author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE L. CRUZ, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 1270
    Opinion filed December 2, 1983.

      James J. Doherty, Public Defender, of Chicago (Thomas E Bomba, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Edward Barron, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and two counts of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9— 1(a), 8 — 4, respectively), and sentenced to concurrent terms of 40 years, 20 years and 20 years in the Illinois Department of Corrections. Defendant appeals, contending that: (1) the trial court erred in denying motions to quash arrest and to suppress his confession; (2) defendant was denied a fair trial when the prosecution showed an inflammatory photograph of the deceased to the jury in violation of a ruling in limine-, and (3) the State’s inflammatory and highly improper statements made during opening statement and closing argument prejudiced defendant’s right to a fair trial. For the reasons that follow, we affirm the trial court’s judgment.

On August 9, 1980, approximately 1 a.m., while walking east on Addison Street, near Wrigley Field, in Chicago, Jose Ortiz, Carmen Santana and Michael Parades were shot by the front seat passenger of an automobile traveling west on Addison. As a result, Ortiz died from a gunshot wound to the neck and Santana and Parades suffered multiple gunshot wounds. Later that day, an unidentified informant called the Chicago police and told them that Jose Rivera, a member of the Puerto Rican Stones street gang, knew something about the shootings. Based on the informant’s tip, approximately 7 p.m. that evening, the police arrested Rivera as a suspect in the shooting. While in custody, Rivera told the police that he was at a party at Mario Gonzalez’ apartment the previous evening where he overheard Gonzalez, Frank Perez and defendant discussing their intention to “burn some birds,” which is street language for “shoot some members of the Latin Eagles.” Rivera further stated that Gonzalez and defendant left the party approximately 12:30 a.m. The shootings occurred a half hour later approximately two miles from Gonzalez’ apartment. As a result of Rivera’s statement, the police arrested Gonzalez, Perez and defendant, without a warrant, in the early morning hours of August 10.

Prior to trial, defendant moved to quash his arrest on the ground that information leading to his arrest was obtained from an unreliable informant who himself was under arrest as a suspect in the shootings at the time he gave the exculpatory statement. Further, defendant moved to suppress his confession on the ground that there had not been an attenuation of the improper arrest at the time he gave his statement. Upon request by the State, arguments on both motions were heard concurrently.

Investigator Raymond Siwek of the Chicago police department testified that on August 9, approximately 7 p.m., he and his partner, Investigator Konior, located Jose Rivera at the corner of Barry and Wilton in Chicago and arrested him as a suspect in the shootings. While in custody, Rivera told the investigators about the conversation he had overheard in Mario Gonzalez’ apartment. After speaking with Rivera, Siwek reviewed the case report which contained a description of the vehicle involved in the shootings as well as a description of the occupants of the vehicle, obtained photographs of Gonzalez, Perez and defendant from the police files and proceeded to Gonzalez’ apartment where Rivera said Gonzalez, Perez and defendant could be found. Approximately 1 a.m., August 10, defendant exited the apartment with three other individuals, entered an automobile, and drove away. Siwek and Konior stopped the automobile about a block away, identified themselves, asked defendant to identify himself, arrested him and advised him of his rights. After a transport vehicle arrived to take defendant to police headquarters, Siwek and Konior returned to their surveillance posts in front of Gonzalez’ apartment and continued to observe until assisting units arrived, at which time they arrested Gonzalez and Perez.

Upon their return to police headquarters, approximately 3 a.m., after reading defendant his Miranda rights, Siwek and Konior interviewed him for the first time. Later that evening, approximately 8:30 p.m., Siwek again advised defendant of his rights and interviewed him in Konior’s presence. At Siwek’s third interview with defendant, approximately midnight, defendant confessed to the shootings, after which he requested and was granted permission to make a phone call. To Siwek’s knowledge, defendant was never handcuffed, threatened, physically abused or promised leniency. Further, at no time did defendant complain to him of mistreatment. On cross-examination, Si-wek testified that prior to Rivera’s arrest, the police had had no information as to the names of other possible suspects.

Detective Gerald Mahon of the Chicago police department testified that on August 10, 1980, he interviewed defendant at police headquarters at 4 a.m. and at 11 a.m. Defendant never requested permission to make a telephone call, and never complained in any manner. On August 11, approximately 2 a.m., Mahon again interviewed defendant in the presence of Assistant State’s Attorney Sherwin. At that time, Mahon asked defendant if he was willing to make a statement and also allowed him to make a phone call. Mahon never saw defendant verbally or physically threatened in any way.

Assistant State’s Attorney Michael Sherwin testified that he interviewed defendant approximately 6:30 p.m. on August 10 in the presence of Officer Manion and again on August 11, approximately 1 a.m., in the presence of Investigator Konior. At no time did defendant complain about mistreatment or state that he was either hungry or thirsty. After the 1 a.m. interview, defendant requested and was granted permission to make a phone call. While he was making the call, Sherwin summoned a court reporter to take defendant’s written statement. However, no written statement was ever given.

Thereafter, the State rested on the motion to quash arrest and stipulated that the automobile in which defendant was riding at the time of his arrest had committed no traffic violations and there were no arrest warrants issued. Following final arguments on the motion to quash arrest, the trial court denied the motion on the following grounds: (1) Rivera was “just a person the police happened to know”; he was not an informant whose reliability must be established; (2) the close time and .distance link between defendant’s departure from the party and the shootings; and (3) the description of the occupants contained in the police report coupled with Rivera’s statement.

Testimony then continued solely as to the motion to suppress defendant’s confession. In this regard, Investigator John Konior of the Chicago police department testified that he had interviewed defendant twice at police headquarters on August 10, approximately 3 a.m. and 8 p.m., and again on August 11, approximately 1:30 a.m. Defendant was advised of his rights at every interview, was never threatened, physically abused or promised leniency. Further, defendant never requested a lawyer. At the conclusion of testimony, the trial court denied defendant’s motion to suppress on the ground that there had been no evidence of involuntariness. Defense counsel then recommenced arguments on the motion to quash arrest, emphasizing that Rivera was not an ordinary citizen and his information had not been corroborated. In affirming its denial of the motion to quash arrest, the trial court stated:

“[Rivera] was taken to the police station at that time because— well, I don’t know the officers’ reason, but the facts were that nobody had been arrested. *** There is really nothing in the evidence to establish that [Rivera] was a person whose reliability had to be established, as would be the case with an informer in the classic sense, so this was not the kind of person giving information whose reliability had to be established or independently corroborated.”

At the commencement of trial, outside the presence of the jury, defendant presented two motions in limine: (1) a request that the State be instructed not to refer to gangs, either in statements given by defendant or by witnesses; and (2) a request that the State be barred from cross-examining witnesses as to their gang membership. In response to the first motion, the State argued that limiting reference to gangs would artificially keep probative evidence from the jury because gang affiliation was the motive for the shooting. Further, the State planned to relate the substance of defendant’s confession which referred to gang retaliation as motive to the jury during its opening statement. The court ruled that the State could refer to gang affiliation in its opening statement only to the extent that the comments would later be proven by the evidence. However, the State could not “set up or dwell upon” gang superstructure, territories or individual gang membership as the real structure of the case.

Regarding defendant’s section motion, the court ruled that the propriety of cross-examination regarding gang membership is better decided as the questions themselves arise. In response, defendant stated that he would have a standing objection to any reference about gangs.

Carmen Santana, a victim of the shootings, then testified that on August 9, 1980, approximately 1 a.m., she, Jose Ortiz and Michael Parades were walking west on Addison, near Sheffield, in Chicago, when a motorcycle drove past them. Although none of the three knew the people on the motorcycle, Michael waved “Hi” in response to their greeting. Immediately after the motorcycle passed, a car pulled up next to them and the front seat passenger started shooting at them. Michael was hit first. Carmen was shot in the arm, twice in the buttocks and once in the back. When she was able to get up, she turned around and saw Jose lying on the ground, holding his neck. She ran toward Jose and stayed with him while Michael left to find help. When the police arrived, they took Carmen and Michael in a squad car to Illinois Masonic Hospital. The following day, the police picked up Carmen and drove her to police headquarters to view a lineup. However, she was unable to identify her assailant.

On cross-examination, Carmen stated that prior to court appearances relevant to this case, she had never seen defendant. During the shooting, the car was stopped for approximately 10 seconds. She noticed that the car was green and that two people were in the front seat.

Next, Michael Parades, a victim of the shooting, testified to substantially the same facts as did Carmen Santana. On cross-examination, Michael stated that he had seen the back end of the dark green vehicle as it was driving away.

Next, Linda Odom testified that on August 8, approximately midnight, her mother awakened her to tell her that Mario Gonzalez had just been knocking at their door. Odom’s mother then asked her to go to Gonzalez’ apartment immediately and tell him not to come over at midnight anymore. Odom drove the three blocks to Gonzalez’ apartment in her 1969 Dodge Polara. WTien she arrived there, she noticed that a party was in progress in Mario’s second floor apartment. She did not go up to the party. Rather, Mario came down to the backyard and asked Odom if he could use her car that night. When she said, “no,” he slapped her in the face. She slapped him back, and he slapped her again and took the car keys out of her jacket pocket. She followed him out to her car and saw Gonzalez get into the driver’s seat and defendant, who was wearing glasses at the time, get into the front passenger seat. Approximately 20 minutes later, Gonzalez returned to his apartment alone. Odom then got her keys and drove home. On cross-examination, Odom stated that she arrived at Gonzalez’ apartment approximately 12:20 a.m.

Next, Dawn Ellis testified that on August 9, 1980, approximately 1 a.m., she and several friends were sitting on the front steps of her house at 3625 North Sheffield, Chicago, when a green car, traveling north on Sheffield, stopped for approximately 20 seconds in front of her house while the front seat passenger looked at Ellis and her. friends. The car then drove north one block to Waveland, turned around and proceeded south on Sheffield. Once again, the car stopped in front of Ellis’ house and she saw the passenger looking toward them through the driver’s window. When he shook his head “no,” the car continued south toward Addison and Sheffield, then turned right on Addison, heading west. Within seconds after the car turned the corner, Ellis heard gunshots and ran to the corner of Sheffield and Addison where she saw Carmen, Jose and Michael lying on the ground. After the police took Carmen and Michael to the hospital, Ellis drove to the hospital with a friend to check on Jose’s condition. The following day, the police drove Ellis to headquarters to view a lineup from which she identified defendant as the passenger of the automobile used in the shooting. Ellis further stated that she recognized defendant from having seen him driving around the neighborhood on previous occasions.

On cross-examination, Ellis testified that while at the hospital on the morning of August 9, she told the police about the automobile in which defendant had been riding, but could not recall whether she had described defendant to the police. Defense counsel then queried Ellis as to an interview he had had with her on August 19, 1981. Ellis denied having stated at that time that defendant had been driving the automobile. On redirect, Ellis stated that no court reporter had been present at the August 19 interview.

Following testimony by Dr. Robert Kirshner regarding injuries suffered by the victims and testimony by Ernest Warner, firearms examiner for the Chicago police department, Dale Woods testified that on August 9, 1980, approximately 1 a.m., he was alone in his car, stopped at a stoplight on the corner of Clark and Addison, facing north, when he heard what he thought were firecrackers being shot off in rapid succession to the east. When he looked in that direction, he saw three people fall to the ground on the north side of Addison and a car driving past them, heading west toward the intersection at which Woods was waiting. When the car drove past him, Woods tried to see what the occupants looked like and to get a description of the car. He noticed that the passenger had on a white t-shirt and wire-rimmed glasses. The driver had a beard. Both were male Latinos in their twenties. Further, from approximately 35 feet away, Woods thought the first two letters on the license plates were “HG.” After the car sped off, Woods flagged down a squad car. Eventually, he followed the police to the hospital where he described the car and its occupants to the police.

On cross-examination, Woods stated that he did not tell the police what the passenger had been wearing. He merely described the occupants as male Latinos in their twenties. Further, Woods told the police that he would be unable to identify the occupants of the car at a lineup.

Next, Detective John Konior of the Chicago police department testified that on August 9, 1980, he received a telephone call at police headquarters from an informant which led him to the arrest of Jose Rivera as a suspect in the shootings. Konior then testified to substantially the same sequence of events leading to defendant’s arrest as did Siwek. At headquarters, approximately 3 a.m. on the morning of defendant’s arrest, Konior and Siwek had a brief conversation with him. Later that evening, following the lineup, Konior informed defendant that he had been identified as a passenger in the front seat of the vehicle used in the shootings. Several hours later, defendant admitted to Konior and Siwek that he had shot Ortiz, Santana and Parades, and related the following sequence of events: on the evening of August 9, while at a party in Mario Gonzalez’ apartment with other members of the Puerto Rican Stones, defendant and some others were discussing the Latin Eagles, a rival street gang, and the shootings and other acts of aggression committed against members of the Stones by the Eagles within the past few months. Several of the Stones then decided to go out and “burn some of the birds,” i.e., shoot some members of the Eagles. Defendant, armed with a .38 revolver, and Gonzalez then drove to the Wrigley Field area where they saw two guys and a girl walking near Sheffield and Addison. When one of the two guys saluted a member of another gang who rode by on a motorcycle, defendant told Gonzalez to pull up alongside the threesome and defendant then fired six shots at them. After Gonzalez dropped defendant at his house, defendant put the gun in a paper bag and left it at a nearby elevated station. When defendant completed his confession, Konior called Assistant State’s Attorney Sherwin into the room and defendant repeated his statement. Although the gun was never located, the police did locate the automobile used in the shooting which had license plate number RC 9447.

On cross-examination, Konior stated that Jose Rivera was the first person arrested as a suspect in the shootings. Defendant was in custody approximately 10 hours before making the admission. Although he originally agreed to put his statement in writing, he later refused. However, the admission did appear in the police report.

Thereafter, a discussion ensued regarding admission of evidence during which defense counsel objected to admission of a photograph of Ortiz’ bloodied face on the ground that it was prejudicial and would serve only to inflame the jury. The trial court ruled that the photograph would be received into evidence, but would not go to the jury because “[i]t’s very gory and distorted and I don’t see any necessity for it to go to the jury.”

Next, Michael Sherwin, assistant State’s Attorney, testified that on August 11, approximately 1 a.m., in the presence of Investigator Konior, defendant confessed to the shootings. After giving his confession, defendant stated that he would give a written statement after he called his girlfriend and his future mother-in-law. However, after he made the call, defendant declined to give a written statement. The State then rested its case.

Dianne Kehl testified on behalf of defendant that on August 9, approximately 1 a.m., while waiting for a bus at Clark and Addison, she saw three people get shot by an occupant of a moving vehicle. As soon as it happened, she threw herself down on the sidewalk. However, she was able to see that the vehicle contained three people and that the front passenger had neither black hair nor any facial hair.

On cross-examination, Kehl admitted that she did not get a good look at the passenger’s face and that she was not sure about the facial hair. Further, the passenger could have been a Latino. Kehl then described the automobile used in the shooting as a light-colored, older-model car. When shown a picture of Odom’s car, Kehl stated that it could have been the car used in the shooting.

Thereafter, defense counsel stipulated that if Robert Boharic, attorney, were to testify he would state that during his interview of Dawn Ellis on August 19, 1981, Ellis told him three times that defendant had been the driver of the car used in the shootings. However, Boharic took no notes at the interview; no court reporter was present; Boharic’s summary was prepared entirely from memory; and the final document was never given to Ellis to read and sign. Defendant then rested his case.

Following closing arguments, defendant moved for a mistrial based on the State’s display of the photograph of Ortiz’ bloodied face to the jury during closing argument. Defendant argued that this was in violation of the court’s ruling that the photograph was not to go to the jury. The court denied the motion, stating that the photograph could have gone to the jury, but that it was unnecessary given the totality of the evidence.

Subsequently, the jury returned with its verdict, finding defendant guilty of the murder of Jose Ortiz and the attempted murder of Carmen Santana and Michael Parades. Judgment was entered on the verdict. All post-trial relief was thereafter denied and defendant was sentenced to concurrent terms of 40 years for murder and 20 years for each attempt conviction. Defendant’s timely appeal followed.

Opinion

We shall first address defendant’s contention that the trial court erred in denying his motions to quash arrest and suppress confession on the grounds that information leading to his arrest was supplied by an informant of the criminal milieu whose reliability had not been established, thus precluding grounds for probable cause. In support of his argument, defendant relies on the test for establishing probable cause based on an informant’s tip set forth in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (Aguilar-Spinelli test). Pursuant to the Aguilar-Spinelli test, satisfaction of a two-pronged analysis is required to establish probable cause to arrest a defendant based on an informant’s tip. First, the informant must state his basis for belief that a crime has been committed (basis of knowledge prong). Second, there must be underlying circumstances from which the officer can conclude that the informant’s information was reliable (veracity prong). Spinelli also set forth an exception which allows corroboration of facts in a tip to compensate for an inability to satisfy the “basis of knowledge” prong.

Recently, however, the United States Supreme Court abandoned the Aguilar-Spinelli test for probable cause which it felt “encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts” and adopted a “totality of circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip.” Illinois v. Gates (1983), 462 U.S. _, _, 76 L. Ed. 2d 527, 545-46,103 S. Ct. 2317, 2330.

In Gates, on May 3, 1978, the Bloomingdale, Illinois police department received an anonymous handwritten letter in the mail which informed them that Sue and Lance Gates, residents of Bloomingdale, were drug dealers who made most of their buys in Florida. The letter explained that Sue drives their car to Florida, drops it off, then flies home. A few days later, Lance flies to Florida, picks up the car which is loaded with drugs and drives back to Bloomingdale. In addition, the letter stated that on May 3, Sue Gates would be driving to Florida and Lance would be flying there a few days later to pick up the car which would be loaded with over $100,000 in drugs.

Upon pursuing the tip, the police learned that an Illinois driver’s license had been issued to a Lance Gates, residing in Bloomingdale, and that an L. Gates had made a reservation on an Eastern Airlines flight to West Palm Beach, Florida, scheduled to depart from Chicago on May 5 at 4:15 p.m. Surveillance of the airport by an agent of the Drug Enforcement Administration revealed that Gates had boarded the flight. Federal agents in Florida observed him arrive in West Palm Beach and take a taxi to a nearby motel where Susan Gates had a room registered in her name. The following day, Gates and a woman left the motel in a car which had Illinois license plates registered to Gates and proceeded north on an interstate highway. The Bloomingdale police were advised that the trip from West Palm Beach to Bloomingdale would take approximately 24 hours. In the interim, a signed affidavit setting forth the foregoing facts, together with a copy of the anonymous letter, were submitted to a judge of the circuit court of Du Page County who then issued a search warrant for the Gates’ residence and automobile.

When Lance and Susan Gates arrived at their home in Bloomingdale, the Bloomingdale police were waiting for them and proceeded to search the car and the house, uncovering large quantities of marijuana, weapons, and other contraband. The circuit court ordered suppression of these items on the ground that the affidavit failed to support the necessary determination for probable cause set forth in the Aguilar-Spinelli test. The appellate and supreme courts affirmed.

In reversing the Illinois Supreme Court, the United States Supreme Court agreed that the anonymous letter by itself could not provide the necessary basis for probable cause because it contained no information as to the honesty of the author, the reliability of the information, or the basis for the predictions. However, the court disagreed with the Illinois Supreme Court’s application of the Aguilar-Spinelli test to the affidavit. In this regard, the court stated:

“We agree with the Illinois Supreme Court that an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report. We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case ***. Rather, *** they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.
This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific ‘tests’ be satisfied by every informant’s tip.” Illinois v. Gates (1983), 462 U.S. _, _, 76 L. Ed. 2d 527, 543-44,103 S. Ct. 2317, 2327-28.

After careful review of the facts at bar, we find that application of the “totality of circumstances” analysis supports the trial court’s finding of probable cause for defendant’s arrest. Although we agree with defendant that the trial court erred in its conclusion that Rivera had not been in custody at the time his statement was given, we find that fact to be merely one of the indicia of reliability which must be balanced, not the determinative indicium. As the United States Supreme Court stated in Gates, “[E]ven if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand entitles his tip to greater weight than might otherwise be the case.” (462 U.S. _, _, 76 L. Ed. 2d 527, 545, 103 S. Ct. 2317, 2329-30.) In the present case, Rivera personally overheard defendant’s conversation regarding shooting members of the Latin Eagles. Further, his description of the conversation, defendant’s departure from the party and the location where defendant could be found were explicit and detailed.

Using the two-prong test as a guide rather than as a strict formula in accordance with Gates, we note initially that the /‘basis of knowledge” prong was never at issue in the case at bar. Rather, defendant’s primary contention is that the informant’s credibility and the reliability of the information (components of the “veracity” prong) had never been established. In analyzing this contention, we look to the totality of the circumstances, noting that “a deficiency in one [prong] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” 462 U.S. _, _, 76 L. Ed. 2d 527, 545, 103 S. Ct. '2317, 2329.

The facts reveal that shortly after the shootings occurred, Dale Woods, an eyewitness, described the events to the police, stating that the passengers in the vehicle used in the shooting were “male Latinos, in their twenties.” The following day, based upon the informant’s tip, the police arrested Jose Rivera as a suspect in the shootings. While in custody, Rivera told the police that at a party the previous night, he had overheard Gonzalez, Perez and defendant discuss shooting members of the Latin Eagles. Shortly thereafter, approximately 12:30 a.m., the three conversants left the party. The shootings occurred a half hour later, approximately two miles away. Rivera also told the police where they could locate Gonzalez, Perez and defendant. After reviewing the case report which included Dale Woods’ statement and obtaining photographs of the suspects from police files, Investigators Konior and Siwek drove to the location given by Rivera and, shortly thereafter, arrested the three suspects.

In reviewing the foregoing facts, we are cognizant of the well-established principle that only the probability of criminal activity, and not proof beyond a reasonable doubt, is the standard for assessing probable cause. (Spinelli v. United States (1969), 393 U.S. 410, 419, 21 L. Ed. 2d 637, 645, 89 S. Ct. 584, 590, citing Beck v. Ohio (1964), 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.) Thus, the question is one of probabilities, not certainties. Accordingly, we conclude that the totality of the circumstances leading to defendant’s arrest were sufficient to indicate that, more probably than not, he had committed the shootings. (People v. Exline (1983), 98 Ill. 2d 150.) Therefore, we find that the trial court properly denied defendant’s motion to quash arrest.

Our determination that defendant’s arrest was legal obviates the need to discuss defendant’s correlative contention that the trial court erred in denying his motion to suppress his confession on the ground that it was a direct result of the illegal arrest.

We next address defendant’s contention that the prosecution denied defendant a fair trial when it: (1) repeatedly violated a motion in limine which prohibited the State from dwelling on defendant’s gang affiliations; (2) flaunted an inflammatory photograph to the jury in contradiction to the court’s ruling that the photograph should not go to the jury; - and (3) made highly improper, prejudicial comments during closing argument.

First, a review of the motion in limine regarding gang affiliation reveals that the court ruled:

“There can be no indeterminate evidence of gang affiliation. If it came out in examinations or in statements like anything else, it is admissible. * * *
But to set it up or dwell upon it as the real structure of the case, the motion is granted to that extent.”

Further, the court ruled that comments regarding gang membership made during the opening statement were permissible to the extent that those comments would be supported by the evidence.

Defendant contends that the following comments violated the foregoing ruling:

Opening statement

“And as [defendant’s] statement will show and as the evidence will show, there was a gang involved. A vicious street gang. And that members of which were at the party with George Cruz had been themselves, attacked by other rival gangs called the Latin Eagles. And as the defendant stated in his statement and as the evidence will show, the Latin Eagles victimized people in the Wrigley Field area of Chicago. It was their plan to take a car and a gun. To drive to that area of the city, Wrigley Field. To find members of the Latin Eagles — [and] *** to shoot them down in cold blood.”

Closing argument:

“[The witnesses] *** showed you how Chicago street gangs operate. They operate in pairs and in packs. *** They operate in darkened alleys and from moving cars. They operate on the streets of Chicago, city streets which they call their turf.”

Rebuttal closing argument:

“And remember what [Dawn Ellis] did the next day when she got back from the hospital. Think about if she would have done this otherwise. She packed her bags and she got out of there because she knew that the man she saw saw her. And she didn’t want to see him again. And she knew what he and his kind [of] gangs are capable of doing to witnesses. * * *
Tell [defendant] we’re not going to allow squadrons of gangs of armed criminals like him and him to use the street as staying grounds for their gang-related and violent missions.”

Contrary to defendant’s position, we do not find that the foregoing comments violated the court’s ruling in limine. While the comments may have been emotionally charged, they were within the parameters of proper opening statement and closing argument. It is well established that an opening statement in criminal cases is an outline of facts which the prosecution in good faith expects to prove. (People v. Roberts (1981), 100 Ill. App. 3d 469, 476, 426 N.E.2d 1104.) The opening statement comments objected to by defendant were a synopsis of defendant’s admission which was later introduced into evidence. Accordingly, the comments neither violated the ruling in limine nor abused established common law guidelines.

An equally well-known legal axiom is that great latitude is allowed prosecution counsel in closing argument and each case must be decided on its own facts. (People v. Belton (1982), 105 Ill. App. 3d 10, 16, 433 N.E.2d 1119.) For example, the State has a right to dwell on evil results of crime, to urge a fearless administration of the law, and to comment on the conduct of the accused. (People v. Bruce (1951), 344 Ill. App. 114, 122, 100 N.E.2d 350.) Moreover, the substance and style of closing argument is within the discretion of the trial court, and its findings will not be disturbed absent extreme error. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 951, 428 N.E.2d 1087.) Based upon the aforementioned legal axioms and our conclusion that the State’s comments did not violate the mandates of the trial court’s ruling in limine, we find that the State’s comments regarding gang affiliation were proper and did not prejudice defendant’s rights to a fair trial.

Next, defendant assigns as error the State’s display to the jury of an inflammatory photograph of the deceased’s face taken immediately after the shooting. Initially, during the jury instructions conference, the court ruled that the photograph was admissible as evidence, but would not go to the jury because it was “very gory and distorted.” Subsequently, during rebuttal closing argument, the State briefly showed the photograph to the jury. Although defendant did not object to the display at trial, defendant later moved for a mistrial on the ground that the State had violated the court’s earlier ruling regarding the photograph. The court denied the motion, and, in doing so, seemingly altered its original rationale for withholding the photo from the jury, stating that “the picture could have gone to the jury. The court just felt in the totality of the evidence it was unnecessary * * * If

Because the photograph was not made a part of the record and there is no specific evidence in the record as to the size of the photograph, how it was displayed, and at what distance, we must defer to the judgment of the trial court (see People v. Butler (1976), 41 Ill. App. 3d 750, 753, 354 N.E.2d 568) and concur that the State’s display of the photograph did not violate the intent of the trial court’s initial ruling and, therefore, did not prejudice defendant’s right to a fair trial. See People v. Eckles (1980), 83 Ill. App. 3d 292, 301, 404 N.E.2d 358.

Finally, defendant assigns as error the State’s additional comments made during closing argument wherein the State allegedly: (1) analogized a criminal case to a civil case; (2) attempted to shift the burden of proof; (3) commented on the rights of the victims and of the deceased’s mother; and (4) criticized defense counsel’s trial tactics as well as those of his law partner. As stated previously, substantial latitude is accorded to attorneys in their closing arguments. (People v. Belton (1982), 105 Ill. App. 3d 10, 16, 433 N.E.2d 1119.) Even improper remarks may be considered harmless error if there is overwhelming evidence of defendant’s guilt, and a new trial will not be granted unless the remarks are so prejudicial as to materially contribute to defendant’s conviction. {People v. Lloyd (1981), 93 Ill. App. 3d 1018, 1025, 418 N.E.2d 131.) In the present case, while we do not condone the State’s remarks, in light of the overwhelming evidence of defendant’s guilt, neither do we find that the remarks constituted a material factor in his conviction. Accordingly, we conclude that defendant was not denied a fair trial. For the reasons stated, we affirm the judgment of the circuit court of Cook County.

Affirmed.

SULLIVAN and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONSTANCE R. JONES et al., Defendants-Appellants.
    Third District
    No. 82-819
    Opinion filed November 16, 1983.

      Kenneth E. North, of Solomon, Rosenfeld, Elliott & Stiefel, Ltd., of Chicago, for appellants.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendants, Constance Jones, Diane (Cerami) Lanken, Jonathan Cray and James Knobloch, appeal from their convictions of conspiracy to commit gambling and defendants Jones and Lanken also appeal from their convictions of syndicated gambling following a jury trial in the circuit court of Peoria County. The court sentenced all of the defendants to conditional discharge for a period of 18 months plus fines of $3,000 and court costs each for Jones and Lanken and $2,500 and court costs each for Cray and Knobloch. The defendants raise 10 issues for our review, only one of which we need address— whether the trial court erred in denying the defendants’ motion for discharge for violation of their right to a speedy trial.

The incidents giving rise to the convictions being challenged in this appeal transpired on April 22 and April 29, 1981. On both dates, undercover officers of the Peoria police department attended meetings at the Continental Regency Hotel in Peoria where an “investment program” called New Concepts was presented. The meetings were conducted primarily by Donald Sanders, a codefendant who is not a party to this appeal, with reference to a chart or charts which described how the “members” of New Concepts could qualify for as much as $35,000 on a $675 investment.

Each new member, accepted into the program on affidavit that his/her combined income and net worth were in excess of $100,000, was required to tender $675 in cash to the individuals managing the program, $50 of which was nonrefundable and used for administrative expenses and $625 of which would be returned to the member as he/ she progressed to the position of “chart manager.” At a later stage of similar progressions, the member would potentially qualify for $17,000 or $35,000, depending on whether or not he had brought at least two additional “investors” into the program.

The scheme of progressions was described by a series of charts in pyramid diagrams with a “chart managér” at the top and supported by successive layers of positions for two, four and eight names. At a point where all existing charts had all eight names filling the bottom, entry level positions, the existing charts would “split,” each forming two new charts with the base level names elevated to the next level containing four names. These new charts, in turn, would split when all eight names were entered on their bottom levels. In this manner, the names at the four-name level would progress upward to the two-name level. A third split in the same manner would cause the names at the two-name level to rise to the “chart manager” position and, thus, qualify for the return of their $625 investments. This same four-level process was then to be repeated on a second series of charts as more members joined in the scheme. However, in the latter series the eight-name entry level consisted of “chart managers” and culminated in attainment of the “collector’s box” position at the top wherein $35,000 would be distributed.

Mr. Sanders explained that the New Concept scheme was unlike the illegal “pyramid” or “chain letter” games in that the number of charts in existence would be limited to 100 or 150 by introducing a qualifying not-for-profit organization, consisting of 1,000 or more members, into the scheme. Thereafter, the individuals who joined would contribute $625 with no possibility of recouping their investments; and they could, according to Sanders’ explanation, declare the amount as a charitable contribution on their income tax returns. The “charitable contributions” would continue until such time as the not-for-profit organization attained the “collector’s box” and received its $35,000. Then, the supporting charts would be terminated.

On April 29, after observing several of the guests at the meeting pay their money to join the program the undercover officers triggered an electronic device to alert an awaiting “SWAT” team that it was time to storm the meeting, weapons displayed, and arrest those in charge. In addition to the four defendants in this appeal, the police arrested Don Sanders, Lois Sanders and Helen Cray. On May 12, 1981, the seven defendants were indicted in five counts — gambling (two counts), theft, conspiracy and syndicated gambling.

The defendants filed pretrial motions and demanded a speedy trial on May 21. At the pretrial hearing on July 24, the court dismissed the indictment against Helen Cray and ordered suppression of some of the evidence which was seized on the basis of invalid consents and search warrants. Counsel for the prosecution volunteered to prepare a written order.

The State filed a timely notice of appeal on August 13.

Subsequently, on November 6, a written order of the trial court’s July 24 rulings was prepared by the State’s Attorney’s office, submitted to the trial court and entered nunc pro tunc on the State’s motion. This was followed by a second notice of appeal by the State dated November 9, 1981. The State’s appeal to this court was never perfected. On January 20, 1982, we granted a motion by defendants to dismiss the State’s appeals.

Various mesne motions were filed in the trial court subsequent to the return of this court’s mandate, including defendants’ motions for discharge. On August 30, 1982, the trial court denied the motions for discharge, and defendants’ trial began. Following a four-day trial, the jury returned verdicts finding the four defendants herein guilty of conspiracy to commit gambling; in addition, Jones and Lanken were found guilty of syndicated gambling and two counts of gambling. The defendants were found not guilty of the remaining charges. They were convicted as aforesaid.

The prefatory question that the foregoing chronology presents is whether the State’s initial notice of appeal tolled the 160-day statutory period for bringing the defendants to trial. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(b).) The ultimate question, of course, is whether the defendants’ statutory or constitutional rights to a speedy trial were violated. The following chart serves to demonstrate the relevant pretrial matters which figure into our consideration and resolution of the speedy trial issue:

Defendants arrested and jailed April 29,1981

Defendant Jones released on bond April 30,1981

Defendant Lanken released on bond May 1,1981

Defendant Cray released on bond May 2,1981

Defendant Knobloch released on bond May 3,1981

Defendants indicted May 12,1981

Defendants demand speedy trial May 21,1981

Trial date set for August 31,1981 July 9,1981

Motions for discharge and suppression of evidence heard and rulings entered orally July 24, 1981

State files notice of appeal August 13,1981

State submits written order for trial court’s entry nunc pro tune November 6,1981

State files second notice of appeal from written order November 9, 1981

Appellate court enters rule to show cause why State’s first appeal should not be dismissed December 4, 1981

State moves to consolidate August and November appeals December 8,1981

Defendants move to dismiss the State’s appeals December 22,1981

Rule to show cause vacated; State appeals dismissed January 20,1982

Mandates issued by appellate court February 10,1982

February 16,1982 Mandates received by circuit court

May 21, 1982 Defendants file motion for discharge

August 30,1982 Motion for discharge denied and trial commenced.

A total of 465 days elapsed between May 21, 1981, and the defendants’ trial on August 30,1982.

Obviously if the filing of the State’s first notice of appeal did not toll the statutory period (160 days) allowed for bringing the defendants to trial, then the 181 days elapsing between August 13 when the notice was filed, and February 10, 1982, when this court’s mandate was issued, were sufficient to entitle the defendants to a discharge under the speedy-trial statute, and we need not apportion the remaining 284 days in issue. (Of the 284 days, the State concedes that 99 were not attributable to the defendants.)

Our consideration of the speedy-trial issue, of course, requires us to apply these facts within the confines of relevant statutes, Supreme Court Rules and case law. The speedy trial statute (Ill. Rev. Stat. 1981, ch. 38, pars. 103 — 5(b), (d)), in pertinent part, states:

“Every person on bail or recognizance shall be tried *** within 160 days from the date defendant demands trial unless delay is occasioned by the defendant *** or by an interlocutory appeal. ***
Every person not tried in accordance with [subsection] *** (b) *** of this Section shall be discharged from *** the obligations of his bail or recognizance.”

Supreme Court Rule 604(aXl) and (4) recites:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in *** arresting judgment because of a defective indictment ***; quashing an arrest or search warrant; or suppressing evidence. * * *
The time during which an appeal by the State is pending is not counted for the purpose of determining whether an accused is entitled to discharge under section 103 — 5 of the Code of Criminal Procedure of 1963.” 87 Ill. 2d R. 604(a)(1), (4).

Finally, the parties have pointed out that People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507, imposes a requirement that to appeal pretrial suppression orders under Rule 604(aXl), the State must certify “to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.”

The State’s August 13, 1981, notice of appeal recited that its appeal was from “an Order suppressing evidence and the dismissal of the Indictment as to Helen Cray.” The prosecution did not, either before filing its August 13 notice of appeal or at any later time, file a “certificate of impairment” as required by Rule 604(a)(1). (Young.) This court’s docketing order of September 2, 1981, scheduled the due dates for filing documents as follows: October 1 — report of proceedings due in the trial court; October 15 — report of proceedings due in the reviewing court; November 19 — appellant’s brief due. According to our records, the State filed a certificate in lieu of record on October 15 and filed the report of proceedings on November 10. The defendants, meanwhile, on November 9 filed a motion to dismiss the State’s appeal on grounds that the prosecution failed to file the Young certification and that, in fact, the prosecution had been attributed in a newspaper report dated July 25, 1981, with having stated that “the County could prosecute the case without the suppressed evidence.” The State did not respond to the latter allegation.

The State’s Attorneys’ Appellate Service Commission entered its appearance on November 13. On November 18, 1981, we denied the defendants’ motion to dismiss. However, when the State, in addition to having ignored the Young certification requirement, also failed to file its brief according to schedule, this court, on its own motion, on December 4 entered a rule to show cause by December 18 why the appeal should not be dismissed. The State’s Attorneys’ Appellate Service Commission responded on December 8 with a motion to consolidate its November 9 “second appeal” with the August 13 appeal and to adopt the briefing schedule for the “latter appeal.”

The defendants vigorously opposed the motion to consolidate. The defendants argued that the State’s “second appeal” was invalid on its face because it had not been filed within 30 days of the trial court’s pretrial order. The defendants further moved to dismiss the State’s appeal on grounds that the State had failed to comply with the original briefing schedule and had never asked for an extension of time. The defendants also incorporated by reference their earlier arguments on the Young certification issue. The State replied to the motion, generally denying any bad-faith motives in their dilatory appellate proceedings and requesting, once again, that we consolidate the two appeals and adopt the later briefing schedule.

Ultimately, on January 20, 1982, this court denied the State’s motion to consolidate and granted the defendants’ motion to dismiss “both” appeals.

The State’s motives for pursuing the foregoing course of action are a matter of speculation, at best. Certainly it has not been conclusively demonstrated that the State’s August 13 notice of appeal was filed solely to take advantage of the automatic delay afforded by the speedy trial statute and Rule 604(a)(4). On the other hand, it is undeniable that the defendants’ trial was delayed 181 days as a direct result of the State’s August 13, 1981, notice of appeal.

In People v. Meyers (1982), 109 Ill. App. 3d 862, 441 N.E.2d 397, we made clear our position on the State’s use of tactics to avoid or emasculate the Young certification requirement. There, unlike here, the prosecution filed a certification in this court several months after its notice of appeal. The issue in Meyers was whether the State’s belated filing of Young certification was a sufficient departure from the rules respecting State appeals to entitle the defendant to a dismissal of the interlocutory State appeal. We concluded, with some reluctance, that the procedural defect in Meyers had not been shown to have prejudiced the defendant, and we denied his motion to dismiss.

The issue before us today carries us well beyond the procedural flaw of Meyers. The defendants here claim prejudice because, through no fault of the defendants, the State’s aborted appeal resulted in a 181-day delay in their trial in the face of a speedy trial demand. In Young the Illinois Supreme Court acknowledged that the State’s limited right of interlocutory appeals under Rule 604 represents a balancing among legitimate interests of the judiciary, society as a whole, and individual defendants.

The court there observed:

“[I]t is obvious that an innocent defendant in a criminal case has a strong interest in the swift resolution of his case. Even the guilty defendant may well have an interest in avoiding the expense and hardship of an unnecessarily prolonged trial. This interest is reflected to some extent in the speedy trial statute (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5), although that statute does toll the 120-day limit during the pendency of an interlocutory appeal. The hardship attendant to an interlocutory appeal is diminished to some extent by subsection (a)(3) of Rule 604 (73 Ill. 2d R. 604(a)(3)), which provides that a defendant shall not be held in jail or to bail during such an appeal in the absence of a compelling reason to do so. Too, the defendant’s interests are not affected to the same extent by the appeal of a pretrial order as they are by an appeal which interrupts an ongoing trial. In the former situation the defendant is not subject to the additional strain and expense inherent in recommencing a case after the appeal has been determined. Finally, the defendant’s most vital interests are protected by the double jeopardy clauses.” People v. Young (1980), 82 Ill. 2d 234, 243-44, 412 N.E.2d 501, 505-06.

The Young court next addressed the interests of the judiciary and society as a whole in permitting State appeals in certain cases:

“[Allowing interlocutory appeals may actually enhance the functioning of the judicial system. In the absence of interlocutory appeals, the proscriptions of the double jeopardy clauses would preclude reviewing courts from considering legal issues that would otherwise be raised by the State. Errors favoring defendants would pass uncorrected, while those which favored the State would be rectified. To the extent that such errors remained unreviewed and proliferated at the trial court level, the development of the law would be distorted. ***
*** More importantly and more frequently, however, erroneous exclusionary rulings frustrate the primary purpose of the trial: to ascertain the truth of the charges. Social policies embodied in statutory or constitutional provisions may justify encumbering the fact-ascertaining process, but the exclusion of otherwise probative and admissible evidence based solely upon an incorrect interpretation of those provisions serves neither the policy represented by the provision nor the public’s interest in an accurate resolution of the factual questions involved in the litigation. Permitting such decisions to escape review encourages their proliferation and denies trial courts desirable guidance. Allowing interlocutory review ensures proper application of the governing rules and at the same time protects the ability of the trial court to determine the truth of the factual allegations involved.” 82 Ill. 2d 234, 244-46, 412 N.E.2d 501, 506-07.

Where, as in the present case, the State fails to perfect its appeal and fails to provide any reasonable justification for having advanced it in the first place, then none of the foregoing judicial and societal interests can be shown to have been served. The defendants’ interests in a speedy trial obviously would outweigh any legitimate State interests and should entitle them to a discharge under the speedy trial statute. The State resists this conclusion by pointing out the express statutory exception for State appeals in section 103 — 5 which, the State argues, overrides countervailing public policy. We are not persuaded by the State’s argument.

We do not believe that the mere filing of a notice of appeal, •without more, constitutes an “interlocutory appeal,” as that expression is used in the speedy trial statute and incorporated into Rule 604(a)(4) by reference. We are not impressed by the State’s argument that the pendency of its ill-founded motion to consolidate appeals justified its failure to comply with the docketing schedule set on the basis of its August 12 notice of appeal. We have heretofore ruled as a matter of policy that a mere filing of a motion will not delay the obligation to timely fulfill docketing requirements. Furthermore, the State’s contention that it relied on People v. Hoffner (1981), 99 Ill. App. 3d 516, 425 N.E.2d 603 (overruled in part by People v. Meyers) in deciding that the Young certification was not required is equally unconvincing. Hoffner was decided on August 31, 1981, two weeks after the State’s notice of appeal was filed sans certification here and Hoffner gave no authority to disregard the obligation to comply with docketing requirements. We note as well that the State has never responded to defendants’ “evidence” that the State’s appeal must have been frivolous in light of the prosecutor’s purported statement to the press. The State relies solely on the statutory tolling provision for its position that the defendants were not entitled to a discharge on grounds of a speedy-trial violation.

To construe an interlocutory appeal as a tolling event merely upon the State’s filing of a notice of appeal, without more, could directly affect a valuable right. The right to a speedy trial may be of either statutory or constitutional dimension. Section 103 — 5 of the Code of Criminal Procedure of 1963 implements the constitutional right to a speedy trial. (People v. Richards (1980), 81 Ill. 2d 454, 410 N.E.2d 833.) Although the tests differ for determining whether a violation has occurred, the essential difference between the statutory and constitutional guarantees is only in degree. The evils sought to be remedied by the speedy trial clauses of the Federal (U.S. Const., amend. VI) and State (Ill. Const. 1970, art. I, sec. 8) constitutions are coextensive with those underpinning the statutory guarantee. In United States v. MacDonald (1982), 456 U.S. 1, 9, 71 L. Ed. 2d 696, 704, 102 S. Ct. 1497, 1502, the Supreme Court discussed the purposes of the speedy-trial guarantee:

“The speedy trial guarantee is designed to minimize the possibi-bility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.”
“ ‘Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ ” 456 U.S. 1, 8-9, 71 L. Ed. 2d 696, 703, 102 S. Ct. 1497, 1502, quoting United States v. Marion (1971), 404 U.S. 307, 320, 30 L. Ed. 2d 468, 478, 92 S. Ct. 455, 463.

The purpose of the statutory right to a speedy trial would be defeated were the State permitted to file a notice of interlocutory appeal, enjoy the delay afforded by procedural maneuvering in the reviewing court, “suffer” dismissal of the appeal for failure to prosecute, and then proceed with its prosecution in the trial court without regard to the defendant’s loss of liberty or other legitimate concerns during the pendency of such an appeal. Clearly this result was not contemplated by the legislature when it enacted the statutory exception for interlocutory appeals. Indeed, were we to consider the State’s dismissed appeal in this case as an event which tolled the statutory 160-day period and thereby grant the State liberty to proceed, while ignoring the defendants’ legitimate interests in a speedy trial, we would not only be misconstruing the legislative purpose of the exception for interlocutory appeals as provided for in section 103 — 5, but we would risk subscribing to an impermissible erosion of the defendants’ constitutional guarantee as well.

We hold, therefore, that the State’s failure to perfect an appeal in this case, without a showing a justification, rendered its August 13 appeal a nullity.

Accordingly, we hold that the statutory 160-day period for bringing the defendants to trial was not tolled between August 13, 1981, when the State filed its notice of appeal, and January 20, 1982, when that appeal was dismissed. The defendants’ statutory right to be brought to trial within 160 days of their speedy-trial demand was determined, at the latest, on January 20, 1982, which just happens to coincide with the date the State’s appeals were dismissed. In addition to the foregoing 160 days, the State concedes that 99 days of the_ period between January 20 and the defendants’ trial on August 30, 1982, are not chargeable to the defendants. Since the defendants’ statutory right to a speedy trial was violated by excessive delay not chargeable to them, they are entitled to a discharge.

For the foregoing reasons the defendants’ judgments of convictions are reversed and the cause is remanded to the trial court. The trial court is directed to vacate convictions and sentences and discharge the defendants.

Reversed and remanded with directions.

ALLOY and HE IRLE, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    HOMER WARD, Plaintiff-Appellant, v. THE HOWARD P. FOLEY COMPANY, Defendant-Appellee.
    Third District
    No. 3—83—0125
    Opinion filed November 30, 1983.
    BARRY, J., dissenting.
    George Mueller, of Hoffman, Mueller & Creedon, of Ottawa, for appellant.
    John W. Powers, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Homer Ward, commenced this action in the circuit court of La Salle County against the defendant, the Howard P. Foley Company, seeking damages because of wrongful discharge of plaintiff because he sought compensation under the Workers’ Compensation Act. The defendant moved for summary judgment on the theory that plaintiff’s action was precluded by the union collective bargaining agreement which governed the terms of plaintiff’s employment and the circuit court granted summary judgment. Plaintiff appeals from that order.

The only issue raised on this appeal is whether the contractual remedies specified in the collective bargaining agreement precluded this action in tort for wrongful discharge. In Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, the precedent applied by the trial court, this court ruled that the tort remedies were so barred. The plaintiff has not distinguished the facts of this case from those in the Cook case but rather has suggested that Cook was wrongly decided by misinterpreting Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.

We have reviewed the plaintiff’s arguments but find no reason for not adhering to our previous opinion in Cook. What we said in Cook is equally applicable to this case, and no repetition of the reasoning therein employed is necessary or desirable. For the foregoing reasons the judgment of the circuit court of La Salle County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

I most respectfully dissent from my colleagues’ reasoning in affirming the grant of summary judgment against the plaintiff in this case, and from the cursory treatment of the very important issue before us. My views on the question of whether a cause of action in tort for retaliatory discharge can coexist with the contractual remedies available to the employee covered by a collective bargaining agreement were set forth in my dissent in Cook v. Caterpillar (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, appeal denied (1980), 81 Ill. 2d 601.

The anomaly of the majority’s attempt to distinguish Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, from the facts of Cook and the present case on grounds that the employee in Kelsay was an employee at will, rather than one covered by a union contract, was cogently expressed in Wyatt v. Jewel Cos. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053. In Wyatt, as here, the discharged employee was covered by a collective bargaining agreement and proceeded to sue her employer in tort rather than pursuing the grievance procedures as set forth in her union’s contract. On motion of the defendant employer, the trial court dismissed Wyatt’s complaint under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48). The appellate court reversed. Specifically rejecting the majority opinion of Cook, the court reasoned as follows:

“While the employee in Kelsay happened to be an employee at will, the court did not limit its holding to such employees. Indeed, such a limitation would lead to absurd results. An employer who, after the date of Kelsay, discharged an employee not protected by a union contract for filing a compensation claim could be held liable for punitive damages. Yet such damages would not be available against an employer who similarly discharged an employee protected by a union contract even though such a contract is supposed to protect against discharges not for just cause.” 108 Ill. App. 3d 840, 841-42, 434 N.E.2d 1053,1054.

More recently, in Midgett v. Sackett-Chicago, Inc. (1983), 118 Ill. App. 3d 7, in a situation factually analogous to Wyatt and the case at bar, the First District Appellate Court once again denounced the Cook majority holding and reversed a dismissal of plaintiff’s retaliatory discharge cause of action. In addition to reasoning that Cook was antagonistic to Kelsay, the court in Midgett acknowledged that Cook cannot be reconciled with the supreme court’s rationale in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. The Midgett court’s discussion of public policy considerations underlying Kelsay, the Cook dissent and Palmateer merits repeating here:

“Further, we cannot agree with the result reached by the court in Cook because we believe it was inconsistent with the decision of our supreme court in Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, which expanded the availability of a cause of action in tort for retaliatory discharge where strong public policies are involved.
In Palmateer, an employee at will filed a claim for retaliatory discharge after he supplied law enforcement officials with information that an International Harvester employee might be violating the law. The trial court dismissed the complaint for failure to state a cause of action and the appellate court affirmed in a divided opinion. Our supreme court granted leave to appeal to ‘determine the contours of the tort of retaliatory discharge approved in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.’ (85 Ill. 2d 124, 127.) The court held that public policy favored Palmateer’s action in reporting illegal activities, and that to state a cause of action for retaliatory discharge ‘[a]ll that is required is that the employer discharge the employee in retaliation for the employee’s activities, and that the discharge be in contravention of a clearly mandated public policy.’ (85 Ill. 2d 124, 134.) Thus, the court reversed the decisions of the appellate court and the trial court, and held that Palmateer had stated a cause of action in tort for retaliatory discharge.” 118 Ill. App. 3d 7,10.

The Midgett court held that inasmuch as plaintiff had alleged that his employer had fired him for filing his worker’s compensation claim and that, if true, his employer had acted contrary to public policy {Kelsay), then, under the rule of Palmateer, Midgett had stated a cause of action in tort.

The public policy arguments in favor of permitting plaintiff Ward to proceed in court with a common law action in the present case have been adequately set forth in Kelsay, Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 (Barry, J., dissenting), Wyatt, Midgett, Palmateer v. International Harvester Co. (1980), 85 Ill. App. 3d 50, 53, 406 N.E.2d 595 (Barry, J., dissenting), and the supreme court’s opinion in Palmateer. Most particularly, the supreme court, in concluding that the common law tort remedy was not preempted by the statutory provision in the Workers’ Compensation Act which makes retaliatory discharge a petty offense (Ill. Rev. Stat. 1981, ch. 48, par. 138.26), observed as follows:

“The imposition on the employer of the small additional obligation to pay a wrongfully discharged employee compensation would do little to discourage the practice of retaliatory discharge, which mocks the public policy of this State as announced in the Workmen’s Compensation Act. In the absence of other effective means of deterrence, punitive damages must be permitted to prevent the discharging of employees for filing workmen’s compensation claims.” Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 187, 384 N.E.2d 353, 359.

The foregoing decisions have been compared and criticized by jurists and commentators alike (see Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588; Suddreth v. Caterpillar Tractor Co. (1983), 114 Ill. App. 3d 396, 449 N.E.2d 203; Lamb v. Briggs Manufacturing (7th Cir. 1983), 700 F.2d 1092; Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998, 441 N.E.2d 669; and Platt, Toward a Proper View of the Retaliatory Discharge Tort, 72 Ill. B.J. 20 (1983)).

To this extensive body of authority I have little to add today. The passage of time since Cook has not diminished my conviction that “[t]o compel an employee to exhaust all of the grievance procedures provided by a collective bargaining agreement when those procedures cannot possibly afford him a [tort] remedy is to subject the employee to engage in a truly futile act.” (Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 408, 407 N.E.2d 100 (Barry, J., dissenting).) In my opinion, the strong public policy of Illinois condemning retaliatory discharge in response to an employee’s pursuit of a worker’s compensation claim mandates that the employee’s right to sue in tort not be defeated or diluted in any way by virtue of an employee’s right to pursue contractual redress under his/her union’s collective bargaining agreement.

There is no reason at law why those rights should not coexist. Certainly at this juncture we need not fear double recoveries. There is no indication that the plaintiff in this case attempted to pursue any contractual remedies. In any event, principles of offset and remittitur would apply to the extent necessary to avoid double recoveries whenever an employee successfully pursues both avenues of redress. Finally, there is no issue of res judicata in this case. Despite the language of the Cook majority, it is, indeed, questionable whether res judicata could debar a tort cause of action after an employee has finally exhausted the full extent of collective bargaining grievance procedures. (See Platt, Towards a Proper View of the Retaliatory Discharge Tort, 72 Ill. B.J. 20 (1983).) In sum, I would reverse the trial court’s judgment for the defendant and remand this cause to give the plaintiff an opportunity to litigate his claim for damages in tort.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PATSY FRANKLIN, Defendant-Appellee.
    First District (2nd Division)
    No. 82—609
    Opinion filed November 29, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam Dabek, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, George J. Morrissey, and Mark Dohm, Assistant Public Defenders, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

The issue raised by this appeal is whether a mistrial due to the State’s failure to disclose what the trial court characterized as a “material,” “prejudicial” statement made by one of its witnesses, notwithstanding a defense discovery request and a court order to disclose such statement, acts as a double-jeopardy bar to reprosecution under Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083.

Defendant, Patsy Franklin, was charged with murder (111. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2)) as a result of the death of her three-year-old daughter. In response to defendant’s discovery request for a list of the State’s potential witnesses, the State identified, inter alia, Dr. Robert Stein, the Cook County Medical Examiner, who had performed an autopsy on the deceased child. On December 15, 1981, immediately prior to trial, the defense renewed its motion for the production of Stein’s statement as follows:

“MR. MORRISSEY [defense counsel]: May we have your notes of your conversation with Doctor Stein?
MR. PERRY [assistant State’s Attorney]: I didn’t take any notes. I—
MR. GERRITY [assistant State’s Attorney]: I didn’t take any notes either. I don’t have any notes.”

Shortly thereafter, the following colloquy occurred:

“MR. PERRY: *** Judge we have one other motion now.
THE COURT: Let’s hear it.
MR. PERRY: As to Doctor Stein’s testimony, Mr. Morrissey has tendered a copy of statements that I believe he took from Doctor Stein. From the brief statements that I have here, these statements could very well be impeaching Doctor Stein. * * *
MR. MORRISSEY: Your Honor, we are not sure if the State’s comments regarding — Since the statements that are before you, *** are all one sided, since the court has the benefit of what our conversations were with Doctor Stein, but not what the State’s conversations were with Stein, and since Mr. Perry apparently indicates that the doctor told him something different, we say that we have a right to that same information that we have just turned over to the State.
The State apparently has taken statements from the Doctor that are different than what appears in the discovery that I just tendered to Mr. Perry. ***
THE COURT: Have you delivered to them the statements of Doctor Stein? * * *
MR. PERRY: I didn’t take any statements from — Any notes on statements made by Doctor Stein to me.
MR. MORRISSEY: That’s not the question. It’s not a question of whether it’s in writing or not. Were there any statements made?
MR. PERRY: Of course statements were made. I interviewed him for almost an hour.
MR. MORRISSEY: Then we have a right to that.
MR. PERRY: I’m not prepared to write everything he said to me and tender it to you. I don’t think the rules of discovery require me to do that.
MR. MORRISSEY: *** If you take a statement from a doctor and now you look at my notes and you say *** the doctor’s going to be impeached by that, you know exactly what the statement is in your own mind and we’ve got a right to know what it is. * * *
THE COURT: How do you argue against his point? You tell me by looking at the notes which you requested from him in limine, and tell me very specifically that he’s going to attempt to impeach the doctor. You must know something in your mind that the doctor told you which is different from what’s down here. * * *
MR. PERRY: There’s a lot of things mentioned in here which could be subject to impeachment, ***. * * *
MR. MORRISSEY: *** Mr. Perry sits there, looks at my notes of a conversation with Doctor Stein and says there is impeaching material in there.
I want to know what statements he’s got in his mind that Doctor Stein gave him that point of view.
THE COURT: I’m ordering you to tell him those statements right now.” Lawrence, a potential prosecution witness] they should be revealed to the defense. If you don’t have a statement and then you walk into the courtroom before the jury and you have that man testify to a statement, I’ll declare a mistrial in this matter so fast your head will spin.”

The prosecutor then pointed out several minor inconsistencies in the notes of defense counsel as to whether the injuries inflicted on the deceased child could have been due to either a belt, falling against the table, or cardiopulmonary resuscitation. The prosecutor also noted that the statement that “it was acute a single blunt trauma” was inconsistent because the doctor told him that the cause of death was multiple trauma. The prosecutor read aloud a notation, “homicide versus undetermined accident. Natural cause.” The prosecutor said only that he did not understand what the notation meant.

Throughout additional pretrial motions in limine and discovery motions, the prosecutors continued to be evasive as to whether or not they had a complete .statement from certain potential witnesses. The trial court expressed agitation with what it deemed the prosecution’s inadequate compliance with discovery and warned the attorneys that:

“If there were statements made [apparently referring to Mr.

It is undisputed that on the medical examiner’s certificate of death for defendant’s daughter, in the space which requires an indication whether the manner of death (as distinguished from cause of death) was by “accident, suicide, homicide or undetermined.” Dr. Stein specified her manner of death as “undetermined.” Further, during Dr. Stein’s conversations with the defense attorneys on December 4 and 11, 1981, he continued to represent to them that the manner of death was “undetermined.” On December 16, 1981, in reliance on Dr. Stein’s statements, defense counsel asserted in his opening statement to the jury that the evidence would establish that on the day defendant’s daughter died, defendant punished her for drinking out of a toilet by spanking her with a belt; however, that Dr. Stein would testify that the spanking was not the cause of her death. Defense counsel suggested the testimony would show that when defendant spanked her daughter, the child pulled away and accidentally fell against the table incurring an injury in the form of a lacerated liver which was the actual cause of her death.

Dr. Stein was called to testify as the State’s fifth prosecution witness. Before he commenced his testimony, the defense made a motion in limine to exclude certain autopsy slides of Dr. Stein’s internal examination of the victim’s head and brain on the ground that they were highly prejudicial and that any injuries shown were not related to the cause of her death. One of the prosecutors represented to the trial court that Dr. Stein would testify that blunt trauma to the brain was the cause of death and based on that representation, the trial court denied the motion in limine and allowed the State to use all of the autopsy slides. After the jury was shown each of the autopsy slides of the victim, Dr. Stein stated that the cause of death was laceration of the liver due to a blunt trauma.

The prosecutor then asked Dr. Stein the meaning of the term “manner of death.” The doctor replied that that was the “mode” of death which was either homicide, suicide, accidental, by natural causes, or undetermined. In response to the inquiry whether he had an opinion as to the manner of death of defendant’s child, Dr. Stein replied:

“A. As I stated previously in my report, in the death certificate dated the 18th of July, a manner of death was undetermined.
Q. Based on the material that you now have access to, do you wish to change that or do you have a different opinion ***?
A. The material that I have access to, namely, the emergency room report whereby the physician has stated that *** Andrea Franklin was dead, and if I would have known that at the time of the autopsy my manner of death would have been homicide.”

Following completion of Dr. Stein’s testimony, the defense moved for a mistrial on the grounds that the State tendered incomplete discovery of Dr. Stein’s statements. The defense attorney argued that throughout the entire pretrial discovery process, Dr. Stein’s opinion regarding the manner of death was that it was “undetermined.” This remained Dr. Stein’s position as late as December 11, 1981. Although the prosecutors subsequently talked to Dr. Stein and determined that he had changed his opinion regarding the manner of death, they refused to disclose this change to the defense. Defense counsel further asserted that on December 15, 1981, when the prosecutor asked defense counsel how he planned to perfect impeachment of the doctor, the State already knew Dr. Stein had changed his opinion as to the manner of death.

The prosecutors argued against granting the defense motion for a mistrial. They acknowledged that on December 15, 1981, they were aware that based upon certain emergency room reports, Dr. Stein was going to change his initial opinion concerning the manner of death from “undetermined” to “homicide.” However, one of the prosecutors stated: “I don’t see any duty on our part to notify the defense of that. They had an opportunity to talk to Stein ***.” The prosecutors also claimed that defendant was not prejudiced by the State’s failure to disclose the change in Dr. Stein’s opinion concerning the child’s manner of death since the doctor on the record stated his reasons for the change and the defense attorney was able to cross-examine him on that point.

In response, defense counsel claimed that the State’s failure to disclose the change in Dr. Stein’s testimony caused him to make an inaccurate opening statement to the jury and denied him the opportunity to adequately cross-examine the emergency room physician who had testified prior to Dr. Stein!

The court stated:

“[T]his Court feels that the failure of the State to reveal the additional information known to them prior to the beginning of this trial is extremely prejudicial to the defense, and the fact that they did not reveal it until after the party has been questioned and it’s far too late, I feel there is a very prejudicial effect on this trial, and there is a mistrial declared in this matter.”

The trial judge then dismissed the jury, recused himself “from any further participation in this matter,” and transferred the case for reassignment and for a new trial. We note that the court made no findings of fact as to whether the prosecutors’ actions were intended to provoke the defense motion for a mistrial.

The case was then assigned to Judge Dwight McKay for retrial. On February 24, 1982, the defense moved to dismiss the information and discharge the defendant on the ground that reprosecution was barred because the mistrial was declared due to prosecutorial misconduct. Defendant contended that the State was unprepared for trial and feared an acquittal. Defendant argued that the State’s concealment of the change in Dr. Stein’s opinion concerning the manner of death reflected that the prosecutors’ intent was either to provoke a mistrial or “to harass and prejudice the defendant by misrepresenting to the court certain things and it has been one misrepresentation after another up until the mistrial was declared.” In support of her contentions, defendant also calls attention to the State’s misrepresentation to the trial court regarding the necessity of showing to the jury all of the autopsy slides in light of the prosecutors’ inaccurate assertion that the injuries in the head region contributed to the cause of death.

The State denied that it had intended to provoke a mistrial. The prosecutors argued that they could not be characterized as having concealed Dr. Stein’s testimony from the trier of fact since it was elicited on direct examination of Dr. Stein. They further claimed that “there was no bad faith on the part of the prosecution” underlying its inadequate compliance with discovery and that the “failure to disclose that information was an error on our part or negligence or inadvertence,” but that it was “not sufficient grounds to constitute bad faith on the part of the prosecution that would necessitate the granting of a motion to dismiss on the grounds of double jeopardy.”

Judge McKay noted that the State was under a continuing duty to disclose Dr. Stein’s statement, due to both a direct court order and to Stipreme Court Rule 415 (87 Ill. 2d R. 415) and that the State’s failure to disclose was “material” and was the reason a mistrial was declared. Without any reference to the prosecutors’ intent, the court concluded that the defendant had been placed in double jeopardy and granted the motion to dismiss the information.

On appeal, the State acknowledges that at the time the trial court dismissed the information, it was an established rule that a violation of the double jeopardy clause barred reprosecution where (1) the prosecution’s conduct which resulted in the mistrial was undertaken to harass or prejudice the defendant or (2) such conduct was intended to provoke a mistrial so as to give the prosecution a more favorable opportunity to convict the defendant at a second trial. (United States v. Dinitz (1976), 424 U.S. 600, 611, 47 L. Ed. 2d 267, 276, 96 S. Ct. 1075, 1081.) However, the State argues that on appeal we should apply the more stringent standard subsequently adopted by the United States Supreme Court in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083, concerning the effect of a successful defense motion for a mistrial in a criminal trial. The court held in Kennedy.

“[T]he circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (456 U.S. 667, 679, 72 L. Ed. 2d 416, 427,102 S. Ct. 2083, 2091.)

The State contends that in the instant case the record does not support a finding that the prosecutors intended to provoke defendant into moving for a mistrial. To the contrary, defendant argues that the prosecutors’ intent to provoke a mistrial can be inferred from their deliberate failure to disclose Dr. Stein’s statements despite a specific defense discovery request to disclose such statements and a direct order by the trial court to comply.

The record reveals that prior to trial, the prosecutors were aware that Dr. Stein had changed his opinion concerning the manner of the child’s death to “homicide” and that they refused to disclose that information to defendant. The prosecutors thereby allowed defense counsel to make an inaccurate opening statement to the jury to the effect that Dr. Stem’s testimony would establish that the manner of death was “undetermined” and that the evidence would show the death was accidental. The prosecutors then called Dr. Stein as a witness and elicited on direct examination that he had changed his opinion concerning the manner of death from “undetermined” to “homicide.” Immediately following that testimony, defendant’s motion for a mistrial was granted.

In our judgment the appropriate standard to be applied herein is that propounded in Oregon v. Kennedy. In that case, however, the trial court had made a factual finding that the prosecution did not intend to provoke a mistrial. (456 U.S. 667, 669, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091.) In the instant case, the trial court made no such factual findings and we cannot without improper speculation determine from the record before us the intent underlying the prosecutors’ conduct in the case at bar.

We therefore vacate the order dismissing the charges against defendant and remand this case to the circuit court for the purpose of making pertinent findings with respect to whether the prosecution in this instance intended to provoke defendant into moving for a mistrial. Should the court find such intent, the trial court should re-enter the order dismissing the charges against defendant; should the court find the. prosecution did not intend to provoke defendant into moving for a mistrial, the trial court should deny defendant’s motion.

Order vacated and cause remanded with directions.

STAMOS and HARTMAN, JJ, concur.

      Because a mistrial was declared following the testimony of Dr. Stein, Mr. Lawrence was not called to testify at the trial.

      We are constrained to observe that we deem the prosecution’s antics and actions in this case to be entirely improper. We caution the State against trifling with society’s right to prosecute those charged with the commission of crimes as well as against infringing upon the rights of an accused to a fair trial.