author: JUSTICE LINDBERG JUSTICE VAN DEUSEN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN LAWLOR, JR., Defendant-Appellee.
    Second District
    No. 80-725
    Original opinion filed November 9, 1981.
    Rehearing denied December 22, 1981.
    Modified opinion filed December 31, 1981.
    VAN DEUSEN, J., specially concurring.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Robért L. Thompson, Assistant State’s Attorney, of counsel), for the People.
    Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

This is an appeal by the State from an order of the Circuit Court of Du Page County suppressing evidence which would otherwise have been presented by the State at the trial of defendant, John Lawlor, Jr. We reverse and remand.

Defendant was arrested on February 14, 1980, and charged by information on May 20,1980, with the offenses of unlawful possession of a controlled substance (Ill. Rev. Stat. 1979, ch. 56M, par. 1402(b)), unlawful possession and use of a driver’s license (Ill. Rev. Stat. 1979, ch. 95/2, par. 6 — 301), and possession of firearm ammunition without the requisite firearm owner’s identification card. Ill. Rev. Stat. 1979, ch. 38, par. 83 — 2.

A hearing was held on the defendant’s motion to quash the arrest and suppress the evidence on August 12, 1980. Defendant and the State first argue the issue of whether the police officers properly arrested defendant based on an outstanding warrant for his arrest. Evidence regarding the progress of the previous charges against defendant was sparse but essentially both sides agreed on the facts.

Defendant was released on his own recognizance on March 10,1979, after being charged with possession of cannabis and a controlled substance (111. Rev. Stat. 1977, ch. 56M, pars. 704(b) and 1402(b)). Defendant was scheduled to appear in specified courtrooms on April 2, 1979, pursuant to the terms of his bail. One charge was a felony and was assigned to one courtroom and the other charge was the misdemeanor and was assigned to a different courtroom. Defendant and his counsel appeared on the felony charge in the courtroom designated for the felony but did not appear on the misdemeanor charge in the other courtroom which was specified in his bail. Counsel for both sides apparently had been of the opinion that both the felony and misdemeanor charges were proceeding together in the same courtroom.

However, when the defendant failed to appear in the designated courtroom for the misdemeanor on April 2, 1979, the judge in that courtroom entered an order forfeiting defendant’s bond and on May 9, 1979, an arrest warrant was issued for the defendant pursuant to section 110 — 3 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1977, ch. 38, par. 110 — 3). The warrant stated that it was to be executed before February 15,1980.

This warrant served as the basis for the arrest of the defendant February 14, 1980. The officers searched the defendant incident to that arrest. The search produced alleged controlled substances and firearm ammunition on defendant’s person. Defendant was charged with possession of the contraband, which was subsequently suppressed by the trial court below because the arrest warrant pursuant to the bond forfeiture was deemed void when executed by the trial court. The State argues that the warrant was validly issued but also contends that if the warrant were found to be invalid “in a technical sense” then the officers’ reasonable and justified good faith belief that the warrant was valid is sufficient to uphold the arrest. The State also argues, in the alternative, that there exists an independent basis to support defendant’s arrest and the resulting search so that there was probable cause to make a warrantless arrest.

Defendant argues that the warrant was issued to compel defendant’s appearance on the misdemeanor charge to which he subsequently pleaded guilty and served a probationary sentence. Defendant contends the warrant was thereby invalidated by the time of its execution. Defendant concludes that the February 14, 1980, arrest was made pursuant to this invalid arrest warrant and the subsequent search was therefore invalid.

Defendant maintains that a police officer may be justified in making an arrest on what appears to be a valid warrant, but when the warrant is subsequently found to be invalid the arrest will be deemed to be illegal. Defendant relies upon Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, and People v. Decuir (1980), 84 Ill. App. 3d 531, 405 N.E.2d 891. Since the trial court in the instant case focused exclusively on the validity of the warrant, holding that it was void when executed, the validity of the warrant is the pivotal issue in the case at bar. We find it unnecessary to discuss the State’s arguments concerning the officers’ reasonable good faith in the validity of the warrant or the existence of independent probable cause.

We conclude that defendant was validly searched on February 14, 1980, when taken into custody for the outstanding arrest warrant issued May 9, 1979. The warrant was neither invalidly issued nor was it invalid when executed. We note that on its face the warrant did not expire until the next day, February 15, 1980, nor is it contended otherwise by defendant.

Our conclusion is based upon the fact that defendant violated the bail provisions of the Illinois statutes and the courts and police followed proper procedure in responding to that violation. Defendant was initially arrested for the cannabis violation, admitted to $1,000 bail and released on his own recognizance on March 10,1979, pursuant to section 110 — 2 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1977, ch. 38, par. 110 — 2) which provides:

“When from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance.” Ill. Rev. Stat. 1977, ch. 38, par. 110 — 2.

One of the conditions of defendant’s bail was that he appear in a certain courtroom to answer the cannabis charge April 2, 1979. He failed to appear thus triggering the further provisions of section 110 — 2:

“A failure to appear as required by such recognizance shall constitute an offense subject to the penalty provided in Section 32-10 * * * for violation of bail bond * 6 (Ill. Rev. Stat. 1977, ch. 38, par. 110—2.)

Section 32 — 10, referred to in section 110 — 2, provides:

“Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and willfully fails to surrender himself within 30 days following the date of such forfeiture, commits, if the bail was given in connection with a charge of felony or pending appeal or certiorari after conviction of any offense, a Class 4 felony; or, if the bail was given in connection with a charge of committing a misdemeanor, or for appearance as a witness, commits a Class A misdemeanor.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 32— 10.

On April 2, 1979, the day the defendant failed to appear, the court forfeited defendant’s bond and issued a notice of forfeiture which was sent by the clerk of the court to the defendant (Ill. Rev. Stat. 1977, ch. 38, par. 110 — 7(h)). More than 30 days later, on May 9,1979, the court issued the arrest warrant which is the subject of this appeal pursuant to section 110 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 110—3), which provides:

“Upon failure to comply with any condition of a bail bond or recognizance the court having jurisdiction at the time of such failure may, in addition to any other action provided by law, issue a warrant for the arrest of the person at liberty on bail or his own recognizance.” Ill. Rev. Stat. 1977, ch. 38, par. 110—3.

Defendant’s principal argument is that the arrest of February 14, 1980, on the arrest warrant issued May 9, 1979, was invalid because the warrant called for the arrest of defendant on the underlying misdemeanor of possession of cannabis (Ill. Rev. Stat. 1977, ch. 561/2, par. 704(b)), which offense had been discharged by defendant’s conviction and service of sentence. Since the underlying offense no longer existed on February 14, 1980, defendant contends, the warrant was not based upon probable cause when executed, and the search incident thereto was invalid and the evidence properly suppressed.

This is not a case where the arrest warrant was not supported by probable cause. The offense for which the warrant was issued was for failure to appear as required by the terms of his bail pursuant to sections 110 — 2 and 110 — 3. We need not determine whether prior to the 30 days described in section 32 — 10 the arrest warrant would be for the underlying offense because, in the case at bar, 30 days had elapsed. The passage of 30 days from the notice of forfeiture without appearance caused the defendant’s failure to appear to escalate from a civil matter to a criminal matter.

The case law also is clear that a forfeiture of a bail bond ceases to be a strictly civil matter and subjects one to criminal liability when the defendant “willfully fails to surrender himself within 30 days following the date of such forfeiture 0 ° (Ill. Rev. Stat. 1977, ch. 38, par. 32—10.) A willful violation of the bail bond statute can be established by demonstrating that notice of the bond forfeiture order was mailed to the accused at his last known address. (People v. Ratliff (1975), 35 Ill. App. 3d 19, 341 N.E.2d 29, aff’d (1976), 65 Ill. 2d 314, 357 N.E.2d 1172.) Therefore, in the case at bar, a willful violation of the bail bond statute was established and the issue of whether the defendant knew of the existence of an arrest warrant is irrelevant. People v. Anon (1973), 15 Ill. App. 3d 645, 305 N.E.2d 1.

This is not a case like Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, or People v. Decuir (1980), 84 Ill. App. 3d 531, 405 N.E.2d 891. Whiteley held that although a police officer may assume that a warrant is valid and may arrest pursuant to it, when in fact the warrant is invalid, the arrest is illegal and all evidence seized pursuant to the arrest may be suppressed. In Whiteley, a warrant was issued for the defendant’s arrest and an officer in another jurisdiction arrested the defendant based on the warrant. It was later determined that there was no probable cause for the original warrant. Although the court stated that the officer was justified in assuming that the warrant was valid, it held that since no probable cause existed for the warrant, the evidence obtained in a search incident to the arrest was subject to suppression. Thus, the critical fact in Whiteley is the lack of probable cause for the issuance of the warrant upon which the defendant’s arrest was based. In the case at bar the issuing judge acted upon the command of State statute and issued an order forfeiting the defendant’s bond. The defendant failed to appear in the specified courtroom on the assigned date in violation of section 110 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 110—2). The State complied with section 110—7(h) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 110 —7(h)) and sent notice of the bond forfeiture order to the defendant at his then current address. The defendant did not appear and surrender to the court within 30 days of the forfeiture nor did the defendant upon receipt of the notice move to have the warrant quashed. Thus, probable cause clearly existed for the issuance of the arrest warrant on May 9,1979.

People v. Decuir (1980), 84 Ill. App. 3d 531, 405 N.E.2d 891, is also distinguishable. The defendant in Decuir was arrested on the basis of an outstanding warrant. It was subsequently learned that the warrant had been quashed, effectively withdrawing probable cause to arrest the defendant. The Decuir court relied upon Whiteley stating that a police officer who is assisting in the execution of an arrest warrant may assume that the warrant was issued on the basis of sufficient information to support an independent judicial assessment of probable cause. However, where the contrary turns out to be true, the illegal arrest cannot be insulated from a challenge to the warrant and the evidence illegally seized in an arrest made without probable cause must be suppressed. 84 Ill. App. 3d 531, 405 N.E.2d 891.

Thus Whiteley and Decuir are distinguishable from the case at bar. In Whiteley probable cause for the arrest never existed, and in Decuir probable cause for the arrest warrant, if any, was withdrawn as a result of it being quashed before the arrest was made.

In sum, we conclude that the arrest warrant was issued pursuant to probable cause for the offense described in sections 110 — 2 and 32 — 10 (Ill. Rev. Stat. 1977, ch. 38, pars. 110 — 2 and 32 — 10), known as bail jumping. The offense matured at the expiration of 30 days from the date of notice of the defendant’s bond forfeiture without his appearing in the courtroom designated in his bail bond. The defendant, having ignored the notice of forfeiture and thus the opportunity to rectify the administrative error by a proceeding to quash the warrant, allowed the bail jumping offense to arise. The disposition of the underlying offense in the meantime had no effect on the existence of probable cause for the defendant’s arrest pursuant to the warrant on February 14, 1980.

The order of the circuit court of Du Page County is reversed and the cause remanded.

Reversed and remanded.

NASH, J., concurs.

JUSTICE VAN DEUSEN,

specially concurring:

I concur in the result reached in this case, but have some reservations concerning the reasoning of the majority in reaching that result. I do not find it necessary to reach the issue of whether the passing of 30 days from the notice of forfeiture without appearance caused the defendant’s failure to appear to escalate from a civil matter to a criminal matter or whether there was probable cause that the defendant had violated the bail bond statute. Ill. Rev. Stat. 1977, ch. 38, par. 32—10.

The warrant in question was validly issued pursuant to section 110 — 3 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1977, ch. 38, par. 110 — 3) for defendant’s failure to comply with a condition of his recognizance; namely, to appear in court at a scheduled court time. The trial court has inherent authority to enforce its orders and to impose sanctions for violations of conditions imposed by it upon a defendant when released on bail or recognizance. (People ex rel. Hemingway v. Elrod (1975), 60 Ill. 2d 74, 83.) The imposition of such sanctions is independent of the underlying charge for which the defendant was originally released on bond or recognizance. The disposition of the underlying charge for which the defendant was originally arrested, therefore, in no way affects the authority of the court to conduct a hearing and impose sanctions upon the defendant for violation of the conditions of his bail or recognizance. Defendant in this case had never been brought before the court to answer the charge implicit in the section 110 — 3 warrant that he had failed to comply with a condition of his bond or recognizance. The warrant of arrest issued, pursuant to section 110 — 3, was still valid and outstanding at the time defendant was arrested on that warrant.

I concur with the majority that the arrest and search were valid and that the trial court erred in suppressing the evidence seized as a result of such search.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    AMERICAN STATES INSURANCE COMPANY ex rel. COMMUNITY UNIT SCHOOL DISTRICT NO. 27, Plaintiff-Appellant, v. KEVIN FLYNN, Defendant-Appellee.
    Fourth District
    No. 17164
    Opinion filed December 4, 1981.
    Jeffrey B. Levens, of Sturm & Levens, of Springfield, for appellant.
    John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, of Springfield, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Is a teacher immune from suit by a student for negligent injury?

Yes.

Is a student also immune from such suit by a teacher?

No.

The teacher-pupil immunity rule is a one-way street.

This case involves a dismissal on the pleadings. The facts which appear on the face of the plaintiff’s complaint, and which must be taken as true (St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Co. of America (1979), 73 Ill. App. 3d 935, 393 N.E.2d 611), are these:

During regular school hours, and in the course of his employment as a physical education teacher, James Phalen (insured), was struck and injured by a shotput thrown by Kevin Flynn, one of his students and the defendant in this case. American States became subrogated to the rights of the insured teacher by virtue of its payment of the expenses of his injury and, on August 14,1980, filed suit alleging negligence on the part of the defendant student. The defendant filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(h)), stating in support of the motion that sections 24 — 24 and 34 — 84a of the School Code (Ill. Rev. Stat. 1979, ch. 122, pars. 24 — 24 and 34 — 84a) barred suits by teachers against their students.

The trial court dismissed and plaintiff appeals.

The question presented here is one of first impression. Section 24 — 24 of the School Code reads:

“Maintenance of discipline. Teachers and other certified educational employees shall maintain discipline in the schools, including school grounds which are owned or leased by the board and used for school purposes and activities. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program and may be exercised at any time for the safety and supervision of the pupils in the absence of their parents or guardians.
Nothing in this Section affects the power of the board to establish rules with respect to discipline.
The board may make and enforce reasonable rules of conduct and sportsmanship for athletic and extracurricular school events. Any person who violates such rules may be denied admission to school events for not more than one year, provided that written 10 days notice of the violation is given such person and a hearing had thereon by the board pursuant to its rules and regulations. The administration of any school may sign complaints as agents of the school against persons committing any offense at school events.” (Ill. Rev. Stat. 1979, ch. 122, par. 24—24.)

Section 34 — 84a, the companion to section 24 — 24, is essentially identical, except that it applies only to cities with populations in excess of 500,000. Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323.

The supreme court has interpreted this statute as applying the parental immunity doctrine to the teacher-pupil situation and granting immunity to teachers from suits by their pupils for negligent acts occurring within the teacher-pupil relationship. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) We are asked to decide whether sections 24 — 24 and 34 — 84a should be interpreted to make a similar grant of immunity to pupils. We are cognizant of the fact that no teacher is a party to this suit. However, plaintiff, as subrogee, steps into the shoes of its insured and acquires no greater rights. (McCormick v. Zander Reum Co. (1962), 25 Ill. 2d 241, 184 N.E.2d 882.) Thus, if the plaintiff’s insured was barred, plaintiff is similarly barred.

When interpreting a statute, our primary task is to ascertain the intent of the legislature. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222.) In performing this task, we must look first to the actual language of the statute involved. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Upon an examination of section 24 — 24, the first thing one notices is that it is entitled “Maintenance of Discipline.” If the title of a statute says anything about its purpose or content, then it appears that section 24 — 24 was not intended primarily to grant immunity, but to promote discipline in the schools of this Staté. In addition, by its language, section 24 — 24 imposes upon “teachers and other certificated educational employees” the duty to maintain discipline in the schools. It is only in connection with this duty and for the “safety and supervision” of pupils that teachers and certificated educational employees “stand in the relation of parents and guardians” to pupils. (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 24.) Thus, the legislature, in enacting section 24 — 24, was primarily concerned with imposing upon teachers an obligation and simultaneously giving them the power to fulfill it, not with adopting any doctrine of immunity in the teacher-pupil situation. See Gerrity v. Beatty (1978), 71 Ill. 2d 47, 51, 373 N.E.2d 1323, 1325, holding that section 24 — 24 represents “a legislative determination that the orderly conduct of the schools and the maintenance of a sound learning atmosphere require that • * * [a] teacher [have] disciplinary and supervisory authority similar to that which exists between parent and child.”

Perhaps as enlightening as the language the legislature chose to use in section 24 — 24 is the language that it chose to avoid. Nowhere in section 24 — 24 is reference made to either the parental, or the broader, family immunity doctrine suggested by the defendant. Nor did the legislature utilize the words in loco parentis. This terminology is used by courts to refer to persons who have taken upon themselves the obligations and financial burdens of a parent and to whom immunity is extended. (See Busillo v. Hetzel (1978), 58 Ill. App. 3d 682, 374 N.E.2d 1090.) The legislature’s use of narrow and circumscribed language does not indicate that it intended a wholesale adoption of any immunity doctrine.

Further, if the legislature had intended to give a grant of immunity and make it applicable “both ways,” it knew how to do so. For example, section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1979, ch. 40, par. 1001) provides “” e ° that neither husband nor wife may sue the other for a tort to the person committed during coverture.” That the legislature did not use such language in section 24 — 24 indicates that it did not intend to make students immune.

Although not directly on point, there is some cage law dealing with the meaning of section 24 — 24. Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 172, 395 N.E.2d 538, 541, held that in enacting sections 24 — 24 and 34 — 84a, the legislature was concerned that teachers’ vulnerability to student suits for negligence would “burden them to the extent that a teacher might become immobile in the performance of his obligations” and “quite possibly discourage persons from the career of teaching.” Thus, it was concern over teachers, not pupils, which prompted the legislation.

Edmonson v. Chicago Board of Education (1978), 62 Ill. App. 3d 211, 379 N.E.2d 27, held that a teacher’s aide and a school community representative were not within the class of persons entitled to protection by sections 24 — 24 and 34 — 84a because they did not fit the definition of teacher found in section 34 — 84 of the School Code (111. Rev. Stat. 1979, ch. 122, par. 34 — 84). The clear import of this case is that immunity was to be limited to those specifically mentioned in the statute — teachers and certificated educational employees.

In Booker v. Chicago Board of Education (1979), 75 Ill. App. 3d 381, 394 N.E.2d 452, a student was assaulted in a school restroom by classmates, including a classmate who had been appointed monitor by the class’ teacher. The plaintiff-student contended that since the classmate was not immune under sections 24 — 24 and 34 — 84a and that since the student was an agent of the teacher, the teacher was liable on a theory of respondeat superior. Although not crucial to its decision, the court seemed to accept that the student was not immune. However, it rejected the argument that the student was an agent and held that the plaintiff’s complaint was properly dismissed.

These cases indicate that the interpretation of section 24 — 24 suggested by the defendant is not only in conflict with the narrow interpretation of the class of persons entitled to protection under the statute, it also frustrates a major policy consideration behind the legislation.

Ergo, we reverse and remand with directions to reinstate plaintiff’s complaint.

Reversed and remanded.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE LONDRIGAN

text:
    WARREN REED, Plaintiff-Appellant, v. DANVILLE CONCRETE PRODUCTS CO. et al., Defendants-Appellees.
    Fourth District
    No. 16997
    Opinion filed December 10, 1981.
    Rehearing denied January 8, 1982.
    Thomas A. Clancy, of Mullen, Clancy & Associates, of Chicago, for appellant.
    Ralph J. Swanson, of Sebat, Swanson, Banks, Lessen & Garman, of Danville, for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

This negligence action arises out of injuries suffered by a worker during the construction of a house. The underlying facts here are not in dispute: the plaintiff, employed by a carpentry contractor, fell from a scaffold onto drainage tiles that another contractor had left at the work site. The trial court dismissed the complaint for failing to state a cause of action. We reverse.

On review the only question before us is the legal sufficiency of the complaint; a motion to dismiss admits all well-pleaded allegations. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 267 N.E.2d 523.) One or some or all three of the defendants installed a septic tank at the house. The complaint charges the defendants with negligence for leaving drainage tiles near the house “in an area where a scaffold was erected” and for not removing the tiles and other debris upon the completion of the sewer system. These allegations signify the defendants’ sole connection with the accident; the defendants did not erect the scaffold, employ the plaintiff, or cause him to fall. Two of the three defendants moved to be dismissed from this case because they had not existed at the time of the accident; the trial court never ruled on this motion. We construe the complaint to mean that the tiles were left near the house after the scaffold had already been erected there.

The defendants argue that the tiles did not proximately cause the plaintiff’s harm because they did not cause him to fall. Whether an act or omission is a proximate cause is a question of fact unless the answer is so clear that reasonable minds would agree on it unanimously. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 117 N.E.2d 74.) In Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380, 50 N.E.2d 497, 503, the court said,

“What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. [Citations.]”

The defendants cite four cases where persons fell into holes or onto objects; all four held that the places where the plaintiffs landed did not proximately cause the falls. (Carr v. Lee J. Behl Hotel Corp. (1944), 321 Ill. App. 432, 53 N.E.2d 295 (as plaintiff slipped in an icy alley he steadied himself against an unlatched door; the door opened and plaintiff fell down a stairway); Aikens v. George W. Clayton Trust Com. (1955), 132 Colo. 374, 288 P. 2d 349 (getting off a bus, plaintiff tripped on the sidewalk and landed on a metal guardrail); Barber v. John C. Kohler Co. (1968), 428 Pa. 219, 237 A.2d 224 (plaintiff fell 19 feet from a scaffold: 3 feet to ground level and 16 feet into a hole); Frisch v. Texas Co. (1950), 363 Pa. 619, 70 A.2d 290 (plaintiff slipped on a public sidewalk and fell into a grease pit).) Aikens and Frisch both observed, however, that the defendants could not have reasonably foreseen that these accidents would occur. We agree with the dissenters in Barber that the cause of the harm rather than the cause of the fall is the crucial question. We note that Illinois Pattern Jury Instructions, Civil, No. 15.01 (2d ed. 1971) defines “proximate cause” as a cause that “in natural or probable sequence, produced the injury complained of.”

We reject Carrs distinction between conditions and causes; in that case the court construed the unlatched door as a “condition.” Under this theory, one who only sets the stage for an accident is not liable when another person or source supplies the force that sets everything in motion. This analysis of proximate cause has been criticized, however, for exaggerating the passive nature of the condition. (Prosser, Torts §42, at 247-48 (4th ed. 1971).)

“So far as [the theory of causes and conditions] has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between ‘cause’ and ‘condition’ which is important, but the nature of the risk and the character of the intervening cause.” Prosser, Torts §42, at 248 (4th ed. 1971).

The defendants support their position by arguing that they did not owe the plaintiff a duty of due care. This question of law (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307) turns on the foreseeability and likelihood of the accident as well as the costs and consequences of • making the defendant guard against it. (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231, 233.) The accident here was foreseeable; the events were not unusual or freakish. A party has the duty to prevent only reasonably foreseeable occurrences. In Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, an auto collision threw the plaintiff, a passenger in one of the cars, 30 feet onto a parkway, where one of his legs was impaled by a municipal drain pipé sticking out of the ground. As a result of this the leg had to be amputated. The court held that the “remote possibility of the occurrence did not give rise to a legal duty on the part of the Village to the plaintiff to provide against his injury.” (56 Ill. 2d 372, 377-78, 308 N.E.2d 617, 620.) The plaintiff’s accident here was not so improbable, for falls from scaffolds are not uncommon events. Imposing this duty on the defendants and others who occupy similar roles is reasonable. The costs and consequences of this duty are slight, for we see no great burden in requiring the defendants to observe due care in storing or discarding their materials. Whether the defendants have fulfilled this duty to the plaintiff remains to be adjudicated.

Reversed and remanded.

GREEN, P. J., and MILLS, J., concur.


author: PRESIDING JUSTICE TRAPP

text:
    TERESA R. ZAAYER et al., Plaintiffs, v. MICHAEL D. AXEL et al., Defendants-Appellees.—(TOMMIE J. EDWARDS, Plaintiff-Appellant.)
    Fourth District
    No. 17169
    Opinion filed December 10, 1981.
    Gregory Lietz, of Hutton, Laury, Hesser & Lietz, of Danville, for appellant.
    Moore, Nelson & Stipp, of Hoopeston (William E. Nelson, of counsel), for appellees.
   PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, Tommie Edwards, appeals the order of the trial court which dismissed her complaint for personal injuries on defendants’ motion pursuant to section 48(1) (e) of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 48(1) (e)) for failure to bring action within two years after the date of injury as required by section 14 of “An Act in regard to limitations” (111. Rev. Stat. 1979, ch. 83, par. 15).

The complaint was filed approximately two years and 10 months after the injury. In opposition to defendants’ motion, plaintiff filed an affidavit alleging that defendants’ insurance agent lulled plaintiff into a false sense of security that the claim would be paid without suit, and sought to estop the defendants from asserting the statute of limitations as a bar to her action. Defendants filed no counteraffidavit in opposition, but after a hearing on defendants’ motion, plaintiff’s complaint was dismissed with prejudice. This appeal was brought by plaintiff under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

She contends that due to the conduct of the defendants’ agent during the two-year period, plaintiff was led to believe that her claim would be settled and that the defendants should be estopped to raise the statute of limitations. Defendants argue that there was an insufficient inducement for plaintiff to forego suit, and that even if there was an inducement, it ended six months prior to the running of the statute of limitations.

Since defendants filed no counteraffidavit prior to the hearing on their motion to dismiss, the facts stated in plaintiff’s affidavit will be taken as true. (Devlin v. Wantroba (1966), 72 Ill. App. 2d 383, 385, 218 N.E.2d 496, 497; Suing v. Cation (1970), 118 Ill. App. 2d 468, 470, 254 N.E.2d 806, 808.) Likewise, on appeal all facts well pleaded in the complaint will be taken as true. Haley v. Merit Chevrolet, Inc. (1966), 67 Ill. App. 2d 19, 214 N.E.2d 347.

On March 14, 1978, plaintiff was a passenger in a car driven by her daughter, Teresa Zaayer. They had stopped for a school bus discharging students. Plaintiff’s vehicle was struck in the rear by Michael Axel, co-defendant and agent of defendant Paul Casket Company, Inc. In the affidavit filed by plaintiff, she alleged that on April 3, 1978, the claims adjuster for defendants’ insurance carrier, Continental Insurance Co., Robert Lucas, contacted her about the collision and the injury, requesting plaintiff to complete forms relating to the damaged automobile. They were completed by plaintiff and her husband, owner of the vehicle, and returned to the insurance company. On April 24,1978, plaintiff received a letter from Continental Insurance Co. and a draft in the amount of $1,376 for damage to the automobile. In the letter to plaintiff was a note written by agent Lucas which stated: “I will wait until Mrs. Edwards is released from Dr. McAskill and then I will issue a draft when we receive the final bill.” From March to September of 1978, agent Lucas called plaintiff every month to inquire as to her condition. From September 1978 to September 1979, the adjuster called approximately every one to three months. During these conversations, Lucas advised plaintiff to send all of her medical bills to him, and on occasion discussed the possibility of settlement, which plaintiff refused to do until she was released from the doctor’s care. In a phone conversation in December of 1978, Lucas offered $500 in settlement in addition to paying all of plaintiff’s medical bills. The last direct communication between the plaintiff and the defendants’ insurance company occurred in September of 1979, six months prior to the running of the statute of limitations. Plaintiff, in her affidavit, alleges that all medical bills she received were sent to the defendants’ insurance company, and argues that while no direct communication occurred for the final six-month period, her actions in forwarding these bills during the final period is sufficient continued communication to support her estoppel claim. The record does not disclose any rejection of the bills by Lucas.

Plaintiff’s personal injury claim was barred by the statute of limitations on March 14, 1980, and she was released from Dr. McAskill’s care in October of 1980. In October, plaintiff called agent Lucas to discuss settlement, but he informed her, for the first time, that her claim was barred by the statute of limitations. Official rejection of plaintiff’s claim came from the company in December of 1980, and plaintiff’s suit was filed on January 14,1981.

Plaintiff, in her arguments before this court, urges that defendants be estopped from claiming the bar of limitations, since defendants’ insurance agent lulled her into a false sense of security that her claim would be paid. Defendants maintain that there was insufficient conduct to create an inducement for delay, and even if there was, the inducement for plaintiff’s forbearance of suit ended in September of 1979, the date the last direct communication between plaintiff and defendant occurred.

The trial court’s written order found that:

“The conduct of the defendants or of the agent of their liability insurance carrier as a matter of law was not such as to lull the plaintiff, Tommie J. Edwards, into a false sense of security and thereby to cause her to delay or waive the assertions of her rights to her damages.”

The issue confronting us in the resolution of plaintiff’s claim revolves upon an inquiry into the conduct of the defendants’ insurance company and the reasonableness of plaintiff’s belief that suit would be unnecessary to vindicate her rights. In Dickirson v. Pacific Mutual Life Insurance Co. (1925), 319 Ill. 311, 150 N.E. 256, the supreme court, in considering the issue before us, stated the standard for determining whether the doctrine of estoppel would prevent a party from raising the statute of limitations as:

“The rule in this State and elsewhere, pertaining to waiver in a case of this kind, requires that the conduct of the party against whom such a waiver is claimed be such as to cause the other party to change his position by lulling him into a false security, thereby causing him to delay or waive the assertion of his rights to his damage. Negotiations for an adjustment of a claim which do not so justify the claimant in delaying action cannot estop the insurer from insisting upon a strict compliance with the conditions of the limitation. It is necessary and proper that claims of this character be investigated, and the fact that the insurer negotiates with the claimant is in nowise condúct amounting to a waiver by estoppel unless there is contained in the negotiation that which is calculated to lull the claimant into a false security. [Citations.]” (319 Ill. 311, 318, 150 N.E. 256, 259.)

In Dickirson, the plaintiff was injured by a board which hit his left eye allegedly resulting in a cataract. The plaintiff submitted a claim to his insurance company, which refused to make payment contending that the cause of the cataract was senility and not the trauma. Plaintiff brought suit against the insurance company after the statute of limitations had run. The supreme court ruled that plaintiff’s suit was barred, and that the defendant’s conduct did not amount to conduct sufficient to create an estoppel. In Dickirson, the insurance company had been consistent in the refusal to recognize the validity of plaintiff’s claim, made no offers or payments towards settlement, made no statements or other representations, and in short did nothing which could reasonably be interpreted as lulling the plaintiff into a false sense of security.

Conduct sufficient to create a reasonable belief in the plaintiff that a claim will be paid may consist of numerous factors: (1) concession of liability by the insurer (Kinsey v. Thompson (1963), 44 Ill. App. 2d 304, 307, 194 N.E.2d 565, 567; Wells v. Lueber (1976), 43 Ill. App. 3d 973, 974, 358 N.E.2d 293, 294); (2) conduct or statements by the insurer encouraging delay (Jackson v. Hoover (1974), 24 Ill. App. 3d 358, 363, 321 N.E.2d 348, 352); (3) payments by the insurer during the period of negotiations (Flagler v. Wessman (1970), 130 Ill. App. 2d 491, 493-94, 263 N.E.2d 630, 631-32); and (4) plaintiff’s awareness of the statute of limitations, its running and effect, and whether plaintiff has retained counsel to protect plaintiff’s interests (Hurtt v. Davidson (1980), 84 Ill. App. 3d 681, 683, 406 N.E.2d 90, 92; D’Urso v. Wildheim (1976), 37 Ill. App. 3d 835, 839, 347 N.E.2d 463, 466). This list is not exhaustive, but merely enumerates the factual circumstances previously considered by the courts of this State in evaluating claims of estoppel to plead the statute of limitations. See Hurtt.

In Kinsey, this court was confronted with a similar claim that the defendant should be estopped to plead the statute of limitations. In that case, plaintiff’s claim for personal injuries was negotiated with the plaintiff’s attorney during the two-year period before the statute of limitations and after the statute had run. The adjuster conducted numerous settlement negotiations with plaintiff, and conceded that settlement must contemplate a substantial payment. The adjuster, during this period, had requested tax returns, other proof of loss of earnings, and had arranged for plaintiff to be examined by a physician of the insurance company’s choice. Liability was conceded by the adjuster, with the only dispute being the amount to be paid. This court held that in view of the totality of representations made by the defendant’s insurer, i.e., that liability was conceded, negotiations continued right up to and after the two-year period, and the only dispute being as to the amount of final settlement, sufficient evidence was presented to raise a question of fact as to whether the defendant’s agent lulled plaintiff into a false sense of security. 44 Ill. App. 2d 304, 307, 194 N.E.2d 565, 567.

As in Kinsey, defendants’ insurance agent Lucas began settlement negotiations with plaintiff immediately after the accident until six months prior to the expiration of the statute of limitations. While there was no express admission of liability, the payments were made not simply for plaintiff’s medical expenses, which do not constitute an admission of liability (111. Rev. Stat. 1979, ch. 51, par. 61), but defendants’ agent also submitted a draft to cover property damage to plaintiff’s automobile. Also, considering the facts as alleged in the affidavit regarding the circumstances surrounding the accident, the conclusion that defendants were negligent and hence liable seems inescapable. Plaintiff was also informed by the defendants’ agent that settlement would await plaintiff’s release from her physician’s care which release ultimately occurred after the statute of limitations expired. The settlement negotiations continued until September of 1979, six months prior to the statute of limitations expiration, and during these negotiations settlement was discussed numerous times. In a telephone conversation in December of 1978, Lucas offered to pay all of plaintiff’s medical bills when plaintiff was released and offered $500 in settlement.

Defendants argue that during a period of six months prior to the expiration of two years, there was no direct communication between plaintiff and Lucas, thus negating a conclusion that plaintiff was lulled into a false sense of security, and further argues that there was a reasonable time for filing her complaint.

Plaintiff’s affidavit, however, alleges that during this period she continued to submit medical bills to the insurer as she had been instructed by Lucas. While there is no allegation that the bills were paid, it is alleged that Lucas had stated that it was not the policy to make separate payments but that the bills would be paid upon her discharge from treatment. It was further alleged that at no time did Lucas alter his instructions about transmitting the bills. Defendants argue that this delay negates any conclusion that plaintiff was lulled into a false security, since the inducement for delay ended in sufficient time for filing suit.

Defendants cite Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267, 197 N.E.2d 860, in support of their argument. In Reat, plaintiff brought an action under the Federal Employer’s Liability Act for injuries sustained on August 1, 1955, during the course of employment. Plaintiff alleged that on August 1, 1955, he was injured by the negligence of a fellow employee and was sent to defendant’s doctor for examination. The doctor examined plaintiff, but told him he sustained no injury and returned plaintiff to the job. Plaintiff alleged that the doctor knew he had injuries but concealed it from him. Plaintiff worked for his employer until May 2, 1958, when he was discharged from employment because he was unable to work. On June 13, 1958, plaintiff discovered that the original injury did, in fact, cause severe damage and as a result he had to have his leg amputated. The statute of limitations expired on July 31, 1958, but plaintiff did not file suit until July 26, 1960. At no time did the employer ask plaintiff to refrain from filing suit, conduct negotiations, or in any way acknowledge the correctness of his claim. The court held that neither the employer’s silence nor the doctor’s negligence was conduct which would estop the defendant from claiming the bar of the statute of limitations. The court stated that even if the defendant’s conduct could be construed to amount to an estoppel situation, the inducement for not filing suit ended on either May 2,1958 (the day plaintiff was fired), or June 13,1958 (the day plaintiff learned the extent of his injuries). (47 Ill. App. 2d 267, 277, 197 N.E.2d 860, 866.) While defendants are correct in their assessment of the holding of the Reat case, that case is inapposite to the factual circumstances present here.

Here, there is nothing to indicate that the defendants revoked the prior inducement until October of 1980, five months after the statute of limitations had run. In Reat, it was apparent to the plaintiff that the inducement had ceased prior to the expiration of the statute of limitations. When defendants’ agent had previously made settlement offers, paid sums in settlement of the damages, and otherwise encourages an amicable settlement with plaintiff, the defendant will not be allowed to use the statute of limitations to shield his liability, absent an affirmative indication that the settlement offers are revoked in sufficient time for plaintiff to file suit. Compare Salloum Foods & Liquor, Inc. v. Parliament Insurance Co. (1979), 69 Ill. App. 3d 422, 388 N.E.2d 23; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223; Myers v. Centralia Cartage Co. (1981), 94 Ill. App. 3d 1139, 419 N.E.2d 465; and Hurtt v. Davidson (1980), 84 Ill. App. 3d 681, 406 N.E.2d 90.

We conclude that the words and conduct shown in the record disclose more than the investigation and negotiation customary in these transactions and the sum of the conduct shown was sufficient to raise an issue of fact as to whether plaintiff was reasonably induced to believe that her claim would be settled. Upon such conclusion we reverse.

The complaint requested a trial by jury, and the issue of the presence or absence of waiver of estoppel should be determined by a jury as the trier of fact. (Loughran v. A & M Moving & Storage Co. (1974), 17 Ill. App. 3d 119, 307 N.E.2d 794.) As in Kinsey v. Thompson (1963), 44 Ill. App. 2d 304, 194 N.E.2d 565; and Wells v. Lueber (1976), 43 Ill. App. 3d 973, 358 N.E.2d 293, we remand the cause to the circuit court with instructions that the issue of waiver or equitable estoppel be determined by a jury, prior to and separate from any trial upon questions of liability and damages.

The order of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with instructions.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL D. LENSER, Defendant-Appellant.
    Third District
    No. 80-168
    Opinion filed September 30, 1981.
    Rehearings denied January 4 and January 18, 1982.
    Modified opinion filed January 14, 1982.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of Ottawa, for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Upon defendant’s petition for rehearing, we have re-examined our initial opinion, and our revised opinion follows.

Following a jury trial in the circuit court of Rock Island County, Michael D. Lenser was convicted of murder. He was sentenced to a term of imprisonment of 36 years. The defendant stabbed to death Leo J. Vallejo on August 26, 1976, in Vallejo’s Rock Island, Illinois, apartment. Lenser confessed to the crime and repeated his inculpatory statements at the trial when he testified in his own behalf.

Prior to the stabbing, the defendant and the victim had been drinking at Augie’s Tavern in Rock Island. The bartender, Ed Kasenberg, testified that the defendant and Vallejo were in the tavern twice on August -25, 1979, once at 10 or 10:30 a.m. for lii hours, and returned again at 2 p.m. He testified that both men consumed 10 to 12 beers, and that, while Vallejo had trouble walking, the defendant did not appear to be drunk. Following this drinking spree the defendant and Vallejo again went to the latter’s apartment, where they spent the night. (Defendant and Vallejo had had a homosexual encounter the evening before and again the'next morning.) Defendant testified that he fell asleep in a chair in the living room and when he awoke his pants were down around his ankles. Thinking that Vallejo had performed a homosexual act upon him, he went to the kitchen, grabbed a knife, and stabbed the sleeping Vallejo in the abdomen.

Defendant’s first contention of error is that the trial court improperly admitted evidence of other crimes through the testimony of Ed Kasenberg. Kasenberg had testified that while they were in Augie’s there was trouble over the speed of service and the volume level of the juke box. Kasenberg stated that he told the pair to finish their beers and leave. The defendant then allegedly threatened Kasenberg with physical harm. Kasenberg then called the police. Defendant and Vallejo left shortly thereafter, voluntarily, and Kasenberg called the police again and told them not to come. The defendant objected generally to this portion of Kasenberg’s testimony, but did not specifically raise this issue by objection nor in his post-trial motion. Accordingly, the State argues that the issue has been waived on appeal. However, the defendant made an oral post-trial motion, and the State made no objection to the motion not being in writing. When the defendant makes a nonspecific oral motion for new trial which is not objected to by the State, the defendant is not precluded on appeal from raising any errors which might appear in the record, even though not specified in the oral post-trial motion. (People v. Whitehead (1966), 35 Ill. 2d 501, 221 N.E.2d 256.) Therefore we have considered the defendant’s claim of error on its merits. Subject to limited exceptions, evidence of other crimes and specific bad acts unrelated to the charge for which defendant is on trial is inadmissible because of the prejudicial effect upon the jury. People v. Smith (1976), 39 Ill. App. 3d 732, 350 N.E.2d 791.

The defendant argues that, while the conduct revealed by Kasenberg’s testimony may not constitute evidence of crimes, it is nonetheless evidence of the type of conduct that is prejudicial because it implies that the defendant is a bad man and that he probably, therefore, committed the crime in question. The trial judge, in overruling the defendant’s objection to admission of the testimony ascertained that the incident with Kasenberg occurred within several hours of the homicide. The trial judge thereafter stated as follows: “I would think the evidence is relevant to show the condition of the defendant at that time. This witness has already testified as to his opinion as to the intoxication of the defendant. I think any evidence along this line is relevant.”

The defendant urges that the testimony is not relevant to intent, which is an exception to the general rule of inadmissibility; and, since the testimony does not fit into any of the other exceptions recognized in Illinois case law — knowledge, motive, design, plan or identification — its admission would be reversible error. See People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 244.

As a general rule the trial judge has discretion in determining whether or not evidence is admissible at trial. The trial court’s determination will, however, be reversed on appeal if an abuse of discretion has been shown. Therefore, where evidence of the defendant’s specific bad acts is introduced in the State’s case in chief and is relevant to intent, the State’s need to introduce the evidence should be balanced against the possible prejudicial effect that such evidence would have on the jury. In the instant case, ample evidence was adduced to show that the defendant had been drinking heavily during the day prior to Vallejo’s death. Careful examination of the record reveals that the degree of the defendant’s intoxication was relevant to the element of criminal intent.

. The State had charged that the defendant had committed murder in that he, without lawful justification and with the intent to kill Vallejo, had stabbed Vallejo with a knife, thereby causing his death. (111. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1).) At trial, the defendant presented an intoxication defense, and in fact testified that he had blacked out from consuming so much alcohol during the afternoon prior to the crime. The jury was properly instructed that “[a]n intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”

Where, as here, a specific intent crime is charged and the element of intent can be negated by a sufficient showing of the defendant’s intoxication, then the facts and circumstances surrounding events occurring prior to the offense charged and bearing on the defendant’s intoxication are relevant to the State’s proof of intent. The incident related by Kasenberg evinces a certain belligerence and use of abusive language after prolonged drinking. The testimony had relevance to the foundation for Kasenberg’s opinion about whether or not the defendant was drunk. The defendant’s conduct was probative of the degree of impairment of his reasoning faculties resulting from consumption of alcohol within hours of the charged offense. Rather than tending merely to show the jury that the defendant was a bad man, the evidence tended to show that the defendant in Vallejo’s company had attained a certain degree of intoxication at a time and place sufficiently connected to the crime charged to be admissible at trial on the issue of intent.

Balancing the State’s need to define the defendant’s mental state at a time close to the crime against the potentially prejudicial effect of Kasenberg’s testimony on the jury, we do not find that the trial judge abused his discretion in overruling the defendant’s objection to its admission. Accordingly, the admission of this testimony at trial was not erroneous.

The second issue raised in this appeal is whether the defendant was denied a fair trial because of the prosecutor’s allegedly improper comments during closing arguments. The defendant has categorized the prosecutor’s allegedly improper comments into three groups, (1) misstating the evidence, (2) arguing that police reports were in the possession of defense counsel and were corroborative of police officers’ testimony, and (3) referring to the defendant as a liar. At the outset, we note the defendant failed to object to any of the claimed improper comments except in one instance. Though the defendant’s lack of objection would normally waive this issue on appeal, we will consider the issue, as it was presented by the oral post-trial motion as earlier indicated. However, we call attention to the fact that had the defendant more properly preserved the record by objecting during closing argument, the trial court could have minimized or even eliminated any alleged error by striking the objectionable comments and instructing the jury thereon. We further note that the defendant did not offer any instruction in an attempt to cure such alleged errors. We have reviewed the allegedly objectionable remarks of the prosecutor and considered applicability of the authorities cited to us and authorities otherwise, and determine, in light of the overwhelming evidence of guilt, that the error in those comments, if any, is harmless beyond a reasonable doubt.

As an alternative argument, defendant urges that we should review the allegedly improper comments of the prosecutor as plain error under Supreme Court Rule 615(a). However, we do not agree with the defendant that the prosecutor’s complained of comments rise to the level of plain error. “In order to warrant a reversal it should be shown that the statement or statements considering all the evidence of guilt was a material factor in the conviction and the verdict would have been otherwise if the statement hadn’t been made.” (People v. Simmons (1974), 21 Ill. App. 3d 310, 312, 315 N.E.2d 226, 228.) In the case before us the defendant confessed to the killing of Vallejo before the trial and, in substantial part, again confessed to the killing when he took the witness stand in his own defense. The alternative argument is without merit.

The third issue presented for our review is whether the jury instructions on the offenses of murder and voluntary manslaughter were improper. The defendant offered the Illinois Pattern Jury Instructions on murder and voluntary manslaughter. Both were given to the jury and the defendant now contends that the State had the burden of negating the element of a sudden and intense passion resulting from serious provocation, beyond a reasonable doubt as set forth in the elements of the offense of voluntary manslaughter in order to convict of murder. The defendant bases his argument upon the cases of Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, and Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. However we emphasize that it was the defendant that tendered the issues instructions on voluntary manslaughter and murder of which he now complains. Also, the defendant failed to tender an instruction embodying the law he now argues on appeal. We therefore reject the argument, as it is well settled that a defendant may not complain of defects in instructions which were given at his request. (People v. Riley (1964), 31 Ill. 2d 490, 202 N.E.2d 531.) This precise issue was also held to have been waived in People v. Foster (1976), 43 Ill. App. 3d 490, 356 N.E.2d 1288, under very analogous circumstances. We also believe that the limited exception to the waiver rule contained in Supreme Court Rule 451(c) is not applicable to the facts of this case because the alleged error is not a grave one requiring correction under the facts and circumstances of this case, nor is this a close case factually. People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027.

The final issue on appeal is whether the trial court imposed an excessive sentence. The argument of the defendant is that the trial court handed down the allegedly excessive sentence of 36 years in the belief that the defendant’s conduct was brutal and heinous. This argument is based upon the following statement made by the trial judge during sentencing:

“One other question, I think, which I was faced with in preparing for this hearing today, was the question of what the appropriate penalty would be. It is very clear that Mr. Lenser does not fall into any of the classifications under Subsec. (b) of the Murder Act which could provide for a mandatory life sentence; but there is a question whether this murder was accompanied by exceptionally brutal or heinous behavior. I don’t think that it was that serious in terms of requiring that a term of natural life imprisonment be required; so therefore, the Court will find that it does not fall within that category; and the penalty will be within the range of 20 to 40 years, as both of the gentlemen have argued to the Court at this time.”

The statement, read in context, does not support the defense position. The language is clear and indicates that the trial court did not find that Lenser’s actions in perpetrating the crime to be brutal and heinous. The statement is a reference to section 5 — 8—1(a)(1) of the Unified Code of Corrections (111. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1)), which provides that the term of imprisonment for murder shall be from 20 to 40 years unless the court finds that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. The trial court obviously viewed the actions of defendant as serious, but not necessarily brutal and heinous.

Lastly, the defendant has filed a letter with exhibits attached with this court stating a disagreement with his appointed appellate counsel on other issues the defendant wished presented to us. Subsequently, defense counsel filed a motion to withdraw which we have denied. We find the additional issues raised by defendant in his pro se filing to be utterly without merit, and therefore the same will not be addressed in this opinion.

For the reasons stated, the judgment of conviction and the sentence imposed thereof by the circuit court of Rock Island County are affirmed.

Judgment affirmed.

SCOTT, P. J., and ALLOY, J., concur.

       The one comment that was objected to concerned a statement by the prosecutor that after the stabbing of the victim the defendant burned his clothes. Following the objection the State corrected its statement by immediately confessing the error and stating “ ‘I hide them.’ Excuse me! ‘I go and hide my clothes.’ ” The error in misstating the evidence objected to was rather obviously inadvertent and was immediately corrected, thus undoing any harm the comment might have caused.


author: JUSTICE ALLOY

text:
    JOHN H. PETERSON, Plaintiff-Appellee, v. DOUGLAS R. PRINCE, Defendant-Appellant.
    Third District
    No. 81-229
    Opinion filed December 22, 1981.
    Rehearing denied January 18, 1982.

      John S. Noble, James D. Skaar, and Charles J. Myler, all of Ruddy, Myler, Ruddy & Fabian, of Aurora, for appellant.
    Michael S. Guilfoyle, of Mendota, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff John Peterson brought the instant action against defendant Douglas Prince for an accounting between the two based upon the existence of an alleged partnership. The partnership allegedly entered into by them involved the raising of cattle. Defendant Prince admitted a partnership with respect to one herd of cattle, that existing at the time the parties formed the partnership in 1975. However, Prince denied that a second herd of cattle, the Pinzgauer cattle, were owned in partnership with Peterson. The Pinzgauer herd was purchased in the late spring of 1976. The trial court heard the evidence, much of which was contradictory, and found that a partnership existed with respect to both herds of cattle. After so concluding, by order of March 31, 1980, the court gave each party 90 days in which to submit a written accounting for the partnership, and an additional 90 days in which to file objections and respond to the other party’s accounting. On July 1, 1980, Peterson submitted his written accounting with supporting documentation. The defense submitted nothing, neither accounting nor objections. Then, on October 7,1980, a hearing was set on the accounting question, the hearing to be held on December 29, 1980. Notice was given to both parties. Defendant submitted nothing prior to the hearing.

On December 29, 1980, the date set for hearing, neither defendant nor defense counsel was present at the hearing. The court proceeded without them, hearing plaintiff Peterson’s testimony and evidence with respect to the partnership expenses incurred by him and concerning the value of the Pinzgauer cattle when the partnership ended. Based upon the evidence produced at the hearing, the court entered judgment for Peterson in the amount of $47,607.21, plus interest and costs of suit. Thereafter, on the same date, a motion to vacate the judgment was filed by defendant Prince’s counsel, in which he alleged that he was tied up in another court on legal business at the time of the hearing. A hearing on the defense motion to vacate was held the following day, December 30,1980. At the hearing, the court heard defense counsel’s excuses for his failure to appear. The substance of his argument was that he was engaged in the courthouse, in a separate courtroom, on other matters the previous day. While acknowledging that counsel may have had other business that day, the court emphasized to him the problems with the case. The court therein noted that the defendant was not present for the hearing, and, more significantly, that no accounting had been filed by the defense, despite three months time in which to file such accounting. The court inquired of defense counsel what defense counsel could have done, in light of the absence of the defendant and the lack of an accounting from him. Defense counsel stated that he could have cross-examined the plaintiff Peterson, and that he may have been able to show that his accounting was not complete and fair. On the question of the defendant’s absence and his failure to submit an accounting, the defense counsel stated:

“I would also like to state for the record that we have contacted our client, Dr. Prince, on numerous occasions with respect to the accounting; almost on a weekly basis repeatedly asking him to do this accounting. Telling him that there was this time limit imposed by the court. We even contacted him frequently after the time period had elapsed and we did not receive the accounting until actually just a short time ago.”

The court was understandably upset with defendant and defense counsel. Almost nine months had passed since the court’s order finding the existence of the partnership. Five months had passed since the time limit set for submitting an accounting, yet nothing had been submitted by the defendant. Notice of the December hearing had been given to the defense in early October, two months in advance of the hearing. Yet defendant did not appear, nor was an accounting filed or objections to the plaintiff’s accounting. Nevertheless, despite the history of the defendant’s disrespect for the court’s scheduling, the court agreed to allow defense counsel to participate in the accounting hearing. At the conclusion of the December 30 hearing on the motion to vacate, the trial court, with plaintiff counsel’s acquiescence, agreed to vacate the judgment, providing that a new hearing on the accounting be held three days hence, on January 2, 1981. No objection was made by defense counsel. Plaintiff’s counsel agreed to have the plaintiff appear for a second time, in order to testify to the accounting, so as to permit cross-examination by defense counsel.

Three days later, on January 2, 1981, when the case was again called for a hearing on the accounting question, defense counsel requested a continuance, due to the continued absence of Dr. Prince. The defendant Prince had not returned from a trip to Canada and was thereby unavailable for testimony. The trial court, noting the complete lack of diligence on the part of the defendant from the end of the trial nine months previously, and also noting the imposition upon the plaintiff of having to be ready for hearing three times, denied the request for continuance. With that ruling, defense counsel made an oral motion to permit the defendant to testify at the conclusion of plaintiff’s case. The court indicated that it would permit the defendant Prince to testify, if he were present in court that day to testify. The court indicated that he would not permit the defendant to testify upon his return from Canada at some future time. He denied the motion, quite properly viewing it as merely another attempt to get a continuance. After these procedural hagglings, plaintiff Peterson again took the stand, testified to the expenses and profits, with supporting evidence. Defense counsel made no attempt to attack or challenge Peterson’s testimony with regard to the accounting. He asked one question of the plaintiff, that being what the total amount claimed was. He made no argument to the court concerning the plaintiff’s testimony at the accounting, and in no way disputed or challenged the conclusions of the plaintiff as to the amount of the accounting. Thereupon, the court entered judgment for the plaintiff Peterson, based upon the uncontradicted and unchallenged evidence at the hearing, in the amount of $47,607.21, plus interest and costs.

Within 30 days of that judgment order, defense counsel filed another motion to vacate the judgment. A hearing was held on that motion, the basic thrust of which was that the defendant was not allowed to testify. The motion was denied.

From the denial of his motion and from the judgment issued, the defendant then prosecuted the instant appeal. He argues that the court erred in concluding that a partnership existed with respect to the Pinzgauer cattle. Furthermore, he argues that the court abused its discretion in denying the defendant’s second motion to vacate. In support thereof, the defense now contends that the judgment entered was contrary to the evidence and contrary to substantial justice between the parties.

The first issue is whether the court’s finding that a partnership existed is contrary to the manifest weight of the evidence and must be reversed. It is established that the existence of a partnership is normally a question of fact for the fact-finder, and its decision will not be disturbed unless manifestly against the weight of the evidence. (Koestner v. Wease & Koestner Jewelers, Inc. (1978), 63 Ill. App. 3d 1047, 381 N.E.2d 11.) The exixtence of a partnership must be clearly shown, but that question is one of the intention of the parties, to be gathered from an examination of the facts and circumstances of their dealings. In the instant case, we have carefully scrutinized the evidence in the record and find that the court’s determination that a partnership existed with respect to the Pinzgauer cattle is supported therein. It is not necessary to go at length into that evidence, much of which was contradictory. We made note that it is undisputed that they had a partnership in 1975 with respect to the stock cattle. Prince owned the farm the cattle were kept on while Peterson took care of the cattle. It was also established that the Pinzgauer cattle were purchased in the late spring of 1976 from Prince’s brother. Both men went to Tennessee to look over some Pinzgauer cattle. Both men were present during discussions with Prince’s brother concerning the purchase of the Pinzgauers. Additionally, both men signed a promissory note to obtain a loan to cover the purchase price of the cattle. Part of the loan was used to pay off the existing partnership debt, while the other part of the loan went into a joint checking account. From this account the purchase price of the Pinzgauer cattle was paid and expense checks were written by both Peterson and Prince. Additionally, the previously owned partnership cattle were part of the collateral for the new loan, and when those cattle were subsequently sold, the proceeds from the sale went into the joint checking account on the Pinzgauer cattle. Aside from this evidence, supported by documentation, there was Peterson’s own testimony that he and Prince agreed to buy the Pinzgauer cattle in partnership, with profits and expenses to be split 50/50. The plaintiff agreed to take care of the cattle while the defendant Prince supplied the farm. There was also testimony from several witnesses who indicated that Prince had informed them that he and Peterson had a partnership on the Pinzgauer cattle. It is true, however, that Prince denied such statements and denied any partnership was intended. He also offered evidence to indicate that he spent his own money to pay some expenses and also to reimburse Peterson for some expenses. It was also established that the cattle were registered in his name only.

What is clear from the evidence on the question of the existence of the partnership is that credibility questions and contradictory evidence abounded. As has been repeatedly noted, in such cases the trial court is in the superior position to make determinations on the evidence. Only where his resolution of the questions is manifestly against the weight of the evidence will a reviewing court overturn his findings. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.) In the instant case, we find no sufficient basis to overturn the court’s finding that the parties intended to create a partnership with respect to the ownership of the Pinzgauer cattle.

The defense now seeks also to reverse the judgment award of $47,607.21, which was entered by the trial court based upon the evidence presented at the hearing on the accounting. We do not disturb that judgment. It is fully consistent with the evidence produced at the hearing, and while certain trial evidence was arguably contradictory to the evidence presented by plaintiff, such evidence was not produced or argued at the hearing on the accounting, the purpose of which was to fix the award as to the accounting between the partners. Neither did defense counsel, at the hearing, challenge, question, or impeach plaintiff’s evidence as to the accounting. No argument was made that the evidence was incomplete, fraudulent, or inconsistent with other evidence produced at trial. Having completely failed to object or raise any argument with respect to the correctness of plaintiff’s accounting at the trial hearings, the defense contentions on appeal have been waived. Defense counsel was given a chance to attack and challenge the plaintiff’s evidence, but his cross-examination showed no error in that evidence.

Even if there existed some inconsistency between the trial evidence and the evidence produced by the plaintiff at the hearing for accounting, we find no basis in the record for a reversal of the judgment award and a rehearing, so that the defendant would be permitted to present his own accounting evidence or do a better job of challenging the plaintiff’s evidence. Justice does not require such a result. Plantaric v. Michaels (1981), 98 Ill. App. 3d 154, 424 N.E.2d 64; People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 270 N.E.2d 841; Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 398 N.E.2d 1114.

In this case, the defendant and his counsel’s total lack of diligence with respect to the accounting is amply shown in the record. There is no need to repeat the facts again, as they have been set forth previously in the opinion. Despite repeated efforts by the court, opposing counsel, and even his own counsel, the defendant Prince did not see fit to produce any accounting for a period of 10 months. Nor did he see fit to appear at the scheduled hearing, despite lengthy prior notice. When the court and opposing counsel graciously permitted the judgment to be vacated, defendant did not appear for the subsequently scheduled hearing. Furthermore, at the second accounting hearing, on January 2, 1981, defense counsel was present, and he was permitted to cross-examine the plaintiff as to his evidence. That he perfunctorily performed that examination, or that he failed to dispute or challenge the evidence in any way, is not the fault of plaintiff or the court. It must be emphasized that this was not a default judgment or a judgment arising from an ex parte hearing.

Plaintiff has fully complied with all court orders and scheduling and has been more than considerate in attempting to give the defendant his day in court in which to contest the judgment award. We find no abuse of discretion in the trial court’s action.

For the reasons stated in this opinion, the decision of the Circuit Court of La Salle County is affirmed.

Affirmed.

SCOTT, P. J., and HEIPLE, J., concur.

Addendum to opinion in case no. 81-229:

It should be especially noted that counsel on appeal, Ruddy, Myler, Ruddy & Fabian (Charles J. Myler and John S. Noble) were counsel for appellant solely on appeal and were not involved in any manner with the handling of the foregoing case in the trial court in connection with any of the procedures or matters referred to in the opinion with respect to procedures in the trial court and were not being referred to in the opinion with respect to any such procedures in the trial court.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. LORA J. SMITH, Respondent-Appellant.
    Third District
    No. 81-486
    Opinion filed December 3, 1981.

      Jack C. Vieley, of Peoria, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Respondent Lora J. Smith was called to testify before the grand jury of Peoria County. Although she had previously received a grant of immunity pursuant to section 106 — 1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1979, ch. 38, par. 106 — 1), respondent refused to answer certain questions on the ground that her answers might tend to incriminate her under Federal law. In response to the State’s subsequent petition for order to show cause, respondent, by affidavit, added the additional ground of potential incrimination under the laws of five States. After a hearing on the merits of the petition, the circuit court of Peoria County found respondent in contempt of court and ordered her confinement in the county jail until she purged herself by testifying. On appeal, she contends the court erred in denying her a jury trial and in finding her in contempt.

Considering first the mode of trial, we note the right to a jury trial is afforded in cases involving serious criminal contempt but not in cases involving civil contempt. (County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 319 N.E.2d 472.) Criminal contempts include acts in disrespect of the court or its process and those tending to bring the court into disrepute or obstruct the administration of justice, while civil con-tempts arise by failing to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court. (People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736.) A further guide is the purpose of any imprisonment. Imprisonment for criminal contempt is inflicted as punishment for that which has been done, while imprisonment for civil contempt is usually coercive. (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 173 N.E.2d 417.) As one court has stated, the civil contemnor “carries the key of his prison in his own pocket.” In re Nevitt (8th Cir. 1902), 117 F. 448, cited in People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 410, 173 N.E.2d 417.

In the case at bar, respondent was sentenced to an indefinite term in the county jail for her refusal to testify before the grand jury. Her incarceration was to continue until that time when she purged her contempt by testifying. The purpose of imprisonment appears to be to coerce respondent’s testimony, and she does “carry the key” to the jail. Under these circumstances, we find the alleged contempt to be civil. Therefore, respondent was not entitled to a jury trial.

Considering second the finding of contempt, we note that respondent’s contentions raise two issues. The first is whether her answers to the grand jury might tend to incriminate her under Federal law; the second, whether the answers might tend to incriminate her under the law of another State. Before turning to these questions, we consider the principles which must govern our decision today.

A grant of immunity seeks an accommodation between the right of the government to compel testimony and the constitutional privilege against self-incrimination. (Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.) As such an accommodation, it has long been recognized by the Supreme Court (Counselman v. Hitchcock (1892), 142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195, disapproved on other grounds in Kastigar v. United States) and the supreme court of this State (People v. Boyle (1924), 312 Ill.586) that in order for a grant of immunity to be adequate, the scope of such immunity must be co-extensive with the scope of that constitutional privilege. This guiding principle has been frequently reiterated. (See Baxter v. Palmigiano (1976), 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551; Kasfigart v. United States; Murphy v. Waterfront Com. (1964), 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594; Illinois Crime Investigating Com. v. Sarno (1970), 45 Ill. 2d 473, 259 N.E.2d 267, cert. granted (1971), 401 U.S. 935, 28 L. Ed. 2d 214, 91 S. Ct. 918, writ dismissed (1972), 406 U.S. 482, 32 L. Ed. 2d 243, 92 S. Ct. 1677; People v. Walker (1963) , 28 Ill. 2d 585, 192 N.E.2d 819; People v. Rockola (1931), 346 Ill. 27, 178 N.E. 284.) A second principle here involved is that the fifth amendment privilege against self-incrimination is applicable to the States under the due process clause of the fourteenth amendment, and the same standards must be employed in determining whether an individual’s silence is justified on the basis of the privilege in Federal and State tribunals. Malloy v. Hogan (1964) , 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489.

Turning now to the question of whether respondent’s answers might tend to incriminate her under Federal law, we note the factual similarity of this cause to that in Murphy v. Waterfront Com. (1964), 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594. Having been granted immunity from prosecution under the laws of New York and New Jersey, the Murphy witnesses continued their refusal to testify on the ground that their answers might tend to incriminate them under Federal law and were held in civil contempt. Faced with the same question as the Federal issue herein, the Murphy court undertook an examination of the policies and purposes of the privilege against self-incrimination and concluded:

“[W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.
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Returning to the concept of a grant of immunity as an accommodation, it can be seen that, under the Murphy holding, the scope of respondent’s Federal immunity is coextensive with'that of her constitutional privilege. As the Supreme Court has explained:

“The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. 0 * * [The immunity] statute, which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties.” (Kastigar v. United States (1972), 406 U.S. 441, 461, 32 L. Ed. 2d 212, 226, 92 S. Ct. 1653, 1665.)

This being the case, respondent was not entitled to claim her privilege against self-incrimination on the basis of violation of Federal law. No error was committed by the trial court in rejecting this claim of the respondent.

This brings us to the respondent’s claim that the grant of immunity did not extend to potential prosecution in other States and consequently this potential prosecution justified her refusal to testify. As may be noted from the statement of facts, the respondent did not voice this objection during the grand jury proceeding when she declined to testify but raised it later in the contempt proceeding. Her failure to raise the objection at the earlier proceeding may well constitute a waiver of the issue. However, the issue was raised in and rejected by the trial court, so its discussion in this opinion would seem appropriate.

We believe the trial court did not err when it declined to excuse the respondent’s refusal to testify on grounds of potential prosecution in other States. To adopt the position of the respondent would require us to revitalize the rejected doctrine of United States v. Murdock (1933), 290 U.S. 389, 78 L. Ed. 381, 54 S. Ct. 223, and its companion cases. This doctrine, based on the concept of independent separate sovereignties, was rejected in the Murphy case as it applied to Federal-State grants of immunity. The logic of holding that Federal fifth amendment applications to the States mean that a grant of immunity by either State or Federal authority prevented prosecution by the other is equally applicable to similar relations between the States. Even though there may not now be any precedents dealing directly with this issue, the obligation of a sister State to respect the immunity from prosecution granted by another State is a matter of Federal constitutional law and not merely a matter of courtesy to be granted or withheld.

There are several practical considerations which offer some support for the notion that immunity granted by one State should preclude prosecution by another State. Where there may be prosecutions for violations of either Federal or State laws, this usually means the conduct took place across State lines and in fact may well have violated a Federal law as well as that of several States. If a State’s grant of immunity was not broad enough to cover immunity in a sister State, then in every such case prosecutions would have to be initiated under the Federal law since under the respondent’s theory Federal granted immunity would be the only immunity broad enough to protect against all potential prosecutions. We do not believe the Murphy case countenances any such proposition.

Furthermore, if potential prosecution by a sister State were an appropriate reason for limiting the shield of immunity granted by a State, some effort would have to be undertaken to determine what laws of a sister State were subject to potential violation and prosecution. This in turn would require some evaluation of the effect of the questions and answers a function usually to be avoided in fifth amendment self-incriminatory cases. In passing we would also note that if conduct involved possible multistate criminal activities, the practical problems of securing grants of immunity from each State having some possible connection with the conduct would be immeasurable, without any significant benefits either to the States or to persons charged with criminal conduct. By holding as we do that the immunity granted by one State is sufficient to preclude prosecution by another State, we avoid such difficulties and harmonize the interest between the States to those between the Federal government and the States.

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

Judgment affirmed.

SCOTT, P. J., and BARRY, J., concur.

       Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Murphy v. Waterfront Com. (1964), 378 U.S. 52, 79, 12 L. Ed. 2d 678, 695, 84 S. Ct. 1594, 1609.