author: JUSTICE MEJDA

text:
      In re MARRIAGE OF THOMAS H. HANLON, Petitioner and Counterrespondent—Appellant, and FRANCES JEAN HANLON, Respondent and Counterpetitioner—Appellee—(Mary Louise Kearns, Counterrespondent-Appellee).
    First District (5th District)
    No. 81—2556
    Opinion filed June 30, 1983.

      Francis X. Riley, of Glen Ellyn, and Frances Jean Hanlon, pro se, for appellant.
    Thomas H. Hanlon, of Schaumburg, for appellee, pro se.

   JUSTICE MEJDA

delivered the opinion of the court:

Frances Jean Hanlon (Frances) appeals from the Sepember 17, 1981, order which dismissed her petition for a legal separation and the petition of Thomas H. Hanlon (Thomas) for dissolution of marriage and enrolled a Nevada decree of divorce as a domestic judgment of Illinois. The central issue presented in this appeal is whether the trial court erred in granting full faith and credit to the Nevada decree of divorce. We affirm.

On December 29, 1977, Thomas filed a complaint in Illinois for dissolution of marriage. His wife Frances couterpetitioned for legal separation naming Mary Louise Kearns (Kearns) and Thomas as counterrespondents. A brief summary of the pertinent proceedings will suffice for our determination.

On February 7, 1979, the trial court in Illinois entered an agreed order enjoining Thomas from filing an action in another State to dissolve the marriage. On May 17, 1979, upon Thomas’ motion, an order was entered dismissing the case for want of prosecution as to all parties whereupon Frances then appealed.

Thomas, on June 21, 1979, filed a complaint for divorce in the Eighth Judicial District Court, Clark County, ■ Las Vegas, Nevada. Frances was personally served two days later at her home in Arlington Heights, Illinois. Thomas did not inform the Nevada court of either the pending Illinois action or the restraining order. Following the granting of a default decree of divorce by the Nevada court on July 27, 1979, Thomas married Kearns in Illinois on August 10, 1979.

On April 25, 1980, the appellate court reversed the May 17, 1979, dismissal and remanded the instant case for further proceedings. (In re Marriage of Hanlon (1980), 83 Ill. App. 3d 629, 404 N.E.2d 873.) On remand Thomas filed an amended answer to Frances’ counterpetition for legal separation alleging the Nevada decree was an affirmative defense and sought an order to dismiss the action and petitioned to register the Nevada decree as a domestic judgment in Illinois. In reply Frances alleged as an affirmative defense that the Nevada decree was void for want of jurisdiction and denied that Thomas intended to make Nevada a permanent domicile and further stated that Thomas never informed the Nevada court of the prior pending dissolution proceeding in the Illinois court.

After reviewing the testimony of Thomas and Frances, the Illinois court found that Thomas had established domicile in Nevada and that Nevada, therefore, had jurisdiction to enter the divorce decree. The trial court entered an order dismissing Frances’ petition for legal separation, dismissing Thomas’ petition for dissolution of marriage, granting full faith and credit to the Nevada decree of divorce and enrolling said decree as a judgment in Illinois. Frances appeals.

Opinion

On appeal, Frances contends that the trial court erred in granting full faith and credit to the Nevada decree. The controlling principles are well settled. The power of a court to grant a divorce is founded on domicile. (Esenwein v. Pennsylvania (1945), 325 U.S. 279, 89 L. Ed. 1608, 65 S. Ct. 1118.) An ex parte divorce is to be afforded full faith and credit so long as the plaintiff has met the domicile requirements of the forum, regardless of the marital domicile. Personal jurisdiction over the defendant is not required. (Williams v. North Carolina (1942), 317 U.S. 287, 87 L. Ed. 279, 63 S. Ct. 207.) The full faith and credit clause operates, however, only with respect to judgments rendered by a court whose jurisdiction is not impeached. Williams v. North Carolina (1945), 325 U.S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092.

In the instant case Frances contends that Thomas did not establish a domicile in Nevada and argues, therefore, that the decree was obtained by fraud and should not be afforded full faith and credit by the Illinois courts. Thus, the principal question before us is whether Thomas established a bona fide domicile in Nevada. The principles governing this question were enunciated by this court in In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 1026, 423 N.E.2d 1201, 1203:

“Domicile is defined as the place where a person has his true, permanent home to which he intends to return whenever he is absent. (Schultz v. Chicago City Bank & Trust Co. (1943), 384 Ill. 148, 156, 51 N.E.2d 140, 144.) The question of domicile is largely one of intention, and to establish a new domicile a person must physically move to a new home and live there with the intention of making it his permanent home. Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220.
* * *
Of paramount importance in determining whether a given place is or is not one’s residence is the intent of that person to live there as his permanent home. (Green v. Green (1976), 41 Ill. App. 3d 154, 159, 354 N.E.2d 661, 667.) Whether or not a party has abandoned one residence in favor of another in a different jurisdiction is a question of fact.” In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 1026, 423 N.E.2d 1201, 1203.

In the instant case Thomas testified before the Nevada court that he had been physically domiciled in that State for the requisite period of time and that it was then his intention to remain there as his permanent home. On this uncontroverted evidence, the Nevada court found that domicile had been established.

Although a foreign divorce decree may be collaterally attacked on the matter of jurisdiction, when a divorce decree is challenged in another jurisdiction a presumption of validity operates in favor of the requisite domicile. (Esenwein v. Pennsylvania (1945), 325 U.S. 279, 89 L. Ed. 1608, 65 S. Ct. 1118; Keck v. Keck (1974), 56 Ill. 2d 508, 309 N.E.2d 217; see Williams v. North Carolina (1945), 325 U.S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092.) The burden of overcoming a finding of domicile made by the court granting the divorce is on the party challenging that finding. Keck; Bonate v. Bonate (1979), 78 Ill. App. 3d 164, 397 N.E.2d 88.

In her brief Frances makes numerous allegations and statements unsupported in the record. The record, however, discloses no facts presented by her tending to show that Thomas was not properly domiciled in Nevada at the time he filed his action there. In his complaint before the Nevada court, Thomas averred residence as required by Nevada statute and presented testimony thereon. The Nevada decree found that the evidence presented sustained the allegation. Absent evidence controverting Thomas’ testimony regarding domicile, we do not find that the presumptive validity of the Nevada decree is overcome. See Keck.

Frances argues that the instant facts parallel those in Fink v. Fink (1976), 37 Ill. App. 3d 604, 346 N.E.2d 415, wherein the court held that a Nevada divorce decree was improperly granted full faith and credit. In Fink the defendant, a teacher, left Illinois two days after the school term ended and returned one week before the fall term began. Although he terminated the lease of his rented room in Illinois and moved most of his personal property to Nevada, he did not resign from either of two teaching positions he held but left continued employment open as a viable option if he could not find suitable employment in Nevada. Relying on the general rule that “in order to establish a new domicile, the intent to do so must be unqualified and not conditional upon the happening of some future event” (37 Ill. App. 3d 604, 609, 346 N.E.2d 415, 419-20), the court found that the defendant’s intent to make Nevada his domicile was conditioned upon finding suitable employment there and his domicile, therefore, remained in Illinois. In addition to the retention of his teaching position in lilinois, the Fink court relied on the character of the defendant’s search for employment in Nevada which they termed “superficial” and “conducted casually” in determining that the defendant had not established a bona fide domicile in Nevada.

The instant case is distinguishable from Fink in that there was no evidence presented to show that Thomas’ stated intent to establish a domicile in Nevada was qualified or conditional upon the happening of some future event. In the Nevada proceedings he testified that he in fact moved to Nevada, intending to establish it as his permanent home and residence, at least for an indefinite period of time, and that he was physically there domiciled from May 7, 1979, until the date the complaint was filed. In the subsequent Illinois proceedings held on September 17, 1981, Thomas testified that he left Illinois on May 3, 1979, and arrived in Las Vegas on May 7, 1979. Upon his arrival he rented an apartment on a month-to-month basis, which apartment he retained until on or about December 10, 1979. Seven weeks after his arrival he filed the complaint for divorce in Nevada. Since he was not eligible to take the Nevada bar examination until the following year, he there sought employment as a clerk in the District Attorney’s office and as a judicial law clerk and also worked on the preparation of a novel. He earned approximately $10,000 while living in Nevada. He registered to vote and did vote in elections in Clark County, Nevada, investigated the purchase of a burial plot, and otherwise prepared for an extended stay. Although he left Nevada on business trips to the West Coast, Chicago and other locations, he intended to remain in Nevada and make it his permanent residence. After the Nevada court granted Thomas’ decree of divorcee on July 27, 1979, he traveled to Illinois and on August 10, 1979, married Mary Louise Kearns, to whom he had been engaged prior to his leaving Illinois. The reason for his return to Illinois in December 1979 was that his wife, Kearns was an elected official and had decided to run for reelection. At the time of the hearing, Thomas had not reestablished his law practice in Illinois but intended to do so. Thomas’ testimony was unrebutted.

Frances, in opposition, testified only that within 14 days of the entry of the Nevada decree Thomas returned to Illinois and was married.

We recognize that failure to establish a bona fide domicile in a foreign jurisdiction is a proper basis for a court’s refusal to accord full faith and credit to a divorce decree rendered by a foreign court. (Keck v. Keck (1974), 56 Ill. 2d 508, 309 N.E.2d 217.) However, in the Illinois proceedings Frances failed to sustain her burden of proof that Thomas did not establish domicile in Nevada. Thus, we cannot state on this record that the presumption of validity as to the Nevada decree was overcome.

Frances further argues that Thomas’ failure to inform the Nevada court of the action pending in Illinois and the injunction against him constituted a fraud on the Nevada court, thus invalidating the divorce decree. We disagree. An injunction acts only upon the parties involved and in no way hinders or impedes the operation of a foreign court. (Keck; Bonate v. Bonate (1979), 78 Ill. App. 3d 164, 397 N.E.2d 88.) Such injunction does not bar the Nevada court from assuming jurisdiction. Keck; Dunham v. Dunham (1896), 162 Ill. 589, 44 N.E. 841.

A judgment is rendered void by the kind of fraud which gives the court merely “colorable jurisdiction” to enter it. (Schwarz v. Schwarz (1963), 27 Ill. 2d 140, 188 N.E.2d 673.) Such fraud involves false allegations that are determinative of the court’s jurisdiction. (Volcan Materials Co. v. Bee Construction Co. (1981), 101 Ill. App. 3d 30, 40, 427 N.E.2d 797, 805.) Failure to disclose to a foreign court the existence of a pending action in another jurisdiction does not constitute the kind of fraud which gives the court colorable jurisdiction, thereby rendering the judgment void. (Schwarz.) At the time relevant to Frances’ allegation the only matter before the Illinois court was the appeal of the May 1979 dismissal order. The fraud herein alleged cannot, therefore, be the basis for a collateral attack on the Nevada divorce.

We will not disturb the findings of the trial court unless they are against the manifest weight of the evidence. (Fink v. Fink (1976), 37 Ill. App. 3d 604, 346 N.E.2d 415.) On the record here presented we find that the court did not err in holding that the Nevada court properly asserted its jurisdiction and in according the Nevada decree full faith and credit.

For the reasons stated, we affirm the order of the trial court.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SUSAN DAVIDSON, Defendant-Appellee.
    Fifth District
    No. 82—125
    Opinion filed July 8, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Mark L. Rotert and Marcia L. Friedl, Assistant Attorneys General, of counsel), for the People.
    Donald E. Groshong and G. Edward Moorman, both of Groshong, Moor-man & Fahrenkamp, Ltd., of East Alton, for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

This is an interlocutory appeal by the People from two orders which the circuit court of Madison County entered during trial. The People raise three issues for review: first, whether the trial court was without authority after trial had commenced to rule on motions raising issues collateral to a determination of the defendant’s guilt or innocence; second, whether the trial court violated principles of collateral estoppel in barring testimony by a State’s witness; and third, whether the trial court’s orders were substantively erroneous. The defendant’s brief raises the additional issue of whether this court has jurisdiction over the instant appeal which, she contends, is from mid-trial evidentiary rulings unappealable under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)). For the reasons which follow, we vacate the orders of the circuit court and remand for a continuation of the trial.

The defendant was charged by information with the offenses of murder under an accountability theory, solicitation, and conspiracy. The charges stemmed from the murder of the defendant’s husband on October 31, 1979. Letters purporting to have been written by the defendant to her alleged paramour and co-conspirator, William Gill, were discovered by the prosecution and obtained pursuant to a search warrant. The circuit court subsequently ordered the defendant to execute handwriting exemplars for comparison with the letters. Monica Westbrook, an employee at the same law firm which employed the defendant as a secretary, allegedly overheard an inculpatory conversation at the law firm’s office between the defendant and a lawyer with the firm. A motion to suppress both the letters and Westbrook’s testimony contended that the items were procured as a result of an illegal search and seizure. A hearing on this motion was held and arguments heard before Judge Matoesian, who denied the motion on May 5, 1981. Judge Matoesian thereafter recused himself from the case, after the defense filed a motion for substitution. After the jury had been impaneled and some testimony received, the defendant orally moved to exclude the handwriting exemplars from evidence on the grounds that compelling the defendant to write verbatim excerpts from some of the letters violated the defendant’s fifth amendment rights and that the copied statements were inflammatory and therefore prejudicial. The defendant also moved to exclude Westbrook’s testimony on the basis of an asserted attorney-client privilege. The trial court orally allowed both motions. The State moved for a mistrial so that an interlocutory appeal could be taken from the orders. This motion was also allowed by the trial court. The prosecutor subsequently filed a certificate of substantial impairment.

The People first challenge the authority of the trial court to rule on the defendant’s oral motions after trial had begun. This issue is interrelated with the defendant’s question of our jurisdiction to hear this appeal and the two issues will be discussed together. The State’s right to appeal from midtrial orders was explained by the supreme court in People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509. The supreme court there noted that a defendant’s right to file motions to suppress after trial has commenced is limited by section 114—12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114—12). (82 Ill. 2d 250, 264.) Under the statute, the trial court has discretion to entertain a motion to suppress even though made during trial, providing the motion alleges that the evidence was illegally seized. (82 Ill. 2d 250,262.) The State’s right to appeal from orders granting such motions is governed by Supreme Court Rule 604 which provides in relevant part that “[i]n criminal cases the State may appeal only from an order or judgment the substantive effect of which results in *** suppressing evidence.” (87 Ill. 2d R. 604(a)(1).) The Flatt court reasoned that because

“the right of a defendant to file motions to suppress after the trial has commenced is limited by the provisions of section 114—12(c), the State’s right to appeal from suppression orders during trial is limited to orders entered allowing these motions. However, some review must be given the prosecution of orders entered granting motions to suppress not authorized under section 114—12(c) which should have been made prior to trial. If the reviewing court determines that the motion was not within the ambit of section 114—12(c) and that the court wrongfully considered it during the trial, the State must be permitted a review of the authority of the court to enter the suppression order, even if it did not involve illegally seized evidence and section 114—12(c) of the Code of Criminal Procedure of 1963. The review would not, in such a case, be of the merits of the court’s ruling but rather would concern the trial court’s authority to entertain the motion.” 82 Ill. 2d 250, 264.

The first step in analyzing the instant case is to determine whether the State may seek appellate review of the trial court’s rulings. Whether a ruling which operates to prevent the admission of evidence is reviewable in the appellate court is determined solely by the prosecutor’s certificate of substantial impairment. (82 Ill. 2d 250, 264; see People v. Tomasello (1981), 98 Ill. App. 3d 588, 597, 424 N.E.2d 785.) This conclusion is bolstered by the supreme court’s holding in People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501. The court there stated that

“Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case. Our intention in requiring this certification is not to formulate a standard by which courts may determine the appealability of a particular order. As this court noted in Van De Rostyne, that would indeed be a heavy burden, one which we do not believe justified by the marginal diminution in the number of appeals which we anticipate such a procedure would produce. Instead we rely solely upon the good-faith evaluation by the prosecutor of the impact of the suppression order on his case.” (Emphasis added.) (People v. Young (1980), 82 Ill. 2d 234, 247.)

While Young applied this rule to pretrial orders, Flatt expressly adopted the rule in connection with midtrial rulings. “The right of such review, however, does not extend to rulings which do no more than exclude evidence made during trial but must be limited to rulings which substantially impair the State’s ability to prosecute the case as shown by the certificate of the prosecutor following the rationale of our holding in People v. Young (1980), 82 Ill. 2d 234.” (People v. Flatt (1980), 82 Ill. 2d 250, 264-65.) We distinguish here “reviewability” from “appealability”; the former is a limited concept confined to the narrow issue of the State’s right to seek appellate evaluation of the trial court’s authority to entertain the defendant’s motion (see 82 Ill. 2d 250, 264), while the latter is the ultimate conclusion under Rule 604(a). The prosecutor in the case sub judice filed a certificate of substantial impairment, and we hold that we therefore must determine whether the trial court had the authority under section 114—12 to consider the defendant’s motions.

The defendant has cited the recent appellate court case of People v. Johnson (1983), 113 Ill. App. 3d 367, 447 N.E.2d 502, as authority for a contrary position. In Johnson the defendant moved during trial to preclude the State from introducing testimony relating to the defendant’s allegedly false exculpatory statement. The' trial court allowed the motion and the State obtained a mistrial for the purpose of maintaining an interlocutory appeal. In determining whether the State could appeal from the trial court’s order, the appellate court in Johnson stated that “Supreme Court Rule 604(a)(1) permits the State to bring an appeal from an order ‘the substantive effect of which results in *** suppressing evidence.’ (87 Ill. 2d R. 604(a)(1).) Stated differently, the issue before this court is whether the trial court’s ruling here was, in fact, an order ‘suppressing evidence’ as that term is used in Supreme Court Rule 604.” (People v. Johnson (1983), 113 Ill. App. 3d 367, 370.) The court then reviewed the supreme court’s opinions in Young and Flatt and discussed the problems entailed in defining a suppression order. The court determined that various public policies, including that of judicial economy, militate against interlocutory appeals. The court concluded that

“a midtrial order ‘suppressing evidence,’ as that term is used in Supreme Court Rule 604(a)(1), is one in which the evidence is suppressed and denied admittance because it was illegally obtained in violation of a constitutional or statutory right, or even though lawfully obtained, its admittance is to be denied because of a statutory prohibition or the violation of a court rule or some other grounds besides the recognized rules concerning the admission of evidence.” (People v. Johnson (1983), 113 Ill. App. 3d 367, 373-74.)

A broader rule, noted the court, would “cause grave disruption of criminal trial proceedings and would violate defendant’s constitutional rights to due process and fair trial.” (113 Ill. App. 3d 367, 374.) The court then analyzed the trial court's order and determined that it was an evidentiary ruling rather than a suppression order. The court dismissed the appeal and ordered the defendant freed on double jeopardy grounds. While we do not disagree with the court’s analysis in determining whether the trial court’s ruling was “evidentiary,” we cannot agree that it is that analysis which governs the reviewability of the trial court’s order in the first instance. As indicated above, the supreme court has extended appellate review under Rule 604(a)(1) “to rulings which substantially impair the State’s ability to prosecute the case as shown by the certificate of the prosecutor following the rationale of our holding in People v. Young (1980), 82 Ill. 2d 234.” (People v. Flatt (1980), 82 Ill. 2d 250, 264-65.) The supreme court has thus read Rule 604(a)(1) more broadly than the literal interpretation of the Johnson decision. Moreover, the concern for public policy which underlies the Johnson opinion has already been explored by the supreme court in both Young and Flatt. The supreme court in Flatt balanced the concerns expressed by the Johnson court against the countervailing policy considerations arising from the unavailability of review from judgments of acquittal and the unfairness of weakening the State’s case by the erroneous entry of suppression orders during trial (People v. Flatt (1980), 82.Ill. 2d 250, 264), and concluded that appellate review should extend to midtrial rulings which the prosecutor determines to be a substantial impairment to his case (82 Ill. 2d 250, 264-65). Consequently, we believe that the supreme court has already struck the balance between competing public interests and we, as an intermediate court of review, are not in a position to reexamine that policy determination. Accordingly, we decline to follow the mechanics of the decision in People v. Johnson, and will proceed to an analysis of the trial court’s authority to entertain the defendant’s motions.

Under Flatt, whether an order “suppresses” or “excludes” evidence determines whether the underlying motion was within section 114—12 and, concomitantly, whether the trial court had the authority to rule on the merits of the motion. (82 Ill. 2d 250, 264-65.) Although we have already held that the prosecutor’s certificate controls the limited question of the reviewability of the trial court’s order, that certificate is not dispositive of whether the defendant’s motion was a motion to “suppress” within section 114— 12, nor is the defendant’s designation of the motion controlling. (See People v. Flatt (1980), 82 Ill. 2d 250, 266.) We believe that the determination of whether the trial court “suppressed” evidence was left to the reviewing court by the decision in Flatt. The supreme court there stated that “where the reviewing court has determined that the trial court entertained and allowed a motion to suppress that is not authorized by section 114—12(c)” the order should be vacated and the cause remanded. (82 Ill. 2d 250, 265. See also People v. Tomasello (1981), 98 Ill. App. 3d 588, 598.) The court in Flatt looked to the “gist of the motion” in deciding whether the motion sought suppression of evidence. (82 Ill. 2d 250, 266.) In People v. Phipps (1980), 83 Ill. 2d 87, the supreme court indicated that a court of review should consider whether the “substantive effect, rather than simply [the] form, of the trial court’s order *** does operate to prevent evidence from being admitted.” 83 Ill. 2d 87, 90-91.

The standard governing the classification of an order by the reviewing court as “excluding” or “suppressing” evidence under section 114—12 has proven elusive. In Flatt, the supreme court referred to “an issue collateral to the determination of defendant’s guilt or innocence” as the basis for a motion to suppress. (82 Ill. 2d 250, 266.) The appellate court, in a pre-Flatt case, discussed this concept in greater detail.

“In general that rule has referred to the suppression of evidence, which although probative, has been obtained in violation of the constitutional privilege of the accused against self-incrimination [citation] or his right to be free from unreasonable searches and seizures [citation]. The purpose of the exclusion *** is not to aid in the truth-seeking process but to deter future deprivations of individuals’ rights by similar attempts to improperly obtain evidence.” (People v. Jackson (1979), 67 Ill. App. 3d 24, 27, 384 N.E.2d 591.)

The court concluded that the order, which refused admission of evidence because its prejudicial effect outweighed its probative value, was evidentiary in nature rather than suppressive. (See also People v. Macaluso (1976), 36 Ill. App. 3d 592, 344 N.E.2d 476.) Similarly, the court in People v. Johnson (1983), 113 Ill. App. 3d 367, held that an order based on lack of relevance “excluded” evidence. The appellate court has also held that an order which was based on the prosecution’s failure to establish a chain of custody in the handling of a document “excluded” evidence. (People v. Williams (1982), 108 Ill. App. 3d 219, 220, 438 N.E.2d 1311.) Conversely, the court in People v. Tomasello (1981), 98 Ill. App. 3d 588, held that an order which struck a witness’ testimony because of a violation of a statute prohibiting the State from paying an investigator a fee contingent on the success of the prosecution was suppressive in nature. In People v. Stuckey (1979), 78 Ill. App. 3d 1085, 1090, 398 N.E.2d 97, the trial court’s order precluding identification testimony because of alleged police misconduct in failing to produce photographs was held to be a suppression ruling. In Flatt, the supreme court held that testimony concerning fingerprint evidence gleaned from a pane of glass not produced by the prosecution had been “suppressed” by the trial court. In People v. Phipps (1980), 83 Ill. 2d 87, the court held that an order prohibiting the State from calling any witness who invoked a statutory privilege was suppressive. The court in People v. Meyers (1982), 109 Ill. App. 3d 862, 865, 441 N.E.2d 397, held that the trial court’s refusal to admit evidence obtained in-violation.of the accused’s sixth amendment right to counsel was an order “suppressing” evidence. The rule which thus emerges from the cases is that a motion based on criteria relating to the perceived truthfulness, reliability, or relevance of the proffered evidence “excludes” evidence and section 114—12(c) does not preclude the trial court from ruling on such a motion; a motion which is based on public policies forbidding the use of certain evidence .despite its relevance and apparent trustworthiness “suppresses” evidence and section 114—12(c) prohibits the trial court from considering such a motion during trial absent an allegation of illegal seizure. See People v. Flatt (1980), 82 Ill. 2d 250, 266.

The defendant argues strenuously that her motions were not motions to “suppress” but rather only ones seeking to “exclude” evidence and therefore were appropriately made during trial under section 114—12(c). The defendant further argues that because the motions were not motions to suppress, the trial court’s orders are substantively unappealable under Supreme Court Rule 604(a), and the appeal must therefore be dismissed. (See People v. Macaluso (1976), 36 Ill. App. 3d 592.) While we agree that dismissal of the appeal would be the proper remedy under Rule 604(a) were we to decide that the trial court “excluded” evidence, the record does not support defendant’s interpretation of the trial court’s orders.

The trial court’s first ruling occurred after the jury had been sworn and impaneled and after at least one witness had testified. Before the prosecution called its expert witness to testify to his comparison of the handwriting samples, the defense sought to preclude the prosecution from introducing the handwriting exemplars. Though two bases for the defense position were presented to the trial court, the record reflects that the court predicated its ruling on a fifth amendment ground. After hearing arguments of counsel the trial court sought clarification of the defendant’s motion.

“The Court: If they are told what to write, then you are saying that could be of a magnitude that violates the Fifth Amendment [?]
[Defense Counsel]: Absolutely.”

After further argument the trial court sustained the objection. The substantive effect of the trial court’s ruling was to preclude the admission not only of the exemplars but also of the prosecution’s entire expert testimony. The basis for the ruling was a perceived implication of the defendant’s fifth amendment privilege against self-incrimination (see generally Annot., 43 A.L.R.3d 653 (1972)). That doctrine involves allegations of illegal State conduct and the public policy against encouraging such acts rather than an evaluation of reliability or relevance. (Cf. People v. Flatt (1980), 82 Ill. 2d 250, 256; People v. Jackson (1979), 67 Ill. App. 3d 24, 27; People v. Macaluso (1976), 36 Ill. App. 3d 592, 594.) Accordingly, the issue was collateral to a determination of the defendant’s guilt or innocence and was therefore a motion to suppress. (People v. Flatt (1980), 82 Ill. 2d 250, 266.) The order is therefore appealable under Rule 604(a), and we need not dismiss the appeal. For the same reason, the motion should have been made before trial; because it was not, and no allegation of illegal seizure was made, the motion was untimely under section 114—12(c) and the trial court should not have considered it. (People v. Flatt (1980), 82 Ill. 2d 250, 265-66.) We accordingly vacate the order.

The second ruling at issue arose from the defendant’s motion “to exclude Miss Westbrook’s testimony based on the attorney-client privilege ***.” Westbrook’s counsel indicated to the court that Westbrook would not testify unless the court ruled that the testimony was not barred by the attorney-client privilege. The trial court ruled that it “would honor the attorney-client privilege as to the testimony of Monica Westbrook.” Like the fifth amendment exclusionary rule, the attorney-client privilege operates to preclude the admission of evidence on a basis of public policy rather than an evaluation of accuracy, relevance, or credibility. (Cf. People v. Flatt (1980), 82 Ill. 2d 250, 266; People v. Jackson (1979), 67 Ill. App. 3d 24, 27; People v. Macaluso (1976), 36 Ill. App. 3d 592, 594.) We therefore conclude that the- trial court “suppressed” Westbrook’s testimony. This conclusion is bolstered by the supreme court’s decision in People v. Phipps (1980), 83 Ill. 2d 87, where the court determined that an order strikingly similar to the one now under consideration had “suppressed” evidence.

“The court’s order states that no testimony will be permitted to be taken from the witnesses unless the witnesses take the affirmative act of waiving their privilege and turn over the files and reports to the defense. Hence, as presently constituted, the trial would proceed without these witnesses unless some further acts were performed. Evidence is thus being ‘suppressed’ as of the moment.” (83 Ill. 2d 87, 91.)

We therefore hold that the order suppressed Westbrook’s testimony and consequently was untimely. The trial court was therefore without authority to consider it. (People v. Flatt (1980), 82 Ill. 2d 250, 265-66.) Accordingly, the order is vacated.

In view of the result reached, we need not consider the State’s other assertions of error, although a brief comment on the double jeopardy aspect of this case is appropriate. Because the mistrial was triggered by the defendant’s untimely motions to suppress, she may be tried without violating the proscription against double jeopardy. (See People v. Flatt (1980), 82 Ill. 2d 250, 265.) Accordingly, the cause is remanded to the circuit court of Madison County for a continuation of the trial.

Vacated and remanded.

KASSERMAN and EARNS, JJ., concur.

       While we disagree with the Johnson court’s method of determining appealability, we are in harmony with that court’s exposition and application of the rule differentiating “suppression” from “exclusion” of evidence. See 113 Ill. App. 3d 367, 373-74.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD STECKHAN, Defendant-Appellee.
    First District (5th Division)
    No. 82—216
    Opinion filed July 15, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Defendant, Ronald Steckhan, was charged by information with possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2).) He filed motions to quash the search warrant and suppress evidence seized. After an evidentiary hearing, those motions were granted. On appeal (87 Ill. 2d R. 604(a)(1)), the State asserts that the trial court erred when it granted defendant’s motions.

Although no appellee’s brief has been filed, this will not affect our review of this matter. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Defendant testified that at 3:30 p.m. on June 16, 1981, he arrived at O’Hare Airport. As he walked through the doors to the baggage claim section, he was stopped by Officer Rosemary Burzinski and Agent Bob Fulkerson. Agent Fulkerson placed his hand under defendant’s arm and asked if he would step over to the side. Both officers then identified themselves and displayed their badges. The officers did not tell him that he was free to leave and he did not believe that he could do so. They asked for his identification and airline ticket. They also told him he matched a description, but did not indicate what description. They then advised him that they wanted to search his luggage which they took and opened. Next, they removed a box from inside his luggage.

Rosemary Burzinski testified that she is an officer for the Chicago police department who works in the narcotics division and is stationed at O’Hare Airport. At 3 p.m. on June 16, 1981, she and Federal Agent Bob Fulkerson of the Drug Enforcement Administration, working in civilian clothes, monitored Delta flight 458 arriving from Fort Lauderdale, Florida. The officer identified Fort Lauderdale as a “source city,” i.e., one of the key cities from which narcotics are distributed. Defendant was the last passenger to exit the plane. The officer claimed that defendant walked slowly as he entered the concourse area and looked over his shoulder. He proceeded down the American Airlines’ escalator to the American Airlines’ baggage claim area. From there he walked to the Delta Airlines’ baggage claim area where he retrieved an attache case and brown suitcase. He gave the security guard two claim tickets and proceeded toward the exit. Officer Burzinski and Agent Fulkerson then walked alongside defendant, identified themselves, and asked to speak with him. He gave them an expired Illinois driver’s license for identification and a copy of his airline ticket. Inside his wallet was a large amount of currency. The ticket had been purchased for cash on the day of the flight. According to Officer Burzinski, the defendant, who was “visibly shaking,” stated that he had been on a two-day vacation in Florida. A young girl then appeared, spoke to defendant and remained near him while the officers informed defendant that they were conducting a drug investigation and that he was not under arrest but was free to leave. They then asked him more questions. He informed them that he was self-employed in the construction business and had never been arrested. The officers asked if they could open his luggage and he agreed. Neither piece of luggage contained clothes. However, inside the attache case was a package wrapped in brown paper, tape and string and addressed to Eric Steckhan. Defendant stated that the package contained shells and he did not mail it because he did not have enough money for additional postage. A man in his fifties then appeared at the doors near the baggage claim area and made eye contact -with defendant before leaving. The defendant refused the officers’ request to open the brown package. They then said they would take it to the customs area and let a dog sniff it for narcotics and that defendant could wait for the package or accept a receipt for it. He accepted the receipt, and left the airport with the other man. Several hours later, the officers obtained a search warrant and opened the package.

Don Steckhan testified that he is defendant’s father. On June 15, 1981, defendant called him from Florida and told him he would arrive the next day at O’Hare Airport, and he made arrangements to pick defendant up. When the witness and his 17-year-old daughter, Connie, arrived at the airport, they could not find a parking space. Connie entered the terminal to locate defendant while the witness remained in the car. Shortly thereafter, a police officer permitted the witness to park for a few minutes while he entered the terminal to locate defendant and Connie. When the witness proceeded to the baggage claim area, he observed defendant and Connie with a man and a woman. The witness then returned to his car.

Now, the State contends that the police properly detained defendant’s parcel for a cocaine sniff where the preceding stop disclosed articulable facts upon which the officers would reasonably conclude that the parcel contained narcotics. A trial court’s finding on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) An investigatory stop of an individual is proper where police officers can identify specific and articulable facts which when combined together with rationale inferences reasonably warrant the intrusion. (People v. Smithers (1980), 83 Ill. 2d 430, 415 N.E.2d 327.) The purpose of this standard is to protect individuals from intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. (People v. McMullen (1980), 82 Ill. App. 3d 1042, 403 N.E.2d 539.) A seizure occurs whenever a police officer accosts an individual and restrains his freedom to walk away. (People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858.) Voluntariness is a determination to be made from the totality of all the circumstances. People v. DeLisle (1982) , 104 Ill. App. 3d 297, 432 N.E.2d 954.

A review of the record herein discloses that when the officers initially confronted defendant, they committed a Terry investigatory stop. We note that the United State Supreme Court recently considered two cases that are somewhat similar, but distinguishable from the instant matter. They are Florida v. Royer (1983), 460 U.S. _, 75 L. Ed. 2d 229, 103 S. Ct. 1319, and United States v. Place (1983) , 462 U.S. _, 77 L. Ed. 2d 110, 103 S. Ct. 2637. Both cases involved investigatory stops at the Miami International Airport. In Florida v. Royer, the defendant Mark Royer, was observed at the airport by two detectives from Dade County, Florida, who were working on a narcotics detail. The detectives determined that Royer met the “drug courier profile,” that is, an abstract of characteristics associated with persons who transport illegal drugs. The characteristics allegedly displayed by Roger are as follows: (1) that he carried American Tourister luggage, which appeared to be heavy; (2) that he was young and casually dressed; (3) that he appeared pale and nervous; (4) that he looked at other people; (5) that he paid for his ticket in cash with a large number of bills; and (6) that he failed to complete the airline identification tag attached to his baggage which had space for a name, address and telephone number, but simply wrote the name, “Holt,” and the destination “LaGuardia.”

When the officers confronted Royer as he walked through the concourse, he provided his correct name and stated that a friend made the reservation in the name Holt. The officers informed him that he was suspected of transporting narcotics. He appeared to become more nervous as the conversation continued. The officers removed him to a small room adjacent to the concourse and used his airline ticket and other identification to claim his luggage. They opened one suitcase with a key he surrendered, but pried open another piece of luggage.

While the Supreme Court found that law enforcement officials do not violate fourth amendment rights by stopping an individual in a public place and questioning him, the court affirmed the Florida District Court of Appeals order which granted Royer’s motion to suppress evidence. The Supreme Court found that the police officials exceeded the limits of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, when they detained him and that his surrender of the key to his luggage, while consensual, was tainted by the illegality of his detention and was ineffective to justify the subsequent search. The court also rejected Florida’s contention that any individual who carries two pieces of heavy luggage, purchases an airline ticket to a target city with cash, travels under an assumed name and appears nervous may be arrested and held to answer a serious felony charge.

In United States v. Place, the suspicion of law enforcement officers at the -Miami airport was aroused by certain undisclosed behavior of defendant, Raymond Place, as he stood in line to purchase an airline ticket. Place complied when the officers requested his airline ticket and identification. However, because his flight was ready to depart, they did not search his luggage. As they parted, Place indicated he recognized them as officers prior to the stop. The officers then inspected the address tags on his checked luggage and noted discrepancies in the street address. They called Drug Enforcement Administration agents in New York to relay their information regarding Place.

When Place arrived at LaGuardia Airport and claimed his luggage, agents stopped him, again on the basis of unarticulated, but suspicious behavior. When they identified themselves, Place replied that he knew that they were “cops” and that his luggage had been searched in Miami. The agents completed a computer examination of his license and identification and determined that he did not have a criminal record. However, they then asked if they could search his luggage and he refused.

They issued him a receipt, and took his luggage to Kennedy Airport for a “canine sniff.” Ninety minutes after the agents’ initial stop of Place, the dogs reacted positively to one of his pieces of luggage retained by the agents. Because it was late on a Friday afternoon, the agents held the luggage until Monday, when they obtained a search warrant from a magistrate. Upon opening Place’s luggage they found 1,125 grams of cocaine.

In Place, the court concluded that when a law enforcement official’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry and its progeny would permit the official to detain luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope. However, the court held that the detention of Place’s luggage went beyond the narrow authority possessed by the police to detain luggage reasonably suspected to contain narcotics.

The evidence discloses that the stop in the instant case was based on factors that are more tenuous than those in Royer and Place. Here, the defendant was apparently stopped because he was the last passenger to deboard the plane, was young, walked slowly through the concourse, looked over his shoulder, and his flight originated in a source city. The officers did not have specific articulable facts, but acted merely on a hunch when they stopped defendant. The fact that defendant was traveling from Fort Lauderdale cannot be regarded as suspicious. (See People v. Kiser.) Further, nervousness is a characteristic of many innocent travelers. (People v. DeLisle.) Thus, the initial stop of defendant was arbitrary and an unacceptable obtrusive violation of his privacy. Additionally, while defendant surrendered the luggage and package to the officers, it cannot be inferred that this conduct was of his own volition. Also, he had no choice but to leave the package with the officers. Thus, we cannot conclude that the trial court’s decision to grant defendant’s motions were manifestly erroneous.

Accordingly, the order of the circuit court of Cook County is affirmed.

Judgment affirmed.

LORENZ and MEJDA, JJ., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THREAD AND GAGE COMPANY, INC., Plaintiff-Appellee and Cross-Appellant, v. BRUNO KUCINSKI, Defendant-Appellant and Cross-Appellee—(Bruno Kucinski, Plaintiff-Appellant and Cross-Appellee, v. Chain O’Lakes Game Corporation, Defendant-Appellee and Cross-Appellant).
    First District (1st Division)
    No. 82—1040
    Opinion filed June 27, 1983.
    Rehearing denied August 1, 1983.

      Thomas I. Matyas and Rhonda L. Stern, both of Rosenthal and Schanfield, of Chicago, for appellant.
    Max E. Sherman, of Chicago, for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of an action brought by Bruno Kucinski against Chain O’Lakes Game Corporation (now doing business as Thread and Gage Company, Inc.) alleging breach of contract and seeking damages and interest allegedly due him. Chain O’Lakes denied liability and, under the new corporate name of Thread and Gage Company, Inc. (Thread and Gage), countersued Kucinski in equity for specific performance. The trial court entered judgment in favor of Thread and Gage for specific performance and granted judgment to Kucinski in the sum of $20,000 plus 5% interest from September 1, 1962. Kucinski appeals the amount of damages and the granting of specific performance, and Thread and Gage cross-appeals.

The record reveals that prior to December 21, 1961, Deno Buralli was the owner of an Illinois corporation known as Chain O’Lakes Game Field Corporation. For many years prior thereto, Bruno Kucinski and his family owned and operated a business known as Thread and Gage Company, Inc., which specialized in thread grinding for aircraft parts and high precision machines. The business consisted of a parcel of improved real estate in Schiller Park, Illinois, owned by Kucinski in his own name and various items of machinery owned by two corporations which Kucinski controlled, namely, Thread and Gage Company, Inc., and B. K. Machine Leasing Company. Buralli worked for Kucinski for several years as a manufacturer’s representative.

On December 21, 1961, the parties executed a series of agreements to effectuate the sale of Kucinski’s business to Buralli’s corporation, Chain O’Lakes. The first agreement provided for the sale of the assets of B. K. Machine Leasing Company for $25,000; $5,000 down and the $20,000 balance payable in monthly installments of $250 or more a month commencing on September 1, 1962, with no interest being charged on the principal unless there was a delinquency in any of the installments and, if so, then a charge of 5% interest per annum on the principal, payable each month. The agreement included a list of certain items of machinery that were covered under this particular transaction.

The second agreement between Kucinski and Buralli, as agent for Chain O’Lakes, covered the sale of the assets of Thread and Gage Company, Inc. The agreement stipulated that the $100,000 purchase price was to be satisfied by Chain O’Lakes’ payment of $10,000 down and installment payments totaling $90,000 under an installment plan with terms identical to the first agreement. A separate list of machinery was also included under this agreement.

A third agreement was on a form entitled “Articles of Agreement for Warranty Deed” (warranty deed agreement), whereby Kucinski undertook to sell certain real estate located in Schiller Park, Illinois, to Chain O’Lakes. The agreement provided that the purchase price for the real estate was $75,000; $5,000 down and the $70,000 balance to be paid in monthly installments of $500 or more commencing on September 1, 1962, with no interest charged on the principal unless there was a delinquency in payment and, if so, then 5% was to be charged on the principal balance until the delinquent installment was paid.

The parties further agreed that Kucinski’s corporation was to release the corporate name of Thread and Gage Company, Inc., to permit Chain O’Lakes to assume the name. After the documents were signed and the various downpayments were made, a dispute arose between the parties over the fact that certain items of machinery sold to Chain O’Lakes under the B. K. Machine Leasing Company agreement (BKML agreement) were also included under the agreement covering machinery belonging to Kucinski’s former Thread and Gage corporation (Thread and Gage agreement). On September 1, 1962, when the first installment payments were due under the three agreements (a total of $1,000; $250 under the BKML agreement, $500 under the warranty deed agreement, and $250 under the Thread and Gage agreement), Bur alii, on behalf of Chain O’Lakes, refused to make the $250 payment due under the BKML agreement. Additionally, Buralli testified that he informed Kucinski no future payments would be made under that agreement.

Each month thereafter, Thread and Gage (formerly Chain O’Lakes) made installment payments to Kucinski in the sum of $750, rather than the $1,000 due under all three agreements. The monthly checks were either cashed or deposited by Kucinski.

On May 20, 1969, an attorney, acting on behalf of Kucinski, sent a letter to Thread and Gage requesting payment of $20,000 plus 5% interest, which was claimed due for the machinery covered under the BKML agreement. Thread and Gage, however, continued in its repudiation of the agreement, sending monthly checks in the sum of $750 instead of $1,000.

On March 27, 1973, Kucinski filed a complaint at law, seeking $250 per month, plus interest from September 1, 1962, to February 1, 1973, or a total of $31,250. In its answer, Chain O’Lakes denied liability and on January 10, 1975, countersued Kucinski in equity for specific performance of the articles of agreement for warranty deed. The suit for specific performance alleged that the $75,000 purchase price set forth in the warranty deed agreement had been paid and that Thread and Gage was, therefore, entitled to the deed.

On December 21, 1976, Kucinski amended his complaint at law and alleged, for the first time, that the failure of Thread and Gage to make payments under the BKML agreement constituted a breach of the other two agreements, thereby triggering interest from September 1, 1962, for the combined balance of all the agreements. The amended complaint sought damages in the sum of $196,000 plus 5% interest.

The trial court found that “all of the documents were in fact executed at one time” and “did in fact constitute one transaction.” The trial court further determined that the transaction was to be completed by Chain O’Lakes (the present Thread and Gage) in three separate phases: (1) purchase of the realty under the warranty deed agreement; (2) purchase and payment of the agreement wherein the former Thread and Gage sold all of its assets to Buralli or his nominee; and (3) payments to be made under the BKML agreement.

The trial court further found that the present Thread and Gage was in compliance with the terms and conditions of the first two phases, but that it breached phase three of the transaction in failing to pay the first installment due September 1, 1962, under the BKML agreement. Accordingly, the court awarded judgment to Kucinski in the sum of $20,000 plus 5% interest from September 1, 1962. Upon payment of this judgment, the court ordered Kucinski to specifically perform under the warranty deed agreement and convey a deed to Thread and Gage. The court further ordered Thread and Gage to continue complying with the terms of the second phase.

In accordance with the above order, Thread and Gage tendered payments of $39,981.72 ($20,000 plus 5% interest) and requested the warranty deed. Kucinski refused to accept payment or deliver the deed.

On appeal, Kucinski first argues that the three agreements are to be construed as one contract and that a failure to pay installments under the BKML agreement is a breach of the other two agreements. We reject this argument.

Where different instruments are executed at the same time between the same parties and in the course of the same transaction, all the instruments must be read and construed together. (Sudeikis v. Chicago Transit Authority (1980), 81 Ill. App. 3d 838, 401 N.E.2d 1114.) It is a fundamental principle that in construing contracts the primary objective is to determine and give effect to the intentions of the parties. (AZL Resources, Inc. v. Bromagen (1979), 79 Ill. App. 3d 76, 398 N.E.2d 292.) The most reliable indicator of the parties’ intent can be found in the language used in their contract. (In re Estate of Savage (1979), 73 Ill. App. 3d 656, 392 N.E.2d 263.) Where a contract is ambiguous, courts may determine the parties’ intent by looking to the interpretation which the parties themselves have placed on the agreement as shown by their contemporaneous or subsequent acts or conduct. See Winn v. Turner (1977), 55 Ill. App. 3d 291, 371 N.E.2d 170; Bulley & Andrews, Inc. v. Symons Corp. (1975), 25 Ill. App. 3d 696, 323 N.E.2d 806.

Here, although the three agreements were executed at the same time and constituted one transaction, we believe that it was the parties’ intention to treat payments and defaults under each of the agreements as separately payable and enforceable. First, we note that the language of each agreement is unambiguous; none of the agreements refer to each other. If the parties had intended the failure to pay one of the agreements to trigger a default of the other agreements, they could have provided such terms in the agreement. Courts may not rewrite a contract to suit one of the parties, but must enforce the terms as written. Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 398 N.E.2d 103.

Secondly, in September 1962, Buralli told Kucinski no further payment would be made under the BKML agreement because of the parties’ dispute over the inclusion of the same machinery in both the BKML and Thread and Gage agreements. If, at that time, Kucinski thought that a default had occurred in the payment of all three obligations, he had available to him effective means of collecting under the agreements. Instead, however, Kucinski accepted payments under the warranty deed and Thread and Gage agreements for more than 10 years before filing suit. Additionally, when Kucinski made a written claim through his attorney for $20,000 plus 5% interest in 1969 under the BKML agreement, he made no reference to any of the other two agreements. Moreover, Kucinski did not seek damages and interest under the other two agreements when he initially filed suit for breach of contract in 1973 against Chain O’Lakes for its failure to make installment payments of $250 per month from September 1, 1962, through February 1, 1973, plus 5% interest. In fact, it was not until 1975, after Thread and Gage brought its action against Kucinski for specific performance of the warranty deed agreement, that Kucinski amended his complaint to include damages and interest under the other two agreements.

Accordingly, the interpretation of the agreements requested by Kucinski, that a failure to pay installments under the BKML agreement is a breach of the other two agreements, is clearly unreasonable. The trial court correctly concluded that Kucinski could not, and did not, intend for a default to exist for over 10 years while at the same time accepting payments and treating two of the three agreements as viable and up-to-date.

We next consider Thread and Gage’s contention that the cause of action on the BKML agreement is barred by Illinois’ 10-year statute of limitations for actions on contracts. (Ill. Rev. Stat. 1981, ch. 83, par. 17, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 13—206.) The trial court refused to apply the statute of limitations and held that Thread and Gage was liable for all payments due under the contract, plus 5% interest from September 1, 1962.

The agreement in question provided for installment payments of $250 each month and, upon default in any payment, acceleration of the payments at the option of the seller (Kucinski). The general rule is that where a money obligation is payable in installments, a separate cause of action arises on each installment and the statute of limitations begins to run against each installment as it becomes due. Light v. Light (1957), 12 Ill. 2d 502, 147 N.E.2d 34; Brehm v. Sargent & Lundy (1978), 66 Ill. App. 3d 472, 384 N.E.2d 55; 18 Williston on Contracts sec. 2026C (3d ed. 1978); 4 Corbin, Contracts sec. 951 (1951); 51 Am. Jur. 2d Limitation of Actions sec. 133 (1970).

The general rule applies even though the agreement in this case contains an optional acceleration provision. Where the creditor has the option of declaring all installments payable in the event of default on a single payment, and the creditor fails to exercise the option when the debtor defaults, the rule that each installment carries its own limitation still applies. (See Honn v. National Computer Systems, Inc. (Minn. 1981), 311 N.W.2d 1; 18 Williston on Contracts sec. 2027 (3d ed. 1978); 4 Corbin, Contracts sec. 951 (1951).) The option is intended for a creditor’s benefit and, therefore, a creditor’s failure to take advantage of the optional provision does not self-execute it to a creditor’s detriment with respect to the running of the statute of limitations. (See, e.g., Chase National Bank v. Burg (D. Minn. 1940), 32 F. Supp. 230; Frenzel v. Frenzel (1967), 260 Iowa 1076, 152 N.W.2d 157.) It is only where the acceleration provision of the contract provides that payment of the entire debt upon default is automatic, or where the acceleration provision is optional and the creditor unequivocally exercises the option, that a different rule might apply; it is sometimes held in those instances that the statute of limitations begins to run immediately upon default. Honn; 18 Williston on Contracts sec. 2027 (3d ed. 1978); 4 Corbin, Contracts sec. 951 (1951).

Here, although Kucinski had the option of accelerating payment, the record does not reveal that he exercised that right after default on the BKML agreement. Therefore, applying the rule that each installment carries its own statute of limitations, we hold that Kucinski’s claim under the BKML agreement for monthly payments of $250, which became due September 1, 1962, through March 27, 1963, is barred by the statute of limitations. Kucinski’s claim for those monthly payments falling due after March 27, 1963, however, is timely, and he is entitled to the sum of those payments plus interest due under the BKML agreement.

We further find that the present Thread and Gage is entitled to specific performance of the articles of agreement for warranty deed. The granting of specific performance rests on sound judicial discretion, to be determined by the facts and circumstances of each individual case. (Friedman v. 5424 Cornell Corp. (1978), 65 Ill. App. 3d 7, 382 N.E.2d 296.) Here, the facts reveal that the warranty deed agreement provided for the payment of $75,000; $5,000 down and the balance in monthly installments of $500 or more commencing September 1, 1962. There is no language in the warranty deed agreement to indicate that delivery of the deed is dependent upon anything other than payment of the $75,000 purchase price. Nor does the agreement contain any contingencies with regard to any other agreements. Further, Kucinski had accepted payment on this agreement since 1962, and he never claimed a forfeiture under the agreement. Upon these facts, the trial court, finding that Thread and Gage had complied with the terms under the warranty deed agreement and that Kucinski failed to tender the deed to the realty involved, ordered Kucinski to deliver the warranty deed, subject to Thread and Gage’s payment to Kucinski of $20,000 plus 5% interest found due under the BKML agreement. Although Thread and Gage subsequently tendered the amount ordered paid and requested the deed, Kucinski refused the tender of payment. Therefore, under these circumstances, we believe the granting of specific performance in favor of Thread and Gage is justified.

Finally, we address Kucinski’s request that the trial court’s denial of attorney fees be reversed. We note that the BKML agreement included a confession of judgment clause authorizing entry of judgment for the amount due, together with costs and 20% of such amount as attorney fees. Kucinski, however, did not proceed by way of confession of judgment.

The well-established rule in this State is that attorney fees are ordinarily not recoverable unless specifically authorized by statute or contract. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 442, 343 N.E.2d 479.) A court may not award attorney fees as a matter of contractual construction in the absence of specific language. (Qazi v. Ismail (1977), 50 Ill. App. 3d 271, 364 N.E.2d 595.) Here, no provision in the agreement, other than the confession of judgment clause, authorized attorney fees. Kucinski, having proceeded other than by way of confession of judgment, is therefore not entitled to attorney fees.

For the foregoing reasons, the judgment of the circuit court is modified, and as modified, is affirmed, and the cause is remanded.

Judgment affirmed as modified; cause remanded.

McGLOON and GOLDBERG, JJ., concur.

      Kucinski and his family formerly owned and operated Thread and Gage Company, Inc., and in December 1961 contracted to sell the business to Chain O’Lakes Game Corporation. As part of this transaction, Kucinski’s corporation agreed to change its name to allow Chain O’Lakes to assume the corporate name of Thread and Gage Company, Inc.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK ANDREW KELLEHER, Defendant-Appellant.
    Fourth District
    Nos. 4—82—0644, 4—82—0689 cons.
    Opinion filed July 21, 1983.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, and Patrick A. Kelleher, of Bloomington, pro se, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Thomas W. Lacy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On September 29, 1982, following a bench trial in the circuit court of Livingston County, defendant, Patrick A. Kelleher, was acquitted of two charges of forgery. On October 4, 1982, following a hearing on the State’s petition to recover attorney fees, the court ordered defendant to pay $440 to reimburse the county for his appointed counsel’s services. A portion of the cash bail bond posted by defendant was to be retained to pay those fees. Defendant then made a disparaging remark to the court, and the court found him to be in direct criminal contempt. He was sentenced to and served one day in jail. Defendant appeals the recoupment order, the contempt finding, and the sentence. We affirm all orders appealed.

Under scrutiny is section 113—3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113—3.1). It authorizes the trial court to require defendants in criminal proceedings, who have been appointed counsel in the trial court or a court of review because of their indigency, to pay “a reasonable sum” to reimburse the county for some or all of costs incurred in furnishing the counsel. Defendant maintains that section 113—3.1 violates due process, because (1) it applies to those acquitted as well as those convicted, and (2) it permits the court to require that money deposited for bail be applied to reimburse the county even though no warning is given to a defendant making bail that this may occur. Defendant also asserts that the court abused its discretion in this case by requiring that defendant’s bail deposit be used to reimburse Livingston County.

We consider first defendant’s claim that the application of the statute to acquitted as well as convicted defendants works a deprecation of due process. Statutes requiring reimbursement to the State from defendants who have been furnished counsel by the State without charge have been before the United States Supreme Court in Fuller v. Oregon (1974), 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116, and James v. Strange (1972), 407 U.S. 128, 32 L. Ed. 2d 600, 92 S. Ct. 2027. Neither is directly on point here.

In Fuller, the court upheld a State statute permitting recoupment against convicted, but not acquitted, defendants and allowing the recoupment to be a condition of probation. The legislation granted those defendants required to make reimbursement all of the exemptions applicable to other debtors and conditioned any requirement for reimbursement upon a defendant’s ability to pay. The court examined the statute on equal protection and right-to-counsel grounds. The court concluded that there was a rational basis for applying recoupment to those convicted but not to those acquitted. It also decided that because of the exemptions provided and the requirement that defendants be able to pay, there was no improper discrimination between rich and poor. A contention raised below that there was improper discrimination because an indigent may be imprisoned for his failure to pay attorney’s expense while a nonindigent who failed to pay his attorney would not, was not preserved for review by the United States Supreme Court. That court also held that the statute did not “chill” a defendant’s exercise of his right to appointed counsel if indigent, because the statute required him to pay only that which he could pay.

In James, the court overturned a Kansas recoupment statute which was applicable to indigents regardless of whether they were convicted or acquitted. It permitted entry of judgment for expense of counsel without a hearing and allowed no exemptions except homestead. The court reasoned that equal protection was denied, stating:

“If acquitted, the indigent finds himself obligated to repay the State for a service the need for which resulted from the State’s prosecution. It is difficult to see why such a defendant, adjudged to be innocent of the State’s charge, should be denied basic exemptions accorded all other judgment debtors.” 407 U.S. 128, 139, 32 L. Ed. 2d 600, 609, 92 S. Ct. 2027, 2033.

Subsequent to James and Fuller in Olson v. James (10th Cir. 1979), 603 F.2d 150, a slightly altered form of the Kansas recoupment statute was considered. The statute granted normal exemptions to defendants but continued to provide for the entry of an automatic judgment against the defendant regardless of indigency. In holding the statute to be still violative of the fourteenth amendment, the Olson court concluded that recoupment of expenses of counsel from those acquitted was one reason for the statute’s infirmity. The court stated that James had held that there “was no rational basis for recouping attorney’s fees where the defendant was acquitted since the state had brought on the prosecution.” 603 F.2d 150,154.

We do not agree with the Olson court’s interpretation of James. The only language in that opinion which the Olson court could have been relying on was that which we previously cited. In the context of the two quoted sentences, it is apparent that the court was saying that, at least in those cases where an indigent was prosecuted by the State but acquitted, the indigent should be entitled to the same exemptions as other debtors.

Section 113—3.1 of the Code of Criminal Procedure of 1963 requires that reimbursement must be in a reasonable sum and recognizes that reason may require that only partial recoupment be ordered. By its terms, it is geared to the defendant’s ability to pay. As with the Oregon statute in Fuller, it is “tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.” (Fuller v. Oregon (1974), 417 U.S. 40, 54, 40 L. Ed. 2d 642, 655, 94 S. Ct. 2116, 2125.) As in Fuller, it does not tend to unduly deter an indigent defendant in the proper exercise of his right to court appointed counsel if indigent.

While Fuller finds a rational basis for distinguishing between those- convicted and those acquitted, the rational basis does not require the distinction. A nonindigent, although acquitted, is ordinarily required, without reimbursement by the State, to pay for counsel. To require an indigent, although acquitted, to reimburse the county, to the extent he is able, for the expense of furnished counsel, tends to put indigents and nonindigents who are acquitted, on the same basis and is consistent with due process.

Defendant also argues that since costs in the trial court can only be assessed against a convicted defendant (Ill. Rev. Stat. 1981, ch. 38, par. 180—3), section 113—3.1 should be similarly limited. However, in Schilb v. Kuebel (1971), 404 U.S. 357, 30 L. Ed. 2d 502, 92 S. Ct. 479, the provision of section 110 — 7(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, ch. 38, par. 110—7(f)) authorizing the clerk of the court to retain 10% of the bail deposit as a fee regardless of whether the defendant was convicted was upheld as an administrative expense properly imposed under those circumstances rather than a cost of prosecution which could only be taxed upon conviction. As we have indicated, if the expense of counsel for an accused was considered to be a cost of prosecution, which one acquitted should not have to bear, logic would require that a nonindigent who was acquitted would be entitled to reimbursement from the State for expenses of obtaining counsel. The provision permitting assessment of costs only against those convicted does not require a similar rule in regard to recoupment under section 113 — 3.1.

Defendant’s second contention is that section 113—3.1 denies due process, because it does not require that notice be given to an accused at the time of depositing bail that portions of his deposit may be awarded to the county as reimbursement for expenses of providing a court appointed lawyer for the accused. Although defendant may have waived this issue by failure to raise it in the trial court, we elect to consider the matter. Defendant correctly states that due process guarantees that one not be deprived of property without a hearing and notice. He cites Fuentes v. Shevin (1972), 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983. However, Fuentes requires a notice and hearing before the actual appropriation of property takes place. Section 113—3.1 satisfies the requirements of Fuentes as it directs that a hearing be held before the court orders appropriation of the property by authorizing recoupment. Notice to a defendant of such a hearing would be inherently required. However, defendant’s concern is not satisfied by such a hearing and notice. Rather, he maintains that he should have been advised of the possible consequences before the deposit of bail was made.

Neither section 113—3.1 nor article 110 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113—3.1, art. 110), dealing with bail, have any requirement that an accused making bail be given any notice or advice as to what may be done with the bail deposit. In addition to the provisions of section 113—3.1 for recoupment for expenses of providing an attorney, section 110— 7(i) provides that 90% of the cash deposit may be applied to a fine or costs assessed in case of a conviction. We are aware of no decision holding that provision void for lack of a statutory requirement for notice to an accused at the time of making bail that 90% of the deposit may be ordered to be applied to fine and costs.

In People v. Castile (1981), 87 Ill. 2d 73, 429 N.E.2d 495, the court held that section 110—7(i) authorized the appellate court to apply the 90% of the bail deposit in that court to payment of both trial and appellate court costs. In adopting that interpretation of section 110—7(i), the court noted that neither party would gain substantially if an interpretation were made which would require the State to obtain execution and levy upon the deposit in order to obtain costs. Here, the statute could merely have provided for the county to have obtained a judgment for recoupment. Had the statute so provided, clearly there would be no requirement that the accused be given notice by the clerk, before accepting bail, that the deposit might be levied on if a judgment was obtained. Here, as with section 110—7(i), allowing direct application rather than requiring levy to obtain the funds is not of great disadvantage to the accused. The only disadvantage to the accused in providing for a direct charge upon the 90% of the deposit is that the accused might occasionally be able to withdraw the money before the levy is made. The priorities in the right of creditors of the accused present a more significant problem.

We deem it highly desirable that (1) indigents seeking court appointed counsel be advised of the provisions of section 113 — 3.1 providing for recoupment at the time court appointed counsel is furnished, and (2) written bail bond agreements contain a condition that the 90% portion of the bail deposit may be applied by the court pursuant to section 113 — 3.1. The bail bond agreement here set forth that the 90% might be applied to fine and costs pursuant to section 110— 7(i). However, we do not find the statutory provisions involved here to be invalid for the failure to provide for such notice, nor do we find the procedure used here to be erroneous for that reason.

The recoupment provisions of section 113 — 3.1 meet constitutional muster.

Defendant’s assertion that the court abused its discretion in ordering $440 of defendant’s bail deposit to be applied to reimbursement of the county is based upon evidence that the deposit was made with money which defendant had borrowed, and that defendant had no assets of substance. Defendant does not contend that the evidence was insufficient to show that the county incurred expense of at least $440 in providing counsel for defendant. The State countered with testimony of witnesses who saw defendant at various times during the summer of 1982 with large sums of cash in his possession. Defendant testified that he was entrusted with this money by others who gave it to him for the purpose of having him make investments for them. The trial court was not required to believe defendant’s vague explanation and could have concluded that defendant had sufficient assets to pay $440 of the costs of providing counsel for him. The trial court’s determination was neither contrary to the manifest weight of the evidence nor a breach of discretion.

At the conclusion of the recoupment hearing, the defendant, who appeared pro se at the hearing, requested that his bail deposit be returned to him, and that he be permitted to repay the 10% of the deposit to the clerk periodically. When the court ruled against him, defendant stated, “I wonder how much of that you are getting.” The court stated that the defendant was “indicating that the court is getting some of the money from the attorney fees” assessed. The defendant denied that was what he meant. The court refused to accept the denial and pointed out that the words used by the defendant were clear. The court found the defendant in direct criminal contempt and sentenced him to one day of incarceration.

A general definition of acts which constitute direct contempt of court are those which are “ ‘calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.’ ” (People v. Miller (1972), 51 Ill. 2d 76, 78, 281 N.E.2d 292, 293.) In the case of In re Little (1972), 404 U.S. 553, 30 L. Ed. 2d 708, 92 S. Ct. 659, the United States Supreme Court held that a statement by a pro se defendant that the court was biased and had made a prejudgment of the case could not constitute contempt. The statement of criticism was isolated and not made in a loud or boisterous manner. In People v. Hanna (1976), 37 Ill. App. 3d 98, 99, 345 N.E.2d 179, 180, a defendant told a trial judge, in open court, that the court had “ ‘messed up so much already it’s pathetic.’ ” As the statement appeared to be an isolated one and was not made in a loud voice or boisterous manner, we held that it could not be the basis for a direct criminal contempt conviction. (See also People v. Wilson (1975), 35 Ill. App. 3d 86, 341 N.E.2d 34; People v. Pearson (1968), 98 Ill. App. 2d 203, 240 N.E.2d 337.) In the above cases the alleged contemnor merely criticized the job that the court was doing.

Here, defendant’s statement accused the judge of crime. Such a statement is much less likely than mere criticism to be encompassed within an exercise of a defendant’s or a lawyer’s right to fully explain the defendant’s position in a case. Such a statement is much more likely to hinder or obstruct the court and to derogate its authority. Accordingly, we deem the effrontery to the court occurring from defendant’s statement to be sufficient to support the contempt finding.

Our affirmance is for the reasons stated.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE EARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT G. VAUGHN, Defendant-Appellant.
    Fifth District
    No. 82—96
    Opinion filed June 10, 1983.
    Randy E. Blue and David M. Raymond, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Stephen E. Norris, Special Prosecutor, of Mt. Vernon (Mark A. LaRose, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE EARNS

delivered the opinion of the court:

Following a jury trial in the circuit court of Fayette County, defendant, Robert Vaughn, was convicted of aggravated battery. Judgment was entered on the verdict and defendant was sentenced to a two-year term of probation contingent upon his serving the first 60 days in jail and making restitution to the victim. Defendant appeals his conviction and raises the following issues: whether the trial court denied him his constitutional right to counsel by permitting defendant’s attorney to withdraw on the day of the trial and requiring defendant to proceed pro se without securing a knowing and intelligent waiver of counsel and whether the trial court erred by refusing to instruct the jury on the defense of justifiable use of force.

On September 11, 1978, an information was filed which charged that defendant committed the offense of aggravated battery by striking Eugene Ruot in the face with his fist while Ruot was on a public way. Dennis Huber was appointed to represent defendant, and at the preliminary hearing on September 25, 1978, the court found probable cause to believe that defendant committed the offense. Defendant entered a plea of not guilty.

On February 16, 1979, Frank Giampoli was substituted as counsel for defendant because Huber had been appointed to the bench. On April 9, 1979, Giampoli moved to withdraw from the case because Fayette County had terminated its participation in the Fourth Judicial Public Defender Project. The court granted the motion and appointed John Reznick to represent defendant. On May 21, 1979, Reznick was permitted to withdraw as counsel because he was a potential witness in defendant’s case. Larry LeFevre became the next appointed counsel for defendant.

On June 13, 1979, defendant filed a pro se “motion for substitution of counsel” alleging that LeFevre was biased against him and did not want to represent him. At the June 25, 1979, hearing, defendant indicated that he wished to retain private counsel but later, on July 11, defendant requested the court to appoint an attorney for him. David L. Miller was then appointed to represent defendant.

On January 22, 1980, the day before trial, Miller filed a motion for leave to withdraw as counsel and a motion to continue the case. In his motion for leave to withdraw as counsel, Miller alleged that defendant had made “extensive demands for subpoenaing of witnesses not material to his defense,” had refused to follow the suggestions and advice of counsel and had displayed a “lack of faith in the professional advice and experience of counsel.”

A hearing was held on the motions on January 23, 1980, at which Miller reiterated the allegations of his motion to withdraw. The court granted the motion to withdraw, but asked Miller to serve as “standby counsel,” ordering him to remain as legal advisor to assist defendant upon request. The court denied the motion to continue and the case proceeded to trial.

The State’s first witness was Carol Dugan, formerly chief deputy sheriff of Fayette County from 1970 to 1978. Deputy Dugan testified that on September 8, 1978, he answered a call concerning trouble at defendant’s residence. The woman who answered the door denied that there had been any trouble and Deputy Dugan and Sheriff Dan Michel then proceeded to the next house where they found the victim Ruot. Dugan testified that Ruot’s shirt was covered with blood and he had “a pretty bad looking eye.” The officers then returned to defendant’s residence and placed defendant under arrest. On cross-examination, Dugan stated that he did not notice any damage to defendant’s bean field.

Eugene Ruot testified that he had been the road commissioner of Bowling Green Township for the past nine years and that his responsibilities included maintenance of all township roads and drainage ditches alongside them. Ruot testified that on September 8, 1978, he was operating a road grader on the township road in front of defendant’s residence. Ruot further testified that prior to being struck, he heard defendant say “you goddam son of a bitch, stay out of my bean field, I’m going to kill you.” He stated that defendant climbed aboard the vehicle and struck him five or six times in the face and head.

Complainant testified that defendant knocked his head against the grader, rendering him unconscious, but he was able to turn off the grader before it went off the road into the opposite ditch. His employees found him and telephoned the sheriff. He was hospitalized for two days for treatment of his injuries which he stated consisted of a fractured skull, jaw broken in three places and four or five stitches in his head.

Defendant testified in his own behalf that the “grader was way off the road” and “neither tire was on the road.” He stated that after the grader passed the culvert it went off the road again and “started covering up the beans.” Defendant shouted at complainant to stay out of the bean field and when he did not comply, he lost his temper and jumped onto the grader. Defendant testified that he then “hit him a couple of times because I was aiming to put him off our ground, from destroying our crops.” He further testified that he told complainant, “You stay off or I’ll kill you” and “the next time you get on my property and bother us again I’ll kill you.”

On cross-examination, defendant stated that he planted the beans about nine or 10 feet from the center line of the road. Defendant admitted that there were no permanent markers identifying the exact width of the road. He also admitted that he climbed up on the cab of the grader and cursed and struck complainant about the head and face.

The jury found defendant guilty of aggravated battery, and the court sentenced him to a two-year term of probation. Defendant appealed his conviction, alleging that the trial court erred in failing to enter judgment on the verdict. The court agreed with defendant’s contentions and without addressing the issues presented in this appeal, remanded the case. Judgment was entered on the verdict on August 6, 1981, and defendant was again sentenced to two years’ probation. From that judgment defendant now appeals.

The first contention presented on appeal is that defendant was denied effective assistance of counsel when the trial court permitted defendant’s attorney to withdraw on the day of the trial and remain as his legal advisor. Defendant maintains that although the court might have properly allowed counsel’s motion to withdraw, it could not do so without first admonishing defendant in accordance with Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). Defendant contends that the trial court’s dismissal of court appointed attorney without first securing a knowing and intelligent waiver of counsel constituted reversible error.

Supreme Court Rule 401(a) requires that a defendant be advised by the trial court of the nature of the charges against him, the minimum and maximum sentences and his right to counsel. The purpose of the rule is to eliminate any doubt that the defendant understands the charge against him and its consequences and to preclude a defendant from entering a plea of guilty or waiving the right to counsel without full knowledge and understanding. People v. Pittman (1979), 75 Ill. App. 3d 683, 394 N.E.2d 702.

In the instant case, defendant’s counsel, David Miller, moved to withdraw as counsel on the day before the trial. He also made a motion to continue the case so that defendant could secure another attorney. Miller alleged that defendant continually refused to follow his advice, insisted that he call witnesses who were not material to the case, and consulted other counsel while Miller was representing him. Although the court granted the motion to withdraw, it denied the continuance and ordered Miller to remain as legal advisor to assist defendant.

At trial, defendant proceeded pro se with his defense and presented an opening statement, cross-examined the State’s witnesses, called witnesses on his behalf, introduced some evidence and moved for a directed verdict. Although we cannot determine from the record the exact nature of the services rendered by appointed counsel it is clear that Miller, as standby counsel, was present throughout the trial and assisted defendant with his defense.

The right to counsel of a defendant’s own choosing may not be employed as a weapon to indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Myles (1981), 86 Ill. 2d 260, 427 N.E.2d 59.) Defendant’s inability to resolve conflicts with his court-appointed attorneys caused the case to be continued several times, and defendant clearly was not entitled to another continuance or attorney. We believe that defendant’s refusal to cooperate with his fifth appointed counsel was tantamount to an election to proceed pro se with his defense. Requiring defendant to proceed pro se with standby counsel is not a waiver within the meaning of Rule 401(a), and thus the admonitions of the rule were not required when the case proceeded to trial as scheduled. People v. Pittman (1979), 75 Ill. App. 3d 683, 394 N.E.2d 702.

A factual situation similar to the one presented here was before the Illinois Supreme Court in People v. Myles (1981), 86 Ill. 2d 260, 427 N.E.2d 59. In Myles, defendant’s inability to cooperate with his attorney prompted the attorney to file a motion to withdraw which was granted by the court. The public defender was then appointed, and the case was continued in order that counsel might prepare for trial. Defendant, however, refused to cooperate in the preparation of his defense, and the public defender requested permission to withdraw. The public defender’s request to withdraw was denied, and the case proceeded to trial even though defendant declined the services of the public defender and refused to proceed pro se.

At trial, defendant proceeded pro se and cross-examined State’s witnesses, objected to certain evidence and to instructions tendered by the State, presented witnesses on his ownc behalf and conducted his own closing argument. The public defender remained as standby counsel although defendant did not avail himself of the attorney’s services.

The court in Myles rejected defendant’s contention that counsel’s failure to participate in the trial deprived him of effective assistance of counsel. Instead, the court noted that counsel’s failure to participate resulted from defendant’s refusal to cooperate with appointed counsel and his insistence that such counsel not assist him. The Illinois Supreme Court reversed the appellate court and affirmed the judgment of the trial court, stating that there was no waiver of counsel which would invoke the requirements of Rule 401(a). We believe that the holding in Myles effectively disposes of defendant’s contention that he was denied effective assistance of counsel. Accordingly, we find that the trial court acted properly in permitting defendant’s attorney to withdraw as counsel and remain his legal advisor.

Furthermore, this court has recently held that a defendant who proceeds to trial with the assistance of standby counsel does not proceed pro se and the record need not show an explicit waiver of counsel after the full admonishments required by Supreme Court Rule 401(a). People v. Hite (1983), 115 Ill. App. 3d 66.

Defendant’s second contention on appeal is that the trial court erred in refusing to instruct the jury on the defense of justifiable use of force. The State, by contrast, contends that the court properly refused to instruct the jury because there was no evidence to support the defense of justification.

A person is justified in the use of force against another when and to the extent he reasonably believes such conduct is necessary to prevent or terminate a trespass or tortious interference with property. (Ill. Rev. Stat. 1979, ch. 38, par. 7—3.) On the basis of this defense, defendant tendered two instructions, the rejection of which he maintains was error. The first instruction was a modified version of Illinois Pattern Jury Instruction (IPI), Criminal, No. 24.08 (1968), which states the defense of justifiable use of force in the defense of property as set forth by statute. The other instruction by defendant stated the State’s burden of proof with respect to the affirmative defense. The court refused to give either instruction.

A defendant is entitled to have the jury instructed on any legally recognized defense which has some foundation in the evidence. (People v. Rodriguez (1981), 96 Ill. App. 3d 431, 421 N.E.2d 323.) Before instructing the jury on any affirmative defense, the court thus must initially resolve the threshold question of whether some evidence supports the particular theory. Although only slight evidence of an affirmative defense is sufficient to entitle an accused to an instruction on that defense, we do not find such evidence to be present here.

In People v. Bradshaw (1981), 100 Ill. App. 3d 45, 426 N.E.2d 345, the court was faced with a similar situation in which it had to determine whether a self-defense instruction was warranted by the evidence. In that case the defendant was convicted of battery for striking a tavern owner. On appeal, defendant contended that the trial court erred in refusing his tendered instruction on self-defense. The appellate court disagreed and upheld the conviction, stating that “[t]he placing of an arm around a person in a reasonably calm manner while telling that person to leave is not such conduct as to cause that person to reasonably believe the use of force is necessary to defend himself.” 100 Ill. App. 3d 45, 46-47, 426 N.E.2d 345, 346.

In the instant case, we similarly believe that defendant’s conduct was so unreasonable under the circumstances that no genuine issue regarding justification existed. Defendant’s striking complainant about the face and head while he was performing his duties as township road commissioner cannot be justified by his desire to protect his beans. We are not persuaded by defendant’s self-serving statement that he yelled and cussed at complainant to get his attention, and “went through every process that I knew to get him to stay off the ground and he wouldn’t do it.” We further note that the evidence suggests that the several rows of beans which were allegedly damaged were actually planted on land reserved for the township road, the width of which is set by law at 40 feet. Ill. Rev. Stat. 1979, ch. 121, par. 6—301.

After reviewing the evidence in the record, we are convinced that defendant did not present a submissible jury question. Consequently, we believe that the trial court properly refused to give defendant’s tendered instruction based on the justifiable use of force for the protection of property.

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

Affirmed.

HARRISON, P.J., and JONES, J., concur.