author: JUSTICE JIG ANTI JUSTICE LINN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KURT BARTALL, Defendant-Appellant.
    First District (4th Division)
    No. 81-327
    Opinion filed April 8, 1982.

      LINN, J., dissenting.

      Edward J. Egan, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat, Casimir J. Bartnik, and Rhoda Wexler Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIG ANTI

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, Kurt Bartall, was convicted of murder and armed violence and sentenced to a term of 20 years in the Illinois State Penitentiary. The defendant’s main arguments on appeal are that the State failed to prove him guilty of murder beyond a reasonable doubt and that the trial court erred in permitting the introduction of evidence of another crime. The defendant also raises several instances of prosecutorial misconduct and other trial errors which will be discussed later in the opinion.

At approximately 12:20 a.m. on December 30, 1979, Betty Quinn, Eileen Kampwirth, Bill Will and Mark Tatum were standing in a Jewel parking lot located on Milwaukee Avenue near Austin. They had just come out of a bar called “The Bag.” The parking lot adjoined the southeast bound traffic lanes. According to Kampwirth’s testimony there were no walls between the parties in the lot and Milwaukee Avenue and no parked cars between the parties and Milwaukee Avenue. Kampwirth stated that she heard a gun shot which sounded like a very loud firecracker. She looked first at Will and then at Quinn who was on the ground to her right. Quinn was lying on her back and bleeding profusely from the face.

Will testified that while in the parking lot, he heard two bangs, not more than 45 seconds apart. After the second bang, he saw a car in the northwest bound lane going at a normal speed.

A significant issue on appeal concerns the testimony of Kathy Preze. She testified over objection as to an occurrence which took place on the evening of December 30,1979, 20 hours after the shooting of Quinn. She stated that at about 10:30 that evening she was driving in a northwest direction along Milwaukee Avenue near Devon when a car pulled in front of her and hit the brakes. She swerved to avoid it and heard a noise like a firecracker. When she looked into the other car, the driver made an obscene gesture and then pointed a gun at her face. She identified the defendant as the man who pointed the gun at her. When she saw the gun, Preze put up her hand and swung the car into on-coming traffic. She heard another noise that sounded like a firecracker. The defendant’s car then turned off its lights and sped away. Preze proceeded to the Niles police station and reported the incident. She later noticed a bullet hole on the passenger side above the rear tire. She saw the defendant at the Niles police station about a half hour later, and stated that the defendant’s family had been friends of hers for years.

Chicago police detective Frank Cappitelli testified as to the contents of two statements made by the defendant. In the first statement, the defendant said that he was not on Milwaukee Avenue at the time of the Quinn shooting. He was in Elkhorn, Wisconsin, with his girlfriend, Cindy Kerstein. In the second statement, the defendant stated that he and Kerstein were driving northwest on Milwaukee Avenue in the late evening hours of December 29, 1979. He looked to see if there were any police around him and when he saw no one he fired two shots. He looked into the Jewel parking lot and did not see anyone in the parking lot.

A firearms examiner for the Chicago Police Department testified that in his opinion, two bullet jacket fragments which were removed from the body of the deceased were fired from the gun recovered from the defendant. By stipulation, Carol Christian testified that she was the manager of Rose’s Cleaners, located at 5762 North Milwaukee Avenue. She was contacted by the Chicago Police Department at about 4 a.m. on December 30, 1979, and went to the store. She found a bullet hole in the front window. An evidence technician recovered a bullet from the wall.

Cindy Kerstein testified for the defense. She stated that she was engaged to the defendant and was driving with him along Milwaukee Avenue on the evening of December 29,1979. As they were driving, she heard two shots which were fired from the defendant’s gun. She described the condition of the car windshield as “just how they get in the winter time when you don’t wash your car. That’s slush, dirt on there.” Kerstein said she did not see people on the street at the time she heard the shots and did not see people near that area on the sidewalk after she heard the first shot fired. The prosecutor was later permitted to show that at the preliminary hearing she testified that she saw people on the sidewalk on the driver’s side of Milwaukee Avenue. Kerstein testified that after the shots were fired, she and the defendant drove to Elkhorn, Wisconsin. The next evening at approximately 10:30, she was again driving along Milwaukee Avenue with the defendant. She was dozing off in the passenger’s seat and felt the defendant hit the brakes. The defendant appeared to be angry, and was saying, “[T]hey cut me off. They cut me off.” He then said that he was going to “shoot her tires out.” An objection to that statement was sustained.

During the course of the trial, the jury visited the scene and was allowed to observe the lighting conditions in the parking lot where Quinn was shot.

The first contention raised by the defendant is that the State failed to prove him guilty of murder beyond a reasonable doubt. He claims that the evidence established that he was, at worst, guilty of involuntary manslaughter.

To support this contention, the defendant points out that there is no direct evidence that he saw Quinn or that he intentionally fired at her. Thus, to find him guilty of murder, the jury had to infer that conditions were such that he must have seen the people standing in the parking lot and further, that he intended to shoot at Quinn. According to the defendant, that inference could not reasonably be drawn from the evidence presented to the jury for several reasons. First, the defendant and Quinn were complete strangers and it is therefore unreasonable to infer that he intended to fire at her. Second, although the State presented evidence that the parking lot was “well-lighted” at the time of the shooting, Kerstein’s testimony established that the defendant’s vision was clouded by the slush and dirt on his windshield. Third, the shooting occurred at 2:30 a.m., a time when people are not normally out in the streets. Fourth, the defendant left the scene at a normal rate of speed, which indicated that he had no reason to believe he had hurt anyone. Finally, the evidence showed that the first of the two bullets fired by the defendant went into the window of a store which was unoccupied at the time. This fact tended to show that the defendant was merely engaging in reckless behavior and did not intend to fire into a group of people.

It is well established that the question of whether a homicide is murder or involuntary manslaughter is to be resolved by the trier of fact. (People v. Farmer (1980), 91 Ill. App. 3d 262, 414 N.E.2d 779.) A court of review will not disturb a jury’s verdict in this respect unless the evidence is palpably contrary to the finding or so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt. People v. French (1972), 3 Ill. App. 3d 884, 279 N.E.2d 519.

Contrary to the defendant’s assertion, the jury did not have to conclude that he intentionally fired at Quinn in order to find him guilty of murder. Under the Illinois definition of murder, the jury need only find that he voluntarily fired shots at a group of people, without justification, knowing there was a strong probability of death or great bodily harm to one or more of the individuals present. Ill. Rev. Stat. 1979, ch. 38, par. 9 —1(a)(2).

In the case at bar, the jury was called upon to draw certain inferences as to the manner of Quinn’s death from the circumstantial evidence presented. The State presented evidence that the parking lot was well illuminated and that there were no cars or other obstacles between the defendant’s car and the group standing in the lot which would obstruct the defendant s view. The jury had the opportunity to observe the lighting conditions in the lot and, as evidenced by the verdict, concluded that the defendant was able to see the people standing there. Thus, the jury inferred from all the evidence before it that the defendant voluntarily fired a gun in the direction of a group of people he saw standing in a parking lot. The jury chose to disregard those arguments and explanations that would cause reasonable doubt. In our judgment, there was sufficient evidence to allow the above inferences to be drawn and to sustain the jury’s verdict. The cases cited by the defendant do not require a different result. In People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389, the court reversed a murder conviction because the trial court had refused to give an instruction on involuntary manslaughter. Bembroy therefore does not contradict the proposition that the question of whether a killing is murder or involuntary manslaughter is a question of fact for the jury. In the case at bar, the jury was given instructions on both murder and involuntary manslaughter. In People v. Felton (1973), 12 Ill. App. 3d 201, 298 N.E.2d 372, the defendant fired a shot through a closed door, killing her boyfriend. The appellate court reversed the murder conviction, finding that the defendant had not been proved guilty beyond a reasonable doubt. In Felton the exact whereabouts of the deceased within the apartment were unknown to the defendant. In the instant case, there was sufficient evidence for the jury to infer that the defendant voluntarily fired the gun in the direction of a group of people he saw standing in a parking lot.

The defendant next contends that he is entitled to a new trial because the trial court erred in permitting the State to introduce evidence of another crime involving the defendant. The evidence to which he objects is the testimony of Preze that the defendant pointed a gun at her face and fired two shots into her car on the evening of December 30,1979, approximately 20 hours after the shooting of Quinn. Preze was allowed to testify as to the details of this encounter. She identified the defendant as the man who fired the shots which struck her car. She also identified a photograph of the defendant taken at the time of his arrest which showed him with long hair, a beard, tattoos and a T-shirt. Preze then testified as to the difference between the defendant’s appearance at trial and his appearance at the time the shooting occurred. The State argues that the evidence was properly admitted because it was probative of the defendant’s intent and established the shooting of Quinn as part of a common scheme or design.

As a general rule, evidence of extra-indictment offenses is inadmissible where it is offered to show the defendant’s propensity to commit unlawful acts. (People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.) However, if such evidence is relevant to show motive, intent, identity, absence of mistake or modus operandi, it is admissible unless minor probative value is outweighed by major prejudicial effect. (People v. McCambry (1979), 76 Ill. App. 3d 314, 395 N.E.2d 129.) In his treatise on the law of evidence, Wigmore states that in a homicide, evidence of other similar acts is probative of the defendant’s intent to kill because it tends to negative inadvertence, accident or other forms of innocent intent. (2 Wigmore, Evidence §302, at 241 (Chadbourne rev. 1979).) The reasoning is that while accident or inadvertence might perhaps be present in one instance, the more often similar instances occur with similar results, the less likely is accident to be the true explanation. (2 Wigmore, Evidence §302, at 241 (Chadbourne rev. 1979).) To be admissible on the issue of intent, it is necessary that the other crimes be similar. (People v. Sanders (1980), 81 Ill. App. 3d 1001, 401 N.E.2d 1103; United States v. Viruet (2d Cir. 1976), 539 F.2d 295; United States v. Hernandez-Miranda (9th Cir. 1979), 601 F.2d 1104.) “Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.” 2 Wigmore, Evidence §302, at 245 (Chadbourne rev. 1979).

We agree with the defendant that the incident involving Preze was not sufficiently similar to the crime with which he was charged to render it admissible on the issue of intent. The testimony of both Preze and Kerstein tended to show that there was a traffic incident which angered the defendant against Preze. Thus it is reasonable to infer that the defendant was motivated to frighten her by pointing a gun at her face. There is no evidence that the defendant even knew Quinn. After firing the shots into Preze’s car, the defendant turned off his lights and sped away. After the Quinn shooting, he drove away at a normal rate of speed and made no evasive moves. Moreover, the Preze shooting took place 20 hours after the killing of Quinn. Because of the dissimilarity between the two, we do not believe that the facts of the Preze incident are in any way probative of the defendant’s intent at the time he fired the shot which killed Quinn. It was thus error for the trial court to allow the introduction of evidence concerning this other crime.

The State argues that even if the evidence was erroneously admitted, it was only harmless error. We disagree. The jury was presented with a very close case on whether the shooting of Quinn was intentional or merely reckless. While we have found sufficient evidence to support the jury’s verdict of murder, we cannot say that this evidence was overwhelming. The evidence concerning the details of the other crime, especially the introduction of a photograph of the defendant wearing long hair, a beard and tattoos, could serve only to further prejudice the jury. Since it is possible that the evidence concerning the Preze incident acted to sway the jury’s verdict, we find it necessary to reverse and remand for a new trial.

Although not necessary for the disposition of this cause, we feel that certain acts of the prosecutor merit comment. First, when arguing that the parking lot in which Quinn was shot was well-illuminated, the prosecutor stated that, “I stood on the street last night. I could see, I could see. It’s illuminated on this side of the street and illuminated on that side of the street. ° e 6 I’m from Chicago. That’s a very well-lighted street, one of the most well-lighted streets I’ve ever been on.” These remarks clearly constitute testimony of the prosecutor and are therefore error. It is improper for a prosecutor to get before a jury that which amounts to his own testimony, unsworn and not subject to cross-examination. People v. Ford (1980), 83 Ill. App. 3d 57, 403 N.E.2d 512.

In closing argument the prosecutor made the following references to the family of the deceased:

“[Y]ou say if somebody shoots this thing it’s a reckless act at four people, and then you tell the Quinns what you decided.
She has brothers and sisters and a mom and dad. They don’t have Betty anymore. They don’t talk to Betty anymore. They buried her in the ground last year because he killed her.”

These remarks were in no way related to the issues in the case and were designed solely to prejudice the jury. As such, they are clearly prohibited. People v. Bernette (1964), 30 Ill. 2d 359, 197 N.E.2d 436.

Finally, the defendant raises several instances of alleged error on the part of the trial court. We will consider only those which are likely to recur in a new trial.

First, the defendant contends that the trial court abused its discretion in allowing into evidence a picture of the deceased. Ordinarily, the admission into evidence of a photograph of a homicide victim is within the discretion of the trial court. (People v. Sprinkle (1979), 74 Ill. App. 3d 456, 393 N.E.2d 94.) However, where a photograph is not probative of any material issue in the case, it should not be admitted. (People v. Garlick (1977), 46 Ill. App. 3d 216, 360 N.E.2d 1121, cert. denied (1977), 434 U.S. 988, 54 L. Ed. 2d 484, 98 S. Ct. 620.) Here there was no issue as to the cause of death or the identity of the victim which would warrant introduction of the photograph. Second, the defendant argues that the trial court erred in permitting the arresting officer to identify a shoulder holster, gun clip and bullets recovered from the defendant at the time of his arrest. He claims that the evidence was immaterial and introduced solely to prejudice the jury. In addressing this issue, we note that the defendant did not admit that Quinn was killed by a bullet fired from his gun. The State was required to link the defendant to the crime by establishing that the bullet recovered from Quinn’s body was fired from a gun possessed by the defendant. Thus, the officer’s testimony that the gun was found in the defendant’s possession at the time of his arrest was relevant to the State’s case. We believe that the items objected to by the defendant were admissible as the subject of testimony concerning the details of the arrest. (People v. LeBron (1980), 83 Ill. App. 3d 598, 404 N.E.2d 540.) Third, the defendant asserts that it was error for the court to permit a police officer to testify that he advised the defendant of his constitutional rights. The defendant cites no authority to support his contention that this was error. We fail to see what possible prejudice could result to the defendant from apprising the jury that he was advised of his constitutional rights before making a statement.

For the foregoing reasons, the conviction of the defendant is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ROMITI, J., concurs.

JUSTICE LINN,

dissenting:

I respectfully dissent from the majority’s holding that the admission of evidence of a crime committed by defendant following the murder of Betty Quinn was sufficiently prejudicial to justify a reversal of defendant’s conviction and a new trial. In my view, it was not error for the trial court to admit evidence of the second criminal incident. Furthermore, even assuming arguendo that this evidence was erroneously admitted, I believe the error was harmless in view of the overwhelming proof beyond a reasonable doubt that defendant murdered Quinn with a “malignant and abandoned heart.” People v. Cruz (1974), 23 Ill. App. 3d 838, 320 N.E.2d 180 (abstract).

The majority correctly cites the general rules that evidence of extra-indictment offenses is inadmissible to show defendant’s propensity to commit crimes (People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773), but that such evidence is admissible if it is relevant to show motive, intent, identification, absence of mistake, or modus operandi (People v. McCambry (1979), 76 Ill. App. 3d 314, 395 N.E.2d 129). The majority then concludes that the evidence of the Preze incident was not sufficiently similar to the crime charged to render it admissible on the issue of defendant’s intent. I agree with this holding, not because of the lack of similarity, but because evidence of a second offense may not be used to show intent to commit a first offense; such use would defeat any presumption of innocence. People v. Brand (1953), 415 Ill. 329, 114 N.E.2d 370, cert. denied (1954), 347 U.S. 959, 98 L. Ed. 1103, 74 S. Ct. 709.

I disagree, however, that because evidence of the second crime was inadmissible to establish intent, it was therefore inadmissible for any purpose. The circumstances of defendant’s apprehension following Preze’s report to the police are relevant to the prosecution of the crime charged in that the gun found in his possession directly linked him to the Quinn murder. This court has repeatedly held that the State has a right to introduce evidence of the circumstances of defendant’s arrest when it forms a continuous narrative of the context of the arrest. If this narrative includes evidence of connected crimes, that evidence is necessarily admissible as part of the sequence of events, even though it implicates defendant in the commission of another crime. (People v. Tucker (1969), 118 Ill. App. 2d 136, 255 N.E.2d 31; People v. Sessions (1968), 95 Ill. App. 2d 17, 238 N.E.2d 94.) Accordingly, I would hold that there was no error in admitting evidence of the Preze incident as part of the narrative of events that led to defendant’s arrest and indictment for the murder of Betty Quinn.

However, even if the evidence of the second incident should have been excluded, its admission was certainly harmless error. The State’s evidence established that the parking lot was well illuminated, and no cars or obstacles interfered with defendant’s view. After personally evaluating the lighting conditions present at the scene, the jury concluded that defendant had seen the four people standing in the parking lot, had voluntarily fired a gun in their direction, and was therefore guilty of murder.

As the majority correctly states, the jury did not have to conclude that the defendant intentionally shot at Quinn in order to find him guilty of murder. “If a person voluntarily and wilfully does an act the direct and natural result of which is to destroy another’s life, the conclusion * * * is that the destruction of another’s life was intended ” * *. It is sufficient if the killer * * * is actuated, in making the assault, by that wanton and reckless disregard of human life which denotes malice. [Citations.]” People v. Wesley (1959), 18 Ill. 2d 138, 156, 163 N.E.2d 500, 509.

In People v. Forrest (1971), 133 Ill. App. 2d 70, 73, 272 N.E.2d 813, 815, defendant’s attempt to shoot into a passing automobile was held to be such a “wanton and reckless disregard of human life” that his murder conviction was unanimously affirmed. In People v. Gonzales (1968), 40 Ill. 2d 233, 242, 239 N.E.2d 783, 789, the court held that deféndant’s act of intentionally shooting into a group of men from a moving car was so clearly murder that to give a manslaughter instruction would be erroneous. “It is not necessary to show that [defendant] formed an intent to kill any particular person since there can be no question but that the natural tendency of this act would be to destroy another’s life. In a situation such as this the criminal intent to murder may be implied from the character of the act.” 40 Ill. 2d 233, 242, 239 N.E.2d 783, 789.

The vicious act of defendant Bar tall, strikingly similar to the acts of the defendants in Forrest and Gonzales, demonstrates that same indiffer-

ence to the value of human life. One who “can coolly shoot 0 0 0 persons guiltless of any wrongdoing toward him or provocation for such attack is, if possible, worse than the man who endures insult or broods over a wrong * * * and then * * * kills his personal enemy.” Banks v. State (1919), 85 Tex. Crim. 165, 168, 211 S.W. 217, 218.

In my view, defendant cannot shield himself from the consequences of his wicked and unprincipled act by objecting to admission at his trial of evidence concerning another criminal offense. The jury found defendant guilty of murder beyond a reasonable doubt. The record affirmatively indicates that this verdict was based on overwhelming evidence, and I would therefore affirm defendant’s conviction.

Defendant claims the admission of other prejudicial evidence warranting reversal. I would find the claim to be without merit, since at best the claimed error was harmless in nature and additionally the evidence of guilt, in my judgment, was overwhelming.


source: Caselaw Access Project

author: PRESIDING JUSTICE JOHNSON

license: Public Domain

text:
    MICHAEL AZZONE, Plaintiff-Appellant, v. THE NORTH PALOS FIRE PROTECTION DISTRICT et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-729
    Opinion filed April 8, 1982.

      Albert Brooks Friedman, of Chicago (Frederick M. Ellis, Jr., of counsel), for appellant.
    Richard T. Wimmer, of Klein, Thorpe and Jenkins, of Chicago, for appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

On July 17, 1980, plaintiff, Michael Azzone, filed a complaint for administrative review (Ill. Rev. Stat. 1979, ch. 110, par. 264 etseq.) against defendants, the North Palos Fire Protection District (Fire District), and the board of trustees, Albert Rawot, Reuben Dommer and Terrence Kenny, on account of his removal and demotion from shift commander of the fire department. Defendants’ motion to dismiss pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) was granted by the circuit court of Cook County. From this dismissal, plaintiff appeals. The sole issue for review is whether the trial court erred in granting defendants’ motion to dismiss.

We affirm.

Plaintiff’s complaint alleged that he served as a volunteer fireman from 1974 to mid-1977, as a full-time fireman from mid-1977 to January 18, 1980, and as a shift commander from January 19 to June 18,1980, for defendants. Around June 18, 1980, a notice was posted on defendants’ bulletin board, signed by Terrence Kenny, secretary to the Board of Trustees, which stated the following:

“Effective as of Wed. June 18th, 1980 at 1400 hrs. S/C Mike Azzone has been dropped as shift commander from this department and will return to the position of firefighter, per order of the Board of Trustees.”

When plaintiff asked why he had been demoted, defendants did not state a reason. Defendants further refused to comply with plaintiff’s demand for a written explanation of his discharge.

Plaintiff further alleged that Albert Rawot, Reuben Dommer, and Terrence Kenny, who comprise the board of trustees, had knowledge of his removal and discharge. Plaintiff also requested that a hearing be held pursuant to section 16.13 of “An Act in Relation to Fire Protection Districts” (Ill. Rev. Stat. 1979, ch. 127%, par. 37.13) (hereafter referred to as the Act). Defendants denied him a hearing. Plaintiff also alleges that he was deprived of his liberty and his property without an opportunity to be heard, that defendants’ actions were arbitrary and unreasonable without statutory authority, and such actions were substantially and procedurally improper. Plaintiff sought an order reversing and setting aside his removal and discharge, with back pay, damages, and attorney fees.

On August 22, 1980, defendants filed a motion to dismiss which alleged that sections 16.01 through 16.18 of the Act (Ill. Rev. Stat. 1979, ch. 127%, pars. 37.01 through 37.18) were inapplicable because defendants had not elected to apply those sections and, therefore, there was no right to a hearing before discharge. On January 19,1981, the trial court granted defendants’ motion to dismiss, and plaintiff appealed.

Plaintiff contends that sections 16.01 through 16.18 of the Act apply to defendants because the legislature intended that members of all fire departments have a right to a hearing on discharge or removal. We disagree with plaintiff’s contention. The demotion of plaintiff is not governed by statute because section 16.01 of the Act states, in pertinent part:

“Any fire protection district having a fire department of which 3 or more, but not all members, are full time, paid members, may, at the option of the fire protection district board of trustees, elect to come under the provisions of Sections 16.01 to 16.18, inclusive, and shall be subject to the provisions of Section 16.13 relating to removal or discharge of fire department personnel.”

Defendants, whose members are not all full time, paid personnel, did not elect to come under this section. It is our opinion section 16.01 indicates that if a district does not elect to come under that section, then section 16.13 relating to removal or discharge does not apply. Consequently, the demotion of plaintiff is governed by the Fire District’s rules and regulations.

Section 6 of the Act (Ill. Rev. Stat. 1979, ch. 127%, par. 26) grants the board of trustees power to pass all necessary ordinances and rules and regulations for the fire department. The rules and regulations of defendant Fire District were not made part of the record, but we will take judicial notice of them. (Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 50, 356 N.E.2d 938, 940.) The regulation relating to shift commander states:

“20. The Shift Commander will be on probation for a one-year period. If for any reason, the Chief of the Department, Board of Trustees or the Executive Board feels that the Shift Commander is not properly doing his or her job, that Shift Commander will be dropped as a Shift Commander and another fire personnel will be appointed to fill his or her position. The person being dropped from Shift Commander will be dropped by the Board of Trustees but will remain as a paid member of this Department if he or she so desires, as a paramedic or fire-fighter, or whatever his or her status was before being appointed Shift Commander.”

Once making its own rules and regulations, the district is bound by them. (Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 51.) The above regulation specifically states that the shift commander is a probationary employee for a 1-year period. It does not require defendant Fire District to have a hearing prior to demotion. In this case, the Fire District’s rules and regulations control because there was no election by defendants to come under the provisions of sections 16.01 through 16.18 of the Act.

Additionally, since defendants did not elect to come under the provisions of sections 16.01 through 16.18 of the Act, plaintiff cannot seek administrative review as provided under section 16.13 of the Act.

The trial court did not err by granting defendants’ motion to dismiss.

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

Affirmed.

ROMITI and JIGANTI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MACK C. STEPHENS, Plaintiff and Counterdefendant, v. THOMAS McBRIDE, Defendant and Counterplaintiff and Third-Party Plaintiff-Appellant.—(THE CITY OF MAYWOOD, Third-Party Defendant-Appellee.)
    First District (1st Division)
    No. 81-1406
    Opinion filed April 12, 1982.

      Clausen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini, of counsel), for appellant.
    Ancel, Glink, Diamond, Murphy & Cope, P. C., of Chicago (John B. Murphy, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is a third-party action for contribution. Thomas McBride, the defendant in a personal injury and property damage suit based on negligence brought against him by Mack C. Stephens, filed a third-party complaint for contribution against the City of Maywood. The latter moved successfully for summary judgment on the ground that no notice had been served on it within one year of the accident, as required by sections 8 — 101, 8 — 102 and 8 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1979, ch. 85, pars. 8 — 101, 8 — 102, 8 — 103). Thomas McBride appeals. He contends that the notice provision of the Tort Immunity Act does not apply to a claim for contribution, but that if it does timely notice was served.

The underlying factual background of this suit is an intersection collision between Stephens’ motorcycle and McBride’s automobile at Legion and Fourth Streets in Maywood, Illinois, on May 18, 1978. On October 5,1978, McBride sent a letter to the City describing the accident and stating that shrubbery on one corner of the intersection constituted an obstruction to vision of motorists and that this hazardous condition was the responsibility of the City and contributed to the cause of the accident. It also stated that if suit was filed against McBride, he would join the City as a party based on the supreme court decision in the Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437. On December 10,1979, Stephens filed suit against McBride alone. On April 1, 1980, the latter filed an answer which was a counterclaim against Stephens and a third-party complaint against the City. In the third-party complaint, McBride asked contribution from the City, alleging that the accident occurred upon public streets maintained and controlled by the City, which had negligently violated its own ordinances concerning the height and location of shrubbery near intersections, thus contributing to Stephens’ injuries.

The pertinent parts of the Tort Immunity Act provide (Ill. Rev. Stat. 1979, ch. 85, pars. 8 — 101, 8 — 102 and 8 — 103):

“§8 — 101. No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued.”
“§8 — 102. Within 1 year from the date that the injury or cause of action, referred to in Sections 8 — 101, 8 — 102 and 8 — 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity * * * must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom ” ” ” the action is contemplated a written statement 0 ° ° giving in substance [certain specified information].” “§8 — 103. If the notice under Section 8 — 102 is not served as provided therein, any such civil action commenced against a local public entity * * * shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.”

McBride contends that the Tort Immunity Act does not apply because it applies only to tort actions and contribution is not such an action. We find it unnecessary to consider whether contribution is or is not a tort action because, even if contribution were considered in this case to be a tort action because of the nature of the action between Stephens and McBride, the public policy underlying the right of contribution outweighs the public policy underlying the notice provision of the Tort Immunity Act.

The opinion of the supreme court in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, makes clear that the public policy behind the adoption of contribution was the justice of apportioning damages for tort injuries as equally as possible among those who were liable. The court said (70 Ill. 2d 1, 13):

“We are of the opinion that there is no valid reason for the continued existence of the no-contribution rule and many compelling arguments against it. We agree with Dean Prosser that ‘[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiffs whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free.’ Prosser, Torts sec. 50, at 307 (4th ed. 1971).”

The purpose of the notice requirement of the Tort Immunity Act has been succinctly stated in Helle v. Brush (1973), 53 Ill. 2d 405, 407-08, 292 N.E.2d 372:

“The Tort Immunity Act, in part, is the legislative result of our decision in Molitor v. Kaneland Community Unit Dist. (1959), 18 Ill. 2d 11. In general, it adopts the Molitor rule of liability of public entities but specifies certain exceptions and limitations to actions to enforce liability thereunder. The purposes of the statute requiring notice have been said to be: to permit early investigation and prompt settlement of meritorious claims; to avoid the expenses and costs of suit where settlement can be achieved; and to permit the public entity to determine its budget in advance, for taxing purposes. (Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342; King v. Johnson (1970), 47 Ill. 2d 247, 250-51; 56 Am. Jur. 2d, Municipal Corporations, sec. 686.) The statement of these purposes elucidates the pragmatic reasons which underlie the notice and which are proper for our consideration in construing the statute. People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310.”

Nine States which have considered the question have held that a tortfeasor’s right to contribution is not barred by reason of the notice requirements of tort immunity acts. Those States are California, Delaware, Hawaii, Iowa, Kentucky, Maryland, New York, Tennessee and Wisconsin. People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal. 3d 744, 608 P.2d 673, 163 Cal. Rptr. 585; Royal Car Wash Co. v. Mayor of Wilmington (Del. 1968), 240 A.2d 144; Albert v. Dietz (D.C. Hawaii 1968), 283 F. Supp. 854; Olsen v. Jones (Iowa 1973), 209 N.W.2d 64; Roehrig v. City of Louisville (Ky. 1970), 454 S.W.2d 703; Cotham v. Board of County Commissioners (1971), 260 Md. 556, 273 A.2d 115; Zillman v. Meadowbrook Hospital Co. (1973), 73 Misc. 2d 726, 342 N.Y.S.2d 302, rev’d on other grounds (1974), 45 App. Div. 2d 267, 358 N.Y.S.2d 466; Security Fire Protection Co. v. City of Ripley (Tenn. 1980), 608 S.W.2d 874; Ainsworth v. Berg (1948), 253 Wis. 438, 34 N.W.2d 790, mandate vacated on other grounds (1949), 35 N.W.2d 911; Minneapolis, St Paul & Sault Ste. Marie R.R. Co. v. City of Fond du Lac (7th Cir. 1961), 297 F.2d 583; Geiger v. Calumet County (1962), 18 Wis. 2d 151, 118 N.W.2d 197; Annot., 93 A.L.R.2d 1385 (1964).

Colorado and Minnesota have held to the contrary. Brady v. City of Denver (1973), 181 Colo. 218, 508 P.2d 1254; American Automobile Insurance Co. v. City of Minneapolis (1961), 259 Minn. 294, 107 N.W.2d 320.

The Appellate Court for the Second District has but recently considered the public policy underlying contribution vis-á-vis that underlying interspousal immunity. (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236, appeal denied (1982),_Ill. 2d__) It found that the former should prevail. With reference to the status of the law of contribution in Illinois, the court said (102 Ill. App. 3d 1074, 1080-82):

“The recent trend in Illinois has been to curtail common law tort doctrines to allow contribution among joint tortfeasors (Ill. Rev. Stat. 1979, ch. 70, par. 302(a); Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, modified (1978), 70 Ill. 2d 16) and comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886). One commentator has noted that perhaps the Illinois contribution statute (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) abolishes the traditional notion of common law tort immunities. (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 194 (1980).) In a parallel situation the Skinner decision balanced policy considerations which immunize an employer from direct suit by an employee with policy considerations which make people who cause an injury responsible for their degree of culpability and allowed contribution from an employer. (70 Ill. 2d 1, 15-16, 374 N.E.2d 437.) In Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the Illinois Supreme Court abolished the long used rule of contributory negligence in favor of ‘pure’ comparative negligence on the basis that the ‘pure’ form of comparative negligence ‘is the only system which truly apportions damages according to the relative fault of the parties and, thus, achieves total justice.’ (85 Ill. 2d 1, 27, 421 N.E.2d 886.) Roth the Illinois Supreme Court in deciding the Skinner and Alvis cases and the legislature in enacting a statute on contribution (Ill. Rev. Stat. 1979, ch. 70, par. 302(a)) have found a pressing need to act against the harsh results inherent in both contributory negligence and in a no-contribution rule. For us to allow a loophole to contribution would mar our promising new contribution and comparative negligence schemes as well as detract from an equitable development of these doctrines.
e 0 # Comment on the history for the Illinois [Contribution] act indicates that any common law or statutory immunity should not apply:
‘ “It is the further intent of the committee that the right of contribution thus created be recognized as founded upon the doctrine of unjust enrichment. The right is a separate right of restitution. It is not a derivative right and thus is not barred by any common law or statutory immunity which would preclude the prime claimant from pursuing an action directly against the party from whom contribution is sought.” ’ (Emphasis added.) (Comment, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173, 193 (1980) quoting legislative history behind Senate Bill 308, published by the Chicago Bar Association’s Civil Practice Committee, at 2.)
In view of the trend in other jurisdictions and the views set out by the Illinois Supreme Court in Skinner [citation] and Alvis [citation], for an equitable distribution of fault in negligence suits, we believe equity requires that contribution be allowed even where our statute provides for interspousal tort immunity, which would bar a direct suit by the plaintiff. Such a rule is consistent with the desirable policy of the equitable distribution of loss among those parties responsible.”

We agree with the court and hold that the public policy underlying the right of contribution outweighs that underlying the notice provision of the Tort Immunity Act. Failure to comply with the notice provisions of that Act provides a bar only in direct suits against a local entity and even in such suits today those provisions are not as strictly construed as they were originally.

Substantial compliance with the notice provision is sufficient. (King v. Johnson (1970), 47 Ill. 2d 247, 265 N.E.2d 874; Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 363 N.E.2d 378, aff'd (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) The notice requirements are to be liberally construed. (Stinnette v. City of Rockford (1978), 61 Ill. App. 3d 908, 378 N.E.2d 630.) A defect in the notice of claim under the Tort Immunity Act is cured by filing the complaint before the expiration of the time to file the notice. (Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176.) The local public entity has the power to waive the notice requirement. (Housewright v. City of LaHarpe (1972), 51 Ill. 2d 357, 282 N.E.2d 437.) The notice provision is npt a condition precedent to the right to bring suit, but a limitation provision which can be waived. Helle v. Brush (1973), 53 Ill. 2d 405, 292 N.E.2d 372.

In Wood Acceptance Co. v. King (1974), 18 Ill. App. 3d 149, 151, 309 N.E.2d 403, this court said:

“In Helle v. Brush, 53 Ill. 2d 405, 292 N.E.2d 372, the court cautions against a boilerplate application of the rationale that demands strict compliance with all prerequisites of the statutory created actions before permitting a person to assert any rights thereunder. The issue there was whether defendant’s timely counterclaim, arising out of the same occurrence as the underlying suit, could be filed against a public entity under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1967, ch. 85, par. 8 — 102) where there had been a failure to comply with the notice requirements of the Act. The court found that the purpose of section 17 of the Limitations Act to be one of fundamental fairness as well as a desire to grant defendant his complete day in court and that such purposes when balanced against the rationale for the notice section of the Tort Immunity Act far outweighed the latter thereby furnishing compelling logic for permitting defendant to assert his counterclaim. The decision explicitly rejects as broad and imprecise the classification of section 8 — 102 as a condition precedent to the assertion of the right.”

So, too, strict compliance with the notice provisions is not a condition precedent to the assertion of the right to contribution. Particularly is that true here, where the underlying tort action for personal injury was filed solely against an individual and within the general two-year statute of limitations but after the one-year notice provision of the Tort Immunity Act. The failure, or refusal, of an injured party to sue a local entity and to give the notice required under that act should not bar the sued defendant’s right to seek contribution from a negligent local entity.

Public Litho Service, Inc. v. City of Chicago (1972), 8 Ill. App. 3d 315, 290 N.E.2d 677, relied on by the City, is inapplicable. It is a subrogation case decided before the supreme court’s adoption of the doctrine of contribution.

If the notice provision did apply, the letter of October 5,1978, which was sént to the City within five months of the accident, could be construed as constituting substantial compliance with its requirements, even though it did not explicitly refer to an injury nor state the name and address of any attending physician or of any treating hospital. As to the latter items, McBride undoubtedly had no knowledge concerning them at the time the letter was sent.

In addition, the third-party complaint, which admittedly is to be construed as notice under Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 348 N.E.2d 176, was filed and served within one year “from the date that the injury or cause of action ” ° e was received or accrued.” (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102.) Under the Contribution Act the right of contribution accrues upon the tortfeasor’s payment of “more than his pro rata share.” (Ill. Rev. Stat. 1979, ch. 70, par. 302(b).) McBride’s cause of action has not yet accrued, but the cause of action can be asserted “before * e ° payment, by counterclaim or by third-party complaint in a pending action.” Ill. Rev. Stat. 1979, ch. 70, par. 305.

The summary judgment in favor of the City of Maywood is reversed and the cause remanded.

Reversed and remanded.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: PRESIDING JUSTICE STAMOS

text:
    DILLIS V. ALLEN, Plaintiff-Appellant, v. SETH J. ALI, Defendant-Appellee.
    First District (2nd Division)
    No. 81-786
    Opinion filed April 13, 1982.

      Dillis V. Allen, of Schaumburg, for appellant, pro se.

    Walter J. Starck, of Foss, Schuman & Drake, of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff, an attorney, filed an action in three counts against defendant, his former client. The first count seeks attorney fees for services rendered. The second count sounds in tort and alleges that defendant libeled plaintiff in a letter to two bar associations. The third count claims a tortious interference with plaintiff’s law practice. The trial court dismissed counts II and III. Plaintiff appeals pursuant to Supreme Court Rule 304(a).

Plaintiff Dillis V. Allen practices law in Schaumburg. Defendant Seth J. Ali intended to buy a home in Schaumburg. Defendant retained plaintiff to handle the closing of the real estate purchase. Since this lawsuit has not proceeded past the pleading stage, the facts are not fully developed. Nevertheless, the outlines of the underlying dispute are clear. At the initial consultation, a flat attorney fee (either $225 or $250) was mentioned. Plaintiff claims that he later told defendant that the fee would be computed on an hourly basis as complications had arisen in the transaction. Defendant asserts that hourly billing was mentioned as a means of computing the fee only if the sale did not go through. In any event, it appears that no hourly rate was mentioned.

Plaintiff billed defendant $1813 for 34.5 hours’ work (approximately $52 per hour). Defendant paid $300 and, refusing to pay more, wrote a letter of complaint to the Chicago Bar Association and the American Bar Association. In this letter, defendant outlined in some detail his numerous contacts with plaintiff. In describing one particular phone call, defendant used the word “incoherent” with reference to plaintiff. This reference is the basis of plaintiffs charge of libel.

We note at the outset that plaintiff has made no argument in his appellate brief concerning the dismissal of count III, which alleges a tortious interference with his law practice. Any error in the dismissal of count III is therefore waived. See Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7).

The trial court dismissed count II because the complaint was insufficient as a matter of law to state a claim in libel. Plaintiff contends on appeal that his complaint adequately pleads libel per se. Words are considered libelous per se if they are so obviously and naturally hurtful that proof of injury is unnecessary. (See Springer v. Harwig (1981), 94 Ill. App. 3d 281, 283, 418 N.E.2d 870.) In such a case, damages are presumed and proof of special damages is unnecessary. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 995, 408 N.E.2d 431, aff'd (1982), 89 Ill. 2d 205, 433 N.E.2d 246.) The four categories of statements considered defamatory per se are set out in Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 419 N.E.2d 1205. According to plaintiff, two of the four categories are here applicable: words that impute inability to discharge the duties of office or employment, and words that prejudice a particular person in the conduct of his profession or trade. (See Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 259.) Plaintiff argues that a lawyer who is “incoherent” is necessarily unable to discharge his professional duties.

Plaintiff contends, in the alternative, that his complaint sufficiently states a claim of libel per quod. Loosely translated, per quod means “with explanation.” Under this theory, the plaintiff must prove an innuendo and allege special damages. (See Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 264,371 N.E.2d 874; see also Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 260.) In the case at bar, plaintiff claims in his amended complaint “a general decline and falling off of plaintiff’s law practice has occurred, all to the damage of at least $100.00.”

We need not decide the question of whether this allegation pleads special damages with sufficient particularity because we find plaintiff’s complaint deficient on a more fundamental level. The words are simply not defamatory, either per se or per quod. Dismissal of a complaint for libel is warranted if the words claimed to be defamatory are not reasonably or fairly capable of the meaning assigned to them by the plaintiff. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 259.) Although we do not in this connection rely on the innocent construction rule (see John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, cert. denied (1962), 371 U.S. 877, 9 L. Ed. 2d 114, 83 S. Ct. 148), some related principles may be applied here. The allegedly defamatory statement should be read as a whole and the words given their natural and obvious meanings. Further, the meaning of the statement should be gathered from context and not from the words read singly. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 995.) The context of defendant’s statement is a letter of complaint, arising out of a fee dispute, to two bar associations. The letter is four pages long, typed single-space. It relates in detail every step in the attorney-client relationship and every contact between the client and the attorney. The alleged defamation is in a passage relating to one of those contacts. The entire sentence reads: “He phoned me that evening and in a very slow partially incoherent voice related how he was going to set up the escrow account and the instructions.” Plaintiff complains of only one word in this four-page letter — “incoherent.” The adjective “incoherent” refers to plaintiff’s voice, not his logic or intellectual capabilities. Further, the word is modified by “partially.” We find that the word, in context, is not normally susceptible of the defamatory meaning ascribed to it by plaintiff and that plaintiff has not stated a cause of action in libel.

Even if the word could be considered libelous, however, plaintiff has failed to overcome the privilege attached to the communication. Defendant contends that the letter should be held absolutely privileged. Such protection is too broad. The class of occasions where libelous words are absolutely privileged is narrow and generally limited to legislative and judicial proceedings and other acts of State. (Larson v. Doner (1961), 32 Ill. App. 2d 471, 473-74, 178 N.E.2d 399.) Absolute privilege may also attach to quasi-judicial proceedings. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 256.) Quasi-judicial proceedings are those that perform a judicial function and determine legal rights. (See Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 257.) Some jurisdictions consider the judicial function of bar association ethics committees and apply absolute privilege to communications made to such bodies. (See, e.g., Sinnett v. Albert (1972), 188 Neb. 176, 177-80, 195 N.W.2d 506, 508-09; Ramstead v. Morgan (1959), 219 Ore. 383, 391-95, 347 P.2d 594, 598-99.) The better approach looks to the nature and function of the body receiving the allegedly defamatory communication. For example, in Katz v. Rosen (1975), 48 Cal. App. 3d 1032, 121 Cal. Rptr. 853, the court noted that attorney disciplinary actions must be brought by the Board of Governors of the State Bar or a committee authorized by that body. The San Francisco Bar Association, recipient of a complaint letter in the Katz case, was not such an authorized committee. The court held that the communication was not absolutely privileged but was protected by a conditional or qualified privilege. 48 Cal.. App. 3d 1032, 1037, 121 Cal. Rptr. 853, 856; see also Moore v. Smith (1978), 89 Wash. 2d 932, 578 P.2d 26, 29-30.

In Illinois, the Attorney Registration and Disciplinary Committee is a quasi-judicial body created by Supreme Court Rule 751 (Ill. Rev. Stat. 1979, ch. 110A, par. 751) to administer attorney discipline. Communication with this body or any of its officially authorized agents would be absolutely privileged. The Chicago Bar Association has no quasi-judicial functions, even though it may, as a matter of professional responsibility, attempt to mediate fee disputes between clients and attorneys. Similarly, the American Bar Association has no official disciplinary function. There is no doubt, however, that a conditional or qualified privilege attaches to defendant’s letter to the two bar associations. The elements of conditional privilege are set forth in Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 377, 150 N.E.2d 202: good faith on the part of the defendant, an interest to be upheld, a statement limited in scope to the extent of that interest, a proper occasion and publication in the proper manner to appropriate parties. A letter of complaint to a bar association meets these criteria. Nevertheless, plaintiff points out that qualified privilege is lost upon proof of actual malice (Judge v. Rockford Memorial Hospital (1958), 17 Ill. App. 2d 365, 377), and plaintiff argues that defendant acted with such malice.

When a qualified privilege has been shown, the plaintiff has the burden of alleging and proving actual malice. (See Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1052, 340 N.E.2d 539.) Plaintiff’s argument on this point is difficult to follow but he appears to contend that defendant’s letter to the bar associations was not for the (presumably permissible) purpose of reporting an ethical breach. Rather, defendant’s letter had the (presumably reprehensible) ulterior motive of seeking to coerce plaintiff into lowering his fee. By this logic, the presence of any ulterior motive constitutes malice and eliminates a qualified privilege. Plaintiff’s understanding of malice is deficient. In Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 243 N.E.2d 217, our supreme court held that a qualified privilege is abused if the speaker “does not believe in the truth of the defamatory matter, or has no reasonable grounds for believing it to be true.” (41 Ill. 2d 345, 350.) This description corresponds to the definition of “actual malice” set forth in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 280, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726: “knowledge that [the statement] was false or * * * reckless disregard of whether it was false or not.” The facts that would establish knowledge of falsity (and therefore actual malice) are the same that would negate the good faith of the defendant, which is the first requirement of conditional privilege. Plaintiff’s amended complaint alleges that defendant made the statement “knowing that this characterization was false,” but this is a bare conclusory allegation without supporting facts. (See Colson v. Stieg (1980), 86 Ill. App. 3d 993, 998.) Plaintiff appears to argue that defendant’s bad faith is shown by the gratuitous character of the remark in question, that is, the comment was not necessary to the letter of complaint. A reviewing court can look at the overall circumstances in determining whether a defendant has acted in good faith. (See Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 220, 408 N.E.2d 981.) In the case at bar, defendant’s good faith is shown by the dispassionate and purposeful tone of his letter and by the fact that the remark in question occurred not gratuitously but in a detailed description of a telephone conversation. We find that plaintiff has not pleaded facts sufficient to conclude that defendant acted with malice or bad faith. Plaintiff has therefore failed to overcome the qualified privilege that attached to defendant’s communications. The dismissal of counts II and III of plaintiff’s complaint was therefore proper and is affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

       The letter indicates that copies were also sent to the Illinois State Bar Association, the Chicago Council of Lawyers, and the Fraud & Complaint Division of the State’s Attorney’s office. Since plaintiff’s complaint refers only to the American and Chicago Bar Associations, we will presume that was the extent of the publication.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PATTEN, Defendant-Appellant.
    First District (3rd Division)
    No. 81-1147
    Opinion filed April 14, 1982.

      Ralph Ruebner, Steven Clark, and Elizabeth Clarke, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, William Patten, was charged with rape, deviate sexual assault, and aggravated kidnapping. After a jury found him guilty of rape, the court sentenced him to a term of 6 years. On appeal defendant contends that he was denied his right to a jury trial when the court accepted a verdict on less than all the charges; that the court erred in admitting testimony of a telephone conversation between a witness and defendant; and that the court erred in permitting an assistant State’s Attorney to testify about an inculpatory statement made by defendant.

Complainant testified that at 10:30 p.m. on September 6,1979, as she entered an alley, defendant placed a weapon to her head and forced her into a parked automobile. Another man, not involved in this appeal, drove to an apartment where both men raped and struck her. Although defendant tied her scarf across her eyes she was able to see through it. She identified a photograph of defendant and identified him at a lineup. A police officer and an assistant State’s Attorney testified to an inculpatory statement made by defendant that he threatened to kill complainant, took her to an apartment and had sex with her.

Carolyn Martin, a neighbor of defendant’s, testified that on September 10,1979, she received a collect telephone call from defendant. He admitted the rape and asked the witness to testify that on September 6 she saw him and a woman holding hands as they entered an apartment.

At the close of the evidence, the jury was instructed on rape, deviate sexual assault, and aggravated kidnapping, and retired to deliberate. The following colloquy later ensued:

“COURT: Mr. Foreman, have you reached a verdict with respect to at least one of the three counts?
FOREMAN: Yes, that is right.
COURT: May we have the verdict?
FOREMAN: Guilty on the charge of rape.
COURT: This is the verdict brought in by the forelady. We, the Jury, find the defendant, William Patten, guilty of rape.”

The jury was polled and each juror reaffirmed the verdict as his own.

The court then stated to the jury:

“You have sent me in this question which is a point of law: Wherein a person is confined against her will during the act of rape, does that constitute aggravated kidnapping?”

The court declined to answer the question and stated that the jury should deliberate further on these counts. The court entered judgment on the verdict, and revoked bond. Thereupon, the State moved to nolle prosse the remaining charges, and, over defendant’s objection, the court granted the State’s motion and discharged the jury.

Defendant first contends that the trial court’s acceptance of the jury’s verdict on the rape charge denied him a trial by jury since it interrupted the deliberation process prior to the jury reaching a verdict on all charges. We disagree.

The integrity of the jury’s verdict must be protected from coercion, duress or influence. Hence, a judge commits reversible error when he compels a deadlocked jury to render a verdict. (Jenkins v. United States (1965), 380 U.S. 445, 13 L. Ed. 2d 957, 85 S. Ct. 1059; People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The record in the present case, however, is devoid of any evidence of coercion or influence upon the jury’s verdict. Instead, the record fully supports the conclusion that the jury had unanimously completed its deliberations as to the rape charge. The jury was immediately polled, and each juror answered unequivocally that the verdict was guilty. Indeed, even the question submitted to the trial court suggests that the jury had firmly decided the rape charge and was proceeding to the aggravated kidnapping charge based on the conclusion that defendant committed rape. We note, too, that a trial court may accept a verdict on less than all the counts from a jury deadlocked as to the remaining counts despite the opportunity for retrial on the remaining counts. (People v. DeStefano (1965), 64 Ill. App. 2d 389, 212 N.E.2d 357, citing People v. Powell (1950), 99 Cal. App. 2d 178, 221 P.2d 117.) The trial court here properly accepted the verdict.

Defendant next maintains that an improper foundation was laid for admission of defendant’s telephone conversation with a neighbor. Relevant testimony pertaining to the substance of a telephone conversation is admissible provided the identity of the speaker is established either by direct or circumstantial evidence. (People v. Nichols (1941), 378 Ill. 487, 38 N.E.2d 766.) In the present case, the witness testified that she lives three houses from defendant, that she had spoken to defendant on the telephone before and that she recognized defendant’s voice. She also stated that she was defendant’s “friend, neighbor and associate.” A foundation for introduction of the conversation was laid in the present case.

Defendant also contends that the trial court erred in permitting an assistant State’s Attorney to repeat an inculpatory statement by defendant earlier testified to by another witness.

The claimed error was waived by defendant’s failure to object either at trial or in his post-trial motion. People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245.

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

Judgment affirmed.

WHITE, P. J, and McGILLICUDDY, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN DORSEY, Defendant-Appellant.
    First District (4th Division)
    No. 81-377
    Opinion filed April 15, 1982.

      James B. Haddad, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Richard T. Sikes, Jr., Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Ben Dorsey, appeals his conviction for attempted murder (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4). On appeal, defendant contends he was denied his right to a speedy trial.

We affirm.

In April 1975, a grand jury indicted defendant and Leon Harris, his codefendant, on three counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1) and one count of attempted armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4) of a cab driver, Roger Walton. After a series of continuances, the speedy trial provisions of section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5) (hereafter referred to as the speedy trial statute) began to run on June 18,1976. After that date, the State moved for and was granted continuances.

On October 15, 1976, the assistant State’s Attorney, George Lynch, noted that defendant Dorsey’s term would run out on the next day, October 16. Lynch petitioned for an extension of time under the speedy trial statute because of a failure to locate a necessary State witness, Mattie Grady. Over defense objection, the court extended the term as to both Dorsey and Harris until December 15, 1976. On that date, defendant Dorsey’s and codefendant Harris’ joint trial began. This court summarized the testimony in our previous opinion in this case, People v. Dorsey (1980), 88 Ill. App. 3d 712, 410 N.E.2d 1132. After a jury trial, defendant Dorsey was found guilty of murder and not guilty of attempted armed robbery.

The case was set for sentencing on January 24, 1977, but because of hospitalization of the trial judge, it was continued until July 26, 1977, when defendant was sentenced to 14 years’ imprisonment. Defendant’s attorney filed a notice of appeal on August 24,1977. On January 16,1980, defendant’s present counsel was appointed to prosecute the appeal. This court reversed defendant’s conviction on September 18, 1980, and remanded for a new trial. We held that the trial court should have severed the trials of Dorsey and Harris because they had antagonistic defenses. (88 Ill. App. 3d 712, 719.) An issue raised but not decided in the earlier appeal was whether the trial court erred in extending the speedy trial term. This court, on November 25,1980, issued a mandate directing the circuit court to grant defendant a new trial.

Defendant was retried on February 10, 1981. He waived a trial by jury and stipulated to the testimony of the State’s witnesses. Defendant was found guilty of attempted murder and sentenced to 4 years and 1 day. Since defendant had already been imprisoned for 6 years, the court ordered him released instanter. It is from this second conviction that defendant appeals.

Defendant argues that he was denied the right to a speedy trial because the extension under the speedy trial statute was unwarranted. On October 15,1976, the prosecution petitioned for an extension of time. An investigator for the State’s Attorney testified that he had attempted to locate Mattie Grady at a Chicago address but no one with that name lived there, and the building superintendent did not recognize the name. The investigator also checked with Chicago police, the post office, and the public aid department, but he found no record of Grady. The investigator’s partner had told him that Grady might be in Biloxi, Mississippi. The Mississippi Department of Public Aid and Biloxi police had been contacted, but the investigator had not received any responses at the time of the hearing. On cross-examination, the investigator admitted he had no physical description of witness Grady and he did not know the source of his partner’s information that she might be in Biloxi. The officer had last contacted the Mississippi agencies 4 weeks prior to the hearing. The judge granted the petition and extended the time for 60 days until December 15, 1976.

Defendant argues that this extension was improper because the State did not exercise due diligence in attempting to locate Grady and because the judge was presented with no facts by which he could properly determine that Grady would be found.

The speedy trial statute (Ill. Rev. Stat. 1975, ch. 38, par. 103 — 5) provides in part as follows:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *.

# e #

(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

Generally, the determination of whether the statutory prerequisites of section 103 — 5(c) have been satisfied rests within the sound discretion of the trial court, and its determination will not be disturbed on review unless there has been a clear abuse of discretion. (People v. Folenga (1980), 83 Ill. App. 3d 210, 214, 404 N.E.2d 935, 938.) The trial court was presented with evidence that an effort had been made to locate Grady and that the search had been narrowed to Biloxi, Mississippi. In our opinion, the trial court did not clearly abuse its discretion in determining that Grady might still be found.

Defendant also argues that he was prejudiced within the meaning of Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, and that there was no legitimate reason for delaying his retrial. In Barker v. Wingo, the United States Supreme Court set forth criteria for judging the right to a speedy trial. The criteria are length of delay, the reason for the delay, defendant’s assertion of his right, and prejudice to defendant. (407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) While none are either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial, they are related and must be considered together with other relevant circumstances. 407 U.S. 514, 533, 33 L. Ed. 2d 101, 118, 92 S. Ct. 2182, 2193.

The length of delay which will provoke an inquiry necessarily depends upon the circumstances of the case. (407 U.S. 514, 530-31, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.) Closely related to the length of delay is the reason the government assigns to justify the delay. A deliberate attempt to delay trial to hamper the defendant is weighted more heavily than a more neutral reason such as negligence or overcrowded courts. A valid reason justifies appropriate delay. 407 U.S. 514, 531, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.

Prejudice to defendant should be assessed in light of the three interests which the right to a speedy trial protects: the prevention of oppressive pretrial incarceration, minimization of anxiety and concern of the accused, and limiting the possibility that the defense will be impaired. The last interest is the most serious because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Barker v. Wingo (1972), 407 U.S. 514, 532, 33 L. Ed. 2d 101, 118, 92 S. Ct. 2182, 2193.

In Barker v. Wingo, the length of delay between arrest and trial was well over 5 years, a delay the Supreme Court described as “extraordinary.” (407 U.S. 514, 533, 33 L. Ed. 2d 101, 119, 92 S. Ct. 2182, 2194.) Only 7 months of the period was attributable to a strong excuse, the illness of the ex-sheriff who was in charge of the investigation. Nevertheless, after considering the facts of the case, the court held that defendant Barker was not denied the right to a speedy trial because the prejudice to him was minimal and because he did not want a speedy trial. 407 U.S. 514, 534, 33 L. Ed. 2d 101, 119, 92 S. Ct. 2182, 2194.

In the instant case, 6 years elapsed from defendant’s arrest on February 13, 1975, to his final adjudication of guilty of attempted murder on February 10,1981. The period from his arrest until the first guilty verdict was February 13,1975, to December 22,1976. The speedy trial statute did not begin to run until June 18,1976, because defendant had acquiesced to continuances before that date. We have held above that the grant of a 60-day extension after the term expired was proper.

Defendant’s sentencing was delayed from January to July 1977 because of the hospitalization of the trial judge. The Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 —4—1(b)) provides that the judge who presided at trial shall impose the sentence unless he is no longer sitting as a judge in that court. Therefore, we hold that the delay in sentencing was justified.

Most of the delay in the instant case was caused by a failure to timely prosecute defendant’s appeal. Although a notice of appeal was filed on August 24, 1977, nothing was done until January 1980 when new counsel was appointed. On September 18, 1980, defendant’s conviction was reversed and the cause was remanded. Defendant was retried on February 10,1981, which was within 120 days of the issuance of our mandate to the circuit court on November 25,1980.

The delay of defendant’s appeal was not a result of a deliberate attempt to hamper defendant and is weighted less heavily in determining whether defendant was denied his right to a speedy trial. Barker v. Wingo (1972), 407 U.S. 514, 531, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192.

A combination of circumstances caused defendant’s prolonged incarceration: defendant’s acquiescence to continuances, the extension of the term, the trial judge’s hospitalization, and the delay in defendant’s appeal. The first three circumstances were legitimate reasons for delay. We cannot say that reversal of defendant’s conviction is an appropriate remedy for the delay in defendant’s appeal. We note that defendant was released immediately after his second trial. Therefore, wé hold that defendant was not denied a right to a speedy trial.

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

Affirmed.

JIGANTI and ROMITI, JJ„ concur.


author: JUSTICE LINN

text:
    THOMAS A. MADDEN, Petitioner-Appellant, v. EDWARD J. SCHUMANN et al., Respondents-Appellees.
    First District (4th Division)
    No. 82-435
    Opinion filed April 15, 1982.
    Franklin J. Lunding, Jr., of Chicago, for appellant.

      Peter A. Felice, of Lyons, for appellee Edward J. Schumann.
   JUSTICE LINN

delivered the opinion of the court:

Appellant-objector Madden appeals from a judgment entered in the circuit court of Cook County holding that the nominating petitions filed by respondent Schumann for the office of Cook County Commissioner fulfilled the statutory requirements of section 7 — 10 of the Election Code (Ill. Ann. Stat., ch. 46, par. 7 — 10 (Smith-Hurd Supp. 1981-1982)). By virtue of the trial court’s judgment, Schumann’s name would appear on the March 16,1982, Republican primary ballot for nomination as a candidate for the office. The trial court’s judgment affirmed the decision of the Cook County Officers Electoral Board, which had denied Madden’s claim that Schumann’s petitions failed to comply with the mandatory requirements set forth in the controlling statute (Ill. Ann. Stat., ch. 46, par. 7 — 10 (Smith-Hurd Supp. 1981-1982)).

On March 11,1982, following an expedited hearing, we had, by order only, indicated our affirmance. We now affirm the judgment of the trial court by this written opinion.

The pertinent statute, as last amended, requires that each nomination petition filed contain specific information in substantially the following form: (1) a caption averring that the signers of the nominating petitions are qualified electors of the specified party and county, (2) a paragraph stating the candidate’s name, address, and the office sought, (3) a list of signers and their addresses, and (4) a circulator’s affidavit swearing that he is a registered voter, that he lives at the specified address, that to the best of the circulator’s knowledge, the signers are qualified voters, and that the signatures are genuine, having been written in his presence at the correctly stated address.

The statute further requires that the complete petition, with all sheets securely fastened together in book form, must also include a separate statement of candidacy by the person on whose behalf the petition is being filed. This statement sets out the candidate’s name and address, the office sought, a declaration that the candidate is a qualified primary voter and is qualified for the office, and a request that his name be placed on the specified party’s ballot. The statement of candidacy must also be sworn under oath.

Schumann contends that he has both literally and substantially complied with all statutory requirements. We agree. Although Schumann acknowledges that the suggested form for the circulator’s affidavit, as set forth in the first part of the statute, does include an oath, missing from his petition, that the circulator is a registered voter, we believe he correctly points out that he has literally complied with the circulator’s oath requirements set forth in a later paragraph of the same statutory section. That later paragraph simply requires that the circulator’s oath be signed by a registered voter, which both parties acknowledge Schumann to be. It appears to us that if the provisions of section 7 — 10 are mandatory, then an obvious ambiguity exists between the two sets of directions for the circulator’s oath. In such cases, the court will not construe a statute against a person who correctly follows one set of directions while deviating from the other. (See Merz v. Volberding (1981), 94 Ill. App. 3d 1111, 419 N.E.2d 628.) It is for the legislature to decide and declare which direction is the one it intends to be mandatory.

Even if the wording of the suggested affidavit form were held to take precedence over the later general description of the same oath, we agree with Schumann’s contention that he also has substantially complied with all requirements. Schumann points out that the statute directs the candidate to phrase the circulator’s oath in “substantially” the suggested form.

The trial court stated in its memorandum opinion and order that the suggested affidavit in section 7 — 10 is directory to the extent that it requests information not required by the mandatory provision.

Additionally, while the information required in each section of the nominating papers is mandatory, the precise location on those papers for each item is less rigid and is not defined specifically. The statement of candidacy affixed to the front of the bound group of petitions contains an oath that Schumann is a qualified voter living at a specified address in the voting district. Since Schumann himself was the sole circulator, that oath can be read in conjunction with the other correctly included material in the circulator’s oath to show substantial compliance with the statute.

Support for the idea that a nominating petition may be read as one complete document in order to achieve substantial compliance with the statute is found in Lewis v. Dunne (1976), 63 Ill. 2d 48, 344 N.E.2d 443, Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 432 N.E.2d 1333, and Madison v. Sims (1972), 6 Ill. App. 3d 795, 286 N.E.2d 592. In Lewis, the supreme court held that a statement of the particular vacancy to be filled, statutorily required to be included in the statement of candidacy, was substantially present when the remainder of the nomination papers, of which the statement of candidacy was a part, clearly stated the particular vacancy. In Madison, the court found that a general verification that petition signers were qualified electors of a specified legislative district constituted substantial compliance with Election Code requirements even though the signers’ addresses did not include the name of the city. In Panarese, where the circulator had inadvertently omitted his address from only one of five petition sheets, the court stated, “This court has found substantial compliance to satisfy section 7 — 10 where deviations therefrom were technical in nature.” (Panarese v. Hosty (1982), 104 Ill. App. 3d 627, 630.) Schumann rightly argues that the omission of the phrase “is a registered voter” from the circulator’s oath is a technical deviation when his candidacy oath states that he is a qualified voter.

Objector Madden’s contention that the various required parts of a nominating petition may not be read back and forth to achieve substantial compliance with the statute is based on his analysis and interpretation of Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App. 3d 823, 329 N.E.2d 436. However, Lawlor was attempting to persuade the Electoral Board to allow the information on the nominating petition to fill in several mandatory items missing from the statement of candidacy, including his sworn statement that he was a qualified primary voter of the Republican party, that he was a candidate in the Republican primary, and that he requested his name to be printed on the primary ballot for the nomination by the Republican party. In fact, Lawlor’s statement did not so much as indicate which party’s nomination he was seeking. In the present case, in contrast, Schumann omitted from his circulator’s oath only the statement that he is a registered voter. We believe his oath that he is a qualified primary voter, contained in his statement of candidacy, is sufficient to constitute substantial compliance with the statute.

Madden also cites Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 404 N.E.2d 180, to support his argument that section 7 — 10 is mandatory in all respects and therefore all its provisions demand literal compliance. However, in Bowe, the problem with the petition was not a technical error but the failure of the circulator to appear before an appropriate official to swear to his oath. This deficiency relates to the very purpose of all the filing requirements, that of ensuring as honest an election as possible. A similar crucial deficiency was the subject of Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, also cited by Madden. In Havens, the nominating petitions were filed in the wrong office, so members of the public found it impossible to examine them in the announced location.

“[Legislation prescribing rules governing the conduct of public elections has been insisted upon in order to insure against frauds which would subvert the democratic process.
“[However,] [substantial and not literal compliance with technical requirements of election laws seems to be a general rule. In the absence of fraud or express statutory language, irregularities in the conduct of elections will not invalidate such elections.” 3 Sutherland, Statutes and Statutory Construction §70.01, at 294, 296 n.13 (4th ed. 1974).

A careful review of both groups of precedent cases cited by the parties compels us to conclude that substantial compliance with the Election Code is acceptable when the invalidating charge concerns a technical violation such as in the present case. But substantial compliance is not operative to release a candidate from compliance with the provisions intended by the legislature to guarantee a fair and honest election. The cases cited by Madden demanded literal compliance because the provisions violated were among those designed to guard against fraud. Here, Schumann’s technical violation was no threat to the integrity of the election process.

For all the above reasons, we affirm the decision of the trial court.

Affirmed.

JOHNSON, P. J., and ROMITI, J„ concur.