author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOBY W. PUMPHREY, Defendant-Appellant.
    Fifth District
    No. 82—387
    Opinion filed July 7, 1983.

      Robert Weiner and John S. Weiner, both of Springfield, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Toby W. Pumphrey, was charged with two counts of murder and one count of voluntary manslaughter in the shooting death of Delmar Williams. Following a jury trial, defendant was found guilty of a lesser included offense, involuntary manslaughter. The circuit court of Christian County entered judgment on the verdict and sentenced defendant to three years’ imprisonment.

On appeal, defendant argues that the trial court erred in refusing to instruct the jury on reckless conduct and that the court’s substitution of the assigned trial judge was "without authority and acted to deny him a fair trial. We affirm.

Williams’ death occurred on October 23, 1981, at the home of defendant and Cheryl Pumphrey. Defendant had been living apart from Ms. Pumphrey for several days but returned to the house in the early morning hours of October 23. He found Ms. Pumphrey cooking at the stove in the kitchen while Williams, a friend of hers, was sitting in the living room. Ms. Pumphrey testified that when defendant saw Williams, he went to the gun cabinet in the living room, unlocked it, and removed and loaded a 12-gauge shotgun. He then told Williams he had two seconds to get out of the house. When Williams did not respond, defendant stepped toward the victim and shoved the shotgun in his side. The gun discharged, killing Williams.

Defendant testified that he warned Williams twice before attempting to scare him out of the house with the gun. He denied loading the gun and testified that he believed it was unloaded.

We turn first to the instructions given at trial. During the instruction conference, defendant tendered an instruction on involuntary manslaughter arguing it was a lesser included offense of the charged offense, voluntary manslaughter and on reckless conduct as a lesser included offense of involuntary manslaughter. The court gave only the involuntary manslaughter instruction.

Defendant must satisfy two requirements to be entitled to the reckless conduct instruction. First, the lesser offense must be included in the greater offense. A lesser included offense is defined as an offense which contains some but not all of the elements of the greater offense and which contains no element not included in the greater. (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9(a); People v. Cramer (1981), 85 Ill. 2d 92, 97, 421 N.E.2d 189, 191; People v. Wys (1982), 103 Ill. App. 3d 273, 275, 431 N.E.2d 38, 40.) The supreme court has recognized the use of three tests helpful in determining whether an offense is a lesser included offense. The focus of the inquiry can be on the statutory definition of the greater offense, on the greater offense as charged or on the greater offense as proved at trial. People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633, 635.

We do not find it necessary to analyze the present case in terms of these three tests. In cases where death occurs, an instruction on reckless conduct is simply improper. Reckless conduct is directed towards the infliction of bodily harm while involuntary manslaughter is concerned with the death of the victim. People v. Mikel (1979), 73 Ill. App. 3d 16, 391 N.E.2d 558; People v. Johnson (1975), 32 Ill. App. 3d 36, 335 N.E.2d 144.

Secondly, the lesser included offense doctrine does not apply unless there is a controversy, or dispute, over the presence of a factual element the proof of which is required in order to constitute the greater offense, that is not an element in the lesser offense. (People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189.) The parties agree that an element distinguishing involuntary manslaughter from reckless conduct is that the acts performed by defendant “were likely to cause death or great bodily harm.” Defendant argues that the disputed fact on this issue is whether or not he loaded the gun or knew that it was loaded. He argues it is necessary for the jury to decide this issue to convict him of involuntary manslaughter but that it is unnecessary to a determination of the reckless conduct charge.

We agree with the State, however, that the facts constituting the act likely to cause Williams’ death are undisputed — defendant admits he shoved a loaded gun into Williams’ body. The knowledge of the loaded condition of the gun goes to defendant’s state of mind. Since both offenses require recklessness as the mental state, there is no disputed factual element in the greater offense that is not required for conviction of the lesser. Accordingly, the instruction was properly refused.

Defendant has also questioned the propriety of the chief judge’s order substituting defendant’s assigned trial judge.

In late 1981, Judge Huber presided over defendant’s arraignment, preliminary hearing and several motions made by defense counsel. Defendant’s trial was assigned to Chief Judge Hickman. In March of 1982, defendant exercised his statutory power to have Hickman disqualified from defendant’s trial (Ill. Rev. Stat. 1981, ch. 38, par. 114— 5(a)) and Judge Dailey was assigned. Defendant requested a second substitution pursuant to section 114 — 5 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)) on March 18 and Judge Huber was assigned. Judge Huber made several rulings on March 24 in regard to the motions he heard earlier. On April 5, 1982, Chief Judge Hickman, by docket entry, ordered Judge Frank Schniederjon to conduct all further hearings, including the jury trial, in defendant’s case. Notice of the assignment was sent to defense counsel. Defendant objected to the order and following an adverse ruling, filed a motion to vacate the order which was also denied.

Defendant argues first that the chief judge was without authority to make the assignment, and second, that because Judge Huber had already ruled on substantive matters in the cause, assignment of a new judge denied him a fair and impartial trial.

We are not persuaded by either argument. The assignment made by Chief Judge Hickman was within his general administrative authority granted by article VI of the Illinois Constitution: “[T]he Chief Judge shall have general administrative authority over his court, including authority to provide for divisions, general or specialized, and for appropriate times and places of holding court.” (Ill. Const. 1970, art. VI, sec. 7(c).) Supreme Court Rule 21(b) explicitly includes the assignment of trial judges as an exercise of this general administrative authority. 87 Ill. 2d R. 21(b).

Defendant relies on the decision in People v. Massarella (1979), 80 Ill. App. 3d 552, 400 N.E.2d 436, to support his argument that the substitution denied him a fair trial.

The court in Massarella stated that even if a motion for substitution of a judge is filed within the 10-day period required by the statute (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(a)), the motion is untimely if it comes after substantive rulings have been made by the assigned judge. The court reasoned that counsel could ascertain the attitude of the judge as to those substantive issues and based on that information, move for substitution. (80 Ill. App. 3d 552, 563, 400 N.E.2d 436, 446.) Defendant argues that the same concern is present, and thus the same rule should apply, when substitution is made by the court. He points out that Judge Huber had made several rulings on motions before Judge Schniederjon was assigned and he claims that the chief judge could have ordered substitution because he was not in agreement with Judge Huber’s rulings.

However, we note that defendant has not alleged any specific acts of prejudice nor in our review of the record do we find any evidence-of prejudice. Further, defendant could have exercised his right under section 114 — 5(c) to have Judge Schniederjon removed for cause. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(c).) At the hearing to remove for cause, defendant could have made the argument now urged on appeal. In light of these considerations, we are unable to conclude that defendant was denied a fair trial.

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

Affirmed.

JONES and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL D. GORDON, Defendant-Appellee.
    Fifth District
    No. 82—536
    Opinion filed July 22, 1983.
    K. Rick Keller, State’s Attorney, of Effingham (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Michael D. Gordon, was arrested on April 18, 1982, for driving a motor vehicle while under the influence of alcohol. The arresting officer, Deputy Dean Biggs, filed an affidavit in the cause which stated in part that the officer had placed defendant under arrest and that he had “at the time of arrest reasonable cause to be- - lieve that said person was driving a motor vehicle in this state while under the influence of alcohol, other drugs or combination thereof.” The affidavit contained the further certificate that defendant “did willfully refuse to submit to the chemical test or tests requested in accordance with Section 11 — 501.1 of The Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal.” On April 20, 1982, the circuit clerk of Effingham County sent defendant a notice which advised defendant that his driver’s license would be suspended unless he made an application for a hearing under the Code within 28 days. On June 11, 1982, defendant wrote to the circuit court and advised it that he “would like a hearing on the refusal of my breath test.”

On September 1, 1982, defendant filed a motion to dismiss the implied consent proceedings on the ground that the arresting officer’s affidavit did “not set forth facts and circumstances which sufficiently give rise to the conclusion that the Defendant was operating a motor vehicle while under the influence of intoxicating liquor.” At the hearing on this motion defendant relied upon the case of People v. Batchelder (1982), 107 Ill. App. 3d 81, 437 N.E.2d 364. The State urged that the Batchelder decision was incorrect and should not be followed. At the conclusion of the hearing, the trial court entered its decision on defendant’s motion as follows:

“Whether I agree with the decision in the Batchelder case or not, I’m not sure that I do, personally. I’m not sure it’s necessary that the facts be set forth in the affidavit if they are shown to be in existance \sic\ on the hearing. *** [I]t seems to me this is fairly drastic of the Appellate Court in the 3rd district - fairly drastic action it has taken to address what it perceives as a problem with lack of notice of this. Still, *** as long as the appellate decision is in any district *** and there is no contrary authority then the trial courts are bound to follow that precedent.
Therefore, the motion to dismiss the breath refusal and implied consent proceedings, I feel bound legally to grant, and I therefore do.”

The State appeals the trial court’s judgment granting defendant’s motion to dismiss the implied consent proceedings authorized by section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11 — 501.1). Therefore, the issue before us is whether the fourth and fourteenth amendments to the United States Constitution require an arresting officer to set out in his implied consent affidavit the underlying circumstances which provided him with a reasonable belief that the arrested person was driving while under the influence of intoxicating liquor. We conclude that the United States Constitution requires no such determination and that the affidavit in the case at bar is sufficient.

We first observe that the circuit court properly concluded that it was bound by the precedent of Batehelder absent a contrary ruling by this appellate (¿strict. (See People v. Collings (1981), 95 Ill. App. 3d 325, 329, 420 N.E.2d 203, 206.) However, after the oral arguments were heard in the case at bar and prior to the entry of this order, Batehelder was expressly reversed by the United States Supreme Court (Illinois v. Batchelder (1983), ___ U.S ___, 77 L. Ed. 2d 1267, 103 S. Ct. 3513); therefore, the judgment of the trial court must be reversed and this cause reitianded for further proceedings.

For the foregoing reasons, the judgment of the circuit court of Effingham County is reversed and remanded.

Reversed and remanded.

HARRISON, P.J., and WELCH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER ALLISON, Defendant-Appellant.
    Fifth District
    No. 81—601
    Opinion filed July 21, 1983.

      Randy E. Blue and Kent Bartholomew Mann, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      William P. Strange, State’s Attorney, of Lawrenceville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Peter Allison, was charged by information with committing indecent liberties with a child by performing an act of lewd touching in violation of section 11 — 4(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)(3)). Following a bench trial in the circuit court of Lawrence County, defendant was convicted and sentenced. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt, that items seized from his trailer home were not sufficiently described in the search warrant and that certain State’s exhibits were improperly admitted into evidence.

The victim and complaining witness in this case was six years old at the time of the incident in question. He testified that on April 17, 1980, he saw defendant talking to a group of boys outside of defendant’s trailer home in Lawrenceville. After defendant finished talking to the boys, complainant and defendant went into the trailer where they were alone. Complainant testified that he had recognized defendant from the township swimming pool the previous summer.

Complainant entered the kitchen of the trailer and found a label gun. He made a label with his name which he put on his jacket. Defendant also was in the kitchen for a few minutes until he went into the front room and lay down. Complainant then went into the bathroom and defendant brought some books from a room with a curtain door. When • complainant returned, defendant grabbed him “between the legs” and was told to stop by complainant.

After this incident, defendant showed complainant books which had “pictures of naked ladies.” Defendant then grabbed him again between the legs and “fooled.” Complainant told defendant to stop and again he complied. Following this second touching, defendant asked complainant if he had ever seen his sister “without any clothes on,” to which he replied, “No.” Complainant then left defendant’s trailer and rode his bicycle home.

Complainant’s mother testified that on the day in question she was concerned because her son did not return home until late. She stated that she noticed that when he returned he had a label with his name taped to his jacket. She further testified that her son always told the truth though he sometimes exaggerated.

Complainant’s father testified that his son told him that defendant showed him some “nasty books.” He stated that his son exaggerated to his brothers and sisters but “wouldn’t exaggerate about something like that.” Complainant’s father admitted that he used the word “magazines” in his search warrant affidavit and the word “book” at the preliminary hearing.

Defendant testified in his own behalf that on April 17, 1980, he invited complainant into his trailer home and offered him a glass of soda. As he was pouring the soda, complainant went into the living room and began looking at a book entitled, “Show Me.” Defendant testified that he told complainant that he was too young to look at that book and then took it away from him and brought it into a second bedroom which had a curtain door. Complainant then followed defendant into this room and defendant suggested that they both return to the front room.

Defendant testified that on April 19, 1980, complainant came to the door of his trailer and asked to see the book he had looked at previously. Defendant stated that he refused to show him the book and heard complainant say as he was leaving that, “I’m going to tell my father.”

On cross-examination, defendant stated that he had no sexual contact with complainant, and that such contact was repugnant to him. He further testified that he did not collect “kiddie pornography” and did not have any order blanks for such material in his trailer.

Defendant’s wife testified that at the time of her husband’s arrest there were no advertisements for child pornography in the trailer. In addition, she corroborated defendant’s testimony that complainant asked to see more of the book “Show Me” on April 19,1980.

The State offered into evidence State’s exhibits Nos. 5, 6 and 7 consisting of advertising for child pornographic material which had been seized from defendant’s trailer pursuant to a search warrant. The trial court admitted the State’s exhibits over the objection of defendant for the limited purpose of impeachment.

Defendant’s first contention on appeal is that he was not proved guilty beyond a reasonable doubt of the offense of indecent liberties with a child. It is well settled that where a conviction of this offense depends on the testimony of the complaining witness, and defendant denies the charge, there must be substantial corroboration of his testimony, or the testimony must be clear and convincing. The testimony of a complaining witness, however, need not be crystal clear and perfect as far as memory is concerned in order for his testimony to be clear and convincing. People v. Boyd (1980), 87 Ill. 3d 978, 982, 409 N.E.2d 392, 397.

Defendant contends that the testimony of the complaining witness in the instant case was neither clear and convincing nor substantially corroborated. In support of this contention, defendant asserts that complainant was only seven years old when he testified, and he had a tendency to exaggerate. Defendant also questions the validity of complainant’s testimony because complainant did not immediately report the incident. Defendant further contends that complainant’s testimony concerning the lewd fondling was insufficiently vague and did not establish that he intended to arouse sexual desires as required by statute.

The issue of a witness’ credibility in a prosecution for indecent liberties with a child is to be determined by the trier of fact. (People v. Boyd (1980), 87 Ill. 3d 978, 409 N.E.2d 392.) Any shortcoming in the victim’s testimony does not destroy his credibility but merely goes to the weight to be afforded to the testimony by the trier of fact. (People v. Britton (1980), 80 Ill. App. 3d 482, 400 N.E.2d 33.) In an appeal of a bench-tried case, great weight must be given to the trial court’s determination concerning the credibility of the witnesses. People v. Stamm (1979), 68 Ill. App. 3d 177, 385 N.E.2d 839.

In the instant case, the trial court, in finding defendant guilty, stated that, “I have a tendency to believe the child,” and noted that there did not seem to be any variance in the complainant’s testimony on direct and cross-examination. Although both of complainant’s parents testified that their son had exaggerated in the past, his exaggeration apparently was limited to incidents involving his brothers and sisters and did not amount to a tendency to exaggerate as defendant asserts. Furthermore, complainant’s father testified that his son would not exaggerate about an incident such as the one at issue here.

Defendant also maintains that complainant’s delay in reporting the incident casts doubt upon the credibility of his testimony. According to the evidence, the incident occurred early in the evening of April 17, 1980, but complainant did not notify his father until the morning of April 19, 1980. This delay, however, might be attributed to a number of factors including complainant’s embarrassment and guilt. We do not believe that such a relatively short delay under the circumstances undermines the credibility of complainant’s testimony.

Regarding the lewd touching, complainant testified that defendant “grabbed me between the legs and fooled.” Although defendant maintains that this contact could have been a “friendly ' squeeze of the knee or slap of the thigh,” the trial court noted that the fact that complainant told defendant to stop touching him was an indication that this contact was not normal. Defendant additionally maintains that the evidence does not clearly establish whether defendant touched complainant’s genitals. We note, however, that physical contact with the victim’s genitals is not essential to support a conviction of indecent liberties with a child. People v. Thingvold (1978), 66 Ill. App. 3d 1002, 384 N.E.2d 489.

Defendant further argues that the State did not present any evidence that any lewd fondling or touching was done with the intent to arouse or satisfy the sexual desires of either the child or defendant or both. (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)(3).) Such intent, however, may be established by circumstantial evidence. (People v. Collins (1978) , 63 Ill. App. 3d 843, 380 N.E.2d 858.) In the present case, there was testimony from complainant that defendant asked him if he had seen his sister “without any clothes on” and showed him sexually oriented books. We believe that this testimony, together with evidence that defendant touched complainant in the genital area suggests that the requisite intent was present.

After reviewing the record, we are convinced that the trial court was mindful of its duties in evaluating the evidence according to the appropriate standards. Consequently, we find defendant’s contention that he was not found guilty beyond a reasonable doubt to be without merit.

The second argument advanced by defendant on appeal is that the search warrant issued in this case did not describe the items to be seized with sufficient particularity. The search warrant at issue restricted the search to the small bedroom next to the living room in defendant’s trailer home and authorized the seizure of “any and all pornographic magazines or literature which have been used in the commission of and which constitutes evidence of the offense of Indecent Liberties with a child.” As a result of the search, several items were seized, including books, magazines, loose pages and order forms for child pornographic material.

A search warrant is not to be issued unless it particularly describes the items to be seized. (People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595.) The purpose of this requirement is to prevent the use of general warrants, which would give police broad discretion as to what they may search and seize. People v. Fragoso (1979) , 68 Ill. App. 3d 428, 386 N.E.2d 409.

Defendant contends that the search warrant was unconstitutional because it did not define what was pornographic, and did not limit the discretion of the police officers in determining what was pornographic. In support of his contention, defendant cites several cases in which broadly worded search warrants were found to be constitutionally defective. In one such case, Stanford v. Texas (1965), 379 U.S. 476, 486, 13 L. Ed. 2d 431, 437, 85 S. Ct. 506, 512, the United States Supreme Court held that a search warrant authorizing the seizure of “books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas, and the operations of the Communist Party in Texas” was unconstitutional. In reversing defendant’s conviction, the court stated that:

“the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” 379 U.S. 476, 485, 13 L. Ed. 2d 431, 437, 85 S. Ct. 506, 511-12.

We believe that Stanford is distinguishable from the instant case in that in the case before us the books and other materials were seized because they were used during the commission of a crime, and were evidence of the offense. The seizure of the materials, therefore, was unrelated to the ideas contained in them, and we believe that the degree of particularity in which those items were described need not be as stringent as in Stanford.

Similarly, we are not persuaded by defendant’s assertion that because the items seized were pornographic a more detailed description of those items was required in the search warrant. In People v. Kimmel (1966), 34 Ill. 2d 578, 217 N.E.2d 785, the court reversed a conviction for possession of obscene books where the officers and assistant State’s Attorney executing the search warrant treated the warrant as a license for a general search. In that case, the State was authorized to seize “all copies” of four books but the policemen and assistant State’s Attorneys seized nearly 1,500 and magazines from over 130 separate titles. The court in Kimmel was concerned with the violation of first amendment principles stemming from the use of a sweeping search warrant which was aimed at suppression rather than obtaining evidence. The situation before us is very different in that the pornographic materials were seized for evidence and this seizure did not encroach upon first amendment freedoms. Consequently, we find that the search warrant in the present case adequately described the items which were seized and does not present a basis for reversal.

Defendant’s third contention is that the trial court erred in admitting certain State’s exhibits into evidence. The exhibits at issue include State’s exhibits Nos. 5, 6 and 7 which consisted of child sex literature and photographs. The State offered these exhibits for the purpose of impeaching the testimony of the defendant and his wife.

In response to defendant’s allegation, the State notes that defendant failed to object to the admission of these exhibits in his post-trial motion and therefore waived this issue. We agree with the State’s general statement that defendant’s failure to raise an issue in his post-trial motion constitutes a waiver and that issue cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Although we could rest our decision on this basis alone, we have reviewed defendant’s contention and find it to be without merit.

Defendant testified on cross-examination that acts of sexual contact engaged in with children were repugnant to him and that no order blanks for “kiddie pornography” were in his trailer. Defendant’s wife also testified that no advertisements for pornographic literature involving children were in the trailer on the date defendant was arrested. To impeach the testimony of defendant and his wife, the State introduced exhibits Nos. 5, 6 and 7 which consisted of material seized from defendant’s trailer on April 21, 1980. The trial court admitted the exhibits for the limited purpose of impeaching their testimony over defendant’s objection on grounds of relevancy.

Defendant contends that the admission of these exhibits was improper because cross-examination should be limited to matters raised on direct examination. Defendant further maintains that because his possession of the material was not at issue, the introduction of the exhibits constituted improper collateral impeachment.

When defendant testified in his own behalf at trial, he put his credibility in issue and opened such to possible impeachment. (People v. Spears (1967), 83 Ill. App. 2d 18, 226 N.E.2d 67.) Cross-examination to impeach is not limited to matters brought out in direct examination. (People v. Davis (1979), 70 Ill. App. 3d 454, 388 N.E.2d 887.) Furthermore, the reception of evidence collateral to an issue in a case and intended to affect the credibility of a witness rests within the discretion of the trial court, which will not be disturbed absent an abuse of discretion. (People v. Renslow (1981), 98 Ill. App. 3d. 288, 423 N.E.2d 1360.) We cannot say that the trial court abused its discretion in admitting the State’s exhibits, which contradicted defendant’s testimony that advertisements for “kiddie pornography” were not present in his trailer.

Defendant further contends that the trial court improperly admitted State’s exhibits Nos. 5, 6 and 7 as substantive evidence. After the State offered the exhibits for impeachment purposes, the trial court stated, “All right, they’ll be admitted for that limited purpose.” Although the court later noted the existence of sexual literature in defendant’s trailer when it found him guilty, there is no indication in the record that the trial court was referring to State’s exhibits Nos. 5, 6 and 7. This court has noted that a judge is presumed not to give improper weight or consideration to evidence. (People v. Stamm (1979), 68 Ill. App. 3d 177, 385 N.E.2d 839.) After examining the record, we have found no evidence which rebuts this presumption and suggests that the court improperly considered the State’s impeachment exhibits.

In addition to State’s exhibits Nos. 5, 6 and 7, defendant contends that the trial court erred in admitting State’s exhibit No. 1 into evidence. This exhibit which defendant also objected to on the grounds of relevancy consisted of nine books and magazines seized from defendant’s trailer.

At trial, complainant testified that defendant showed him books “with pictures of naked ladies.” He further testified that defendant took the books from a room with a curtain door, which was the room from which the items in exhibit No. 1 were seized. We believe, therefore, that exhibit No. 1 was relevant in that it corroborated complainant’s testimony and supported the trial court’s finding that physical contact was sexually motivated. Accordingly, we find that the trial court properly admitted exhibit No. 1 into evidence.

For the foregoing reasons, defendant’s conviction for the offense of indecent liberties with a child is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ASA MINOR, JR., Defendant-Appellant.
    Fifth District
    No. 81—648
    Opinion filed July 20, 1983.

      Randy E. Blue and Susan A. Diehl, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Peter C. Drummond, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

A jury found the defendant, Asa Minor, Jr., guilty of three counts of theft over $150. The defendant was found to have exerted unauthorized control on January 30, 1980, over three automobiles that had been stolen prior to that date from three separate owners. The three automobiles, from which numerous major parts had been removed, were discovered on the day in question in a large building rented by the defendant. The trial court entered judgment and sentenced the defendant to four years in the Department of Corrections on each of the three counts, the sentences to be served concurrently. On appeal defendant raises three issues: (1) whether the trial court abused its discretion in allowing impeachment of the defendant by two prior convictions for tampering with an automobile; (2) whether the trial court committed reversible error by refusing to instruct the jury as to the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), the pattern jury instruction on the use of circumstantial evidence; and (3) whether the trial court erred in entering judgments, of conviction and sentencing defendant on three counts of theft oyer $150 where the three offenses arose out of “a single, simultaneous'act of unauthorized control.”

Defendant contends that the trial court’s ruling as to the admissibility of. two prior convictions for tampering with an automobile preeluded defendant from testifying in his own behalf. Defendant contends further that the use of two identical convictions, similar to the offense charged, amounted to prosecutorial “overkill” and that the trial court’s failure to limit the number of convictions to only one was an abuse of its discretion. Defendant objects particularly to the use of the two prior convictions for tampering with an automobile because of their similarity to the offenses with which defendant was charged, saying, “The defendant’s criminal record demonstrates what might be considered a propensity to commit crimes involving automobiles.” In his brief on appeal defendant describes his prior convictions as follows:

“The defendant's pre-sentence investigation reported that the defendant had three convictions in the ten years preceding his trial, all of them occurring in Missouri: in 1975, for tampering with an auto, for which he was sentenced to two years in prison; in 1974-75, for possession of a motor vehicle with an altered manufacturer’s number, for which he was sentenced to one year in county jail and fined $500; in 1972-73, for tampering with an auto, for which he was sentenced to three years in prison.
In the discussion of the defendant’s motion [to preclude the State from using his prior convictions for impeachment], the prosecutor stated that the convictions he intended to introduce for impeachment were the two for tampering with a motor vehicle.”

We note parenthetically that defendant was tried initially for these offenses in May of 1980. At that trial defendant undertook his own defense, having the aid of an assistant public defender. Post trial the trial court granted defendant’s motion for a new trial because the trial court had not informed defendant with regard to waiver of counsel as required by Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). A second trial for these offenses in July of 1981 resulted in a mistrial because of a prejudicial newspaper article published during the course of the trial and read by some of the jurors. A third trial was conducted in October of 1981. This appeal is from the judgment entered following the third trial.

In ruling on defendant’s motion concerning his prior convictions, the trial court described the two offenses for tampering with an automobile as “akin to theft” and concluded, for that reason, that they were “probative on the issue of credibility.” The court stated further:

“And I understand the strategy problem it presents for your client as to whether or not he can take the stand. As a practical matter, it does not bar him from taking the stand. It simply raises a serious credibility question for the jurors, which after they observe the demeanor of the witness, I’m sure they will be able to resolve in whoever’s favor.
Therefore, since it’s probative on the issue of credibility and of recent vintage, I feel that it outweighs the prejudicial effect that it may have upon the Defendant and, therefore, allow its use for impeachment purposes.”

In general, crimes punishable by imprisonment in excess of one year or involving dishonesty may be used for impeachment purposes if the trial court determines that the probative value of the prior convictions is not substantially outweighed by the danger of unfair prejudice. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) To determine whether the prejudicial effect of a conviction substantially outweighs its probative value the trial court must consider four factors set forth in Montgomery: (1) the nature of the crime, that is, whether the prior conviction is relevant to veracity; (2) the nearness or remoteness in time of the conviction to the present trial insofar as it relates to the degree of defendant’s rehabilitation; (3) the subsequent career of the defendant insofar as it too relates to the degree of defendant’s rehabilitation; and (4) the similarity of the prior conviction to the present charge because such similarity often invites an improper inference of guilt rather than directs attention to the defendant’s credibility. (People v. Blair (1981), 102 Ill. App. 3d 1018, 429 N.E.2d 1375.) The fourth of these factors has not been deemed by Illinois courts to be conclusively prejudicial, and the courts have frequently allowed impeachment by the use of the same or similar crimes. (People v. Blair; People v. Garlin (1981), 101 Ill. App. 3d 716, 428 N.E.2d 697.) Furthermore, the mere fact that a defendant decides not to risk the possibility of prejudicial impeachment does not mean that the ruling was erroneous. People v. Ganter (1977), 56 Ill. App. 3d 316, 371 N.E.2d 1072.

In the case at bar the trial court’s statements made in ruling on the motion refute defendant’s claims in his brief. The trial court considered not only the nature of the prior crimes, describing them as “akin to theft,” but also the nearness or remoteness in time of the prior convictions, describing them as “of recent vintage.” The latter consideration has a bearing on the further factor of defendant’s subsequent career. The trial court expressly considered the fourth factor set forth in Montgomery, the similarity of the prior convictions to the present charge, and concluded that the jury would have the opportunity to observe defendant’s demeanor while testifying, thereby enabling it to determine his credibility. For these reasons we conclude that the trial court properly balanced the impeachment value of the prior convictions against the possible prejudice to the defendant, according to the mandate of Montgomery, and did not abuse its discretion in so ruling.

Defendant contends that the evidence against him was entirely circumstantial and, for that reason, the trial court erred in failing to give the second paragraph of IPI Criminal No. 3.02, which provides: “You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.” Although the committee note to this instruction states, “The second paragraph should be given only when the proof of guilt is entirely circumstantial,” the committee note is couched in terms, as was observed in People v. French (1978), 59 Ill. App. 3d 353, 361, 375 N.E.2d 502, 508, “limiting the times when it is permissible to give the second paragraph and not in terms of stating the times when that paragraph must be given.” The failure of a trial court to give the second paragraph of the instruction, if it should have been given, does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error. (People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181; People v. French; see People v. Hanei (1980), 81 Ill. App. 3d 690, 403 N.E.2d 16, cert. denied (1981), 450 U.S. 927, 67 L. Ed. 2d 357, 101 S. Ct. 1382.) To distinguish direct from circumstantial evidence can be difficult. (People v. Stokes; People v. Davis (1981), 93 Ill. App. 3d 217, 416 N.E.2d 1197.) We have examined the entire record on appeal in the case at bar and conclude that we need not make the distinction because, assuming that all of the evidence was circumstantial, our review of the record shows that the failure to give the second paragraph of the instruction could have been, at most, harmless error. A different verdict would not have resulted had the instruction been given. Justice was not denied to the defendant, and the omission, if it were error, does not warrant reversal of defendant’s convictions.

We do, however, agree with defendant that the trial court should not have entered judgment and sentenced defendant on all three counts of theft over $150. At trial two of the owners of the three vehicles testified to the effect that they had last seen their vehicles on November 19, 1979, and the owner of the third vehicle testified that she had .discovered her vehicle missing on January 5, 1980. The indictment, prior to amendment of it by the State, charged defendant with the theft of these vehicles on these dates. Amended, the indictment alleged the theft of the three vehicles by defendant on the same day, January 30, 1980, the day on which State investigators discovered in the building rented by defendant the three vehicles dismantled there. No evidence was adduced at trial as to who — whether defendant or another — had without authority removed the three vehicles from the places in which they had last been parked by their owners. Defendant argues that “[u]nder the circumstances of this case, it is apparent that the defendant, on a single date, by the single act of control over a building, simultaneously exerted unauthorized control over several different items of stolen property belonging to three owners.”

More than one offense cannot be carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) As the court observed in People v. Israel (1915), 269 Ill. 284, 287, 109 N.E. 969, 970, where a defendant was found guilty of receiving property stolen from a warehouse and belonging to two separate owners:

“Where the offense is one act, fully completed at the same time and place, it is but one crime, however many different kinds of property may be stolen. There is no good reason why such an act may be said to constitute more than one crime because there are two or more separate owners of the property stolen. A crime is an offense committed against the public and not merely against a private citizen. Where articles of property are stolen at one and the same time and at the same place, from several separate owners, there are as many wrongs committed against private citizens as there are separate owners, but they are trespasses when so considered. As against the public such an act is but one offense or crime.”

In People v. Jackson (1978), 64 Ill. App. 3d 159, 380 N.E.2d 1210, the court refused to allow two convictions and sentences for felony theft to stand where the defendant had paid a single sum of money on one occasion for numerous items of property he knew to be stolen. The items had been stolen from two owners, and the defendant was charged by separate informations with two counts of felony theft. Each separate information charged unlawful possession of numerous but different items of property belonging to a different owner. Because the defendant had “in one act” (64 Ill. App. 3d 159, 161, 380 N.E.2d 1210, 1212) simultaneously exerted unauthorized control over several items of stolen property belonging to two owners, the court on appeal vacated one of the two judgments of conviction and the sentence imposed thereon. Similarly, in People v. Cobetto (1975), 32 Ill. App. 3d 696, 336 N.E.2d 505, modified on other grounds (1977), 66 Ill. 2d 488, 363 N.E.2d 854, where the defendant received on one occasion property stolen from two separate burglaries, we held that the defendant had made but one reception of stolen property and could be found guilty of but one crime. In Cobetto we described the burglaries as “clearly two separate wrongs” (32 Ill. App. 3d 696, 699, 336 N.E.2d 505, 507) and the reception as “a single act” (32 Ill. App. 3d 696, 699, 336 N.E.2d 505, 507), or, in other words, as “ ‘one united, continuous and indivisible act’ ” (32 Ill. App. 3d 696, 700, 336 N.E.2d 505, 508).

In both Cobetto and Jackson, of course, the defendant had knowingly purchased goods stolen by another. In the instant case, however, there is no evidence the defendant either purchased goods he knew to be stolen or, on or about November 19, 1979, and January 5, 1980, stole them himself. In view of that circumstance and the proof actually adduced at trial, the defendant’s knowing unauthorized exercise of control over the three automobiles, with intent permanently to deprive the owners of the use or benefit of them, occurring simultaneously on a date well after their initial disappearance, may be considered as it would have been had the State proved at trial that he had purchased the three vehicles on January 30, 1980, knowing they were stolen. As the burglaries in Cobetto were two separate wrongs and the reception a single act, the taking of the three automobiles in question here prior to January 30, 1980, may be seen as three separate wrongs, committed by we know not whom, and the defendant’s unauthorized exercise of control over them on January 30, 1980, as a single act. In the same way that the defendant in Jackson in one act simultaneously exerted unauthorized control over several items of property belonging to two owners, the defendant in the case at bar may be said to have exerted unauthorized control in one act simultaneously over the three vehicles belonging to three owners. The defendant having committed but one physical act, more than one offense may not be carved from it. For these reasons we affirm the judgment as to one of the three counts of theft over $150 and the sentence imposed thereon, and we vacate the judgment as to the other two of the three counts and the sentences imposed thereon.

Affirmed in part; reversed in part.

WELCH and EARNS, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALLAS GORE, Defendant-Appellant.
    Third District
    No. 82—282
    Opinion filed June 21, 1983.

      BARRY, J., concurring in part and dissenting in part.
    C. J. Hollerich, of Spring Valley, and Robert Agostinelli and Frank Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Dallas Gore, was arrested and charged with the offenses of driving while under the influence of intoxicating liquor and illegal transportation of alcoholic liquor in violation of sections 11— 501(a) and 11 — 502(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95V2, pars. 11 — 501(a), 11 — 502(a)). A third charge was added for unlawful possession of cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56V2, par. 704(d)). Following a jury trial, defendant was found guilty as charged and sentenced by the Fulton County Circuit Court to serve concurrent prison sentences of 18 months and 364 days for unlawful possession of cannabis and driving under the influence, respectively, and fined $35 plus $2 surcharge and costs for illegal transportation. On appeal, defendant contends that his convictions should be reversed because the State’s evidence against him was insufficient as a matter of law; or, in the alternative, that his convictions should be reversed and a new trial granted because the trial he had was unfair.

In September 1981, several days prior to the events giving rise to the offenses herein, Kathryn Lindsey agreed to lend the use of her car to the defendant in exchange for his repairing of it. By September 26, 1981, the car was in working order and Lindsey drove it to the grocery store accompanied only by her five-year old son. There were several beer bottles strewn around the floor, but to Lindsey’s knowledge, no cannabis was present in the vehicle. Later that day, the defendant appeared at Lindsey’s home and requested to use the car. The request was granted. The defendant, together with Jerry and Anita Carnes, drove Lindsey’s car from Canton to Pekin, Illinois, where they parked the car on the street and went to a tavern for about three hours.

Around 8 p.m., Sergeant Sackett and Deputy Joyce of the Fulton County Sheriff’s Department, as they were patrolling along Route 78 south of Canton, received a radio dispatch informing them that a white Mercury bearing an Illinois license plate No. 148 160 was observed driving in an erratic manner and headed towards Canton.

At 8:20 p.m., the officers observed the white Mercury described in the radio dispatch about a mile west of Monterey on Route 9. The vehicle was westbound. It weaved across the center line and into the left lane and then pulled onto the shoulder on the right side several times during a th-mile stretch observed by the officers. The officers pulled the car over and Sackett asked the driver, defendant Gore, to step out for sobriety testing. Deputy Joyce, meanwhile, approached the front passenger side of the car and talked to the Carnesses. While doing so, he shone his flashlight into the passenger compartment and observed what appeared to be an open beer bottle on the back floorboard. He requested that the Carnesses step out, and he retrieved a partially emptied Pabst Blue Ribbon beer bottle. Joyce then conducted a more thorough search and found a brown grocery sack, which appeared to contain cannabis, and a second open beer bottle. The three items were removed from the Mercury and deposited in the squad car. The defendant, having failed the sobriety tests, was placed into the squad car as well. The officers and defendant proceeded to the sheriff’s office, where defendant was formally charged. The Carnesses left the scene in the Mercury.

In this appeal, defendant charges that the State failed to prove his guilt of the offenses of illegal transportation of alcohol and unlawful possession of cannabis beyond a reasonable doubt. Specifically, defendant renews his arguments that the substance in the beer bottles was not proved to be alcoholic and that, for purposes of constructive possession of the cannabis, the defendant was not proved to have the requisite knowledge of its presence in the car.

The question as to whether the liquid contained in the beer bottles was, in fact, alcoholic, was, in our opinion, a factual one which the jury was competent to determine based upon the testimony of the witnesses called by the State and the jurors’ own observations of the beer bottles placed into evidence. Expert testimony in this regard is not essential to a conviction of unlawful transportation of alcoholic liquor. City of Crystal Lake v. Woit (1972), 3 Ill. App. 3d 1059, 280 N.E.2d 4; Keeler Mart Liquors, Inc. v. Daley (1978), 57 Ill. App. 3d 32, 372 N.E.2d 1049.

Officer Joyce testified that he had observed “bottles of beer.” Anita Carnes testified that he had removed “alcohol” from the car. The bottles were labeled Pabst Blue Ribbon Beer. They had been sealed, and the liquid was preserved thereby for the jury’s consideration. No evidence was introduced which in any way contradicted an inference that, in fact, the liquid was alcoholic. We cannot say, based on the record before us, that the State’s evidence of the alcoholic nature of the beer bottles’ contents was so unsatisfactory as to create a reasonable doubt of the defendant’s guilt of the offense of illegal transportation of alcoholic liquor.

However, so far as the sufficiency of the evidence to support the conviction for possession of cannabis is concerned, we believe a different result is required or in other words, we believe the evidence is insufficient to support the conviction.

As may be concluded from the statement of facts, this issue arises because, as the parties concede, the defendant was not in actual possession of the cannabis. It is undisputed the cannabis was discovered by a police officer in a closed brown paper bag underneath the right front seat, the seat being occupied at the time the car was stopped by Jerry and his wife Anita Carnes. It is also undisputed that the bag was discovered in a place where it was not visible to the driver of the car.

The gist of this offense is that it is illegal “knowingly to possess cannabis” (Ill. Rev. Stat. 1981, ch. SGW, par. 704). Possession may be either actual or constructive but the terms are not mutually exclusive. Rather they form a continuum based on the relative immediacy of control. People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, is a leading case for the proposition that exclusive control of premises or of an area in which a substance is located may be considered constructive possession of the article. Depending on the nature of the control of the area exercised, both control of the article and knowledge thereof may be inferred from the control of the area. In Nettles, however, the constructive possession of the defendant was shown not merely by his tenancy of the apartment alone, but rather by such tenancy accompanied by his declaration that whatever was discovered in the apartment pursuant to the search was his.

Whether the charge of possession of contraband depends on actual or constructive possession, the offense requires knowledgeable control of the contraband. In People v. Day (1977), 51 Ill. App. 3d 916, 366 N.E.2d 895, the owner driver of a car in which there were six other passengers, was held not to be in possession of everything located within the passenger compartment of the car merely because he was the driver. This declaration is perhaps broader than warranted by the facts in the Day case since the evidence showed that the bag containing the cannabis was in the actual possession of one of the passengers, it being located beneath her legs on the floor in plain sight. At least, according to Day, the driver of the car in which there are other passengers does not knowingly possess cannabis merely because he is the driver of a car in which cannabis is discovered. To support this conclusion the Day court relied in part on People v. Boswell (1974), 19 Ill. App. 3d 619, 312 N.E.2d 17, which held that where admittedly cannabis was thrown from a car, nevertheless, this did not prove possession by the passenger seated closest to the window where there were other persons in the car. (See also People v. Millis (1969), 116 Ill. App. 2d 283, 252 N.E.2d 395, and People v. Connie (1964), 52 Ill. App. 2d 221, 201 N.E.2d 641.) Knowledge as one of the essential elements of the offense will not be inferred merely from access shared by others to the area in which the drugs are discovered. People v. Wolski (1975), 27 Ill. App. 3d 526, 327 N.E.2d 308.

Where, as in this case, there is a lack of evidence the defendant was in exclusive control of the area under the passenger seat in which the cannabis was concealed and thereafter discovered, evidence is lacking the defendant was any more in possession of the contraband than the passengers in the car or for that matter the owner of the car. All of the parties, including owner, passengers and defendant, denied possession of the contraband or any knowledge about it; anyone of them may have been responsible. The only difference between the situation of these persons and the defendant was that he was the driver of the car at the time of the arrest and at some time prior thereto in the afternoon. Accordingly, we believe the defendant’s guilt was not established beyond a reasonable doubt.

There are of course cases in which courts have affirmed convictions for the offense of the illegal possession of cannabis by drivers of cars. The common thread of these cases, at least where there are passengers also involved, demonstrate the presence of additional facts showing special or specific knowledge possessed by the driver. None of these cases purports to hold that when there are passengers in a car, the driver in general control of the operation of the car is in exclusive possession of all areas within the passenger compartment and hence in knowledgeable possession of all articles located within the car. For example, in People v. O’Neal (1975), 35 Ill. App. 3d 89, 341 N.E.2d 36, the driver's illegal possession of shotgun shells was affirmed because the defendant “knew the registration was in the compartment, the trial court could have reasonably inferred that he placed it there; and since the shells fell out when the door was opened, it was also reasonable to infer that he knew they were there. Obviously, the shells were in the front of the compartment within easy view. They were not wedged in the back of the compartment or buried under other material. Furthermore, the fact that he hastily pushed the fallen shells back into the compartment shows not only prior knowledge of their presence, but an attempt at concealment and the futile hope that their falling may have been unnoticed.” (People v. O’Neal (1975), 35 Ill. App. 3d 89, 91-92, 341 N.E.2d 36, 39.) While the court’s assessment of the reasonableness of the inference to be drawn from the defendant’s knowledge the registration was in the glove compartment may be subject to doubt, it is unambiguous that the court did not predicate its affirmance of the defendant’s guilt on the mere fact the defendant was the driver of the car.

In People v. Janis (1977), 56 Ill. App. 3d 160, 371 N.E.2d 1063, which quotes heavily with approval from People v. O’Neal, we find the offense of possession of burglary tools supported by evidence substantially different from the facts in the instant case. The charge in Janis was illegal possession of burglary tools which the court described as approximately 200 pounds of tools located in the rear of a van easily visible to the defendant. Obviously, under such circumstances, possession did not arise solely because of the status of the defendant as driver of the van. To the same effect are People v. Rhoades (1979), 74 Ill. App. 3d 247, 392 N.E.2d 923, and People v. Smith (1978), 67 Ill. App. 3d 952, 385 N.E.2d 707, where the driver was deemed to have knowledge from additional evidence so that knowledge was not inferred merely from the defendant’s status as a driver.

On this appeal the defendant has not urged any errors relating to his conviction of driving under the influence of intoxicating liquor but has argued only that if either of his other convictions are reversed the sentence on this conviction should be vacated and the conviction remanded for sentence reconsideration. Since the sentence imposed on this offense is near the maximum and since we are unable to determine whether it was considered independently from the sentence meted out for the illegal possession of cannabis offense which we have reversed, we believe the court should reconsider the proper sentence to be imposed.

For the foregoing reasons, the conviction and sentence of the circuit court of Fulton County for the offense of illegal transportation of alcohol is affirmed and the conviction and sentence of that court for the illegal possession of cannabis is reversed. The conviction of the defendant for the offense of driving under the influence of intoxicating liquor is affirmed, but his sentence is vacated and the conviction is remanded to the circuit court of Fulton County for reconsideration of the sentence.

Judgment affirmed in part and reversed in part and remanded with directions.

ALLOY, J., concurs.

JUSTICE BARRY,

concurring in part and dissenting in part:

I agree with my colleagues’ holding concerning the sufficiency of the State’s evidence of illegal transportation of alcohol. I am not convinced, however, that the State’s evidence of constructive possession of cannabis was insufficient to support the defendant’s conviction under section 4(d) of the Cannabis Control Act. The majority’s new “visibility” test is neither practical nor warranted by established precedent respecting constructive possession. Indeed, proper analysis by decided case law supports the conclusions reached by the trial court on the facts here presented.

Defendant concedes that constructive possession, as opposed to actual possession, will suffice to prove the criminal element of possession. He further agrees that possession need not be exclusive, but may be joint with one or more other persons. Finally, defendant concedes that if it is shown that the premises where the contraband is located are under the defendant’s immediate and exclusive control, an inference of defendant’s constructive possession arises and may be sufficient to convict. (People v. O’Neal (1975), 35 Ill. App. 3d 89, 341 N.E.2d 36.) However, where other facts and circumstances are introduced which would tend to refute an inference that the defendant had knowledge of the presence of the contraband, some corroborating evidence linking the defendant to it must be in evidence to support a finding of guilt. (People v. Wolski (1975), 27 Ill. App. 3d 526, 327 N.E.2d 308.) In arguing that the instant set of facts requires corroborative evidence because of “other facts and circumstances,” defendant theorizes that a stranger to the events might have placed the sack in the car at any time between noon and 8:20 p.m. of September 26, 1981, without knowledge of any of those witnesses who denied knowledge of the presence of the sack. Defendant’s theory was presented to the jury for their consideration. The State introduced evidence of the value of the contraband to negate the theory. The jury chose not to adopt it.

I believe that this theory was not so credible as to raise a reasonable doubt of guilt. The cases cited by defendant in support of this issue (Wolski; People v. Connie (1964), 52 Ill. App. 2d 221, 201 N.E.2d 641; People v. Lawrence (1977), 46 Ill. App. 3d 305, 360 N.E.2d 990; People v. Millis (1969), 116 Ill. App. 2d 283, 252 N.E.2d 395) are all inapposite because, in each one, specific facts were recited which tended to implicate one or more other specific persons- who may have placed the contraband where it was found without the defendant knowing it was there. The defendant invites us to consider People v. Day (1977), 51 Ill. App. 3d 916, 366 N.E.2d 895, and People v. Upmann (1978), 57 Ill. App. 3d 953, 373 N.E.2d 782, as well, and I have done so. It is true that, as the majority posits, adherence the broad statement of Day leads to the conclusion that constructive possession was not proved on the facts before us. However, I do not believe that the opinion in Day can be reconciled with People v. Janis (1977), 56 Ill. App. 3d 160, 371 N.E.2d 1063, and People v. O’Neal (1975), 35 Ill. App. 3d 89, 341 N.E.2d 36, both of which also involved defendants who were drivers of vehicles in which contraband was found in the passenger compartment where other persons were present. In these latter two cases, as here, the vehicles were owned by someone other than the driver. In both Janis and O’Neal the defendants’ convictions were affirmed on appeal upon analysis of the rules pertaining to constructive possession in Illinois. (See especially People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361.) I find that the decisions in Janis and O’Neal are better-reasoned. Accordingly, I would adopt the reasoning of those two cases insofar as it applies to constructive possession in the situation presented herein. I expressly reject Day to the extent that I believe that it cannot be reconciled.

Further, I find that People v. Upmann (1978), 57 Ill. App. 3d 953, 373 N.E.2d 782, is distinguishable on its facts from the case before us. In Upmann, the vehicle which the defendant had apparently been driving alone was left unlocked in a field along the side of the road for the 21/2-hour period immediately prior to a police officer’s discovery of open beer cans in the interior. The court on appeal held that the State had failed to prove immediate and exclusive control of the vehicle by defendant sufficient to support a finding of constructive possession in that situation.

By contrast to Upmann, the defendant in the present case was unquestionably in immediate and exclusive control of the vehicle at the moment when it was stopped and searched. Accordingly, I would decline defendant’s invitation to speculate that perhaps the contraband had been placed inside the vehicle without the defendant’s knowledge while the car was parked on the street in Pekin for three hours. The rule of Upmann does not require such speculation.

For the reasons stated, I would hold that the State’s evidence of constructive possession was sufficient to support the defendant’s conviction for unlawful possession of cannabis as charged.

Other issues raised by the defendant and which my colleagues choose not to address in disposing of this appeal require the recitation of additional facts respecting procedural aspects of the defendant’s trial.

At the defendant’s preliminary hearing on October 7, 1981, the court ordered the State to furnish discovery to the defendant by November 9 and the defendant to furnish discovery to the State by December 9, 1981. All pretrial motions were also due on December 9. On March 3, 1982, the court joined the traffic charges with the charge for possession of cannabis and set the case for trial on Monday, March 8.

The State filed its initial discovery answer on October 28, 1981. On March 4, the State forwarded its first supplemental answer to discovery disclosing that forensic scientist, Steve Hampton, would be called as an expert witness. The following day a second supplemental answer, consisting of Hampton’s lab report, was hand-delivered to defense counsel; and later, after defense counsel’s office had closed, the State delivered a third supplemental answer consisting of Deputy Joyce’s police report of the incidents of September 26, 1981.

Monday morning, prior to jury selection, defendant moved for leave to file a motion to suppress evidence. Defendant’s motion was denied as untimely and for failure to comply with section 114 — 12(b) of the Code of Criminal Procedure of 1963, which requires that the motion state facts rather than conclusions. (Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 12(b), (c).) Several other motions advanced by the defendant on the basis of the State’s late discovery were denied as well.

At trial, the State introduced testimony of Officers Joyce and Sackett concerning the events leading up to and including the time of the defendant’s arrest on September 26, 1981. Kathryn Lindsey was called to testify that the sack of cannabis was not hers and was not in the car to her knowledge when she gave the defendant permission to drive it. Anita and Jerry Carnes testified that they had no knowledge of the presence of the grocery sack found under the car seat or of its contents or how it might have been placed there. They both said they were unaware of the bag until Officer Joyce removed it. The defendant testified on his own behalf stating, inter alia, that he, too, had no awareness of the presence of the grocery sack of cannabis until the officer produced it and asked him what was inside at the scene of his arrest. Steven Hampton testified that the substance found in the grocery sack was scientifically analyzed and determined to be 212 grams of cannabis.

In rebuttal, the State called Sergeant Daly of the Fulton County Sheriff’s Office. Over defendant’s objection, Daly testified that he was experienced in the investigation of drug-related offenses and had had numerous conversations with persons who had dealt in them on the street. In his opinion, approximately 200 grams of cannabis, such as was found in the grocery sack, had a street value of approximately $200. The defendant’s motion for a mistrial based on irrelevancy of the testimony and its tendency to unfairly prejudice the defendant was denied.

The defendant claims error in the State’s belated compliance with discovery orders, the trial court’s overruling of defendant’s objections to the State’s late discovery and the trial court’s denial of requests for a continuance and for leave to file a motion to suppress evidence on the day of trial.

Failure to disclose certain evidence to defense counsel upon request and prior to trial may give rise to a violation of the defendant’s constitutional right to due process if the evidence is favorable to him (i.e., exculpatory evidence, impeachment evidence, mitigation evidence) or if it may form the basis for a favorable defense argument. (In re Hatfield (1979), 72 Ill. App. 3d 249, 390 N.E.2d 453, citing Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) The trial court is given wide discretion in fashioning appropriate sanctions where it is shown that the State has suppressed material subject to disclosure in its possession. (73 Ill. 2d R. 415(g).) On appeal, we will not find an abuse of discretion unless the defendant is prejudiced by the discovery violation and the trial court has failed to eliminate that prejudice. Where prejudice is demonstrated, a new trial may be granted. People v Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 163.

In the present case, defendant contends that the State’s late disclosure of Deputy Joyce’s police report prejudiced him because the report disclosed “that the brown paper sack *** was closed, *** was under the seat of the car when it was found, and that it was found, not under the driver’s seat, but under the seat of a passenger [and that this information] is evidence which tends to negate the guilt of the accused.” As explained above, however, in my opinion, the fact that the sack was under another passenger’s seat does nothing in itself to defeat a finding of the defendant’s constructive possession of the sack and its contents where it has been conclusively shown that the defendant was in exclusive and immediate control of the premises — i.e., the automobile — and there are no other facts or circumstances to refute the inference that defendant had knowledge of the presence of the contraband. Defendant’s arguments of prejudice are particularly difficult to embrace where, as here, he readily acknowledges that the possession may be joint. Under the circumstances, additional information concerning whether the paper bag was open or closed when it was found or whether the bag was found under the passenger’s seat or elsewhere in the passenger compartment did not constitute evidence favorable to the defense. The defendant’s guilt or innocence of the charge based on criminal possession was unaffected by the State’s late disclosure. In sum, I do not find that the State’s late disclosure of Deputy Joyce’s report prejudiced the defendant.

Defendant next argues that the trial court abused its discretion in overruling his objections to the late discovery information concerning expert witness Steve Hampton and his lab report. He argues that his motion in limine to exclude the expert’s testimony or to continue the cause so that defense counsel could properly interview the witness should have been allowed. In support of this argument, defendant cites Supreme Court Rule 412 (73 Ill. 2d R. 412), and People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208. I agree with the defendant that late disclosure of the names of expert witnesses to be called by the State constitutes a violation of the Supreme Court Rule. However, as explained above, this court will not find an abuse of discretion unless the defendant can show that he was prejudiced by the rule violation and that prejudice was not eliminated by action taken by the trial court. In Shegog the undisclosed matter was a confession by the defendant which was first revealed during the State’s direct examination of the police detective who had interrogated the defendant shortly after he was apprehended for burglary. Defense counsel objected on grounds of failure to comply with the discovery order previously entered pursuant to Rule 412. The trial court considered defendant’s objections in light of the assistant State’s Attorney’s contention that he had now known about the confession at the time discovery was ordered. The court determined that the testimony was admissible subject to a ruling on defendant's contemporaneously filed motion to suppress. That motion was heard and denied. Defendant was found guilty as charged. On appeal, we found that the State could have been aware of the confession in the exercise of due diligence. (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 10(c).) We also found that the admission of the testimony about something as major as a confession which the defendant did not remember, and without giving defense counsel an opportunity to investigate prior to trial, was prejudicial error.

In the present case, the State disclosed the information about Steve Hampton and his lab report on the eve of trial. Before ruling on defendant’s motion in limine or for a continuance, the trial court heard arguments of counsel. The assistant State’s Attorney stated she was not certain that the matter would go to trial until after the hearing of March 3, and that the discovery material was promptly filed thereafter on March 4, and the lab report was disclosed the following day, March 5. The trial court ruled:

“In respect to Mr. Hampton, prior to his testimony I will afford the Defendant an opportunity to interview him. I submit, however, that a continuance is not appropriate and will be denied here, because the Defendant has, of course, always had the right to have this material examined if he wished.”

Under the circumstances here presented, unlike the situation in Shegog, I do not believe that the late disclosure revealed information so “earthshaking as to require complete reorganization of the defendant’s case.” (See People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) In the present case, I believe that any prejudice to the defendant which may have resulted from the late disclosure was eliminated by the trial court’s decision to allow an opportunity for defense counsel to interview the witness prior to his testimony. Accordingly, I would hold that the trial court did not abuse its discretion in denying defendant’s motion in limine or for a continuance on the grounds of late disclosures of Hampton’s name as an expert witness and the lab report prepared by him.

Defendant contends next that the trial court committed error in refusing to hear his motion to suppress. The reasons given for the court’s decision to deny a hearing were that the motion was not timely filed and that it was not supported by facts as required by section 114 — 12(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(b)). Defendant’s written motion to suppress was filed before the jury was selected but after the cause was called for trial. Defendant’s motion was not timely (People v. Thomas (1969), 120 Ill. App. 2d 219, 256 N.E.2d 870; People v. Kahl (1978), 63 Ill. App. 3d 703, 380 N.E.2d 487) unless defendant had no adequate opportunity to present it earlier or was unaware of the grounds for the motion (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(c)). Defendant argues that the details furnished in Deputy Joyce’s report provided grounds for his motion to suppress evidence seized from the vehicle without a warrant and without probable cause, which grounds were not apparent based on the report filed by Sergeant Sackett.

My review of the reports of both officers and the defendant’s written motion to suppress convinces me that defendant’s grounds for his motion were readily apparent regardless of which report might have been made available to the defendant on a timely basis. The defendant’s arguments for suppression would necessarily have challenged the rule respecting warrantless automobile searches as stated in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, and People v. Rossi (1981), 102 Ill. App. 3d 1069, 430 N.E.2d 233, in any event.

For the same reasons that I have determined that Deputy Joyce’s report contained no new bases for advancing a motion to suppress, I would hold that even if defendant’s motion had been considered timely and the trial court erred in denying defendant a hearing on the motion, the trial court’s error in this case would have been harmless beyond a reasonable doubt. The search of the vehicle was incident to a lawful custodial arrest. The warrantless search was not unreasonable and the contraband seized was admissible evidence at defendant’s trial. But for the majority’s opinion herein, defendant’s arguments to the contrary would have stood no chance of success after Belton and Rossi.

Finally, defendant contends that the trial court committed reversible error in allowing the State to introduce evidence of the street value of the cannabis in rebuttal. The determination of whether evidence is relevant and admissible in rebuttal is left to the sound discretion of the trial judge. Defendant’s position at trial was that the evidence of street value was not relevant, but highly prejudicial to him. Because the defendant’s case presented the theory that the cannabis might have been placed in the car by someone without defendant’s knowledge, I believe that he opened the door to rebuttal evidence which tended to negate that theory. The State’s evidence of street value of the cannabis gave rise to the inference that a person would not casually deposit a bag containing $200 worth of goods in another’s automobile. In closing argument, the prosecution drew attention to Sergeant Daly’s testimony to make this precise point. The defendant’s contention on appeal that this evidence was inadmissible evidence of other drug-related crimes for which he was not charged is without merit. The record does not support defendant’s assertion that the probative value of the evidence as presented and argued to the jury was outweighed by its prejudice to him. Accordingly, I would hold that the trial court committed no error in admitting this testimony.

For the reasons stated herein, I would affirm the defendant’s convictions and sentences.

      See, e.g., People v. Sampson (1980), 86 Ill. App. 3d 687, 408 N.E.2d 3. Without discussing timeliness under section 114 — 12(c) of defendant's motion to suppress evidence of identification based on an invalid arrest, the court held that the motion which was filed after the jury was sworn should have been heard by the trial court.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL STAPLETON, Defendant-Appellant.
    Third District
    No. 82—468
    Opinion filed June 30, 1983.
    Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Following a jury trial in the circuit court of Peoria County, the defendant, Michael Stapleton, was convicted of attempt (murder) and the felony offense of unlawful use of weapons. He was sentenced to concurrent terms of 27 years of imprisonment on the attempt (murder) conviction and four years on unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(a), 9 — 1(a), 24 — l(a)(10)(b)). Prior to trial defendant filed a motion to sever the charges, alleging that he would be prejudiced on the attempt murder because the jury would be informed that the unlawful use of weapons charge was based in part on the defendant’s recent release from penitentiary on a felony conviction. The parties stipulated, with the acquiescence of the court, that the State would not inform the jury of the wording of the unlawful use of weapons charge, and the defendant withdrew his motion to sever. •

The indictment charging the defendant with the Class 3 felony offense of unlawful use of weapons specified the three elements of that offense: (1) that the defendant knowingly carried a loaded revolver on or about his person within the corporate limits of a city; (2) that when he did so, the defendant was not on his land, in his abode, or in his fixed place of business; and (3) that the defendant had previously been convicted of a felony and had been released from a penitentiary within five years. The jury was not informed of, instructed on, or requested to reach a determination on the third element by stipulation of the parties. In the absence of a finding that a defendant has been released from the penitentiary within five years, the defendant can be sentenced under section 24 — l(a)(10) only for a Class A misdemeanor. (Ill. Rev. Stat. 1981, ch. 38, par. 24 — l(a)(10)(b).) The defendant contends on appeal that his felony conviction for unlawful use of weapons must be reduced to a misdemeanor and remanded for resentencing since the jury made no finding on the element of the defendant’s prior felony conviction or his release from the penitentiary. The State argues that the defendant has waived any error in the lower court proceeding by entering into the stipulation and his withdrawal of the motion to sever. In addition, the State contends that the defendant was not prejudiced by the proceeding.

The petitioner offers for our consideration the body of case law which clearly establishes that proof of the defendant’s prior conviction and proof of his release from incarceration within five years of the instant offense are necessary to a conviction of the felonious unlawful use of a weapon. (People v. Ostrand (1966), 35 Ill. 2d 520, 221 N.E.2d 499; People v. Owens (1967), 37 Ill. 2d 131, 225 N.E.2d 15; People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 498; People ex rel. Carey v. Pincham (1979), 76 Ill. 2d 478, 394 N.E.2d 1043; People v. Crawford (1978), 59 Ill. App. 3d 211, 375 N.E.2d 1314.) In Crawford, the court squarely held that where proof before the jury established only possession of a weapon, the conviction for the felonious unlawful use of a weapon could not stand despite a stipulation out of the presence of the jury as to the defendant’s prior conviction and incarceration. The Crawford court then affirmed the defendant’s conviction for the less serious misdemeanor charge of the unlawful use of a weapon and remanded for imposition of a proper misdemeanor sentence. It should be specially noted that Crawford is a 1978 appellate opinion.

About one year later, the Illinois Supreme Court in Pincham was offered an opportunity to review the same general subject matter. In Pincham the defendant was charged in one count with unlawful use of weapons, and in a second count with unlawful use of weapons based upon possession within five years following release from the penitentiary on a felony charge. Counsel for the defendant objected to the jury being informed as to the defendant’s prior conviction and incarceration and to the admission of any evidence on these matters. Counsel offered to stipulate to the prior conviction and the release from the penitentiary within five years. The trial judge ordered a bifurcated trial to first determine whether the defendant possessed the gun, and the State moved to prohibit the bifurcation. The court approving Crawford observed that an offered stipulation is insufficient to sustain a felony conviction, and that proof of the prior conviction is necessary to a conviction on the felony charge. The court held that the bifurcation order of the circuit court of Cook County deprived the State of the right to seek a felony conviction, and that the trial court was not so authorized.

However, we must consider the recent supreme court decision in People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. In Hayes, the defendant was convicted of retail theft of less than $150 following a bench trial in the circuit court of Effingham County. The information, which contained three instances of retail theft of less than $150, contained no allegations of a prior conviction of retail theft and did not state whether the offense charged was a misdemeanor or a felony. Upon the defendant’s first appearance before the circuit court, she was advised that the State was seeking a Class 4 felony conviction. The defendant’s prior conviction of retail theft was stipulated to at trial, and she was then convicted of felony theft. The appellate court reversed the defendant’s conviction upon the authority of People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496. Justice Goldenhersh writing for the supreme court in Hayes said, “The sole issue presented *** [was] whether *** it was necessary to allege in the information” that the offense was a second retail theft. (87 Ill. 2d 95, 97.) The supreme court reversed the appellate court and affirmed the defendant’s conviction. The supreme court held that merely because the prior conviction elevates the degree of the offense from a misdemeanor to a felony, it need not be alleged in the information and proved at the risk of prejudice to the accused. The court said, “Indeed, in the Habitual Criminal Act (Ill. Rev. Stat. 1979, ch. 38, par. 33B — 1 et seq.) allegation and proof of prior convictions are proscribed until after conviction” (87 Ill. 2d 95, 97) and held that “in order to invoke the provisions of section 16A — 10(2) the sentencing court must find beyond a reasonable doubt, after notice to the accused and an opportunity to refute the allegation, that the accused was in fact convicted of a prior offense of retail theft and that the record supports that finding.” (87 Ill. 2d 95, 98, 429 N.E.2d 490, 493.) The court further reasoned that the “defendant was advised at her first appearance before the court that the People sought to invoke the felony provisions of the statute. The prior conviction was stipulated and the defendant has shown no prejudice as a result of the failure to allege the prior conviction in the information.” The judgment of the circuit court was thus affirmed.

We believe a broad interpretation of the Hayes case approves the procedure followed in the case at bar, and we are prepared to apply such an interpretation. Though differing from the instant case in that the fact finder in Hayes was the trial judge, as the sentencing judge he was apprised of the defendant’s conviction by stipulation at trial. Here also the sentencing judge was apprised of the defendant’s conviction by stipulation at trial, and though neither Ostrand nor Owens was specifically overruled by Hayes, we believe the supreme court placed such emphasis in Hayes upon notice, lack of prejudice, and advantage to the accused, as well as specific knowledge in the sentencing judge, as to guide us in this and future opinions. Judicial economy thereby is served, and a lack of prejudice to the accused is obvious.

As his second issue on appeal, the defendant contends that his 27-year sentence for attempt (murder) was excessive. He also argues that the reduction of his felony unlawful use of weapons conviction to a misdemeanor requires a new sentencing hearing for the attempt (murder) conviction since the trial judge may have been influenced by the felony conviction in imposing sentence for the attempt (murder) conviction. We reject both of the defendant’s arguments and affirm the defendant’s 27-year sentence for attempt (murder).

That the trial court was influenced by the fact that he was convicted of felony unlawful use of weapons is moot, and the record reveals that the trial judge was aware of the defendant’s three prior felony convictions and one prior misdemeanor conviction, and that the instant offenses occurred while the defendant was on parole. In addition, the judge noted that the defendant was carrying two guns and that he shot at a police officer. Sentencing is a matter left largely to the discretion of the trial court (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Where, as here, the record reveals no abuse of that discretion, we will not disturb the sentence imposed by the lower court.

The judgment of the circuit court of Peoria County for attempt (murder) is affirmed. The defendant’s conviction for the felony offense of the unlawful use of weapons is affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.


author: JUSTICE SCOTT

text:
    CNR INVESTMENTS, INC., Plaintiff-Appellee, v. THE JEFFERSON TRUST AND SAVINGS BANK OF PEORIA, Defendant-(Dean B. Rhoads, Contemnor-Appellant).
    Third District
    No. 82—812
    Opinion filed June 30, 1983.

      Dean B. Rhoads, of Sutkowski & Washkuhn Associates, of Peoria, for appellant.
    Lyle W. Allen, of Heyl, Royster, Voelker & Allen, and Robert L. Burhans, both of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, CNR Investments, Inc., filed suit against the defendant, Jefferson Trust and Savings Bank, which required the trial court to interpret various contracts. The plaintiff requested various documents, and to this request the defendant objected and asserted the attorney-client privilege in support of its objection. This appeal is concerned with five documents which are identified as documents numbered 37, 41, 42, 43 and 66. These documents were subject to an in camera examination, after which the defendant was ordered to produce the same. The defendant’s attorney, Dean B. Rhoads, refused to produce the documents and requested the trial court to find him in contempt so as to facilitate an appeal of the trial court’s order to produce. Attorney Rhoads was found to be in contempt and a fine in the amount of $100 was imposed upon him. This appeal ensued, and the sole issue presented for determination is whether the attorney-client privilege applies to any or all of the five documents, more specifically described as follows:

Item No. Date Author

37 9/13/72 Lester A. Kassing

41 9/25/74 Unknown

42 9/26/74 R. Pratt

43 9/27/74 Unknown

66 8/6/79 John McGrath C.P.A.

The attorney-client privilege has been defined by this court as protecting:

“communications made by a client to an attorney under the following circumstances: (1) where legal advice of any kind is sought from an attorney in his capacity as such, (2) the communications relating to that purpose, (3) made in confidence by the client, (4) are at his instance permanently protected from disclosure by the client or the attorney, (5) unless that protection is waived. [Citation.] The person asserting the privilege has the burden of proving its existence. [Citation.]” Nieukirk v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 109, 112, 423 N.E.2d 1259, 1261.

The defendant, Jefferson Trust, who claims the attorney-client privilege, is a corporation. Being a corporation, certain requirements must be met before the privilege is applicable. In our State the privilege applies to those employees within the “control group” of the corporation. The control group is defined as those top management persons who have the responsibility of making final decisions and those employees whose advisory roles to top management are such that a decision would not normally be made without those persons’ advice or opinions and whose opinions in fact form the basis of any final decision. Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.

Attention is first directed to document No. 41. As previously noted, this document was authored by some person whose identity is unknown. An examination of it and the record fails to disclose that it was prepared by an attorney, directed to an attorney or prepared as a memorandum of information or advice received from an attorney. The document stands alone unsupported by any testimony or affidavit from which one could conclude that it was prepared in confidence. It meets none of the criteria which trigger the attorney-client privilege.

The author of document No. 43 is also unknown. The defendant bank, however, claims that it is exempted from disclosure because of the attorney-client privilege since it recites a conversation with the attorney for the bank. The document does refer to a conversation with the defendant bank’s attorney; however, again we have a document unsupported by any evidence of its confidentiality or that the unknown author was an employee of the bank or a member of its control group as required by the Consolidation Coal Co. case.

Document No. 42 is authored by R. R. Pratt; however, the status of Pratt is unknown. It would be logical to presume that he is or was an employee of the bank, yet presumptions are not sufficient to invoke the attorney-client privilege. Again a situation is presented where there is no evidence as to whether the author was a member of the “control group” of the bank. The document does state, “Ed Somner [attorney for the defendant bank] has promised me a response by Friday to our questions regarding ***.” The remainder of the document according to the author’s opening remarks was obtained from his own research and from discussions with a realty company. We cannot read or interpret the document so as to conclude that its contents emanated from an attorney.

Document No. 66 is correspondence directed to Mr. Kassing, president of the defendant bank, from a certified public accountant. An examination of the document discloses that it does not impart any legal advice but instead contains the accountant’s views concerning matters of financial disclosure. The attorney-client privilege is restricted to confidential legal advice from a lawyer. If the advice sought is that from an accountant rather than from a lawyer there is no privilege. United States v. Gurtner (9th Cir. 1973), 474 F.2d 297; United States v. Kovel (2d Cir. 1961), 296 F.2d 918.

Lastly, we direct our attention to document No. 37. This document was prepared by Lester A. Kassing, who was president of the defendant bank. Mr. Kassing, in support of the claim that the document is privileged, executed an affidavit in which it is averred that the document is a memorandum of his understanding resulting from consultation and advice he received from Mr. Somner, the bank’s attorney, and that the consultation with the attorney concerned matters which are now the subject of this litigation.

An examination of the document and the supporting affidavit of Kassing discloses that there is no indication as to whom the memorandum was directed. There is no claim that it was directed only to members of the control group of the defendant bank or that it was prepared with the intent that the same should be confidential. Of even greater import is that after examining the memorandum one can only conclude that it is not a record of legal advice received from an attorney but is an itemization of options available to the bank in regard to the real estate which is the subject of this litigation. The attorney-client privilege of confidentiality does not apply to documents discussing business advice instead of legal advice. Barr Marine Products Co. v. Borg-Warner Corp. (E.D. Pa. 1979), 84 F.R.D. 631.

The burden of showing facts which give rise to an attorney-client privilege rests on the one who claims the privilege. The claimant must show certain threshold requirements in order to avail itself of the privilege, including a showing that the communication originated in confidence and that it was not disclosed except to certain authorized parties, i.e., the “control group” of a corporation. Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.

For the reasons stated we affirm the trial court’s orders relating to discovery. The documents in question are not privileged and as ordered by the trial court they should be disclosed. This court, however, does determine that the trial court’s order finding the contemnor-appellant, attorney Dean B. Rhoads, should be vacated. The conduct of attorney Rhoads was not contemptuous in that the court was held in disdain or subjected to scorn. The contempt order was entered at attorney Rhoads’ request since it was the proper procedure to follow in order to test on appeal the trial court’s discovery orders. The trial court is directed to vacate such order.

Affirmed, but remanded with directions.

STOUDER, P.J., and BARRY, J., concur.