text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL NOLAN, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1227
    Opinion filed December 23, 1981.

      Michael Buckley Bolán, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Michael Nolan, was found guilty of murder in a bench trial and was sentenced to a term of 40 to 75 years. On appeal he contends that he was riot proved guilty of murder beyond a reasonable doubt and that he was denied his right to a speedy trial. We affirm.

The victim was killed between 12 and 12:15 p.m. on November 21, 1974, in Chicago, Illinois. Immediately prior to the occurrence, she was seen engaged in a conversation with a male companion near a fence. She was then seen being thrown over the fence by the male companion. The male companion then jumped over the fence, and 10 or 15 minutes later he was observed jumping back over the fence and walking away from the scene.

Defendant and the victim, who shared a boyfriend/girlfriend relationship, were seen together within 15 minutes to one-half hour of the murder. Two witnesses saw the victim thrown over the fence. They described her assailant as having the same basic height, age and hair color as defendant. They also described the assailant as wearing clothes very similar to those worn by defendant. There was also direct evidence placing defendant within one-half block of the scene of the murder at about the time the murder occurred. Defendant’s neighbors specifically identified defendant as walking down the street at the time.

Shortly after the time of the murder, defendant arrived at his friend’s house wearing clothes similar to that of the male seen with the victim at the scene of the murder. While at his friend’s house, defendant attempted to persuade his friend to tell the police one of two different stories to explain a cut on his finger. Then defendant proceeded to the victim’s house, where he offered a third explanation for the cut to the victim’s sister.

Basically, defendant contends that the murderer dressed like defendant and looked like defendant but was not defendant. Defendant suggests that it is not surprising that the victim would begin a new relationship with someone with a physical appearance similar to that of a boyfriend she previously found attractive. We cannot accept these hypotheses as establishing a reasonable doubt of defendant’s guilt. Defendant also emphasizes the lack of a connection between defendant and the physical evidence in the case, and the absence of identifiable blood on defendant’s clothing. However, we do not believe that either of these circumstances is sufficient to raise a reasonable doubt as to defendant’s guilt. Rather, we conclude that the evidence is sufficient to establish the defendant’s guilt beyond a reasonable doubt.

We next address defendant’s contention that he was denied his statutory and constitutional rights to a speedy trial. The statute relating to speedy trials provides that every person in custody in this State for an alleged offense shall be tried within 120 days from the date he was taken into custody unless delay is occasioned by the defendant or by an interlocutory appeal. If a defendant is on bail or recognizance, he is to be tried within 160 days from the date he demands trial unless delay is occasioned by the defendant or by an interlocutory appeal. Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a), (b).

In the present case, defendant was arrested on November 21, 1974, and remained in custody until April 23, 1975, when bail was set. During this period, defendant agreed to and requested continuances, and therefore, the statute was tolled. People v. Donalson (1976), 64 Ill. 2d 536, 540, 356 N.E.2d 776, 777; People v. Gooding (1975), 61 Ill. 2d 298, 300-01, 335 N.E.2d 769, 770-71; People v. DeCarlis (1980), 88 Ill. App. 3d 634, 637, 410 N.E.2d 677, 680.

Defendant filed a motion to suppress statements and physical evidence, and the motion was granted on February 20,1976. Ordinarily, the defendant is chargeable with the time naturally occasioned by the filing of such a motion (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 637, 410 N.E.2d 677, 680; People v. Keagbine (1979), 77 Ill. App. 3d 1039, 1045, 396 N.E.2d 1341, 1346), and defendant does not specifically complain about any delay during this period. On March 1,1976, the State filed a notice of appeal from the ruling on the motion to suppress. On April 13, 1976, and May 13, 1976, defendant answered ready and demanded trial. The State filed its report of proceedings in the appeal on March 2,1977. On April 19, 1977, defendant filed a motion to dismiss the indictment in the trial court, alleging that he was denied his right to a speedy trial because of the State’s delay in prosecuting the appeal.

As noted above, the statute provides that the pendency of an interlocutory appeal tolls the statutory period in which a defendant must be brought to trial. (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a), (b).) The appellate court opinion was filed on April 11, 1978, and the mandate was issued on July 28, 1978. Therefore, the statutory period was tolled until July 28, 1978, when the mandate was filed in the trial court. People v. Worley (1970), 45 Ill. 2d 96, 98, 256 N.E.2d 751, 752.

During the pendency of the appeal, on November 1,1977, defendant was taken into custody on a Federal indictment. On December 16, 1977, he was sentenced to four years imprisonment in Tennessee. Therefore, at the time the mandate was issued, defendant was in custody in Tennessee. It follows that the speedy trial statute (Ill. Rev. Stat. 1977, ch. 38, par. 103 — 5(a)) was not applicable since defendant was not in custody in this State at the time. (See People v. Rose (1972), 7 Ill. App. 3d 374, 378-79, 287 N.E.2d 195, 198; People v. Terlikowski (1967), 83 Ill. App. 2d 307, 310, 227 N.E.2d 521, 522.) Instead, his statutory right to a speedy trial arose from the Agreement on Detainers (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 8—9), which provides that if a person is imprisoned in a party State and there is pending in another party State an untried indictment on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he notifies the prosecuting officer’s jurisdiction of his place of imprisonment and his request for a final disposition of his case. Here, the detainer was lodged against defendant on August 28, 1978, and assuming defendant notified the authorities, he was tried within 180 days. Accordingly, defendant’s argument relating to his statutory right to a speedy trial fails.

Although the statute implements the constitutional right to a speedy trial, it is not co-extensive with the constitutional right. (People v. Bazzell (1977), 68 Ill. 2d 177, 181, 369 N.E.2d 48, 49; People v. Love (1968), 39 Ill. 2d 436, 443, 235 N.E.2d 819, 823.) The constitutional right to a speedy trial cannot be defined in terms of an absolute standard of time within which an accused must be brought to trial. (People v. Daniels (1979), 76 Ill. App. 3d 646, 650-51, 395 N.E.2d 163, 167.) Whether a defendant has been denied his constitutional right to a speedy trial is a judicial question, and the record must be examined in its totality. (People v. Bazzell (1977), 68 Ill. 2d 177, 181, 369 N.E.2d 48, 49; People v. Daniels (1979), 76 Ill. App. 3d 646, 651, 395 N.E.2d 163, 167.) In determining whether there has been a denial of this right, the four factors which should be considered are the length of the delay, the reasons for the delay, the prejudice to the defendant and whether defendant waived the right. People v. Bazzell (1977), 68 Ill. 2d 177, 182, 369 N.E.2d 48, 50; People v. Henry (1970), 47 Ill. 2d 312, 316, 265 N.E.2d 876, 879.

Although the time elapsed here was lengthy, a period of time standing alone is not controlling. Rather, the constitutional right to a speedy trial depends on a realistic appraisal of the circumstances which confronted court and counsel. (See People v. Young (1970), 46 Ill. 2d 82, 85, 263 N.E.2d 72, 74.) Here, the record demonstrates the presence of circumstances which explain a substantial portion of the delay, and we find no prejudice to defendant. (Cf. People v. Bazzell (1977), 68 Ill. 2d 177, 183, 369 N.E.2d 48, 50.) Until April 23,1975, defendant agreed to or requested continuances. Subsequently, an interlocutory appeal intervened. While the appeal was pending, defendant was taken into custody on a Federal indictment, and arrangements had to be made to bring defendant into Illinois for trial once the mandate issued.

Defendant argues that his right to a speedy trial was violated because of the State’s delay in filing the report of proceedings in the interlocutory appeal. However, defendant never moved to dismiss the appeal in the trial or appellate court. Instead, defendant filed a motion to dismiss the indictment in the trial court on April 19,1977, by which time the report of proceedings had already been filed. The trial court had no jurisdiction to dismiss the indictment at the time because the appeal was still pending. The trial court did not reacquire jurisdiction until the mandate was filed on July 28,1978. See People v. Worley (1970), 45 Ill. 2d 96, 98, 256 N.E.2d 751, 752.

Defendant also maintains that he was prejudiced because he was held to bail during the pendency of the appeal. He contends that holding him to bail was contrary to Supreme Court Rule 604(a)(3), which provides that a defendant is not to be held in jail or to bail during the pendency of an appeal by the State unless there are compelling reasons for his continued detention or being held to bail. (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(3).) However, under the circumstances, we believe the trial court could have properly concluded that there were compelling reasons to continue holding defendant to bail.

Defendant also complains about the time elapsed between the filing of the appellate court opinion on April 11, 1978, and the issuance of the mandate on July 28, 1978. Supreme Court Rule 368 does not set forth an exact date for the filing of the mandate as defendant seems to suggest. (Ill. Rev. Stat. 1977, ch. 110A, par. 368.) We find no prejudice to defendant because of the time elapsed between the filing of the opinion and the filing of the mandate. Also, the State cannot be held responsible for the failure to try defendant during a period in which the trial court had no jurisdiction to try him. See People v. Adams (1967), 36 Ill. 2d 492, 496, 224 N.E.2d 252, 255.

Accordingly, we conclude that the jury properly found that defendant was guilty of murder beyond a reasonable doubt, and that he was not denied his right to a speedy trial. Therefore, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.

       There are other statutory qualifications which are not relevant here.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR MORALES, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1618
    Opinion filed December 23, 1981.
    Ralph Ruebner and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a bench trial the defendant, Victor Morales, was convicted of delivery of a controlled substance (Ill. Rev. Stat. 1973, ch. 56/2, par. 1401(a)) and sentenced to a term of four years to four years and a day. On appeal the defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the court’s denial of his motion to produce an informant deprived him of a fair trial; and (3) the court’s failure to compel a witness to testify deprived him of his right to due process.

Santos Claudio, a former agent of the Illinois Bureau of Investigation, testified that on January 6,1976, he entered “The Electric Lady,” a poster shop owned by the defendant and located at 909 N. Damen Avenue in Chicago. The defendant and two other men were present in the store. One of the men resembled the defendant but was taller and heavier. Claudio told the men that he was interested in purchasing some heroin. After some discussion, an agreement was reached concerning the price. The defendant asked Claudio for his name and telephone number. Claudio wrote his name on a piece of paper but stated that he did not have a telephone. The defendant gave Claudio his phone number, and Claudio told him that he would call the defendant the following day.

On January 7, 1976, after meeting with his supervisor and other officers, Claudio called the defendant’s number and recognized the defendant’s voice. Claudio asked if he was “ready to do the deal.” The defendant responded affirmatively.

At approximately 1:40 p.m. Claudio returned to the defendant’s store. Claudio greeted the defendant and followed him to the back of the store. The defendant asked for the money and told Claudio he would tell him where to pick up “the stuff.” Claudio objected to giving the money before the deal was completed. At this point Sebastian Ortega entered the store. Pursuant to defendant’s instructions, Ortega accompanied Claudio to Claudio’s automobile in order to count the money. Claudio showed Ortega $1350 in cash. Ortega left the vehicle and returned a few moments later. Ortega handed Claudio a brown paper bag which contained a tin foil package. Inside the tin foil were two packages of cellophane containing brown powder. The powder had a “vinegary acid type smell” which Claudio believed to be heroin. Claudio gave Ortega the money and depressed the brake of his car, which was a signal for certain surveillance agents. The agents arrested both Ortega and the defendant.

On cross-examination Claudio stated that he was first introduced to the defendant in November 1975 by Jose Torres, an informer. Claudio’s report concerning this meeting was captioned “J. Morales.” Claudio’s report concerning the events of January 6 and 7 did not contain any reference to the phone conversation with the defendant. The inventory sheet which Claudio had prepared prior to the transaction at the store was captioned “J. Morales.”

The parties stipulated that a chemist from the Department of Law Enforcement would testify that he tested the contents of a packet delivered to him by Claudio. The packet weighed 35.9 grams and contained heroin.

After the State rested, the defendant presented a motion asking the State to produce Jose Torres, the informer who allegedly introduced Claudio to the defendant. It was defendant’s position that this meeting never occurred. The trial court denied this motion.

The defendant called as a witness Sebastian Ortega, who previously had pled guilty to the delivery of the heroin. After consulting with an assistant public defender, Ortega asserted his fifth amendment privilege against self-incrimination. The trial court denied defendant’s request to compel Ortega to testify.

The defendant testified that he first met Claudio on January 6, 1976, when the agent entered the defendant’s store. When Claudio expressed an interest in purchasing some heroin, the defendant told Claudio he did not know him. Claudio then spoke to defendant’s brother, John Morales, who also was present in the store.

The defendant testified that he neither gave Claudio his telephone number nor received a phone call from him. On the afternoon of January 7, Claudio entered the store and began discussing his purchase of heroin. The defendant told Claudio that he knew nothing about this purchase. At this point Ortega came to the door of the store, and Ortega and Claudio left the store together.

The defendant testified that he did not give Ortega any heroin. He stated that his brother, John Morales, sold drugs. He further testified that he did not know the informer, Jose Torres.

Santos Claudio testified in rebuttal that he knew John Morales. John Morales was not in the store on January 7 when Claudio purchased the heroin.

I

The defendant first contends that the State did not establish beyond a reasonable doubt that he was the individual who negotiated with Claudio concerning the purchase of the heroin. The defendant attacks Claudio’s identification and points out that Claudio’s reports were captioned “J. Morales.” According to the defendant, such evidence supports his position that Claudio was dealing with his brother, John, and raises serious doubts concerning the validity of Claudio’s identification.

The testimony of one witness, if positive and credible, is sufficient to convict notwithstanding that the testimony is contradicted by the accused. People v. Thresher (1963), 26 Ill. 2d 604, 188 N.E.2d 26.

The facts in the instant case reveal that Claudio had ample opportunity to positively identify the defendant. Claudio testified that he was introduced to the defendant in November of 1975. Claudio met the defendant in his store on January 6, 1976, and made arrangements to purchase some heroin. The following day the defendant and Claudio conversed on the telephone concerning the purchase. Later that day Claudio went to the defendant’s store and discussed the purchase with him. The defendant instructed Ortega to accompany Claudio to his car in order to consummate the transaction. Although Claudio knew the defendant’s brother, John Morales, he stated that John was not in the store on the day of the purchase.

We believe that this testimony was more than sufficient to support the conviction. The fact that Claudio’s reports were erroneously captioned “J. Morales” does not weaken Claudio’s positive identification of the defendant as the individual involved in the transaction.

The defendant also points out that the State failed to produce the informer, Jose Torres, to corroborate Claudio’s testimony that he was introduced to the defendant by Torres in November of 1975. At trial the defendant denied that such a meeting occurred. The defendant now argues that the State’s failure to produce Torres created a presumption that his testimony would have been adverse to the State. People v. Plum (1976), 44 Ill. App. 3d 922, 358 N.E.2d 1235.

We do not believe that the holding in Plum has any applicability to the instant case. In Plum the State failed to produce an occurrence witness; here Torres was not involved at all in the purchase of the heroin. The State’s failure to produce Torres in no way affected the credibility of Claudio’s identification.

II

The defendant also argues that he was denied a fair trial when the trial court refused to order the State to produce the informer, Jose Torres. The defendant contends that Torres would have testified that, contrary to Claudio’s assertion, Torres never introduced Claudio to the defendant. Such testimony, according to the defendant, would have weakened the credibility of the State’s key witness.

The defendant relies on Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, in which the United States Supreme Court held that the trial court committed prejudicial error in permitting the government to withhold the identity of an informer who had purchased heroin from the defendant. The informer was the sole participant, other than the defendant, in the transaction charged. The Supreme Court held that although there can be no fixed rule with respect to disclosure, the government’s privilege to withhold the identity of an informer must give way when the disclosure of the identity is relevant and helpful to the defense of an accused.

The instant case is clearly distinguishable from Roviaro. First, it is undisputed that the defendant knew the identity of the informer. The first mention of an informer occurred when defendant’s attorney asked Claudio on cross-examination whether he had been introduced to the defendant by Jose Torres, an informer. In addition, Torres neither participated in the crime nor was present at the time of the arrest. (See People v. Durr (1963), 28 Ill. 2d 308, 192 N.E.2d 379, cert. denied (1964), 376 U.S. 973, 12 L. Ed. 2d 87, 84 S. Ct. 1138; People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609.) Torres’ testimony could not have provided any corroboration of the defendant’s version of the events which occurred in the store. We also note that the defendant waited until the State had completed the presentation of its case before presenting his motion to produce. Under these circumstances, we believe that there was no error in the denial of the defendant’s motion.

Ill

The defendant’s final argument is that the court erred by refusing to compel Sebastian Ortega to testify. When called as a witness, Ortega asserted his fifth amendment privilege against self-incrimination. The defendant contends that Ortega waived this privilege when he pled guilty to the delivery of the heroin. The State responds that Ortega was entitled to invoke the privilege because when he was called as a witness, time remained in which he could move to withdraw his guilty plea. Ill. Rev. Stat. 1977, ch. 110A, par. 604(d).

A defendant who enters a plea of guilty waives his privilege against compulsory self-incrimination. (McCarthy v. United States (1969), 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166.) The State argues that the privilege is not waived at the moment the plea is made but at the expiration of the period in which the defendant can withdraw that plea. The State cites State v. Tyson (1964), 43 N.J. 411, 204 A. 2d 864, cert. denied (1965), 380 U.S. 987, 14 L. Ed. 2d 279, 85 S. Ct. 1359, in which the New Jersey Supreme Court held that a witness who pled guilty to a criminal charge, but had not yet been sentenced, retained his privilege against self-incrimination. The court pointed out that if the witness was compelled to testify, his answers, if incriminating, would have been persuasive grounds for a court, in the exercise of its discretion, to deny a motion to withdraw the plea. The court concluded that forcing the witness to testify would tend, as a practical matter, to make the guilty plea irrevocable. See also People v. Kizzee (1979), 94 Cal. App. 3d 927, 156 Cal. Rptr. 784; Commonwealth v. Garland (1977), 475 Pa. 389, 380 A. 2d 777.

Although Ortega had been sentenced at the time he was called as a witness, there still was time remaining during which he could have filed a motion to withdraw his plea. We have been unable to find any cases, and the parties have not cited any cases, involving this precise issue. However, we believe the rationale in Tyson is equally applicable to the instant case. For this reason, we hold that the trial court committed no error when it permitted Ortega to invoke his privilege against self-incrimination since time remained during which he could have filed a motion to withdraw his plea.

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

Affirmed.

RIZZI, P. J., and McNAMARA, J„ concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NESTOR MATZKE, Defendant-Appellant.
    First District (3rd Division)
    No. 79-2178
    Opinion filed December 23, 1981.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein, and Bruce Rose, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendant, on June 2, 1979, killed Magdie Noush, age 14, by recklessly firing his .38-caliber pistol. In a bench trial he was found guilty of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) and involuntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a)) and was sentenced to a term of 6 years on the armed violence charge. No sentence was imposed on the manslaughter count, in the words of the order of sentence and commitment, “since this count would merge with the sentence on armed violence.” In further explanation of his order the trial judge said:

“The Court does have some concerns about subjecting a person to be twice penalized for the same offense, however the Statute does not require that the person be twice penalized for the same act. Indeed, this Court is mindful that the Appellate Courts have held that it is improper for the person to be sentenced for both the offense of armed violence and the other offense for which armed violence — on which armed violence, rather, is predicated. However, the facts of this case establish that the defendant is guilty of the charge of armed violence as set forth in the Statute beyond a reasonable doubt. And the Court finds the defendant to be guilty of the charge of armed violence.
Judgment will be entered on the finding of armed violence.”

The questions raised by this appeal are: (1) does the armed violence statute apply to unintentional criminal acts, and (2) can one recklessly fired shot support convictions of both manslaughter and armed violence.

Defendant first argues that to punish defendant under the armed violence statute for an unintentional criminal act is unfairly discriminatory, denies him equal protection and defeats the legislative intent. It is his position that the armed violence statute should not be construed so as to apply to the crime of involuntary manslaughter. To do so, it is argued, would destroy our entire scheme of grades of homicide in which involuntary manslaughter is the least grievous. Involuntary manslaughter is a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(b)(1)), for which a defendant could receive probation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(b)) or be sentenced to not less than 2 years and not more than 5 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(b)). On the other hand, armed violence committed while armed with a pistol is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3) for which there is no probation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(c)), and for which the sentence is not less than six years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3)). Yet the more serious intentional crime of voluntary manslaughter, a Class 2 felony, is punishable by a sentence of not less than 3 years and not more than 7 years (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2(c) and 1005 — 8—1(5)). It is contended that to construe the armed violence statute as applying to involuntary manslaughter would violate legislative intent and leave the armed violence statute, article 33A, and article 9 (homicide) working at cross purposes. The enhanced penalty imposed under the armed violence statute, according to the defendant’s brief, was intended by the legislature to apply to intentional criminal acts, but “the legislature failed to make distinctions along those lines.”

The first step in construing a statute is to look at the words actually used by the legislature. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194, 381 N.E.2d 222.) The words used to define armed violence are clear, direct and unambiguous:

“§33A — 2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon he commits any felony defined by Illinois law.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.)

As noted above, involuntary manslaughter is a felony. A pistol is a dangerous weapon (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 1). Obviously the plain words of the armed violence statute apply to involuntary manslaughter. However, defendant directs our attention to the case of People v. Lotts (1977), 48 Ill. App. 3d 684, 688, 362 N.E.2d 1387, in which the court stated: “Where the literal enforcement of the statute would result in great injustice and have results which the legislature could not have contemplated, this court will adopt the construction reasonably intended by the legislature.” We have examined the history of the armed violence statute for some clue as to whether the legislature indeed intended to enhance the penalty for an unintentional killing with a dangerous weapon by applying the armed violence statute to involuntary manslaughter. When first enacted, the statute applied to a limited number of felonies specifically listed, and provided for sentences of not less than 2 years nor more than the maximum sentence provided for the same felony committed while unarmed. In 1978, the Act was broadened to apply to any felony whatsoever, and armed violence made punishable as a Class X crime when committed while armed with a gun. Even a Class 4 felony becomes punishable as a crime of this highest classification when committed while armed with a gun. This is a legislative response to growing public alarm over the crimes committed with deadly weapons. It cannot be said that the armed violence act is not a rational attempt to deal with this problem. (See People v. Cole (1977), 47 Ill. App. 3d 775, 362 N.E.2d 432.) We fail to find the constitutional infirmities in its application to involuntary manslaughter conjured by defendant. The fact that more severe punishment has been mandated for persons who commit felonies while armed than for those who commit them unarmed is not a violation of equal protection in any way. (See People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) Nor do we view this construction of article 33A as destructive of our historic classification of homicide. The grades of homicide based upon the defendant’s state of mind remain. To them is added the factor of whether or not the defendant was armed. If so, it increases the mandated punishment. This does increase the options available to prosecutors and to courts, but that is not a violation of equal protection. People v. Graham (1975), 25 Ill. App. 3d 853, 323 N.E.2d 441.

Looking now at the other test proposed by the Lotts court in interpreting a statute, does literal enforcement result in great injustice? Defendant, age 22, with an IQ of less than 75, had never been arrested before when convicted of armed violence, was not eligible for probation, and was given the minimum sentence for Class X crimes; six years. That is one more than the maximum available for involuntary manslaughter. Obviously, the judge took all of the mitigating factors into consideration when imposing sentence. The fact remains that he recklessly fired his pistol and caused the death of a 14-year-old boy. The sentence cannot be said to be a great injustice.

Defendant next contends that his convictions for both armed violence and involuntary manslaughter based on a single recklessly fired shot are improper and the conviction for the less serious offense should be vacated.

Defendant has no basis for appeal on the involuntary manslaughter count, since there was no conviction and no judgment entered on that count. The State, however, places the issues of the correctness of both convictions before us, asserting that both are proper and requesting remand of the case for entry of final judgment and sentence on the manslaughter count. (People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540.) Under the doctrine of 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, this court has ruled that convictions of both armed violence and a supporting felony charge cannot both stand if based upon the same physical acts. (People v. Adams (1980), 91 Ill. App. 3d 1059, 415 N.E.2d 610; People v. Crawford (1980), 90 Ill. App. 3d 888, 414 N.E.2d 25.) The State argues that the test to determine where multiple convictions are permissible involves an examination of the statutes involved to determine whether each requires proof of an additional fact which the other does not. This is contrary to the test laid down in King.

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.” (Emphasis added.) (People v. King (1977), 66 Ill. 2d 551, 566.) In the recent case of People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620, after quoting King, the supreme court applied this rationale by meticulously reviewing the physical facts of the case to determine if convictions of attempt murder and armed violence based on aggravated battery can both stand. Finding that there were multiple physical acts, although the movement was slight, the court ruled the multiple convictions could stand.

Here clearly a single act, the pulling of the trigger, was conduct underlying both the involuntary manslaughter and the armed violence charge. Judgments and sentences on both charges as requested by the State could not stand.

Affirmed.

RIZZI, P. J., and McNAMARA, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ENOCH STOKES, JR., Defendant-Appellant.
    First District (5th Division)
    No. 80-1578
    Opinion filed December 28, 1981.

      Lebert Bastianoni, of Bastianoni, Meczyk and Associates, of Glenview, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard F. Burke, and Barbara A. Levin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant was convicted of two counts of aggravated battery and one count of armed violence, and sentenced to six years in the penitentiary. He raises the following issues on appeal: (1) the trial court erred in denying defendant’s motion to quash his arrest and suppress the evidence; (2) the State failed to prove beyond a reasonable doubt that he did not act in self-defense; (3) his conviction for armed violence should be vacated since it is based upon aggravated battery and is thus “doubly enhanced” in violation of his constitutional rights; and (4) the armed violence statute violates his right to equal protection.

The following testimony was adduced at trial.

Naomi Mixon testified that on January 5, 1980, she had dinner with her son at their home and later visited her sister on South Christiana Avenue in Chicago. Then she went to a lounge at 3700 West Roosevelt Road. At about 9 p.m., defendant, one of the patrons at the lounge, offered to give her a ride to her home. The two left the lounge and stopped at defendant’s home so that he could change his shoes. While there, Mixon telephoned her son. After she got off the phone, defendant struck her on the arm with his fists, causing her to fall on his bed. He continued to strike her with his fists and then cut her on the foot, hands and head with a machete. Defendant forced her to have oral and vaginal intercourse with him.

The next thing Mixon remembered was being at home. After initially refusing medical treatment that evening, she was taken to the hospital and was treated for her injuries. Later, she was met by police officers who brought her to the police station.

On cross-examination, Mixon admitted to having seen defendant on several occasions at the store she frequented, but denied visiting his apartment in the rear of the store or drinking beer while in the store. At trial, she stated that she took off her clothes after being struck and cut by defendant. However, at the preliminary hearing, her testimony was that she disrobed before he hit her with the machete.

Kerry Harris, Mixon’s 15-year-old son, testified that at about 9 p.m. on January 5, 1980, his mother called him. He did not see her until 4 a.m. the next morning. When she arrived home, her pants were bloody, her head was wrapped in a towel, and she was cut “from head to toe.”

Doctor Jurg Tauber testified that he treated Mixon at the emergency room of the University of Illinois Hospital on January 6, 1980. She had two deep lacerations: one on the scalp which was down to the bone and one on the left heel. The woman also had superficial lacerations on the left thumb and right hand, and numerous bruises over her entire back, the lower extremities, the buttocks and the left shoulder.

Investigator Fred Stone of the Chicago Police Department testified that at about 1 on the morning of January 6, 1980, he arrived at defendant’s apartment with two other police officers. As they approached the building, Stone noticed that the apartment lights were on, and saw a person peering out of the window. Red stains resembling blood were on the stairs near the entrance to the apartment. With guns drawn, the police officers knocked on the door and announced their office. Defendant answered the door and identified himself. He was placed under arrest, handcuffed and put on a chair in the kitchen. After Stone gave defendant Miranda admonishments, he saw blood on the floor and on the sheets of a bed in a bedroom adjacent to the kitchen.

Stone asked defendant about the blood, and the latter responded that no one was injured and that he had been alone for the last 24 hours. A trail of blood stretched from the kitchen to the bedroom. Poking his head into the bedroom, Stone saw a blood-stained machete hanging “in plain view” in a closet without doors. Evidence technicians were called in to “process the scene.” When defendant was told that the blood was to be tested to determine whether it was human, defendant initially stated that the blood came from an animal slaughtered pursuant to his job as a part-time butcher, but then said that some of the blood could be his own, due to an injury he suffered. The bloody machete and bedsheets were confiscated and defendant was taken to the police station.

At the police station, defendant was readmonished of his Miranda rights. He then gave the following story: on the night in question he met Mixon, went to his apartment and had sex with her. Before taking her home, he noticed that money was missing from his wallet. He confronted her and demanded his money back, but she refused. A fight ensued during which she was injured.

After the parties entered into a number of stipulations concerning physical evidence and tests conducted thereon, the State rested its case in chief.

Defendant testified on his own behalf that he lived in an apartment at the rear of a store at 1801W. 13th Street in Chicago. He had known Mixon for about nine months and had sex with her on four occasions. On one occasion, he caught Mixon attempting to steal food from the store and he ejected her from his apartment.

On January 5, 1980, at around 7 p.m., defendant went to Mixon’s apartment for a visit. When she asked for a beer, the two got into his car and bought a couple of six packs. Then they returned to her apartment and drank the beer. Mixon told him that she wanted to go dancing. Before doing so, the couple stopped at the home of Sterling Monroe, a friend of defendant. They arrived at Monroe’s at 8 p.m., and defendant engaged in a dice game with some of the people there. Later, the two returned to his apartment so that he could change into a pair of cowboy boots, and then went to a lounge at 3719 Roosevelt Road in Chicago, arriving at about 10 p.m.

Defendant and Mixon went to the rear of the lounge and sat at a small bar with Arthur Funches, another one of defendant’s friends. The couple danced and mingled, and left the bar sometime between 12 p.m. and 1 a.m. to go to defendant’s home. That day, defendant was carrying about $600 in his wallet.

After arriving at his apartment, the two had a drink, listened to music and then had sexual intercourse. At about 4:00 that morning, Mixon asked defendant to take her home. Defendant used the washroom, and upon his return noticed that his wallet, which was on the dresser, was empty. He demanded the return of his money, but she stated that she did not have it. Defendant grabbed the woman, tearing her jacket pocket and causing money to fall out. The two struggled in the kitchen and she grabbed a machete and started swinging it at him. Defendant threw a dish rack and chairs at her, hit her with a mop handle, wrestled her to the floor and got on top of her. Then, he gained control of the machete and struck her with it. Defendant turned on the kitchen light, saw that she was bleeding, carried her into the bedroom and put towels on her head in an attempt to stop the flow of blood. After she refused to be taken to the hospital, defendant drove her home. He was arrested by the police the following day.

On cross-examination, defendant stated that Mixon struck him with the machete several times, but that he, “during a rage,” hit her only once. He also stated that there was broken glassware on the kitchen floor which may have cut the woman’s foot.

Sterling Monroe testified that defendant came to his home with a woman on January 5, 1980. Defendant arrived at 8 p.m., won ábout $200 in a dice game, and left with his companion about an hour and a half later.

Frank Maney, defendant’s friend, stated that he was at the dice game at Monroe’s home on the night in question and saw defendant arrive with Mixon, whom he knows. Maney testified to having seen Mixon on occasion at the store behind which defendant lives.

Arthur Funches corroborated defendant’s testimony that defendant and Mixon were at the bar at 3719 Roosevelt Road on January 5,1980. The two left the bar at about 12 p.m.

Robert Lewis, defendant’s landlord and the owner of the store, testified that he had known Mixon for about six months. According to Lewis, she went to the store about three or four times per week and had been in defendant’s apartment several times.

In rebuttal, the State offered the stipulated testimony of Investigator Stone that Sterling Monroe on January 7, 1980, told him that defendant arrived at his home alone on the night of the incident. Monroe was not certain of the time that defendant left his home and did not know whether anyone was with him. He was not acquainted with Naomi Mixon. , ■

Opinion

Defendant first contends that the trial court erred in denying his motion to quash the arrest and suppress the machete and bloody bedsheet that were seized by the police. He maintains that the court should not have summarily denied the motion on the basis that there had been no showing: (1) that incriminating items had been “seized” by the police, and (2) that the State intended to introduce these items into evidence. Defendant also asserts that the warrantless arrest in his home and the attendant search of the premises were illegal. Since the fruits of this search were allegedly “major factors” in defendant’s conviction, defendant urges reversal of his convictions.

In a proceeding on a motion to suppress evidence, the burden of proving that the search and seizure were unlawful is on the defendant. (People v. Williams (1973), 16 Ill. App. 3d 440, 306 N.E.2d 678.) However, the burden of proving the validity of the arrest is shifted to the State when a defendant shows he was doing nothing unusual at the time of his arrest, and he makes a prima facie case that the police lacked probable cause to arrest him. People v. Moncrief (1971), 131 Ill. App. 2d 770, 268 N.E.2d 717.

It is evident from defendant’s testimony at the suppression hearing that he was doing nothing unusual at the time of his arrest, and that the police had no warrants of any kind when they entered his home and searched for evidence without his consent. Thus, defendant sustained his burden of establishing a prima facie case that the police lacked probable cause, and the burden of proving justification for the search shifted to the State. Therefore, the trial court erred in summarily denying defendant’s motion.

We disagree with the trial court’s conclusion that a “seizure” was not established by defendant’s testimony at the hearing. First, defendant testified that the machete and bloody sheet were present in the apartment when the officers arrived and searched his apartment. Subsequent to the arrest, he returned and found that the items were missing. This testimony provides circumstantial proof that the items were confiscated by the police during the search. Second, the State’s answer to discovery, filed prior to the suppression hearing, listed both items as physical evidence that “may be used at trial.” This evidence was subsequently admitted at trial over defendant’s objection. Thus, the “seizure” of the evidence was admitted by the State. Third, we know of no requirement that defendant establish, at a suppression hearing, that he actually witnessed the police remove incriminating evidence from the premises. Frequently, the search of the premises and the confiscation of evidence occurs outside the range of the suspect’s immediate vision, or transpires in his total absence. In these cases, it is impossible for the suspect to testify that he actually saw the police remove the items. Thus, he has no burden to do so in establishing a prima facie case at the hearing on the motion to suppress.

However, although the trial court erred in denying the motion to suppress, the error does not warrant a reversal of defendant’s conviction. It is clear that the admission of illegally obtained evidence in a criminal trial following the erroneous denial of a motion to suppress is subject to the harmless error rule. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. Clark (1977), 55 Ill. App. 3d 379, 370 N.E.2d 1111, cert. denied (1978), 439 U.S. 858, 58 L. Ed. 2d 165, 99 S. Ct. 173.

Under the circumstances of this case, we believe that the admission of the machete and bloody sheet into evidence was harmless beyond a reasonable doubt. First, the existence of these items was established by defendant’s testimony. Defendant admitted at trial that he struck the victim with a machete while she was in his apartment that night, that she was injured and bleeding because of his actions and that he later placed her on the bed. Since defendant’s own testimony shows that a machete was used on the victim and that the bedsheet was bloody, the admission of these two items into evidence does not prejudice him. Second, the victim testified that defendant struck her with the machete, and the medical evidence corroborates her description of the severity of the wounds suffered as a result of this attack. Therefore, the admission of the machete and bedsheet adds little to the State’s case. Finally, since defendant was tried by the trial court rather than by a jury, any inflammatory impact of the seized items was substantially reduced.

Defendant argues that the State failed to prove beyond a reasonable doubt that he had not acted in self-defense in striking the victim with the machete. We disagree.

A person mgy use such force in self-defense as is likely to cause death or great bodily harm to another only if he reasonably believes it necessary to prevent imminent death or great bodily harm to himself or another. (People v. Peeler (1973), 12 Ill. App. 3d 940, 299 N.E.2d 382.) One is not justified in employing deadly force against an antagonist after the latter has been disarmed or disabled. People v. Pitchford (1976), 39 Ill. App. 3d 182, 350 N.E.2d 170.

The victim’s testimony clearly shows that defendant did not act in self-defense when he struck her. Rather, it establishes that defendant could not have reasonably feared death or great bodily harm when he attacked her. According to the victim, defendant demanded that she undress. When she refused, he struck her with his fists and later with the machete. She had no weapon at this time and did not threaten the defendant. The trial court implicitly found this testimony to be credible in finding defendant guilty of aggravated battery and armed violence.

Moreover, even defendant’s testimony shows that his use of force was not justified. Basically, he stated that he caught the victim stealing his money, and that she refused to return it. As they fought on the floor, she grabbed the machete and tried to hit him, but he gained control of the weapon. While on top of her, he struck the woman “during a rage.” We believe that under this version of the facts, defendant could not have reasonably believed that deadly force was authorized, since the woman had been disarmed and posed no threat to him. See Pitchford; People v. McBride (1970), 130 Ill. App. 2d 201, 264 N.E.2d 446.

Finally, defendant contends that his conviction for armed violence should be vacated. First, he asserts that this conviction is based upon the underlying felony of aggravated battery and that there is thus a “double enhancement” of the aggravating factor of being armed.

Defendant was convicted of two counts of aggravated battery; one count for causing great bodily harm to the victim and one count for committing a battery upon her using a deadly weapon. (Ill. Rev. Stat. 1979, ch. 38, pars. 12 — 4(a), 12 — 4(b)(1).) Initially, the trial court also found defendant guilty of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) based upon the two counts of aggravated battery. However, on defendant’s motion, the judge later vacated the finding of guilty on the count of armed violence based upon the aggravated battery — use of a deadly weapon count, on the very basis that defendant now complains.

We believe that the trial court correctly vacated the armed violence conviction based upon the aggravated battery — use of a deadly weapon count. Likewise, the trial court did not err in permitting the armed violence conviction based upon aggravated battery — great bodily harm, to remain intact. In People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, our supreme court specifically addressed this very issue. There, defendant was convicted of aggravated battery for use of a deadly weapon, and armed violence based thereon. In finding that there was double enhancement from the single use of the weapon, the court stated:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” Haron, 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.

In the present case, of course, there is no “double enhancement” problem because the armed violence conviction is based upon aggravated battery — great bodily harm. The use of a weapon is only employed once — as an element of the armed violence conviction. Thus, the armed violence conviction is based upon the commission of a predicate offense which is a felony without the presence of a weapon and is therefore proper.

Defendant also asserts that the armed violence statute violates equal protection since it mandates dissimilar treatment for similarly situated persons. In other words, it is argued that the statute draws an improper distinction between unarmed and armed felons and treats the latter group more severely.

The equal protection clause does not deny the States the power to treat different classes of persons in different ways. (Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029.) The clause requires equality between groups of persons “similarly situated”; it does not require equality or proportionality of penalties for dissimilar conduct. (People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029.) The armed violence statute, in treating armed felons more severely than unarmed felons, does not violate equal protection since the two groups are not “similarly situated.” A person armed with a dangerous weapon during the commission of a crime is obviously in a different class than one who commits the crime without a weapon. The presence of the weapon on the person of the armed offender, even if it is not used, escalates the potential for violence and may serve to traumatize the victim. More severe treatment of offenders in this class, as opposed to the class of unarmed offenders, is entirely rational. The equal protection clause does not require proportionality of penalties between these two classes of persons since the conduct in each case is dissimilar.

Defendant maintains that dissimilar treatment for those “similarly situated” may arise since armed felons who commit nonviolent felonies, such as perjury or forgery, are treated differently than those who commit violent crimes, like aggravated battery. This contention is without merit.

The armed violence statute plainly states that a person is guilty of this offense when, “* # 6 while armed with a dangerous weapon, he commits any felony defined by Illinois law.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 33A—2.) Perjury and forgery are both felonies under Illinois law. (Ill. Rev. Stat. 1979, ch. 38, pars. 32 — 2,17—3.) Therefore, a plain reading of the statute shows that one may be found guilty of armed violence if, while armed with a dangerous weapon, one commits perjury or forgery. Thus, felons committing these two offenses while armed are treated the same as armed felons who commit violent crimes.

Finally, the State asks this court to remand this case for sentencing on the convictions for aggravated battery, since the trial court only sentenced him on the armed violence conviction, finding that the former offenses “merged” with the latter.

However, our review of the record shows that the trial judge instructed that six-year concurrent sentences were to be imposed upon each of the three convictions. The convictions for two counts of aggravated battery and one count of armed violence arose from separate physical acts by the defendant. These acts are evident in the multiple wounds suffered by the victim. Since the offenses are based upon different acts, they do not “merge.”

Multiple convictions and concurrent sentences are proper in cases where defendant has committed several acts despite the interrelationship of these acts. (People v. Myers (1981), 85 Ill. 2d 281, 422 N.E.2d 620.) Since we believe that the trial court already sentenced defendant on the aggravated battery convictions, there is no need to remand this case for further sentencing.

Therefore, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.


text:
    STRINGER CONSTRUCTION COMPANY, INC., Plaintiff, v. THE AMERICAN INSURANCE COMPANY, Defendant-Appellant.—(LAGRANGE STATE BANK, Defendant-Appellee; CHICAGO HOUSING AUTHORITY et al., Defendants.)
    First District (3rd Division)
    No. 80-1847
    Opinion filed November 4, 1981.
    Modified on denial of rehearing December 30, 1981.
    Charles A. Gilmartin and Daniel J. Mulcahy, both of Chicago (Gilmartin, Hallenbreck and Schroeder, Ltd., of counsel), for appellant.
    John M. Burke, of Burke & Burke, Ltd., of Chicago, for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

This action was brought by Stringer Construction Company, Inc. (Stringer), the plaintiff, to enjoin the defendant, LaGrange State Bank (LaGrange), from paying out on its letter of credit to the defendant, American Insurance Company (American). After a hearing, plaintiff’s motion for a preliminary injunction was granted and LaGrange was enjoined from honoring American’s draft until further order of the court. American filed this interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1979, ch. 110A, par. 307(a)(1)).

The issues presented for review are whether the plaintiff satisfied the requirements for a preliminary injunction and whether the issuance of the preliminary injunction contravened article 5 of the Uniform Commercial Code Letters of Credit (Ill. Rev. Stat. 1979, ch. 26, pars. 5 — 101 to 5 — 117).

Stringer has not filed an appellee’s brief in this matter. LaGrange argues that the issuance of the preliminary injunction should be affirmed.

Stringer had contracted with American to complete construction of a Chicago Housing Authority project in accordance with provided plans. As a prerequisite for the award of this contract, Stringer was required to provide American with security in the form of a $50,000 deduction from the first payout on Stringer’s work and a $150,000 letter of credit. Stringer obtained a letter of credit from LaGrange after a security agreement and promissory note in the amount of $150,000 had been signed. Philip Stringer (the president of Stringer), Linda Stringer (Philip’s wife), and Allan G. Levine (Stringer’s attorney) signed the promissory note. The irrevocable letter of credit provided in part:

“We hereby authorize you to draw on us for account of Stringer Construction Company up to an aggregate amount of $150,000.00, U.S. Currency, available by your draft at sight accompanied by your signed statement that funds are required to cover liability, loss, cost, or expense incurred by you as a result of any breach by Stringer Construction Company ° * * of a certain contract dated August 2, 1977, between Stringer Construction Company and American Insurance Company.
# » *
We hereby agree with you that all drafts drawn under and in compliance with the terms of this credit will be duly honored on delivery of documents as specified.”

The construction contract between American and Stringer was . signed on August 15, 1977. Construction under the contract progressed until February of 1980 when the Chicago Housing Authority advised American and American advised Stringer that the right to complete the project had been terminated. The termination was allegedly due to Stringer’s failure to complete the project in accordance with the terms of the contract dated August 15,1977.

On April 11, 1980, William J. Saelinger, surety claims supervisor for American, presented to LaGrange a letter, affidavit and sight draft in the amount of $150,000. The letter provided:

“Pursuant to Irrevocable Letter of Credit No. 688 dated August 3, 1977 and renewed effective August 3, 1978 and further renewed effective as of August 3, 1979, American Insurance Company hands you herewith sight draft in the amount of $150,000.00 accompanied by the signed, certified statement of American Insurance Company that the funds in the amount of $150,000.00 are required to cover the liability, loss, costs and expense incurred by American Insurance Company as a result of the breach by Stringer Construction Company * * * of a certain contract dated August 2, 1977 between Stringer Construction Company and American Insurance Company.
We trust that this sight draft will be honored and funds in the amount of $150,000.00 will be immediately transferred to American Insurance Company.”

The accompanying affidavit provided:

“William J. Saelinger, being first duly sworn on oath, deposes and says that he is Surety Claims Supervisor for American Insurance Company. He is familiar with the liability, loss, costs and expenses incurred by American Insurance Company as a result of the breach by Stringer Construction Company * * * of a certain contract dated August 2,1977 between Stringer Construction Company and American Insurance Company.
American Insurance Company has incurred in excess of $150,000.00 of liability, loss, costs and expenses.”

LaGrange was subsequently instructed by Allan Levine to refuse to honor the draft. On April 17,1980, the instant injunction action was instituted by Stringer.

Stringer’s complaint for injunctive and other relief alleged that the demand by American was wrongful because Stringer did not breach the contract. The complaint alleged that American and the Chicago Housing Authority had breached the contract and had damaged Stringer by causing work stoppages and plan alterations which resulted in added costs without additional compensation to Stringer. The complaint further alleged that Stringer would suffer irreparable harm and had no adequate remedy at law if LaGrange honored the draft because LaGrange would demand immediate payment from Stringer and Stringer would be forced to go out of business since it could not repay LaGrange.

Evidence regarding the work performed by Stringer under the contract, payments received by Stringer from American, and additional costs incurred by Stringer as a result of work stoppages and design alterations ordered by the Chicago Housing Authority was presented at the hearing on the propriety of issuing the preliminary injunction. As this testimony is not relevant to our ruling in this case, we find it unnecessary to discuss it here. At the close of the hearing, the court entered the preliminary injunction.

American argues on appeal that in the case at bar the preliminary injunction was wrongfully issued because there was insufficient proof of irreparable injury, there was no showing of a likelihood of success on the merits, an adequate remedy at law existed, and the injury to American was more serious than that which would have befallen the plaintiff. American also argues that the injunction was overly broad.

We find it unnecessary to address these issues, however, because we believe that the preliminary injunction should not have been issued since the requirements of the Uniform Commercial Code relative to injunctive relief (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 114(2) (b)) were not met.

Historically, the letter of credit has been recognized as a commercially useful credit device that substitutes the financial responsibility of a bank for the less desirable financial responsibility of a party to the commercial transaction. (Ill. Ann. Stat., ch. 26, art. 5, Introductory Comment, at 561 (Smith-Hurd 1963).) Section 5 — 103(a) of the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 103(a)) defines a letter of credit as an engagement by a bank made at the request of a customer that the bank will honor the beneficiary’s drafts or demands for payment upon the beneficiary’s compliance with the conditions specified in the letter. The letter of credit in the instant case is categorized as a “guaranty” or “stand-by” letter of credit because it obligates the issuer (LaGrange) to pay the beneficiary (American) in the event of a default by the one who procured the letter’s issuance (Stringer). (Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 390 N.E.2d 894.) Such an arrangement usually requires three separate and distinct contracts or agreements: the contract between the bank and its customer whereby the bank agrees to issue the letter of credit to the beneficiary, the underlying contract between the bank customer and the beneficiary, and the letter of credit itself. See Dynamics Corp. of America v. Citizens & Southern National Bank (N.D. Ga. 1973), 356 F. Supp. 991.

The letter of credit is not a guaranty or surety arrangement because the issuer is bound to pay the beneficiary and because this obligation is not subject to the various defenses available to a guaranty or surety undertaking. (Asociacion de Azucareros de Guatemala v. United States National Bank (9th Cir. 1970), 423 F.2d 638; Pastor v. National Republic Bank.) Under section 5—114(1) of the Code (Ill. Rev. Stat. 1979, ch. 26, par. 5—114(1)), the issuer of the letter of credit has no right to refuse to honor a complying draft or demand. That section provides:

“An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary.”

Generally, if the documents presented conform to the letter of credit requirements, the issuer is not required or permitted to go behind the documents, and payment is required without reference to the rights and obligations of the parties to the underlying contract (e.g., Baker v. National Boulevard Bank (N.D. Ill. 1975), 399 F. Supp. 1021; First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288) unless the letter of credit provides to the contrary. (Pastor v. National Republic Bank.) If this were otherwise, the unique commercial usefulness of the letter of credit as a vehicle of rapid and guaranteed payment in commercial transactions would be destroyed. Asociacion de Azucareros de Guatemala v. United States National Bank.

The independence of the letter of credit from the underlying contract was recognized in Sztejn v. J. Henry Schroder Banking Corp. (1941), 177 Misc. 719, 31 N.Y.S.2d 631. In Sztejn, the underlying contract involved a sales transaction. The buyer, who had obtained a letter of credit, sought to restrain the bank from honoring drafts submitted by the seller pursuant to the letter of credit because the seller had breached the underlying contract by shipping worthless goods. The Sztejn court stated:

“It would be a most unfortunate interference with business transactions if a bank before honoring drafts drawn upon it was obliged or even allowed to go behind the documents, at the request of the buyer, and enter into controversies between the buyer and the seller e * If the buyer and the seller intended the bank to do so they could have so provided in the letter of credit itself, and in the absence of such a provision, the court will not demand or even permit the bank to delay paying drafts which are proper in form.” (177 Misc. 719, 721, 31 N.Y.S.2d 631, 633-34.)

The court took exception to this general rule, however, because the beneficiary/seller had engaged in active fraud. The court stated:

“In such a situation, where the seller’s fraud has been called to the bank’s attention before the drafts and documents have been presented for payment, the principle of the independence of the bank’s obligation under the letter of credit should not be extended to protect the unscrupulous seller. * * *
* * *‘[W]hen .the issuer of a letter of credit knows that a document, although correct in form, is, in point of fact, false or illegal, he cannot be called upon to recognize such a document as complying with the terms of a letter of credit.’ ” 177 Misc. 719, 722, 31 N.Y.S.2d 631, 634-35.

Section 5 — 114(2) (b) of the Code, which is a codification of Sztejn (Ill. Ann. Stat., ch. 26, par. 5—114, Illinois Code Comment, at 598 (Smith-Hurd 1963)), allows the court to look at the underlying contract if there is fraud, forgery or other defect in the documents accompanying the beneficiary’s draft. This provision has been given a narrow interpretation in Illinois so that the fraud must vitiate the entire transaction. Fraud in the factum or fraud in the formation of the underlying contract is required. First Arlington National Bank v. Stathis.

American relies on the above-stated principles and argues that the weight of authority prohibits a consideration of American’s and Stringer’s performance of the underlying contract. American contends that Stringer has not claimed fraud, forgery or defect with respect to the underlying, transaction and that, therefore, in accordance with section 5 — 114(2) (b) of the Code, the court should not have issued the preliminary injunction.

LaGrange argues that the injunction was properly issued because the documents submitted by American were defective on their face since Stringer did not breach the underlying contract and because the amount of loss allegedly suffered by American was untrue. LaGrange relies upon Dynamics Corp. of America v. Citizens & Southern National Bank (N.D. Ga. 1973), 356 F. Supp. 991, wherein a preliminary injunction was granted by the trial court. In Dynamics, the beneficiary submitted a sight draft and documentation stating that the plaintiff had failed to carry out certain of the contractual obligations under their agreement. The underlying contract provided for the shipment of goods by the plaintiff to the beneficiary f.o.b. the plaintiff’s plant. The plaintiff claimed that it had complied with this arrangement but that the beneficiary could not obtain the goods because of an embargo ordered by the President of the United States. The plaintiff argued that it had performed under the contract and that the beneficiary’s certification to the contrary was therefore fraudulent. The Dynamics court followed the reasoning of Sztejn but adopted a broad definition of fraud. It stated that the beneficiary should not be able to take an unconscientious advantage of the plaintiff merely by submitting a pro forma declaration of breach that had no basis in fact.

Dynamics is distinguishable from the instant case because as noted above, Illinois has followed other jurisdictions in giving the fraud exception outlined in section 5 — 114 of the Code a narrow construction. (See First Arlington National Bank v. Stathis.) An injunction against honor, which interferes with business transactions freely negotiated between the parties (Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 357 N.E.2d 1307 (concurring opinion)), should be limited to situations where the wrongdoing of the beneficiary has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. (Intraworld Industries, Inc. v. Girard Trust Bank (1975), 461 Pa. 343, 336 A,2d 316.)

In the case at bar, American submitted a document to LaGrange stating that a breach of the underlying contract had occurred. Stringer admits that it did not complete the construction contract but argues that its failure to perform was occasioned by the actions of American and the Chicago Housing Authority. A bona fide dispute exists between the parties as to their liabilities under the underlying contract, and it may well be that Stringer’s nonperformance was legally excused. We cannot say, however, that American, by submitting the document in question, committed a fraud that vitiated the entire transaction between the parties. Furthermore, even under the Dynamics standard of fraud, we do not find that American’s declaration of breach was unconscientious or that it had absolutely no basis in fact.

As stated above, the letter of credit is not a guaranty or suretyship arrangement and a bank’s obligations under the letter of credit are not subject to the various legal defenses available to those undertakings. Thus, Stringer’s alleged defense to the breach-of-contract claim by American as well as Stringer’s dispute with the amount of losses claimed to have been incurred by American should be addressed in an action at law. (Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp.) Since the requirements of section 5 — 114(2) (b) of the Code were not met, the preliminary injunction was improperly issued.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Reversed.

RIZZI, P. J., and WHITE, J., concur.

       Also named as defendants were the Chicago Housing Authority (CHA) and Shirpporeit & Associates, an architectural firm. Shirpporeit & Associates designed a housing project for CHA that Industrial Mechanical, Inc., American’s principal under a surety agreement, had contracted to construct. When Industrial Mechanical, Inc., defaulted, the plaintiff contracted with American to complete the project.

       The letter of credit states that the contract between Stringer and American is dated August 2,1977. There is no dispute that the contract between the parties was in fact dated August 15,1977.

       Stringer’s motion for a temporary restraining order similarly alleged that Stringer had no adequate remedy at law because if the letter of credit was honored, it would be unable to repay LaGrange and it would be forced into bankruptcy and would cease as a legal entity. The threat of bankruptcy, due to a forced liquidation of assets and inability to meet other obligations, was also alleged to be an irreparable injury upon Stringer if LaGrange was not enjoined from honoring the draft submitted by American.

       LaGrange has also relied upon cases involving the duty of the issuer of a letter of credit to honor drafts that have been negotiated to holders in due course. (Bank of North Carolina v. Rock Island Bank (C.D. Ill. 1979), 471 F. Supp. 1301, rev'd (7th Cir. 1980), 630 F.2d 1243; United Bank Ltd. v. Cambridge Sporting Goods Corp. (1976), 41 N.Y.2d 254, 392 N.Y.S.2d 265, 360 N.E.2d 943.) However, this situation is governed by section 5 — 114(2) (a) of the Code which does not concern the case at bar.


author: JUSTICE WILSON JUSTICE WILSON

text:
    SWAP SHOP, INC., Plaintiff-Appellant, v. M & R AMUSEMENT CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2062
    Opinion filed November 13, 1981.
    Supplemental opinion filed on denial of rehearing December 28, 1981.

      Gann, McIntosh, Flaherty & Parker, of Chicago (Marovitz, Powell, Piser & Edelstein, of counsel), for appellant.
    David R. Herzog, of Layfer, Cohen, Handelsman & Mora, Ltd., of Chicago (Fred F. Herzog, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff appeals from an order of the trial court dismissing its six-count amended complaint by summary judgment against Samuel T. Cohen, individually and as agent of Harris Trust and Savings Bank, Sara W. Cohen, individually and as trustee under Samuel T. Cohen Family Trust; and Dorothy Berger (hereinafter all referred to as Cohen); and on the court’s own motion dismissing count 4 only of the amended complaint as to M & R Amusement Corporation, Double Drive-In Corporation, M & R Theatres, Inc., Raymond J. Marks, Martin G. Rosenfield, Richard A. Rosenfield, Louis H. Marks, Jerrold Marks (hereinafter all referred to as M & R). The pertinent facts follow.

Counts 1-4 of the complaint allege, essentially, interference with plaintiff’s business, unfair competition, and conspiracy. Count 5 alleges fraudulent misconduct, and count 6 alleges a joint venture and defendants’ subsequent deprivation of plaintiff’s share of business. In support of these allegations, plaintiff’s submission of supporting documents indicates that in 1969, it subleased from M & R the premises of the Double Drive-In movie theatre for its flea market business during the daylight weekend hours. The term of the lease was for five years as a percentage rental based on plaintiff’s gross revenues, which were derived from the stall charges paid by its sellers and the admissions fees of shoppers. When Cohen, the lessor, learned of this sublease in 1969, he negotiated with M & R to receive 35 percent of all rentals that M & R received from plaintiff.

Plaintiff and M & R signed a new sublease in April 1974, providing for an expiration date of April 1982, and containing a clause permitting M & R, upon 90 days prior written notice, to terminate this sublease prior to its expiration date. Plaintiff further states that M & R agreed to waive their right to exercise this termination clause in consideration of the following:

(1) In 1974, plaintiff made improvements on four acres of land and installed a new entrance gate at one of the Double Drive-In theatres;

(2) In 1972, plaintiff met with M & R and Cohen in Cohen’s office for the purpose of discussing an additional 22 acres of land with the proposal of improving it and the original leased premises for use in connection with the flea market. Plaintiff indicated at the meeting that it could not make these improvements unless the premises would be available to it in connection with the flea market business for at least a term of five years. M & R allegedly agreed to these conditions and M & R sent plaintiff a copy of a letter from Cohen dated May 7, 1975, the terms of. which were that Cohen agreed to lease the additional acreage for a five-year term; with the cost of improvements and taxes to be the expense of M & R and plaintiff. No reference was made in the Cohen letter to M & R of the “cancellation clause” discussed at the meeting, and M & R’s cover letter to plaintiff stated that they were not sure whether they should bring it up at this time;

(3) Plaintiff successfully defended against an injunction action brought by the City of Chicago to enjoin the use of the flea market at the Double Drive-In; and

(4) In 1976, plaintiff made additional improvements on the leased premises.

In September 1977, M & R sent notice to plaintiff that the sublease would be terminated as of December 31, 1977. Plaintiff stated that it informed Cohen of the termination notice and that thereafter Cohen and M & R renegotiated the existing lease on the Double Drive-In premises and extended its term effective January 1, 1978, to December 31, 1998. The new lease provides that Cohen receive 35% of the net income realized by Double from its operation of the flea market. M & R reopened the flea market in the spring of 1978 without disclosing that M & R would now be operating the flea market and further, M & R secured plaintiffs customer lists and solicited these customers to patronize the flea market. The Cohen documents submitted in support of their motion for summary judgment indicate that Cohen was unaware of the sublease prior to 1969 and had no relationship with plaintiff. When he learned of the additional use of the leased premises in 1969, he insisted that M & R pay a rental charge for such use as it was not contemplated in the original lease. From 1969 until the end of 1975, all checks for rent for the operation of the flea market came from Double Drive-In. After this time, he received checks made payable to Double Drive-In from plaintiff and endorsed over to him as agent for the landlord.

In May 1975, Cohen did meet with plaintiff and M & R at M & R’s insistence, to discuss the additional leasing of land for use in plaintiff’s business. Cohen indicated that he did not want to create a relationship with plaintiff and his relationship was only with M & R as their lessor. In November 1975 he received a check from plaintiff, representing the landlord’s share of the flea market operation receipts for the period October 1 through October 31, 1975; however, this was returned to M & R with a letter dated December 1,1975, in which he indicated all checks for rentals due must come from M & R, as the sole lessee. M & R’s acknowledgment in a return letter dated December 10,1975, confirms Cohen’s intent not to become involved in any way with the operations of the flea market. He was informed by plaintiff in late 1977 of M & R’s intent to terminate the sublease, but he assured plaintiff this was his first notice of this action and he was not a part of it. When M & R informed him that they would be operating the flea market in February 1978, the new lease provided that he would receive 35% of the net income realized by M & R. The new lease was not signed until spring 1978 even though it encompassed the period beginning January 1,1978.

Opinion

Plaintiff initially contends that issues of material fact exist which precluded the granting of summary judgment. It is their contention that a material issue of fact was presented from its pleadings and supporting documents which was not countered by the Cohen documents denying his involvement in the operation of the flea market.

Summary judgment is only appropriate if the pleadings, depositions, affidavits, and other documents show that the movant is entitled to this remedy as a matter of law. (Duffy v. Midlothian Country Club (1980), 92 Ill. App. 3d 193, 415 N.E.2d 1099.) Summary judgment is not designed to try issues of fact (Gasdiel v. Federal Press Co. (1979), 78 Ill. App. 3d 222, 396 N.E.2d 1241); as such, the right of the moving party must be clear, undisputed, and free from doubt. (Kocjancich v. Bridges (1981), 93 Ill. App. 3d 550, 417 N.E.2d 694.) Pleadings and supporting documents are strictly construed against the movant and liberally construed in favor of the nonmovant. Crooks Terminal Warehouses v. American National Bank & Trust Co. (1980), 83 Ill. App. 3d 693, 404 N.E.2d 889.

The operative facts which are crucial to a determination of the appropriateness of summary judgment in this instance are the May 7, 1975, meeting and the events transpiring subsequently which would indicate involvement by Cohen in plaintiff’s operation.

Plaintiff alleges Cohen conspired with M & R to breach its contract with plaintiff. Plaintiff’s documents point to the fact that Cohen was in attendance at the May 1975 meeting where M & R agreed to waive their right to exercise the termination clause. However, plaintiff’s affidavits and depositions do not establish that Cohen also agreed. In fact, the Cohen documents indicate that he made it clear at the meeting that his relationship was one only of lessor to his lessee, M & R. His subsequent letter to M fie R agreeing to lease the additional premises does not establish his connection with plaintiff. This letter merely recites the terms for leasing the additional premises and was only forwarded to M &c R. There is no mention in the letter of plaintiff’s requirement of waiver of the termination clause or any indication of his intent to be involved in the flea market operation. Further, M fisc R’s cover letter to plaintiff, enclosing a copy of this letter, does not indicate Cohen’s acquiescence to plaintiff’s conditions. Cohen had no further contacts or communications with plaintiff until he was notified by plaintiff in late 1977 that MficR had given notice that the lease would be terminated as of the end of that year. Cohen’s disinvolvement in any relationship with plaintiff is further buttressed by the fact that when he received a rental check directly from, plaintiff in late 1975, he returned the check to M é- R, with a cover letter stating that his relationship was only with M fie R and requested that they forward a check to him. Cohen indicated that he never saw the sublease agreement and was uninformed as to the nature of the termination provision in the lease. His denials of involvement in the operation of the flea market are uncontested and uncountered by plaintiff’s documents.

Based on the record before us, plaintiff has not alleged sufficient facts which indicated Cohen conspired to intentionally and maliciously induce M & R to breach their contract (Ramsey v. Greenwald (1980), 91 Ill. App. 3d 855, 414 N.E.2d 1266; Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 409 N.E.2d 38), or tortiously interfered with plaintiff’s relationship with M fie R. (Candalaus Chicago, Inc. v. Evans Mill Supply Co. (1977), 51 Ill. App. 3d 38, 366 N.E.2d 319.) Further, no allegations establish that Cohen may be liable for M fie R’s breach of its sublease. “The fact that a landlord has consented that his tenant may sublet the premises does not render him liable for a breach by the tenant of his contract, where the tenant has no authority to act as his agent.” Arendt v. Lake View Courts Associates (1977), 51 Ill. App. 3d 564, 566, 366 N.E.2d 1096, citing 51C C.J.S. Landlord & Tenant §48(1) (a), at 143 (1968); Ford v. Jennings (1979), 70 Ill. App. 3d 219, 387 N.E.2d 1125.

The “economic benefit” plaintiff argues Cohen received from the sublease was only additional rent charged M & R for the additional use of the premises not contemplated in the original lease.

Similarly, the record is devoid of facts which suggest that a joint venture existed. A joint venture is an association of two or more persons to carry out a single enterprise for profit. (Prassas v. Nicholas W. Prassas & Co. (1981), 94 Ill. App. 3d 311, 418 N.E.2d 904.) There must be a community of interest in the performance of the common purpose, a proprietary interest in the subject matter, a right to direct and govern the policy, and a right to joint control. (Petry v. Chicago Title & Trust Co. (1977), 51 Ill. App. 3d 1053, 367 N.E.2d 385.) A fiduciary relationship exists between members of a joint venture. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380.) The record is deplete of facts indicating Cohen directed and governed the policy or operation of the flea market or intended such or that any fiduciary relationship existed between Cohen and plaintiff.

Plaintiff’s charge of unfair competition is likewise not supported in the record. The tort of unfair competition depends upon the likelihood of confusion as to the source of plaintiff’s and defendant’s goods. (National Football League Properties, Inc. v. Consumer Enterprises, Inc. (1975), 26 Ill. App. 3d 814, 327 N.E.2d 242, cert. denied (1975), 423 U.S. 1018, 46 L. Ed. 2d 390, 96 S. Ct. 454.) Plaintiff attempts to impute the alleged misconduct of M & R to Cohen in stating that M & R, after securing its customers’ list and soliciting them, advertised that the flea market would re-open in 1978, without disclosing that M & R would now be managing the flea market. However, Cohen denied any type of involvement in the flea market operation either with plaintiff or M & R and plaintiff’s documents do not support a different conclusion. We have already concluded that no joint venture existed, and absent such facts, M & R alleged activities cannot be imputed to Cohen, and thus there is no basis for this charge against Cohen.

Since plaintiff’s charge of conspiracy against Cohen has no basis in the record, count 4 against M & R was properly dismissed on the court’s own motion. ABC Trans National Transport, Inc. v. Aeronautics Forwarders, Inc. (1980), 90 Ill. App. 3d 817, 413 N.E.2d 1299.

Accordingly, we affirm the order of the trial court granting summary judgment on all counts as to the Cohen defendants and on count 4 as to M&R.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE WILSON

delivered the opinion of the court:

Upon denial of petition for rehearing, Swap Shop, Inc., in its petition for rehearing, has contended that failure of M & R, appellee, to file a brief or appearance justifies pro forma reversal. We disagree. It is well-established that reversal is not automatic in the event appellee fails to file a brief. A considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493; Roqueplot v. Roqueplot (1980), 88 Ill. App. 3d 59, 410 N.E.2d 441.

Swap Shop, Inc. further contends that there has been a misapprehension of pleadings and facts in the record in affirming the trial court’s dismissal of count IV of the amended complaint as to those several defendants collectively referred to as M & R. They assert that we failed tó address the issue that an unlawful combination among the M&R defendants existed, independently of the so-called Cohen defendants. However, plaintiff did not properly preserve this issue for review, either at the trial level or on appeal. Thus, Swap Shop, Inc., has waived consideration of the merits of this argument. Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032; Walker v. Board of Police & Fire Commissioners (1979), 77 Ill. App. 3d 958, 397 N.E.2d 2.

Petition for rehearing is denied.

SULLIVAN, P. J., and LORENZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY A. GREENE, Defendant-Appellant.
    First District (3rd Division)
    No. 79-1011
    Opinion filed November 18, 1981.
    Modified on denial of rehearing December 30, 1981.

      Ralph Ruebner and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, and Leslie J. Rosen, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and Gael McCaughey-O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial the defendant, Larry A. Greene, was convicted of two counts of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a)) and sentenced to a term of 12 years. The defendant was found not guilty of deviate sexual assault. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3.) On appeal, the defendant contends (1) that the jury was improperly instructed; (2) that the trial court erred in failing to dismiss the venire; and (3) that the trial court imposed an excessive sentence in order to punish him for exercising his right to trial.

On January 25, 1978 at 9:30 p.m., the complainant, age 14, was standing on the corner of 43rd and Drexel Streets in Chicago. She was waiting for the traffic light to change so that she could continue her walk to Hyde Park to visit a friend. The complainant was wearing a suit coat, a pair of pants and a skull cap.

The complainant testified that while she was standing at the corner, the defendant bumped her left shoulder and placed something hard to her right side. The defendant pulled the complainant’s cap over her eyes and grabbed her wrists with his left hand. While he continued to hold the hard object against her side, the defendant told the complainant to start walking and “to be a nice little girl and won’t nothing happen.” After a brief walk the defendant opened a car door, got into the car, and pulled the complainant into the front seat. The defendant drove the car while holding the complainant’s shoulder as she lay crying on the front seat. After four or five minutes, the defendant stopped the car. The defendant removed one leg of the complainant’s pants and her panties and put his mouth to her vagina. He subsequently put his finger into her vagina. While the complainant cried, the defendant pulled up her blouse and her bra and put his mouth to her breast. At this point the complainant heard someone slam a car door. She pulled off her cap and saw two policemen.

Officer Daniel Iosello of the Chicago Police Department testified that on January 25,1978, he and his partner went to the vicinity of 4514 S. Drexel following a conversation with a citizen. Officer Iosello observed an automobile parked in a vacant lot with the motor running. He looked into the automobile and observed the defendant fondling the complainant. Iosello opened the door and announced that he was a police officer. He noticed that the complainant’s cap covered her eyes and that she was crying. Officer Iosello searched the defendant and found an open pocket knife in his right coat pocket.

The defendant did not present any evidence at trial.

The defendant first argues that the trial court should have instructed the jury concerning an affirmative defense to the offense of indecent liberties with a child.

The Criminal Code of 1961 provides that “[a]ny person of the age of 17 years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of 16:

(1) Any act of sexual intercourse; or

(2) Any act of deviate sexual conduct; or

(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.” (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(a).)

An affirmative defense to the crime is that the accused reasonably believed that the child was of the age of 16 or upwards at the time of the act. Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(c).

An affirmative defense is raised when the defendant presents “some evidence thereon.” (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2.) The defendant is entitled to an instruction on the affirmative defense even if the evidence he presents is very slight. People v. Brown (1971), 132 Ill. App. 2d 875, 271 N.E.2d 395.

According to the defendant, the complainant’s testimony that she was alone on the street at 9:30 p.m. dressed in a suit coat, pair of pants and a skull cap constituted the evidence necessary to require the issuance of an instruction on the affirmative defense. We disagree. Such testimony in no way can be construed as evidence that the defendant reasonably believed that the complainant was 16 years of age or older.

The defendant also argues that during cross-examination the complainant was asked whether she had told the defendant that she was 17 years of age. Such a question does not constitute evidence concerning the defendant’s reasonable belief since an affirmative defense is not properly developed on cross-examination. People v. Hernandez (1980), 88 Ill. App. 3d 698, 412 N.E.2d 572; People v. Marchese (1975), 32 Ill. App. 3d 872, 336 N.E.2d 795.

The defendant’s reliance on People v. Plewka (1975), 27 Ill. App. 3d 553, 327 N.E.2d 457, is misplaced. In Plewka one defendant testified that he thought the complainant was 16 or 17. The second defendant testified that he would not have attempted intercourse with the 15-year-old complainant if he had known her age. This court held that this evidence barely met the statutory requirement that “some evidence” must be presented in order to raise an affirmative defense. In the instant case the defendant presented no evidence of a reasonable belief since he neither testified nor presented any evidence on his behalf. Thus, the trial court did not err when it refused to instruct the jury concerning the affirmative defense.

The defendant next contends that the trial court erred by failing to dismiss the venire when the jury saw him in handcuffs, unshaved, and dressed in prison clothes.

On October 16, 1978, the selection of the jury was in process when the sheriff brought the handcuffed defendant to the trial court’s chambers. The defendant was escorted past the open door of the courtroom. Defendant’s handcuffs were removed before he entered the courtroom.

Defendant’s attorney asked the court to dismiss the venire because the jurors saw the defendant “not dressed” and unshaved. The attorney explained the defendant had not shaved because “his tools had been stolen” at the county jail. The trial court denied this request, and the selection of the jury continued.

The defendant argues that it was reversible error to allow the jury to view him in handcuffs. However, when members of the jury view a defendant in shackles for a short period of time, such a brief viewing is not reversible error absent an affirmative showing of prejudice. People v. Jones (1980), 88 Ill. App. 3d 629, 410 N.E.2d 1122; People v. Walsh (1980), 80 Ill. App. 3d 754, 400 N.E.2d 587; People v. Foster (1980), 80 Ill. App. 3d 990, 400 N.E.2d 462.

In the instant case any viewing of the defendant in handcuffs by a juror was brief and inadvertent. In fact, the record does not reveal if any of the jurors actually saw the defendant as he passed the door of the courtroom. Furthermore, the defendant has not shown any prejudice resulting from the alleged brief viewing.

The defendant also argues that members of the venire saw him dressed in prison clothes and unshaved when he entered the courtroom. Although the State cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes is sufficient to negate the presence of compulsion necessary to establish a constitutional violation. Estelle v. Williams (1976), 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691. See also People v. Hyche (1979), 77 Ill. 2d 229, 396 N.E.2d 6.

The record does not reveal any evidence that the defendant objected , to entering the courtroom. There is no transcript in the record of any proceedings which may have occurred in the judge’s chambers prior to the defendant’s appearance in the courtroom. Thus, the trial court properly denied defendant’s motion to dismiss the venire.

Finally, the defendant argues that the trial court imposed an excessive sentence in order to punish him for exercising his right to trial. The defendant states that at the pretrial hearing, the trial court indicated that it would impose a sentence of eight years if the defendant pled guilty. He points out that despite the fact that he was acquitted of deviate sexual assault, the trial court imposed a sentence of 12 years.

An enhanced sentence may not be imposed merely because a defendant has exercised his constitutional right to trial. (People v. Moriarty (1962), 25 Ill. 2d 565, 185 N.E.2d 688.) However, when it is claimed that a heavier sentence has been imposed as a punishment for exercising this right, there must be an affirmative showing in the record that the greater sentence was imposed as a punishment. (People v. Davis (1981), 93 Ill. App. 3d 187, 416 N.E.2d 1179.) The mere fact that the defendant was given a greater sentence than the sentence discussed at a pretrial hearing does not support an inference that the greater sentence was imposed as a punishment for demanding a trial. People v. Busch (1973), 15 Ill. App. 3d 905, 305 N.E.2d 372.

Contrary to the defendant’s assertion, the record reveals no evidence which would show that his sentence was a punishment for exercising his right to trial. In People v. Young (1974), 20 Ill. App. 3d 891, 893, 314N.E.2d 280, upon which the defendant relies, the trial court commented that:

“You shot the dice and they just came up craps. I have no inclination to give you the same thing had you chose to throw yourself on the mercy of the Court. I will add one year 6 6

On appeal this court stated that this statement left no doubt that the sentence was increased because the defendant went to trial. Young, therefore, is clearly distinguishable.

The defendant also contends that certain comments of the trial court indicate that the court misinterpreted a statement made by the defendant at his sentencing hearing as evidence of a lack of a penitent attitude. We cannot say that the trial court’s conclusion was erroneous. It appears that the trial court was commenting on the fact that the defendant failed to express any sorrow for his actions or concern for the complainant. Furthermore, the trial court was in a better position than this court to judge the sincerity of the defendant’s remarks.

The defendant also argues for the first time in his reply brief that at the sentencing hearing the State incorrectly stated that the defendant had four prior convictions. The defendant points out that one of his convictions was reversed and remanded for a new trial by this court. (People v. Greene (1975), 31 Ill. App. 3d 147, 333 N.E.2d 661.) On remand, the defendant was again found guilty. Thus, defendant’s record consisted of three prior convictions, not four.

Although we agree that the prosecutor’s statement concerning the defendant’s record was incorrect, we note that the presentence report accurately reflected the fact of the reversal on appeal and the subsequent retrial and conviction. Furthermore, the defendant made no attempt to correct the prosecutor’s misstatement at the sentencing hearing. Thus, any claim of error in this regard was waived. See People v. Boyce (1977), 51 Ill. App. 3d 549, 366 N.E.2d 914.

Absent an abuse of discretion, this court has no authority to alter the sentence imposed by the trial court. We find no such abuse in the instant case.

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

Affirmed.

RIZZI, P. J., and WHITE, J., concur.