text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE NEWMAN, Defendant-Appellant.
    Fifth District
    No. 5 — 82—0006
    Opinion filed March 27, 1984.
    Rehearing denied April 6, 1984.
    Randy E. Blue and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    K. Rick Keller, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Mary W. Richardson, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

Following a jury trial in the circuit court of Effingham County, defendant, George Newman, was convicted on two counts of deviate sexual assault and one count each of aggravated kidnaping and battery. He was sentenced to concurrent terms of imprisonment of 28 years for deviate sexual assault, 12 years for aggravated kidnaping and 364 days for battery. Two issues are raised on appeal, each related to the so-called rape shield law of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7). First, was it reversible error to specifically limit the scope of cross-examination of the complainant regarding her alleged bias against the defendant? Second, was it reversible error to prohibit cross-examination of the complainant, and the testimony of two other witnesses, regarding her history as a prostitute for purposes of impeaching credibility? Each answer is no, and we affirm.

Because of the nature of the' issues presented on this appeal, a detailed account of the facts comprising the crimes charged is unnecessary. The evidence was sufficient to establish that on May 1, 1981, defendant abducted complainant in a grocery store parking lot and drove her to a secluded rural area where he physically abused her and forced her to submit to deviate sexual acts.

Prior to trial, the State filed a motion in limine to prohibit the defendant from making any reference to complainant’s prior sexual conduct. Hearing was held in chambers. Defense counsel notified the court of his intention to establish, through cross-examination of the complainant, that both the defendant and his wife, at whose home complainant had been living, had ordered her to move out of the home because she was working as a prostitute. Counsel advised the court that the defendant and his wife told the complainant during March or April before the the May 1 incident that she was not paying her bills, that she was bringing men home and selling her body and that they wanted her out of the home. Counsel argued that this was a proper matter for impeachment because it tended to show bias by the complainant toward the defendant.

Defense counsel also notified the court of his intention to establish, through cross-examination of the complainant, that she wps engaged in prostitution, as a matter affecting her credibility. Counsel also advised the court that the complainant’s sister and a truck stop employee were prepared to verify that the complainant had been working as a prostitute at the truck stop.

The court granted the State’s motion and prohibited the defense from questioning any witness about the complainant’s past sexual conduct. The proposed impeachment evidence, said the court, was barred by the rape shield law. Subsection (a) of the rape shield law provides:

“In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7.

Defendant argues it was error for the trial court to bar cross-examination and impeachment of the complainant in order to establish alleged bias against the defendant and his wife.

Defendant’s argument seems to be that his right of confrontation was violated. Principal reliance is placed on People v. Coles (1979), 74 Ill. 2d 393, 385 N.E.2d 694. Defendant’s premise is that the accusation of prostitution was relevant to establish complainant’s bias but did not in itself constitute evidence of her sexual history or character since it was only “tangentially related to some sexual activities.”

In Coles, the defendant was charged with armed robbery. The prosecution’s chief witness, Mrs. Stallworth, observed the crime in progress in her home. She also happened to be the sister of the defendant’s wife. Counsel attempted to establish her bias toward defendant by inquiring whether she had been beaten by her husband as a result of defendant having told him that she was having an extramarital affair. The court sustained the State’s objection as to any inquiry into the alleged beating. Defense counsel was, however, permitted to inquire, inter alia, whether defendant had visited the Stallworth home, whether Mrs. Stallworth had encouraged her sister not to marry the defendant, and whether Mrs. Stallwroth had threatened to “fix” the defendant. The supreme court affirmed the reversal of defendant’s conviction by concluding the trial court abused its discretion by excluding inquiry into the alleged beating, for which the witness allegedly blamed defendant. “The potential inference, from the alleged beating, of a motive to misrepresent was neither remote not speculative, nor unduly prejudicial to the government and therefore should have been left to the jury.” 74 Ill. 2d 393, 396, 385 N.E.2d 694, 695.

“[W]hen determining whether a denial of cross-examination violates the defendant’s right of confrontation, we should look not to what defendant has been prohibited from doing but to what he has been allowed to do. The issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine whether the witness is worthy of belief [citations], not whether any particular limitation has been placed upon defendant’s ability to cross-examine a witness or whether the jury has knowledge of any specific fact. Thus, if it appears from the entire record that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant has been prohibited on cross-examination from pursuing other areas of inquiry. [Citation.]” (People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420, 425-26.) We note that in the instant case cross-examination was never barred. On the contrary, it is evident that defense counsel was allowed considerable latitude in cross-examining the complainant about the very incident giving rise to the alleged bias toward defendant. Counsel was permitted to establish that she was living with her sister in defendant’s home, that she was evicted from the home before the incident and that it was the defendant who had made the decision to “kick her out.” Counsel even argued in closing that the evidence showed she had a motive to lie. There is no doubt that defendant was permitted to establish hostility. The court did not prohibit cross-examination about the reason for bias, interest or motive to testify, but prohibited only cross-examination about one of the reasons defendant had for not wanting complainant to remain in the home. An analogous inquiry in Coles would have allowed into evidence not only the alleged beating but also the specific allegation of an extramarital affair which gave rise to the alleged beating. We need only speculate whether such a specific allegation would be admissible in a trial for armed robbery. The instant trial was for deviate sexual assault. Insofar as defendant’s reason would have added little evidentiary value to that which was permitted to be established and in light of its inextricable relation to past sexual conduct and reputation of the complainant, it was properly excluded from the scope of cross-examination pursuant to the rape shield law.

Regarding defendant’s second alleged error, the well-established rule in Illinois is that it is proper to cross-examine a witness about engagement in an unlawful and disreputable occupation as a matter affecting general credibility. (See People v. Crump (1955), 5 Ill. 2d 251, 125 N.E.2d 615; People v. Winchester (1933), 352 Ill. 237, 185 N.E. 580; People v. Bond (1917), 281 Ill. 490, 118 N.E. 14; People v. Hines (1981), 94 Ill. App. 3d 1041, 419 N.E.2d 420.) We cannot wholly agree, however, with defendant’s assertion that the legislature, by enacting section 115 — 7, did not intend to restrict impeachment of the complainant in a trial for deviate sexual assault, when such impeachment directly relates to the prior sexual activity and reputation of the complainant. The defendant in such a case is not precluded from challenging or attacking complainant’s credibility or veracity or from otherwise utilizing cross-examination as an effective tool of impeachment. (See People v. Cornes (1980), 80 Ill. App. 3d 166, 175, 399 N.E.2d 1346, 1353.) Rather, the defendant is merely restricted to that type of impeachment evidence unrelated to prior sexual activity and reputation. The scope of cross-examination was properly limited.

For the foregoing reasons, the judgment of the circuit court of Effingham County is affirmed.

Affirmed.

WELCH, P.J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
      In re MARRIAGE OF KAREN MATT, Petitioner-Appellee, and ALVIN E. MATT, Respondent (The Cosmopolitan National Bank of Chicago, Garnishee-Defendant and Respondent-Appellant).
    First District (2nd Division)
    No. 83 — 2222
    Opinion filed February 28, 1984.
    Rehearing denied May 8, 1984.
    Sherman & Lewis, of Chicago (Leonard E. Blum, of counsel), for appellant.
    Springer, Casey, Haas, Dienstag & Silverman, of Chicago (Martin L. Silverman and Gary Dienstag, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

This garnishment action was brought by petitioner Karen Matt against the garnishee-defendant, the Cosmopolitan National Bank of Chicago. The judgment sought to be enforced consisted of arrearages in temporary child support owing to petitioner from Alvin Matt, the petitioner’s ex-husband and lifetime beneficiary of a testamentary trust. The trust in question contained a spendthrift provision. The trial court found that the trust income was subject to a claim for child-support arrearages and denied the garnishee bank’s motion to be discharged on a “no funds” answer. The garnishee bank appeals from this finding and order.

On April 16, 1980, Alvin Matt was ordered to pay temporary child support to Karen Matt. Mr. Matt failed to comply with this order and on October 21, 1982, judgment for dissolution of marriage was granted to Alvin Matt and Karen Matt which included a $7,000 judgment in favor of Karen for arrearages on the April 16, 1980, temporary support order.

The Cosmopolitan National Bank of Chicago is a trustee under the last will and testament of Yetta Matt, mother of Alvin Matt, who died on April 8, 1980, and whose will, dated October 8, 1975, was admitted to probate in the circuit court of Cook County. Yetta Matt’s estate was settled and the assets delivered to the Cosmopolitan National Bank of Chicago to be administered in accordance with the testamentary trust contained in the will.

On July 7, 1983, garnishment proceedings were instituted by Karen Matt against the bank, based on the $7,000 judgment entered against Alvin Matt on October 21, 1982. On July 21, 1983, the bank filed an answer of “no funds” and a motion to be discharged from the garnishment proceedings, based upon the spendthrift provision in the testamentary trust, which provides:

“Neither principal nor income of the Trust herein established shall be pledged, transferred, sold, anticipated or encumbered by any beneficiary herein named, nor be in any manner liable, while in the possession of the Trustee, for any contract, debt or obligation, nor for any claim voluntarily or involuntarily created either legal or equitable against any beneficiary, including claims for alimony or support of any spouse of such beneficiary.”

Neither party cited any ambiguity or petitioned the court to interpret the will. Both sides filed memoranda and were given the opportunity to argue their positions before the court.

On September 9, 1983, the trial court found that the income of the trust was subject to garnishment in order to satisfy the child support judgment and denied the bank’s motion for a discharge on its no funds answer. The court ordered the bank to file an amended answer and the bank appeals.

The trial court based its decision upon its interpretation of the testator’s intention, as determined from the trust’s spendthrift provision, to provide for the support of Alvin Matt’s children, the testator’s grandchildren. The trial court believed that, because the spendthrift provision expressly protects the trust income against claims for spousal support yet does not mention child support, the testator did not intend to shield the trust income from the beneficiary’s child-support obligations. The court also expressed its view, apparently based on Keller v. Keller (1936), 284 Ill. App. 198, 1 N.E.2d 773, that public policy in Illinois prohibits a trust beneficiary from escaping his child-support obligations on the basis of a spendthrift provision unless that provision expressly shields the trust beneficiary against child-support judgments. See Keller v. Keller (1936), 284 Ill. App. 198, 205, 1 N.E.2d 773.

Petitioner argues that, because the spendthrift provision does not expressly protect the beneficiary’s interest against claims for child support, the trust income is not protected against garnishment. Defendant, the trustee bank, contends that the trial court incorrectly interpreted the testator’s intent as expressed in the spendthrift provision. Defendant also contends that the Keller decision is no longer followed in Illinois.

In every case interpreting spendthrift trusts as they relate to the trust beneficiary’s spousal and child-support obligations, the Illinois courts have based their decisions at least in part upon the trust exception to section 49 of the old Chancery Act (Ill. Rev. Stat. 1975, ch. 22, par. 49; Ill. Rev. Stat. 1981, ch. 110, par. 399) which is now embodied in section 2 — 1403 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1403.) Section 2 — 1403 is worded almost identically to its predecessor in the Chancery Act.

“No court shall order the satisfaction of a judgment out of any property held in trust for the judgment debtor if such trust has, in good faith, been created by, or the fund so held in trust has proceeded from, a person other than the judgment debtor.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1403.

It seems clear from this language that judgment debts against a trust beneficiary cannot be satisfied out of the beneficiary’s interest where, as here, the trust was created by a person other than the judgment debtor. (See Potter v. Couch (1891), 141 U.S. 296, 320, 35 L. Ed. 721, 733, 11 S. Ct. 1005, 1012; Dinwiddie v. Baumberger (1974), 18 Ill. App. 3d 933, 936-37, 310 N.E.2d 841; see also MacDonald v. Joslyn (1974), 17 Ill. App. 3d 52, 55, 307 N.E.2d 601.) However, petitioner contends that the courts in Illinois have held that this statutory exception does not apply with respect to child support judgments. Petitioner cites Keller v. Keller (1936), 284 Ill. App. 198, 1 N.E.2d 773, in support of this contention.

In Keller, the court held that, as a matter of public policy, claims for child support are enforceable against the income of a spendthrift trust of which the husband is an income beneficiary. The court in Keller believed that section 49 of the Chancery Act concerned only contractual obligations and was therefore inapplicable to a case involving the child-support obligation. However, Keller has been criticized and has not been followed in Illinois, due for the most part to the fact that the opinion is uncertain as to its grounds. See Schwager v. Schwager (7th Cir. 1940), 109 E2d 754, 763; Note, Right of Wife and Children to Reach Income of Spendthrift Trust Created for Husband, 14 Chi.-Kent L. Rev. 276 (1936); Note, Spendthrift Trusts — Recovery from the Trustee of Support Money for Beneficiary’s Minor Children, 30 Ill. L. Rev. 1067 (1936).

In addition, Keller is distinguishable on its facts from more recent cases in that the spendthrift provision in Keller was extremely broad. The trust instrument in Keller provided:

“ '*** such payments to be made in installments, as often as found convenient by my trustees, but not less than twice in each year; each installment to be paid personally to the child entitled thereto, and not to be capable of anticipation or assignment.’ ” (Emphasis added.) 284 Ill. App. 198, 200.

It is understandable that the court in Keller declined to enforce this spendthrift provision against a child-support claim absent more specific language. In contrast, more recent spendthrift provisions, including the one in the instant case, are far more specific. The language in Keller requiring that a spendthrift provision “expressly disclose an intention” to shield against child-support claims (284 Ill. App. 198, 206) was written in interpretation of a broad spendthrift provision, and we therefore will not apply it to the much more specific provision in the instant case.

The most recent criticism of Keller appears in Dinwiddie v. Baumberger (1974), 18 Ill. App. 3d 933, 310 N.E.2d 841, in which the court upheld a spendthrift provision against an alimony claim under the authority of section 49 of the Chancery Act.

In Dinwiddie, the wife commenced an action against her former husband, seeking the enforcement of a foreign judgment order for alimony arrearages. The wife sought to recover from the husband’s employment retirement trust, which contained a spendthrift provision. The trial court dismissed the wife’s action against the trustee bank and the appellate court affirmed, holding that under the language of section 49 the trust income could not be reached by the wife. The court in Dinwiddie objected to the Keller decision’s interpretation of section 49 as applying “only to merely contractual obligations.” (284 Ill. App. 198, 206.) The court stated:

“We believe that this conclusion is unwarranted, since the statute as it was then worded, and as it is currently worded, referred and refers to ‘judgments' and is not limited to judgments on contracts.” 18 Ill. App. 3d 933, 936.

The court went on to apply section 49 and to enforce the spendthrift provision.

We find the reasoning of the Dinwiddie case to be more sound than that of Keller. This is especially evident in light of the General Assembly’s recent reenactment of the trust exception of section 49 of the Chancery Act. (See Pub. Act 83 — 314.) The court in Dinwiddie stated:

“The express language of section 49 is not subject to divergent construction, and it is controlling as to the facts here unless we decide that compelling public policy overrides the statute. This we cannot do. If spendthrift clauses, in full compliance with the provisions of the statute, as they are here, are a contravention of public policy, then it is the legislature which must act to correct the situation.” 18 Ill. App. 3d 933, 937.

Because the legislature’s most recent action regarding this situation has been the reenactment of the section 49 trust exception, and because Keller has not been followed, we elect to follow Dinwiddie and hold that section 2 — 1403 of the Code of Civil Procedure prohibits the garnishment of the trust income in the instant case.

The decision of the circuit court is reversed and the cause remanded.

Reversed and remanded.

HARTMAN, P.J., and DOWNING, J, concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD REED, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 1693
    Opinion filed February 17, 1984.
    Rehearing denied April 27, 1984.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Marie Quinlivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and armed violence and sentenced to a term of 28 years. On appeal, he contends that (1) his statements, as well as evidence obtained as a result thereof, should have been suppressed because they were (a) involuntarily made and (b) the fruit of an illegal arrest; and (2) the trial court erred in failing to require the jury to return a verdict on the lesser-included offense of voluntary manslaughter.

Prior to trial, defendant filed motions alleging that several inculpatory statements made by him were involuntary and therefore should be suppressed. At a hearing on the motion, Linette Willis, defendant’s girlfriend, testified that he called her late in the morning on January 21, 1981, told her that he was being held on several traffic warrants, and asked that she bring $750 bond money to the police station where he was being held. She arrived at the station with the money at approximately 5:30 that evening, but after waiting several hours she was informed that defendant was being held for murder and would not be released. She did not see defendant that night, but acknowledged that when he called her his voice sounded normal and he did not complain of being injured or that he was not receiving food.

Defendant testified that he was questioned several times between January 18 and January 20, 1981, concerning the death of Robin Williams. During questioning at his home on the 20th, officers asked if he would submit to a polygraph examination, and he agreed. Later that day, he and Robert Wheatly went to the police station at 51st and Wentworth and were transported, along with Eugene Baker, to 11th and State, where all three were given polygraph examinations. During the examination, he (defendant) did not admit guilt but did state that he owned a .32-caliber pistol. When they returned to 51st and Wentworth between 7 and 9 p.m., he was separated from Wheatly and Baker and placed in an interview room where officers asked him several questions about the gun. They asked permission to search his apartment, and he voluntarily signed a consent to search form. The officers then left to search for the gun, and he was left handcuffed to a ring in the wall. When they returned, the officers continued to question him about the gun and about Williams’ death until approximately 8 a.m. on the morning of the 21st. During that time, he was continuously handcuffed, was not allowed to sleep, and was not given any food, although his requests for water or coffee or to use washroom facilities were honored.

At some point during questioning, officers told him that he was being held on outstanding traffic warrants, and he called Willis between 10 and 11 a.m. on the 21st to ask her to bring the necessary bond money. He was taken to the lockup on the morning of the 21st, but was there only one-half hour when an officer brought him back upstairs to participate as an extra in a lineup and then placed him in an interview room. He was questioned periodically throughout the day by various officers, and again was continuously handcuffed and was not given food, although he told the officers he was hungry.

Questioning continued periodically throughout the night and into the morning of January 22. During that time, he was left alone-handcuffed to a ring in the wall — for several hours while officers went to check information he provided. However, when he tried to stretch out on chairs and sleep, an officer came in and removed all but one chair. Officer Johnson spoke to him twice while he was in custody, talked about his (Johnson’s) brother-in-law, with whom he (defendant) was acquainted, discussed freebasing cocaine, and stated that he (Johnson) knew that the case was drug related and that if he (defendant) would confess, he would be charged with manslaughter, not murder. Four to 10 hours after the last conversation with Johnson, and based on the latter’s promises, he decided to give a statement. He pounded on the door of the interview room and asked to speak to Wheatly. After seeing Wheatly, he made a statement to Officers Doty and Lotito, then two hours later gave a statement to Assistant State’s Attorney Franks. Franks did read him his rights, but he did not recall anyone else doing so while he was in custody. During the entire time that he was at the station, he repeatedly told officers that he wanted to leave, that he wanted questioning to cease, and that he wanted to speak to his attorney. He was not allowed to sleep or given any food and was continuously handcuffed. Defendant admitted that he did not request food, but asserted that he did make known to officers that he was hungry. When he requested water or coffee, it was provided.

Detective Lotito testified that defendant, Wheatly and Baker consented to take polygraph examinations and thereafter Baker was allowed to leave, but defendant and Wheatly were not released. During the examination, defendant admitted owning a .32-caliber gun and signed a consent to search. When officers could not find the gun where defendant stated it would be, they returned to the station, placed defendant under arrest, and advised him of his constitutional rights. Defendant was advised at that time that he was also being held on a narcotics bond forfeiture warrant, a paternity warrant, and several traffic warrants. Between midnight and 1 a.m. he (Lotito) went off duty and asked members of the night shift to take defendant to the lockup; he did not know whether they did so. When he returned to the station on the 21st, defendant was brought from the lockup at approximately 5:30 p.m. and placed in an interview room.

Defendant was not questioned continuously and was able to stretch out on four chairs and rest while officers investigated what he told them. At approximately 11 p.m. on the 21st, his partner took two sandwiches to defendant; they had no further contact with him until 6 or 6:30 the following morning, and to the best of his knowledge, no other officers questioned him. At 9 a.m. on the 22d, defendant pounded on the door of the interview room and indicated that he would give a statement if allowed to speak first with Wheatly. When, he, Wheatly, and two other officers entered the room, defendant began crying and made some statements. Wheatly was removed; defendant was again informed of his rights and made an oral statement. A second oral statement was made to Assistant State’s Attorney Franks at approximately noon, followed by a written statement at 1:45 p.m. Lotito acknowledged that defendant might have asked to leave; that he was handcuffed to a ring in the wall when alone in the interview room; and that defendant did not leave the interview room from 4:30 p.m. on the 21st until 3 or 4 p.m. on the 22d. He denied that defendant ever indicated that he did not want to answer questions.

Detective Doty testified that when he arrived at the station at 8:30 a.m. on the 21st, he took defendant from an interview room to the lockup and had no further contact with him that day.

Detective Fitzgibbons testified that either he or Lotito signed defendant out of the lockup on the afternoon of January 21. Sometime during that evening, he gave defendant one bologna sandwich and a soft drink. Defendant was cuffed to the wall, but chairs were positioned so that he could sit or lie down and sleep; defendant did the latter. Fitzgibbons acknowledged that the chairs in the interview room are metal, and the ring to which defendant was handcuffed is approximately 18 inches about the seat of the chair.

Detective Johnson testified that he questioned defendant at his apartment on January 18. Thereafter, he worked the day shift and did not speak to defendant again until 9:30 a.m. on the 22d when he made an oral statement. Johnson acknowledged that he had a brother-in-law who was acquainted with defendant, but denied informing defendant of that fact.

Defendant testified in rebuttal that he tried three times to sleep on the chairs in the interview room but each time an officer, whom he could not identify and who had not testified, came in and moved the chairs.

The trial court found that defendant was handcuffed to a wall for many hours and not permitted normal sleeping conditions; that this procedure was employed by officers to induce or harass defendant into confessing; that defendant was not afforded regular and decent food while in custody; that defendant was not permitted to visit with his family and friends as he requested; and that his numerous requests to cease talking to officers were not honored. For these reasons, the trial court found that the oral statement made to the officers was involuntary and ordered that it be suppressed. However, it found that the oral and written statements made to Assistant State’s Attorney Franks were severable from the police conduct and voluntarily made. In so ruling, the trial court noted that there was a substantial break in time sufficient for defendant, a person of normal intelligence, to gather his thoughts, and that Franks gave defendant the first clear admonitions regarding his rights. Defendant then presented a motion to quash his arrest and suppress statements. After hearing the arguments of counsel, but without further evidentiary hearing, the trial court denied the motion.

At trial, Robert Wheatly testified that he had been dating Williams and they had a two-year-old child. He became concerned when he had not seen her for five or six days and went to her apartment on January 18, 1981, but received no response although he could hear loud music playing and the shower running. When he returned two hours later, he noted that the shower was still running and went to the rear door of the apartment, broke a window, and entered. The apartment was filled with steam, and he noticed a foul odor. When he entered the bathroom, he discovered Williams’ partially-clothed body in the bathtub. He turned the shower off, called the police, and spoke to them when they arrived. Wheatly further stated that he shared an apartment with defendant and their girlfriends, and that defendant and Williams were very close friends; he knew of no reason why defendant would want to kill her. From 8 or 9 p.m. on January 14 until the early morning hours of the 15th, he, defendant, and a third man smoked cocaine, consuming among them approximately one-quarter ounce of the substance; defendant also had a Quaalude, but he (Wheatly) did not see him take it. Defendant left the apartment between 7 and 8 a.m. on the 15th, and did not return until 2 or 3 p.m. At that time, he was quieter than usual, went straight to his room, and did not come out even when informed that a friend was there and wanted to talk to him. Wheatly also testified that smoking cocaine always seemed to make defendant tense.

Detective Salvatore testified that when initially questioned, defendant admitted owning a .32-caliber gun and stated that it was in a dresser drawer at his apartment. However, after searching the apartment with defendant’s permission, the officers were unable to locate the gun.

Detective Fitzgibbons testified that after giving a written statement, defendant told officers where the gun was hidden and consented to a search of the basement of his apartment building. Defendant accompanied officers to that location and pointed out the gun, a set of keys, and a drain where he had discarded some bullets. It was stipulated that the bullets recovered from Williams’ body were fired from the gun found in the basement.

Dr. Kirshner testified that the cause of death was multiple gunshot wounds. Williams suffered four wounds to the chest, and, in his opinion, was alive and probably conscious after the first shot was fired, judging from the amount of blood in the chest cavity, the position of the wounds, and a defense wound found on her left wrist.

Assistant State’s Attorney Franks testified that he first saw defendant between 12:30 and 1 p.m. on January 22, 1981, in an interview room at the police station. After being read his Miranda rights and acknowledging understanding of them, defendant made an oral statement. A written statement was taken at approximately 1:45 p.m. and, after reading and initialing each page thereof, defendant made some corrections and signed the last page. In his statement, defendant explained that he had been smoking cocaine for several hours on the night of January 14-15, and took one Quaalude. He left his apartment at approximately 9:30 a.m. on the 15th, taking a loaded .32-cali-ber revolver with him. He started out to visit various relatives and friends, but twice fell asleep and missed his stop. He arrived at Williams’ apartment between 12 and 1 p.m. and asked if he could come in and take a nap. Williams admitted him, and he went to a back room, laid down on a couch, and fell asleep. At approximately 2 p.m. he awakened to the sound of the television and the shower, and panicked when he heard noise in the house. He grabbed his gun, went to the bathroom, pushed open the door, and fired; only then did he realize that the person in the bathroom was Williams. She fell backwards into the tub, dead. In his panic, he decided to make it appear that “a wild man” had done it, and shot her three more times. He took her keys, locked the door, and returned to his apartment where he hid the gun and keys in the basement and threw the four spent shells into a sewer. Franks further testified that, in his oral statement, defendant said that he saw Williams when he pushed the door open and that he took the Quaalude at approximately 5 a.m. At one time during the oral statement, defendant was upset and close to tears and explained that he had been feeling guilty and distraught for days.

Dr. Melvin Seglin, a psychiatrist, testified for defendant that the combination of smoking cocaine for 12 hours and ingesting one Quaalude would usually cause a person to become euphoric, grandiose, hyperactive, hypervigilant, and fatigued, although there could be dissimilarites in reaction attributable to individual physical condition and the amount of experience with drugs; the reaction would be less intense in one experienced in their use. Seglin defined hypervigilance as a heightened state of awareness of danger, a readiness to respond to potential danger at a moment’s notice. In his opinion, one who had ingested the drugs and fell into a deep sleep would not be in a state to make a rational judgment if suddenly awakened; furthermore, it might take a second longer to recognize someone. Seglin acknowledged that most of his information on the effect of these drugs came from literature rather than personal observation, and that the effects of the drugs would dissipate over a six- to seven-hour period after the last ingestion of cocaine. At that time, perceptions and reactions would be more normal.

Opinion

Defendant first contends that, given the lack of evidence that the coercive conditions found to have induced his first statement had dissipated, the trial court’s finding that subsequent statements made by him were voluntary is against the manifest weight of the evidence.

The State bears the burden of demonstrating that a defendant’s statements were voluntarily made. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508, cert. denied (1982), 455 U.S. 1024, 72 L. Ed. 2d 144, 102 S. Ct. 1726.) This question is one of fact to be determined by the trial court (People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127) after consideration of the totality of the circumstances (People v. Hebein (1982), 111 Ill. App. 3d 830, 444 N.E.2d 782), and it need be convinced only by a preponderance of the evidence that the statement in question was voluntary; that is, that the accused’s will was not overborne such that the statement “cannot be deemed the product of a rational intellect and a free will” (People v. Kincaid (1981), 87 Ill. 2d 107, 117, 429 N.E.2d 508, 511). Therefore, where the question has been ruled upon by the trial court and the proper legal standard has been employed, the sole question for review is whether its determination is contrary to the manifest weight of the evidence. (People v. Brownell (1980), 79 Ill. 2d 508, 404 N.E.2d 181, cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59; People v. Medina (1978), 71 Ill. 2d 254, 375 N.E.2d 78.) Moreover, where one statement is found to be involuntary, it does not necessarily follow that any subsequent statements are also inadmissible (see People v. Burris (1971), 49 Ill. 2d 98, 273 N.E.2d 605); however, where it is found that an original statement was unlawfully obtained, subsequent statements made while under the same constraints are also inadmissible (People v. Taylor (1965), 33 Ill. 2d 417, 211 N.E.2d 673), and a presumption exists that all were the product of the same improper conduct (People v. Landgham (1970), 122 Ill. App. 2d 9, 257 N.E.2d 484, cert. denied (1971), 402 U.S. 911, 28 L. Ed. 2d 652, 91 S. Ct. 1389). Thus, the trial court must determine whether the State has met its burden of proving that the “previous coercive influences have been sufficiently dissipated to insure that the confession offered in evidence is the product of the free will of the defendant” (People v. Raddatz (1968), 91 Ill. App. 2d 425, 435-36, 235 N.E.2d 353, 358-59), and subsequent statements should be suppressed where “there was ‘no break in the stream of events’ * * * ‘sufficient to insulate’ the final events ‘from the effects of all that went before’ ” (Darwin v. Connecticut (1968), 391 U.S. 346, 349, 20 L. Ed. 2d 630, 633-34, 88 S. Ct. 1488, 1490).

In the instant case, defendant’s initial statement was made after he had been detained and periodically questioned in the police station for about 36 hours, and the trial court found that it was induced by police misconduct in handcuffing defendant to the wall for many hours, in not permitting normal sleeping conditions, in denying him adequate food while in custody, and in failing to honor his numerous requests that questioning cease. It then ruled that the subsequent statements, made three and four hours later, were voluntarily made, finding that “there [was] a sufficient break in time and circumstances to allow the different statements to be severed one from another.” However, the only altered circumstances noted by the trial court was the giving of clear Miranda warnings by the assistant State’s Attorney prior to taking the later statements. We note, however, that although defendant said he did not recall any prior warnings, it was the testimony of Detective Lotito that they were given to defendant on two occasions before his first statement.

The State contends “that whatever coercive influences the trial court found surrounding the defendant’s first confession simply did not exist when defendant gave the court-reported confession to Assistant State’s Attorney Franks.” Three reasons are argued by the State in support thereof: (1) that “defendant evidently was no longer handcuffed to the ring on the wall, as he had been at times before he gave the first confession”; however, there is no evidence in the record that he was not handcuffed between the confessions, other than the fact that he was not when he gave the second confession; (2) that “defendant was given two sandwiches and something to quench his thirst on the morning of the 22nd”; the record reveals, however, that while Office Lotito said his partner brought two sandwiches to defendant on the evening of the 21st, another officer said that only one bologna sandwich was given to defendant; that no one testified that defendant had eaten anything, and defendant denied that he was given any food; and (3) that during the four-hour period between the confessions “defendant was able to obtain sufficient rest ***.” There is no testimony, however, that he did, or even could have, slept during this time. To the contrary, according to the officers, he was alone during most of that time and he was handcuffed to the wall whenever he was left alone. In substance, defendant testified that he was periodically questioned during the four-hour period and could not sleep because the officers had removed all chairs from the room except one, and he was handcuffed to the wall.

Defendant also gave uncontradicted testimony that during the entire time he was at the station, which would include the period between confessions, he told the officers that he wanted to leave, that he wanted the questioning to cease, and that he wanted to speak to his lawyer. It thus appears that there was little, if any, change in the coercive circumstances found by the trial court to have induced the first statement, and it is thus our view that the State has not met its burden of overcoming the presumption that the subsequent statements were the product of the same constraints. For this reason, we believe that the trial court’s finding to the contrary is against the manifest weight of the evidence, and the oral and written statements made to the assistant State’s Attorney should have been suppressed.

Defendant further contends that the gun, keys, and bullets found as a result of those illegally obtained statements must be suppressed. He maintains that when a confession has been illegally obtained and there is established some connection between the confession and the physical evidence sought to be suppressed, the State must show “by clear and convincing evidence that the challenged evidence has come from an independent source.” (People v. Wilson (1975), 60 Ill. 2d 235, 238, 326 N.E.2d 378, 380.) In the instant case, while defendant asserts that the evidence was recovered as a direct result of his confession, it appears that he signed admittedly voluntary consents to search his apartment and the basement of the building. The first was given before his initial confession, and the other was after his confession to the assistant State’s Attorney. Following the second consent, defendant accompanied the officers and assisted them by pointing out where the items were hidden. Nevertheless, defendant argues that the items should have been suppressed because the consent to search was tainted by the improper police conduct in coercing the confession, and the police became aware of the existence and location of the evidence as a result of this confession. We note, however, that defendant does not contend that he acted involuntarily in leading the officers to the items in question, and that he did so after being informed of his rights and acknowledging his understanding of them. We believe that defendant’s voluntary actions in this regard do constitute an independent source for the evidence since, under the circumstances, the officers had no need to, and apparently did not, rely on the information obtained through defendant’s confession; in effect, defendant turned the evidence over to the police, obviating any need to search for it.

Defendant also contends that these items should have been suppressed because they were the fruit of his illegal arrest. He acknowledges that his arrest was justified by the existence of outstanding warrants, but maintains that, under section 110 — 7(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 110— 7(b)), the police were required to release him from custody when Willis appeared with bond money. Therefore, he posits, his detention beyond 6 p.m. on January 21 constituted an illegal arrest because the police had no reasonable grounds to believe that he was involved in Williams’ murder.

While defendant presents an interesting argument, we note that section 110 — 16 of the Code of Criminal Procedure of 1963 provides that “[i]f a person admitted to bail on a felony charge forfeits his bond and fails to appear in court during the 30 days immediately after such forfeiture, on being taken into custody thereafter he shall not be bailable in the case in question, unless the court finds that his absence was not for the purpose of obstructing justice or avoiding prosecution.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 16.) In the instant case, among the seven outstanding warrants on which defendant’s arrest was predicated was a bond forfeiture warrant on a charge of possession of a controlled substance, in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. par. 1402), which is a felony. Moreover, it does not appear that the finding required by section 110 — 16 was made or requested. Thus, contrary to defendant’s assertion, the police were not required to release him on bail and, since the arrest was made pursuant to a valid warrant, the State was not required to establish probable cause for his arrest.

For the foregoing reasons, defendant’s conviction, which was based at least in part on the illegally obtained confession, is reversed. In view of this holding, we need not address the remaining issue. However, we believe that there was sufficient evidence from which a trier of fact could find defendant guilty beyond a reasonable doubt, and therefore the case will be remanded for a new trial.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. HARTIGAN’S FINER FOODS, INC., Defendant (Bernard W. Hartigan et al., Defendants-Appellees).
    First District (1st Division)
    No. 83 — 1797
    Opinion filed March 26, 1984.
    Rehearing denied May 7, 1984.
    Neil F. Hartigan, Attorney General, of Chicago (David H. Peltz and Richard L. Ryan, Assistant Attorneys General, of counsel), for appellant.
    Raymond P. Carroll, of Chicago, for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The Department of Revenue of the State of Illinois (plaintiff) brought this suit against Hartigan’s Finer Foods, Inc., an Illinois corporation (corporation), and Bernard W. Hartigan and Patrick J. Hartigan (defendants), president and vice-president respectively of the corporation. Plaintiff sought judgments for recovery of unpaid retailers’ occupation taxes for May of 1978 through and including May of 1980. On February 18, 1983, the trial judge entered judgment on count I against the corporation for $97,705.09 for taxes, penalties and interest accruing to the date of entry. On count II, pertaining to the individual liability of the defendants, the trial judge entered judgment on June 28,1983, in favor of the defendants. Plaintiff has appealed.

The individual defendants operated a small grocery store in an outlying area. Commencing in September 1977, retailers’ occupation tax returns were prepared, executed and filed by the defendants in behalf of the corporation. These returns were prepared by an accountant in accordance with daily records furnished by defendants. The necessary taxes were not paid in accordance-with the law. In certain cases the returns were not filed, checks were given to the plaintiff without sufficient funds; late payment penalties were incurred and in some cases no returns were filed. Due notices of these deficiencies were sent to the corporation by plaintiff. On May 13, 1980, the corporation went out of business. It was dissolved in December of 1980.

Count II of plaintiff’s complaint sought to impose liability against the defendants on the theory that these individual defendants had complete control, supervision and responsibility for the filing of returns and that they had wilfully failed to file the returns and make the necessary payments. The pertinent statute provides (Ill. Rev. Stat. 1983, ch. 120, par. 452V2):

“Any officer or employee of any corporation subject to the provisions of this Act who has the control, supervision or responsibility of filing returns and making payment of the amount of tax herein imposed in accordance with Section 3 of this Act and who wilfully fails to file such return or to make such payment to the Department shall be personally liable for such amounts, including interest and penalties thereon, in the event that after proper proceedings for the collection of such amounts, as provided in said Act, such corporation is unable to pay such amounts to the department; and the personal liability of such officers or employees as provided herein shall survive the dissolution of the corporation.” (Emphasis added.)

At the trial on count II, defendants testified they were the majority shareholders of the corporation. They were responsible for the management, control and direction of the business. Defendants were aware of the duty of the corporation to file returns and pay taxes collected from their customers.

Defendants also testified, and it is undisputed, that the corporation in fact collected taxes from its retail customers. But, during that time, only part of the taxes thus collected were paid over to the plaintiff. Defendants testified they had made the decision to collect the tax moneys and then used these funds to pay suppliers with the hope of obtaining funds to pay the taxes. Defendants admitted they had attempted to stay in business by paying their suppliers instead of paying taxes. Defendants admitted they “made a conscious decision between May of 1978 and May of 1980 to use some of the sales tax collected to pay other creditors” of the corporation.

One of the defendants admitted he had sent the plaintiff a check which was returned by the bank because of insufficient funds. However, he testified that there actually were sufficient funds in the bank when the check was signed and mailed to plaintiff. This testimony was not rebutted by plaintiff.

In our opinion there are three pertinent authorities which we are required to consider:

In People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 277 N.E.2d 844, suit was brought to recover over $1 million in taxes which had been retained by the defendants after operation of a number of liquor stores. The individual defendants forged the name of one of their employees as part of a “contrived subterfuge to evade the liability for the tax.” (50 Ill. 2d 115, 130.) Defendants failed to remit taxes due but kept these funds commingled as their own and used the money to acquire and improve other real estate. The supreme court referred to this money as “fraudulently retained tax funds” (50 Ill. 2d 115, 132), and the conduct as “fraudulent withholding of tax funds” (50 Ill. 2d 115, 133). The court concluded the conduct of the defendants was fraudulent and wilful and was therefore a violation of the pertinent statute. In our opinion, the facts in Pintozzi portray a situation which is undoubtedly wilful and is far more reprehensible than in the instant case.

In Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 369 N.E.2d 1279, the supreme court defined the word “wilful.” The defendant there arbitrarily told his bookkeeper to treat 50% of the gross receipts from the business as sales for resale so as to avoid the tax thereon. Defendant did this despite long years of business experience. (68 Ill. 2d 568, 572.) The supreme court referred to this conduct as a “voluntary, conscious and intentional failure” to comply with the law. (68 Ill. 2d 568, 576.) The court also referred to the Federal cases which have been cited by plaintiff in the case before us. (Newsome v. United States (5th Cir. 1970), 431 F.2d 742; Monday v. United States (7th Cir. 1970), 421 F.2d 1210, cert. denied (1970), 400 U.S. 821, 27 L. Ed. 2d 48, 91 S. Ct. 38; and White v. United States (U.S. Ct. Clms. 1967), 372 F.2d 513.) The supreme court then defined “wilful” and classified the concept as an issue of fact as follows (Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 577):

“It is our opinion that a voluntary, conscious and intentional failure satisfies the requirements of ‘wilfully fail,’ as those words are used in this particular act. Whether an employee or officer knowingly, voluntarily and intentionally fails to make this payment is an issue of fact to be determined by the trier of the fact on the basis of the circumstances and evidence adduced in the particular case. Here there was ample evidence to justify a finding that the defendant wilfully failed in his statutory obligation.”

The remaining authority is Department of Revenue v. Marion Sopko, Inc. (1980), 84 Ill. App. 3d 953, 406 N.E.2d 188, appeal denied (1980), 81 Ill. 2d 590. That case cited Bublick and approved a finding by the trial court that “there was no evidence demonstrating that the defendant consciously, voluntarily, intentionally, knowingly or recklessly failed to make the appropriate retailers’ occupation tax payments.” (Department of Revenue v. Marion Sopko, Inc. (1980), 84 Ill. App. 3d 953, 955.) The court also approved a trial court finding that there was “no intentional plan to underreport the receipts of the business and that there was, in fact, no evidence establishing the cause of the deficiency.” (84 Ill. App. 3d 953, 956.) This court therefore held there was no wilful misconduct. 84 Ill. App. 3d 953, 956-57.

Predicated upon these authorities, it is clear that the issue here is one of fact for determination by the trial court. Defendants filed sworn answers to interrogatories in which they stated that the debts of the business were “paid in as best a manner to keep the business solvent ***.” It is apparent from the testimony, as pointed out by the able trial judge, that the defendants were obliged to pay their suppliers promptly in order to continue in business. Eventually defendants lost their business and were forced into receivership. Defendants anticipated reduction of the corporate tax deficit by payments from the receiver but that never materialized. No contrary testimony was offered by plaintiff.

The trial court also correctly pointed out that mere nonpayment of taxes does not constitute a wilful failure or refusal to pay the tax but that the word “wilful” requires “deliberate action.” After hearing the testimony of both of the individuals involved and after observing these witnesses, the trial court properly concluded that there was a failure on the part of the corporation and of the individuals to pay the taxes as they came due but that there was no evidence of wilful refusal.

The able trial judge also pointed out that no facts were set out in plaintiffs complaint to allege wilful misconduct. On the contrary, plaintiffs complaint alleges a pure conclusion to the effect that the individual defendants “did wilfully fail to file returns and/or tender payment of taxes ***.” The trial judge also cited Bublick and correctly differentiated it from the case at bar.

As a reviewing court, we may not interfere with findings of fact of the trial court unless we can conclude that these findings are against the manifest weight of the evidence. It is basic and fundamental that the trial judge is always in a superior position to hear the evidence and to determine its weight as well as the credibility of the witnesses. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 110, 382 N.E.2d 1205, citing Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) We cannot conclude that the result reached by the trial court is contrary to the manifest weight of the evidence.

One additional matter requires attention. The brief filed for defendants as appellees attempts to raise an issue regarding the amount of taxes due from the corporate defendant. The notice of appeal filed by plaintiff was directed solely to the subsequent judgment entered on June 28, 1983, on count II. No notice of appeal was ever filed by the corporate defendant regarding the entry of the judgment against it.

Plaintiff has made a motion to strike those portions of defendants’ brief which attempt to raise this point. That motion proceeded on the theory that no cross-appeal was filed by the corporation in connection with the within appeal. We have taken that motion with the case. In our opinion, the motion is legally sound. Accordingly, the motion of plaintiff is allowed, and those portions of the appellees’ brief which deal with the amount of tax liability herein are stricken. See Puleo v. Department of Revenue (1983), 117 Ill. App. 3d 260, 453 N.E.2d 48.

The judgment appealed from is accordingly affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE JOHNSON JUSTICE JIGANTI,

text:
    THE COUNTY OF COOK et al., Plaintiffs-Appellants, v. THE ILLINOIS DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (4th Division)
    No. 82 — 492
    Opinion filed March 15, 1984.
    Rehearing denied April 23, 1984.
    JIGANTI, J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Leonard N. Foster, Assistant State’s Attorneys, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Michal T. Prousis, Assistant Attorney General, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

This appeal is brought by the County of Cook and the Cook County Department of Corrections (Department of Corrections), seeking reversal of a circuit court ruling which confirmed a decision of the Illinois Department of Labor (Department of Labor). A complaint for administrative review was filed in the circuit court by the Department of Corrections against the Department of Labor. The circuit court held that the Department of Labor correctly decided that section 604 of the Unemployment Insurance Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 434) was the applicable provision for determining the period of ineligibility for benefits.

The issue on appeal is whether the claimants’ actions constituted misconduct or voluntary leaving of their jobs within the meaning of sections 601 and 602 of the Act (Ill. Rev. Stat. 1979, ch. 48, pars. 431, 432).

We affirm.

The defendants are the Department of Labor, four State officials in their official capacities, and 23 county correctional officers (claimants).

The summarized facts are that claimants were all employed as correctional officers at the county jail. A labor dispute arose between the claimants and the Department of Corrections. The dispute centered around demands for salary increases. On January 20, 1980, a majority of the correctional officers employed at the county jail failed to report for work. Some of the correctional officers reported that they were ill. A county investigator observed some of the claimants on picket lines outside correctional facilities in Cook County. On January 23, 1980, a circuit court judge issued a temporary restraining order against the work stoppage. On January 25, 1980, the judge ordered the correctional officers to return to work within 24 hours. They did not comply. On January 27, 1980, the county sheriff sent mailgrams to the correctional officers informing them that suspension or termination would result if they did not resume their duties by January 29, 1980.

The claimants did not return on the 29th of January. They began returning to work on January 30, 1980, at which time they were told that they were suspended, pending action by the Cook County Police and Corrections Merit Board.

The claimants thereafter applied for unemployment compensation benefits. The Department of Corrections objected on the ground that they had been guilty of misconduct and failure to report for work. Subsequently, all of the claims were consolidated for hearing by an adjudicator of the Department of Labor. The Department of Corrections asserted that the claimants were suspended for misconduct, voluntary leaving of their jobs, and other violations of departmental regulations. The parties agreed that the conduct complained of occurred between January 20 and 30,1980.

At the conclusion of the hearing, the adjudicator determined that a labor dispute had occurred between the dates of January 20 and 30, 1980, and that the claimants were ineligible for benefits only during that period. The adjudicator’s determination stated in part:

“There was a labor dispute between the Department of Corrections, under the jurisdiction of the Cook County Board, and the correctional officers, over an increase in wages. The dispute was manifested by unsuccessful negotiations, a strike in the form of a ‘sick-in’ job action and picketing. This situation resulted in a substantial disruption of the jail’s normal operations and constituted a stoppage of work under the provisions of Section 604.
This determination supersedes all other determinations that may have been previously made on the separation issue. Consequently, any determinations made under Sections 601, 602 or 603 are hereby rendered null and void.”

The Department of Corrections appealed from the adjudicator’s ruling and contended that the claimants had been guilty of misconduct and had voluntarily left their jobs; therefore, they should be found ineligible for compensation indefinitely instead of only for the 10-day period determined by the adjudicator. Hearings on the appeal were held before a representative of the Director of the Department of Labor (the Director). Following those hearings, the Director’s representative recommended that the adjudicator’s determination be adopted. The Department of Corrections objected to the representative’s recommendation, contending that the determination was made under the wrong statutory provision and, once again, asserting that the claimants were guilty of misconduct and had voluntarily left their jobs.

On August 12, 1980, the Director adopted his representative’s recommendation as the official determination of the Department of Labor. The Department of Corrections then filed a complaint for administrative review in the circuit court of Cook County. On February 2, 1982, the circuit court confirmed the decision of the Department of Labor and this appeal followed.

The Department of Corrections contends that there was more than one basis for disqualifying the claimants from benefits; therefore, the Department of Labor as well as the circuit court erred in applying only section 604 of the Act in determining that the claimants were ineligible for benefits only during the period from January 20 to 30, 1980. Sections 601 and 602 should have been applied because the claimants voluntarily left their jobs within the meaning of section 601(A) of the Act and participation in the strike was misconduct within the meaning of section 602(A) of the Act. Furthermore, a labor dispute involving correctional officers is unlike disputes between employers and employees in the private sector, and whether there was misconduct is a question of fact. Therefore, the Department of Labor was obligated to hold individual hearings for each claimant charged with misconduct or voluntarily leaving his job.

As noted, the parties agreed that the conduct in question occurred between January 20 and 30, 1980. However, the claimants deny that their actions constituted misconduct and voluntary leaving of their jobs. Instead, they assert that they were involved in a labor dispute and that section 604 of the Act governs the determination of whether they were eligible for benefits after January 30, 1980, when the labor dispute ended. Further, the Department of Labor’s administrative review process showed concurrence with the claimants’ assertion.

Section 601(A) of the Act states in pertinent part:

“Sec. 601. Voluntary leaving. A. An individual who has been paid wages within each of at least 3 calendar quarters of his base period for insured work shall be ineligible for benefits for the week in which he has left work voluntarily without good cause and, thereafter, until whichever of the following shall first occur: (1) He has accepted bona fide work and earned remuneration for such work equal to at least 6 times his current weekly benefit amount; or (2) 12 consecutive weeks have elapsed which begin on the first day of the first week with respect to which he has filed a claim.” Ill. Rev. Stat. 1979, ch. 48, par. 431.

We agree with the Department of Labor that on the facts presented in this case it cannot be said that the actions of the claimants constituted a voluntary leaving without good cause within the meaning of section 601(A). What occurred here does not constitute a severance of the employment relationship as contemplated by the statute.

Similarly, we reject the Department of Corrections’ contention that section 602 of the Act should have been applied because the claimants’ actions amounted to misconduct. Section 602(A) (Ill. Rev. Stat. 1979, ch. 48, par. 432) states in pertinent part:

“Sec. 602. Discharge for misconduct — Felony. A. An individual who has been paid wages within each of at least 3 calendar
quarters of his base period for insured work shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work and, thereafter, until whichever of the following shall first occur: (1) He has accepted bona fide work and earned remuneration for such work equal to at least 5 times his current weekly benefit amount; or (2) 10 consecutive weeks have elapsed which begin on the first day of the first week with respect to which he has filed a claim.”

In order to accept the Department of Corrections’ argument for applying section 602(A), a determination of who was at fault would have to have been made by the adjudicator or the Director’s representative. The statutory provision governing eligibility for benefits does not contemplate assignment of fault. The Department of Labor must remain neutral in determining eligibility for benefits when a labor dispute is involved. See Local 7 — 64.1 v. Department of Labor (1983), 96 Ill. 2d 94, 449 N.E.2d 134; Buchholz v. Cummins (1955), 6 Ill. 2d 382,128 N.E.2d 900.

Further, although the Department of Corrections charges the claimants with misconduct and voluntary leaving of their jobs, there is no explanation and the record does not disclose exactly what acts of misconduct were committed within the meaning of section 602.

As the Department of Labor points out, a labor dispute cannot qualify as “misconduct” or “voluntary leaving” simply because the employer chose to label it as such. We do not believe that mere participation in a strike constitutes misconduct within the meaning of the Act. Under section 604 of the Act, the claimants are ineligible for unemployment benefits during the dispute. However, once the dispute has ended, the claimants regain their eligibility. In this case, the dispute lasted from January 20 to 30, 1980, when the claimants returned to work. The hearings before the Department of Labor determined that the dispute ended on January 30, the same day that the claimants were suspended. They were therefore eligible for benefits after that date.

The argument offered by the Department of Corrections suggests that although the claimants are disqualified from eligibility for benefits during the pendency of the labor dispute, they are also disqualified under sections 601(A) and 602(A) after the dispute.

We agree with the Department of Labor that to reach this conclusion necessarily requires adjudication of the merits of the dispute. Such would undermine the principle of governmental neutrality which has consistently been applied. See Buchholz v. Cummins (1955), 6 Ill. 2d 382,128 N.E.2d 900.

Under section 604, the claimants are only ineligible for benefits while the labor dispute continues. They become eligible once it ends. The term, “ ‘labor dispute’ ” is defined as “ ‘any controversy concerning wages, hours, working conditions or terms of employment.’ ” Local 7 — 641 v. Department of Labor (1983), 96 Ill. 2d 94, 98, 449 N.E.2d 134, 136.

The instant situation clearly fits this definition. Thus, the Department of Labor correctly found, and the circuit court properly confirmed, that there was a labor dispute and that the claimants were ineligible for benefits only during the period of the dispute. Further, there was no misconduct and voluntary leaving as asserted by the Department of Corrections; therefore, sections 601 and 602 of the Act were inapplicable and section 604 was properly applied in making the determination of eligibility.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LINN, P.J., concurs.

JUSTICE JIGANTI,

dissenting:

There are a number of ways in which an employee may be barred from receiving unemployment compensation under the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 300 et seq.). Three of these disqualifications are when the employee is guilty of misconduct (Ill. Rev. Stat. 1979, ch. 48, par. 432); when he voluntarily leaves his employment (Ill. Rev. Stat. 1979, ch. 48, par. 431); and when he is involved in a labor dispute (Ill. Rev. Stat. 1979, ch. 48, par. 434). No one disputes the finding of the Department of Labor that a labor dispute existed between January 20 and January 30; therefore unemployment compensation benefits were not payable for that period.

The employees were subsequently suspended for their actions, and they sought benefits. The Department of Corrections contended that the employees were guilty of misconduct and of voluntary leaving during the labor dispute within the meaning of the act, which consequently bars them from receiving benefits. Specifically, the Department of Corrections contends that, as to misconduct, failing to report created an emergency situation in which there was a potential for destruction of property and loss of life. This has consistently been the Department’s contention since the inception of this case. However, its contentions were never considered. The hearing officer only considered whether there was a labor dispute. In my judgment the Department of Corrections is entitled to a hearing as to whether there was misconduct and voluntary leaving.

It appears self-evident that misconduct is not forgiven simply because it arises during the course of a labor dispute. (Linski v. Appeal Board (1959), 358 Mich. 239, 99 N.W.2d 582.) If the employees here jeopardized lives and property, this fact should be considered to see if the employees’ actions rise to the level of misconduct as contemplated by the statute.

The confusion in this case seems to center around the fact that the evidence before the Department of Labor was that the employees failed to report to work. The majority begs the question when it characterizes what occurred as “mere participation in a strike.” The question is whether this was mere participation in a strike. If so, the employees may be subject to discharge under a collective bargaining agreement or under their rules but still may not be guilty of misconduct as contemplated in the statute. However, the charges by the county here are more serious. It contends that by striking, the employees jeopardized lives and property. Conduct which causes danger to either fellow employees or the community may be misconduct. In Granite City Steel Division v. Board of Review (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931, appeal denied (1979), 75 Ill. 2d 590, the employee removed a red warning tag from a large piece of machinery and activated the power switch. The employee was aware of the potential danger to the lives of employees and to the property of the employer. This was found to be misconduct. Similarly, the facts here may demonstrate that the employees’ conduct jeopardized both lives and property.

The Department of Corrections was entitled to present evidence of misconduct and voluntary leaving. These cases must be determined on their individual facts. (Jackson v. Board of Review (1984), 121 Ill. App. 3d 963.) I would reverse the matter and remand it to the Department of Labor for a hearing on the allegations raised by the Department of Corrections.


text:
    JORDAN TARK, Plaintiff-Appellee, v. SHEARSON/AMERICAN EXPRESS, INC., Defendant-Appellant.
    First District (1st Division)
    No. 83 — 1744
    Opinion filed March 19, 1984.
    Rehearing denied May 7, 1984.

      Thomas M. Knepper, Ltd., of Chicago (Thomas M. Knepper, of counsel), for appellant.
    Boorstein, Freed, Zelechowski & Cohn, of Chicago (Leon Zelechowski and Robert Blecher, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Jordan Tark (plaintiff) brought this action against Shearson/American Express, Inc. (defendant) for negligent misrepresentation. A jury found for plaintiff and awarded him $65,000. Defendant’s post-trial motion was denied. Defendant appeals.

Defendant is a securities broker-dealer and commodity futures commission merchant. At all times relevant to this litigation, plaintiff was a trader of securities and commodity futures contracts. Prior to 1976 plaintiff established an account with defendant through which plaintiff traded securities. In 1976 plaintiff also opened a commodities margin account with defendant.

Under the customer agreement contract executed when the commodities account was established, defendant had discretion in determining how much cash plaintiff must keep in the account to secure the commodity futures contracts held therein. Defendant could, and did, increase the cash margin requirements on a daily basis. Defendant based its determination on the daily fluctuation of the price of commodities and its effect on the value of the futures contracts held in plaintiff’s account.

In September of 1976, plaintiff began to trade cotton futures contracts through his account with defendant. In consultations with a broker employed by defendant, plaintiff developed a strategy of being “long” on cotton contracts. This was plaintiff’s goal or objective. Under such a strategy, plaintiff would buy more cotton contracts than he would sell. This was based on the theory that the long-term price of cotton would rise. By December 31, 1976, plaintiff was long 18 cotton futures contracts in his account with defendant.

From December 1976 through January 1977 the price of cotton exhibited a steep decline. On January 4, 1977, plaintiff instructed his broker, employed by defendant, to sell securities owned by plaintiff and put the proceeds into plaintiff’s account to secure his long position in cotton. The securities were sold and the proceeds credited to plaintiff’s account on January 5, 1977. Plaintiff testified the broker told him that when he gave the broker an order to sell stock, plaintiff would “get next-day credit for the proceeds of that stock into the commodity account.”

Also on January 5, 1977, plaintiff ordered the broker to sell securities which were held in plaintiff’s securities account with defendant and to transfer the proceeds into plaintiff’s commodities account. Proceeds of this sale were promptly credited to plaintiff’s commodities account. Also on January 7, 1977, plaintiff ordered defendant to sell the remaining securities in his securities account and transfer the proceeds to his commodities account.

The price of cotton futures continued to fall. On January 12, 1977, plaintiff’s broker informed plaintiff that plaintiff was short of margin. The broker demanded plaintiff deposit $16,000 in his commodities account. To meet this margin call, plaintiff sold six of his “long” cotton contracts, and bought four “short” contracts. Because the price of cotton was then currently in decline, the fact that plaintiff was short on some cotton contracts acted to reduce the cash required to meet defendant’s margin call.

On the morning of January 13, 1977, the broker informed plaintiff the liquidated cash value of plaintiff’s commodities account was then only about $2,900. Plaintiff had already liquidated all of his securities and did not want to infuse more cash into his commodities account. Plaintiff therefore ordered defendant to liquidate all his contracts in the commodities account.

At about 12:30 p.m. on that same date, the broker informed plaintiff that an additional $16,000 had been “found” in plaintiff’s commodities account, apparently from the sale of securities plaintiff had ordered on January 7. The broker attempted to salvage the contracts plaintiff had previously ordered liquidated. However, these long positions were already sold. The agent was only able to salvage plaintiff’s four short contracts. Such a position would be advantageous to plaintiff only if the long-term price of cotton would fall.

On that same day, January 13, 1977, plaintiff informed the broker he was upset because defendant’s actions resulted in plaintiff being short in the cotton market when his strategy was to be long on cotton. Plaintiff asked the broker what the management was going to do about it. Plaintiff did not specifically ask defendant to reinstate his previous positions in cotton. The broker told plaintiff he did not know what “they” would do about the situation but he said he would inform his superiors. Plaintiff talked to the broker almost every day from January 14, 1977, to January 25, 1977. The broker could not give plaintiff a definitive answer as to defendant’s intentions regarding the situation.

On or about January 25, plaintiff met with defendant’s regional manager. Plaintiff testified, “I did all the talking.” After the meeting, plaintiff was under the impression “absolutely nothing [was] going to be done.” Plaintiff wrote and hand delivered a lengthy letter to defendant dated January 25, 1977. Plaintiff informed defendant that plaintiff intended to recoup his losses through litigation. Plaintiff also outlined the trades plaintiff would have made had his positions not been liquidated by defendant on January 12.

Defendant concedes that if the proceeds of the sale of securities which plaintiff ordered sold on January 7 had been properly credited to plaintiff’s commodities account, defendant would not have issued the $16,000 margin call of January 12. Defendant also concedes the evidence adduced at trial is sufficient to support a finding that defendant’s conduct was negligent. Thus the remaining basic issue is the question of determination of the damages due plaintiff. The parties do not agree upon the proper measure of damages.

Plaintiff takes the position he should recover his actual out-of-pocket losses. Plaintiff submitted evidence that his actual losses from the inaccurate information given to him by defendant were in the neighborhood of $90,000. Plaintiff offered in evidence, and the trial court received, a statement prepared by defendant showing amounts charged and credited to plaintiff for the month of January commencing with January 12, 1977. These figures show losses of about $90,000. This is apparently accurate since it appears from a document prepared by defendant and supported by testimony of an agent of defendant in open court.

In instructing the jury, the trial court gave an instruction submitted by plaintiff which modifies Illinois Pattern Jury Instruction (IPI), Civil, No. 30.01 (2d ed. 1971). This instruction reads:

“If you decide for plaintiff on the question of liability, you must then fix the amount of damages which will reasonably and fairly compensate him for the losses plaintiff sustained as a result of defendant’s negligence.”

Defendant objected to this measure of damages instruction submitted by plaintiff. Defendant offered an instruction combined with a question for submission to the jury, both of which were rejected by the trial judge:

“If you decide for the plaintiff on the question of liability, then the amount of damages which will reasonably and fairly compensate him will be determined by the court, as a matter of law, based upon your answer to the question which accompanies the form for a verdict in favor of plaintiff.

In determining the answer to that question, you must take into consideration the following factors:

1. The plaintiff’s commodity trading experience and capabilities;

2. The plaintiff’s financial resources;

3. The conduct, if any, of the defendant, which relates to restoration of the positions, and;

4. The nature of the cotton futures market.

The question asks you to identify the date during January, 1977, not later than which plaintiff should have taken action to

restore his desired long and short cotton positions.

* * *

We, the Jury, find for the plaintiff and against the defendant.

QUESTION

Assume that plaintiff desired to maintain some or all of the positions liquidated in his account on January 12 or 13, 1977. In the exercise of ordinary care to minimize damages, what is the date not later than which he should have given an order to Shearson or some other commodities broker, directing that liquidated positions be reestablished?

_, 1977.”

We agree with the able and experienced trial judge in rejecting defendant’s tendered instruction. The trial judge stated it was difficult to understand the question which defendant wished to put to the jury. In addition, this instruction in effect amounted to a directed verdict in favor of defendant because it would require plaintiff to repurchase each and all of his holdings which were liquidated by defendant. Also the instruction provided for the trial court to determine plaintiff's damages “as a matter of law ***.”

In considering the measure of damages, we wish to make it clear that the record shows no evidence of wilful misconduct by the defendant or its agents. We are dealing here with a simple negligent error such as could happen during operation of any business. However, plaintiff is entirely without fault, and he was simply led far astray by the mistaken information given to him by the broker. Undoubtedly plaintiff acted in reliance upon the erroneous impression he had thus received. As a result plaintiff suffered losses for which he should be properly compensated.

The operation of a commodities exchange and the activities resulting therefrom are simply a refined form of gambling. Thus, as negligent acts are unavoidable, it should be reasonably anticipated that losses of various kinds occur. Thus, courts have adopted diverse methods of fixing the measure of damages. As we would expect, the cases differ widely in formulating the measure of damage depending upon the varied factual backgrounds in the particular litigation before the court. Compare Schultz v. Commodity Futures Trading Com. (2d Cir. 1983), 716 F.2d 136, 140-41; Chipser v. Kohlmeyer & Co. (5th Cir. 1979), 600 F.2d 1061, 1068; Letson v. Dean Witter Reynolds, Inc. (N.D. Cal. 1982), 532 F. Supp. 500, 503-04; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Miller (Tex. Civ. App. 1966), 401 S.W.2d 645, 649-50; and Rice v. Price (1960), 340 Mass. 502,164 N.E.2d 891.

Relying principally upon Letson, defendant argues plaintiff is not entitled to any damages because his failures to repurchase his long cotton positions or to order defendant to reinstate his positions constitute a decision not to reenter the market as a matter of law. We believe the jury could have made the factual determination that plaintiff did not make a conscious decision to abandon his “long” trading strategy, from his testimony and the letter plaintiff wrote and delivered to defendant on January 25, 1977, as shown above. The “injured party is not actually required to reenter the market” to determine if and when he might have done so. Schultz v. Commodity Futures Trading Com. (2d Cir. 1983), 716 F.2d 136, 140.

As above shown, in the instant case, the instructions submitted by defendant in this regard were definitely not acceptable. The above given instruction, presented by plaintiff, is simple, clear and succinct and very close to the form suggested in the IPI. In our opinion, the careful trial judge had no alternative but to adopt the instruction tendered by plaintiff. “Generally, the trial court is under no obligation either to give jury instructions not requested by counsel or to rewrite instructions tendered by counsel.” People v. Underwood (1978), 72 Ill. 2d 124, 129, 378 N.E.2d 513.

The plaintiff fixed his losses from defendant’s records as being in the neighborhood of $90,000. The jury returned a verdict of $65,000. No person, aside from the jurors themselves, will ever know the exact rationale of this reduction in the liability of defendant. For example, the record submitted by defendant contained various figures indicating credits in the approximate amount of $20,000 to plaintiff’s account. The jury may conceivably have reduced the amount due plaintiff by these sums. In any event, it seems to us that the verdict of the jury is not unfair or unreasonable and it comports with the evidence. (See Kosch v. Monroe (1982), 104 Ill. App. 3d 1085, 1096, 433 N.E.2d 1062, citing Hartigan v. Robertson (1980), 87 Ill. App. 3d 732, 739, 409 N.E.2d 366, and cases there cited.) We find no error in this regard.

Defendant urges it was the duty of plaintiff to mitigate his loses and also that the trial judge should have entered a remittitur. In fact, the amount of the losses could not have been reduced by plaintiff and the amount testified to came directly from the records kept by defendant. It is clear that the verdict, being in the amount of $65,000, was in effect a remittitur or a reduction of liability accomplished by the jury. The jury saw and heard all of the witnesses and heard the final arguments of counsel. After receiving the instructions of the court, and having had a lengthy deliberation they decided that plaintiff’s recovery should be reduced and they acted accordingly. In any event, as above shown, this difference between the amount of damages proved and that awarded by the jury does not require us to reject the verdict.

Defendant urges that the trial court received incompetent evidence which plaintiff wrongfully emphasized by improper closing argument. On redirect examination plaintiff asked defendant to explain the amount of plaintiff’s net worth. Plaintiff made a brief statement by way of response and also added he would have been unable to ask for a loan secured by certain family stock because his father would not consent. Defendant objected only to “the latter portion” of this statement. The trial court overruled defendant’s objection. No objection was made by defendant to the question or to the brief direct answer thereto.

It is correct that plaintiff mentioned the net worth portion of this testimony in closing argument. However, no objection was made by defendant to this argument. This contention was therefore waived. (Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 302, 356 N.E.2d 42.) For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.