author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE JACKSON, Defendant-Appellant.
    Second District
    No. 83—598
    Opinion filed February 29, 1984.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Wayne Jackson, was charged by information with two counts of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1(a)), two counts of deviate sexual assault (Ill. Rev. Stat. 1981, ch. 38, par. 11— 3(a)), and one count of unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3(a)). He pleaded guilty to one count of rape and the remaining offenses were nolle pressed. The defendant’s motion to withdraw his plea of guilty and vacate the judgment prior to sentencing was denied. Following the sentencing hearing, the trial judge sentenced the defendant to an extended term of 40 years’ imprisonment. The defendant now appeals, contending that the trial court erred in imposing an extended sentence where the rape was not exceptionally brutal or heinous as required by section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)), and alternatively, that the sentence imposed was excessive and an abuse of the trial court’s sentencing discretion.

The facts are undisputed that on March 4, 1983, at approximately 2:30 a.m., the victim was leaving a friend’s apartment and was going to a nearby phone booth when she was approached by the defendant who asked her if he could accompany her. He walked her to the phone booth and waited nearby while she made her call. Shortly thereafter, the complainant left the booth and started walking home. The defendant followed a short distance away. He then grabbed her by the arm and forced her into a nearby parking lot. The defendant pulled down his pants and ordered complainant to perform fellatio. When she refused, he slapped her and then engaged in oral sex. The victim then screamed and the defendant slapped her and pulled her into a nearby alley and again forced her to perform fellatio. He then brought the victim a short distance away to an apartment building. On the front porch the defendant disrobed the victim and had sexual intercourse with her despite her protests that she had just begun her menstrual period. The defendant then took the victim around to the back of the building where he again had sexual intercourse and fellatio with her.

Upon holding the required sentencing hearing, the trial court sentenced defendant to a 40-year extended term of imprisonment.

Initially, we must first consider the issue raised by the State as to whether the defendant’s appeal should be dismissed. Citing People v. Bryant (1977), 45 Ill. App. 3d 428, the State argues that the defendant has waived his right to appeal by failing to present the trial court a motion under Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) to withdraw his guilty plea and vacate the judgment following the imposition of sentence. While a written motion to withdraw a guilty plea is a condition precedent to a defendant’s right to appeal, the failure to file the written motion waives any claim of error in the trial court proceedings (87 Ill. 2d R. 604(d)), a defendant will be excused where the trial court has failed to admonish the defendant that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion to withdraw his plea of guilty and vacate the judgment. (87 Ill. 2d R. 605(b).) After the sentence was imposed, the trial court advised the defendant of his right to appeal and informed him that he had 30 days within which to file a notice of appeal. The trial court noted that since the defendant had filed a notice to withdraw his guilty plea prior to sentencing, to require the defendant to file another motion to withdraw, in the trial court’s opinion, would be a “wasted act.” This left the impression that the defendant could appeal his sentence alone without his filing a motion to withdraw. The defendant here, unlike the defendant in Bryant, was not adequately admonished in accordance with Supreme Court Rule 605(b). Therefore, in light of the trial court’s failure to adequately advise the defendant of this requirement, the defendant did not waive his right to appeal his sentence because of his failure to file in the trial court a written motion to withdraw his guilty plea. Accordingly, this court will consider the merits of the defendant’s appeal. People v. Miller (1982), 107 Ill. App. 3d 1078, 1082; People v. Martin (1978), 58 Ill. App. 3d 915, 917.

The defendant argues that the extended-term sentence he received was excessive and improper in that his behavior was neither sufficiently brutal nor heinous to warrant a 40-year extended-term sentence. Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)) provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” The defendant points out that no such behavior exists in the present case as the victim sustained no serious physical injury and that the defendant did not use a weapon in the attack or threaten the victim’s life. He asks this court to reduce his sentence under the authority of Supreme Court Rule 615(b)(4) (87 Ill. 2d R. 615(b)(4)).

The determination and imposition of a sentence is within the sound discretion of the trial court and hence a reviewing court must give great deference to the trial court’s determination and will not modify or vacate a sentence on appeal absent an abuse of discretion. People v. Willingham (1982), 89 Ill. 2d 352, 364; People v. Perruquet (1977), 68 Ill. 2d 149, 154.

In the present case, the sentence imposed was proper and reasonable. The facts here are similar to those presented in People v. Turner (1981), 93 Ill. App. 3d 61. In Turner, the court affirmed the defendant’s extended sentence of 45 years for rape and deviate sexual assault in which the defendant struck the victim five times, threatened her repeatedly with death, and forced her into three acts of sexual intercourse, two acts of fellatio, and one act of sodomy. The court found that even in the absence of the victim’s physical injuries, defendant’s behavior went “beyond what is necessary to show ‘exceptionally brutal and heinous behavior indicative of wanton cruelty.’ ” 93 111. App. 3d 61, 69.

In this case, the victim was slapped and punched and subjected to repeated acts of sexual abuse by the defendant. It can be reasonably said that the actions of the defendant, who was 5 feet 11 inches tall and weighed 200 pounds, terrorized and endangered the victim, who was 5 feet 6 inches tall and weighed 105 pounds, despite the absence of a weapon or any express threats on the victim’s life. The presentence report indicates that the victim suffered serious emotional trauma as well as some minor physical injuries. As the subjective pain of mental injury often exceeds that of physical injury, and the tangible scars may be as lasting (People v. Viens (1982), 109 Ill. App. 3d 1017, 1028-29; People v. Clark (1981), 102 Ill. App. 3d 414, 425), mental suffering may be considered in deciding whether to impose an extended sentence. (People v. Viens (1982), 109 Ill. App. 3d 1017, 1028.) In addition, the testimony at the sentencing hearing indicated that the defendant had attempted to conceal allegedly incriminating evidence upon his arrest by consuming blood-stained portions of his underwear, and that he had falsely stated that he had no prior criminal convictions when, in fact, he had been sentenced in 1977 to four to eight years for indecent liberties with a child. In imposing sentence, the trial court first considered in aggravation the defendant's prior criminal background and the serious harm defendant had caused to the victim. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2.) The court then determined that an extended sentence was warranted based on its consideration of the heinous and brutal nature of the offense, defendant’s prior criminal background and the need to deter future criminal conduct. While the defendant’s prior 1977 conviction is not a felony “of the same or greater class” as the offense of rape and, therefore, should not be considered as an appropriate basis for the imposition of an extended sentence (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1)), the trial court’s finding that the offense was accompanied by exceptionally brutal and heinous behavior is sufficient for the imposition of an extended-term sentence. (People v. Lucien (1982), 109 Ill. App. 3d 412, 420.) Thus, we need not reach the issue raised by the defendant as to whether the trial court improperly imposed an extended sentence on the basis of the defendant’s prior felony conviction.

The distinctions the defendant draws between the cases he cites which held the defendant’s actions to be exceptionally brutal or heinous and the actions of the defendant here are distinctions without merit. While the victim in People v. Gray (1979), 80 Ill. App. 3d 213, was raped, robbed, and stabbed 33 times, the fact the victim here sustained only minor physical injuries, as already noted, is not determinative. (People v. Viens (1982), 109 Ill. App. 3d 1017, 1028-29; People v. Turner (1981), 93 Ill. App. 3d 61, 69.) Further, the fact that the defendant in the present case never ejaculated and forced the victim to swallow his semen as in People v. Clark (1981), 102 Ill. App. 3d 414, is a difference in kind rather than degree.

Finally, the defendant contends that the imposition of the extended sentence was improper because the sentencing judge failed to consider in mitigation the absence of any serious physical injury to the victim, the defendant’s remorse over the incident, and the defendant’s lack of an extensive prior criminal record. The instant record supports the trial court’s finding with respect to the character of the instant crime. The trial court noted that while it considered defendant’s entry of a guilty plea and his present remorsefulness, after considering the evidence presented, the circumstances in this case warranted an extended sentence. (See People v. Baker (1983), 114 Ill. App. 3d 803, 811-12.) In conclusion, the trial court properly considered the factors authorizing an extended term and did not abuse its discretion in imposing sentence.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    BEATRICE FOODS COMPANY, Plaintiff-Appellant, v. ILLINOIS INSURANCE GUARANTY FUND, Defendant-Appellee.
    First District (3rd Division)
    No. 83—784
    Opinion filed February 29, 1984.
    Jack F. Clifford and Associates, Ltd., of Chicago (Jack F. Clifford and John W. Clifford, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Richard E. Mueller, Hugh C. Griffin, Don W. Fowler, and Barbara A. McDonald, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Beatrice Foods Company, appeals from an order of the trial court granting summary judgment in favor of defendant, Illinois Insurance Guaranty Fund, and denying plaintiff leave to file an amended complaint. The issues raised on appeal are whether plaintiff has a “covered claim” under the Illinois insurance guaranty fund act (Ill. Rev. Stat. 1979, ch. 73, par. 1065.82 et seq.), and whether the trial court erred in denying plaintiffs oral motion for leave to file an amended complaint.

On December 5, 1972, Eugene Allgood was killed in an automobile collision with a vehicle owned and operated by Peter Eckrich and Sons, Inc. (hereinafter Eckrich). A judgment was subsequently entered finding Eckrich liable for the wrongful death of Eugene Allgood and awarding damages of $300,000 to the personal representative of the estate of Eugene Allgood. Eckrich is a wholly owned subsidiary of plaintiff and a resident of Indiana. Plaintiff is a resident of Illinois.

At the time of the accident, plaintiff was the owner of an excess general and automobile insurance policy issued by Reserve Insurance Company (hereinafter Reserve). The policy covered plaintiff and its owned, controlled, subsidiary and affiliated companies, corporations or partnerships. As a wholly owned subsidiary of plaintiff, Eckrich was an insured under the Reserve policy.

It is undisputed that the Reserve policy covered Eckrich’s liability to the estate of Eugene Allgood. Reserve, however, has not paid any monies toward satisfaction of the judgment against Eckrich and is now insolvent.

Plaintiff paid $194,669.17 to the estate of Eugene Allgood to satisfy the judgment entered against Eckrich. Plaintiff then filed a claim with defendant to recover part of the payment made to the Allgoods. Defendant refused to pay plaintiffs claim. Plaintiff thereafter instituted this action.

Plaintiff contends that its claim is a “covered claim” under the Illinois insurance guaranty fund act and consequently that defendant is obligated to pay the claim. The Illinois insurance guaranty fund act defines a covered claim as:

“an unpaid claim *** for a loss arising out of and within the coverage of an insurance policy to which this Article applies and which is in force at the time of the occurrence giving rise to the unpaid claim, made by a person insured under such policy or by a person suffering injury or damage for which a person insured under such policy is legally liable, and for unearned premium, if, (a) The company issuing the policy becomes an insolvent company *** and, (b) The claimant or insured is a resident of this State at the time of the insured occurrence ***.”

(Emphasis added.) (Ill. Rev. Stat. 1979, ch. 73, par. 1065.84 — 3.) We do not believe that plaintiff suffered a “loss arising out of and within the coverage” of the Reserve policy. Plaintiff, therefore, is not entitled to recover from defendant monies paid in satisfaction of the judgment against Eckrich.

The Reserve policy was an “Excess General Automobile Insurance Policy” providing plaintiff coverage against liability to third parties. The policy also covered plaintiff’s subsidiaries against liability to third parties. It is undisputed that the Allgoods’ judgment was within the coverage of the Reserve policy. However, the only party found liable for the wrongful death of Eugene Allgood was Eckrich. Indeed, plaintiff was not a party in the wrongful death action. It then follows that plaintiff, not being liable to a third party, could not suffer a “loss arising out of and within the coverage” of the Reserve policy.

Plaintiff argues that it suffered a loss because it was obligated to satisfy the judgment against its subsidiary, Eckrich. A corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected. (Walker v. Dominick’s Finer Foods, Inc. (1980), 92 Ill. App. 3d 645, 649, 415 N.E.2d 1213; see also Superior Coal Co. v. Department of Finance (1941), 377 Ill. 282; McDermott v. A.B.C. Oil Burner Sales Corp. (1932), 266 Ill. App. 115.) The shareholders of a corporation, including other corporations, will not ordinarily be held liable for the debt and obligations of the corporation. (McDermott v. A.B.C. Oil Burner Sales Corp. (1932), 266 Ill. App. 115.) Accordingly, plaintiff was not legally liable for the judgment entered against Eckrich. Plaintiff acted as a volunteer in satisfying the judgment against Eckrich. Any loss that plaintiff suffered resulted from plaintiff’s actions and not from the entry of judgment against Eckrich.

Plaintiff then argues that Eckrich suffered a “loss arising out of and within the coverage” of the Reserve policy; that plaintiff is an insured under the Reserve policy; and that the Illinois insurance guaranty fund act does not require the person making the claim to be the person suffering the loss. We note first that Eckrich was an insured under the Reserve policy. As such, Eckrich could have brought a claim against defendant for the loss it suffered. Eckrich did not do so, however, because Eckrich could not meet the residency requirement of the Illinois insurance guaranty fund act. Plaintiff now asks to recover payments it made to satisfy the judgment against Eckrich. To allow such a recovery would be to allow plaintiff to circumvent the residency requirement of the Illinois insurance guaranty fund act. We could not allow a claim brought by plaintiff on behalf of Eckrich. Nor can we allow plaintiff to voluntarily satisfy a judgment against Eckrich, and thereafter bring a claim to recover the payment made. We are of the opinion that the insured making a claim under the Illinois insurance guaranty fund act must be the person who suffered a “loss arising out of and within the coverage” of the insurance policy. Plaintiff did not suffer a “loss arising out of and within the coverage” of the Reserve policy. Consequently, plaintiff cannot recover monies from defendant for the payment plaintiff made in satisfaction of the judgment against Eckrich.

We turn now to plaintiff’s contention that the trial court abused its discretion in denying plaintiff leave to file an amended complaint. We note that plaintiff had previously been granted leave to file an amended complaint. Plaintiff was thus requesting leave to file a second amended complaint. We also note that plaintiff did not submit a draft of the second amended complaint to the court. Nor did plaintiff reveal orally what changes it proposed to make in the complaint. Before a trial judge can be deemed to have abused his discretion in denying leave to amend, the record must disclose that reasons or facts were presented to the trial judge as a basis for requesting the favorable exercise of the judge’s discretion. The materiality of the amendment must either be apparent from the proceedings or apparent to the trial judge. (Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84; Stevenson v. Maston (1969), 107 Ill. App. 2d 65, 246 N.E.2d 38.) In the present case, no facts or reasons were presented to the trial judge as a basis for requesting leave to amend. Moreover, we are of the opinion that with the facts of this case no amendment of the complaint would state a “covered claim” under the Illinois insurance guaranty fund act. Consequently, we find that the trial court did not abuse its discretion in denying plaintiff leave to file a second amended complaint.

Since we find that plaintiff did not have a “covered claim” under the Illinois insurance guaranty fund act, we affirm the grant of summary judgment in favor of defendant.

Affirmed.

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

      The maximum recovery under the Illinois insurance guaranty fund act is $100,000.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD WOODS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2701
    Opinion filed February 28, 1984.

      James A. McCarron and M. Anne Anderson, both of Law Offices of James A. McCarron, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Frank G. Zelezinski, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, found guilty by a jury of one count each of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1), armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2), unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 3), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A— 2), and home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(1)), was sentenced to concurrent 60-year terms on each count.

On appeal defendant assigns error to: (1) the admission of evidence concerning another charge pending against him; (2) the insufficiency of the application for an order permitting one-party electronic eavesdropping; (3) the prosecutor’s remarks about reasonable doubt; (4) the impropriety of the sentence; and (5) the State’s use of peremptory challenges to exclude blacks from the jury.

At trial the complaining witness testified that on September 10, 1981, while lying face down on the bed in an upstairs bedroom, she heard a sound, turned and saw a man, identified as defendant, at the top of the stairs about 10 feet away. The room was brightly lit and she stared at defendant for about five to 10 seconds. She screamed, whereupon he jumped on the bed, covered her mouth with his hand and put a knife under her neck, repeatedly telling her, “You scream I’ll kill you.” He stuffed her mouth with something, tied her hands behind her back, and put a pillow over her head. He announced a robbery and walked around the room. He then pulled the blanket off of her and when she struggled he hit her with his fist on the cheek. He then had intercourse with her. The telephone began ringing and he got up and asked where the jewelry and money was.

After again walking around the house, defendant tied a pillowcase around the victim’s eyes, turned her over on her back, and had intercourse with her again, biting her breasts. She could see his reflection in the television set as he went in and out of the room. He tied her feet together, after which she heard him descend the steps and the front door unlock. She untied herself and immediately telephoned her mother-in-law and the police. Downstairs, she found that the screen had been removed from the living room window and was bent up and placed next to the couch, and also found $50 missing from her purse. During the attack she sustained a black eye, facial swelling and bruises. She was taken to a hospital by police. On January 5, 1982, she identified defendant in a lineup, viewing it twice to “make sure everything was right.” She had previously viewed other lineups but had not identified anyone.

Other witnesses who testified included Dr. James Fitko, emergency room physician. He examined the complaining witness on September 10, 1981, at 11 a.m. and observed abrasions on her right wrist and both breasts and a contusion to her right cheek. He took a vaginal smear. James Vantilburg, a Chicago police microanalyst who received the smear, detected the presence of spermatozoa. Richard Mc-Grath, Chicago police evidence technician, arrived at the complaining witness’ home at 11:30 a.m. on September 10, 1981, and saw that a screen had been removed from a downstairs window. He found, photographed and lifted fingerprints on the interior side molding of the windowframe and on the bent portion of the screen. Philip Montalbano, Chicago police latent fingerprint examiner, compared latent finger and palm prints found at the scene with inked impressions of defendant’s finger and palm prints, and concluded that the latent prints belonged to defendant.

Joseph Saladino, investigator employed by the Cook County State’s Attorney, on January 25, 1982, received an assignment “in relation to a solicitation to commit murder.” He was equipped with a hidden tape recorder and met with defendant in a conference room at the Cook County Jail. Defendant, who had been led to believe that Saladino was a “hit” man, told him he had a “problem” with a witness whom he wanted “wasted.” Defendant told him the first name of the witness, which was the same as that of the complainant, said that she lived on Larrabee, where the instant victim lived, and also provided her physical description. Defendant said that the witness, the victim of a robbery, could identify his voice. He wore a stocking mask during the robbery. A $3,000 fee was negotiated, to be handled by defendant’s “wife” or “old lady.” The actual tape subsequently published to the jury essentially corroborated Saladino’s testimony.

The State rested. Defendant called no witnesses on his behalf.

At the sentencing hearing the State presented the testimony of a man and woman who had been robbed and the woman raped at gunpoint by defendant on December 19, 1981. Also testifying was a woman whose apartment was broken into by defendant on August 29, 1981. Defendant robbed her and her boyfriend, and raped and committed a deviate sexual assault upon her. The State also presented evidence of defendant’s prior criminal record, which extended back to 1964. After defendant waived a hearing in mitigation, the circuit court sentenced him to an extended 60-year concurrent term on all counts.

I

Defendant contends that the admission into evidence of other criminal charges against him, through the testimony of Investigator Saladino and his tape-recorded conversation, was reversible error. This issue was not properly preserved for review since defendant failed to include it in his post-trial motion. (See People v. Foster (1979), 76 Ill. 2d 365, 380, 392 N.E.2d 6.) The plain-error doctrine, in view of the very strong evidence of defendant’s guilt, is inapplicable to the case at bar. (87 Ill. 2d R. 615(a); see People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233.) Assuming, arguendo, that the error had been preserved, this contention must nevertheless be rejected.

Evidence of other crimes committed or alleged to have been committed by defendant is admissible if relevant for a purpose other than to show defendant’s propensity to commit crime. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200; People v. Lane (1982), 106 Ill. App. 3d 793, 801, 436 N.E.2d 704.) Such purposes include showing defendant’s “guilty knowledge” or “consciousness of guilt” of the crime at issue. (People v. Baptist (1979), 76 Ill. 2d 19, 27; People v. Tranowski (1960), 20 Ill. 2d 11, 16, 169 N.E.2d 347, cert, denied (1962), 368 U.S. 978, 7 L. Ed. 2d 440, 82 S. Ct. 484.) An attempt by a defendant to intimidate a witness, though a separate offense, is properly admissible for this purpose (e.g., People v. Gambony (1948), 402 Ill. 74, 80, 83 N.E.2d 321, cert, denied (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1045; People v. Jones (1980), 82 Ill. App. 3d 386, 393, 402 N.E.2d 746; People v. Goodman (1977), 55 Ill. App. 3d 294, 296, 371 N.E.2d 168), as is evidence that a defendant attempted to kill an eyewitness (People v. Baptist). The trial court is afforded considerable latitude in deciding whether to admit evidence of other crimes. (People v. Burgin (1979), 74 Ill. App. 3d 58, 67, 392 N.E.2d 251.) Where a proper purpose for admitting such evidence exists, as here, it is admissible unless its minor probative value is outweighed by its major prejudicial effect. People v. Bartall (1982), 105 Ill. App. 3d 867, 872-73, 435 N.E.2d 152.

Defendant contends that his conversation with Saladino referred to a victim of another crime, not to the instant complaining witness. Therefore, the disputed evidence was not probative of his guilt here. Defendant, however, identified the prospective murder victim by using the instant victim’s first name; described her physical appearance; and said the crime “went down” in a home on Larrabee. The foregoing suggests that defendant was, in fact, discussing the present crime; therefore, Saladino’s testimony and the tape recording had considerable probative value in the instant case.

After the disputed evidence was admitted, the circuit court cautioned the jury to consider it only for the limited purpose of finding therein defendant’s admissions of guilt or his consciousness of guilt of the instant offense. Later, the court repeated the warning by giving Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2d ed. 1981). This procedure substantially reduced any potentially prejudicial impact of such evidence. (People v. Sanders (1981), 103 Ill. App. 3d 700, 708, 431 N.E.2d 1145.) The court did not err by admitting this evidence.

II

Defendant next argues that the admission of evidence obtained by the improperly granted electronic eavesdropping was reversible error because the application for the eavesdropping order, based upon the hearsay of an unreliable declarant, was insufficient to support the order that was entered.

Eavesdropping with one party’s consent does not violate the fourth amendment to the United States Constitution. (United States v. White (1971), 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122; People v. Swimley (1978), 57 Ill. App. 3d 116, 124, 372 N.E.2d 887, cert, denied (1978), 439 U.S. 911, 58 L. Ed. 2d 257, 99 S. Ct. 281.) Consequently, any restrictions placed on such one-party eavesdropping are statutory and not constitutional. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 190, 407 N.E.2d 1002.) The statutes governing such eavesdropping are contained in article 108A of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 108A — 1 et seq.). Defendant insists that the requirements of section 108A — 4, which regulates the grounds upon which courts may authorize one-party eavesdropping, were not met in the instant case. In relevant part, section 108A — 4 permits approval of eavesdropping where “there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a felony under Illinois law.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(b).) “Reasonable cause” is present when “the totality of facts and circumstances existing at the time are sufficient to warrant the belief by a man of reasonable caution that an offense has been, is being, or will be committed.” (People v. Sylvester (1980), 86 Ill. App. 3d 186, 194-95; see also People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356.) In determining the existence of reasonable cause, unlike the situations involving search warrants, courts are not “unduly technical.” (People v. Sylvester (1980), 86 Ill. App. 3d 186, 196; see also People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280.) An affidavit supporting an application for an eavesdropping order “need not prove beyond a reasonable doubt that a crime has been committed nor even establish a prima facie case.” People v. O’Dell (1980), 84 Ill. App. 3d 359, 368, 405 N.E.2d 809.

In the case sub judice, the application for the eavesdropping order was made under oath by F.B.I. agent Daniel Dzwilewski, who stated that informant Harold Flynn was known to him because he had provided the agent in the past with accurate information concerning various crimes. The application stated that Flynn, incarcerated at Cook County Jail, contacted the agent and revealed that defendant asked whether Flynn knew of anyone “on the outside” who could kill a particular witness, and that payment could be made through defendant’s girlfriend. Flynn said he would check with an “ex-partner” about the job, whereupon he telephoned the agent. Flynn spoke to defendant again, telling him to get the name of the witness and arranging the interview with Investigator Saladino, who was to pose as “Joe D.,” Flynn’s ex-partner.

An application for an eavesdropping order based upon hearsay, as here, is permitted provided there is a basis for crediting the hearsay. (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L. Ed. 2d 684, 688, 85 S. Ct. 741, 745; People v. Sylvester (1980), 86 Ill. App. 3d 186, 195.) Sufficient basis for crediting the hearsay existed here because of the detailed nature of the declaration, notwithstanding the fact that Flynn was himself in jail and may have had a motive to lie. The agent’s sworn statement that he had received accurate information from Flynn in the past further enhances the declaration’s credibility. (Cf. People v. Wassell (1983), 119 Ill. App. 3d 15, 455 N.E.2d 1100.) There was therefore no error in permitting the one-party eavesdropping.

III

Defendant maintains the prosecutor improperly led the jury to conclude that reasonable doubt was merely pro forma in her closing rebuttal argument by stating, in effect, that the burden of proof, beyond a reasonable doubt, is present every single day in this country, hundreds of times, in murder cases, thefts, robberies and rapes; it is met every single day, as it was in this case. These and similar remarks may have the effect of lessening the importance of the State’s burden of proof (see People v. Scaggs (1982), 111 Ill. App. 3d 633, 444 N.E.2d 674; People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86). Defendant failed to object when these remarks were made, however, and his motion for a new trial did not specifically cite these remarks or explain why they amounted to error. More importantly, in view of the overwhelming evidence of defendant’s guilt, the remarks at issue were harmless and were not a material factor in defendant’s conviction nor did they result in substantial prejudice to defendant’s right to a fair trial. People v. Hamilton (1980), 80 Ill. App. 3d 794, 805, 400 N.E.2d 599.

IV

Defendant contends that the 60-year sentence imposed upon him for the Class X felony of which he was convicted was improper and excessive. Section 5 — 8—2(a)(2) of the Unified Code of Corrections (Code) provides that Class X felony sentences can be extended from 30 to 60 years, when one of the factors in aggravation set forth in section 5 — 5—3.2(b) of the Code is present. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 5—3.2(b), 1005 — 8—2(a)(2).) One such factor is whether defendant was convicted of the same or greater class felony within the past 10 years, excluding time spent in custody. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) Defendant here had been convicted of armed robbery, presently a Class X felony, in May 1974, and was paroled in June 1981, which alone supports defendant’s extended-term sentence. People v. McFarland (1981), 93 Ill. App. 3d 136, 144, 416 N.E.2d 769.

Another factor to be considered is whether the felony for which defendant is being sentenced “was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2).) The circuit court expressly found defendant’s actions to comprise such behavior. Defendant broke into the victim’s home, tied and gagged her, repeatedly threatened to kill her with a knife, raped her twice, punched her in the face, bit her breasts, and finally robbed her before leaving the scene. Further, he sought later to have the victim murdered. The circuit court, in the best position to observe the witnesses and evaluate this evidence (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882), did not abuse its discretion in imposing the extended sentence (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344).

V

Defendant’s final assignment of error is that the State, through the use of its peremptory challenges, systematically excluded blacks from the jury. This contention was considered and rejected in People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, which found no constitutional violation so long as there is no showing of such exclusion in case after case and the jury pool from which the jury was selected represented a fair cross-section of the community. See also People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    HAWKEYE SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. SANTOS SANCHEZ et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—806
    Opinion filed February 24, 1984.

      Schey, Goffen and Associates, P.C., of Chicago (Howard T. Goffen, of counsel), for appellant.
    David M. Zerante, of McCormick & Zerante, of Homewood, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Hawkeye Security Insurance Company, appeals from the judgment of the trial court, entered in favor of defendants after a bench trial in this declaratory judgment action, that defendant Debbie Salinas was an "insured” under a policy of insurance issued by plaintiff to Santos and Guadalupe Sanchez. The trial court found that Debbie Salinas was both a “relative” of one of the named insureds and a “resident of the Named Insured’s household” within the meaning of the insurance contract, and accordingly held that she was an “insured” as defined by the policy. Plaintiff raises three issues for review. First, plaintiff contends that the terms “relatives” and “residents of the Named Insured’s household” as used in the policy are unambiguous and therefore not to be construed against plaintiff. Second, plaintiff asserts that Debbie Salinas was never legally married in Illinois and has never fulfilled the requirements for a common law marriage elsewhere and therefore is not a “relative” of either of the named insureds. Third, plaintiff argues that Debbie Salinas was not a “resident of the Named Insured’s household” at the relevant time. For the reasons which follow, we reverse the order of the trial court.

The insurance contract at issue provided coverage for certain events and defined “insured” as including “if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured ***.” Guadalupe Sanchez testified that she and her husband, the named insureds, had contracted to purchase a house in Crete, Illinois, in late September of 1975. At that time they were living with their two children in Chicago Heights, Illinois. Noe Salinas, who is Mrs. Sanchez’ brother, and Debbie Salinas were living with another brother of Mrs. Sanchez in Steger, Illinois. Prior to September 30, 1975, Mrs. Sanchez and Debbie had discussed the possibility of Debbie, Noe and Tony, their child, moving into the Crete house while it was being remodeled. Mrs. Sanchez testified that Debbie agreed that her family would pay rent and their own utilities and would move out when the remodeling was finished so that Mrs. Sanchez’ family could move into the house. Mrs. Sanchez stated that Debbie and Noe moved into the house a day or two after the closing on September 26, 1975. She later corrected this statement to say that Debbie and Noe were on the property but were only cleaning the house and pulling weeds and did not actually move in until about a week later. At this time, Mrs. Sanchez and her family were still living in Chicago Heights and Noe and Debbie were still living in Steger.

Mrs. Sanchez indicated that on September 30, 1975, a neighbor girl was allegedly bitten by a dog belonging to Debbie and Noe. This incident is the basis of the potential liability giving rise to the instant declaratory judgment action. After the alleged dog bite, Mrs. Sanchez and her family decided not to move into the house in Crete.

Debbie Salinas testified that at one time she and Noe lived at the same address as the Sanchez family but in separate apartments. On September 30, 1975, she and Noe were at the Crete house cleaning the house and yard. None of the utilities was in service at the time. She stated that they moved in about a week or 10 days later, although they did move boxes of dishes and other things in on that date. She stated that on September 30, 1975, she was still living in Steger. She confirmed Mrs. Sanchez’ testimony about living in the Crete house during the remodeling. She testified that after the remodeling was completed, she believed that both families would live together in the Crete residence. She was impeached on this point with a prior statement in which she had indicated that she planned to move out of the Crete residence into her own place with Noe and Tony and that the Sanchez family would move into the Crete house.

Noe Salinas testified that on the day of the alleged dog bite he was cleaning the yard at the Crete house. He moved in about a week later. He did not remember whether the two families had intended to live together after the remodeling.

The trial testimony disclosed that Noe and Debbie have lived together for the past 10 years. Except for two brief stays in Texas, Debbie has always lived in Illinois. In 1971 a son, Tony, was born to the couple while Debbie was in Texas during a four-month stay. At this time Noe visited her in Texas for a few days and then returned to Illinois. Debbie testified that she does not usually introduce Noe as her husband, although she probably has done so at some time. Noe testified that he does not like to refer to Debbie as his wife because they are not “legally married.” He stated that “I call her my ‘old lady.’ If we were married I’d call her my wife.” Mrs. Sanchez testified that Noe and Debbie have held themselves out as husband and wife and that she refers to Debbie as her sister-in-law.

On July 28, 1982, the trial court found that “Debbie Salinas is an insured within the terms and conditions of [the insurance policy] and therefore is entitled to coverage from said policy ***.”

Opinion

The contract of insurance at issue in this case defines an “insured” as “if residents of the Named Insured’s household, his spouse, the relatives of either ***.” This language imposes two separate requirements, both of which must be satisfied to create coverage: first, the putative insured must be a resident of the Sanchez household and second, must be a relative of one of the named insureds.

In reviewing the trial court’s determination that Debbie Salinas was a resident of the Sanchez household, we are guided by several general principles. As this court recently noted, questions of the applicable coverage of an insurance policy can be determined only as of the time of the accident creating the potential liability. (Sypien v. State Farm Mutual Automobile Insurance Co. (1982), 111 Ill. App. 3d 19, 21, 443 N.E.2d 706.) Thus, the question becomes whether Debbie Salinas was a “resident of the Named Insured’s household” on September 30, 1975.

“In construing the phrase ‘resident of his household,’ we first noted that the term ‘resident’ has no fixed or exact meaning in the law but varies with the context and subject matter. In reviewing the numerous decisions in Illinois which have construed the term ‘resident,’ we found that the term is generally understood to include intent and permanency of abode in addition to mere physical presence.” (MFA Mutual Insurance Co. v. Harden (1975), 26 Ill. App. 3d 360, 363-64, 325 N.E.2d 102.)

Because the phrase “resident of [his] household” has no precise meaning we will construe it most strongly against the insurer and liberally in favor of the insured. (Bell v. Continental Assurance Co. (1970), 123 Ill. App. 2d 274, 278, 260 N.E.2d 114; see also Annot., 93 A.L.R.3d 420, 427 (1979).) Nonetheless, the phrase is not without meaning. One factor which has been held to characterize a resident of an insured’s household is a common dwelling with the insured. (Neidhoefer v. Automobile Insurance Co. (7th Cir. 1950), 182 F.2d 269, 272 (collecting cases).) “ ‘The word “household” is variously used to designate people, generally, who live together in the same house **. [It means] “those who dwell under the same roof and compose a family; a domestic establishment.” ’ ” (182 F.2d 269, 272.) Thus, giving the facts a most liberal interpretation, we might conclude that Debbie Salinas was a resident of the Sanchez house at the time of the alleged incident; however, there is no evidence indicating she ever shared living quarters with the Sanchez family. She cannot, therefore, qualify as a member of the Sanchez household, and it follows that even were we to assume for the purposes of decision that she was a “relative” of Mrs. Sanchez, she is not an “insured” under the policy in question. The decision of the trial court is therefore in error.

Because of our disposition of this issue, we need not discuss the other points of error raised by plaintiff. For the reasons stated, the order of the trial court entering judgment in favor of defendants is reversed.

Reversed.

SULLIVAN and WILSON, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THERESA KIEVMAN, Plaintiff-Appellant, v. EDWARD HOSPITAL et al., Defendant-Appellees.
    Second District
    No. 83—283
    Opinion filed February 29, 1984.

      Michael J. Radtke, of Goldberg & Goldberg, and Carl Nusbaum and John B. Schwartz, both of Mitgang, Levine & Schwartz, both of Chicago, for appellant.
    Kathleen C. West and Craig J. Cobine, both of Hennessy, Dommermuth, Brestal, Cobine, Roth & West, of Naperville, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiff, Theresa Kievman, filed a complaint for medical malpractice against defendants, Edward Hospital and Dr. Manouchehr Foroutan, for alleged injuries rising out of defendants’ treatment of plaintiff when she underwent foot surgery. Defendant, Edward Hospital District (Hospital), a municipal corporation which operated Edward Hospital, moved to dismiss the complaint against it, alleging, inter alia, that it was a local public entity and that plaintiff failed to give the Hospital notice of the injury as required by statute (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102). In an order entered on February 28, 1983, the trial court granted the Hospital’s motion to dismiss with prejudice. Dr. Foroutan filed a separate motion to dismiss plaintiff’s complaint on the grounds that the statute of limitations had run. The trial court granted Dr. Foroutan’s motion but permitted plaintiff leave to file an amended complaint against Dr. Foroutan.

Plaintiff subsequently sought leave to file an amended complaint, naming both Dr. Foroutan and the Hospital as defendants. The Hospital objected on the grounds that the complaint against it had been previously dismissed, and that the amended complaint contained no new allegations against the Hospital which would excuse compliance with the statutory notice requirements. In an order entered on March 18, 1983, the trial court granted plaintiff’s motion to file her amended complaint and, in the same order, struck count I of the amended complaint as against Edward Hospital. The court further ordered that there was no just reason for delay or enforcement of its prior February 28 order and that such order was final and appealable.

Plaintiff takes this appeal solely from the trial court’s February 28, 1983, order granting with prejudice the defendant Hospital’s motion to dismiss the original complaint against it pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619).

The defendant Hospital contends that the plaintiff, by filing with the court’s consent an amended complaint against the defendant Hospital, is precluded from appealing the order of dismissal of her original complaint. We agree. The recent opinion of the supreme court in Foxeroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, is dispositive of this issue. In Foxeroft, the supreme court rejected the proposition that following the filing of an amended complaint, the original complaint may nevertheless be considered on review where plaintiff did not manifest an intent to abandon the original pleading; rather, the court adhered to the well-established principle that a party who files an amended pleading waives any objection to the trial court’s ruling on any former complaint. (96 Ill. 2d 150, 153-54.)

“ Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.’ Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272.” 96 Ill. 2d 150, 154.

In the present case the plaintiff’s original complaint asserted, inter alia, that the Hospital was responsible under the doctrine of respondeat superior for the actions of Dr. Foroutan as its employee. In count I of her amended complaint, plaintiff abandoned this theory but otherwise repeated the allegations of the original pleading against the Hospital. The particular allegations of that original complaint which were repeated in the amended complaint are not waived (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 155), and their repetition preserved them for review. However, if plaintiff sought to effect appellate review of the trial court’s dismissal of count I of her amended complaint containing the repeated allegations, she should have appealed the court order of March 18, 1983, not the order of February 28,1983.

The record confirms that plaintiff did not seek to appeal the order of March 18. A notice of appeal must specify the judgment or portion thereof appealed from. (87 Ill. 2d R. 303(c)(2); Pickle v. Curns (1982), 106 Ill. App. 3d 734, 737.) An order not specified in the notice of appeal cannot be reviewed even though it relates to the same subject matter and involves relief similar to a prior order which is specified in the notice of appeal. (In re Custody of Roberts (1982), 107 Ill. App. 3d 913, 919; see Mooring v. Village of Glen Ellyn (1978), 57 Ill. App. 3d 329; compare Pickle v. Curns (1982), 106 Ill. App. 3d 734.) This is true even though the subsequent, unspecified order would have made the prior order appealable. (See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, cert. denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751; compare Strozewski v. Sherman Equipment Co. (1979), 76 Ill. App. 3d 266.) Under these circumstances, the appeal must be dismissed.

There is another reason why the order of February 28, 1983, dismissing the original complaint is not appealable; it is no longer a final order. A final order terminates the litigation between the parties (Flores v. Dugan (1982), 91 Ill. 2d 108, 112-13), and an order dismissing a complaint with prejudice is such a final order (Brainerd v. First Lake County National Bank (1971), 1 Ill. App. 3d 780). The order of February 28, 1983, as originally entered in this matter, was a dismissal with prejudice and a final order. The trial court’s order of March 18, 1983, granting plaintiff leave to file an amended complaint against the Hospital, modified the February 28, 1983, order and effected a vacation of that portion of the prior order which stated that the dismissal was “with prejudice.” Pursuant to the March 18, 1983, order, plaintiff filed an amended complaint and in count I asserted an alleged cause of action against the Hospital. Plaintiff thereby renewed the litigation between the parties. Thereafter, the dismissal order of February 28, 1983, was not a final order, and the trial court’s finding that it was final does not make it so. (See Martino v. Barra (1967), 37 Ill. 2d 588; Mexicali Club, Inc. v. Liquor Control Com. (1976), 37 Ill. App. 3d 797.) Since the earlier order was not final, it cannot support an appeal under Supreme Court Rule 304(a). See Peterson v. Tazewell County (1975), 29 Ill. App. 3d 915, 916; 87 Ill. 2d R. 304(a).

Based on the foregoing discussion, we dismiss plaintiff’s present appeal. Further, pursuant to the precedent of Ariola v. Nigro (1958), 13 Ill. 2d 200, and the subsequent decision of Robinson v. City of Geneseo (1966), 77 Ill. App. 2d 308, we deem it desirable to dismiss this appeal with the specific declaration that if the trial court, upon application of the appellant, dismisses count I of plaintiff’s amended complaint in the form of a final and appealable judgment, we will address any appeal from that judgment without requiring the parties to reprint their briefs and we will decide the appeal on the record as thus supplemented and on the briefs previously filed in this cause.

Appeal dismissed with directions.

LINDBERG and HOPF, JJ., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KENNETH EDGAR BRETT, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1688
    Opinion filed February 28, 1984.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Edward A. Stephens, Assistant State’s Attorneys, of counsel), for the People.
    David S. Mejia, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal by the State from an order suppressing evidence (cocaine) obtained as a result of an allegedly unlawful warrantless search of defendant’s person at O’Hare International Airport on December 1, 1981. The trial court found defendant submitted to a search of his person because he felt he had no alternative but to submit to authority and that this constituted a seizure within the meaning of the fourth amendment. On appeal, the State contends defendant unequivocally and unhesitatingly consented to a search of his luggage and his person after being informed that he was not under arrest, and that he could have declined if he chose.

Although defendant has not filed an appellee’s brief, this does not prevent our considering the merits of the State’s position. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Robert Fulkerson, a special agent of the Federal Drug Enforcement Administration (DEA), testified that on December 1, 1981, at approximately 11:45 a.m., he observed defendant and another man, Peter J. Konczal, deboard Northwest Airlines flight No. 701 from Fort Lauderdale, Florida. Fulkerson had earlier spoken with Detective Tom Brennan of the Broward County sheriff’s police by telephone. Brennan had described two men he had under surveillance at the Fort Lauderdale airport, traveling trader the names Mr. Brett and Mr. Kirk (Konczal). Fulkerson was advised that the men had paid cash for their tickets from a large amount of money Konczal had, and the men appeared to be “nervous.”

Fulkerson then followed the men and overheard that they were changing their flight from a 1 p.m. departure to a noon departure to Milwaukee, and he heard a ticket agent assure them that their baggage would be on the earlier flight. When Konczal exited the deboarding area, two Chicago police officers with whom Fulkerson was working, Boile and Turney, approached Konczal and conversed with him. Fulkerson then approached defendant, identified himself as a Federal officer and then asked to speak to him; defendant agreed. He then informed defendant he was not under arrest but not expressly told that he was free to go or that he was free not to talk to him.

Fulkerson asked Brett for identification. As Agent Grassman joined them, defendant displayed a Virginia driver’s license in his name. When Fulkerson asked defendant about an airline ticket, defendant replied that Konczal had it. He did not inform defendant that he did not have to show him his driver’s license or his airline ticket. Fulkerson obtained defendant’s ticket from Konczal and asked defendant if he still lived in Virginia. Defendant said he had no regular residence, that he traveled and that he was a welder at one time but was presently unemployed. After returning defendant’s driver’s license and airline ticket to him, Fulkerson told defendant he was not under arrest but asked him if he was carrying any drugs. When defendant said “no,” Fulkerson asked defendant if he would consent to a brief voluntary search of his suitcase and person, that he would not miss his flight, and that he could decline if he so chose. Defendant told him to go ahead.

With Fulkerson leading the way, he and defendant then walked about 50 feet to a stairway and down the stairway to a small area. Officers Turney and Boile, Agent Grassman and Konczal were also present. There defendant opened his suitcase but nothing incriminating was found. Fulkerson then asked defendant if he was carrying any drugs on his person. Defendant answered “no” and raised his arms parallel to the floor apparently to allow a search of his person. Fulkerson felt a large lump in each boot as he patted down the outside of defendant’s blue jeans and asked defendant what the bulges were. Defendant hesitated, sighed and stated “a pound.” Fulkerson then arrested defendant and from each boot removed two clear packages containing a white-powdered substance.

Defendant testified that at approximately 8 a.m. on the date of his arrest, he was at the Florida airport with Konczal. Both he and Konczal paid cash for their tickets. When he got off the airplane in Chicago, he walked across the concourse to catch a connecting flight for Milwaukee. He had never been to O’Hare airport before and had never been approached by law enforcement agents in a public place or interrogated. After changing his flight to a noon departure, he and Konczal left the immediate boarding area, and Konczal went to get a drink of water. At that time defendant observed two men talk to Konczal.

Agent Fulkerson then approached, identified himself as a Federal agent, showed him a badge and according to defendant stood directly in front of him. Because defendant’s back was to a small railing, defendant said he was blocked. Defendant denied that Fulkerson told him at any time that he was free to go, and if Fulkerson had told him, he would have left for his flight. Another officer then came up and asked defendant for identification. After defendant showed his driver’s license, he was asked for his ticket and responded that Konczal had it. When defendant told Fulkerson his flight was leaving in just a few minutes, Fulkerson responded that defendant looked like someone who might be carrying drugs, and he wanted to inspect defendant’s luggage. Defendant admitted that he might have said “[g]o ahead and search my luggage” because he believed that he had no choice and did not know what he was doing. But defendant denied that Fulkerson expressly told him that permission for a search of his luggage was voluntary and he could decline if he wished. Rather Fulkerson only asked for his consent to a search of his luggage, and he told him to do so thinking he had no choice. Defendant recounted that, as Fulkerson left and went to his luggage, defendant heard something to the effect of “arrest,” but he was not sure if the officer told him he was not under arrest.

The agents then “walked him” about 80 feet down the concourse to a stairway which they descended to a place where his baggage was to be searched. During this time there was an agent in front of him leading the way and an agent behind him. Defendant claimed that he followed because he was under the impression that he had no choice but to cooperate. Officer Fulkerson and four other agents or policemen were also present where the luggage was searched after defendant helped open a suitcase which had a defective catch. When Fulkerson had gone through the suitcase, he approached defendant and asked if he was carrying any drugs. Defendant stood up, said “no,” and raised his hands to his waist as Fulkerson started patting him down from under this arms to his pants legs and boots where the “pound” was discovered.

Chicago police officer James Turney was present when the defendant was searched. He saw defendant standing with his hands extended out from the body slightly higher than shoulder length. He heard Officer Fulkerson say “what’s that,” and defendant respond “a pound.”

DEA agent Milo Grassman testified he was present when Fulkerson advised defendant he was not under arrest; this was at the time he returned defendant’s airline ticket and driver’s license to him. Fulkerson then asked defendant if he could search his luggage and his person and stated to defendant that it would be strictly voluntary because defendant would not have to consent to it. Defendant responded, “[G]o ahead if you want to.”

In granting the motion to suppress, the trial court concluded that the information available to the officers, although it did establish that defendant met the “drug courier profile,” was not sufficient, standing alone, to justify a seizure.

The State maintains there was no seizure, only an “encounter” with defendant, who then consented to a search of his person. For, as the State points out, law enforcement authorities may legitimately approach a deboarding airline passenger and ask him questions provided the passenger’s freedom is not restrained. Florida v. Royer (1983), 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324; People v. Long (1983), 99 Ill. 2d 219.

The trial court here found that the original encounter between Fulkerson and defendant was not a “seizure,” but merely an “encounter” and that the agent’s actions in requesting and examining defendant’s license and his airline ticket were not constitutionally impermissible. However, the trial court found the officers exercised control over defendant after they had examined and returned his identification and airline tickets, and that when defendant gave permission to Fulkerson to search his luggage, this was more a concession to authority than consensual.

A trial court’s finding on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) In Terry v. Ohio (1968), 392 U.S. 1, 16, 20 L.Ed. 2d 889, 903, 88 S. Ct. 1868, 1877, the court observed that a seizure occurs whenever a police officer accosts an individual and restrains his freedom to walk away. In People v. Kiser (1983), 113 Ill. App. 3d 501, 504, 447 N.E.2d 858, agents blocked defendant’s exit onto an escalator. The court concluded defendant was not free to ignore his interrogator and walk away, and that continuing questioning by the officers was in reality a stalling technique aimed at detaining defendant until the officers could obtain more information.

In this case the defendant’s consent followed the initial encounter and came after the investigating officer in authority had returned his airline ticket and identification to him. We conclude that by these actions the officer effectively communicated to defendant that he was satisfied with defendant’s answers and his identification. A reasonable person in defendant’s position under like circumstances could have considered he was not being detained but was free to go.

We do not consider that People v. DeLisle (1982), 104 Ill. App. 3d 297, 300, 432 N.E.2d 954, dictates a contrary result, for it was decided after United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, but before Royer. The DeLisle court refused to follow Justice Stewart’s opinion on the seizure issue in Mendenhall because only one other justice had concurred. In Florida v. Royer, however, a majority of the justices agreed with Justice Stewart’s formulation in Mendenhall. See Florida v. Royer (1983), 460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326 (plurality opinion), 1332-33 (Blackmun, J., dissenting).

The record reveals that both DEA agents testified defendant gave his consent to search after the officer had returned defendant’s airline ticket and his identification to him. Defendant’s testimony is not conflicting on this point. Both agents’ testimony also supports the finding that Fulkerson informed defendant he was not under arrest as he returned his tickets and identification. As the trial court pointedly remarked, defendant’s version did not contradict this; in fact, defendant recalled the term “arrest” being mentioned and practically conceded the accuracy of the agents’ version of what was said. The trial court, nevertheless, found that, subjectively, defendant, as he testified, was under the impression that he had no choice but to cooperate with the agents at this point. Where we differ with the trial court is that we find that, objectively, defendant was not required to cooperate further.

While Fulkerson had defendant’s ticket and identification, we would agree that defendant was, objectively speaking, momentarily immobilized, at least to the extent that he could not board his flight without his ticket. The trial court found that the agents’ actions were not unlawful up to this point, and we agree on the authority of Florida v. Royer (1983), 460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326. Fulkerson then returned defendant’s ticket and identification to him, but requested that defendant accompany him downstairs for a search of his luggage. Although defendant could have refused, he agreed. Defendant’s belief that he was not free to go was unreasonable. Cf. United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877.

Fulkerson’s asking defendant for permission was consistent with defendant’s freedom to leave. We see no impropriety in the officer turning to defendant, as a last resort, to ask defendant for his permission to search, and we conclude that going downstairs was mutually agreed on between defendant and Fulkerson. We also judge defendant’s consent to the luggage search was not rendered involuntary by his apparent ignorance of his right to refuse. (See Schneckloth v. Bustamonte (1973), 412 U.S. 218, 234, 36 L. Ed. 2d 854, 867, 93 S. Ct. 2041, 2051.) Defendant’s actions in following the agents do not establish that he was the subject of a seizure for fourth amendment purposes. Defendant’s consent to the subsequent pat-down search, therefore, was not tainted by the events which had preceded it. Defendant’s subjective belief did not invalidate the otherwise lawful actions of the agents who-took defendant at his word when he consented to a search of his suitcase and then accompanied them to the baggage area. We likewise consider defendant’s subjective beliefs did not invalidate the pat-down search, to which he then also consented.

Therefore, the judgment of the circuit court of Cook County is reversed.

Reversed.

STAMOS and PERLIN, JJ., concur.


text:
    THE DEPARTMENT OF LABOR, Plaintiff-Appellee, v. CEDRIC CHANEY, Defendant-Appellant (Illinois Civil Service Commission, Defendant).
    First District (3rd Division)
    No. 83—951
    Opinion filed February 22, 1984.

      Gail E. Mrozowski, of Cornfield and Feldman, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathryn A. Spalding, Assistant Attorney General, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

The Illinois Civil Service Commission suspended defendant, Cedric Chaney, from his employment with plaintiff, the Department of Labor of the State of Illinois, for 90 days. On review sought by the Department, the circuit court of Cook County reversed the Commission’s decision and remanded the cause with directions to enter an order of discharge. The issue before this court is the propriety of the circuit court’s reversal of the Commission’s decision.

The record shows that the Department of Labor filed the following charges in a discharge proceeding against Chaney, who was employed as a clerk by the Department:

“You [Chaney] are hereby discharged for conduct unbecoming a State employee. You collected unemployment insurance benefits to which you were not entitled during the period from March 8, 1980 through April 12, 1980, while you were in pay status with the Illinois Bureau of Employment Security, Division of Unemployment Insurance [of the Department of Labor]. You knowingly withheld information on your certifications submitted for unemployment benefits in that you failed to report your employment and earnings during the above named period. This action caused you to obtain a total of $498.00 in unemployment insurance benefits to which you were not entitled for the weeks listed below:
March 8,1980 $83.00
March 15,1980 83.00
March 22,1980 83.00
March 29, 1980 83.00
April 5,1980 83.00
April 12,1980 83.00.”

At a hearing before a hearing officer of the Civil Service Commission, the following undisputed facts were admitted into evidence. Chaney was employed by the Department of Labor as a clerk beginning on March 3, 1980; however, on March 8, 1980, March 28, 1980, and April 13, 1980, Chaney signed “claim certification” forms certifying that he was unemployed for the two-week periods covered by the respective forms. In addition, Chaney endorsed and cashed payroll checks which were issued to him by the State on March 25, 1980, April 9, 1980, and April 24, 1980, and he also endorsed and cashed unemployment insurance benefit checks which were dated March 17, 1980, April 1, 1980, and April 15, 1980, and which were each in the amount of $166.

Chaney testified at the hearing. He admitted that he knowingly withheld information on the three certification forms. He explained that he had been unemployed prior to obtaining his position with the Department of Labor and that he submitted the certification forms in order to recoup benefits which he believed to be due to him for the period of his unemployment. In this regard, Chaney testified that he was employed by the Department of Administrative Services until January 1980, but that he could not remember the exact date. Chaney also testified that after he had recouped the unemployment benefits to which he thought he was entitled, he submitted a form which stated that he was employed, and that after he became aware that he had received unemployment benefits to which he was not entitled, he entered into a written agreement with the Department of Labor whereby he agreed to repay $498 in benefits in monthly installments of $41.50.

Norman Harelik, supervisor of the internal investigations unit of the Unemployment Insurance Division of the Bureau of Employment Security of the Department of Labor, testified that Chaney was not entitled to unemployment benefits for the weeks listed in the written charges for discharge; that according to a computer record Chaney had stated that his previous employment with the Department of Administrative Services had ceased on February 1, 1980; and that Chaney first applied for unemployment benefits on February 19, 1980. Harelik further testified that it is not proper for a claimant of unemployment benefits to recoup benefits that he should have but did not receive by submitting claim certifications containing false information, and that there was a procedure for back-dating claims for unemployment benefits.

There was also testimony at this hearing by Frank Sellers, the manager of the labor-management relations division of the Bureau of Employment Security, concerning the Department of Labor’s policy in cases where employees had fraudulently received unemployment benefits. According to him, the Department’s general unwritten policy is to impose a one-week suspension for each week of benefits wrongfully received and to discharge an employee who has improperly received more than four weeks of benefits. The Department would, however, consider mitigating circumstances, such as the employee’s work record, in determining whether the sanction indicated by the general policy should be reduced. Sellers specifically testified that if an employee received six weeks of benefits to which he was not entitled, the general policy would be to discharge the employee. With regard to this general policy, personnel action forms concerning the discipline imposed on five other employees who had improperly received unemployment benefits were introduced into evidence. This evidence is summarized in the following chart:

None of these forms indicated that mitigating circumstances had been considered in imposing the suspensions. Testimony by Sellers establishes that Clark was disciplined before the present policy went into effect. However, it should be noted that the previous policy of the Department was to impose discharge as a sanction for improperly receiving unemployment benefits for one week. That policy clearly was not followed in Clark’s case. More importantly, the personnel action forms of Smith and Washington show that these employees received suspensions less severe than the suspensions called for by the general policy, even though their forms did not indicate that mitigating circumstances were present.

After the hearing, the Civil Service Commission’s hearing officer found that Chaney “falsely certified as to his employment status and received unemployment benefits during the period of time that he was, in fact, employed by the State” and that the written charges for discharge had been proved. She recommended that Chaney be discharged. The Commission agreed with the hearing officer that the written charges for discharge had been proved; however, it ordered a 90-day suspension rather than discharge. The Commission reasoned: “[I]t is apparent from the record that the policy of the Department with regard to levying penalties on its employees for claiming undue unemployment benefits is not evenly or consistently applied.” As noted earlier, the circuit court reversed the Commission’s decision.

Final decisions of the Civil Service Commission are subject to judicial review pursuant to the provisions of the Administrative Review Law (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.). (Ill. Rev. Stat. 1981, ch. 127, par. 63b111a.) The scope of judicial review, however, is limited. In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885, our supreme court stated:

“A court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. [Citation.] In applying this rule of law, the following statutory provision must be considered: ‘The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct’ (Ill. Rev. Stat. 1977, ch. 110, par. 274 [now codified as Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110]). ***
The second step in the court’s analysis is to determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist.”

See also Starkey v. Civil Service Com. (1983), 97 Ill. 2d 91, 97, 454 N.E.2d 265; Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 257-58, 449 N.E.2d 845; Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105, 449 N.E.2d 115; Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 409, 438 N.E.2d 147.

Neither the Department nor Chaney has argued, either in the trial court or in this court, that the Commission’s finding that the charges for discharge had been proved is contrary to the manifest weight of the evidence. They do, however, dispute the validity of the Commission’s finding that the policy of the Department concerning the imposition of penalties on employees who claim undue unemployment benefits is not evenly or consistently applied. In our opinion, this finding is not against the manifest weight of the evidence. As noted, the record contains the personnel action forms for four employees suspended under the present policy. Two of these employees received only a one-week suspension even though they had improperly received three weeks of benefits. The policy called for a three-week suspension of both employees, and their forms did not indicate the presence of mitigating circumstances. This evidence clearly supports a finding that the Department’s policy was “not evenly or consistently applied.”

Having concluded that the Commission’s findings of fact are not contrary to the manifest weight of the evidence, the critical issue becomes whether the findings of fact provide a sufficient basis for the Commission’s conclusion that cause for discharge does not exist.

Section 11 of the Personnel Code (Ill. Rev. Stat. 1981, ch. 127, par. 63b111) prohibits the discharge of employees “except for cause,” and “cause” has been defined as “ ‘some substantial shortcoming which renders [the employee’s] continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as á good cause for his not longer occupying the place.’ ” (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105; Fantozzi v. Board of Fire & Police Commissioners (1963), 27 Ill. 2d 357, 360, 189 N.E.2d 275.) The question of whether cause for discharge does or does not exist should generally be determined by the administrative agency (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 552), and considerable deference must be afforded to an administrative finding of cause for discharge or lack thereof. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 106.) Accordingly, “the agency’s decision as to cause will not be reversed unless it is arbitrary, unreasonable, or unrelated to the requirements of service.” Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 552.

The policy of the Department, itself, recognizes that the improper receipt of unemployment benefits does not disqualify a person for employment with the Department. Rather, the policy is only to discharge an employee who has received more than four weeks of benefits improperly, if mitigating circumstances are absent. While we do not here question the validity of such a policy, we observe that Frank Sellers, the manager of the labor-management relations division, when asked at the hearing “why four weeks is the cutoff,” stated that he did not know. More importantly, the finding of fact that the policy is not evenly or consistently applied clearly suggests that the Department does not follow the policy in every case involving the discipline of an employee for the improper receipt of unemployment benefits. Given Chaney’s testimony concerning his receipt of unemployment benefits and the Commission's finding of uneven and inconsistent application of the Department’s unwritten policy, we cannot say that the Commission, in opting for a 90-day suspension rather than discharge, acted unreasonably or arbitrarily, or selected a type of discipline unrelated to the needs of the service. The fact that Chaney received unemployment benefits improperly for six weeks, more weeks than any of the other employees who were suspended for similar conduct, is, in our opinion, not a sufficient reason to disturb the Commission’s decision.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and the Commission’s order of suspension is affirmed.

Judgment reversed, order affirmed.

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

      In this regard, we note that J. Washington received unemployment benefits of $426 to which he was not entitled, only $72 less than Chaney. Washington only received a seven-day suspension.