author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY T. JOHNSON, Defendant-Appellant.
    Second District
    No. 82 — 987
    Opinion filed April 11, 1984.

      Marcia L. Smith, of Michael L. Pritzker, Ltd., of Chicago, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Ricky T. Johnson, was found guilty of unlawful delivery of 30 grams or more of a controlled substance containing cocaine (Ill. Rev. Stat. 1981, ch. bQVz, par. 1401(a)(2)) by a jury in the circuit court of Winnebago County, and the trial court sentenced him to six years in the Department of Corrections.

He appeals raising three issues: (1) whether the conduct of the law enforcement officers was so outrageous that the defendant’s constitutional right to due process of law was violated; (2) whether the trial court erred in failing to instruct the jury on the defendant’s defense of outrageous government conduct; and (3) whether the trial court erred in limiting the defendant’s cross-examination of special agent LaBarge.

The thrust of the defendant’s arguments are that special agent LaBarge of the Illinois Department of Law Enforcement used a house of prostitution as his “front” and a prostitute and a pimp actively engaged in prostitution in order to engage individuals in the commission of offenses, thus abusing governmental power.

The evidence at trial disclosed the following: Joseph J. LaBarge, a special agent of the Illinois Department of Law Enforcement, with responsibilities in the undercover surveillance of narcotics traffic, testified that he first met the defendant on February 3, 1981, while he was working in an undercover role out of the Joliet area in Will County. In that capacity, LaBarge related that he and his supervisor, Carlos Hevia, went to a private “swingers” sex club in Aurora, Illinois. He admitted that he had been there on a number of prior occasions. The State’s objection was sustained when LaBarge was asked who invited him. Officer LaBarge stated that he did not know if there was a membership or entry fee for this “club” because he was always allowed to enter without paying. LaBarge was admitted to the club by a man known as Frankie Herbert who LaBarge knew managed the club. Objections by the State to questions regarding LaBarge’s prior relationship with Frankie Herbert and Herbert’s prior drug sales to LaBarge were sustained.

LaBarge described the club as a two-story dwelling with a bar and stereo on the first floor and four bedrooms containing nothing other than mattresses on the second. LaBarge stated that after their arrival on February 3, 1981, he and Hevia went upstairs with Herbert’s girl friend, Rhonda. In spite of their tousled and disheveled appearance when they returned downstairs, LaBarge claimed that they did not have any sexual relations with Rhonda but wanted to appear as though he had. LaBarge stated that he, Hevia and Rhonda were waiting for the defendant to arrive. LaBarge was unclear as to who introduced the defendant to them, stating that it was either Frankie or Rhonda. LaBarge told the defendant that he was self-employed in the home remodeling business. LaBarge and the defendant had a short conversation on narcotics. LaBarge told the defendant that he wanted to buy a gram of cocaine.

LaBarge stated that later that night he took a gram of cocaine off a triple beam scale that was on a desk by the front door of the club. He did not pay any money for the cocaine. LaBarge stayed at the club after the defendant left. LaBarge noticed that the scale remained at the club.

LaBarge also stated that there was another person, Hugh Farrell, at the club that night when his conversation with the defendant took place. LaBarge stated that he had known of Hugh Farrell before that night. The State’s objections were sustained when counsel for the defense sought information regarding prior arrests of Farrell by Agent LaBarge.

Officer LaBarge testified that his next contact with the defendant occurred in the afternoon of April 1, 1981, when the defendant unexpectedly called the agent’s “undercover” telephone number at his Joliet office. The defendant asked LaBarge if he was still interested in buying “two tickets” which LaBarge understood to mean two ounces of cocaine. The defendant stated that the price was $2,000 per ounce. LaBarge accepted. Although LaBarge wanted the defendant to come to Will or Kane County, he agreed to meet the defendant the next day about 3 p.m. at a K mart shopping center in Rockford, Illinois.

LaBarge said that on April 2, 1981, he and his six special agents from Joliet arrived in Rockford shortly after 3 p.m. They went to the Cherry Valley Mall where they met with Detective Kennett of the DeKalb County sheriff’s office and deputies from the Winnebago County sheriff’s office and officers of the Rockford police department.

LaBarge drove to the K mart shopping center. He parked in the middle of the parking lot. The other police officers were scattered throughout the lot. After about 10 minutes, a man LaBarge identified as the defendant arrived in his car. The defendant pulled alongside LaBarge’s car and they discussed the transaction. The defendant wanted to leave the area but LaBarge did not want to go. Finally, La-Barge told the defendant that he had to check with some people because not all of the money was his.

LaBarge said he went into the K mart and met with special agent Earl Hernandez. LaBarge returned to his car and told the defendant he would follow him. The defendant told LaBarge that the “stuff” was in the defendant’s pickup truck at a body shop.

LaBarge stated that he followed the defendant’s car to the Keller Body Shop on Kishwaukee Street in Rockford. After parking their cars, the defendant pointed to a pickup truck and told LaBarge to go over to the truck and act like he was interested in purchasing it while the defendant got the keys. LaBarge went to the truck, opened the hood and looked inside. The defendant returned with the keys and told LaBarge to start the truck as though he was interested in it. He complied.

After LaBarge turned the engine off, he asked the defendant where the “stuff” was. The defendant replied that it was under the right floor mat. However, LaBarge could not find it when he picked up the mat. The defendant told the agent to slide over and he would show LaBarge where it was. LaBarge partially slid down the seat and the defendant got in the truck. The defendant pointed underneath the center section of the seat.

LaBarge testified that he reached under the seat and found two plastic bags. The two men sat up at that point to get out of the truck.

They were surrounded by police officers and the defendant was placed under arrest.

LaBarge said that there was $4,000 in official advance funds in the trunk of his car during the transaction. He identified the two plastic bags taken from the pickup truck, which had white powder in them, later identified as cocaine.

Richard Paulas, a forensic scientist with the Illinois Department of Law Enforcement, testified that People’s exhibit No. 1 contained cocaine. There was 27.6 grams in one bag and 27.9 in another.

Following the State’s case in chief, the defendant renewed his motion to suppress the evidence, which was denied. His motion for a directed verdict was denied.

The defendant testified on his own behalf. His presentation of the facts differed from LaBarge’s. The defendant admitted that he used cocaine. He knew Rhonda for about three or four years. She was a prostitute who worked out of the “swingers” club in Aurora. Rhonda had introduced the defendant to Frankie Herbert about three or four years ago. The defendant knew of the club through Herbert. He had been there on several occasions. The defendant saw people use cocaine at the club and he had also used cocaine there. He said he had been upstairs with Rhonda in the bedrooms.

The defendant said he never sold any drugs at the club. He went to the club on February 3, 1981, after Herbert called him. Herbert wanted the defendant to bring the registration papers on a dog which the defendant had sold to Herbert. Herbert told the defendant that Rhonda was free that night if he wanted any sexual activity. When the defendant arrived, Herbert took the papers and gave the defendant some money for them.

Herbert told the defendant that Rhonda was busy with someone. He asked the defendant for some cocaine for the man (LaBarge) upstairs with Rhonda. The defendant had about half a gram to a gram with him. The defendant gave the cocaine to Herbert but took no money for it. He said that Herbert would pay him back in kind. The defendant had done this before.

The defendant was then introduced to “Joe” (LaBarge) when La-Barge and Rhonda came downstairs. Rhonda had on a “nightie” and LaBarge had on jeans and shoes. The defendant and LaBarge had a conversation in which the defendant told LaBarge that he was in the car business. LaBarge expressed an interest in buying a truck. La-Barge took the defendant’s phone number but the defendant did not get LaBarge’s number. The defendant left the club.

According to the defendant, LaBarge called him on April 1, 1981, and asked about buying a truck. LaBarge also asked the defendant if he could get LaBarge two “tickets.” At first the defendant was not clear as to what he meant but then understood “tickets” to mean cocaine from further conversation. LaBarge wanted an ounce but the defendant did not know if he could obtain that much. He had only obtained grams in the past.

The defendant took LaBarge’s phone number in order to let La-Barge know if he could get an ounce. LaBarge told the defendant he would not pay more than $2,000 an ounce. The defendant called La-Barge in the afternoon and said he could get the cocaine. LaBarge wanted the defendant to drive down to the Aurora area with the truck and the cocaine. The defendant refused. LaBarge agreed to come to Rockford but wanted two ounces since he was traveling so far. When the defendant expressed doubts about obtaining it, La-Barge said he would have the money for two ounces.

The defendant said he called the person he got his cocaine from and arranged to obtain two ounces of cocaine. The defendant was going to get about two grams of cocaine for his own use for doing it. However, the defendant said he did not pick up the cocaine but someone put it in his truck. The defendant was told that it was ready for the deal. The defendant went to the truck and took a little bit of cocaine from each bag for himself.

In further testimony, the defendant explained meeting LaBarge at the K mart, going to the body shop to see the truck, pointing out where the cocaine was in the truck, and being arrested. This portion of the testimony did not substantially conflict with LaBarge’s.

On cross-examination, the defendant repeated many of the points he already made on direct. He emphasized the fact that he only handled the cocaine when he took his portion from the bags. The defendant said he did not use cocaine since he was arrested in April 1981.

The State called LaBarge in rebuttal. LaBarge said he did not call the defendant on April 1, 1981, but received a call from the defendant. LaBarge did not threaten the defendant to sell him cocaine. He did not discuss buying a truck with the defendant at the Aurora club on February 3, 1981. They discussed the possibility of LaBarge buying cocaine in the future, and the defendant said it was possible.

The State claims that the defendant has waived consideration of the first issue. The State points out that the defendant is arguing that the trial court erred in denying his motion for directed verdict at the close of the State’s case in chief. The State argues that because the defendant introduced evidence he has waived any appeal of the denial of the directed verdict. (People v. Taglia (1979), 76 Ill. App. 3d 199.) The State notes that the defendant’s motion was based on his argument that the State failed to prove delivery. The defendant also renewed his motion to suppress the evidence on the added ground that the evidence was seized as the result of outrageous government conduct.

The defendant’s motion for directed verdict alleged the failure of the State to establish delivery. The court denied that motion and the defendant does not raise the delivery issue on appeal. The defendant now claims a due process violation based on “outrageous conduct.” He presented this issue in a pretrial motion to dismiss, attempted to have the jury instructed on the issue, and presented it in his post-trial motion.

To dismiss the defendant’s argument on the basis of waiver would place form over substance. (People v. Taglia (1979), 76 Ill. App. 3d 199.) In substance the defendant has argued that the trial court erred in failing to vacate the verdict or grant a new trial. The issue is not waived.

The defendant raised the defense of entrapment during the trial. To establish entrapment the government must, for the purpose of obtaining evidence, originate the crime and induce the defendant to commit it; and the defendant must be an “innocent” person who would not have committed the crime had he not been induced. (People v. Marshall (1981), 101 Ill. App. 3d 244, 247.) The predisposition of the defendant as well as the government involvement must be considered. People v. Cross (1979), 77 Ill. 2d 396.

During the trial, the defendant tried to argue that his actions did not constitute “delivery.” The defendant could not deny the commission of the offense and at the same time claim entrapment. (People v. Arriaga (1981), 92 Ill. App. 3d 951.) Despite this fact, the court instructed the jury on entrapment. The jury rejected the entrapment defense and found the defendant guilty.

The defendant intertwines two related but distinct concepts in his argument for reversal. First, the defendant claims that there was entrapment as a matter of law (based on the law enforcement officers’ conduct) and, second, that the outrageous government conduct violated his right to due process of law. He intertwines the two throughout his argument in support of his claim for reversal based on outrageous government conduct. To the extent that the defendant argues that he was entrapped as a matter of law, we reject the claim.

The question of entrapment in a jury trial is one for the jury unless entrapment exists as a matter of law. People v. Tipton (1980), 78 Ill. 2d 477; People v. Gresham (1981), 96 Ill. App. 3d 581.

The supreme court in People v. Cross (1979), 77 Ill. 2d 396, rejected a per se rule that a conviction for the unlawful sale of narcotics could not stand when a police informer supplied the drugs. The supreme court pointed out that predisposition of the defendant to commit the crime must be considered. 77 Ill. 2d 396, 405.

In People v. Tipton (1980), 78 Ill. 2d 477, the supreme court reversed the appellate court which found that the defendant was entrapped as a matter of law. The supreme court reviewed the evidence presented to the jury and found no basis to set aside the verdict. The jury could have determined that the defendant was predisposed to commit the offense, thus rejecting the offense of entrapment notwithstanding the involvement of a narcotics agent and an informer. 78 Ill. 2d 477, 487.

In reviewing the entrapment defense in the instant case, the court is to determine all the defendant’s testimony in the light most favorable to him. (People v. Husted (1981), 97 Ill. App. 3d 160.) The defendant admitted using cocaine; he admitted giving some cocaine to the manager of the club in Aurora on the night he first met LaBarge; and he did not hesitate in agreeing with LaBarge to provide the cocaine requested, although he had reservations about securing the amount and traveling to meet LaBarge. The defendant was able to obtain the two ounces of cocaine from his “source.” He also took a small amount of the cocaine from each of the two bags that were going to LaBarge as part of the deal he made with his “source.”

There was sufficient evidence to support a jury finding that the defendant was predisposed to commit the offense. (People v. Tipton (1980), 78 Ill. 2d 477.) In fact, the defendant does not argue on appeal that he was not predisposed. Therefore, the defendant’s claim that there was entrapment as a matter of law must fail.

The second contention of the defendant is that the conduct of the law enforcement officers was so outrageous that his conviction cannot stand, notwithstanding his predisposition. Although the defendant describes the defense as the “entrapment-due process” defense, his claim that outrageous government conduct bars his conviction is a separate defense from entrapment.

The outrageous government conduct defense draws its breath from two United States Supreme Court opinions. While the entrapment defense was first recognized by the United States Supreme Court in Sorrells v. United States (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210, and again considered in Sherman v. United States (1958), 356 U.S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819, two subsequent opinions involving entrapment opened the way for the constitutional defense of outrageous government conduct.

The first case was United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637, where the defendant was convicted of having unlawfully manufactured and processed methamphetamine and having sold and delivered the drug. His defense was entrapment. The United States Court of Appeals for the Ninth Circuit reversed the conviction because an undercover agent supplied an essential chemical used to manufacture methamphetamine. The United States Supreme Court reversed.

The defendant argued in the Supreme Court that the level of the government agent’s involvement in the manufacture of methamphetamine was so high that criminal prosecution of the drug’s manufacture was a violation of due process. However, the Supreme Court found that the chemical supplied by the agent not only could have been obtained without the agent’s intervention but was obtained by the defendant.

The Supreme Court acknowledged, however, the potential validity of the due process defense. The court stated:

“While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California [1952], 342 U.S. 165, [96 L. Ed. 183, 72 S. Ct. 205,] the instant case is distinctly not of that breed.” 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 373, 93 S. Ct. 1637, 1643.

The defendant here relies on the language found in United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637, in arguing that his case presents a situation where his due process rights were violated and cites Hampton v. United States (1976), 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646. In Hampton, the defendant acknowledged that the entrapment defense was not available, but argued that his due process rights were violated because a government informant allegedly supplied the drug which he was convicted of selling. The Supreme Court rejected the defendant’s argument, noting in Russell and Hampton that the government agents acted in concert with the defendants and the defendants were predisposed to commit the offenses. The opinion went on to state that:

“The limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant.” (Hampton v. United States (1976), 425 U.S. 484, 490, 48 L. Ed. 2d 113,119, 96 S. Ct. 1646,1650.)

The court determined that the police conduct in Hampton did not deprive the defendant of any right.

The State in the instant case notes that the defendant has not presented an Illinois case which recognizes the outrageous government conduct defense. However, the State does not argue against the possibility of such a defense but asserts that the facts of this case do not support a finding of outrageous government conduct. The State cites to United States v. Twigg (3d Cir. 1978), 588 F.2d 373, where the United States Court of Appeals determined that the police involvement was so overreaching that it barred prosecution as a matter of due process of law. The State distinguishes the Twigg facts from the instant case. In Twigg, a government informer suggested the establishment of a laboratory to manufacture “speed.” The government supplied a chemical used to make “speed,” made arrangements with chemical supply houses to provide the other ingredients, provided the production site, and a government agent was completely in charge of the operation. The defendants in Twigg were found predisposed to commit the offense at the trial level. On appeal, the court examined police conduct which it characterized as “so overreaching as to bar prosecution of the defendants as a matter of due process of law.” 588 F.2d 373, 377.

People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962, and People ex rel. Carey v. 1975 Mercedes 4-Door (1980), 86 Ill. App. 3d 893, discuss the defense of outrageous government conduct.

In Difanis, the defendant had been enjoined from maintaining a nuisance, i.e., a place of prostitution. On appeal, he claimed that the trial court erred in denying his in limine motion to suppress certain evidence among other issues not relevant. The motion was based on a showing that in the course of the investigation three men working for the law enforcement officers actually engaged in sexual activity with female employees in the place of prostitution. The defendant claimed that the State’s Attorney’s conduct in recruiting and directing the agents to engage in such activity was so outrageous that it constituted a violation of his fundamental right to due process. The defendant acknowledged that entrapment was not available to him.

The appellate court recognized that the defendant’s argument was novel in Illinois. It noted that where the defense was recognized in other jurisdictions, the remedy was not suppression but a bar to the action.

The State argued that the due process defense was merely the “objective” entrapment theory which was conclusively rejected in People v. Cross (1979), 77 Ill. 2d 396. However, the Difanis court found a valid distinction between the two based on United States v. Russell (1973), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637. The court stated that Cross should not be interpreted to bar the due process defense. People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962, 966.

After examining case law, the court concluded in Difanis that the conduct of the government did not reach the “demonstrable level of outrageousness” which would bar the action or exclude the evidence. The court also noted that the plurality in Hampton v. United States (1976), 425 U.S. 484, 48 L. Ed. 2d 113, 96 S. Ct. 1646, found the essence of the due process defense to be a violation of a “protected right of the defendant.” No contention was made that an intrusion was made on the defendant’s rights. 92 Ill. App. 3d 962, 967.

In People ex rel. Carey v. 1975 Mercedes 4-Door (1980), 86 Ill. App. 3d 893, the State brought an in rem action for forfeiture of a car used in delivery of a controlled substance. The owner of the car claimed on appeal that the forfeiture order violated his right to due process. He relied on United States v. Twigg (3d Cir. 1978), 588 F.2d 373. The appellate court found that there was no overreaching conduct in this case.

The facts in the case at bar are disputed, although the jury’s verdict may be seen as a rejection of the defendant’s version. Assuming the defendant’s version to be the case, the conduct of law enforcement officers was not so outrageous that the defendant’s fundamental right to due process of law was violated. It did not reach the “demonstrable level of outrageousness” required to bar conviction. People ex rel. Difanis v. Boston (1981), 92 Ill. App. 3d 962, 966-67.

In the defendant’s second issue on appeal, he contends that the trial court erred in denying the defendant’s instruction on outrageous government conduct. He claims the instruction was necessary to present the jury with the full theory of the defendant’s defense of entrapment. The jury was instructed on the statutory defense of entrapment.

The Federal courts have addressed this issue in considering the due process defenses of outrageous government conduct. They have held that the question of whether the circumstances of the case demonstrate outrageous government conduct is a question of law for the court to determine. (United States v. Wylie (9th Cir. 1980), 625 F.2d 1371; United States v. Szycher (10th Cir. 1978), 585 F.2d 443; United States v. Johnson (1st Cir. 1977), 565 F.2d 179.) Wylie and Johnson specifically held that no error occurred with the trial court’s denial of a jury instruction on government involvement.

Based on the decisions of the Federal courts which have considered the outrageous government conduct defense, we find that the trial court did not err in denying the defendant’s jury instruction. The question of outrageous government conduct is a matter of law for the court to determine. Besides, the instruction failed to adequately present the law as found in the plurality opinion in Hampton. The due process defense rested on a violation of a “protected right of the defendant.” (Hampton v. United States (1976), 425 U.S. 484, 490, 48 L. Ed. 2d 113, 119, 96 S. Ct. 1646, 1650.) The instant instruction had no such provision.

In the last issue, the defendant claims that the trial court erred in limiting the defendant’s cross-examination of LaBarge concerning his relationship "with Frankie Herbert and Hugh Farrell. The defendant states that the limitation denied him the opportunity to present direct evidence as to his theory of the defense. He also claims that the limitation prevented him from showing bias, motives and interests.

The defendant’s post-trial motion does not contain a specific objection to the trial court’s limitation of the defendant’s cross-examination of LaBarge. The issue has not been preserved for review and has been waived. People v. Jackson (1981), 84 Ill. 2d 350; People v. Heidorn (1983), 114 Ill. App. 3d 933.

The waiver rule is not absolute. If it is plainly apparent from the record that an error affecting substantial rights was committed, plain error can be considered as a way of circumventing the rule. People v. Jackson (1981), 84 Ill. 2d 350.

The limitation of cross-examination did not rise to the level of plain error. It was apparent from the defendant’s testimony that Herbert was an informant. LaBarge said that Herbert and he discussed the transaction that was going to occur on February 3, 1981. There was sufficient evidence on the defendant’s theory of the case without knowing whether LaBarge knew Herbert prior to February 3, 1981, arrested Herbert or bought narcotics from him. LaBarge’s motive, bias or interest would not have been illuminated any further without the limitation.

Hugh Farrell was merely present at the club on February 3, 1981. There is no indication from the record that he was involved in this transaction.

The limitation of cross-examination was not plain error and was waived for purposes of review.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY M. POOLE, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0471
    Opinion filed April 4, 1984.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

After a jury trial, defendant Jerry Poole was adjudged guilty of the offense of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) Upon consideration of his criminal record, defendant was sentenced to nine years’ imprisonment. Defendant appeals from the judgment of the circuit court of McLean County. We affirm.

Defendant raises two issues on appeal: (1) whether the trial court erred in denying his motion under Supreme Court Rule 412(h) (87 Ill. 2d R. 412(h)), wherein he sought a court order permitting defense counsel access to the bedroom of the identifying witness for the purpose of taking photographs of the scene at night; and (2) whether the trial court erred in denying his motion in limine to restrict the testimony of a witness regarding the circumstances of defendant’s appearances at her home during the hours preceding the charged burglary.

The evidence introduced at trial tended to show that the Gary Wilcox residence in Bloomington was burglarized during the early morning hours of October 16, 1982. Mr. Wilcox retired for the night shortly after 2 a.m. Around 3:20 a.m., he was awakened by the screams of his 10-year-old daughter, who thereafter entered his bedroom yelling that someone was trying to rape her. Both Mr. Wilcox and his oldest son entered the hallway of the one-story home, pausing momentarily, and heard the backdoor in the kitchen slam. Mrs. Wilcox called the police. Family members went to dress but discovered their pants were not in their respective rooms. The parents’ pants and those of the oldest son were found in a pile in the living room. The men’s wallets and Mr. Wilcox’ keys were removed. Mrs. Wilcox’ watch was taken from the kitchen, Mr. Wilcox’ cigarettes and cigarette lighter were gone from his bedroom, two tool boxes were removed from the house to the backyard, and a storm window for the parents’ bedroom was found in a neighbor’s yard.

The 10-year-old daughter was the only family member who saw the intruder. She testified she was awakened by a man rubbing her arm from her elbow to her shoulder. As she sat up, he came toward her with a white towel wrapped around his hands. She began kicking him and, as he fell back against her closet doors, she ran from the room. The 10-year-old said she began screaming as soon as she was awakened by the stranger. She described the intruder as a black man with short hair and said she best remembered his hair, eyes and beard.

The 10-year-old was taken to the Bloomington police department the same morning to look at photographs. Shown a five-photo array, she examined each photo and chose that of the defendant, whom she also identified at trial.

Family members described the size and layout of rooms in the Wilcox home and the nighttime lighting of the 10-year-old’s bedroom. The girl’s room picked up light from the fluorescent lighting in the bathroom across the hall and from an outside streetlight and parking lot vapor light. The oldest Wilcox boy testified that he had been unable to sleep in this room because of the amount of illumination it received. Testimony was adduced on the location of outside lights relative to the room and on the size and location of trees which might block or filter the entry of light.

Elaine Williams, defendant’s mother-in-law, testified that she lived at 901 East Walnut Street in Bloomington — several blocks from the Wilcox residence. Her daughter Sandra, defendant’s estranged wife, was living with her. She testified that as she left her home on October 15 at about 10:10 p.m., she saw defendant sitting on the curb in front of her home with a bottle of wine. Ivan Thomas was speaking to her younger daughter Sharon and had been told to leave by midnight. When Mrs. Williams returned home between 1 and 1:30 a.m., she saw defendant, Mr. Thomas, and Sharon on her porch. She told the men to leave and called the police. Defendant had been drinking pretty heavily by this time. Defendant left but, before police arrived, telephoned for his wife. Mrs. Williams hung up on him.

Mrs. Williams remained in her living room watching television as she was aware that if defendant tried to get into her house she would not hear him from her bedroom. At about 2 or 2:30 a.m., she heard noise at her door. Upon investigation, she saw defendant run from her porch. He wore a belted, blue suede coat which her daughter gave him several years earlier. Defendant previously lived at her house but was no longer welcome. Although she did not see his face, she said she could identify defendant from the back. Mrs. Williams further stated that at 7:30 a.m. on October 16, defendant telephoned for his wife and inquired what time he tried to get into her house the previous night.

On defendant’s behalf, Francis Poston and Randall Thompson testified they were with defendant on the evening of October 15 and witnessed his consumption of alcoholic beverages. Thompson said he shared with defendant three half-pint bottles of gin and a six-pack of beer, leaving defendant between 10 and 11 p.m. with Ivan Thomas.

Lori Ann Hursey, defendant’s sister, testified that defendant and another brother resided with her and her children in her Bloomington apartment during October 1982. Neither brother had a key to her apartment and she required them to knock at her kitchen door before 3 a.m. in order to stay with her. She said defendant had not stayed out all night during the time he stayed with her. She said defendant returned to her apartment in a drunken condition at 2:55 a.m. on October 16. She went upstairs to bed at about 3:20 a.m. while defendant was preparing to sleep on the living room couch. She left her bedroom door open and heard no noises during the night. She got up around 6 a.m. with her three-month-old baby and saw defendant sleeping on the couch.

The jury returned a guilty verdict. Defendant was sentenced on June 8, 1983. This appeal followed.

Defendant’s first argument on appeal is that the trial court erred in denying his motion under Supreme Court Rule 412(h) (87 Ill. 2d R. 412(h)), requesting a court order permitting his counsel access to the bedroom of the identifying witness for the purpose of taking photographs at night. The motion was filed and argued on April 8, 1983, several weeks before trial. The State represented to the court that the Wilcox family would object to the invasion of their privacy and, as a matter of materiality, that the bedroom had been repainted and the furniture moved. The State contended that the defendant had not sufficiently justified discretionary disclosure under Supreme Court Rule 412(h) and that, as in any case where darkness might hinder identification, the primary quality of which defendant sought disclosure was lack of lighting. Defense counsel stated that the express reason he wanted the photographs was so the jury could make the determination of whether there was sufficient lighting in order for a witness to make an identification. The State argued it would be near to impossible for a photograph to duplicate conditions existing at the time of the offense so as to truly and accurately depict what Becky Wilcox saw; and, therefore, that any photographs would mislead rather than help the jury. As defense counsel provided no authority in support of his request for this order against the private party, Judge Dearborn denied the motion as not within the authority of the circuit court.

On appeal, defendant argues essentially that his constitutional right to present a defense (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038) supports his right to compel development of such evidence for use at trial. Defendant further maintains in reply brief and argument that the circuit court has authority to enter such an order under section 25 of “An Act relating to the circuit courts.” Ill. Rev. Stat. 1981, ch. 37, par. 72.25.

The State contends that defendant has waived this argument by failure to include the issue in his post-trial motion. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Given the novel issue presented in this case, in our discretion we decline to consider waiver and will deal with the issue on its merits. We need not decide the trial court’s authority to enter an order against a private party allowing defense counsel to photograph a crime scene, since in this case denial of the motion on its merits would not have been an abuse of discretion.

We first dispose of defendant’s contention that the test enunciated by the Supreme Court in United States v. Nixon (1974), 418 U.S. 683, 699-700, 41 L. Ed. 2d 1039, 1059, 94 S. Ct. 3090, 3103, for issuance of a subpoena duces tecum, is logically applicable to the order sought as it similarly involved subordination of a privacy interest to a defendant’s interest in presenting a defense. The flaw in this analogy is that the issuance of a subpoena duces tecum, applies to evidence in being — to tangible items theoretically under the control of the party against whom the order is directed — and not to the creation of evidence.

Second, neither do we find compelling defendant’s argument that dissimilarities between conditions bearing on light in the bedroom at the time of the charged offense and the time of photographing should be argued before the jury. There is authority supporting the exclusion of photographs which (1) could reflect upon the ability of a witness to see a crime and (2) were taken under circumstances sufficiently different from those existing when the witness allegedly viewed the crime and which might, therefore, mislead rather than assist the jury. (People v. Rolon (1979), 71 Ill. App. 3d 746, 390 N.E.2d 107; People v. Schwing (1971), 133 Ill. App. 2d 100, 272 N.E.2d 779.) As the State pointed out, many factors bear on differences in lighting conditions in the bedroom, including weather and environmental conditions and the fullness of the moon. Moreover, there was no showing that a photograph could be taken which would depict nighttime lighting conditions.

Third, defense counsel specifically sought to capture in such photographs the particular level of light present in the room at the time of the incident — highly evanescent evidence. Further, it is common knowledge that the ability of the human eye to discern objects at different light levels and to adjust to lower light levels varies from person to person. This particular quality could not be added to any photographs taken. Finally, because the photographs were sought for the particular purpose of impeaching the 10-year-old’s ability to identify the intruder in her bedroom, photographic evidence could properly be excluded in this case.

Fourth, we do not find defendant’s citation of cases holding the trial court did not abuse its discretion by denying a jury viewing of the crime scene (People v. Durso (1968), 40 Ill. 2d 242, 239 N.E.2d 842, cert. denied (1969), 393 U.S. 1111, 21 L. Ed. 2d 807, 89 S. Ct. 923; People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466, cert. dismissed (1970), 397 U.S. 660, 25 L. Ed. 2d 642, 90 S. Ct. 1408; People v. Jarosiewicz (1977), 55 Ill. App. 3d 1057, 371 N.E.2d 949; People v. Daliege (1976), 40 Ill. App. 3d 706, 352 N.E.2d 247) persuasive, although in each case models or photographs were in evidence in addition to testimonial descriptions of the crime scene. No cases were cited, and we know of none, wherein a trial judge was required to permit a jury viewing of the crime scene despite testimonial evidence providing description. Defendant made no request that the jury view the bedroom of the identifying witness at night.

We next consider defendant’s argument that the trial court erred in denying his motion in limine to restrict the testimony of Elaine Williams regarding the circumstances of his appearances at her home during the hours preceding the charged burglary. Defense counsel, in arguing the motion, contended that Williams should be allowed to testify she saw defendant at 2:30 a.m. and explain her recognition of defendant. Counsel was concerned, however, that Williams’ testimony should not contain any expression of her opinion that defendant was attempting to break into her home or make an unauthorized entry. Judge Dearborn did not agree that the jury would infer a break-in, since defendant’s estranged wife was staying at the residence.

We agree. Moreover, were the testimony considered to be evidence of other crimes, such evidence is admissible if relevant for any purpose other than to show propensity to commit a crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Williams’ testimony tended to show defendant’s presence in the vicinity of the offense less than an hour before its occurrence. The State’s characterization in closing argument that defendant had been “causing trouble” at the Williams’ residence in the preceding hours does not change our view. Finally, in view of the identification testimony, any error in this regard may be deemed harmless. See People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE WEBBER

text:
    WESTERN LION LIMITED, Plaintiff-Appellant, v. THE CITY OF MATTOON, Defendant-Appellee (Collect-All Corp., Defendant).
    Fourth District
    No. 4 — 83—0508
    Opinion filed April 9, 1984.
    Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus, of counsel), for appellant.

      M. John Hefner, Jr., of Harlan Heller, Ltd., of Mattoon, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The plaintiff appeals from the orders of the circuit court of Coles County dismissing the complaint and denying its motion for reconsideration and for leave to file an amended complaint. The plaintiff, a corporation engaged in the handling of solid wastes, contends that the defendant, city of Mattoon, did not follow the requirements of section 4 — 5—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 4 — 5—11) when it awarded a contract for the collection of municipal garbage. The plaintiff further claims that its constitutionally protected rights of due process and equal protection have been denied. On appeal, the plaintiff also contends that the award of the contract constitutes an illegal waste of the taxpayers’ funds. We affirm.

Defendant, city of Mattoon, is a commission form of municipal government. On May 3, 1983, the city published a “proposal for bids” for the contractual service of municipal garbage collection. The right to reject any and all bids and to accept the one that the city deemed most favorable was expressly reserved. Contract specifications were prepared and issued by the city. The contract called for the collection of garbage from all residences and buildings occupied for residential purposes in the city as well as from six containers located at various city parks and the disposal of the garbage at an approved landfill. The contract was for a period of three years commencing on July 1,1983.

On June 7, 1983, the bids that were submitted pursuant to the published proposal and specifications were opened during a regular meeting of the city commission. Plaintiff’s bid of $69,899 per year was the lowest. However, the city rejected that bid and accepted the bid of Collect-All Corporation. That bid was in the amount of $96,000 per year. The city of Mattoon had paid Collect-All the identical amount in the previous two years when Collect-All had performed the same service.

On June 22, 1983, the plaintiff filed a complaint against the city of Mattoon and Collect-All asking that the defendants be enjoined from entering into the contract and that the contract be awarded to the plaintiff along with other appropriate relief.

On June 28, 1983, the city of Mattoon filed its motion to dismiss the complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619). The affidavits of city commissioner Marjory Metzger and Mayor Roger Dettro were filed in support of the motion. They stated that they voted to award the contract to Collect-All after an investigation of the bidders and a determination, based upon past service also, that awarding the contract to Collect-All would be in the best interests of the city. A hearing on the motion was held on June 30, 1983. At that time counteraffidavits were submitted by the plaintiff to show that it was capable of performing the collection contract. After hearing the arguments of counsel, the circuit court granted the city’s motion to dismiss and held that the decision as to which bid to accept was discretionary with the city commission.

Before the entry of a written order, the plaintiff filed a motion for reconsideration and for leave to amend the complaint on July 5, 1983. The plaintiff sought to change its original one-count complaint into a four-count complaint requesting additional relief and including a count based upon the city’s alleged illegal waste of taxpayer funds. A proposed amended complaint was attached to the motion. The circuit court denied this motion on July 18, 1983, and thereafter entered a written order dismissing the plaintiff’s complaint with prejudice. No order was entered as to defendant Collect-All. However, the July 18, 1983, order found there to be no cause for delaying enforcement and appeal of the order under Supreme Court Rule 304 (87 Ill. 2d R. 304). A timely appeal was filed on July 20,1983.

On appeal, plaintiff claims that since the city of Mattoon did not adhere to the requirements of section 4 — 5—11 of the Illinois Municipal Code when it awarded its garbage collection contract, the city should be enjoined from entering into the contract with Collect-All. The circuit court found that statute to be inapplicable to this contract. We agree.

Section 4 — 5—11 states in pertinent part:

“Except as otherwise provided, all contracts, of whatever character, pertaining to public improvement, or to the maintenance of the public property of a municipality involving an outlay of $1,500 or more, shall be based upon specifications to be approved by the council. Any work or other public improvement which is not to be paid for in whole or in part by special assessment or special taxation, when the expense thereof will exceed $2,500, shall be constructed as follows:
(1) By a contract let to the lowest responsible bidder after advertising for bids ***.” (Ill. Rev. Stat. 1981, ch. 24, par. 4 — 5— H.)

By an expansive interpretation of the phrases “public improvement” and “maintenance of the public property” plaintiff claims that this statute should apply whenever a contractor does work of any type for a commission form of government where it is not paid out of a special assessment or special taxation and the cost exceeds $2,500. Specifically, plaintiff argues that the collection of garbage results in public improvement and that because the garbage is to be removed from six dumpsters placed on city property, this contract pertains to the maintenance of public property.

There appears to be no case law that construes the language of the statute in question. However, a review of the case law in other States in regard to the meaning of “public improvement” reveals that garbage collection is nowhere mentioned under this designation. On the contrary, the term “public improvement” is generally understood to mean any permanent improvement upon real property owned by the municipality. (Church E. Gates & Co. v. Jno. F. Stevens Construction Co. (1917), 220 N.Y. 38, 115 N.E. 22; Kansas City ex rel. Delargy v. Wells Brothers Construction Co. (Mo. App. 1932), 54 S.W.2d 449.) Certainly building and paving projects would be included in this category; however, garbage collection could hardly be called a permanent improvement upon real property owned by the city.

If the statute were to be read as the plaintiff contends, practically any positive act done by the city would require advertised bidding. We doubt that the legislature intended such a broad construction. Moreover, a statute that restricts the right of a city to contract by requiring a bidding procedure should not be extended beyond the language used. (People ex rel. Adamowski v. Daley (1959), 22 Ill. App. 2d 87, 159 N.E.2d 18.) We note that the statute in question uses the word “construction” twice and “constructed” once in describing the types of contracts that would require bidding procedures. This indicates the legislature’s intention to adopt the general view that “public improvement” means an improvement upon real property owned by the city.

Similarly, the phrase “maintenance of public property” does not apply to the contract in question. As the circuit court noted, a contract for the collection of garbage is not a maintenance contract in any normal sense of the word. Plaintiff argues that because the contract calls for the contracting party to place and service six dumpsters on public property, the contract pertains to the maintenance of public property. Initially we note that this language in no way calls upon the contracting party to directly maintain the public property upon which the dumpsters are placed. In any event, the contract is primarily concerned with the collection of table scrap garbage from the private residences in Mattoon. The mere fact that a few dumpsters on public property are also emptied does not change the nature of this contract.

Therefore, we hold that the contract in question was not controlled by the procedures outlined in section 4 — 5—11 of the Illinois Municipal Code. “When a public body, though not required to do so by statute, has called for bids, the public body may award the contract to any bidder it considers responsible.” (Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 983, 387 N.E.2d 785, 793.) The affidavits of the defendant show that this discretion was properly exercised in the present case. City commissioner Marjory Metzger was assigned to investigate the various companies that submitted bids for the city contract. In doing so, she stated that she observed several deficiencies in the plaintiff’s present waste handling operations. She also stated that she had received favorable comments about the existing service of Collect-All in the city of Mattoon. She noted that her inspection of Collect-All turned up no deficiencies. Since the collection of garbage is very important to the public health the city decided to continue to contract with a company with proven quality. Since the price of the contract was the same as in past years, no increased burden on the taxpayers would result. We cannot say that the city abused its discretion in choosing to contract with Collect-All, and in the absence of any evidence of fraud, illegality, or bad faith this court will not overrule the city’s decision.

The plaintiff next claims that as the lowest bidder it had a property right in the contract which should be afforded due process protection. The plaintiff realizes that any property right it may have had in the contract in question was based upon the alleged applicability of section 4 — 5—11 to the contract’s award. Since we have held that section is inapplicable to this contract, any claim of a due process right is similarly doomed. At best, the plaintiff had a mere expectation that the city’s discretion would be exercised in its favor. Such an expectation is not accorded due process protection. (Board of Regents v. Roth (1972), 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701.) Any claim that the plaintiff was denied equal protection of the law is equally flawed since we have found that the city’s discretion was properly exercised.

Finally, the plaintiff argues that even if section 4 — 5—11 does not apply to this contract, it has standing as a taxpayer of the city of Mattoon to assert a cause of action to prevent the illegal waste of taxpayer monies. While it is true that the plaintiff may have had standing to assert this, it is also evident that no such cause of action was raised in the initial complaint. That complaint was based upon a theory of recovery as a disappointed bidder. Although the plaintiff was allowed to amend its original complaint to include an allegation that it was a taxpayer of the city of Mattoon, the circuit court denied its second motion to amend the complaint to include a whole new count based upon illegal waste of taxpayer funds. A simple allegation of taxpayer status is insufficient to assert this cause of action. The taxpayer must further allege an illegal appropriation and that he or the taxpayers as a whole will suffer some financial injury as a result of the misappropriation. (Price v. City of Mattoon (1936), 364 Ill. 512, 4 N.E.2d 850; Lynch v. Devine (1977), 45 Ill. App. 3d 743, 359 N.E.2d 1137.) A review of the complaint reveals no allegation of injury suffered as a taxpayer. Moreover, we find nothing illegal or even improper in the city’s actions.

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

Affirmed.

, TRAPP and MILLER, JJ., concur.


author: JUSTICE JONES

text:
    BRADLEY TOLER, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 83 — 196
    Opinion filed April 10, 1984.

      Feirich, Schoen, Mager, Green & Associates, of Carbondale (Richard A. Green, Mary Lou Rouhandeh, and Michael F. Dahlen, of counsel), for appellant.
    Harris, Lambert & Wilson, of Marion, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Bradley Toler* brought the instant declaratory judgment action to determine whether injuries sustained by him while on a hunting trip with the insured, Randy Lingle, came within the terms of a personal vehicle insurance policy issued to Lingle by the defendant, Country Mutual Insurance Company (Country Mutual). Under this policy Country Mutual was obligated to pay damages caused by accidents “arising out of the *** use, including loading and unloading,” of the pickup truck owned by Lingle. The plaintiff was injured as Lingle was unloading ammunition from a rifle before loading it into his truck. The rifle discharged and caused the truck’s windshield to shatter, thereby injuring the plaintiff. After a trial upon stipulated facts, the court found that this accident came within the coverage of Lingle’s policy and directed Country Mutual to defend Lingle in the personal injury suit filed against him by the plaintiff. We affirm.

The parties’ stipulation of facts stated that on December 18, 1976, plaintiff Toler, defendant Lingle and Kelton Greer went coyote hunting in Union County, Illinois, south of Dongola. At sometime between 7 and 8 a.m., the defendant picked up the plaintiff and Greer in his pickup truck and drove to the Charles Brown farm south of Dongola, Illinois. The three men planned to hunt coyotes on the Brown farm and the adjoining farm of Don Fisher. Upon arrival at the Brown farm, the three men got out of the pickup truck of the defendant, took their rifles and began hunting. They later came back to the pickup truck and prepared to leave. Defendant Lingle spotted a coyote, got out of the pickup truck with a Remington rifle owned by Bradley Toler, which he had used on numerous occasions, and went out into the field after the coyote he had spotted. He fired at the coyote and missed it. He then returned to the pickup truck. By the time Lingle got back to the pickup truck, Greer and Toler had unloaded their guns and stored them in the back of the truck. Greer and Toler were in the cab of the pickup truck, with Greer sitting in the passenger seat and Toler sitting in the middle of the seat.

Lingle came back to the truck and opened the door. While standing outside of the truck with the door of the truck open and while in close proximity to the truck, he proceeded to begin unloading the Remington rifle owned by Toler, which had been loaded with .243 caliber shells. These shells were reloads, having been reloaded by Toler. Lingle ejected the empty shell that he had previously fired at the coyote by pulling up on the bolt and pulling it back, causing the shell to be ejected onto the seat of the pickup truck. When he pushed the bolt forward to unload the next shell, the rifle fired. At the time the rifle fired, Lingle was standing outside of the truck holding the rifle in an attempt to unload it. When the rifle fired, the bullet entered the truck through the open driver’s door and struck the glass of the windshield. This caused the windshield to shatter and injure the plaintiff.

The plaintiff brought suit against Lingle for his injuries sustained in the accident and subsequently filed the instant declaratory judgment action against Lingle’s insurer, Country Mutual. In the complaint against Country Mutual, the plaintiff alleged that Country Mutual had refused to defend Lingle under its insurance policy with him on the basis that the policy did not cover the occurrence in question. The trial court entered judgment against Country Mutual, finding that the policy did apply to the subject occurrence and that Country Mutual had a duty to defend Lingle in the suit against him and to pay any judgment that might be recovered against Lingle by the plaintiff.

On appeal from this judgment Country Mutual contends that the trial court erred in finding that the accident in question came within the coverage of the policy. In pertinent part the policy provided coverage for bodily injury “caused by accident arising out of the ownership, maintenance or use, including loading or unloading” of the insured vehicle. Country Mutual asserts that the accidental discharge of the rifle here did not arise from the use of the truck, or from the loading which is part of its use, because Lingle’s act of removing shells from the rifle occurred prior to his loading the rifle into the truck and was not part of the process of loading the truck. Country Mutual contends further that regardless of whether or not the accident occurred during the loading process, the causal relation between the accident and the use of the truck was insufficient to give rise to liability under the policy.

The applicability of the “loading and unloading” clause of a motor vehicle insurance policy to a situation such as that here involved has not been ruled upon by the courts of this State. Courts of other jurisdictions, however, have construed the pertinent policy language in analogous fact situations to hold that coverage exists for injuries resulting from the accidental discharge of firearms being loaded into or unloaded from a vehicle. (See Laviana v. Shelby Mutual Insurance Co. (D. Vt. 1963), 224 F. Supp. 563; Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; Viani v. Aetna Insurance Co. (1972), 95 Idaho 22, 501 P.2d 706; Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363; Allstate Insurance Co. v. Truck Insurance Exchange (1974), 63 Wis. 2d 148, 216 N.W.2d 205; see also Dorsey v. Fidelity Union Casualty Co. (Tex. Civ. App. 1932), 52 S.W.2d 775.) The facts of the instant case bring it within the rule of these cases, and we adopt the reasoning there employed to find that coverage exists under the policy in question.

As a general rule an accident, in order to come within the coverage of a “loading and unloading” clause, must have occurred during the process of loading and unloading the vehicle in question and must be causally connected with the act of loading or unloading. (7 Am. Jur. 2d Automobile Insurance sec. 208 (1980).) To determine what constitutes loading and unloading under the first part of this test, courts have adopted two basic views: the “coming to rest” doctrine, under which “loading” consists of only the actual lifting and placing of an article into the vehicle, and the “complete operations” doctrine, under which “loading” includes the entire process involved in moving the article. Under the latter doctrine, no distinction is made between loading and acts preparatory to loading. (Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363.) The “complete operations” doctrine is generally characterized as the modern view and is supported by the weight of authority. 12 Couch on Insurance sec. 45:128 (2d ed. 1981); see Annot., 6 A.L.R.4th 686 (1981).

In arguing that Dingle’s act of removing shells from the rifle here was not part of the process of loading it into the truck, Country Mutual urges this court to apply the narrower “coming to rest” doctrine. We note, however, that Illinois courts have adopted the “complete operations” view in construing “loading and unloading” clauses in a commercial setting. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; see Liberty Mutual Insurance Co. v. Hartford Accident & Indemnity Co. (7th Cir. 1958), 251 F.2d 761; Coulter v. American Employers’ Insurance Co. (1948), 333 Ill. App. 631, 78 N.E.2d 131.) This construction has not been limited to commercial transactions, and there is no distinction in the policy itself regarding commercial and personal vehicles. (See Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893; 7 Am. Jur. 2d Automobile Insurance sec. 208, at 728-29 (1980).) Moreover, in the instant factual setting, we believe, as did the court in Allstate Insurance Co. v. Valdez, that it is the better view to regard the preparatory act of removing shells from the rifle as an integral part of the loading process.

In Allstate Insurance Co. v. Valdez (E.D. Mich. 1961), 190 F. Supp. 893, the insured (Valdez) was ejecting shells from a shotgun preparatory to placing the gun in the trunk of his car when the gun discharged, killing an occupant of the vehicle. The court followed the “complete operations” doctrine and found that this act was part of the loading process, even though Valdez was 25 feet from the vehicle at the time. Noting that, under Michigan statute, the removal of ammunition from a weapon is required before it is transported in a vehicle, the court continued:

“It would appear that Valdez was fulfilling his legal obligation by ejecting the shells preparatory to placing the weapon in the trunk of his car. *** [T]he other three hunters had deposited their weapons in the trunk of Valdez’ car, the trunk lid was up, and the hunters were waiting for Valdez, who would drive them back to Detroit. Under these circumstances where Valdez was ready to ‘load’ his shotgun into the trunk but, as a preparatory step, was attempting to comply with the safety requirements of the Michigan statute, the ejection of the shells was an integral part of the ‘loading’ process ***.” (190 F. Supp. 893, 896.)

Thus, the court concluded, Valdez’ distance from the vehicle at the time of the accident was “not per se an accurate measuring device of the extent to which ‘loading’ [had] begun. The test [was] whether the activities resulting in the injuries [were] a part of the entire ‘loading’ scheme.” 190 F. Supp. 893, 896. Cf. Laviana v. Shelby Mutual Insurance Co. (D. Vt. 1963), 224 F. Supp. 563, 565 (insured who was unloading gun in preparation of entering car when car door struck him causing gun to discharge was in the process of “loading” gun into car within meaning of automobile insurance policy. The court noted that unloading the gun was a “safe and customary practice which should be performed before entering a car” and that the insured was “standing near the open door *** in anticipation of entering”).

The facts of the instant occurrence present an even stronger case for finding liability under the “loading and unloading” clause than did the facts of Valdez. Here it was stipulated that Lingle was standing in close proximity to the truck with the door open as he ejected shells from the rifle onto the seat of the truck. His companions had previously unloaded their guns before storing them in the back of the truck and were waiting in the front seat for Lingle to do the same. It cannot be disputed that the three hunters were preparing to leave and that they were loading their guns into the truck for that purpose. Before physically placing the rifle into the truck, Lingle had to unload the ammunition from it to comply with statutory requirements (see Ill. Rev. Stat. 1975, ch. 38, par. 24 — 1 (unlawful to carry loaded firearm in vehicle within corporate limits of city, village or town)) and to conform to sound safety practice. Thus, while the term “loading” in the policy must be given its plain and ordinary meaning (see Viani v. Aetna Insurance Co. (1972), 95 Idaho 22, 501 R2d 706), we believe it can be said that Lingle’s act of removing shells from the rifle was an integral part of the process of loading it into the truck so as to come within the coverage of the policy. Cf. State Farm Mutual Automobile Insurance Co. v. Centennial Insurance Co. (1975), 14 Wash. App. 541, 544, 543 P.2d 645, 647 (court observed that “the unloading of one’s rifle preparatory to entering a vehicle is the kind of customary behavior contemplated by the parties to a hunting" trip. Thus, it is specifically anticipated behavior and coverage is intended by the parties to an insurance contract” (emphasis in original)).

Our judgment in this regard is not altered by Country Mutual’s assertion that such an application of the “complete operations” doctrine could lead to absurd results in other hypothetical cases involving the loading of firearms into a vehicle. As with the application of any doctrine or test, each case must turn upon its particular facts. (Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363.) Despite the hypothetical situations possible, the facts of the instant case control our determination that loading had begun when the accident occurred.

Country Mutual argues additionally that the causal connection between the accident and the insured’s use of the vehicle here was insufficient to give rise to liability under the policy. This argument is closely related to the question of whether Lingle’s act of removing shells from the rifle came within the loading process, since loading necessarily constitutes a use of the truck (see Western Casualty & Surety Co. v. Branon (E.D. Ill. 1979), 463 F. Supp. 1208; General Accident Fire & Life Assurance Corp. v. Brown (1962), 35 Ill. App. 2d 43, 181 N.E.2d 191). Country Mutual contends that even if the accident occurred during the loading process, the discharge resulted not from this use of the truck but from Lingle’s use of the rifle. Thus, Country Mutual asserts, the accidental discharge could have occurred anywhere and the truck was merely the situs of the occurrence. Country Mutual points out further that, unlike in Laviana v. Shelby Mutual Insurance Co., where the front door of the car struck the plaintiff causing his gun to discharge, no part of the truck here came into contact with the rifle and no motion of the truck caused the rifle to discharge.

It is well settled that some causal relation is necessary between an injury and the use of a motor vehicle for there to be coverage under the “arising out of the use” clause of a vehicle insurance policy. Proximate causation in the strict legal sense is not required, however, and the loading or unloading which constitutes the vehicle’s use need not be the sole cause of the accident, as “but for” causation is sufficient to satisfy the policy provision. (7 Am. Jur. 2d Automobile Insurance sec. 207, at 721-22 (1980); 1 R. Long, Law of Liability Insurance sec. 1.22, at 1 — 56 through 1 — 58 (1981); see Morari v. Atlantic Mutual Fire Insurance Co. (1970), 105 Ariz. 537, 468 P.2d 564; Payne v. Southern Guaranty Insurance Co. (1981), 159 Ga. App. 67, 282 S.E.2d 711.) The use of the vehicle giving rise to liability must be of the vehicle as such (see Norgaard v. Nodak Mutual Insurance Co. (N.D. 1972), 201 N.W.2d 871 (no causation where use of vehicle as gun rest for weapon constituted use foreign to vehicle’s inherent use)), and no liability will be found where the vehicle was the mere situs or location of the accident (see Cameron Mutual Insurance Co. v. Ward (Mo. App. 1980), 599 S.W.2d 13 (no causation in cases involving accidental discharge of gun inside vehicle while occupant was handling or toying with gun, as vehicle was mere situs of accident and discharge was unconnected with inherent use of vehicle)).

Applying these rules to the instant case, we note initially that under the relevant standard of causation, there is no requirement of any actual physical contact between the vehicle and the instrumentality that was the immediate cause of the injury, here, the rifle held by defendant Lingle. (McDonald v. Great American Insurance Co. (D. R.I. 1963), 224 F. Supp. 369; Payne v. Southern Guaranty Insurance Co. (1981), 159 Ga. App. 67, 282 S.E.2d 711; Dorsey v. Fidelity Union Casualty Co. (Tex. Civ. App. 1932), 52 S.W.2d 775.) Thus, Country Mutual’s attempt to distinguish the instant case on its facts from Laviana v. Shelby Mutual Insurance Co. is without merit. While the court there observed that “[t]he door of the car was instrumental in producing the accident” (Laviana v. Shelby Mutual Insurance Co. (D. Vt. 1963), 224 F. Supp. 563, 565), its decision was based upon a determination that the plaintiff was engaged in the loading process when the accident occurred, and the opinion contained no discussion of the causation factor. Further, unlike those cases in which the actual movement or operation of a vehicle supplied the connecting link between the accident and the use of the vehicle where none would have otherwise existed (see Cameron Mutual Insurance Co. v. Ward (Mo. App. 1980), 599 S.W.2d 13 (discussion of cases in which motion of vehicle caused discharge of guns in moving vehicles)), the requisite causal relation is present in the instant case despite the lack of physical contact between the vehicle and Lingle’s gun.

Under the facts of the instant case, the insured’s vehicle was being used to transport the young men and their weapons on a hunting trip. This was a proper use of the truck and could be expected. (See Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363; Allstate Insurance Co. v. Truck Insurance Exchange (1974), 63 Wis. 2d 148, 216 N.W.2d 205; Dorsey v. Fidelity Union Casualty Co. (Tex. Civ. App. 1932), 52 S.W.2d 775.) As part of this use it was necessary that the guns be loaded into the truck and that the ammunition be removed from the guns for that purpose. The plaintiff’s injury, which occurred during the loading process, was thus connected with the use of the truck as a means of transporting the parties’ hunting gear, and this relation was sufficient to give rise to coverage under the relevant policy provision. Cf. Viani v. Aetna Insurance Co. (1972), 95 Idaho 22, 501 P.2d 706; Travelers Insurance Co. v. Aetna Casualty & Surety Co. (Tenn. 1973), 491 S.W.2d 363; Allstate Insurance Co. v. Truck Insurance Exchange (1974), 63 Wis. 2d 148, 216 N.W.2d 205; Payne v. Southern Guaranty Insurance Co. (1981), 159 Ga. App. 67, 282 S.E.2d 711; Dorsey v. Fidelity Union Casualty Co. (Tex. Civ. App. 1932), 52 S.W.2d 775 (requisite causal relation present where accident occurred during process of loading or unloading guns from vehicle used to transport guns on hunting trip); see also Morari v. Atlantic Mutual Fire Insurance Co. (1970), 105 Ariz. 537, 468 P.2d 564.

Because of the relation here between the accident and the use of the insured’s truck, the instant case is distinguishable from those cases in which the vehicle involved was the mere situs or location of the injury. In National Union Fire Insurance Co. v. Bruecks (1966), 179 Neb. 642, 139 N.W.2d 821, cited by Country Mutual, the plaintiff was injured when his companion attempted to unload ammunition from his rifle in a moving vehicle as the two returned home from a hunting trip. The Bruecks court found no connection between the rifle’s discharge and the use of the vehicle, since there was no more reason to unload the rifle inside the moving vehicle than in another location. The court, however, distinguished that situation from one in which the accidental discharge occurred during the process of loading a firearm into a vehicle, noting that “[ejlementary safety precautions require the unloading of guns before they are transported from one place to another, and such act may constitute a part of the loading *** process.” (179 Neb. 642, 651, 139 N.W.2d 821, 828.) Similarly, in the instant case the injury arose out of the process of loading the gun into the truck, and the truck was more than merely the coincidental place where the accident occurred. Cf. Western Casualty & Surety Co. v. Branon (E.D. Ill. 1979), 463 F. Supp. 1208; Brenner v. Aetna Insurance Co. (1968), 8 Ariz. App. 272, 445 P.2d 474 (no liability for accidental discharge inside moving vehicle as vehicle was merely fortuitous location of accident); Mason v. Celina Mutual Insurance Co. (1967), 161 Colo. 442, 423 P.2d 24; United States Fidelity & Guaranty Co. v. Western Fire Insurance Co. (Ky. 1970), 450 S.W.2d 491; Ramsey v. Continental Insurance Co. (La. App. 1973), 286 So. 2d 371 (accidental discharge of gun inside vehicle not sufficiently use-connected to give rise to liability under relevant policy provision); Stonewall Insurance Co. v. Wolfe (Fla. App. 1979), 372 So. 2d 1147 (no connection between accidental discharge of rifle by boy following vehicle and plaintiffs location on trunk of car).

The case at bar can likewise be distinguished from cases cited by Country Mutual in which coverage was denied because the use of the vehicle giving rise to the injury was not a use of the vehicle as such. In Hutchins v. Mills (Fla. App. 1978), 363 So. 2d 818, the plaintiff was shot accidentally by a hunting companion as he stood in the bed of a pickup to gain greater visibility in sighting game. The court held that the use of the truck as a “look-out” did not constitute an inherent use of the vehicle so as to provide a proper basis for liability under the policy. Similarly, in Watson v. Watson (Fla. App. 1976), 326 So. 2d 48, the court denied liability for injury resulting from the discharge of a gun being removed from a vehicle following an automobile accident. The court noted that the car had not been used for the primary purpose of carrying the loaded pistol. By contrast, in the instant case the accident arose out of the insured’s use of the truck to transport guns on a hunting trip, a proper use from which it could be expected that an accident might occur. See Lyndoe v. American Standard Insurance Co. (S.D. 1976), 245 N.W.2d 273.

Country Mutual further cites the case of Glen Falls Insurance Co. v. Rich (1975), 49 Cal. App. 3d 390, 122 Cal. Rptr. 696, in which the court held that an injury that arose as much from the use of the firearm involved as from the insured’s use of his vehicle did not come within the meaning of a clause of a homeowner’s policy excluding coverage for injury “arising out of the use” of a motor vehicle. The rule of that case is inapplicable to the instant case, however, because of the different interpretation given an “arising out of the use” clause in the context of a homeowner’s policy. Such exclusionary clauses are interpreted narrowly against the insurer (State Farm Mutual Automobile Insurance Co. v. Partridge (1973), 10 Cal. 3d 94, 514 P.2d 123, 109 Cal. Rptr. 811; Glen Falls Insurance Co. v. Rich (1975), 49 Cal. App. 3d 390, 122 Cal. Rptr. 696; see National Family Insurance Co. v. Boyer (Minn. 1978), 269 N.W.2d 10), and coverage will be denied under the homeowner’s policy only if the accident in question arose solely from the use of the vehicle. (Glen Falls Insurance Co. v. Rich (1975), 49 Cal. App. 3d 390, 122 Cal. Rptr. 696.) As we have seen, the causation requirement for coverage under the “arising out of the use” clause of a vehicle insurance policy is not so strict, and it is not necessary that the use of the vehicle be the sole cause of the accident so long as there is some causal connection between the two.

Finally, in Aetna Casualty & Surety Co. v. Safeco Insurance Co. (1980), 103 Cal. App. 3d 694, 163 Cal. Rptr. 219, the court found that coverage was afforded only under a homeowner’s policy that excluded coverage for accidents “arising out of the use” of a motor vehicle and not under an automobile insurance policy. The accident in question occurred as the plaintiff and his companions loaded their guns in preparation for target practice while sitting in a parked car. Country Mutual asserts that the situation in Safeco is factually analogous to the instant case in that the parties there were loading shells into their guns in preparation for “unloading” them from the vehicle while here they were unloading shells from their rifles in preparation for “loading” them into their truck. There was, however, no discussion in Safeco as to whether the accident occurred during the process of unloading the truck. Indeed, the loading of shells into a firearm before exiting from a vehicle cannot be equated with the unloading of shells from a gun before placing it into a vehicle, as the latter is done for the purpose of transporting the guns safely, a proper use of the vehicle, while the former would be done for the purpose of using the gun. Thus, the court’s holding in Safeco that the accident arose out of the use of the gun rather than the use of the automobile has no effect on the result we have reached here.

For the reasons stated in this opinion, we hereby affirm the judgment of the trial court for the plaintiff and against the defendant Country Mutual.

Affirmed.

WELCH, P.J., and EARNS, J., concur.