concerning Parker’s reputation for honesty was introduced at trial, we cannot agree that it was error to refuse the reputation instruction. Parker admitted the thefts, and reputation is not relevant to the issue of sanity in this case. When determining the issue of sanity, the focal point is the time that the defendant committed the offenses charged, not a change in personality of some unspecified time in the past.

SENTENCE

The last issue raised by Parker is the excessiveness of his sentence. Imposition of a sentence following conviction of a crime is within the sound discretion of the trial judge and should not be disturbed absent an abuse. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

In support of his argument that abuse occurred, Parker stresses that he had no prior criminal history and physically harmed no one. In urging this court to affirm the sentence, the State argues that Parker abused his office in committing his offense and that the sentence is necessary to deter others. All these factors are properly considered in imposing sentence. See Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3.1,1005—5—3.2.

Given the seriousness of this offense, and the surrounding circumstances, we cannot say that an abuse occurred. (See People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800.) Parker, while employed in a position of trust, stole a great deal of money. In point of fact, he purloined nearly two-thirds of a million dollars, committing felony theft a total of 157 times. Clearly, five years is not too great a sentence to punish him and to discourage others from following his example.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE JONES

text:
    JENSEN SOUND LABORATORIES, Plaintiff-Appellant, v. GEORGE ROBERT LONG, JR., et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0515
    Opinion filed March 16, 1983.

      William A. Pryor, of Costello, Young & Metnick, of Springfield, for appellant.
    Donald M. Craven, of Londrigan & Potter, of Springfield, for appellees.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Jensen Sound Laboratories, appeals from a judgment of the circuit court of Sangamon County in which the court found, upon a stipulation of facts, that defendants George and Alice Long were not personally liable for a debt incurred after their partnership, Long’s Auto Sound, was incorporated as Long’s Sound Systems, Inc. The plaintiff, which had extended open-account credit to the partnership, contends on appeal that it was not adequately notified of the partnership’s incorporation and that the defendants therefore remained personally liable for the debt in question. We affirm.

The cause was tried upon a stipulation of facts agreed to by the parties’ respective counsel. This court, then, must determine only whether or not the facts as stipulated sustain the judgment of the trial court. (Castle Concrete Co. v. Fleetwood Associates, Inc. (1971), 131 Ill. App. 2d 289, 268 N.E.2d 474.) The agreed statement of facts is as follows:

“1. That open-account credit was provided to Long’s Auto Sound, a partnership in June of 1978, by Plaintiff.
2. George and Alice Long were partners of Long’s Auto Sound.
3. That Long’s Sound Systems, Inc. was incorporated on January 24, 1979, and acquired the business of Long’s Auto Sound. The corporation was dissolved on December 1, 1981, by action of the Illinois Secretary of State’s Office.
4. That the only information which Plaintiff had concerning Defendants’ business entity in June of 1978 was contained on a New Account Data Sheet dated June 21,1978.
5. That Plaintiff claims it had no knowledge that Defendants had become a corporation, except for the corporate checks that were issued to pay their account balances.”

On this statement of facts the trial court entered judgment for the individual defendants, George and Alice Long, and against the plaintiff. Judgment for the plaintiff was entered against Long’s Sound Systems, Inc., by agreement of all parties.

On appeal from the judgment in favor of the individual defendants, the plaintiff contends that the defendants had an affirmative duty to notify the plaintiff-creditor of their partnership’s incorporation and that notice imparted by corporate checks delivered to the plaintiff was insufficient to relieve the defendants of personal liability. Otherwise stated, the plaintiff’s argument is that the defendants should be held liable for the debt in question because of their failure to notify the plaintiff of the dissolution of their partnership.

As a general rule in Illinois, actual notice of the dissolution of a partnership must be given to persons who have dealt with the firm and who have no knowledge of the dissolution in order to relieve the partners of debts incurred after the dissolution in the name of the partnership. (Weise v. Gray’s Harbor Commercial Co. (1904), 111 Ill. App. 647; Bredhoff v. Lepman (1913), 181 Ill. App. 247; 29 Ill. L. & Prac. Partnership sec. 245 (1957).) Partnership liability will be incurred under this rule, however, only if, when an existing partnership is incorporated, the firm continues dealing in the same way and the change of name does not convey information of the incorporation. (Weise v. Gray’s Harbor Commercial Co.) In Weise v. Gray’s Harbor Commercial Co., the appellants had been in business as a partnership known as George B. Weise & Son. After incorporation the business was continued in the same way in the name of George B. Weise & Son. No notice of dissolution of the partnership was given, and the court, noting that “[tjhere was nothing in the outward appearance of things to indicate to the appellee’s agent *** that he was dealing with a corporation, and not with private persons” (111 Ill. App. 647, 650), ruled that the appellee was not chargeable with notice of the dissolution and could hold the appellants liable as partners. Similarly, in Bredhoff v. Lepman, where there was no evidence that notice had been given of the dissolution of the partnership “Lepman & Heggie” after it was incorporated under the name of “Lepman & Heggie,” the court found partnership liability. In that case letterheads used by the corporation at the time of the transaction in question contained merely the words “Lepman & Heggie, Commission Merchants,” with nothing to indicate that this was the name of a corporation.

In the instant case, the stipulation of evidence upon which the trial court made its ruling indicated that the plaintiff was in receipt of corporate checks for almost two years from the time of the defendants’ incorporation until the transaction in question. The name of the corporation, Long’s Sound Systems, Inc., was significantly different from that of the partnership, Long’s Auto Sound, and contained an appropriate indicium of corporateness. There was no evidence that the defendants continued to deal with the plaintiff as a partnership after their incorporation, as the stipulation did not indicate how the defendants’ orders to the plaintiff were sent in and filled or whether the order in question was made in the partnership or corporate name. On this record, then, we cannot say that the trial court erred in finding that the plaintiff was sufficiently notified of the defendants’ incorporation to entitle the defendants to individual immunity from corporate debts.

The cases relied upon by the plaintiff can be distinguished from the instant case on their facts. In Roof v. Morrisson, Plummer & Co. (1890), 37 Ill. App. 37, the plaintiff, a liquor merchant, had dealt with the partnership of A.C. Vanderburg & Co. for a period of 15 years prior to the transaction in question and had extended credit to the firm during this time. The partnership was incorporated under the name of A.C. Vanderburg Company. No notice of dissolution was sent to the plaintiff, and the only indicium of the defendant’s change in status was the omission of the ampersand on the sign over the defendant’s place of business and on the labels of bottles ranged upon the shelves of the store. The plaintiff’s salesman made one trip to the store after the incorporation and received a verbal order for goods for which the defendant failed to pay. The court, finding that there was no evidence that the salesman saw the omission on the sign, nor any probability that he noticed it on the labels on the bottles in the store, held that the plaintiff could recover from the former partners individually.

The Roof court, then, found upon the evidence there presented that it would have been unreasonable to attribute notice of the incorporation to the plaintiff-creditor. Because of the improbability that a one-time visitor to the store would have remarked the very slight change in name, the court declined to hold that the plaintiff had actual notice of the incorporation. In the instant case, the fact that the parties transacted business for a significant period of time after the incorporation and that the plaintiff received corporate checks bearing a substantially changed name, together with the lack of evidence to justify the plaintiff’s misapprehension of the defendants’ status after the incorporation, serve to distinguish it from the Roof case on the basis of the notice afforded the plaintiff.

In Kingsberry Homes v. Corey (7th Cir. 1972), 457 F.2d 181, cited by the plaintiff, the individual defendants were operating as a partnership under the name of Hebble & Associates. In order to establish open-account credit with the plaintiff, Kingsberry Homes, the defendants executed a personal guarantee to the plaintiff. The individual partners incorporated and continued to do business under the name of Hebble & Associates, Inc. No formal notice of the incorporation was given and the guarantee was neither revoked nor terminated. The defendants failed to pay for products subsequently shipped to them, and, in the ensuing suit, the majority found in favor of the plaintiff-creditor.

The court based its decision on the personal guarantee executed by the defendants, finding that “it [was clearly] the intent of the parties to exchange an open account status in return for a pledge of individual responsibility.” (457 F.2d 181, 183.) The dissent, being of the opinion that the guarantee did not by its terms apply to the obligations of the corporation, decided the case in terms of the notice which the plaintiff had had of the defendants’ incorporation. The plaintiff’s regional sales manager had been aware that the corporation had been formed. Further, bills had been regularly paid with corporate checks,, and no attempt had been made to conceal the corporate form of the business.

The instant case can be readily distinguished from Kingsberry Homes in that the defendant here made no personal guarantee which would continue despite the incorporation of their business. Rather, in the absence of that factor, this case is more like that envisioned by the dissent in Kingsberry Homes, where the plaintiff-creditor was held to have received adequate notice of the defendants’ incorporation to entitle them to corporate immunity. While the plaintiff here stipulated that it had had no knowledge of the defendants’ incorporation, the trial court’s judgment is warranted on the basis of the actual notice imparted by the receipt of corporate checks over a two-year period.

We accordingly affirm the judgment of the circuit court of Sangamon County.

Affirmed.

KASSERMAN and WELCH, JJ., concur.


author: JUSTICE GREEN JUSTICE TRAPP,

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellant and Cross—Appellee, v. GEORGE B. GRAWE, Defendant-Appellee and Cross-Appellant.—(Civil Service Commission, State of Illinois, Defendant-Appellee.)
    Fourth District
    No. 4—82—0519
    Opinion filed March 16, 1983.

      TRAPP, J., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellant.
    John M. Hosteny, of Cavanagh Law Offices, of Springfield, for appellee George B. Grawe.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, the Illinois Department of Transportation (Department), appeals a judgment of the Sangamon County circuit court entered on July 12, 1982, affirming an order of the Civil Service Commission which provides that defendant Grawe be reinstated to his position as a highway maintainer with the Department.

The chain of events which gives rise to this litigation dates back to October 1977 when Grawe suffered a heart attack. He did not perform any work for the Department after October 21, 1977, but remained on the payroll through January 3, 1978, when he requested and received a leave of absence due to his inability to return to work. On January 25, 1978, following a determination by the Department’s Central Claims Office that Grawe’s heart attack was noncompensable because it was not work-related, Grawe filed a workers’ compensation claim with the Illinois Industrial Commission. An arbitrator subsequently awarded Grawe $160.25 per week for life, for the reasons, inter alia, that the heart attack constituted “accidental injury arising out of and in the course of [Grawe’s] employment” and that “the injuries sustained caused the complete disability of [Grawe], rendering [him] wholly and permanently incapable of work.” On January 20, 1979, the Department petitioned the Industrial Commission for review of the arbitrator’s decision.

Grawe underwent a successful coronary bypass operation on July 2, 1979. In October 1979, the Department and Grawe agreed upon a settlement of Grawe’s workers’ compensation claim. The settlement agreement which Grawe signed provides as follows:

“Thirty-five Thousand Dollars ($35,000.00) in a lump sum settlement, to include Fifteen Hundred Dollars ($1,500.00) medical expenses not paid to date, all other medical expenses being the obligation of the state. It is agreed and understood by all concerned that this is a full, final and complete settlement for all claims stemming from the injury described in this contract and it is expressly understood that neither party may reopen this case under any section of the Workman’s Compensation Act. This lump sum settlement is requested to settle this disputed case.”

On March 17, 1980, Dr. Jumonville, Grawe’s personal physician, submitted a written statement to the Department to the effect that Grawe was fit to return to work, and during the same month Grawe requested that he be reinstated to his position as a highway maintainer. Grawe renewed this request in July 1980.

In December 1980, Grawe received a letter from the Department to the effect that he would either have to resign his position or be involuntarily terminated. Formal charges for discharge were filed against Grawe on January 2, 1981. The charges alleged that because Grawe represented to the Industrial Commission that he was “permanently and totally disabled,” because the arbitrator ruled that Grawe was “totally disabled” and “wholly and permanently incapable of work,” and because Grawe was “awarded the equivalent of a 40% permanent total disability,” he was “estopped from denying that he had lost the ability to perform work for the Department.”

At Grawe’s request, a hearing on the charges was held before a hearing officer of the Civil Service Commission, who rejected the Department’s contentions and recommended that Grawe be reinstated to his position with the Department. This decision was adopted and approved by the full Commission on April 16,1981.

On May 22, 1981, the Department filed a complaint for administrative review of the Civil Service Commission’s decision. Following a hearing, the Sangamon County circuit court rendered the following decision on July 9, 1981:

“The Court finds that the doctrine of estoppel does not apply in this case and that the decision of the Civil Service Commission that George P. Grawe was improperly discharged is in accord with the manifest weight of the evidence and is affirmed. The Court also believes that the question of whether or not Grawe should be reinstated was not decided and should be the subject of additional medical testimony. In the event the parties cannot enter into a stipulation on this point, then the matter is remanded for additional testimony. Cause stricken.”

Since the parties could not agree as to Grawe’s physical condition, a second hearing was held before a Civil Service Commission hearing officer on October 26, 1981. The hearing officer found that the record did not support the Department's contention that Grawe was unfit to perform the duties of a highway maintainer and recommended that he be reinstated in his former position. The Civil Service Commission adopted this recommendation on November 19,1981.

On February 5, 1982, the circuit court ordered the Department to file a “Supplement to Complaint” and ordered Grawe to file an answer thereto. At the same time that he filed his answer to the Department’s supplement to complaint, Grawe also filed a motion to dismiss the supplement to complaint on the ground that a copy thereof was not filed in the circuit court and a summons was not issued within 35 days of the date that a copy of the Civil Service Commission’s decision of November 19, 1981, was served upon the Department. Following a hearing, the circuit court affirmed the decision of the Commission in an order filed on July 12, 1982. The court did not specifically rule upon Grawe’s motion to dismiss the Department’s supplement to complaint.

Before considering the merits of this case, we first address Grawe’s contention that the circuit court erred in that it did not dismiss the Department’s supplement to complaint. Section 3 — 103 of the Code of Civil Procedure provides in pertinent part:

“Commencement of action. Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” 111. Rev. Stat. 1981, ch. 110, par. 3 — 103.

The record reveals that the decision of the Civil Service Commission which followed the circuit court’s remand order was filed on November 19, 1981, and that a copy of this decision was forwarded to the Department by the Department of Personnel on November 24, 1981. The Department’s supplement to complaint was filed on February 23, 1982, which was obviously more than 35 days after the Department’s presumed receipt of a copy of the Civil Service Commission’s decision. Thus the question of whether the Department’s filing its supplement to complaint amounted to the initiation of a new action for administrative review, as opposed to a continuation of the action in which the remand order of July 9, 1981, was entered is dispositive of this issue.

As support of his contention that the circuit court divested itself of jurisdiction of the case when it entered its remand order of May 22, 1981, Grawe relies principally on Creamer v. Police Pension Fund Board (1978), 69 Ill. App. 3d 792, 387 N.E.2d 711. The Creamer court did indeed state that whenever Illinois courts have intended to retain jurisdiction upon remand, a specific provision to that effect has been included in the order of remandment.

Recently, however, Creamer was implicitly overruled by Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268, where the first district held that when a circuit court properly remands a cause to an administrative agency for further proceedings, jurisdiction remains with the circuit court until the court examines the results of the additional proceedings. Decisions from other jurisdictions generally support the Mitrenga court’s resolution of this issue. See e.g., Ford Motor Co. v. National Labor Relations Board (1939), 305 U.S. 364, 83 L. Ed. 221, 59 S. Ct. 301; State ex rel. Public Service Com. v. Boone Circuit Court (1956), 236 Ind. 202, 138 N.E.2d 4; and Connor v. Celanese Fibers Co. (1978), 40 Md. App. 452, 392 A.2d 116.

Moreover, it is rather apparent from the language of the remandment order itself that the circuit court did not intend to divest itself of jurisdiction of this cause in remanding it to the circuit court, for the remand order states that the cause is being remanded for the production of additional testimony as to whether Grawe is entitled to reinstatement. The words, “cause stricken,” which the court appended to its order, do not require a contrary result, for those words are not in themselves determinative of whether the court intended to retain jurisdiction of the cause. Instead, they must be construed in the context of the order in which they appear. (See generally Aikman v. South (Ky. 1906), 97 S.W. 4.) It is likely that in the case at bar, the circuit court merely used these words to indicate that the cause was stricken from the court’s current docket of cases.

The Department contends that Grawe is barred from asserting that he is able to perform the duties of his former job on the basis of the judicial estoppel, equitable estoppel, and collateral estoppel doctrines. The doctrine of judicial estoppel provides that when a party assumes a particular position in a legal proceeding, that party is es-topped from asserting a contrary position in a subsequent proceeding. (Finley v. Kesling (1982), 105 Ill. App. 3d 1, 433 N.E.2d 1112.) In order for the doctrine of judicial estoppel to apply, a five-factor test must be fulfilled: (1) The two positions must be taken by the same party; (2) the positions must be taken in judicial or quasi-judicial administrative proceedings; (3) the records of the two proceedings must clearly reflect that the party sought to be estopped intended the triers of fact to accept the truth of the facts alleged in support of the positions; (4) the party taking the positions must have been successful in asserting the first position and must have received some benefit thereby in the first proceeding; (5) the two positions must be totally inconsistent. Department of Transportation v. Coe (1983), 112 Ill. App. 3d 506.

In Coe, a Department of Transportation employee entered into a lump sum settlement of a workers’ compensation claim after his physician stated in a letter to the Department that he was entitled to 20% “permanent partial disability to the body as a whole.” The settlement agreement which Coe signed provided in effect that the settlement represented 20% permanent disability. We held that Coe was judicially estopped from subsequently asserting that he was once again capable of performing his former duties with the Department. There is, however, one salient difference between Coe and the case at bar— the record of the present case contains absolutely no statements by Grawe that he is permanently disabled or permanently unable to perform his work as a result of his heart attack. The settlement agreement says nothing about the extent of Grawe’s physical disability. Grawe’s sole admissible statement as to his physical condition at the arbitration hearing on his workers’ compensation claim (which took place prior to his coronary bypass operation) was that when he lifted heavy objects he became short of breath and nauseated.

In support of its judicial estoppel argument, the Department points to statements of Grawe’s physicians which Grawe placed in evidence at the arbitration hearing on his workers’ compensation claim, that “the patient is totally disabled at the present time and the length of his disability is undeterminable at this time” (emphasis added) and that “in view [of the fact that Grawe’s heart attack was a job-related injury] Mr. Grawe should [not] continue the type of occupation which he has pursued in the past.” Neither of the above constitutes an explicit statement that Grawe is permanently disabled, however. Furthermore, the doctrine of judicial estoppel is inapplicable to statements made in the course of prior proceedings by witnesses for a party against whom the doctrine is sought to be asserted. Louisville & Nashville R.R. Co. v. Johns (1958), 267 Ala. 261, 101 So. 2d 265; see Hartray v. City of Chicago (1916), 197 Ill. App. 446.

The decision of the Industrial Commission arbitrator does indeed contain a statement that the arbitration award is based on the fact that Grawe is “wholly and permanently incapable of work,” but this obviously does not amount to a “position” which Grawe assumed as to a particular matter. Also, the settlement agreement which was adopted by the Industrial Commission superseded the arbitrator’s decision, and that decision was of no further force or effect following the Industrial Commission’s adoption of the settlement agreement. Since Grawe did not at any time in the course of the workers’ compensation proceeding assert that he was permanently disabled, his position in the proceeding before the Civil Service Commission, that he is once again capable of performing the duties of his former job, is not inconsistent with any position which he assumed in the workers’ compensation proceeding. Therefore, the doctrine of judicial estoppel is inapplicable to this case.

The gravamen of the Department’s equitable estoppel argument is that Grawe should have notified the Department of his coronary bypass operation prior to settling his claim against the Department, and that by failing to do so, Grawe misled the Department into believing that he was permanently incapacitated from performing his duties as a highway maintainer at the time of the settlement. In order for the doctrine of equitable estoppel to apply, the following elements must be present:

“(1) Words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made.” Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 110, 365 N.E.2d 1019, 1020-21.

In the case at bar, none of the previously described statements of Grawe and his physicians which were tendered at the workers’ compensation proceeding amounted to a misrepresentation or concealment of a material fact. Instead, they were merely descriptions of Grawe’s physical condition at that time. Moreover, during the negotiations prior to the settlement of Grawe’s workers’ compensation claim, neither Grawe nor his attorney were under a duty to volunteer the information that Grawe had undergone a coronary bypass operation. Since Grawe made no misrepresentations to the Department as to his physical condition and neither Grawe nor his counsel were under a duty to voluntarily disclose the fact that Grawe had undergone a coronary bypass operation, the first requirement for the applicability of the doctrine of equitable estoppel is not present. Ergo, Grawe is not equitably estopped from asserting that he is capable of performing the duties of his former job.

The Department further asserts that the doctrine of collateral estoppel prohibits Grawe from contending that he is able to resume his former job duties with the Department. The doctrine of collateral estoppel states that when a certain issue of fact has been decided in a lawsuit or administrative proceeding and the same issue of fact arises in a subsequent lawsuit or administrative proceeding between the same parties, the resolution of that issue in the first action will control its resolution in the second, regardless of whether the cause of action is the same in both proceedings. Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723; Casson v. Nash (1977), 54 Ill. App. 3d 783, 370 N.E.2d 564; Dempsey v. City of Harrisburg (1971), 3 Ill. App. 3d 696, 279 N.E.2d 55.

As the Department points out, approval of a settlement of a workers’ compensation claim by the Industrial Commission constitutes a decision of the Commission and is the equivalent of an award by the Commission. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 383 N.E.2d 207.) This principle is not, however, dispositive of our decision as to this issue, since the settlement agreement which was approved by the Industrial Commission contains no statement that Grawe is permanently disabled. The decision of the Industrial Commission arbitrator does contain such a statement, but that decision was superseded by the settlement agreement which the Commission approved. The settlement agreement, and not the arbitrator’s decision, represents the final determination of the Industrial Commission as to Grawe’s workers’ compensation claim. (See Adams v. City of Anadarko (1949), 202 Okla. 72, 210 P.2d 151.) Because the settlement agreement contains no statement as to whether Grawe is permanently disabled, that question was obviously not decided by the Commission. Therefore, Grawe is not collaterally estopped from asserting that he is capable of resuming his former employment with the Department.

The Department finally asserts that the decision of the Civil Service Commission was contrary to the manifest weight of the evidence, but this argument is premised solely on the Department’s contention that Grawe is estopped from asserting that he is capable of performing his old job with the Department. It follows from what we have said above that this contention is without merit.

For the foregoing reasons, we affirm the decision of the circuit court of Sangamon County.

Affirmed.

MILLS, J., concurs.

JUSTICE TRAPP,

dissenting.

I would hold that this record discloses that Grawe’s claim for reinstatement should be barred by reason of judicial estoppel.

His award was made following a hearing before an arbitrator in December 1978. That award, entered as of January 1979, found that the injuries sustained resulted in complete disability and permanent incapacity for work. This finding was a necessary background for the subsequent settlement. Grawe’s testimony as to his incapacity was a factor of the award.

Grawe testified that subsequent to the award his doctor suggested bypass surgery and the probable improvement of his physical condition. That surgery was performed in July 1979. The petition for lump settlement filed in October 1979 alleged in part:

“The following award by an Arbitrator *** (b) $160.25 per week for life;
* * * M

Thereafter, in March 1980, Grawe initiated his request for reinstatement, claiming complete fitness.

This record discloses such representation of permanent disability in procuring the lump sum settlement that Grawe should be judicially estopped from claiming reinstatement.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOM L. JUMPER, Defendant-Appellant.
    Fourth District
    No. 4—82—0194
    Opinion filed March 21, 1983.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, and Glenn A. Stanko and J. Steven Beckett, both of Reno, O’Byrne & Kepley, of Champaign, pro bono, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction at bench trial of the offense of aggravated battery. 111. Rev. Stat. 1979, ch. 38, par. 12 — 4.

He argues (1) he was deprived of his right to counsel rendering a showup and an inculpatory statement inadmissible, (2) the statement was also inadmissible due to the failure to inform him of his rights, (3) the statement was inadmissible as the fruit of the unlawful showup, (4) when characterized as a confession, the statement was inadmissible for failure of the State to produce all material witnesses to the statement, (5) the showup was unnecessarily suggestive, rendering both the out-of-court and the in-court identification inadmissible, and (6) he was not proved guilty beyond a reasonable doubt. The imposition of a fine is also appealed on the basis that there was no evidence indicating defendant’s ability to pay. We affirm both the conviction and the fine.

On September 4, 1980, defendant was charged by indictment with aggravated battery in that he “made physical contact of an insulting and provoking nature with Daniel Katz, knowing Daniel Katz to be a peace officer of the city of Bloomington, while said officer was engaged in the execution of his official duties, by grabbing said officer in a headlock and throwing him against an automobile ***.” (111. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(6).) On the same day he was also indicted for resisting arrest. (111. Rev. Stat. 1979, ch. 38, par. 31 — 1.) On motion of the State, two informations which had been previously filed charging the same offenses alleged in the indictments were the subjects of a nolle prosequi.

Prior to trial, defendant filed a motion to suppress a statement made subsequent to his arrest and prior to the giving of any rights in accordance with Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The motion was consolidated with the bench trial. Evidence on both matters was taken on February 5, 1982. At the close of the State’s evidence, the court denied the motion to suppress, granted a directed verdict for defendant on the charge of resisting a peace officer, and denied a directed verdict on the aggravated battery charge. The defense presented no evidence. The court found defendant guilty of aggravated battery. On March 3, 1982, defendant was sentenced to 24 months of probation, was fined $200 and assessed $70 in court costs to be paid within the first 12 months of the probationary period.

The State’s evidence consisted of the testimony of three Bloomington police officers: Kevin Livingston, Russell Thomas, and Daniel Katz. The officers were all called to assist Officer Kaiser at approximately midnight on July 30, 1980, at the Third Ward Club, in the 400 block of South Main Street in Bloomington. A considerable melee ensued during the course of which defendant’s brother Alonzo was arrested. When Katz arrived he was requested to assist in escorting Alonzo to a squad car. The latter sought to escape and Officer Katz testified that as Alonzo began struggling someone jumped Katz from behind -with a headlock and stated that Katz “wasn’t going to f— with his brother.” As he was grabbed in the headlock Katz was swung around until he went down to the ground. The person grabbing him also rolled on the ground and was more or less on top of Katz while holding Katz to the ground. Katz was asked if he rolled into the squad car, or bumped against it, when he went down to the ground. He replied, “Yes, sir, we were right next to the squad car.”

Katz’ struggle on the ground lasted approximately 30 seconds during which time he could feel people around and fists flying. He was finally able to break loose of the headlock and grab the individual who had a hold of him by the shirt or arm. As they were getting up, Katz kept hold of the individual, who tried to run. He finally was stopped approximately 20 to 40 feet away by Officer Kaiser. Officer Kaiser asked the individual what his name was, and the subject stated that his name was Tommy Jumper. Katz testified that as he was standing by Kaiser’s squad car, he had an opportunity to see the person that he had had a hold of and followed to that point. He identified the defendant, Tommy Jumper, and testified specifically that he saw defendant’s face and size. On redirect examination, Katz testified that the only physical difference he knew of between Joe Jumper and Tommy Jumper was that Tommy was taller than Joe. Although Katz did not know exactly who said, “You ain’t going to f— with my brother,” he also specifically stated that he did not believe it was possible that Joe Jumper grabbed or touched him in any way. Rather, Katz stated that only one person grabbed him, and that was defendant.

On August 20, 1980, Katz heard over the radio that a person by the name of Tommy Jumper was in custody. Officer Rusk had asked the station to check on a warrant for a Tommy Jumper, and while the station was checking Katz radioed to Rusk and told him there was a warrant outstanding. Katz went to the police station and walked into the booking room where Officer Rusk and Tommy Jumper were. Officer Rusk asked Katz if Katz knew the other person. Katz responded that he was the individual that held Katz down at the Third Ward Club. Katz did not ask Tommy Jumper any questions at that time. However, Katz testified Jumper stated that he, Jumper, “did have a hold of me down there at the Third Ward Club, and that he wouldn’t have had to let me go, and that I [Katz] could have gotten away from him if I wanted to.” No Miranda warnings had been given to defendant.

Defendant and the State also agree to a stipulation which provided that if Officer Rusk were called to testify he would essentially corroborate the testimony regarding Jumper’s statement.

The right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant. People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 387 N.E.2d 1071; People v. Faulkner (1980), 86 Ill. App. 3d 136, 407 N.E.2d 126, appeal denied (1980), 81 Ill. 2d 603.

The warnings or admonitions required under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, had not been given to the defendant at the time of the remark made by defendant in the presence of Katz and Rusk.

We find that there was no violation of the rule stated in Miranda in admitting the statement of defendant made by defendant during the booking procedure when Rusk inquired of Katz whether the latter knew defendant. The meaning of “interrogation” for purposes of the Miranda rule has been more specifically defined in Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682. It is apparent that there was no express question directed to defendant, but rather his remark was interjected into the conversation between Rusk and Katz. Upon the evidence it cannot be said that the conversation between the officers was the “functional equivalent of interrogation” — a phrase articulated to mean words or actions by the officers which are reasonably likely to elicit an incriminating or exculpatory response by the defendant.

As stated in Innis:

“ ‘Interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” 446 U.S. 291, 300, 64 L. Ed. 2d 297, 307, 100 S. Ct. 1682, 1689.

It is stated in Miranda, and reiterated in Innis, that:

“Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (384 U.S. 436, 478, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602,1630.)

We conclude that the statement interjected by defendant was a volunteered statement under the standards stated in Miranda and in Innis, and that there was no violation of any fifth amendment right of the defendant in the admission of such statement.

Upon the issue of whether defendant’s remark was inadmissible under the sixth amendment because made in the absence of defendant’s counsel, we conclude that they were properly admitted. The opinion in Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232, has stated the measure of inadmissibility in such circumstances. In Brewer, defendant had been arraigned upon a charge of murder, and it was known to police officers that he had retained counsel. While being transported by automobile, an officer made the “Christian burial speech” directed to defendant with the words “I want to give you something to think about while we’re traveling down the road.” 430 U.S. 387, 392, 51 L. Ed. 2d 424, 432, 97 S. Ct. 1232, 1236.

Evidence resulting from defendant’s subsequent disclosure of the location of the body of the victim was held to be inadmissible by reason of the violation of defendant’s right to counsel. The opinion discloses factors found in the record to include the fact that the officers knew that defendant had retained counsel, and had agreed not to interrogate him during the travel, and that the words or conduct of the officers were directed to the defendant with a specific design or purpose to elicit information from the defendant. These are essentially the same factors as found in Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.

In Brewer, it is said that after the commencement of adversary proceedings, defendant’s right to counsel becomes effective “when the government interrogates him.” (430 U.S. 387, 401, 51 L. Ed. 2d 424, 438, 97 S. Ct. 1232, 1240.) Interrogation is articulated in terms of words or conduct “ ‘with the specific intent to elicit incriminating statements.’ ” (430 U.S. 387, 403, 51 L. Ed. 2d, 424, 439, 97 S. Ct. 1232, 1241.) We can discover no reason why statements volunteered by defendant, as in Innis, should not be admissible in matters concerning the sixth amendment. Here, as in Innis, the conversation was between two officers “to which no response from the respondent was invited.” 446 U.S. 291, 302, 64 L. Ed. 2d 297, 309, 100 S. Ct. 1682, 1690.

We conclude that the testimony concerning defendant’s remark made during the conversation between Rusk and Katz did not violate any right to counsel under the sixth amendment.

It is argued that Katz’ observation of defendant during the booking process following his arrest amounted to a showup held in the absence of counsel with the result that all evidence concerning the identification of defendant procured in violation of defendant’s sixth amendment rights was illegally obtained and was inadmissible at trial.

We do not agree that the circumstances in this record disclose a showup, illegal or otherwise. Presumably, in the normal course of his duties Katz would be required to be in the room, or pass through rooms used for booking procedures. There is no evidence suggesting an overt police plan or effort to establish the identity of the defendant through witnesses, or to determine whether or not a witness could identify defendant. Assuming arguendo, however, that Katz’ observation made at the booking was a showup made in the absence of defendant’s counsel, reversal of the conviction is not necessarily required. In People v. Marshall (1977), 47 Ill. App. 3d 784, 365 N.E.2d 367, the contention of necessary reversal was expressly rejected. The court stated:

“It is well established that the requirement of counsel’s presence is based upon consideration of due process and that if all the circumstances surrounding the identification procedure taken together clearly indicate that due process was followed, the absence of counsel at the identification lineup is not fatal to the judgment reached by the trial court. [Citation.]” 47 Ill. App. 3d 784, 786, 365 N.E.2d 367, 369.

The opinion was followed in People v. Giovanetti (1979), 70 Ill. App. 3d 275, 387 N.E.2d 1071, and People v. Faulkner (1980), 86 Ill. App. 3d 136, 407 N.E.2d 126, appeal denied (1980), 81 Ill. 2d 603. Marshall and the succeeding opinions were founded upon language quoted in Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417, and reiterated in United States v. Wade (1967), 388 U.S. 218, 241, 18. L. Ed. 2d 1149, 1165, 87 S. Ct. 1926, 1939, that the question was “ ‘ “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ ”

In Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, the “means sufficiently distinguishable” is stated more simply as an identification from a source independent or an origin different from the inadmissible evidence of a showup. Whether an identification has an independent origin is. determined from a reconsideration of the evidence concerning the witness’ opportunity to view the defendant, his degree of attention, the accuracy of any description given, the level of certainty in identification, and the time intervening between the event and the making of the identification. Gilbert; People v. Hilton (1974), 23 Ill. App. 3d 369.

While defendant argues some matters of detail, this record shows that Katz and his assailant struggled on the ground for a period, and that Katz grabbed and held defendant by his arm as the latter attempted to run away and retained a hold on him until defendant was stopped by another officer some distance away. Katz heard defendant identify himself to the other officer as Tommy Jumper. Katz specifically observed defendant’s face and size. There was no evidence of misidentification or prior misdescription by Katz of his assailant, and the intervening time between the struggle and the identification was short. Nothing in the record suggests hesitation in making an identification and there is a sufficient record to sustain the finding of the trier of fact upon the issue. Again, assuming that the observation of Katz at the jail was, in fact, inadmissible evidence, in the context of this record we conclude that his in-court identification of defendant had a foundation in an independent source, and that the presence of any inadmissible evidence was harmless beyond a reasonable doubt within the meaning of Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 828.

Finally, defendant challenges the assessment of a fine of $200 and $70 in court costs to be paid within the first 12 months of his 24-month probationary period. He asserts that the court failed to consider his financial resources and future ability to pay the fine as required by section 5 — 9—1(d) of the Unified Code of Corrections. 111. Rev. Stat. 1979, ch. 38, par. 1005 — 9—1(d).

A trial judge need not specifically state that a defendant was determined to have the financial resources and ability to pay. The finding is implicit in the imposition of a fine where the judge is aware of the facts which support such a determination. (People v. Bishop (1980), 81 Ill. App. 3d 521, 401 N.E.2d 648.) In the present case the record revealed defendant had only $66 in debt, no apparent monthly expenses, and the apparent capacity to be employed. The presentence report indicated he was 19 years old and had no physical problems. Although unemployed at the time of the report, defendant had informed the pre sentence investigator that he was previously employed. Defendant posted $100 as 10 percent of his $1,000 appearance bond which constitutes a fund out of which court costs and fines may be paid. (111. Rev. Stat. 1979, ch. 38, par. 110 — 7(h), (i).) Defendant’s cited case of People v. Oravis (1980), 81 Ill. App. 3d 717, 402 N.E.2d 297, is distinguishable since that defendant was originally sentenced to six years of imprisonment, reduced by the appellate court to four years. He had $2,000 of liability and was fined $2,000. Clearly he did not have the present ability to pay and would not be able to pay in the future due to his imprisonment. The present defendant has no substantial debt and should be able to work while on probation. There is no abuse of discretion in imposing the fine. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

For the foregoing reasons the conviction and fine are affirmed.

Affirmed.

WEBBER, P.J., and MILLER, J., concur.