author: JUSTICE SCHNAKE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY LOVINGER, Defendant-Appellant.
    Second District
    No. 83—330
    Opinion filed January 17, 1985.
    Robert P. Will, Jr., of Waukegan, and Mary Robinson, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marlene V. Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This is an interlocutory appeal by the defendant, Jeffrey Lovinger, under Supreme Court Rule 604(f) (94 Ill. 2d R. 604(f)), from an order of the circuit court of Lake County, denying his motion to dismiss the charges against him based on former jeopardy.

The defendant was originally charged by information with the following three illegal drug deliveries: (1) October 15, 1979, delivery of less than 30 grams of a substance containing cocaine (Class 2 felony) (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(b)); (2) October 16, 1979, delivery of 30 grams or more of a substance containing cocaine (Class X felony) (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(a)(2)); and (3) October 16, 1979, delivery of more than 2.5 but not more than 10 grams of a substance containing cannabis (Class A misdemeanor) (Ill. Rev. Stat. 1979, ch. 56V2, par. 705(b)). The case proceeded to a bench trial, and the trial judge declared a mistrial on his own motion during the State’s case in chief. The case was then assigned to another judge, who denied the defendant’s motion to dismiss based on former jeopardy. A detailed statement of the proceedings at trial is essential to an exploration of the issue of double jeopardy.

The defendant, Jeffrey Lovinger, was arrested on October 16, 1979, and was subsequently charged by information with delivering cocaine to an undercover police officer named Paula Riccio on October 15, 1979, and delivering cocaine and cannabis to Riccio on the following day.

On September 7, 1982, prior to trial, an order was entered on the defendant’s motion, requiring that “the evidence” in the case be transported to a laboratory in Glen Ellyn, and that “a portion of said evidence be analyzed [by the defendant’s expert] in the presence of a chemist from the Northern Illinois Police Crime Laboratory.” As explained hereinafter, it became apparent at trial that this order was not complied with.

The matter proceeded to a bench trial on November 3, 1982. On that date the defendant filed his response to the court’s earlier order for discovery, indicating his intention to raise the defense of entrapment.

Paula Lemke, formerly Riccio, the undercover police officer named in the information, testified for the State about the deliveries on October 15 and 16, and about her part of the chain of custody regarding the alleged controlled substances. According to Lemke, the delivery on October 15 was made in Lovinger’s car which was parked in the parking lot of Goodman’s Restaurant in Highland Park. She and Lovinger had just lunched together in the restaurant. They had previously arranged to meet at Goodman’s in order to consummate the drug transaction. The delivery on October 16 took place in Lovinger’s apartment in Waukegan. Arrangements for this transaction were made during the earlier delivery at Goodman’s and in subsequent telephone conversations. Immediately after the transaction on October 16, Lovinger was arrested along with a codefendant not involved in this appeal, Stanley Blackowicz. The purported cocaine delivered on October 15 was contained in a plastic bag identified by Lemke as part of People’s exhibit No. 1. The purported cocaine delivered on October 16 was contained in three plastic bags which she identified as People’s exhibits Nos. 2A, 2B and 2C. The alleged marijuana delivered on October 16 was contained in a plastic bag which was part of People’s exhibit No. 3.

During cross-examination of Lemke, it became apparent that the court’s order of September 7, 1982, regarding analysis of the evidence by the defendant’s expert, had not been carried out. The expert would not analyze the evidence in the presence of a chemist from the crime lab, apparently because he wanted to dry the substances overnight to determine their weight accurately. Subsequently, without any modification of the prior court order regarding analysis of the evidence by the defendant’s expert, samples from the exhibits were taken to the defendant’s expert and tested. Lemke testified, however, concerning the purported cocaine delivered on October 16, that the sample was taken from only one of the three plastic bags. On motion of the defendant the bench trial was continued so that the defendant’s expert could analyze the substance in the other two plastic bags.

The bench trial resumed on Monday, January 31, 1983, and continued all that week and the first two days of the next. Lemke’s cross-examination included questions about two other deliveries of purported cocaine by Lovinger to her on October 5 and 10, 1979. Presumably, these transactions were brought up by the defense with a view toward the anticipated entrapment defense. The purported cocaine delivered on October 5 and 10 was identified by Lemke as part of People’s exhibit Nos. 4 and 5, respectively.

Other police officers testified about surveillance they conducted at the scenes of the transactions, the arrest of Lovinger and Blackowicz after the transaction on October 16, during which Blackowicz was observed trying to flush down the toilet the money Lemke paid for the substances, and the chain of custody concerning the exhibits. The State’s chemist testified about his analysis of the evidence, and his findings supported the charges against the defendant. Most of the eight days of trial were spent on chain of custody.

During the direct examination of Officer Hutchings, evidence officer for the Waukegan police department, a discrepancy developed regarding the chain of custody of People’s exhibit No. 1, the substance allegedly delivered on October 15. The court called a recess so that the prosecutor could “get [his] act together.”

Following the recess, defense counsel informed the court that during the recess the prosecutor and the witness had been passing papers back and forth between them and had appeared to be discussing the case. Defense counsel stated that the prosecutor did not have a right to discuss the witness’ testimony with him during a recess taken during said testimony. Defense counsel suggested that “the remaining testimony by this witness will have been tainted by the discussion.”

The prosecutor told the court that he did not tell Hutchings how to testify. In fact, he advised, he told Hutchings they could not discuss his testimony. The prosecutor simply asked for Hutchings’ records, reviewed them, and asked Hutchings to review his records and to testify from memory.

The judge then stated that it was improper for the prosecutor to talk with his witness during the recess, but that any error was harmless because Hutchings had been referring to his records throughout his testimony. The judge concluded his remarks by saying, “[Tjhere will be no further conversation, and if there is a motion for mistrial, that motion is denied.” Defense counsel then moved to have Hutchings’ testimony stricken, and to bar Hutchings from testifying further. When these motions were denied, defense counsel moved for a mistrial, which motion was also denied, and Hutchings’ testimony continued. Prior to an overnight recess during his direct examination, the court admonished Hutchings not to discuss his testimony with any lawyers or anyone else because “we don’t want any mistrial to occur.”

Part of Hutchings’ cross-examination concerned the method by which evidence was generally processed at the Waukegan police department. Hutchings testified as follows: There are evidence lockers located outside the booking room. Each locker has two keys, one kept in Hutchings’ office, and the other kept in the locks of the lockers. When an officer seizes evidence, he places it in one of the lockers which he then locks. The officer then places the key through a slot into another locker which is kept locked. Hutchings keeps both keys for that locker. When Hutchings gets to work in the morning, he opens the locker with the keys, and then uses those keys to retrieve the evidence out of the other lockers. He then takes the evidence to his office. On redirect examination Hutchings stated, among other things, that it is possible for an officer to keep the key once he has placed evidence in a locker. Under those circumstances, Hutchings does not take the evidence out of that locker and into his office.

The State’s next witness was Officer Bowden, who testified about the surveillance he conducted on the transactions on October 15 and 16, and about his part of the chain of custody of the physical evidence. During his direct examination he testified that he had handled the substances delivered on October 5, 10, 15, and 16, and in each case he received the evidence from Lemke and locked it in one of the evidence lockers described by Hutchings. Bowden, however, kept the key. He did not place it in the locker with the slot for keys described by Hutchings. In each case Bowden subsequently retrieved the evidence from the locker himself and gave it to the next person in the chain of custody. Regarding the purported cocaine delivered on October 10, Bowden testified that he received it from Lemke and locked it in an evidence locker on October 10. On the following day he retrieved it and turned it over to Hutchings. (Hutchings had previously testified that Bowden gave that evidence to him on October 10.) The prosecutor then asked Bowden, “When did you turn it over to Officer Hutchings?” and Bowden replied that he thought it was the following day, but he would have to see his records to be sure. When the prosecutor asked him if there was anything that would refresh his recollection, defense counsel objected. The court told the prosecutor not to correct the witness and called a recess, stating “You [presumably Officer Bowden] don’t talk with them [presumably the lawyers]. They don’t talk with you about this case. Again, I’m going to advise, let’s get everything in order.”

Following the recess, defense counsel stated to the judge, “[0]nce again I am informed that [the prosecutor] has been talking to a witness.” The judge asked the prosecutor if he had talked to Bowden, and the prosecutor first replied, “Not about this case, no.” He subsequently told the judge that “[t]he only thing I said to him was, ‘Do you have any police report on the 5th or 10th.’ ” During the recess, defense counsel had asked the prosecutor for the police reports concerning those dates. The prosecutor told the judge that he did not talk to Bowden about his testimony.

When Bowden entered the courtroom, the judge asked him if the prosecutor had talked with him during the recess. Bowden first told the court that he had not, and then said, “I told him that I wasn’t pleased with the fact I was getting my butt chewed out. But that was it.”

The defendant then testified to a third version of the conversation. He said that during the recess he overheard the prosecutor ask Bowden if he wrote any police reports concerning the 5th and 10th of October. Bowden replied that he was not sure whether he did or not. Lovinger subsequently heard something about the key to the evidence locker. Defense counsel had stated earlier that Lovinger told him that the prosecutor asked Bowden why he did not “follow the procedure with respect to that key,” and that Bowden replied that he was “not supposed to use that key.”

The court then asked the prosecutor to let him see the police reports from October 5 and 10, and the prosecutor replied that he did not have them. The court then ordered him to get the reports and called a recess.

Following the recess, the judge declared a mistrial on his own motion, stating:

“Gentlemen, at this time I want to put something on the record. I have not been satisfied with the way this case has been presented. First, I call to the attention of everybody in this courtroom that because of the laxity of the prior State’s Attorney and his administration, there was nothing done to resolve this cause of action before a jury or bench trial because of the fact that this matter had occurred in 1979.
Secondly, I am concerned about the lack of discovery afforded the defense, pursuant to court order of Judge Doran, and even of this court.
Third, there was a failure to fully comply with the orders of the Court during trial regarding discovery. For example, I point out to my order of September 7th and the fact that a witness in this cause did remove portions from Group Exhibit No. 2, for identification, when I had ordered all of the exhibits to be taken to the defense chemist for purpose of analysis, pursuant to the order of discovery.
Fourth, I am very much concerned about what occurred early this afternoon in this courtroom. And this can be classified as either direct or indirect contempt, and I’m not going into that phase of it. Because of the talking about a pending matter with a witness who says he did not talk with the Assistant State’s Attorney, and the Assistant State’s Attorney saying to me that he did not talk with the witness, except for request by Bob Will, representing the Defendant, and then you changing your conversation after Lovinger under oath indicated certain things. And then you said something else contrary, and it’s all on the record.
At this point in the trial, it is questionable, and I doubt whether discovery has been completed by the State to the defense.
And further it has been disclosed by the witness on the stand, when he said, T told him I was not pleased with the fact I was getting my butt chewed out, but that was it.’
I, as the Court, am wholly unaware of any—I’m sorry. I am only aware of a reprimand by anyone except my admonition to the witness, to the defense and to the Assistant State’s Attorney, not to discuss this case with anyone. And prior to I continuing this matter this morning, I said, T am going to continue this case to 1:30. You don’t talk with them; they don’t talk with you about this case. Again, I’m going to advise, let’s get everything in order.’
I feel error has crept into this trial and it can only be resolved by me declaring a mistrial, which I so order, and I recuse myself from this case, and I order you to appoint another judge. Call the Clerk. And the only other judge that will not take this is Strouse, because he had recused himself before. And after it is assigned to another judge, I instruct you to go to the other judge and let him set it for trial. Bond is continued.”

This statement of the judge concluded the hearing on that date.

The defendant subsequently filed a motion to dismiss based on former jeopardy. During argument on the motion defense counsel stated that he had received the police reports relating to October 5 and 10 prior to the mistrial declaration. When the judge declared the mistrial, as he made his final comments, he was “getting up and walking out the door, and that’s the end of the proceedings, and that’s how it terminated.”

The judge to whom the matter was reassigned denied the defendant’s motion to dismiss, found that there was a “manifest necessity” for the mistrial declaration, explaining, “The overriding thing of the trial judge, it appears to this court, is the fact of concern of error creeping into the record. This is repeated. An error, of course, would destroy a fair trial.”

In his motion to dismiss because of former jeopardy, the defendant relied on the double jeopardy clause of the Federal Constitution, article I, section 10 of the Illinois Constitution, and section 3—4(a)(3) of the Criminal Code of 1961.

The Federal constitutional provision provides, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.) This provision is applicable to criminal proceedings in State courts. Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056.

Article I, section 10 of the Illinois Constitution provides, in pertinent part, “No person shall *** be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, sec. 10.

Section 3—4(a)(3) of the Criminal Code of 1961 provides, in pertinent part:

“A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(3) Was terminated improperly ***, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts ***.” Ill. Rev. Stat. 1983, ch. 38, par. 3—4(a)(3).

On appeal the defendant bases his argument on the principles of double jeopardy as set forth in case law without making any distinctions between the provisions set forth above, presumably because there are none of any legal significance for purposes of this case.

The constitutional protection against double jeopardy includes the defendant’s “valued right to have his trial completed by a particular tribunal ***.” (Wade v. Hunter (1949), 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) This right, however, is not absolute and “must in some instances be subordinated to the public’s interest in fair trials designed to end unjust judgments.” (Wade v. Hunter (1949), 336 U.S. 684, 689, 93 L. Ed. 974, 978, 69 S. Ct. 834, 837.) The standard for determining whether a defendant may be retried following declaration of a mistrial over his objection is whether there was a “manifest necessity” for the mistrial declaration. (Arizona v. Washington (1978), 434 U.S. 497, 54 L. Ed. 2d 717, 98 S. Ct. 824.) This standard “abjures the application of any mechanical formula by which to judge the propriety of declaring a mistrial in the varying and often unique situations arising during the course of a criminal trial.” (Illinois v. Somerville (1973), 410 U.S. 458, 462, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069.) As a general matter, however, a trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. (Illinois v. Somerville (1973), 410 U.S. 458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070.) If the problem giving rise to the mistrial declaration could have been adequately corrected short of aborting the proceeding, however, the standard of “manifest necessity” has not been met, and retrial is barred. People v. Phillips (1975), 29 Ill. App. 3d 529, 331 N.E.2d 163.

Where a defendant asks for or consents to the declaration of a mistrial, different principles come into play. (Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083; People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 387 N.E.2d 325, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) Under such circumstances, retrial is barred only if the conduct giving rise to the mistrial declaration was intended to provoke a mistrial. Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091.

The defendant in the instant case argues that he did not consent to the mistrial and that there was no manifest necessity for the mistrial declaration, because the concerns cited by the trial judge when he declared the mistrial either had been or could have been adequately corrected with less drastic means.

The State, however, referring to the motion for mistrial made by the defendant during Hutchings’ testimony (which motion was denied), and the defendant’s failure to object when the judge declared the mistrial, maintains that the defendant consented to the mistrial declaration. The State also argues that the conduct of the prosecutor which caused the mistrial declaration was not intended to provoke a mistrial. Alternatively, the State contends that if the defendant did not consent to a mistrial, it was justified under the manifest-necessity standard.

In reply, the defendant maintains that silence in the face of a sua sponte declaration of mistrial by the court does not constitute consent. He maintains that he had no real opportunity to object because the judge “physically left the bench as he uttered those orders.” Alternatively, he maintains that, if he did consent, retrial should be barred anyway because the prosecutor’s conduct, in speaking to the witness Bowden during the recess, was intended to provoke a mistrial so that the State would have another opportunity to try the case.

The parties have not cited, nor do we find, any Illinois cases on the question of whether a defendant’s mere silence or failure to object amounts to consent to a mistrial declared on the court’s motion, such that retrial is not barred absent prosecutorial or judicial conduct intended to provoke the mistrial. (See People v. Bean (1975), 26 Ill. App. 3d 1090, 325 N.E.2d 679, aff'd on other grounds (1976), 64 Ill. 2d 123, 355 N.E.2d 17.) There appears to be a split of authority on this question in other jurisdictions. (Annot., 63 A.L.R.2d 782 (1959).) Failure to object would not amount to consent where there is no opportunity to interpose an objection. See United States v. Jorn (1971), 400 U.S. 470, 487, 27 L. Ed. 2d 543, 557-80, 91 S. Ct. 547, 558.

In this case, however, there was more than silence on the part of the defendant. He had previously requested a mistrial when the prosecutor spoke to one of his witnesses, Officer Hutchings, about chain of custody during a recess taken during Hutchings’ testimony. At that time defense counsel maintained that “the remaining testimony by this witness will have been tainted by the discussion.” Although that motion was denied, it was again defense counsel who, following a recess taken during Officer Bowden’s testimony, brought to the court’s attention that “once again *** [the prosecutor] has been talking to a witness [about chain of custody].” This discussion during the recess was one of the principal reasons for the court’s sua sponte declaration of a mistrial. Under such circumstances, there are cases, not cited by the parties, that suggest that failure to object does amount to consent.

The case most similar to that before us is People v. Montlake (1918), 184 App. Div. 578, 172 N.Y.S. 102. There the defendants were charged with grand larceny in the first degree. A first trial ended in a mistrial because the prosecutor referred to defense counsel as the attorney for the “pickpocket trust” and a pickpocket himself. On the first occasion of such remarks, the defendants moved for a mistrial, which motion was denied, and the defendants excepted. On the second occasion they protested the remarks but did not move for a mistrial. On the third and final occasion, which was more flagrant than the others, the court declared a mistrial on its own motion without objection by the defense. The reviewing court concluded that the mistrial was declared with the defendant’s consent, stating:

“I think that [the court’s] such action may well be regarded as a somewhat belated granting of defendants’ said former motion for that relief. Defendants’ exception to the denial of that motion still stood upon the record, and I think that defendants’ counsel should then in clear terms have withdrawn that motion if he did not wish it granted.” 184 App. Div. 578, 582, 172 N.Y.S. 102,105.

More recently in State v. Wolak (1960), 33 N.J. 399, 165 A.2d 174, cert. denied (1961), 365 U.S. 822, 5 L. Ed. 2d 701, 81 S. Ct. 710, the defendant was charged with first degree murder. His first trial resulted in a conviction which was reversed on appeal. During his retrial, the prosecutor asked two witnesses to take the gun used in the killing, and to point it at him as the defendant had allegedly pointed it at the victim. The prosecutor then called the widow of the victim and directed her to hold the gun, stand up like the defendant had, and point it at anyone in the courtroom as if he were her husband to show the aim. The witness pointed the gun at the defendant. The prosecutor then asked her to whom she was pointing the gun, and she replied, “Wolack [defendant] that (33 N.J. 399, 400, 165 A.2d 174, 175.) The defendant thereupon made a motion for mistrial, which was denied. The court instructed the jury to disregard the entire incident.

Three days later the court, outside the presence of the jury, informed counsel that it had decided to reconsider the defendant’s motion for mistrial. Concluding that the demonstration by the victim’s widow was prejudicial and would remain so regardless of his instructions to the jury, the judge ruled that he “must grant the motion made on behalf of the defendant for a mistrial.” (33 N.J. 399, 401, 165 A.2d 174, 175.) No objection was made by the defendant.

On appeal the defendant claimed that another retrial violated the double jeopardy provision of the New Jersey Constitution. The reviewing court disagreed, concluding that the defendant waived his right to go to verdict, stating:

“The right of the trial court to reconsider and redetermine motions made during trial cannot be disputed. As in the instant case, the trial court did exactly that in [Montlake] ***.” 33 N.J. 399, 402, 165 A.2d 174, 175.

Two similar cases are People v. Bowman (1971), 36 Mich. App. 502, 194 N.W.2d 36, and Kamen v. Gray (1950), 169 Kan. 664, 220 P.2d 160, cert. denied (1950), 340 U.S. 890, 95 L. Ed. 645, 71 S. Ct. 206. See also People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 431 N.E.2d 353 (defendant consented to mistrial where it was granted on his motion, even though, after it was declared, defense counsel stated he thought the mistrial should really be on the court’s motion because the defense was not the cause of the mistrial); and Sedgwick v. Superior Court for District of Columbia (D.C. Cir. 1978), 584 F.2d 1044, cert. denied (1979), 439 U.S. 1075, 59 L. Ed. 2d 42, 99 S. Ct. 849 (defendant held to have consented to mistrial declared on court’s own motion without objection where the defendant moved to dismiss the charge against him because of an alleged violation of his right to pretrial discovery, arguing that his right to a fair trial was seriously undermined by the discovery problem).

The court in Bowman included the following words of caution about imputing a mistrial declared by the court to a prior motion by the defendant for mistrial where such motion had been denied:

“We acknowledge the merit in the defendant’s fear that by holding that a denial [of the prior motion] has no effect, any motion made by a defendant might be granted to his detriment at some later stage of the proceedings when his fortunes have changed. This, if allowed, would certainly dampen the efforts of the defendant’s counsel to protect his client, making him fearful that any motion for a mistrial, though denied, may return to haunt him when the court decides to reverse its decision (perhaps because a prosecutor’s case has not gone as well as it might have), and force the defendant into a second trial on a theory that the court was only finally doing what the defendant asked him to do.” (36 Mich. App. 502, 509, 194 N.W.2d 36, 40.)

The court in Bowman went on to conclude that such a situation was not presented in that case.

In the instant case, while the question may be a close one, this court holds that the defendant consented to the mistrial. The prior motion for mistrial was made by the defendant because the prosecutor talked to one of his witnesses, Officer Hutchings, about chain of custody during a recess taken during Hutchings’ testimony. Defense counsel stated at that time his feeling that “the remaining testimony by this witness will have been tainted by the discussion.” Moreover, the mistrial was declared by the court when defense counsel again brought to the court’s attention another such discussion about chain of custody, this time between the prosecutor and Officer Bowden during a recess taken during the latter’s testimony. Under these circumstances, and in light of the authorities cited above, it was incumbent upon defense counsel to object to the court’s mistrial declaration, if, in fact, the defendant wanted to go to judgment. While the defendant argues that there was no real opportunity to do so, counsel could well have asked for leave to state his objection during the course of the mistrial declaration. Had he done so, the mistrial declaration could have been rescinded, as was done in People v. Estrada (1980), 91 Ill. App. 3d 228, 414 N.E.2d 512.

Additionally, because this was a bench trial, the defendant might readily, at a later date, have filed a motion asking the court to reconsider its mistrial declaration. Had the motion been granted, the trial could have been resumed.

It is apparent that counsel initially spoke to Bowden in an effort to satisfy defendant’s request for police reports of the October 5 and 10 transactions. Although, if Lovinger’s testimony is to be believed, the prosecutor exceeded the scope of what would clearly be a proper inquiry by asking Bowden why he did not follow the procedure described by Hutchings regarding the key to the evidence locker, it is difficult to conceive how it could be thought that such a question, if improper, would prevent a fair trial and a just verdict so that a mistrial would have to be declared. The record does not support a conclusion that the prosecutor was trying to provoke a mistrial because his case had been going badly. Compare People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.

In view of the foregoing, we do not reach the issue of “manifest necessity.” The order of the circuit court of Lake County is therefore affirmed, and the cause is remanded for a new trial.

Affirmed and remanded.

HOPF and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN W. YOUNG III, Defendant-Appellant.
    Third District
    No. 3—84—0169
    Opinion filed January 14, 1985.
    Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, John W. Young III, appeals from the denial of his motion to vacate his guilty plea. Young pleaded guilty to three counts of theft by deception. (Ill. Rev. Stat. 1983, ch. 38, par. 16— 1(b)(1).) We affirm.

The instant case involves a series of checks written on accounts held in various banks. On March 3, 1983, the defendant established an account at the Standard Chartered Ltd. Bank. This account was established with two checks totaling $125,000 and drawn on an account which had not contained any funds since 1981. The defendant next wrote a check on the Standard account for $250,000 and used this check to establish an account at Moline National Bank on March 8, 1983. The defendant then wrote six checks on the Moline account. It is the writing of these six checks which was the basis for the charges against the defendant.

The defendant argues on appeal that the court erred in finding that there was a sufficient factual basis for his guilty plea. The defendant argues specifically that the facts presented do not establish the requisite deception by the defendant because a check cannot be true or false.

The defendant relies on the decision in Williams v. United States (1982), 458 U.S. 279, 73 L. Ed. 2d 767, 102 S. Ct. 3088. The Supreme Court held in Williams that, because a check cannot be true or false, the writing of a check not supported by sufficient funds could not constitute the offense of false statement. The defendant argues that, based on the Williams decision, a “bad” check cannot be a means of deception.

The defendant’s reliance on Williams is misplaced. The court in Williams directed its analysis toward the issue of whether a check constituted a “statement” which could be true or false, as defined in 18 U.S.C. sec. 1014 (1976). Section 1014 prohibits, in relevant part, the making of “any false statement or report” for the purpose of influencing the action of any of the described financial institutions.

Young was charged with theft by deception under section 16— 1(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16—1(b)(1)). One element of the offense of theft by deception is that the accused knowingly obtained control over property by deception. (People v. Gunn (1983), 112 Ill. App. 3d 1011, 446 N.E.2d 281.) Deception is defined, in part, as knowingly creating or confirming another’s impression which is false and which the offender does not believe to be true. (Ill. Rev. Stat. 1983, ch. 38, par. 15—4(a).) Thus, the State was required to prove only that the defendant knowingly created a false impression which he himself did not believe to be true when he wrote the checks in question.

The distinction between the Federal offense of making a false statement and the instant offense of deception is critical. The Williams court concluded that a check does not make a factual “statement” as to the state of an individual’s bank account despite the Government’s argument that a drawer on a check is generally understood to represent that he has sufficient funds to cover the face value of the check. The Supreme Court found the Government’s argument to be plausible, but declined to adopt it for two reasons.

The first reason was that the argued interpretation contravened the express language of the statute, specifically the term “statement.” By contrast, the statutory language of section 116—1(b)(1) is broad, establishing an offense when only a false impression is created. The language of section 116—1(b)(1) is clearly broad enough to encompass the impression a drawer creates when writing a check that the drawer has sufficient funds in his account to support the check.

The second reason was that adoption of the Government’s argument would have made “a surprisingly broad range of unremarkable conduct a violation of federal law.” (458 U.S. 279, 286, 73 L. Ed. 2d 767, 774, 102 S. Ct. 3088, 3093.) The Supreme Court found no evidence of an intent by Congress to enact a law covering this range of conduct. Again, by contrast, the Committee Comments to section 16—1(b)(1) expressly provide that the writing of a check not supported by sufficient funds falls within the scope of prohibited conduct. (Ill. Ann. Stat., ch. 38, par. 16—1(b)(1), Committee Comments, at 18 (Smith-Hurd 1977).) The decision in Williams does not, therefore, preclude an accused from being charged in Illinois with theft by deception based upon the writing of a check not supported by sufficient funds.

We find that a sufficient factual basis for the defendant’s convictions was presented to the trial court. Whether a defendant should be allowed to withdraw a plea of guilty is within the discretion of the trial court. (People v. O’Connor (1976), 37 Ill. App. 3d 310, 345 N.E.2d 520.) We find no abuse of discretion in the instant case.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVOR STURLIC, Defendant-Appellant.
    Second District
    No. 84—185
    Opinion filed January 17, 1985.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, and John F. Donahue, of Oak Brook, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Davor Sturlic, following a bench trial, was found guilty of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19—3), theft exceeding $300 (Ill. Rev. Stat. 1981, ch. 38, par. 16—1(a)(1)), possession of burglary tools (Ill. Rev. Stat. 1981, ch. 38, par. 19—2), and not guilty of conspiracy (Ill. Rev. Stat. 1981, ch. 38, par. 8—2(a)). Defendant was subsequently sentenced to concurrent terms of imprisonment of four years for residential burglary, three years for felony theft, and one year for possession of burglary tools.

Two issues are raised on appeal: (1) whether the trial court erred in denying defendant’s motion to suppress evidence premised on an illegal search and seizure; and (2) whether the residential burglary statute is unconstitutional.

At a bench trial, David Stout testified that he lived at 1720 East 22nd Street, Apartment B, in Wheaton. While at work on the evening of December 2, 1982, and the early morning hours of December 3, he was called to the Wheaton police station, where he identified some of his possessions which had been in his apartment when he left for work. These included a hatchet and knife in a sheath, an AM/FM headset, AM/FM stereo radio, Minolta camera with various lenses and other pieces of photography equipment, a TV antenna, a silver chain, a jewelry box, a metal balance, an old and a new voter’s registration card, and a blue flashlight. Upon returning to his apartment, he observed that the door jamb was bent, the lock on the door and the frame were broken, and the interior of the apartment was ransacked.

Jeffrey Sandkam, a police officer for the city of Wheaton, testified that on December 2, 1982, at around 9 p.m. he was investigating an unrelated burglary at 1737D Harrow Court in Wheaton. A break-in appeared to have been made by prying open a sliding glass door with a pry-type tool. It was night and raining heavily. Officer Eversole arrived and assisted him in checking the area for the perpetrator of the burglary. They split up, and while checking the rear of the townhouses in the area, he received a communication from Eversole to meet him. He proceeded on foot 500 feet through backyards and met Eversole, who had a white male subject, later determined not to be involved in the burglary, in his squad car. While there he then noticed an older blue vehicle come south and turn around. The vehicle had only one headlight operating. Eversole drove to the intersection, and the blue car was stopped. Sandkam walked over, approached the driver’s door, shined his flashlight inside the car, and observed defendant as the driver and Mark Mead as the passenger. Both persons’ clothes were wet.

He asked defendant to exit the vehicle, which defendant did. As . he and defendant walked to the rear of the vehicle, he shined his light in the rear of the vehicle and observed a small wooden box on the right rear floor. He then asked defendant what he was doing in the area. Defendant said his car had broken down. He asked defendant if the wooden box was his, and defendant said it was not and he didn’t know whose it was. Defendant said someone had borrowed his car and must have left the box there. Sandkam asked defendant if he would mind if he looked at the box and defendant said no. He then opened the right rear door of the vehicle, reached inside, took the box, and found inside the box miscellaneous property including a voter’s registration card with the name of David Stout on it. Defendant said he did not know David Stout. He next looked in the front of the vehicle from the passenger’s side and observed the handles of two tools on the floor, partially under the seat. He then opened the door to see what kind of tools they were, and observed they were screwdrivers and left them there. He also saw a flashlight under the seat. He asked defendant if he (defendant) would mind if Sandkam looked in the trunk. Defendant said he didn’t have a key to the trunk, and Sandkam said, “If I can get in, do you mind if I look in?” Defendant said, “What are you going to do, pop it?” Sandkam removed the keys from the ignition and tried one key in the trunk, and it opened the trunk. There were numerous items in the trunk, including the possessions which Stout identified. After having a conversation with Eversole and two other officers who had arrived, they transported defendant and Mead to the station. The location where defendant was stopped was no more than a quarter of a mile from Stout’s apartment. He never issued a citation to defendant for the defective light.

Joseph Eversole, a police officer for the city of Wheaton, testified that it was dark, rainy and cold on December 2. After receiving a communication, he went to assist Sandkam with a burglary investigation. Sandkam showed him some pry marks on the back of the sliding glass door at 1737D Harrow. They decided to split up, and while driving his squad car he observed a subject come from between two buildings and run. He placed the subject in the back of his squad car and contacted Sandkam, who then met with him. While talking to Sandkam, he saw an older blue automobile that did not have a front license plate displayed and had only one headlight working. He drove around and put his squad car in a position to not allow the blue vehicle to exit the street. He walked to the passenger’s side of the blue vehicle, and spoke to the passenger, Mark Mead. Both the driver and the passenger were very wet. He asked the passenger to step out and asked for identification. As he patted Mead down, he found a pair of rain-soaked gloves intertwined with a white metal necklace. The remainder of Eversole’s testimony recounted Sandkam’s actions with defendant, but not any conversation between Sandkam and defendant, adding only that he, Eversole, removed the screwdrivers from under the front seat that had been pointed out to him by Sandkam. The decision was made to arrest at the scene. Later he and other officers located Stout’s apartment and discovered the break-in.

Following the testimony of these two State witnesses, defendant orally moved to suppress the evidence presented which was continued for a ruling until the end of the State’s case.

Michael Sullivan, a police officer for the city of Naperville, and formerly for the city of Wheaton, testified that he and officer Gross-man were called to assist Eversole and Sandkam, and arrived while the officers were talking with the suspects. He observed Sandkam look inside the box and question defendant about the contents. Sandkam asked defendant if he could look in the trunk and defendant said he did not have a trunk key. He saw Sandkam look at the ring of keys, observe what appeared to be the trunk key, and ask defendant if he tried the key and unlocked the trunk, could he look in. Defendant told him to go ahead. While on the way to the police station defendant admitted he knew the items in the trunk were stolen. Later, at the police station, defendant discussed the burglary of Stout’s apartment and said he was the lookout.

Following Sullivan’s testimony, the trial court denied defendant’s motion to suppress. Then Officer Gradie Clark testified that defendant admitted at the police station that he and Mead discussed committing a burglary, and he waited outside in the car and Mead came out with the stolen items.

Defendant testified on his own behalf, generally denying he knew Mead committed a burglary. He did not testify concerning the stop or the search of the vehicle by the police.

On a motion to suppress evidence illegally seized, the defendant has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114—12(b); People v. Hoskins (1984), 101 Ill. 2d 209, 212, 461 N.E.2d 941.) A trial court’s determination on a motion to suppress evidence will not be overturned unless it is found to be clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.) Although a motion to suppress evidence shall be made before trial (Ill. Rev. Stat. 1981, ch. 38, par. 114—12(c)), the court may, in its discretion, conduct a hearing on a motion to suppress even though the motion is filed after trial has begun, providing that it is alleged that the evidence was illegally seized. (People v. Flatt (1980), 82 Ill. 2d 250, 262-63, 412 N.E.2d 509; Ill. Rev. Stat. 1981, ch. 38, par. 114—12(c).) Here, the trial court considered the motion, orally made by defendant after two key State -witnesses had testified, and denied the motion after a third State’s witness had testified. The defendant did not testify relevant to the stop of his vehicle, nor to the circumstances of the questioning of him and the search of the vehicle. It is in this context that the search and seizure issue arises for our review, for which the defendant has the burden of proving an unlawful search and seizure.

Defendant has not challenged the validity of the initial stop of defendant’s car, and we, too, conclude the stop was valid based upon the officers’ unrebutted testimony that the car was being operated without a front license plate and with only one headlight operating, in violation of provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, pars. 3—413(a) and 12—201(b)). (See People v. Bradi (1982), 107 Ill. App. 3d 594, 599, 437 N.E.2d 1285.) Although defendant does challenge the officers’ justification for ordering defendant out of the car, as the reason for the stop was traffic-related, the incremental intrusion resulting from the request to get out of the car once the vehicle was lawfully stopped is a “de minimis” intrusion into the defendant’s personal liberty not unreasonable under the fourth amendment. Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330; People v. Bradi (1982), 107 Ill. App. 3d 594, 599, 437 N.E.2d 1285.

Defendant next argues that the police were not justified in questioning Mead and defendant about the wooden box inside the car. While the initial stop of the vehicle was justified because of the traffic violations, the police were also investigating a recent burglary in the neighborhood where the vehicle was stopped. At that point in time, too, it was raining, and the occupants inside the vehicle were noticeably very wet. It is reasonable to assume the officers, in addition to the valid traffic stop, were presented with suspicious circumstances concerning Mead’s and defendant’s appearance and presence near the location of a burglary under investigation to warrant temporary questioning. (Ill. Rev. Stat. 1981, ch. 38, par. 107—14; People v. Smith (1984), 124 Ill. App. 3d 914, 920, 464 N.E.2d 1206.) Moreover, Officer Eversole, during his pat-down search of Mead, found a pair of rain-soaked gloves intertwined with a white metal necklace, another circumstance by which it could reasonably be inferred that Mead and defendant had committed an offense. In addition, prior to the questioning, Officer Sandkam had shined his flashlight into the rear of the vehicle and observed a small wooden box on the right rear floor. The fact that a flashlight was used in attempting to observe the interior of the defendant’s vehicle infringed on no protected right of the defendant. Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535; People v. Caserta (1984), 123 Ill. App. 3d 608, 612, 463 N.E.2d 190.

After engaging defendant in conversation regarding what he was doing in the area and, after learning from defendant that the wooden box was not his and that defendant did not know whose it was, Officer Sandkam obtained defendant’s permission to examine the box. There is no evidence that this search and seizure of the wooden box was not consensual. (See People v. Smith (1984), 124 Ill. App. 3d 914, 919-20, 464 N.E.2d 1206.) Finding a voter’s registration card in the box with a person’s name other than Mead and defendant, and which name defendant said he did not know, presented an additional suspicious circumstance to the officers. Officer Sandkam next observed in plain view the handles of two tools on the floor of the vehicle, partially under the seat. Probable cause for the subsequent seizure of what the officers determined were two screwdrivers existed, as the screwdrivers, under the circumstances present here, may be associated with criminal activity and be useful as evidence of a crime. (See Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535; United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809.) The officers here knew that the burglary they were investigating involved an entry with a pry-type tool.

Finally, the search of the trunk of defendant’s vehicle may be justified as consensual in view of Officer Sullivan’s unrebutted testimony (see People v. Smith (1984), 124 Ill. App. 3d 914, 919, 464 N.E.2d 1206), or based upon probable cause to believe contraband was present (see People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809). The uncontroverted testimony of the officers, under the totality of the facts and circumstances known to them at the time of the trunk search, would justify a reasonable person in believing contraband was present in the trunk. For the foregoing reasons, the trial court’s denial of the motion to suppress here was not manifestly erroneous.

Defendant’s second contention on appeal is that the residential burglary statute (Ill. Rev. Stat. 1981, ch. 38, par. 19—3) is unconstitutional because there is no real distinction between it and the burglary statute (Ill. Rev. Stat. 1981, ch. 38, par. 19—1), and because the residential burglary statute fails to give notice of what conduct is prohibited. In advancing the former contention, defendant maintains there is no distinction between burglary and residential burglary, other than their penalty pro-visions, because “dwelling,” which is referred to in the residential burglary statute and is defined in section 2—6, is not limited to residences, but includes buildings, housetrailers, watercraft, aircraft, motor vehicles, and railroad cars as also set forth in the burglary statute.

The burglary statute provides:

“(a) A person commits burglary when without authority he knowingly enters or without authority remains -within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4—102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19—3 hereof.
(b) Sentence.
Burglary is a Class 2 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 19—1.)
On the other hand, the residential burglary statute provides:
“A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.
(b) Sentence. Residential burglary is a Class 1 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 19—3.)

The general definition of dwelling in the Criminal Code of 1961 is as follows:

“ ‘Dwelling’ means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.” Ill. Rev. Stat. 1981, ch. 38, par. 2—6.

There is a strong presumption that legislative enactments are constitutional, and one who asserts otherwise has the burden of establishing the constitutional violation. (Sayles v. Thompson (1983), 99 Ill. 2d 122, 124-25, 457 N.E.2d 440.) The fundamental in statutory construction is to ascertain the intention of the legislature and then to give effect to it. (People v. Rink (1983), 97 Ill. 2d 533, 539, 455 N.E.2d 64.) It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can be reasonably done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. People v. Davis (1982), 93 Ill. 2d 155, 161-62, 442 N.E.2d 855.

It is clear from the language used by the legislature that the residential burglary statute was intended to apply to burglaries of structures intended for use as residences. (See People v. Sexton (1983), 118 Ill. App. 3d 998, 999-1000, 455 N.E.2d 884; People v. Dawson (1983), 116 Ill. App. 3d 672, 674-75, 452 N.E.2d 385; cf. Village of Cambria v. Dunaway (1981), 101 Ill. App. 3d 609, 613, 428 N.E.2d 536.) The term “dwelling,” contained in the residential burglary statute, is defined as “a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 2—6.) On the other hand, it is evident that the offense of burglary by its specific terms does “not include *** the offense of residential burglary as defined in Section 19—3 ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 19—1.) Burglary now covers the entry into buildings and other specified structures not used as residences.

Thus, the burglary statute and the residential burglary statute clearly achieve different purposes and do not, as defendant contends, prohibit the same conduct, but prescribe different penalties. Although defendant has also cited and argued the applicability of People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407, we do not find this to be a statutory classification case under which an equal protection argument might apply.

Defendant has also generally asserted that the residential burglary statute on its face is violative of the due process clause of the United States Constitution because it fails to adequately give notice as to what action or conduct is prohibited. This appears to be a constitutional challenge on the basis of vagueness of the statute. However, since conduct is alleged to which the statute clearly applies, defendant’s facial challenge to the vagueness of the statute must fail. (People v. Matkovick (1984), 101 Ill. 2d 268, 276-77, 461 N.E.2d 964.) Vagueness challenges to statutes which do not involve first amendment freedoms must be examined in the light of the facts of the case at hand, and defendant has not shown that the statute does not clearly prohibit the conduct with which he was charged. 101 Ill. 2d 268, 276-77, 461 N.E.2d 964.

Defendant also has attacked the mandatory four-year minimum sentence for residential burglary, contending generally that such a penalty for this offense is violative of equal protection, due process and the “proportionality concept” under article I, section 11 of the Illinois Constitution. (Ill. Const. 1970, art. I, sec. 11.) In support of this broad statement of unconstitutionality, defendant presents only brief argument. He asserts that it is a gross deviation from reasonable proportionality to prescribe the same penalty for the residential burglar as is statutorily provided for the offenses of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11—4) and aggravated kidnaping other than for ransom (Ill. Rev. Stat. 1981, ch. 38, par. 10—2). In this regard, he argues “the punishment does not fit the crime.”

These scant arguments are without merit. The legislature has the power to declare and define conduct constituting a crime and to determine the nature and extent of punishment for it. (People v. Taylor (1984), 102 Ill. 2d 201, 205, 464 N.E.2d 1059.) Such legislation will not be nullified by courts unless it violates a constitutionally assured right. (People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.) The appellate court in People v. Gomez (1983), 120 Ill. App. 3d 545, 458 N.E.2d 565, has already rejected an equal protection challenge to the sentencing provision for residential burglary as compared to burglary. (120 Ill. App. 3d 545, 548-50, 458 N.E.2d 565.) The equal protection clause requires equality between groups of persons similarly situated; it does not require quality or proportionality of penalties for dissimilar conduct. (People v. Bradley (1980), 79 Ill. 2d 410, 416-17, 403 N.E.2d 1029.) We are not persuaded that any valid equal protection argument can be made here by comparing residential burglary with other dissimilar criminal offenses such as indecent liberties with a child and aggravated kidnaping other than for ransom as advanced by defendant.

Nor has-defendant developed any due process argument against the residential burglary penalty provision such as has been recognized in recent decisions of our supreme court. (See, e.g., People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267; People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) No showing has been made by defendant that the challenged penalty is clearly in excess of the very broad and general constitutional limitations applicable.

Lastly, we consider whether the penalty provision making the sentence for residential burglary a Class 1 felony is a violation of article I, section 11, of the Illinois Constitution, which provides, inter alia, that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, sec. 11.) In People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, our supreme court stated:

“Article I, section 11, of the Constitution is applicable to the legislature as well as to courts. Section 11 is directed to the legislature in its function of declaring what conduct is criminal and the penalties for the conduct. It is directed to the judiciary in that it requires courts not to abuse discretion in imposing sentences within the framework set by the legislature. (3 Record of Proceedings, Sixth Illinois Constitutional Convention 1393; People v. Moore (1973), 15 Ill. App. 3d 691, 693.) Thus section 11 requires the legislature, in defining crimes and their penalties, to consider the constitutional goals of restoring an offender to useful citizenship and of providing a penalty according to the seriousness of the offense. This court has observed that there is no indication that the possibility of rehabilitating an offender was to be given greater weight and consideration than the seriousness of the offense in determining a proper penalty. People v. Waud (1977), 69 Ill. 2d 588, 596.” 102 Ill. 2d 201, 205-06, 464 N.E.2d 1059.

It is apparent that the legislature has placed emphasis and value upon the privacy and sanctity of a place used as a residence in determining the seriousness of the penalty for the crime of residential burglary. The legislature has determined that residential burglary contains more possibility for danger and serious harm than places not used as dwellings. (See People v. Gomez (1983), 120 Ill. App. 3d 545, 549, 458 N.E.2d 565.) It is within the legislative province to define offenses and determine the penalties required to protect the interests of our society. (People v. Taylor (1984), 102 Ill. 2d 201, 206, 464 N.E.2d 1059.) We cannot say that the legislature did not consider rehabilitation of the offender in not providing for probation as a possible sentence, but conclude that greater weight was given by the legislature to the serious nature of an unlawful entry into a dwelling used as a home or residence in determining a proper penally. We do not find the penalty called for in section 19—3 is violative of section 11 of article I.

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

Affirmed.

SCHNAKE and STROUSE, JJ., concur.

      We note that on June 25, 1984, the State filed notices of appeal in the supreme court in direct appeals from the circuit court pursuant to Supreme Court Rule 302(a) in People v. Bales, No. 60347, People v. Buckley, No. 60348, and People v. Dorsano, No. 60349, consolidated, where the residential burglary statute was held unconstitutional. As of the date this opinion was filed, oral argument in these consolidated cases has not been set.


text:
    MARTIN SPAGAT et al., Plaintiffs-Appellees and Cross-Appellants, v. DONALD S. SCHAK et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 83—949
    Opinion filed January 17, 1985.

      Bonnie M. Wheaton, of Wylie, Wheaton & Associates, of Wheaton, for appellants.
    Harvey J. Barnett, of Harvey J. Barnett & Associates, of Chicago, for appellees.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The defendant, Donald S. Schak, appeals from the judgment entered on July 25, 1983, in the circuit court of Du Page County which awarded the plaintiffs, Martin Spagat and Beau Monde Associates Ltd., $900,000 for breach of contract, $75,000 for return of moneys paid and $93,416 in prejudgment interest. The plaintiffs cross-appeal from the trial court’s denial of punitive damages on count V of their complaint for fraud.

The case arises out of a March 19, 1979, real estate contract for the sale of an apartment complex to the plaintiffs for $6.5 million. The fee title to the property had been severed, with the defendant holding fee title to the improvements and a leasehold in the land and Property Capital Trust, a real estate investment trust, holding fee title to the land. The court, after finding that the contract was for the sale of both fee titles, held that the defendant wilfully breached the contract by failing to obtain the fee title to the land and by negotiating to sell his improvements and leasehold estate to a third party while the contract was still in effect. The defendant raises several issues on appeal.

On March 19, 1979, the plaintiff, Martin Spagat, and the defendant, Donald S. Schak, executed a real estate sales contract for the Beau Monde Apartments, a 279-unit apartment complex located in Lisle for the price of $6.5 million. The purchaser was listed as, “First Bank of Oak Park Trust #11636, Martin Spagat, beneficiary of and agent for remaining beneficiaries,” although it is undisputed that this trust never came into being. The seller was listed as, “Devon Bank Trust 2120 and Donald S. Schak, sole beneficiary.” The contract was signed by Spagat and Schak individually, and Spagat gave Schak $25,000 as earnest money.

The closing date under the contract was April 20, 1979, but two later amendments extended it to August 15, 1979. In early August Martin Spagat formed an oral partnership called Beau Monde Associates Ltd. to purchase the apartment complex. The partners were himself, John Kusmiersky, Neil Tyson and Matthew Spagat. On August 15, 1979, Martin Spagat and Donald Schak executed a third amendment to the contract which increased the earnest money from $25,000 to $50,000 and extended the closing date to January 2, 1980. Spagat also orally agreed to assign to the partnership whatever rights he had in the contract. On August 28, 1979, a fourth amendment was executed which put into writing that Spagat had conveyed to the association all of his right, title and interest in the contract and on September 17, 1979, a certificate of limited partnership for Beau Monde Associates Ltd. was recorded in Du Page County.

On January 25, 1980, the parties executed a fifth amendment which again extended the closing and also required the plaintiffs to pay the defendant $10,000 then and $5,000 each month thereafter until the closing. The parties stipulated that the plaintiffs made all of the required payments, totaling $75,000.

In February or early March of 1981, Schak requested a loan confirmation from Spagat. On March 2, 1981, Kusmiersky obtained written confirmation of his $1.9 million loan from Abacus Mortgage Investment Company, and Spagat delivered the confirmation letter to Schak on the same day.

On April 1, 1981, Martin Spagat, Donald Schak and George Bigelow, a representative from Property Capital Trust, met in Spagat’s office to try to agree on a price for Schak’s purchase of the fee title to the land from Property Capital Trust. Bigelow stated that his investors would probably accept $950,000 to $1,000,000 for the property. This was far in excess of Schak’s March 2, 1981, offer to purchase the property for $675,000, and no agreement for the sale of the fee title was reached.

On the final closing date of April 15, 1981, two full years after the closing date set in the original contract, Schak had not obtained the fee title to the land nor obtained a mortgage subordination as required by the escrow instructions. The plaintiffs, aware that the defendant could not perform the contract, did not make a formal offer of the purchase price.

On May 4, 1981, Spagat received a letter from James Kemp, Schak’s attorney, claiming that the plaintiffs were in breach of contract but extending the closing date to May 26, 1981. This led to a meeting between the parties at Kemp’s office, where a settlement was discussed. While Spagat testified that he thought a settlement of $250,000 in his favor had been reached, Schak vehemently denied any such settlement agreement at trial.

In June or July of 1981, Schak sold his interest in the property, the fee title to the improvements and a 65-year leasehold on the land, to Anthony Navilio for $6.5 million. While Schak testified that he began negotiations for this deal in July of 1981, Navilio’s attorney, Lenard Blum, testified that negotiations started in mid-April, probably between April 15 and 18.

The plaintiffs presented Eugene Stunard as an expert witness. He testified that the fair market value of the apartment complex (fee title to the land and the improvements) from April 15, 1981, through September of 1981 was $7.4 million. Schak offered no evidence on the issue of damages.

On appeal the defendant first argues that the court erred in finding an enforceable contract between the parties because the agreement lacked consideration, violated the statute of frauds and was too uncertain to be enforceable. We need not reach the merits of these arguments, however, since they are affirmative defenses and were waived by the defendant’s failure to raise them in his answer.

Under section 2—613(d) of our Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—613(d), formerly Ill. Rev. Stat. 1981, ch. 110, par. 43(4)), if a defendant wishes to assert an affirmative defense at trial, he is required to specifically plead it so that the plaintiff is not taken by surprise. If he fails to do so, he is deemed to have waived the defense, and it cannot be considered even if the evidence suggests the existence of the defense. Parker v. Dameika (1939), 372 Ill. 235; Economy Truck Sales & Service, Inc. v. Granger (1965), 61 Ill. App. 2d 111; Terminal Freezers, Inc. v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981; M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122.

The defendant argues he has not waived these defenses, relying on J. & R. Electric Co. v. Edward P. Allison Co. (1970), 125 Ill. App. 2d 123, and Ricke v. Ricke (1980), 83 Ill. App. 3d 1115. Neither ease is applicable here. In J. & R. Electric the court held that the grounds urged for reversal were asserted in the defendant’s motion to dismiss and were implicit in the defendant’s answer and therefore the plaintiff was not surprised. The Ricke case involved a theory of recovery, not an affirmative defense.

The defendant further argues that the plaintiffs are estopped from recovering any damages in excess of $250,000 based on the alleged settlement agreement reached in May of 1981. It is the defendant, however, who has waived the right to claim error based on the alleged settlement. The defendant vehemently denied at trial that any settlement had been reached and stipulated to the dismissal of plaintiffs’ count IV which alleged the settlement agreement in the alternative. “It is fundamental to our adversarial process that a party waives his right to complain of an error where to do so is inconsistent with the position taken by the party in an earlier court proceeding.” Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 543.

The defendant next contends that the court erred in finding a wilful breach on his part based on the subsequent sale of the property to a third party because he sold the property at the plaintiffs’ urging. This argument, however, ignores that Navilio’s attorney for this transaction, Lenard Blum, testified that negotiations between the defendant and Navilio began in mid-April, probably between April 15 and 18. Therefore, the trial court had sufficient evidence in the record to find that the defendant began negotiations to sell the property before the May 1981 meeting where the plaintiffs suggested that the defendant sell the property to raise money to pay them damages.

The defendant’s third argument on appeal is that the trial court erred in finding that the plaintiffs were ready, willing and able to perform the contract because the plaintiffs’ loan commitment from Abacus Mortgage Investment Company was to John Kusmiersky as an individual and there was no evidence that it would have been honored for the limited partnership. Again, the defendant ignores clear testimony in the record. Gerald Nudo, a representative of Abacus Mortgage Investment Company, testified that he knew that Kusmiersky would not be purchasing the property alone, that this was often the way Kusmiersky operated, and that it did not make any difference in their commitment to make the loan to Kusmiersky. The record, therefore, fully supports the trial court’s findings.

The defendant argues in the alternative, that since neither party made a formal tender of performance, both parties were in default and neither can recover. The defendant’s cited case, Christopher v. West (1951), 409 Ill. 131, holds to the contrary, however. In Christopher the buyer in a real estate deal rescinded the contract and sued for the return of his earnest money when the seller failed to supply satisfactory title. The court held that the buyer’s suit was not barred because he had not made a formal tender of performance, saying:

“Inability to perform is sufficient excuse on the part of the purchaser for not tendering performance, for, in this event, a tender would be devoid of meaning. [Citations.]” (49 Ill. 131, 136.)

Similarly, the defendant here could not have tendered the fee title to the property on April 15, 1981, and, therefore, a formal tender by the plaintiffs was not required.

The defendant’s fourth argument on appeal is that the plaintiffs’ expert witness on damages based his opinion on impermissible factors and, therefore, his testimony was not competent evidence for the trial court’s award. The alleged impermissible factors were: (1) that the expert presumed the apartment complex would be converted to condominiums and based his estimate of the fair market value on other apartment complexes that had been converted, (2) that he based his estimate on the sale of the entire complex, including the fee title to the land, and (3) that he based his estimate on projected vacancy rates and maintenance costs and not on the actual current vacancy rates and.maintenance costs.

As to the defendant’s first contention, the plaintiffs’ expert testified that he considered a number of factors in giving his estimate, including the value of the property as rental property, as condo conversion property, and as investment property. The expert’s consideration of the value of the property for condo conversions was proper since the expert testified that the possibility of condo conversion was a factor in the marketplace that would affect its fair market value. Nor was the fact that the expert based his estimate on the fee title improper, because the trial court found that the contract was for the sale of the fee title and not just the remaining 65 years of the defendant’s lease.

The plaintiffs’ expert also explained the use of projected vacancy rates and maintenance costs rather than the actual rates and costs. To get an estimate of the fair market value, he had to estimate its income-producing ability over a future period of 5 to 15 years and this required an estimate of the average vacancy rate over those years. A proper estimate could not be based on the current rate, since that could be well over or under the average rate at any given time. For similar reasons, an estimate of maintenance costs is used rather than the current maintenance costs. In view of the facts of this case, we believe that these factors were relevant in estimating the fair market value of the property.

The defendant also argues that the plaintiffs’ expert witness based his opinion on hearsay and, therefore, his opinion cannot support the trial court’s damage award. We do not reach the merits of this argument because the defendant failed to object to the expert’s testimony at trial and therefore waived the issue. Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 973.

The defendant’s last argument is that the trial court erred in granting the plaintiffs prejudgment interest. Section 2 of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Ill. Rev. Stat. 1981, ch. 17, par. 6402) states:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing

Under this statute the plaintiffs argue the real estate contract was an “instrument of writing” and therefore, the statute allows prejudgment interest in this case.

Even if the real estate contract meets the statutory requirement for an “instrument of writing,” it must also meet a second requirement that the amount due be a fixed or easily ascertainable amount, in the sense that a debtor-creditor relationship exists. (Cushman & Wakefield of Illinois, Inc. v. Northbrook 500 Ltd. Partnership (1983), 112 Ill. App. 3d 951; Stevenson v. ITT Harper, Inc. (1977), 51 Ill. App. 3d 568; Kansas Quality Construction, Inc. v. Chiasson (1969), 112 Ill. App. 2d 277.) Prejudgment interest is not allowed on unliquidated claims even if the claim is based on an instrument of writing.

Plaintiffs rely on the case of Keystone Steel & Wire Co. v. Price Iron & Steel Co. (1952), 345 Ill. App. 305, for the proposition that damages ascertainable by computing the difference between the contract price and the fair market value of the property are sufficiently liquidated to base prejudgment interest on. Keystone was a breach of contract action based on the defendant’s failure to supply scrap steel as provided in the contract, thereby requiring the plaintiff to buy scrap steel from other more expensive sources. However, in Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, the Appellate Court for the First District distinguished its earlier Keystone decision, stating:

“We see the instant case as presenting a distinguishable situation, however. In Keystone Steel and Norton Iron Works, the contract price was fixed and not disputed; whereas, here the contract price was sharply disputed since it was contingent upon which credits were allowed and for what amount, and the market value of the property was also disputable.” (Emphasis added.) 84 Ill. App. 3d 791, 809-10.

In North Shore Marine, Inc. v. Engel (1980), 81 Ill. App. 3d 530, the trial court held that the marine owner had converted the defendant’s boat and awarded him damages of $15,561. On appeal, the defendant tried to justify the excess damage award as prejudgment interest, but this court, after finding that the fair market value of the boat was only $12,500, held that the excess damage award could not be justified as prejudgment interest, stating:

“In this case, since the amount owing is based upon the value of the boat at the time of the conversion, an amount which is not easily ascertainable, prejudgment interest would not be proper.” (81 Ill. App. 3d 530, 535.)

Similarly in this case, the amount of damages required expert testimony as to the value of the property at the time of the breach. Since this amount was not fixed or easily ascertainable, prejudgment interest was not properly granted.

The $75,000 which the plaintiffs paid to Schak under the January 25, 1980, amendment, however, presents a different matter. Plaintiffs’ claim for the return of this money is based on an “instrument of writing” under the statute, but, unlike the contract damages awarded at trial, the amount due was certain. Therefore, the trial court’s award of interest on this amount was proper under the statute.

The second basis upon which the plaintiffs seek to uphold the trial court’s granting of prejudgment interest is the court’s equity power to grant prejudgment interest where required to do justice. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 579.) The plaintiffs fail to set out, however, the basis for their claim that the trial court was acting in equity when it granted the plaintiffs $900,000 in damages for breach of contract. The record shows that on April 14, 1982, the court dismissed, with prejudice, all claims for equitable relief, and further, that the plaintiffs’ damages were based on the legal claim of breach of contract. Plaintiffs’ recovery was in law and not in equity, and, therefore, the equitable principles upon which the plaintiffs attempt to rely are not applicable here.

PLAINTIFFS’ CROSS-APPEAL

In his findings, the trial judge stated orally in court:

“I have in this ruling denied any punitive damages to the plaintiff despite the fact that the evidence shows that the breach by the defendant was wilful.
If, in fact, punitive damages were recoverable, the evidence indicates that a proper amount of punitive damages would be twice the amount of interest paid under the sale contract entered into by defendant and Mr. Navilio since the time of pay-merits thereunder.”

Later in the hearing on prejudgment interest, the court stated:

“THE COURT: What was my finding as far as the judgment?
MR. MALONEY: That there was a willful breach.
THE COURT: In essence fraud and I denied it because of breach of contract. My understanding of the law is you cannot get punitive damages even if there is a willful or fraudulent breach of the contract.
Go ahead. That is the reason I dismissed the case and not because of the evidence.”

The plaintiffs argue, based on these statements, that the trial judge found an independent wilful tort. We do not apprehend, however, that the judge’s remarks amount to a finding of an independent wilful tort. The judge’s only specific finding was that the defendant wilfully breached the contract, and not every wilful breach of contract is an independent wilful tort. Further, even if we were to read the judge’s remarks as the plaintiffs argue, we cannot say it was error for him to deny punitive damages. When a party proves sufficiently serious misconduct to warrant punitive damages, it is for the trier of fact to decide from all the facts and circumstances, including whether the case requires more than compensatory damages, whether to award punitive damages. Absent an abuse of discretion, this determination will not be disturbed by a reviewing court. (Monotronics Corp. v. Baylor (1982), 107 Ill. App. 3d 14; Rauwolf v. Travelers Indemnity Co. (1974), 20 Ill. App. 3d 226.) We cannot find that the trial judge abused his discretion here.

For the reasons stated above, the judgment of the trial court is affirmed in part, reversed in part and remanded for directions that the trial court reduce the total judgment by the amount of $82,356.87 which it awarded as prejudgment interest on the $900,000 judgment.

Affirmed in part, reversed in part and remanded with directions.

LINDBERG and UNVERZAGT, JJ., concur.