author: JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED COOK, Defendant-Appellant.
    First District (4th Division)
    No. 83—277
    Opinion filed December 13, 1984.

      James J. Doherty, Public Defender, of Chicago (Thomas F. Bomba, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

In a bench trial, defendant, Alfred Cook, was convicted of murder, armed violence and unlawful use of weapons. He received concurrent sentences of 25 years for murder, 15 years for armed violence, and five years for unlawful use of weapons. On appeal defendant contends: (1) his guilt was not proved beyond a reasonable doubt; (2) testimony that defendant said he was going to “get even” with the victim was inadmissible hearsay; (3) defendant’s armed violence conviction must be vacated because it was based on the same physical act underlying his murder conviction; (4) defendant’s conviction for felony unlawful use of weapons must be vacated because he was only charged with misdemeanor unlawful use of weapons and the enhancing element was not proved at trial.

We affirm defendant’s conviction and sentence for murder, vacate his conviction for armed violence, and reduce his felony unlawful-use-of-weapons conviction to a misdemeanor conviction, also reducing his sentence for that crime to 364 days, to be served concurrently with his sentence for murder.

The State’s evidence at trial was as follows. On the evening of April 9, 1982, Adrian Driver, defendant, Pierre Jordan, and Thomas Hughes went up to the apartment of Hughes’ girlfriend on the fifth floor of a Chicago Housing Authority building at 527 East Browning Avenue. Hughes engaged in an argument with his girlfriend while the others waited in the hall. According to Hughes, Driver then ran downstairs and outside to see his girlfriend. The defendant and Jordan got on the elevator. About five seconds later Hughes heard two shots. Driver testified that he had run down the stairs and about 50 yards to the entrance of another building, where he momentarily turned back and saw the defendant and Jordan on the porch in front of the 527 East Browning building. He then walked through the other building and about 10 seconds later heard two shots. Driver was wearing a black leather jacket and a black cap that night.

Donna David lived on the ground floor of the 527 building, adjoining the front entrance. She testified that she heard two shots several seconds apart. The first shot came from directly in front of the elevator. In between the shots she saw a man wearing a black jacket and hat run toward an adjoining building. The second shot came from closer to the front entrance. She hesitated for a few seconds or minutes and then opened her door. She heard the sound of someone walking swiftly to the back of the building and then went outside the front entrance and saw Pierre Jordan lying there. It was stipulated that the examining pathologist determined that Jordan’s death was caused by two bullet wounds to the brain.

Gregory Jones testified that at about 8:45 p.m. that day he saw the defendant and Jordan in front of the 527 building. He spoke to them briefly and then went inside the building, where he stopped to urinate in a hallway. He heard two shots from the front hallway and came out to find Jordan lying on the ground. He saw the defendant inside the building, about 10 steps from Jordan. The defendant was holding a gun, which he then tucked inside his pants. The defendant walked fast out the back exit of the building.

On cross-examination Jones admitted that he initially did not tell the authorities about having seen the defendant after the shooting. He explained that he had been frightened and did not want to become involved. He also admitted that at the preliminary hearing he had testified that he did not see the defendant holding a gun until the defendant was outside the building. At trial he had described the defendant both as a friend and an acquaintance but at the preliminary hearing he said the defendant was not a friend. It was stipulated that, if called, defense witness Violet Hall, who had known the defendant and Jones for eight or nine years, would testify that Jones’ reputation for truth and veracity was not good.

Thomas Hughes also testified that two weeks before the shooting he witnessed a fight between the defendant and Jordan. George Delaney testified that on the afternoon of the day of the shooting defendant spoke to him about that fight, saying Jones should not have “whipped” him and that he was going to “get even.” While in Hughes’ apartment the defendant had warned Hughes that a young girl in the apartment should not jump on the couch where defendant had placed his coat because the gun might go off. Later that evening defendant and Jordan returned to Hughes’ apartment. They argued there but shook hands before leaving.

I

We first consider defendant’s claim that he was not proved guilty beyond a reasonable doubt. The evidence presented was circumstantial to the extent that there was no eyewitness to the actual shooting. However, three eyewitnesses testified that defendant was alone with the victim immediately before the shooting, and one of those witnesses, Gregory Jones, saw the defendant leaving the scene with a gun in his hand immediately after the shooting. The State also presented evidence that defendant was upset about having been beaten by the victim, had threatened to get even with him on the day of the shooting, and carried a loaded gun several hours before the shooting. A conviction may be based entirely on circumstantial evidence where the proof is conclusive and leads, on the whole, to a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.) We find that the evidence we have summarized, although partially circumstantial, was sufficient to establish defendant’s guilt beyond a reasonable doubt.

The defendant notes the impeachment of Gregory Jones, including his initial omission of the fact of having seen the defendant with a gun after the shooting, his changing account of where he first saw the defendant with a gun, and his poor reputation for veracity. Defendant also notes that two of the State’s witnesses, George Delaney and Thomas Hughes, had prior criminal convictions and Hughes also had two pending felony charges against him at the time of trial. These were all matters to be weighed by the trial judge in his determination of credibility. His determination will not be set aside on review unless the proof of guilt is so unsatisfactory as to create a reasonable doubt as to defendant’s guilt (People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102), and we do not find that the impeachment at issue here created such doubt.

Defendant also suggests that the State failed to exclude the possibility that Adrian Driver or Gregory Jones actually shot the victim. The basis for the possible involvement of Driver is that one witness, Donna David, saw a man dressed like Driver run from the building in between the shots. The sole basis for Jones’ possible involvement appears to be his presence near the scene of the shooting and the variances in his account of what he saw. We do not find that either of these hypotheses rise to the level of an unrebutted reasonable hypothesis of innocence which would require reversal of a conviction based on circumstantial evidence. See People v. Garrett (1975), 62 Ill. 2d 151, 339 N.E.2d 753.

II

We find no merit to defendant’s contention that his stated intention to “get even” with the victim was inadmissible hearsay. Threats made by an accused against the person he is charged with killing are admissible to show motive and criminal intent. People v. Williams (1980), 85 Ill. App. 3d 850, 407 N.E.2d 608.

III

We agree with defendant’s contention that his armed violence conviction must be vacated, as it was based on the same acts on which his murder conviction was based. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) It was stipulated that the cause of the victim’s death was two bullet wounds to the brain. The information charging the defendant with armed violence expressly predicated that charge on defendant’s commission of the felony of murder. There was only one murder victim and only one act of murder, shooting the victim twice in the head, and therefore only one conviction was permissible. (People v. Szabo (1983), 94 Ill. 2d 327, 447 N.E.2d 193; People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795.) The State incorrectly relies on cases such as People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159, where shooting a victim three times in the head was held to properly support three separate convictions for aggravated battery. While it is clearly possible for a person to be the victim of three separate aggravated batteries, we cannot agree with the State’s apparent suggestion that a person may be the victim of two acts of murder, one of which would then be the basis for a separate armed violence conviction.

IV

We also agree with the defendant that his conviction for the felony of unlawful use of weapons was improper. Defendant was charged by information with unlawful use of weapons in that he:

«*** knowingiy carried on and about his person within the corporate limits of the city of Chicago, he not then and there being on his land or in his own abode or his fixed place of business, a loaded gun, in violation of Chapter 38, Section 24 — 1 (al0)/24 — 1(b) ***.”

Section 24 — 1(b) provides in pertinent part:

“A person convicted of a violation of *** Subsection (a)(10) *** commits a Class A misdemeanor; ***. *** A person convicted of a felony under the laws of this or any other jurisdiction, who, within 5 years of release from penitentiary or within 5 years of conviction if penitentiary sentence has not been imposed, violates any Subsection of this Section commits a Class 3 felony.” Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(b).

No evidence of a prior conviction of the defendant was presented at trial. However at the sentencing hearing of January 26, 1982, the State noted that the presentence report indicated that defendant had been convicted of unlawful restraint on October 21,1981.

In a line of cases, our supreme court has held that proof of circumstances which render a misdemeanor a felony must come at trial before the finding of guilt or innocence. (People v. Palmer (1984), 104 Ill. 2d 340; People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 394 N.E.2d 1043; People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496; People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499.) In this cause, the State did not in fact establish the enhancing element at trial. Thus we find that the State failed to establish in the proper manner that defendant’s crime of unlawful use of weapons was a felony rather than a misdemeanor. We therefore reduce his conviction to a misdemeanor (People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496), and reduce his sentence on that offense to 364 days, to be served concurrently with his murder sentence. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—4.1.

Defendant has also contended that our vacation of either of his lesser offenses requires a remand for resentencing on his murder conviction because of the possibility that the trial court was influenced by the other improper convictions. However, in the absence of any affirmative indication in the record that the sentencing judge was so influenced, we find no basis for such a remand. People v. Owens (1982), 109 Ill. App. 3d 1150, 441 N.E. 2d 908.

Defendant’s conviction and sentence for murder is affirmed, his conviction for armed violence is reversed, and his felony conviction for unlawful use of weapons is reduced to a misdemeanor conviction with his sentence for that crime reduced to 364 days, to be served concurrently with his murder sentence.

Affirmed in part; reversed in part.

LINN, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER PRESIDING JUSTICE GREEN,

license: Public Domain

text:
    DAVID W. DILLEY, Plaintiff-Appellant, v. AMERICANA HEALTHCARE CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—84—0123
    Opinion filed December 20, 1984.
    GREEN, P.J., specially concurring.
    Malcolm Barnes, of Urbana, for appellant.
    James L. Capel, Jr., of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff David W. Dilley commenced this action in the circuit court against defendant Americana Healthcare Corporation for sex discrimination in the termination of his employment in violation of article I, section 17, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, sec. 17). The circuit court granted defendant’s motion to dismiss, with prejudice, finding that the Illinois Human Rights Act (HRA) (Ill. Rev. Stat. 1983, ch. 68, par. 1 — 101 et seq.) provides the exclusive remedy for a case of this nature, with access to the courts limited to administrative review proceedings as provided therein. Plaintiff appeals from the judgment of the circuit court of Champaign County. We affirm.

The issue on appeal is whether an aggrieved party may directly sue for discrimination in employment under article I, section 17, of the 1970 Illinois Constitution without first exhausting the administrative remedies set forth in the HRA.

The facts may be briefly stated. On November 1, 1983, plaintiff filed this action under article I, section 17, stating that he (1) was hired by defendant as patient coordinator, (2) began work on May 20, 1983, (3) attended a sales seminar over the weekend, and (4) was terminated when he returned to the facility on Monday, May 23, 1983, allegedly because of his “masculinity.” He sought compensatory damages of $100,000 and punitive damages in excess of $15,000.

On December 13, 1983, defendant filed a motion to dismiss on the basis that the General Assembly, by enactment of the HRA, had “exempted” plaintiff’s right to bring the circuit court action by providing that such actions must be brought under the HRA. Defendant stated that such “exemption” was authorized by the second paragraph of article I, section 17, and therefore prayed the court dismiss the complaint with prejudice for lack of subject matter jurisdiction.

On January 5, 1984, a hearing was conducted on defendant’s motion to dismiss. After arguments, the circuit court held that the General Assembly has a right to provide for the Human Rights Commission, as an agency (under HRA), to have exclusive jurisdiction of discrimination cases, to establish reasonable exemptions related to the rights protected by article I, section 17, and that, in doing so, the General Assembly provided an additional remedy for the violation of those rights, which preempted the right otherwise given by the Constitution for direct action by those allegedly discriminated against on the basis of sex. The court found that the HRA provided the exclusive remedy for defendant’s claim, with access to the courts limited to administrative review proceedings. Consequently, the court granted the motion to dismiss with prejudice.

The language of article I, section 17, and that of the HRA are pertinent to our resolution of the issue presented. Article I, section 17, provides:

“All persons shall have the right to be free from discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.
These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.” (Emphasis added.)

Section 8 — 111 of the HRA provides for review under Administrative Review Law (see Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), and includes the following limitation:

“(D) Limitation. Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” Ill. Rev. Stat. 1983, ch. 68, par. 8 — 111(D).

On appeal, plaintiff presents a rather novel theory to support his argument that article I, section 17, provides a permanent private cause of action: First, he quotes language of the bill of rights committee at the constitutional convention, following committee proposal of section 17 (in proposal form referred to as section 22):

“Since the right is explicitly made ‘enforceable without action by the General Assembly,’ an aggrieved person could have recourse to existing judicial or legislative remedies for a violation of the right. The General Assembly is also authorized to prescribe additional remedies.” (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 69 (hereinafter cited as Proceedings).

Second, plaintiff looks to the language of the second paragraph of article I, section 17. He suggests that the constitutional drafters had in mind the availability of monetary damages as a remedy at law when granting authority to the General Assembly to prescribe “additional remedies.” (See Walinski v. Morrison & Morrison (1978), 60 Ill. App. 3d 616, 377 N.E.2d 242.) Based on this precept, he argues that the authority concomitantly given the General Assembly to establish “reasonable exemptions” should not be interpreted as such a grant of power as to divest the courts of jurisdiction over a private cause of action under section 17. He urges that the drafters used the term “exemptions,” as well as the term “exceptions,” narrowly, e.g., for a congregation to utilize a religious test in employing a minister, and not to grant the legislature power to abrogate section 17 rights which “are enforceable without action by the General Assembly.” Likewise, he argues that the grant of authority to the General Assembly to provide “additional remedies” for article I, section 17, constitutional violations cannot be construed as authority to take away what the constitutional provision originally granted as an enforcement remedy — a private cause of action.

Third, plaintiff points out that article I, sections 18 (“[t]he equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts”), and 19 (“[a]ll persons with a physical or mental handicap shall be free from discrimination in the sale or rental of property and shall be free from discrimination unrelated to ability in the hiring and promotion practices of any employer”) of the 1970 Illinois Constitution do not contain comparable provisions allowing enforceability without legislative action, or granting authority for legislative enactment of additional remedies. He therefore contends that claims under sections 18 and 19 can only be brought under the HRA because of the limitation on court jurisdiction under section 8 — 111(D), whereas the “self-executing language” and use of the term “additional remedies” in section 17 give him a choice of forum.

Fourth, plaintiff maintains that in drafting section 8 — 111(D) of the HRA, the limitations section, legislators inserted the opening language, “except as otherwise provided by law,” specifically with the holding of Walinski in mind — that those whose article I, section 17, constitutional rights are violated are entitled to seek compensatory and punitive damages in the circuit courts — and that the opening clause reflects the legislature’s intention to preserve a private cause of action for those claiming violation of rights protected under article I, section 17.

Further, plaintiff argues that policies favoring exhaustion of administrative procedures are irrelevant when they run counter to the constitutionally mandated policies of article I, section 17, and the right of direct access to the courts. He states that direct access to the court was established as an inviolable right by the drafters of section 17 for two reasons: (1) section 17 rights were deemed to be of the highest priority, and (2) legislatively established remedies may fall short of or impede full and immediate redress to these rights. Plaintiff fails, however, to offer any explanation of how the HRA would fall short of or impede him from immediate redress, and supports his theory only by reference to a law review article (see Gertz, The Unrealized Expectations of Article I, Section 17, 11 J. Mar. J. Prac. & Proc. 283 (1978)).

We reject plaintiff’s argument.

At the outset, several points need be made with regard to the Wa-linski decision. In Walinski, the plaintiff filed a civil action for damages, claiming sex discrimination in hiring by the employer in violation of the rights in article I, section 17. She sought actual damages of $1,000, punitive damages of $4,000, plus costs of suit. The defendant filed a motion to dismiss the complaint as failing to state allegations sufficient to warrant the relief sought, since article I, section 17, does not specifically provide for the remedy of damages. The motion was granted by the circuit court, and the plaintiff appealed. After examining the debates of the Sixth Illinois Constitutional Convention, the reviewing court concluded the drafters intended that money damages be obtainable as a remedy for violation of article I, section 17, rights. The court therefore reversed the order, dismissing plaintiff’s amended complaint, and remanded the cause for trial on the merits.

First, the alleged discrimination in Walinski occurred in 1975, when the Fair Employment Practices Act (FEPA) (see Ill. Rev. Stat. 1975, ch. 48, pars. 851 through 867), predecessor to the HRA, provided that sex discrimination in hiring was an unfair employment practice (Ill. Rev. Stat. 1975, ch. 48, par. 853(a)). By contrast, at the time article I, section 17, was enacted, the FEPA did not prohibit discrimination in employment on the basis of sex. (Ill. Rev. Stat. 1969, ch. 48, par. 851.) The FEPA was amended after passage of the 1970 Constitution to include in its protections discrimination on the basis of sex in employment. (Ill. Rev. Stat. 1971, ch. 48, par. 851; Pub. Act 77 — 1342, sec. 1, eff. August 27, 1971.) Similarly, there was no comprehensive program to prohibit discrimination in its various forms in housing. We note that delegates to the constitutional convention were made aware of these statutory deficiencies. See remarks between Mr. Connor and Mr. Wilson, 3 Proceedings 1596, col. 1, and remarks of President Witwer, addressed to discrimination in employment and housing, at 1611.

Second, after examination of the debates of the Sixth Illinois Constitutional Convention of 1969-1970, we agree with the Walinski court that the drafters intended money damages be obtainable as a remedy in the courts. This must be viewed, however, in the context of the absence of administrative recourse for violation of these rights, as has subsequently been provided by the General Assembly.

Third, it should be noted that at the time of the Walinski decision, the FEPA did not contain language purporting to limit circuit court jurisdiction, as does section 8 — 111(D) of the HRA. See Ill. Rev. Stat. 1975, ch. 48, par. 860.

Fourth, we find Walinski inapposite as it did not address whether the plaintiff’s claim of sex discrimination should have been pursued in the administrative forum.

We next consider the decision in Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 458 N.E.2d 985, cited by the defendant as supplemental authority. In Thakkar, the plaintiff, an East Indian, brought an action in the circuit court against the defendant, alleging discrimination in termination of his employment on the basis of national origin in violation of article I, section 17, of the Illinois Constitution of 1970. On defendant’s motion, the circuit court dismissed the complaint, stating (1) the plaintiff had failed to comply with statutory provisions of the FEPA, and its successor act, the HRA, which constituted reasonable exemptions to article I, section 17; and (2) the “hiring and promotion practices” language of section 17 included discharges and terminations of employment. On appeal, the reviewing court affirmed, rejecting plaintiff Thakkar’s argument that neither the FEPA nor its successor, the HRA, comprised “reasonable exemptions” referred to in article I, section 17, because the constitutional language was enacted in 1970, nine years after enactment of the FEPA in 1961. Thakkar had argued that section 17 constituted a second or alternative avenue to redress an employment discrimination dispute.

Reviewing the detailed legislative scheme of the HRA, the Thakkar court concluded that the General Assembly had intended it to be the preemptive vehicle for the resolution of employment discrimination cases in Illinois. The court stated that the comprehensive remedial procedures of the Act indicated the legislature’s intent that the constitutional rights set forth in section 17 be harmonized with the Act. Consistent with this analysis, the court stated that the “reasonable exemptions relative to these rights” referred to in section 17 were also found, at least in part, in the HRA, citing as an example section 2 — 104 exemptions to civil rights violations in employment (including hiring or selecting between persons for bona fide occupational qualifications, giving preferential treatment to veterans, and giving or acting upon the results of any professionally developed ability test). See Ill. Rev. Stat. 1981, ch. 68, par. 2 — 104.

The Thakkar court also examined the constitutional debates of the Sixth Illinois Constitutional Convention of 1969-1970 and was convinced that the drafters intended that the “reasonable exemptions” referred to in section 17 would comprise statutory provisions enacted by the State legislature. In reviewing the legislative history, the Thakkar court quoted the language of the bill of rights committee (6 Proceedings 68-69) which stated:

“ ‘The Committee concluded that the right to freedom from discrimination should be subject to a legislative power to establish reasonable exemptions. The subject of discrimination in employment or housing on the basis of race, color, creed, national ancestry or sex has many different facets. This is evident from the numerous exceptions written into state and federal legislation forbidding discrimination in these areas.
* * *
Appropriate exceptions cannot readily be treated in a constitutional provision, but they can be provided by legislation. Consequently, the new section authorizes the General Assembly to “establish reasonable exemptions” from the rights created in the section.
Since the right is explicitly made “enforceable without action by the General Assembly,” an aggrieved person could have recourse to existing judicial or legislative remedies for a violation of the right. The General Assembly is also authorized to prescribe additional remedies.’ ” (Thakkar v. Wilson Enterprises, Inc. (1983), 120 Ill. App. 3d 878, 882, 458 N.E.2d 985, 988.)

The Thakkar court concluded that the FEPA and the HRA were not independent remedies for violations of the rights guaranteed by section 17, and that a plaintiff’s failure to comply with the provisions of those statutes would bar a direct cause of action. The court referred to policy reasons supporting the exhaustion of administrative remedies requirement as stated in McKart v. United States (1969), 395 U.S. 185, 194-95, 23 L. Ed. 2d 194, 203-04, 89 S. Ct. 1657, 1662-63: (1) The requirement avoids interruption of the administrative process; (2) it allows the involved agency to develop the necessary factual background upon which to base a decision; (3) it allows the agency to exercise its discretion or apply its particular expertise; (4) the exhaustion requirement serves to improve the efficiency of the administrative process; (5) it serves to conserve scarce judicial resources; (6) it gives the agency an opportunity to discover and correct its own errors; and (7) it avoids the possibility that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. The Thakkar court determined that the limitations, administrative procedures, and remedies of the HRA were reasonable, enacted with proper authority, and intended to stand as the exclusive mechanism for enforcement of rights guaranteed by article I, section 17, of the Constitution.

We also note the recent decision in Yount v. Hesston Corp. (1984), 124 Ill. App. 3d 943, 464 N.E.2d 1214, wherein the court remarked that the Thakkar court, in dicta, had determined that the detailed legislative scheme of the HRA suggested persuasively that the legislature intended the Act to be the preemptive vehicle for the resolution of employment discrimination cases in this State. The Yount court concluded that the HRA was the exclusive remedy for violations of section 19 (handicap), article I, of the Constitution; and that the plaintiff was not entitled to maintain an independent, private cause of action.

Our own review of the debates of the constitutional convention, the legislative history of the HR A, and the Act’s provisions leads us to conclude that constitutional claims under article I, section 17, must be brought in the administrative forum.

A review of the legislative debates at the Sixth Illinois Constitutional Convention of 1969-1970 pertaining to article I, section 17 (discussed as section 22), and the amendments proposed thereto (see 3 Proceedings 1591-1613), reflects clearly that the drafters intended to provide a direct cause of action in the circuit courts to enforce the rights enumerated in the first paragraph where those rights were not protected by legislation. With regard to the language of the second paragraph of section 17, we also note the following remarks from the convention debates:

“MR. S. JOHNSON: Delegate Wilson, I’d like to ask you two or three questions about this self-enacting provision [paragraph 2 of section 17, article I], Exactly how would that work? Supposing — supposing I had a grievance against someone and no remedy was found in statute law; how would I file a charge and what would happen after that?
MR. WILSON: *** [T]his provision does create a right and [if] the legislature has not set up any procedure, the courts are not powerless to find a remedy and to establish a remedy. *** In the absence of action by the legislature, the courts would decide on a case-by-case basis whether or not there has been discrimination within the purview *** of this constitutional provision.
* * *
MR. S. JOHNSON: What would be the limit of penalty that might be imposed? Are there any set down? And let us suppose that penalty were excessive in the mind of the individual, and he went through a series of appeals and they were upheld. Then if the General Assembly — how would they enter the picture, to put a lid on excessive penalty, let’s say?
MR. WILSON: The provision gives the General Assembly the right to establish exemptions, the general nature of which I referred to in my remarks, and also to establish procedure and remedies.” (3 Proceedings 1597.)

Delegate Johnson stated that paragraph 2 of section 17, the so-called “self-executing provision,” meant that the laws would be written in the courts, subject to a preemption or an overruling by the legislature. (3 Proceedings 1601.) President Witwer remarked that many adjustments would have to be made pursuant to the amendment, and that “by providing for power in the General Assembly to create exemptions and to adopt reasonable regulations,” section 17 provided a forward looking measure. (3 Proceedings 1611.) We note also the following exchange:

“MR. CONNOR: I’m interested in the expression, ‘These rights shall be enforceable without action by the General Assembly.’ No other provision of the bill of rights contains those words. Is that because — I have heard that this is because this was an attempt to override the nonaction of the Illinois legislature, is that true?
MR. WILSON: Well, I don’t know anything about that. We didn’t talk about the Illinois legislature in our committee; but these words are in there for the express purpose of avoiding any contention that (1) this is a hortatory kind of statement or (2) that it is a right which does not come into play or into being or does not become effective until action is taken by the General Assembly.” (3 Proceedings 1596, col. 1.)

We note also that the Convention delegates were not uniformly agreed to inclusion of paragraph 2 of section 17, as evidenced by the fact that several proposed amendments, which were rejected, would have omitted the paragraph.

We next consider the legislative history of the HRA. A review of the legislative debates on Senate Bill 1377 of the 1979 General Assembly, enacting the HRA, refutes plaintiff’s argument that the legislature intended section 8 — 111(D) to preserve a direct cause of action in the courts for violations cognizable under article I, section 17, of the Constitution of 1970.

Senate Bill 1377 passed the Senate on May 25, 1979, with little discussion, the only comment pertinent here having been made by Senator Shapiro in introducing the bill:

“Currently, Illinois has eleven different Acts contained in the Statutes that deal with discrimination in one form or another. These provisions differ in coverage, enforcement, penalty scope and intent. Currently, our discrimination laws are enforced in the courts, both by criminal and civil actions and through three executive agencies. *** I think you can all see that the confusion generated by multi-agency enforcement is counterproductive. The new Illinois Human Rights Act specifies the rights and enforcement procedures in relation to discrimination which are contained in this one Act.” (Emphasis added.) (Senate Debates, May 25, 1979, at 283.)

Senate Bill 1377 was, however, subject to comment in the House— with 114 proposed amendments when it was presented for a second reading on Friday, June 22, 1979. Representative Taylor announced amendment No. 7 to Senate Bill 1377, certainly pertinent to this inquiry:

“Amendment #7 seeks civil action prior to exhaustion of administrative [remedy]. It eliminates all limitation of direct action.” (Emphasis added.) (House Debates, June 22, 1979, at 158.)

This amendment was tabled. House Debates, June 22, 1979, at 158; see also vol. 1, Legislative Synopsis & Digest 984-87 (1979).

Senate Bill 1377 had its third reading in the House on June 25, 1979. At that time, the remarks of Representative Bullock referenced elimination of direct access to the courts:

“Senate Bill 1377 does, indeed, limit rights that are already provided under the State Constitution and the Federal Constitution on housing [specifically protected under article I, section 17, of the 1970 Illinois Constitution] and public accommodation. But, more specifically, Senate Bill 1377 appears to be regressive in the area of civil rights violation as misdemeanors. It, also, appears to eliminate direct access to civil proceedings on the part of complainants. ***” (Emphasis added.) (House Debates, June 25,1979, at 87-88.)

On June 30, 1979, the House considered Senate Bill 1377. At the emergency session of the legislature on November 8, 1979, a matter concerning the bill was again brought before the House. Representative Braun' then commented on the elimination of a private right of action:

“[Senate Bill 1377] repeals the existing civil rights authority and replaces that authority but abandons certain existing rights regarding testing standards, discrimination by contractors, protections extended to the handicapped, private right of action, delay by respondents, damages by wilful discrimination. It creates a new exemption for discrimination by private clubs, religious corporations, and others.” (Emphasis added.) House Debates, November 8,1979, at 97.

In conclusion, we find nothing in the legislative debates to support plaintiff’s theory that in enacting the HRA, or in the opening language of section 8 — 111(D), the legislature intended in any way to preserve a private cause of action for rights under article I, section 17. Indeed, the legislative history suggests to the contrary.

The design of the HRA is to provide uniform procedures and remedies for discrimination protected against under Illinois law. Section 1 — 102(c) provides specifically for the implementation of constitutional guarantees, to secure and guarantee rights established by article I, sections 17, 18, and 19 of the Illinois Constitution of 1970. The Act provides a comprehensive procedure for the protection and enforcement of various rights, culminating in judicial review pursuant to Administrative Review Law. (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.) To the end of uniformity, section 8 — 110 of the HRA provides for publication of decisions to assure a consistent source of precedent. Similarly, section 8 — 111(D) would engender uniformity by restricting such cases to one forum.

In our view, the limitation posed by section 8 — 111(D) falls squarely within this court’s decision in In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 443 N.E.2d 289, which pointed out that the circuit courts have original jurisdiction over all justiciable matters under article VI, section 9, of the Illinois Constitution of 1970. Hears stated that the legislature may still impose substantive conditions precedent to the exercise of that jurisdiction. “While this may sometimes erroneously be called a lack of jurisdiction, it is in reality an inability to exercise jurisdiction because the court cannot waive the condition.” (In re Estate of Mears (1982), 110 Ill. App. 3d 1133, 1138, 443 N.E.2d 289, 293; see also In re L.E.J. (1983), 115 Ill. App. 3d 993, 451 N.E.2d 289; In re Marriage of Bussey (1984), 128 Ill. App. 3d 730.) We construe the word “have” in the statute to mean “exercise.”

Affirmed.

WEBBER, J., concurs.

PRESIDING JUSTICE GREEN,

concurring specially:

I concur with the decision to affirm, but do so for reasons that differ somewhat from those of the majority. I have great difficulty reconciling the express language of article I, section 17, with the conclusion that the legislature has power to limit to administrative redress the remedy for injury inflicted by conduct constituting a violation of section 17. However, although the question is a close and difficult one, I agree that the constitutional convention would not have enacted the section had not the majority of the members thought that the legislature would have such power.

Elmer Gertz, practitioner and a professor of law, was the chairman of the bill of rights committee of the Sixth Illinois Constitutional Convention which drafted the Illinois Constitution of 1970. In his subsequently written article The Unrealized Expectations of Article I, Section 17, 11 J. Mar. J. Prac. & Proc. 283 (1977-78), he presents a logical argument that section 17 created a constitutional remedy of an action at law for a violation of the section and the legislature is powerless to destroy that remedy.

The wording of section 17 supports the theory of Professor Gertz. Indisputably, the first paragraph of the section sets forth the constitutional right of all persons to be free from the prohibited discrimination regardless of whether the discrimination arises from governmental action or that of private individuals or entities. The first portion of the second paragraph creates a constitutional right to a remedy without the necessity of legislative action. Such a remedy could only be a remedy in a court of law. As mentioned by the majority, Delegate Wilson pointed out that the remedy was created so that no viable contention could be made that the section was merely intended to be a pious preachment without enforceability. The third portion of that paragraph allows the legislature to “provide additional remedies” for those rights. (Emphasis added.) As the Gertz article points out, describing the remedies which the legislature might enact as “additional” seems to indicate that the constitutional remedy created by the first portion of the. paragraph was to remain in force after the enactment of any such remedy. It is difficult to envision what these legislative remedies would be “additional” to if they would not supplement the right of action previously referred to in section 17.

Nothing in the language of the second portion of the second paragraph of section 17, authorizing the legislature to “establish reasonable exemptions” relating to the rights created, indicates an intention to empower the legislature to abolish the remedy created in the first portion. Nothing in the bill of rights committee document quoted in Thakkar, and subsequently by the majority, so indicates. The portion of that document contained between the portions quoted clearly indicates the committee intended the word “exemptions” to refer to the type of situations which would not give rise to a right to be free from discrimination. The omitted language stated:

“To cite other examples, it is obviously proper for a congregation to utilize a religious test in employing a minister. Similarly, few would approve an anti-discrimination provision that absolutely prohibited the kind of indirect discrimination involved in providing housing exclusively to the aged members of certain religious or ethnic organizations, or women’s groups. Persons might also be permitted some discrimination in employment or rental relationships that are on so small a scale and under circumstances so intimate that they are of a highly personal nature.” 6 Proceedings 68-69.

The bill of rights committee presentation was made to the delegates as they sat as a committee of the whole. Chairman Gertz designated Delegate Wilson to be the principal spokesman. Before answering questions, Wilson made some prefatory remarks. His explanation of the use of the word “exemptions” is entirely consistent with the committee report and indicates that there was no intention to include within the meaning of the term “exemptions” limitation upon remedies for violations. Wilson said:

“We felt that the legislature should be empowered to provide for reasonable exemptions here where the balancing would be the other way around, if you please, and where in these situations we felt that the greater value lies in a freedom of choice on the part of the employer or, for example, on the part of a person furnishing the housing.
Now, let me give you an idea of some of these possible exemptions which we feel are reasonable and which the legislature would be empowered to enact. Excuse me. For example, the right of religious organizations to employ or provide housing for members of their own faith only. This could be such things as children’s homes, old people’s homes, and various things of that kind. The right of truly private clubs to provide housing for their own members only would be another example, in the committee’s view, of a reasonable exemption. And then we run into that category which has come in a popular jargon to be known as the exemption relating to Mrs. Murphy’s boarding house — that type of exemption, or — and I think under the Federal Housing Act this runs up to as much as a building with four apartments or four flats in it in which one of the apartments is actually owned — actually occupied by the owner as his own residence. Another example of a reasonable exemption would be that relating to small employers — employers, that is, of small numbers of employees. Just what this number would be, I don’t know, of course; but in all these areas it was the committee’s feeling that the relationship between landlord and tenant or between employer and employee was of such a intimate and personal nature that the greater value there lies in leaving a freedom of choice to the landlord or to the employer, as the case might be. Hence, we have provided that the legislature may enact these exemptions. It’s not required to do so, but it has the — has the power under the clause to do so.” 3 Proceedings 1592-93.

I have no doubt that in enacting the Human Rights Act, the legislature intended the proceedings for redress for conduct violating that act would be administrative actions under the procedure there provided even if the conduct also violated article I, section 17. However, I have some concern with the conflict between the language of section 8 — 111(D) of the act and article VI, section 9, of the Illinois Constitution of 1970. Section 8 — 111(D) states that “except as otherwise provided by law, no court *** shall have jurisdiction over the subject of an alleged civil rights violation” except as the Act might provide. Article VI, section 9, provides that, with minor exceptions not applicable here, circuit courts shall have “original jurisdiction of all justiciable matters.”

At the time of the enactment of the 1962 amendment to the Judicial Article of the Illinois Constitution of 1870 (Ill. Const. 1870, art. VI (amended), sec. 9), that article contained a provision substantially similar to the present article VI, section 9. At that time there were many legislative provisions limiting relief to administrative provisions. Obviously, the constitutional amendment was not intended to do away with the power of the legislature to so provide. (See Fins, Re-Examination of “Jurisdiction” in Light of New Illinois Judicial Article, 53 Ill. B.J. 8 (1964).) In fact, a further provision of that article VI, section 9, like the present provision, provided for the circuit court to have jurisdiction to review administrative decisions as the legislature might require.

Just how the power of the legislature to make administrative remedies the sole procedure for original determination of certain types of disputes meshes with the circuit court’s “original jurisdiction of all justiciable matters” is not clear. The rationale cannot be that the administrative proceeding is a condition precedent to the circuit court’s exercise of its original jurisdiction, because the circuit court’s exercise of its power after administrative proceedings is an exercise of its power of review of administrative rulings and not an exercise of its original jurisdiction. Perhaps the legislature has the power to deem certain types of disputes to be not “justiciable.”

In any event, to the extent that article I, section 17, creates a constitutional right to a cause of action at law, the legislature would be without power to deprive the court of that jurisdiction and without the power to make the exercise of that power by the circuit court erroneous. For reasons subsequently explained, I conclude that section 17 created a constitutionally prescribed cause of action at law only to the extent that the State, at any given time, does not have a reasonable legislative remedy for a violation of that section. Thus, when the Human Rights Act was enacted, providing a reasonable remedy for covered gender discriminations, of both a public and private nature, there no longer existed a constitutional right of action at law for such discrimination. The constitutional right of action was negated by the enactment of the administrative remedy and not by the language purporting to limit the jurisdiction of the circuit court.

My conclusion is similar to that of the majority, but, as I have indicated, I analyze the matter in a somewhat different way. As with them, I consider the explanations of section 17 given to the delegates to be persuasive. The quoted question asked by Delegate S. Johnson and the answer of Delegate Wilson both spoke of the section 17 remedy in the absence of legislation. Delegate Wilson spoke of the power of the legislature to establish “procedure and remedies” (emphasis added) and indicated that the legislature could put limits on the amount of recovery.

The majority calls attention to the Thakkar court’s reference to public policy favoring the use of administrative remedies in matters such as those involved here. The Fair Employment Practices Act was in force at the time of the Sixth Constitutional Convention. It provided for an exclusive administrative remedy for victims of discriminating practices prohibited by the Act. Professor Gertz expresses severe criticism of the effectiveness of those remedies and indicates that section 17 was intended to eliminate the exclusivity of those provisions. Such a change would have been a drastic one, but the record of the proceedings of the convention does not indicate that the delegates were ever informed of this substantial change. Rather, the whole focus of the explanation to them concerned the existence of a remedy when no remedy was provided by the legislature.

After considering the explanations of section 17 given to the delegates, the lack of explanation that it was intended to make the procedural changes asserted by plaintiff and the drastic nature of those changes, I cannot hold that the delegates intended to prevent the legislature from limiting proceedings for violations of section 17 to those of an administrative nature. The trial court properly dismissed the complaint.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL SANDERS, Defendant-Appellant.
    First District (1st Division)
    No. 82—3089
    Opinion filed December 17, 1984.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Karen C. Wirth, and Pamela Martin, Assistant State’s Attorneys, of counsel, for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, defendant Carl Sanders was found guilty of two counts of attempted murder, of armed robbery, home invasion, and murder (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 18 — 2, 12 — 11 and 9 — 1(a), respectively), and sentenced to concurrent prison terms of 30 years for attempted murder, armed robbery and home invasion, and 40 years for murder. On appeal, defendant contends that: (1) the State failed to prove that either he or one for whom he was accountable entered the victim’s home without authority; (2) the State failed to prove that either he or one for whom he was accountable took the victims’ missing automobile; (3) the jury was improperly instructed on the charge of attempted murder; (4) the trial court’s refusal to allow him to converse with defense counsel during a lunch recess denied defendant effective assistance of counsel; and (5) in the event the convictions for home invasion and armed robbery are reversed, resentencing is necessary.

Defendant was charged under the theory of accountability for offenses committed against Barbara McGee, Jessie McGee and Joseph Kneeland during the early morning hours of March 12, 1981. At trial, Barbara McGee testified that, approximately 2:30 a.m. on the morning in question, she was awakened by the front door bell of her home at 8343 South Woods, Chicago. She answered the door and admitted her son-in-law, Gregory Macon, into the house. They talked for a few minutes, after which Mrs. McGee permitted Macon to spend the night. Prior to that evening, Macon’s wife and the four Macon children had been living with the McGees for approximately four months, during which time Macon would also sleep there on an “on and off” basis.

After returning to her bedroom, which she shared with her husband, Jessie, Mrs. McGee was again awakened by Macon. He told her that he was having headaches and needed some medication. Jessie McGee gave Macon a couple of aspirin and he left, but returned a short time later to ask for some more. A few minutes later, Mrs. McGee was again awakened when Macon pushed open the bedroom door, turned on the light, and entered the room accompanied by Anthony Strong, who was armed with a gun. Strong kept the gun pointed at the McGees while he and Macon demanded money. Through her bedroom doorway, Mrs. McGee could see defendant and Lorenzo Strong in the kitchen and another unidentified male on the back porch. Mrs. McGee had known defendant, Macon’s nephew, for approximately 10 years.

Jessie McGee then walked into the dining room, took his wallet out of the buffet and gave it to Macon and Strong. When Mrs. McGee tried to get out of bed, Macon told her to sit down and proceeded to tie her hands and feet with a rope. Jessie McGee told Macon that there was more money downstairs in a pair of beige shoes. When none of the intruders could find the money downstairs, they sent Joseph Kneeland down to look for it. Meanwhile, Macon carried Mrs. McGee to the middle bedroom and raped her. When the rope came loose, he retied her, raped her again, and left. She could hear the others, including defendant, hollering about the money and walking back and forth. Macon eventually returned to the bedroom, threw a telephone cord around Mrs. McGee’s neck and choked her until she lost consciousness. When she regained consciousness, she heard her husband calling her name from a distance, after which she heard someone enter the room, felt a thump on her head, and again lost consciousness. When she regained consciousness, Mrs. McGee called to her son, who came into the bedroom, cut her loose, and then ran next door to get help. She again lost consciousness and did not regain it until the police were there and she was being put into an ambulance. At the hospital, Mrs. McGee learned that in addition to the neck wounds, she had also received two gunshot wounds to the back of her head.

Mrs. McGee further testified that at the time of the incident she owned a yellow and brown 1976 Cadillac. When she went to bed on the evening of March 11, the car was parked in front of her house. After the incident, the car, a color television, tape recorder, jewelry and wedding rings were missing.

Next, Joseph Kneeland, Barbara McGee’s son, testified that when he arrived home from school approximately 3:15 p.m. on March 11, 1981, Macon, Lorenzo Strong and defendant were talking to his father. He heard his father tell them that he wanted them to leave, which they did. Kneeland had known both Macon and defendant for about 12 years and knew that defendant was Macon’s nephew. Kneeland further stated that early the next morning he was awakened by Anthony Strong, who was standing next to him with a gun pointed at him. Strong told Kneeland to put the blanket over his head and to walk out into the hallway. While standing in the hallway, he heard his mother ask Macon what was wrong, heard his father tell the intruders to check his shoes downstairs, and heard footsteps go down and back up the basement stairs, followed by defendant’s voice saying that there were no beige shoes and no money downstairs. The intruders then told Kneeland to go downstairs and look for the shoes. When he took the blanket off his head, he saw Macon, Anthony Strong and defendant, who was standing next to the buffet in the dining room with something silver in his hand. When Kneeland returned from downstairs without having found any money, he saw Lorenzo Strong and defendant in the kitchen. He and his father were told to stand near the entrance to the basement. At that time, defendant was standing in the basement doorway with a gun pointed at Kneeland, holding a newspaper to obscure part of his face. However, Kneeland recognized his voice. Macon then joined Kneeland and his father and told them to go downstairs. Kneeland went first, followed by his father. Macon stood at the top of the stairs, holding a gun and carrying a pillow under his arm. Suddenly Kneeland heard a “pow”- sound, turned around, and saw his father falling down the stairs. When he started to run, he was hit by a bullet in the shoulder and fell. Macon then walked over to where Kneeland was lying, shot him behind the right ear, and went back upstairs.

When Kneeland’s father began gurgling his wife’s name, Macon came back downstairs. Kneeland heard another “pow,” after which his father was silent. Shortly thereafter, all the upstairs footsteps ceased and Kneeland went upstairs to look for his mother. When he went to the living room and looked outside for the car, he noticed that it was gone. As he was going back toward the basement, he heard his mother’s voice coming from his bedroom, and found her in there, tied up and with cuts around her neck. After carrying his mother to the dining room, Kneeland went next door to call the police. When the police arrived, Kneeland told them that Macon, defendant and two other males had robbed them.

Thereafter, a stipulation was entered into that if Dr. Teslow of the office of the medical examiner were called to testify, he would state that Jessie McGee died of a gunshot wound to the head and to the brain.

Next, Officer David Dioguardi of the Chicago police department testified that when he arrived at the McGee home on the morning of March 12, 1981, the injured were being removed and the house was in a general ransacked condition. After visiting Kneeland in the hospital, Dioguardi proceeded to an address given to him by Kneeland, where he arrested Macon. He then drove to defendant’s residence, where he placed defendant under arrest. While in defendant’s bedroom, Dioguardi asked him if he had any weapons. Defendant hesitated, looked toward the end of his bed where he was sitting and said “No.” Dioguardi then told defendant to stand up while he searched the bed. In doing so, he recovered a .32 revolver. After Macon and defendant were transported to headquarters, Dioguardi proceeded to a home on 105th Place in Chicago, where he arrested Anthony Strong, Lorenzo Strong and Marvin Hammond and recovered two .32-caliber revolvers with bullets. On cross-examination, Dioguardi stated that the McGees’ missing automobile was found parked five or six doors west of Macon’s house.

Next, Sergeant Vincent Lomoro of the Chicago police department testified that the bullets removed from Barbara McGee and Jessie McGee were .32-caliber bullets.

Officer Fred Harris, a latent fingerprints examiner for the Chicago police department, testified that when he compared a latent palm print recovered from the right rear window of the McGees’ Cadillac on March 13, 1981, to a reproduction of defendant’s left palm print he found 10 points of identification. A stipulation was then entered into that the latent palm print was made by defendant. On cross-examination, Harris stated that he could not discern when the print had been left on the car and that he did not examine any other objects for fingerprints. The State then rested its case.

Defendant testified that on the afternoon of March 11, 1981, he and Lorenzo Strong accompanied Macon to the McGee home in order to help Macon move some of his belongings from the McGee home back to his own home. When they arrived at the McGees’ house, Macon asked Jessie McGee if he could use the McGees’ car to move some of his things. When Jessie refused, Macon borrowed some money from him for a taxi. Approximately 4 p.m., Macon, Strong, two of the Macon children and defendant left the McGee house in a taxi. Macon and defendant went to defendant’s house, and Lorenzo and the two Macon children went to defendant’s mother’s house next door. Approximately two hours later, defendant and Lorenzo Strong went to Strong’s house to meet Anthony Strong and Marvin Hammond. Macon was not there. After playing cards and rehearsing their band for several hours, Hammond, Anthony and Lorenzo Strong and defendant drove to defendant’s house. The Strongs and Hammond again went to defendant’s mother’s house. Macon was waiting for defendant in his living room and asked him whether he was still going to help him move. Although defendant thought 2 a.m. was too late for moving, he, Macon, both Strongs and Hammond drove to the McGee house in Hammond’s car. While in the car, defendant did not hear any discussion about robbing the McGees, but knew that Macon always carried a gun.

When they arrived at the McGee house, Macon told them to drop him off in front and then to drive around to the back. Macon then admitted defendant, Hammond and both Strongs into the rear entrance of the McGee house. Lorenzo Strong and defendant sat down on the bed in the rear bedroom and watched television while Anthony stood in the bedroom doorway. Defendant heard Mrs. McGee tell Macon that he had already taken too many aspirin. Macon signaled defendant to follow him, and when they reached Kneeland’s room, Anthony opened his door, turned on the light, put his hand over Kneeland’s eyes and held a gun to his head. Defendant’s first reaction was to leave, but he did not want to use the back door because Kneeland might see him and recognize him. Instead, he “trotted” to the front door, but could not unfasten the chain. He then stood behind a partition in the dining room waiting for a chance to get out. While standing there, he heard Macon and Anthony tell Mrs. McGee that this was a stickup. When Jessie McGee walked out of his bedroom, Anthony hit him over the head and robbed him. Macon then asked Anthony if he should tie up Mrs. McGee. Anthony said “yes,” and told Jessie and Kneeland to go to the basement and to sit at the top of the stairs. He then latched the basement door. When Anthony told Mrs. McGee to get up, she said that she could not walk. Defendant did not know why. At that point, he was nervous and scared and just wanted to get out. After defendant saw Macon put Mrs. McGee in a different room, he went out to the back porch where Strong was waiting and told Strong that he knew the McGees and did not want to be involved. Strong told him not to worry and sent him into the house to get Macon so that they could leave. Macon told defendant that he was going to stay and call the police to report a robbery and tell them that he had been hit over the head. As he was leaving, defendant heard Jessie McGee telling Macon that he knew Macon had something to do with the incident.

Anthony and Lorenzo Strong, Hammond and defendant then drove to Anthony’s house in Hammond’s car and divided the money taken from the McGees. Defendant allegedly refused to take any. Defendant denied that he had had a gun and further stated that he had neither seen a gun nor heard any gunshots. Approximately one hour later, Macon arrived at Anthony’s house. When the group went outside; defendant noticed that Macon had a different car, but he did not recognize it as the McGees’ automobile. Macon later drove defendant home in the car and asked defendant to hold his gun for him. Defendant took the gun and, once inside, threw it under his bed. A few hours later, defendant’s wife woke him up and told him that some men were there to talk to him. He was then arrested for murder. Defendant claimed that he had had no idea what was going to happen when he went to the McGee house with the others.

On cross-examination, defendant stated that he had known the McGee family for about 10 years and that he saw Macon frequently because his mother watched the Macon children on weekends. The first indication defendant had had that something was wrong at the McGee house was when Anthony turned on Kneeland’s bedroom light, put his hand over Kneeland’s eyes and pointed a gun at him.

During the robbery, defendant did not try to leave via the back door because he did not want the McGees to see him. The only time that he ever spoke while in the McGees’ house was when he asked Anthony what was going on. Further, he did not hear any vulgarities or shouts regarding money while he was there. Prior to being shown the police report, defendant did not know that Mrs. McGee had been raped. Defendant admitted that he had made no attempt to leave the scene once he was outside the McGee house. Instead, he followed Anthony’s instruction to go back inside to get Macon. After doing so, defendant drove to Anthony’s house with the others. He did not ask to get out of the car or to be taken home. In addition, once at the Strong’s house, he made no attempt to leave and did not call the police when he arrived later at his own house.

At trial, defendant identified a photograph of the McGees’ Cadillac as the car that Macon had driven to the Strongs’ house directly after the robbery. He had never seen the McGees driving that particular car, and, in fact thought that the McGees had a black and white Cadillac rather than a yellow and brown one. When he asked Macon about the car that night, Macon told him that it belonged to his girlfriend. On the way home, defendant sat in the front passenger seat. He stated that he might have touched the back window when Macon and Anthony were arguing outside the Strongs’ house about the television in the trunk.

On redirect, defendant stated that, after the incident, Anthony told him that he and Macon had planned the robbery and had wanted defendant and Lorenzo there because the McGees knew their faces and “wouldn’t be worried or nothing, because they knew us.” Defendant further testified that Macon told him that he had called the police and told them that some boys had broken in.

In rebuttal, Barbara McGee testified that one can exit from the front door of her house by simply turning the lock; no key is required.

Following closing arguments and the court’s instructions to the jury, the trial court denied defendant’s motion for a mistrial. Subsequently, the jury returned a verdict of guilty as to murder, armed robbery, home invasion, and the two counts of attempted murder, and a verdict of not guilty as to the rape and deviate sexual assault charges. Thereafter, defendant’s motion for a new trial was denied and defendant was sentenced to concurrent terms of 30 years for attempted murder, armed robbery and home invasion, and 40 years for murder.

Defendant contends that the State failed to prove that he or one for whom he may have been accountable entered the McGees’ home “without authority,” an essential element of the offense of home invasion. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11(a).) Defendant argues that Macon, the first alleged intruder to enter the McGee home, was invited into the McGee home by Mrs. McGee. Once Macon had entered, he possessed common authority to invite others to enter as a result of his “occasional resident” status. Defendant admits that Macon was invited to enter for the “limited purpose of spending the night and not for the purpose of robbing” the McGees, but denies that this fact altered his authorized entry.

In response, the State argues that defendant has waived this issue for review because he failed to raise it in his post-trial motion. As an alternative argument, the State contends that even if Macon’s entry was originally authorized, it became unauthorized when he or those for whom he was accountable commenced robbing and assaulting the McGee family. We disagree with the State’s waiver argument; failure to prove an essential element of an offense may be raised for the first time on appeal. (People v. Flowers (1977), 52 Ill. App. 3d 301, 303, 367 N.E.2d 453.) However, we concur that Macon’s entry became unauthorized when he allowed others to enter for the purpose of robbing and assaulting the McGee family. People v. Hudson (1983), 113 Ill. App. 3d 1041, 448 N.E.2d 178, appeal denied (1983), 96 Ill. 2d 545.

In Hudson, defendant appealed his conviction for home invasion on the ground that the evidence introduced at trial was insufficient to prove that he had entered the dwelling place of another without permission. The evidence revealed that the victim had invited defendant into his house to discuss the purchase of marijuana. After talking for approximately one minute just inside the victim’s door, a friend of defendant whom the victim recognized entered the house and asked if he could go into the kitchen. The victim gave him permission to do so. A few minutes later, a third man approached the front door, stepped inside, and suggested to defendant that they leave. At that point, the victim turned around and discovered that the man who had gone into the kitchen was standing behind him with a gun pointed at his back. He then glanced at defendant and noticed that he, too, was holding a gun. The men then informed the victim that they intended to rob him.

In reaching its decision, the Hudson court adopted the rationale of People v. Fisher (1980), 83 Ill. App. 3d 619, 404 N.E.2d 859, which applied the “limited authority” doctrine previously restricted to burglary of public buildings to the burglary of a private residence, and further concluded that the statutory phrase “without authority,” found in both the burglary and home invasion statutes, should have the same meaning. Accordingly, the Hudson court found that the authorization given to defendant and his friends to enter was limited to the purpose of a social visit, and once that authority was exceeded by their assault upon the owner, the consent for the entry was vitiated.

In the case at bar, as in Hudson, Macon was given permission to enter the McGee home for the purpose of spending the night. He exceeded the authority granted when he admitted defendant and the other assailants for the purpose of robbing the McGees. Moreover, contrary to defendant’s argument, Macon did not possess common authority to admit others into the McGee home. The concept of common authority as it relates to third-party consent to a warrantless search “ ‘rests *** on mutual use of the property by persons generally having joint access or control for most purposes.’ ” (People v. Seidel (1983), 115 Ill. App. 3d 471, 474, 449 N.E.2d 1384, appeal denied (1983), 96 Ill. 2d 548, quoting United States v. Matlock (1974), 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7.) The record clearly negates any claim of Macon’s mutual use of the McGee home. Although Macon had spent the night at the McGee home on an “on and off” basis, the record indicates that he had to receive permission to do so from Mrs. McGee on the night in question. Moreover, there is no evidence that he had a key to the premises or that he would be automatically admitted for the night. Finally, we find the cases cited by defendant distinguished from this case for the reasons stated parenthetically: People v. Shaffer (1982), 111 Ill. App. 3d 1054, 444 N.E.2d 1096, appeal denied (1983), 93 Ill. 2d 547 (third-party consent to warrantless searches); People v. Scott (1982), 108 Ill. App. 3d 607, 439 N.E.2d 130 (defendant’s acquittal of burglary charge removed intent necessary to convict for home invasion); People v. Peace (1980), 88 Ill. App. 3d 1090, 411 N.E.2d 334 (predated Hudson and restricted “limited authority” doctrine to burglary of public buildings); and People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489, appeal denied (1980), 81 Ill. 2d 597 (essential element of home-invasion offense omitted from information). Accordingly, we conclude that the State’s evidence was sufficient to prove the defendant guilty of the offense of home invasion beyond a reasonable doubt.

Defendant next contends that his armed robbery conviction should be reversed because the State failed to prove that either he or one for whom he was accountable took McGee’s automobile. Defendant argues that because he never admitted that the auto driven by Macon immediately after the McGee robbery was the missing McGee vehicle and because none of the State’s witnesses saw defendant or another for whom he was accountable take the McGee auto, he was not proved guilty of armed robbery beyond a reasonable doubt.

A conviction may be sustained on circumstantial as well as direct evidence. The only requirement is that the proof be of a conclusive nature and tend to lead, on the whole, to a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Anton (1981), 100 Ill. App. 3d 344, 351, 426 N.E.2d 1070.) In the present case, an examination of the record as a whole reveals that there was substantial evidence to show beyond a reasonable doubt that one for whom defendant was accountable took the McGee automobile with force or threat of imminent force. Initially, Mrs. McGee testified that when she went to bed on the evening of March 11, 1981, her yellow and brown 1976 Cadillac was parked in front of the McGee home. Joseph Kneeland subsequently testified that shortly after the intruders left the McGee home, he looked out the front window and noticed that the Cadillac was missing. Later that day, the police located the missing auto parked five or six doors west of Macon’s home and also recovered defendant’s palm print from the rear side window of the McGee auto. Most importantly, contrary to defendant’s contention that he never admitted that Macon was driving McGee’s auto, at trial defendant identified a police photograph of the McGee automobile as depicting the auto that Macon had driven to Strong’s house immediately following the McGee robbery. Accordingly, we conclude that the evidence establishes defendant’s guilt of armed robbery beyond a reasonable doubt.

Defendant next argues that the trial court committed reversible error in giving a jury instruction which misstated the burden of proof as to the offense of attempted murder. The trial court orally stated the following issues instruction to the jury regarding the offense of attempted murder:

“To sustain the charge of Attempt, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step towards the commission of the offense of Murder; and
Second: That the defendant, or one for whose conduct he is legally responsible, did so with intent to commit the offense of Murder.
If you find from your consideration of all the evidence that any one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Defendant argues that this oral instruction authorized the jury to convict defendant of attempted murder if less than all of the elements were found proved. Defendant further contends that the prejudicial error was augmented by an alteration in the written instructions of record which changed the word “any” in the last paragraph of the instructions to “each,” resulting in the following:

“If you find from your consideration of all the evidence that each one of the propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Thus, defendant argues, the jury was instructed erroneously that he could be convicted of attempted murder if either one of the two elements were proved, and found not guilty only if each element was not proved. As a result, defendant contends that he was severely prejudiced by the fact that the jury was denied the appropriate application of the law to the facts.

The State argues that defendant waived any error the trial court may have committed by its failure to object to the jury instructions at trial or to allege the error in his post-trial motion. Although the failure to object to a jury instruction generally constitutes a waiver (People v. Roberts (1979), 75 Ill. 2d 1, 16, 387 N.E.2d 331), where there are such grave errors in instructions as to affect the requirements of a fair and impartial trial, the plain error doctrine set forth in Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)) provides for a relaxation of the rule that a party may not assert error if he has caused or permitted an erroneous instruction to go to the jury. (People v. Ogunsola (1981), 87 Ill. 2d 216, 222-23, 429 N.E.2d 861; People v. Jenkins (1977), 69 Ill. 2d 61, 66, 370 N.E.2d 532; People v. Martinez (1979), 76 Ill. App. 3d 280, 283, 395 N.E.2d 86.) Thus, under the plain error doctrine, we consider the alleged error.

It is well-established that in criminal cases, the court bears the burden of seeing that the jury is properly instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof. (People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487.) The court’s failure to give properly any of these three essential jury instructions serves to deprive the accused of a fair and impartial trial. People v. Williams (1983), 120 Ill. App. 3d 900, 904, 458 N.E.2d 1312.

In the present case, the error in instructions occurred in an essential mandatory instruction which explained the burden of proof. It was not a mere technical defect or an error in a nonmandatory instruction which frequently may be remedied by reading the entire series of instructions as a whole. (People v. Huckstead (1982), 91 Ill. 2d 536, 546, 440 N.E.2d 1248; People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331.) Further, not only were the oral and written instructions individually erroneous, together they presented conflicting and contradictory grounds by which the jury was to reach a not-guilty verdict.

In reviewing the numerous cases cited by the parties on this issue, we find People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532, and People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, dispositive of the issue in favor of defendant’s contention. In addition, we find People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513 (omission of a nonmandatory instruction); People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331 (inclusion of incorrect mental states in a non-mandatory definitional instruction does not constitute grave error); and People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248 (instructions were neither contradictory nor missing essential elements of the crime charged), relied upon by the State, factually distinguishable for the parenthetical reasons stated.

In People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532, the supreme court reversed a conviction for attempted murder because two contradictory instructions regarding the claim of self-defense were given. The court held that, although one instruction had been proper, by combining it with an incorrect instruction, the trial court confused the jury. The court reasoned that:

“Where the instructions are contradictory the jury is put in the position of having to select the proper instruction — a function exclusively that of the court. As far as can be known, defendant might well have been convicted on the basis of the erroneous instructions. Certainly, a person should not stand to lose his liberty because a jury has received equivocal instructions.” 69 Ill. 2d 61, 67.

In People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, the State’s burden instruction failed to contain a necessary element of the offense of deceptive practices, i.e., intent to defraud. In reversing defendant’s conviction and remanding for a new trial, the supreme court stated that “|j]ury instructions that incorrectly define the offense cause prejudice to a criminal defendant far more serious than instructions that do not include a definition of a term.” 87 Ill. 2d 216, 223.

As previously stated, in the present case, not only were the attempted murder instructions contradictory, they incorrectly set forth the burden of proof. As they were received by the jury, defendant could have been found guilty if he had taken a substantial step, but did not have the intent to commit murder. Because an attempted murder instruction must make clear that intent to kill is necessary to convict for attempted murder (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28), the possibility that the jury might have reached its determination of guilt based solely on the substantial step element alone mandates reversal and remand for a new trial on the two charges of attempted murder, even though the evidence was sufficient to find defendant guilty of those charges beyond a reasonable doubt.

Defendant argues that the murder, home invasion and armed robbery charges should be reversed and remanded for a new trial because his right to effective counsel was violated by the trial court’s order which prohibited him from speaking with his attorney during a lunch recess which was called between his cross-examination and redirect examination. We disagree.

Upon completion of his cross-examination, the following colloquy ensued:

“COURT: It is a quarter after. Lunch has been here about fifteen minutes. I don’t want it to get cold.
DEFENDANT: I have only three questions.
COURT: I will excuse the jurors for lunch until 1:15.
I want nobody to talk to the witness because he is on the stand.
[outside presence of jury]
DEFENDANT: Judge, there is a case, Judge Epton overnight forbade an attorney to talk to his client.
The case was reversed.
COURT: While his client was on the witness stand?
DEFENDANT: While his client was on the witness stand.
COURT: What level was it, Appellate Court?
DEFENDANT: Sure, it was Appellate Court.
STATE: What happened?
COURT: Once a witness takes the stand,—
DEFENDANT: I give you my oath, I want to talk to him, but not about his testimony.
COURT: When a witness is on the stand, it is "within the discretion of the Judge to sequester him, and not even his own attorney, not even the State, is allowed to talk to him.
DEFENDANT: I respectfully take exception.
COURT: The order stands.”

Defendant relies on Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, and People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96, in support of his contention. In each of those cases, defendant was prevented, over defense counsel objection, from consulting with his attorney during overnight 17-hour recesses. Those courts held that defendants’ sixth amendment rights had been violated. Here, a lunch-hour recess only was involved; defendant’s attorney did not want to talk to him about his testimony; and immediately after defendant left the witness stand his attorney spoke with him. We find that his sixth amendment rights were not violated. (See People v. Moore (1984), 128 Ill. App. 3d 505; People v. Stroner (1982), 104 Ill. App. 3d 1, 432 N.E.2d 348; People v. Seider (1981), 98 Ill. App. 3d 175, 423 N.E.2d 1217, appeal denied (1981), 85 Ill. 2d 573.) Defendant was not denied effective assistance of counsel.

Because we affirm the convictions and sentences for home invasion and armed robbery and reverse and remand for a new trial the convictions and sentences for attempted murder, we find that no reason exists for remanding the murder conviction for resentencing. The evidence was sufficient to prove defendant guilty of murder beyond a reasonable doubt.

For the foregoing reasons, the judgment and sentences on the two counts of attempted murder are reversed and the cause is remanded for further proceedings consistent with this opinion. In all other respects, the convictions and sentences are affirmed.

Affirmed in part; reversed and remanded in part.

BUCKLEY, P.J., and McGLOON, J., concur.