author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. BURTON, Defendant-Appellant.
    Second District
    No. 82—1014
    Opinion filed January 19, 1984.
    Randy K. Johnson and John S. Biallas, both of St. Charles, and Miller, Feda & Barbosa, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

In a bench trial, defendant, Michael A. Burton, was found guilty of two counts of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 4(a)(1) and 11 — 4(a)(3)) and found not guilty of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1). Judgment was entered on one count of indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 4(a)(1)), and defendant was sentenced to a four-year term of imprisonment.

Defendant raises two issues on appeal: (1) whether his statutory and constitutional right to trial by jury was denied where the record does not indicate that defendant expressly and knowingly waived his right to trial by jury; and (2) whether the trial court’s refusal to grant probation was an abuse of discretion and a result of the court’s failure to comply with sections 5 — 4—1(c) and 5 — 5—3.1(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005 — 4—1(c) and 1005 — 5—3.1(b)).

At his arraignment on July 6, 1982, defendant was advised of his right to trial by jury and through counsel elected to stand on his right to a jury trial. On September 30, 1982, defendant’s case was called, and the prosecutor indicated, in the presence of the defendant, that “it is scheduled today for a bench trial.” Defendant’s counsel then immediately replied “[t]hat is correct, Your Honor.” The trial court denied a previously filed motion to dismiss, and the case proceeded to a bench trial. Following the finding of guilty on indecent liberties with a child, the defendant later filed a written motion for new trial specifying five grounds for a new trial which did not include the jury waiver issue. It was denied. On appeal defendant raises for the first time his argument that he did not expressly and knowingly waive his right to a jury trial. Primarily relying on the factual similarity of the instant case with People v. French (1980), 84 Ill. App. 3d 60, defendant contends the judgment below must be reversed and remanded for a new trial for the failure of the record to demonstrate a sufficient jury trial waiver.

The colloquy concerning a bench trial here in the presence of the defendant is similar to that in French which the appellate court held to be an insufficient record to show an intelligent and knowing waiver of the right to jury trial. However, the court in French did not discuss our supreme court’s decision in People v. Murrell (1975), 60 Ill. 2d 287, which held that defense counsel’s statement waiving the defendant’s right to a jury trial in defendant’s presence constitutes a valid jury waiver. (60 Ill. 2d 287, 290-92.) Although a personal waiver by the defendant is preferred, it is not constitutionally required, nor do the rules or statutes mandate it. (60 Ill. 2d 287, 291.) As in Murrell, defendant has not argued that he wanted or that he was deprived of a jury trial. Other appellate court decisions have held that a statement by defense counsel in the presence of defendant that a bench trial is desired is a sufficient record of a jury waiver. (People v. Hoover (1980), 87 Ill. App. 3d 743; People v. Thompson (1976), 38 Ill. App. 3d 101; see also People v. Rettig (1980), 88 Ill. App. 3d 888; People v. Hightower (1979), 73 Ill. App. 3d 779; People v. Lofton (1976), 42 Ill. App. 3d 211, rev’d on other grounds (1977), 69 Ill. 2d 67; People v. Jones (1975), 28 Ill. App. 3d 175.) Following Murrell and the long line of similar appellate decisions, except for French, we conclude the record adequately supports a valid jury waiver. Nonetheless, we would expect a trial court to be more comprehensive in the jury waiver procedure. See ABA Standards, Trial by Jury, Standard 1.2(b) (1968).

The defendant contends the trial court abused its discretion in denying probation because (1) the court had stated defendant warranted probation, (2) the only harm caused to the victim was the harm inherent in the offense, and (3) the court failed to give adequate reasons for the sentence imposed as required by section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4— 1(c)).

It is clear that the trial court’s indication that the defendant warranted probation was stated in the context of defendant’s good record “with the exception of this event.” The court viewed the circumstances surrounding defendant’s intercourse with the 13-year-old victim as a very serious offense. Thus, no error is seen in the court’s comments or any abuse of sentencing discretion in this regard.

Citing People v. Allen (1981), 97 Ill. App. 3d 38, defendant maintains that the trial court’s comments, that it considered this to be a serious crime and defendant took advantage of the naive complainant in her own home, constitute an improper aggravating factor since the described conduct is inherent in the very nature of the offense of indecent liberties with a child. Rather than an indication of an aggravating factor (see Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2), we consider the comments of the trial judge as a proper articulation of the particular facts of this offense upon which he determined the appropriate sentence. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4— 1(c).) Here, the remarks of the trial judge about the nature of this particular offense, which included that the victim was a naive girl, that she was taken advantage of in her own home by a stranger and that she appeared to look only 13 years old, are all supported by the evidence and properly commented on by the court below. We find no error.

Finally, defendant’s argument that the trial court failed to specify the reasons which led to his sentencing determination pursuant to section 5 — 4—1(c) of the Unified Code of Corrections is waived on appeal for failure to request such a statement of reasons for the sentence in the court below. (People v. Davis (1982), 93 Ill. 2d 155.) Moreover, the trial court did adequately set forth in the record the basis for its sentencing determination.

Here, the defendant admitted intercourse with the 13-year-old victim, although he denied knowing she was that young. The evidence supports the trial judge’s conclusion that defendant took advantage of a naive girl. The trial court found that the girl did look 13 years old. The record further reveals that she was slow mentally and physically, had a severe hearing problem, and suffered emotionally from this traumatic experience requiring psychiatric treatment. While the defendant had no prior criminal record and was eligible for probation, the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender is best left to the trial judge. (People v. Cox (1980), 82 Ill. 2d 268, 280.) After a careful review of the record, we cannot say the trial judge abused his broad discretion.

Affirmed.

LINDBERG and HOPE, JJ., concur.


source: Caselaw Access Project

author:
PRESIDING JUSTICE SEIDENFELD
      JUSTICE LINDBERG,

license: Public Domain

text:
    LOWELL CROCKER, Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees—(Leonard Weiss, Manager, Winnebago County Bureau of Employment Security Division of Unemployment Insurance, The Department of Labor, et al., Defendants).
    Second District
    No. 83—169
    Opinion filed January 19, 1984.

      LINDBERG, J., dissenting.
    Mary Therese Wolf, of Prairie State Legal Services, of Rockford, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Lowell Crocker appeals from a judgment affirming the decision of the Illinois Department of Labor Board of Review (the Board), which affirmed the denial of compensation benefits to him.

The Board decided Crocker was ineligible for benefits under section 500(C) of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 420) because he voluntarily left his job without good cause attributable to the employer. (Ill. Rev Stat. 1981, ch. 48, par. 431.) The circuit court affirmed the Board’s decision on the basis that the employee had voluntarily left his job without good cause attributable to the employer under section 601(A) (Ill. Rev. Stat. 1981, ch. 48, par. 431(A)), and the exceptions set forth in section 601(B)(5) (Ill. Rev. Stat. 1981, ch. 48, par. 431(B)(5)) did not apply.

Crocker had been employed full time as a manager of a tire store until April 1981, when the store closed. He filed a claim for unemployment insurance benefits with the division of unemployment insurance.

While collecting benefits, Crocker took a part-time job as a construction worker and later as a part-time employee with K-Mart, began working for K-Mart as a mechanic/j anitor sometime around July 4, 1981, and voluntarily quit on July 18, 1981. He continued to report to the unemployment office and collected benefits from July 26, 1981, through August 29, 1981. A claims adjudicator declared that Crocker was ineligible for benefits from July 26 through October .17, 1981, or until he found work equal to at least six times the weekly benefit amount, whichever occurred earlier, and that he had been overpaid from July 26 through August 29, 1981. Upon redetermination, a claims adjudicator found that, under section 900 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 490), Crocker left his job without cause attributable to the employer and did not report that to the Unemployment Insurance Office. The claims adjudicator found, therefore, that Crocker must repay the benefits paid to him from July 26 through August 29, 1981. Crocker filed an application for reconsideration with the Department of Labor, maintaining that he was eligible for unemployment benefits because he left unsuitable work voluntarily with good cause under section 601(B)(5).

Crocker testified that from March 1980 until he lost his job in April 1981, as the manager of the tire store, his earnings from this job were approximately $1,200 per month. At K-Mart, plaintiff worked approximately 20 hours per week at an hourly rate of $3.50 per hour. While he thought he would receive training as a mechanic, most of his duties consisted of mopping floors and cleaning the bathroom. He also stated he was dissatisfied with being scheduled to work on Sundays, which interfered with his teaching Sunday school and attending church, with the lack of opportunity for advancement, and with the unpleasant and unprofessional atmosphere. He reported the earnings from this job to the Department of Labor. He stated there was no reduction in his weekly benefit amount for two of the three weeks he worked at the K-Mart position and a reduction in the third week was inconsequential.

The referee affirmed the claims adjudicator’s determination and denied the claim for benefits. He held that the employee voluntarily left employment without good cause attributable to the employer under section 601(A) or within the limited exceptions specified in section 601(B)(5).

The Board of Review and the circuit court affirmed.

On appeal, Crocker contends that the decision of the Board is against the manifest weight of the evidence. At issue is the validity of the agency’s finding that the employee was ineligible for unemployment compensation benefits because he voluntarily left his work without good cause contrary to section 601(A) of the Act which provides, as material:

“An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit and, thereafter, until he has become reemployed ***” (Ill. Rev. Stat. 1981, ch. 48, par. 431(A))

and contrary to the exceptions in section 601(B)(5) of the Act to work

“[w]hich he had accepted after separation from other work, and the work which he left voluntarily would be deemed unsuitable under the provisions of section 603.” Ill. Rev. Stat. 1981, ch. 48, par. 431(B)(5).

The Act is designed to provide unemployment insurance benefits for the unemployed person who is willing, anxious, and ready to accept suitable employment and who meets certain statutory conditions prescribed. The Act permits claimants to supplement their benefits with earnings from part-time employment. (Ill. Rev. Stat. 1981, ch. 48, par. 402.) As the receipt of unemployment insurance benefits is a conditional right, the burden of proving eligibility before the Board rests "with the claimant. Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 893; Rosenbaum v. Johnson (1978), 60 Ill. App. 3d 657, 662.

Under section 603, a claimant may reject work or referral to employment if the job in question is not “suitable.” (111. Rev. Stat. 1981, ch. 48, par. 433.) In determining whether certain work is suitable, consideration must be given to various factors, including any risk to the claimant’s health or safety, the claimant’s physical fitness, his or her prior training and experience, the claimant’s prior earnings, the length of time for which the claimant has been employed, the prospects for securing local work in the claimant’s customary occupation, and the distance of the available work from claimant’s residence. Ill. Rev. Stat. 1981, ch. 48, par. 433; Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 708.

It has been held that a claimant is justified in refusing employment where the job offers a level of skill and rate of pay not commensurate with his previous employment, depending on the circumstances in each case. Thus, a skilled worker who has been unemployed for only a short time may refuse to accept unskilled work with a substantial pay reduction. (Keystone Steel & Wire Division, Keystone Consolidated Industries v. Department of Labor (1976), 37 Ill. App. 3d 704, 709.) A claimant, thus, is entitled to benefits for a reasonable period to enable him or her to seek work under conditions comparable to those of his or her former employment. (37 Ill. App. 3d 704, 708.) However, the longer the claimant has been out of work, the more willing he or she must be to perform different tasks, travel farther, and accept lower pay. Doyle v. Board of Review (1975), 31 Ill. App. 3d 968, 970.

The Department, in its Manual of Benefit Precedent Decisions, has provided some guidance in evaluating a claimant’s eligibility after voluntarily leaving employment. The manual provides that work may be unsuitable for any worker under section 603 due to wages or working conditions. (M.B.P.D.T. No. 285, VL425.05 (November 15, 1982).) In particular, the manual states that a reduction of 10 to 15% in wages may be sufficient to render work unsuitable. (R.W. 500.35.) The manual recognizes that a claimant’s prior work experience and earnings may render a job unsuitable. (M.B.P.D.T. No. 285, VL425.05 (November 15, 1982).) The manual provides sample cases to illustrate this interpretation. In example “2,” a claimant, who earns $300 a week, on March 8 accepts a temporary job at $3.35 per hour, after searching two months without finding suitable employment, and on March 22 leaves, is still eligible for unemployment benefits because the temporary job is unsuitable in consideration of his previous wages. Other factors to be taken into account under section 603 are the claimant’s length of unemployment and prospects of securing local work at his customary occupation. The manual provides that the minimum number of weeks which can be considered a reasonable length of time to seek skilled work is 10 weeks. “A very menial job is never suitable for a skilled worker.” R.W 295.05.

To the extent that good cause and suitability are factual issues, the agency’s determination is prima facie true and correct and should be not disturbed on review unless the findings are against the manifest weight of the evidence. (Ill. Rev. Stat. 1981, ch. 110, par. 3— 110; Peterson v. Board of Trustees (1973), 54 Ill. 2d 260, 262-63.) Further, agency guidelines, such as the Department’s Manual, are presumed to be valid, and a court should not disregard them unless they are unreasonable. Brown v. Sexner (1980), 85 Ill. App. 3d 139, 152.

Based on Crocker’s prior employment, training, experience, wages and the length of time he has been unemployed, the K-Mart job was unsuitable under section 603 and therefore pursuant to section 601(B)(5), he is not disqualified from benefits for voluntarily leaving this job. Crocker was a skilled worker. He held a B.S. degree and had worked since 1979 as a manager. His earnings from his last job were approximately $1,200 per month. He was unemployed approximately 12 weeks before he accepted the K-Mart position at a pay rate of $3.50 per hour at 20 hours per week. Assuming he worked 45 hours per week, he maintains, his pay would be over $5 per hour from his prior job, while the K-Mart job paid $3.50 per hour, a reduction of over 30% per hour. Where the job offered is unskilled with a substantial reduction in pay, and the claimant has not been unemployed for an unreasonable length of time, refusal of work is justified under section 603. (Keystone Steel & Wire Division, Keystone Consolidated In dustries v. Department of Labor (1976), 37 Ill. App. 3d 704, 708.) Further, as Crocker was unemployed only 12 weeks at the time he took the K-Mart job, he falls within the length of time considered to be reasonable for a skilled worker to seek skilled employment as prescribed by the manual.

Since Crocker would not have been disqualified for refusing an unsuitable job, it follows that he should not be penalized for leaving a part-time job that is not commensurate with the level of skill and pay he previously enjoyed.

We agree with the Department’s argument that part-time work is not per se unsuitable. However, in the examples of leaving without good cause attributable to the employer to which the Department points, the worker left otherwise suitable work solely because his hours were reduced. These examples are inapposite, because we find that Crocker accepted unsuitable work. Section 601(B)(5) allows a worker voluntarily and without penalty to leave unsuitable work which he accepted after separation from other employment. (Ill. Rev. Stat. 1981, ch. 48, par. 431(B)(5).) We conclude that Crocker’s part-time employment at K-Mart was established to be unsuitable under section 603 (Ill. Rev. Stat. 1981, ch. 48, par. 433) not because it was part-time but because it was not commensurate with Crocker’s experience and because it did not provide the promised training.

After considering the circumstances presented, we conclude that the Board erred in requiring Crocker to show that he had good cause for leaving his part-time position as a janitor at K-Mart. The Board applied an improper legal standard in determining that because he voluntarily made himself unavailable to work for K-Mart he therefore was not eligible for benefits under section 500(C) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 420(C)). The findings of the claims adjudicator and of the circuit court were based on section 601 of the Act, but we conclude that the findings and decision of the Board and of the circuit court are against the manifest weight of the evidence.

The judgment of the circuit court of Winnebago County is reversed and the cause is remanded to the Board of Review of the Illinois Department of Labor for a determination of benefits due to Lowell Crocker under section 601(B)(5) of the Illinois Unemployment Compensation Act. Ill. Rev. Stat. 1981, ch. 48, par. 431(B)(5).

Reversed and remanded.

UNVERZAGT, J., concurs.

JUSTICE LINDBERG,

dissenting:

I dissent. The majority concludes that employment at K-Mart was unsuitable for this claimant on two grounds: (1) based upon his prior experience and training he was a skilled employee required to perform unskilled tasks at K-Mart, and (2) he was subjected to a substantial reduction in pay as defined by the Department’s guidelines.

I conclude that the finding of the adjudicator, the Board of Review and the circuit court that the K-Mart job was suitable employment under the statute was not against the manifest weight of the evidence. First, the claimant failed to establish he was a skilled employee. In fact, the K-Mart work was the same as he had been doing for the past three years. Second, the claimant waived any issue of the disparity in hourly wage rates when he failed to initially raise the issue with the adjudicator. While he complained of low pay in his motion for reconsideration, he failed to pursue the issue in his appeal to the Board of Review. The issue of rate of pay upon which the majority relies was never before the hearing officer and, so far as the record discloses, was raised for the first time on appeal to this court.

The record demonstrates that the claimant was not a skilled employee. He testified that he held a bachelor’s degree in physical education and held a teaching certificate while in college in 1975. No further evidence was presented by the claimant that related to his educational qualifications or their relationship to his employment.

Further, the claimant presented no evidence of his work history before August 1978. At that time he:

“just started working a regular service station type job pumping gas and fixing tires and that kind of work and within five months in January [1979], I was asked to take the responsibility of the manager’s job of the station which I did. My work week consisted of about 55-60 hours every week — six days a week and I did this for about a year and a half [until March 1980].”

The claimant presented no evidence to establish the nature of this new responsibility from which it could be concluded that he did anything other than continue to pump gas and fix flats.

In April 1980 he took a job in Roscoe, Illinois, which was also six days per week. He testified that:

“I took that responsibility and tried to start a tire store, but the tire store fizzled out. It didn’t get off the ground and the tire store closed.”

Contrary to his assertion on appeal, there was no evidence that he was the manager of the store. Further, the claimant presented no evidence that he performed the work of a skilled employee in that job.

In April 1981 he lost the job at the tire store. Thereafter, he filed this claim for unemployment compensation, performed undescribed tasks in the remodeling of an apartment building on a part-time basis and accepted the part-time employment with K-Mart at issue in this case. His testimony discloses that one of his disappointments with the part-time employment at K-Mart was that he performed oil changes and fixed flat tires “which I had been doing for the past three years.” The record fully supports the conclusion of the Board of Review that the K-Mart job was suitable employment based upon the claimant’s prior training and experience. I would not conclude that the additional work of mopping floors and cleaning bathrooms requires a conclusion contrary to that of the fact finders below.

The majority also heavily relies upon the disparity between the claimant’s prior rate of pay and his K-Mart rate of pay. It is noteworthy that among the numerous allegations originally made by the claimant to the adjudicator, none addressed his rate of pay. He first claimed his pay was too low in his application for reconsideration of the adjudicator’s decision. A very careful reading of the record before the Board of Review fails to disclose that he pursued the issue that his pay was too low vis-a-vis his rate of pay. The testimony instead relates to the inadequacy of the hours he worked in his third and last week which was 17Vz hours instead of the 20 to 24 he allegedly was promised. However, even in this regard it was claimant who insisted on not working Sunday mornings because it conflicted with his Sunday-school teaching. Those lost hours may have increased his weekly hours to the 20-24 hours promised him.

In sum, there is virtually no evidence to support a reversal of the findings by the adjudicator upon reconsideration, the Board of Review or the circuit court that the K-Mart position was suitable employment for this claimant. On the other hand, the record is replete with evidence that the claimant did not want to work with mechanics who drank liquor at lunch, were unprofessional and lacking in customer loyalty and created an adverse environment for his Christian development. The record discloses that his only complaint to a representative of the employer was having to work on a Sunday morning, and he was granted the relief he sought. Otherwise he made no effort to have the employer adjust his employment grievances which dealt with his perception of the unsuitability of his co-employees, the evening and Sunday work schedule and unlikelihood that he would advance. The decision below should be affirmed.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARSHALL MITCHELL III, Defendant-Appellant.
    Second District
    No. 82—77
    Opinion filed February 1, 1984.
    Rehearing denied February 23, 1984.
    G. Joseph Weller and Michael Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Marshall Mitchell III, appeals from his conviction and sentence for the offense of burglary (Ill. Rev. Stat. 19779, ch. 38, par. 19 — 1(a)). His first contention on appeal is that his conviction must be reversed and the cause remanded to the trial court because the trial judge abused his discretion by denying a defense motion to reopen voir dire as to one of the jurors.

We agree.

During voir dire, juror Thomas J. Maloney was asked by the court “have you ever been a victim of a crime?” to which he responded, “No, I haven’t.” After the first panel, of which Maloney was a member, had been accepted and sworn, defense counsel first learned of the existence of a list of background information on the prospective jurors in the State’s possession. The State agreed to furnish a copy of that document to the defense, and defense counsel’s review of it revealed that Maloney had been the “Victim of Burglary” on or about December 13, 1975. The defendant’s motion to reopen voir dire of Maloney “simply to inquire about the nature of that incident and its effect on him” was denied on the basis that ‘ ‘it was not prejudicial.”

People v. Kurth (1966), 34 Ill. 2d 387, People v. Peterson (1973), 15 Ill. App. 3d 110, and People v. Rohwedder (1969), 106 Ill. App. 2d 1, all support the proposition urged by the defendant that, where information showing prejudice or potential prejudice of a seated juror is brought to the attention of the court during or immediately after voir dire, the proper procedure would be further inquiry by the court (People v. Peterson (1973), 15 Ill. App. 3d 110, 111) or re-examination (People v. Rohwedder (1969), 106 Ill. App. 2d 1, 6) or interrogation (People v. Kurth (1966), 34 Ill. 2d 387, 391) of the juror. In Kurth and Peterson the court found that it was reversible error to foreclose such inquiry or interrogation and remanded the cause for a new trial. In Rohwedder, the court dismissed the juror, which the appellate court upheld but observed that the proper approach would have been to allow the parties to re-examine the juror and then to have considered any challenges for cause or the use of peremptory challenges by either party. The State would distinguish these cases on the basis that the information casting doubt on the jurors’ impartiality in these cases came from the jurors themselves, whereas here the information came from a list of theirs which, they maintain, is unreliable.

However, as the defendant points out, the right to a jury trial guarantees to one accused of a crime a fair trial by a panel of impartial jurors (People v. Cole (1973), 54 Ill. 2d 401, 411; People v. Oliver (1977), 50 Ill. App. 3d 665, 672), and the purpose of voir dire examination is to permit counsel to ascertain whether the minds of prospective jurors are free from bias and prejudice (People v. Witted (1979), 79 Ill. App. 3d 156, 164). Limitation of such examination constitutes reversible error where its effect is to deny a party a fair opportunity to probe an important area of potential bias or prejudice among prospective jurors. (People v. Pitts (1982), 104 Ill. App. 3d 451, 456.) Here the defendant was tried for the offense of burglary by a jury which included a member who may have very well been a victim of a burglary, which, it appears obvious, is an important area of potential bias or prejudice to be probed. Whether the information was true (reliability of the report) and, if so, whether it would affect Maloney’s impartiality were allowed to hang in the balance on conjecture when inquiry could have resolved the issue and, if necessary, another juror could have been seated. See People v. Peterson (1973), 15 Ill. App. 3d 110.

In support of its position the State relies on this court’s recent decision in People v. Witte (1983), 115 Ill. App. 3d 20, for the proposition that, when the prejudice of a juror is alleged in a motion for a new trial, distinct evidence of bias must be offered, and the allegations must be specific, detailed and nonconjectural.

In Witte, the juror, who became jury foreman, allegedly concealed the fact that he had acquaintances and friends employed by the sheriff’s department by not coming forward when the court specifically posed that question to the jury as a group. The defendant in that case did not learn of facts which might support a finding of juror partiality until after the verdict. In such a case, a defendant needs to show (1) that the juror answered falsely and (2) that actual prejudice resulted. Pekelder v. Edgewater Automotive Co. (1977), 68 Ill. 2d 136.

However, Kurth, Peterson and Rohwedder indicate that where, as here, voir dire was still in progress or just completed, an inquiry is called for where facts contradicting the answers given on voir dire come to the attention of the trial court. Considerations of logic, judicial economy and fair trial support this proposition. A limited inquiry of the nature suggested by the defendant at that juncture would have satisfied the purpose of voir dire to expose potential bias or prejudice, it would have resulted in only a minor delay in the process of jury selection, and it would have resolved the issues of the truth or falsity of the report that the juror had been a burglary victim and the effect that such involvement would have on his impartiality.

Also, defendant’s allegations were specific, detailed and nonconjectural. On voir dire Maloney denied being the victim of a crime, but the State’s report showed that he was a burglary victim on or about December 13, 1975. This is both specific and detailed. In contrast to Witte, the possibility of prejudice resulting from having been the victim of the same type of offense for which defendant stands accused is far less conjectural than that arising from having friends or acquaintances employed by the local police force, and defense counsel here, unlike Witte, did not knowingly accept other jurors whose background disclosed the same alleged infirmity for which objection is being taken to this juror.

We conclude that the court abused its discretion in refusing to reopen voir dire of juror Maloney for the limited purpose of inquiry into this incident. Even if evidence of defendant’s guilt was sufficient, issues involving the right to a fair trial by a panel of impartial jurors cannot be disposed of by the harmless error rule (People v. Cole (1973), 54 Ill. 2d 401, 411; People v. Oliver (1977), 50 Ill. App. 3d 665, 673). Reversal of defendant’s conviction is required.

The State argues that even if reversal is necessary, a new trial is not mandated but rather a limited remand for an evidentiary hearing is proper, citing People v. Witte (1983), 115 Ill. App. 3d 20. However, as discussed previously, in Witte the potential prejudice was first raised after verdict. Here, as in People v. Kurth (1966), 34 Ill. 2d 387, the issue was raised during voir dire, and the remedy in that case was remand for a new trial. Reversal and remand for a new trial are likewise warranted here.

Having reached the conclusion that the matter must be reversed and reihanded for a new trial, we need not reach the other issues raised by defendant, as they relate to matters which probably will not arise on a second trial (see People v. Kurth (1966), 34 Ill. 2d 387, 391).

Reversed and remanded.

UNVERZAGT and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY MARTIN et al., Defendants-Appellants.
    Second District
    Nos. 82—105, 82—114 cons.
    Opinion filed January 12, 1984.
    Rehearing denied February 23, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Alan D. Goldberg, Assistant Public Defender, both of Chicago, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Cheri A. Novak, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In separate informations, defendants Harry Martin and Dennis Me-Clinton were each charged with two counts of armed robbery, two counts of armed violence and seven counts of unlawful use of weapons. In a consolidated Jury trial on the armed robbery and armed violence counts, the defendants were each found guilty of two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). In the defendants’ consolidated bench trial regarding the unlawful use of weapons charges, each was found guilty of two counts of unlawful use of weapons. (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(9).) Defendant Martin was sentenced to 35 years’ imprisonment on each count of armed robbery, 35 years on each count of armed violence, and five years on each count of unlawful use of weapons. Defendant McClinton was sentenced to 30 years on each count of armed robbery, 30 years on each count of armed violence, and five years on each count of unlawful use of weapons. All sentences were to run concurrently for both defendants.

On February 18, 1981, at about 11 p.m., the defendants pushed their way through the rear door of an Oak Brook McDonald’s restaurant during the course of a bread delivery. The defendants herded the employees into a corner and approached John Kasprzyk, the store manager. The defendant Martin was dressed in a snowmobile suit, wearing a ski hat and gloves and wielding a revolver. He pointed the gun at Mr. Kasprzyk’s face, ordered the manager to the rear of the store, and then commanded him to open and empty the contents of the store safe into a bucket. The other employees were ordered into the walk-in refrigerator. The defendant McClinton, who was dressed in dark pants, ski cap, gloves, jacket and pinkish glasses, then took Mr. Kasprzyk at gunpoint to the front of the restaurant and directed him to empty the cash register drawers into the bucket. In addition to over $1,800, the defendants also took a white bank bag from the safe. On the bag were written the words “BACK UR”

One week later, on February 25, 1981, at approximately 11 p.m., the defendants were observed in the immediate area of a Darien McDonald’s. When stopped, the officers found the two revolvers and the bank bag from McDonald’s. Defendants were subsequently arrested and charged with armed violence, armed robbery and unlawful use of weapons.

On May 26, 1981, defendants filed two motions to suppress evidence. On June 8, 1981, a hearing was first held on the motion to suppress pertaining to the stop and search of the car in which Martin and McClinton were arrested.

The first witness on this motion was Harry Martin. He testified that on February 25, 1981, he was driving in his brother’s Ford station wagon with Dennis McClinton as his passenger, when they were stopped by the Darien police. According to Martin, immediately after they were stopped, the arresting police officers stood about 10 or 15 feet away with their guns drawn, and told Martin to get out of the vehicle and put his hands on his head and walk toward them. None of the police officers approached the vehicle prior to the time Martin was ordered out of the car. When he was ordered to get out of the car, Martin turned to McClinton and told the other man to get out of the vehicle, and they then walked toward the police with their hands on their heads. When they reached the squad cars, Martin testified that the police threw them to the ground, placed shotguns and pistols against their heads and backs, and then proceeded to go to the car. Martin and McClinton were both searched, and they were then told to stand up and were placed against the squad car. Martin stated that after searching the defendant’s car, an officer announced that he had found a bag but had not found what the police were looking for. The officer was told by a sergeant to keep searching. Martin thereafter heard the motor of his car turn off, and then a police officer hollered that he had found something in the glove compartment. Prior to this, Martin testified that the glove compartment had been locked. After the officers had opened the glove compartment, Martin and McClinton were taken over to the car and placed inside. Martin was read his rights and was told that the defendants were going to be taken to the police station, and that they were being arrested and held under investigation for an armed robbery.

The first witness for the State on this motion to suppress evidence was Darien Police Sergeant Edward S. Musial. His version of the events occurring on February 25, 1981, was quite different from that presented by the defendants. He testified that on February 25 he was in his car with another officer when he observed a Ford station wagon on Seminole Drive just north of Plainfield Road, directly across from a McDonald’s in Darien. The vehicle first passed by the squad car and then backed up in front of them. At this time; Musial said he observed that a taillight lens was cracked on defendants’ vehicle, although the light was operative. Defendants’ car then turned around and parked on Seminole Drive for about a minute. Officer Musial then heard the car’s engine start up again, the headlights came on, and the car moved onto Plainfield Road. The officer then testified that he lost the vehicle, but “two other officers stationed in the area someplace else viewed the vehicle the whole time.” Musial and his partner subsequently saw the vehicle going eastbound on a different street. According to Musial, the defendants’ car traveled directly in front of the police vehicle, pausing at a stop sign. In the light cast by the squad car headlights, Musial observed two male blacks in the interior of the passing car and noticed one was wearing a blue snowmobile suit, similar to that which one of the robbers had been wearing at the February 18 McDonald’s robbery. The age of the two male blacks appeared to be the approximate age of the subjects mentioned in a police radio message regarding the previous McDonald’s robbery. By the time the vehicle was actually pulled over by Officer Musial, at 10:45 or 10:50 p.m., five to 10 minutes had passed since the officer first observed the vehicle with the broken taillight lense.

Immediately after stopping the defendant’s station wagon on Nantucket Street, Sergeant Musial ordered the occupants out of their vehicle. As they exited the car, the defendants were ordered away from the vehicle and directed to get on the ground. Subsequently, they were both patted down. While defendants were on the ground, Musial went up to the station wagon to check if there was anyone else hiding in the darkened vehicle. Musial testified that as he approached the vehicle, he could see on the floor a red bank bag marked with a McDonald’s name, plus a blue ski mask, a blue knit cap and two pairs of gloves on the front seat. In a prior police radio message, and in a flier the officer had received concerning the Oak Brook McDonald’s robbery, he had gained information that one of the robbers had worn a blue ski mask, the other had worn a blue knit cap, and they both had been wearing gloves. After finding the bag, gloves, and hat, Musial walked back to the squad car and gave his handcuffs to an officer so that one of the defendants could be handcuffed.

Musial then returned to the station wagon because he had additional information that one of the robbers had been armed with a 4-inch revolver and the other with a 2-inch revolver. According to Musial, he opened the unlocked glove compartment and found a 4-inch, .38-caliber revolver in “plain view,” and a bank-type bag with the words “BACK UP” written on the bag. Inside the bank bag, he found a .32-caliber, 2-inch revolver inside a holster. Musial testified that he had looked in the glove compartment because “we were investigating two subjects in an armed robbery” and he wanted to check for weapons or other fruits of the crime.

A head security manager from McDonald’s, who was present at the scene, identified the bank bag as having been taken from a McDonald’s store in an armed robbery. Musial then advised the other officers that he believed that these were the two men who were wanted for investigation in an armed robbery. The two men were read their Miranda warnings and taken into custody.

Following the testimony of Martin and Musial, the trial court denied the defendants’ motion to suppress and made the following finding:

“That the stopping of the vehicle based on the articulable suspicion was reasonable and the vehicle having been stopped and the observations of the police officer who testified as to what he saw in the vehicle, justified a further intrusion into the vehicle that is, the glove compartment.”

A hearing was then held on a second motion to suppress. In this motion defendants requested the suppression of identification testimony on the grounds that the defendants had been illegally detained without being presented to a magistrate, and that during this period of illegal detention a counselless lineup was conducted. Both Martin and McClinton testified that initially they were denied an opportunity to call a lawyer at the Darien police station. Martin stated that he was told that he did not need to call an attorney because he was only being held for investigation. Martin and McClinton were held in the station house basement for approximately an hour, and then were taken upstairs to be photographed and fingerprinted. Afterwards, each defendant was permitted , to make a phone call. Martin telephoned his fiancee and told her to contact his lawyer and inform the attorney of his location and predicament. McClinton called his mother.

Subsequently, the defendants' were transported to the Oak Brook police station. They each testified that they were denied their requests to make another phone call from the second station house. Sometime during the morning of February 26, defendants were put in several separate lineups. There wa,s no attorney present at any of the lineups, although Martin testified he requested his lawyer’s presence. At the lineups, McClinton was identified by three of five witnesses, while Martin was identified by one witness.

After the lineups, McClinton was served with a complaint for armed robbery and an arrest warrant with a bond of $100,000. Martin received a copy of a charge for armed robbery and unlawful use of weapons, as well as a warrant from Chicago. Each defendant was also given a ticket for driving without a license and for having an inoperable taillight. On the morning of February 27, both defendants were taken before a judge.

The trial court denied defendants’ motion to suppress the identification testimony and the case proceeded to a jury trial on counts I, II, III and IV charging armed robbery and armed violence. The defendants waived their right to a jury on counts VI and VII charging unlawful use of weapons on February 18, 1981 (date of robbery). Counts VIII through XII charging unlawful use of weapons on February 25, 1981 (date of arrest) were initially severed and later nolle prossed. Count V, charging unlawful use of weapons on February 18, was also nolle prossed.

At trial, the State produced a number of eyewitnesses to the February 18 robbery. Their testimony included identification of the defendants, identification of the items worn by defendants during the crime, and identification of the revolvers used by defendants.

During the presentation of witnesses, the defense renewed a prior motion in limine to restrict the State from bringing out the fact that defendants were arrested in the vicinity of the Darien McDonalds. The court denied the motion again. The attorneys for each defendant also renewed the motion to suppress the fruits of the search of the car. The motion to suppress was again denied.

Defendants have appealed both their convictions and sentences, and they allege a score of pretrial, trial and post-trial errors. We first consider, however, the State’s preliminary challenge of defendants’ standing to raise a constitutional fourth amendment claim. Under the general principles of Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, the State asserts that because defendants drove a borrowed automobile they had no “reasonable expectations of privacy” in the vehicle and consequently they cannot contest the halt and search of that automobile. Evidence at the trial court indicates that the car driven by defendant Martin was not owned by either himself or McClinton, but that the defendants did have the owner’s permission to use the car.

While the State may raise some issue as to the rights of persons who borrow another’s automobile to challenge police searches of that vehicle, that is not the relevant issue in this appeal. As the defendants correctly point out, the search of their car is only being attacked as a fruit of the illegal police conduct in seizing the defendants. No standing problem exists where a defendant claims that the evidence sought to be suppressed was obtained as a result of an illegal seizure of that defendant. (People v. Reynolds (1981), 101 Ill. App. 3d 576, affd (1983), 94 Ill. 2d 160; People v. Bradi (1982), 107 Ill. App. 3d 594, 597-98.) Since the defendants do have standing to challenge the detention of their vehicle, they may rightfully contest whether the police conduct involved was legal.

Defendants first substantive contention on appeal is that the forceful actions of the police in making the stop of defendants’ automobile amounted to an arrest, requiring probable cause. Alternatively, they argue that even if characterized as “investigatory stop” under Terry, the halt of defendants’ vehicle was not based on the requisite reasonable suspicion. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) In light of the exact language used by the trial court in its ruling on defendants’ motion to suppress, the relevant issue can be narrowed to whether the arresting officers’ actions met the requirements of a Terry investigatory stop.

It should be remembered that the “stop and frisk” rule of Terry involves a two-part procedure. First, the police officer must have a reasonable, articulable suspicion of criminal activity to justify a detention; and second, the “frisk” of the person detained must be both based on a reasonable fear that defendant is armed, and limited to a pat-down search for weapons. In total, the permissible intrusion of an investigatory detention is governed by a balancing of the societal need to detect crime and insure police safety against the severity of intrusion into a citizen’s privacy. (People v. Smithers (1980), 83 Ill. 2d 430, 437-38.) These concerns are not only important to a constitutional analysis of a “stop and frisk” but also for a statutory review of such a detention. The Code of Criminal Procedure of 1963, sections 107— 14 and 108 — 1.01, essentially codifies the same concerns articulated in the Federal constitutional cases. Ill. Rev. Stat. 1981, ch. 38, pars. 107-14, 108-1.01; People v. Lee (1971), 48 Ill. 2d 272, 279; People v. McGowan (1977), 69 Ill. 2d 73, 77.

The defendants in the instant case contest the legality of both their initial detention and the subsequent frisk by police officers. As to the stop of defendants, the requisite degree of suspicion which will constitutionally justify such a detention was originally set forth in the Terry case: “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) While Terry involved an on-the-street encounter, the stopping of a motor vehicle and detention of its occupants falls within the scope of the same rule. See People v. Drummer (1980), 81 Ill. App. 3d 626; People v. Kantowski (1983), 98 Ill. 2d 75; Pennsylvania v. Mimms (1977), 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330.

While there is a wealth of authority on investigatory stops, including the numerous cases cited by the defendants, the various facts of those cases make each distinguishable. As in all cases involving a search and seizure, the reasonableness of the police conduct in the present case depends upon its particular facts and attendant circumstances. (People v. Smithers (1980), 83 Ill. 2d 430, 435; People v. Mills (1983), 115 Ill. App. 3d 809, 812.) In the present controversy, the factual justification for the police officer’s detention of defendants is based in large part upon defendants’ close resemblance to a circulated, composite physical description of the suspected robbers. This description detailed the race, age, size and clothing of the suspects, including mention of the rather distinctive snowsuit garb worn by one of the robbers. While the height and weight of the defendants would be difficult to ascertain from merely viewing the suspects while they sat in an automobile, the arresting officer testified at trial that he had ample opportunity to closely observe the other elements of the defendants’ appearance. The propriety of a particular detention for investigatory purposes is obviously heightened when a defendants’ appearance is similar to an accurate description of a suspected criminal. (People v. Jones (1981), 102 Ill. App. 3d 238 (defendant’s uniquely patterned turtle neck sweater, his race, and age served as basis for officers’ stop of defendant); People v. Hall (1980), 90 Ill. App. 3d 1073, cert. denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388 (defendants’ height, race, and apparel, as well as their location, held sufficient for investigatory stop).) In addition, the defendants’ vehicle was parked outside a McDonald’s restaurant at the same approximate time as the previous robbery of the Oak Brook McDonald’s. Since the method used in the robbery was to gain entrance when a certain delivery was made, the location and time of defendants’ position was a highly relevant factor. People v. McGowan (1977), 69 Ill. 2d 73, 78-79 (defendant and companion wearing dark clothes spotted late at night walking in a high crime area).

Taken together, and in light of the detaining officers’ experience, the evidence adduced at trial was sufficient to lead a man of reasonable caution to believe that the detention of the defendants was appropriate. (Terry v. Ohio (1968), 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884; People v. Grice (1980), 87 Ill. App. 3d 718, 722, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) The burden of proof that a search and seizure in a public place was unlawful is on the person seeking to challenge the seizure or suppress evidence (87 Ill. App. 3d 718, 722, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714; People v. Beacham (1980), 87 Ill. App. 3d 457, 464), and a finding by the trial court that a particular detention was reasonable will not be disturbed on review unless manifestly erroneous. (People v. Conner (1979), 78 Ill. 2d 525, 532; People v. Grice (1980), 87 Ill. App. 3d 718, 722, cert. denied (1981), 450 U.S. 1003, 68 L. Ed. 2d 207, 101 S. Ct. 1714.) Defendants have failed to sustain their burden in the instant case.

In addition to challenging their initial detention, defendants also contest the forceful nature of the alleged investigatory stop. From their perspective, the detention and frisk by the officers exceeded what was “minimally necessary to learn whether the men were armed and to disarm them.” (Terry v. Ohio (1968), 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884.) The evidence produced at trial is somewhat controverted, but it can fairly be stated that immediately upon the stopping of defendants’ car, McClinton and Martin were ordered to exit the vehicle. The officers had their guns drawn, and ordered the defendants to the ground where they were patted-down for weapons.

Once again, the intrusiveness of the police officers’ actions must be reviewed in light of the countervailing public interests in detecting crime and protecting law enforcement personnel. Considering the highly dangerous nature of the suspected criminal activity and the officers’ knowledge that the persons sought were armed, the conduct of the police in the present case was not unreasonable. The fact that the officers halted defendants with guns drawn and conducted a pat-down search without preliminary questioning does not necessarily convert an investigatory stop into an arrest. (People v. Roberts (1981), 96 Ill. App. 3d 930, 933-34; see Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921; United States v. Place (1983), 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637.)

“During the period of the investigation, the person’s freedom of movement is restricted. He is no more free to leave than if he were placed under a full arrest. The difference between an arrest and a stop lies not in the initial restraint on movement, but rather in the length of time the person may be detained and the scope of investigation which may follow the initial encounter. ***

It would be anomalous to grant an officer authority to detain pursuant to an investigatory stop and yet deny him the use of force necessary to effectuate that detention.” People v. Roberts (1981), 96 Ill. App. 3d 930, 933-34; see also People v. Polk (1981), 95 Ill. App. 3d 875; People v. Sanford (1976), 34 Ill. App. 3d 990.

The officers in the immediate case acted reasonably in treating defendants with a high degree of caution even prior to initiating questioning. The police action in drawing their guns, ordering the defendants out of their vehicle, and then conducting an immediate pat-down search of the defendants on the ground is an intrusion which is outweighed by the great threat posed by suspected felons. See People v. Zielinski (1980), 91 Ill. App. 3d 519, 521; People v. Gunderson (1978), 66 Ill. App. 3d 516, 523.

Since the defendants’ detention was lawful, it follows that Officer Musial was rightfully in a position where he could observe the interior of defendants’ vehicle; consequently, the McDonald’s money bag he saw was properly visible within the plain view doctrine. (Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535; People v. Davis (1981), 93 Ill. App. 3d 217; People v. Carroll (1973), 12 Ill. App. 3d 869, cert. denied (1974), 417 U.S. 972, 41 L. Ed. 2d 1144, 94 S. Ct. 3180.) Peering into a halted vehicle for the purpose of insuring police safety from potential hidden suspects does not rise to the level of a “search” within the meaning of the Federal Constitution’s fourth amendment. (See People v. Brandys (1973), 15 Ill. App. 3d 379; People v. Piper (1981), 101 Ill. App. 3d 296.) Illinois cases have interpreted the word “search” to imply prying into hidden places for concealed materials, not merely observing what is open to view. (People v. Piper (1981), 101 Ill. App. 3d 296, 299, citing City of Decatur v. Kushmer (1969), 43 Ill. 2d 334, 338.) An investigatory stop does not become unreasonable because the officers take precautionary measures which do not further invade the privacy interest of the defendants. A protective investigation beyond defendant’s person may be justified when there is the possibility that other persons, not detained, present a danger to the investigating officers. See 3 W. LaFave, Search and Seizure sec. 9.4, at 134-37 (1978).

When Officer Musial observed the McDonald’s bag on the seat of defendants’ vehicle, he could reasonably infer that the occupants of the vehicle were connected to the restaurant burglary. This evidence, discovered in plain view, was sufficient to escalate the officer’s suspicions to the level of probable cause to arrest. People v. Drummer (1980), 81 Ill. App. 3d 626, 629; People v. Cribbs (1972), 8 Ill. App. 3d 750, 753.

The ensuing search of defendants’ automobile, including the opening of the closed glove compartment, is not directly contested by the defendants. While the propriety of this extensive search was questioned at the trial court level, the defendants on appeal challenge the search only as a fruit of the allegedly illegal initial stop. Even assuming that the issue had been raised in this appeal, the search of the defendants’ vehicle would nonetheless be justified under either the expansive search-incident-to-lawful-arrest doctrine espoused in New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 768, 101 S. Ct. 2860, or under the warrantless-automobile-search doctrine authorized by United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157.

Defendants next argue that the police intentionally delayed filing charges against them in order to hold counselless lineups. This delay, defendants contend, constitutes a violation of their rights under the fourth and fourteenth amendments to the United States Constitution and section 7 of article I of the Illinois Constitution of 1970, and also amounts to a breach of their statutory right (Ill. Rev. Stat. 1981, ch. 38, par. 109 — 1) to a prompt, probable cause determination. The record discloses that the defendants were held in custody approximately 36 hours before being taken to court for a probable cause determination. Their initial arrest occurred at about 11 p.m. on February 25, 1981. The following day, a number of counselless lineups were held and identifications were made. After the lineups, defendants were served with formal charges. On the morning of February 27, defendants were brought to daily bond court before a judge.

As the State correctly suggests, a delay of a day, or a day and a half, is unlikely to be an unreasonable detention. (See People v. Dees (1981), 85 Ill. 2d 233; People v. Kirkley (1978), 60 Ill. App. 3d 746; People v. Jackson (1961), 23 Ill. 2d 274.) The determination of what is an unnecessary or unreasonable delay depends upon the facts and circumstances of each case. (23 Ill. 2d 274, 278.) Some latitude is allowed, and presentment to a judge need be performed only with that reasonable promptness which circumstances permit (see People v. Georgev (1967), 38 Ill. 2d 165; People v. Kelly (1949), 404 Ill. 281; People v. Mallett (1970), 45 Ill. 2d 388). A lineup held for investigatory purposes, prior to preliminary hearing, does not necessarily indicate law enforcement abuse. For example, in the Kelly case, the defendant was arrested about 9 p.m. on Saturday night and was thereafter identified in a police lineup by two of the victims. It was not until the following Tuesday that he was taken before a magistrate. The Illinois Supreme Court rejected the defendant’s claim that there was unreasonable delay in taking him before a judge in view of the circumstances that the police investigation was not completed until Monday morning. (See also People v. Bryant (1982), 105 Ill. App. 3d 285.) As the United States Supreme Court noted in Gerstein v. Pugh (1975), 420 U.S. 103, 114, 43 L. Ed. 2d 54, 65, 95 S. Ct. 854, 863, it is the serious consequences arising from prolonged detention which necessitated its holding that the fourth amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. In the instant case, no such prolonged detention or extended restraint of liberty occurred prior to the taking of defendants before a judge. The defendants were arrested late at night on February 25 and taken before daily bond court approximately 24 hours after the Commencement of the next business day. Such a minimal delay was reasonable considering the time necessary to perform the administrative steps incident to arrest. Contra, Bernard v. City of Palo Alto (9th Cir. 1983), 699 F.2d 1023.

Moreover, the defendants have not clearly established that any prejudice resulted from their minimal delay before a preliminary hearing. (People v. Dees (1981), 85 Ill. 2d 233, 238.) Defendants made no incriminating statements during the delay, nor have they shown that the lineups conducted were unnecessarily suggestive and conducive to irreparable mistaken identification. A short delay in presentment before a judge cannot be a basis for reversal absent a showing of undue prejudice. 85 Ill. 2d 233, 238.

Defendants further contend that since they requested that retained counsel be present at lineups held prior to their preliminary hearing, the conducting of such lineups without honoring that request violated their rights to counsel and to due process under the fifth and sixth amendments of the United States Constitution, article I, sections 2 and 8 of the Illinois Constitution of 1970, and section 103 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 3). We find no merit to this argument.

Since the identification lineups of February 26, were prior to the defendants’ preliminary hearing, no judicial adversarial stage warranting the right to counsel had yet arisen. (See Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877; People v. Agee (1981), 100 Ill. App. 3d 878; People v. Williams (1980), 90 Ill. App. 3d 524, cert. denied (1981), 452 U.S. 943, 69 L.Ed. 2d 958, 101 S. Ct. 3090; People v. Johnson (1973), 55 Ill. 2d 62.) Defendants’ reliance upon cases from southern jurisdictions, where the right to counsel has been expanded to include other additional police-defendant contacts, is misplaced since Illinois has not adopted that expansive approach. (People v. Harrell (1982), 104 Ill. App. 3d 138, 142.) In our State, a warrantless arrest based on probable cause simply does not initiate such adversary judicial proceedings as would give rise to a right to counsel at a lineup conducted prior to the preliminary hearing. People v. Agee (1981), 100 Ill. App. 3d 878, 881-82; People v. Williams (1980), 90 Ill. App. 3d 524, 529, cert. denied (1981), 452 U.S. 943, 69 L. Ed. 2d 958, 101 S. Ct. 3090; People v. Shorter (1978), 59 Ill. App. 3d 468, 476.

Defendants have likewise failed to show that the pretrial identification procedures were so unnecessarily suggestive and conducive to mistaken identification as to deny them due process. Neil v. Biggers (1972), 409 U.S. 188, 197, 34 L. Ed. 2d 401, 410, 93 S. Ct. 375, 381; People v. Williams (1980), 90 Ill. App. 3d 524, 528, cert. denied (1981), 452 U.S. 943, 69 L. Ed. 2d 958, 101 S. Ct. 3090; People v. Owens (1977), 46 Ill. App. 3d 978, 990; see People v. Bryant (1983), 94 Ill. 2d 514, 520-21.

The defendants also assert that they were denied their statutory right to communicate with an attorney of their choice. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 3.) There is some factual dispute regarding this matter, but assuming arguendo that such a statutory violation occurred, it would not be a basis for reversing defendants’ conviction or setting aside the witness identifications in this case. As has already been stated, defendants did not have a right to counsel at the lineup prior to their preliminary hearing. Further, there were no statements or confessions that came from the accused during their detention. While section 103 — 3 of the Code of Criminal Procedure of 1963 does provide arrestees with the right to contact their attorneys, failure to abide by this provision does not necessarily mandate a vacation of conviction or suppression of identification. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 3; People v. Ishman (1969), 44 Ill. 2d 61.) Section 103 — 3 is not a per se rule of exclusion or reversal, and absent the substantive right to counsel, the making of incriminating statements in custodial interrogation, or evidence of abuse of police procedures, a defendants’ conviction will not be reversed because of a violation of this section.

In addition, while the right to communicate with counsel may rise to the level of a violation of constitutional due process when the denial of such right interferes with the ability of the defendant or his counsel to prepare for or defend at trial (see City of Chicago v. Harmon (1969), 117 Ill. App. 2d 361, 365), we discern no such constitutional violation under the facts of this case. In the present case, each defendant was allowed to make a phone call, and although defendants argue that they were prevented from communicating with their retained counsel, the record does not reflect that defendants, either separately or cooperatively, ever did actually retain their own counsel. To the contrary, the record reflects that the court appointed counsel to represent each defendant, and the appointments were made sufficiently in advance of the preliminary hearings so that no claim is made that defendants’ counsel did not have adequate time or opportunity to properly prepare for the hearing or the subsequent trial.

Defendants’ next argument on appeal is that they were prejudiced by the introduction of evidence which suggested other criminal conduct. Before trial, the lower court held a "hearing on a motion in limine regarding the introduction of the fact that defendants were arrested in the vicinity of a second McDonald’s restaurant. While not making any precise ruling at that time, the trial judge said that if the prosecutor referred to the circumstances attending defendants’ arrest, she should be ready to introduce supporting evidence. The assistant State’s Attorney did not mention the location of the arrest in her opening statement.

Subsequently, however, on cross-examination of Officer Musial, defense counsel inquired whether the officer had observed defendants commit a crime during the time of surveillance. On the State’s objection that this question was leading into the total circumstances of the arrest, defense counsel withdrew the question. Upon further examination by both parties, the trial judge apparently concluded that defense counsel had opened the door as to all matters surrounding defendants’ arrest. He explained, “I believe now the door has been opened so far as this officer can let the jury know what information he was armed with when he made the stop.” He then permitted the prosecutor a limited number of additional inquiries involving the location of defendants’ stop.

Defendants argue that evidence of their location at a second McDonald’s was unduly prejudicial because it suggested that defendants were committing a second crime. (People v. Miller (1977), 55 Ill. App. 3d 421.) The Miller court stated the general rule that evidence of other crimes cannot be admitted to show motive, identity, or intent until it is shown that those other crimes actually took place and that defendant participated in their commission. (55 Ill. App. 3d 421, 426.) Consequently, defense counsel argues that the defendants’ presence at the second McDonald’s was not a crime in itself and therefore could not be properly introduced. Moreover, the defendants argue that their location at the time of the arrest was irrelevant to the issue of their guilt of the February 18 robbery; defendants’ location at the second McDonald’s was relevant only as to the reasons for Officer Musial’s stop of defendants on February 25 and that matter was resolved at the pretrial suppression hearing.

The trial court, however, concluded that defense counsel’s questioning had planted in the minds of the jury uncertainties as to why Officer Musial took special note of the two defendants on February 25. He permitted limited introduction of evidence of defendants’ presence at the second McDonald’s, not to establish defendants’ propensity to commit crime, but as relevant circumstantial evidence pertaining to the February 18 robbery. Mention of the second McDonald’s restaurant was an integral part of the narrative of the defendants’ arrest, involving relevant evidence of time, proximity and defendants’ identity. (People v. Walls (1965), 33 Ill. 2d 394, 397-98; People v. Spiezio (1982), 105 Ill. App. 3d 769, 772-73; People v. Davis (1981), 93 Ill. App. 3d 187, 191; People v. Schubert (1975), 28 Ill. App. 3d 599.) The facts and circumstances attending an arrest of an accused may be put into evidence when they tend to connect defendant with the offense for which he is being tried. (See People v. Evans (1962), 25 Ill. 2d 194, cert. denied (1963), 372 U.S. 922, 9 L. Ed. 2d 727, 83 S. Ct. 738; People v. Schubert (1975), 28 Ill. App. 3d 599.) Testimony involving the location of defendants’ arrest was carefully limited, and no prejudicial or inflammatory language was used. The trial court did not err in permitting the admission of such evidence.

The next issue raised on appeal is whether defendant Dennis McClinton was properly found guilty of two related counts of unlawful use of weapons. Under the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 24 — 1(a)(9), 24 — 1(b)), the guilty defendant must be armed with a revolver and masked in such a manner as to conceal his identity. Under these charges, whether defendant McClinton was masked in such a manner as to conceal his identity was an essential element of the offense which the State necessarily had to prove beyond a reasonable doubt. See People v. Smith (1978), 71 Ill. 2d 95, 105; People v. Rothermel (1982), 88 Ill. 2d 541, 544.

According to the testimony adduced at trial, McClinton wore a type of tinted pink or peach glasses and a ski hat during the perpetration of the crime. Eyewitness Jerry Kinzey testified as to McClinton’s apparel, stating that he could see through the pink glasses worn by the defendant although they were dark. He added that about three-quarters of an inch was open between the defendant’s hat and the dark glasses. Upon further questioning, Kinzey stated that the glasses did not hide or distort defendant’s features. Eyewitness Judith Wordel testified that the glasses were wire-framed, pink or peach tinted aviator-type glasses. She stated that the glasses were not sunglasses, but they did have a little bit of shade to them. The glasses did not interfere with her view of the subject.

While generally it is the jury’s responsibility to make the factual determinations such as this one (People v. Davis (1983), 95 Ill. 2d 1, 27; People v. Smith (1978), 71 Ill. 2d 95, 102), a fair reading of the evidence falls far short of establishing that defendant McClinton was masked in such a manner as to conceal his identity. We therefore conclude that the State failed to prove beyond a reasonable doubt that Dennis McClinton was masked.

The State attempts to rebut defendant’s position by claiming that even if McClinton were not masked within the meaning of the statute, he can be found guilty under alternative theories encompassed in the unlawful-use-of-weapons statute (Ill. Rev. Stat. 1981, ch. 38, par. 24— 1). However, the alternative subsections of section 24 — 1 which the State attempts to raise were nolle prossed by the State prior to trial. The Illinois Supreme Court has made it clear that the mere citation of the statute allegedly violated is insufficient to incorporate by reference, the whole statute into the charge. (People v. Pujoue (1975), 61 Ill. 2d 335.) Also, where a defendant is charged with a violation of a statute which contains disparate and alternative methods of committing an offense, the charging instrument must detail which alternative the defendant is accused of committing. (People v. Heard (1970), 47 Ill. 2d 501, 504-05; see People v. Hall (1982), 96 Ill. 2d 315, 323-24.) We conclude that the State failed to prove an essential element of the offense of unlawful use of weapons beyond a reasonable doubt, and therefore, as to the defendant McClinton the convictions and sentences for unlawful use of weapons are reversed.

Defendants next argue that since each defendant was convicted of two counts of armed robbery and two counts of armed violence, and all counts arose from the same single act committed during the robbery, only one count of armed violence can stand and the other three counts must be vacated. The same contention is made, now relevant only to the defendant Martin, that both counts of unlawful use of weapons also arise from a single act, and one count of that offense should be vacated. Further, defendants urge that if these numerous counts, on which judgments were entered and sentences imposed, are vacated on appeal, the causes should be remanded for new sentencing on the convictions which remain.

The State concedes the correctness of defendants’ contention on this matter, except that it argues that there is no indication that the trial court considered duplicative counts when sentencing, and thus remand for resentencing is not necessary.

We agree with both parties that under the doctrine of People v. King (1977), 66 Ill. 2d 551, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the two counts of armed robbery and the two counts of armed violence can result in only one conviction and sentence for each defendant. However, since armed robbery and armed violence are both Class X felonies and of equal seriousness, it would appear that the conviction and sentence could stand on either offense. (People v. Simmons (1982), 93 Ill. 2d 94, 98; People v. Mormon (1982), 92 Ill. 2d 268, 270.) Although there is some judicial expression that the conviction for armed robbery is the more specific and the more serious offense, and therefore it should stand while the armed violence conviction and sentence should be vacated (People v. Velleff (1981), 94 Ill. App. 3d 820, 825-26), other decisions express deference to the prosecutorial discretion granted to the State. (See People v. Rayford (1982), 104 Ill. App. 3d 124.) In this case, since both crimes are Class X felonies and the State and the defendants agree that the armed-violence conviction should stand, we shall abide by their choice.

We have already set aside the convictions and sentences for unlawful use of weapons with regard to the defendant McClinton, and applying again the doctrines of the King case, we also conclude that one conviction and sentence for unlawful use of weapons imposed on the defendant Martin must be vacated.

We do not, however, agree with defendant’s conclusion that in view of the number of convictions and sentences being vacated it is necessary to remand the case for resentencing. Defendant argues that the existence of the counts which we are vacating may have affected the judge’s determination of the length of all the concurrent sentences imposed, including the sentences for the convictions of armed violence and unlawful use of weapons which we are affirming; therefore, defendant concludes that even those sentences must be vacated and the cause remanded for resentencing as to those convictions.

Although there is some precedent which suggests that resentencing is appropriate whenever a trial court’s sentence determination might have been influenced by a vacated conviction (People v. Vallero (1978), 61 Ill. App. 3d 413, 415-16; People v. Bone (1982), 103 Ill. App. 3d 1066, 1069; People v. Alejos (1982), 104 Ill. App. 3d 414, 416, affd (1983), 97 Ill. 2d 502), the genesis of that case line reveals an inapposite origin. (See People v. Einstein (1982), 106 Ill. App. 3d 526, 535.) The above cases which find resentencing appropriate rely upon authority expressly limited to the context of a defendant convicted of multiple offenses but receiving a single sentence for all of the convictions. (See People v. Guppy (1975), 30 Ill. App. 3d 489; People v. Walton (1981), 94 Ill. App. 3d 903; People v. Ross (1978), 60 Ill. App. 3d 857.) Obviously, in that context, resentencing was imperative when one of the convictions was vacated; however, the same conclusion does not follow when a defendant has properly received separate sentences for each conviction.

A reviewing tribunal cannot conclude, solely from a trial court’s simultaneous imposition of separate sentences for multiple convictions, that the sentence imposed for one offense has been influenced by the conviction or sentence for another offense. Sentencing is a trial court function (People v. Cox (1980), 82 Ill. 2d 268, 280; People v. La Pointe (1981), 88 Ill. 2d 482, 492-93), and unless the record demonstrates to the contrary, we will conclude that the court considered only the appropriate factors in making its sentencing determinations. Since there is no evidence in the record suggesting that defendants' remaining sentences were improperly affected by their separate additional convictions and sentences, we will not remand their remaining convictions for resentencing. People v. Owens (1982), 109 Ill. App. 3d 1150, 1160; People v. Einstein (1982), 106 Ill. App. 3d 526, 535; People v. Worthen (1982), 105 Ill. App. 3d 386, 392; People v. Wilson (1981), 93 Ill. App. 3d 395, 397.

Defendants make the final claim that the trial court improperly ruled that they were eligible for extended-term sentences under section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1)). This section provides that under certain conditions, an extended term may be imposed upon a defendant who has previously been convicted of any felony of the same or a greater class within 10 years. While each defendant admits that he has previously been convicted of armed robbery, each contends that the provisions of the statute in question apply only when the previous conviction arose in the situation where the defendant was separately brought and tried. They argue that a defendant who is convicted after a guilty plea has not been “tried.” Two districts of this court recently addressed this identical contention. (See People v. Way (1983), 115 Ill. App. 3d 198; People v. Baker (1983), 114 Ill. App. 3d 803.) The result of both cases was to uphold the extended-term sentence where the prior conviction was based on a guilty plea. The court in Way explained the purpose of section 5 — 5—3.2(b)(1):

“This provision *** prevents a court from imposing an extended term upon a defendant based upon charges tried concurrently. The language in question thereby ensures that a prior conviction, when used as the basis for an extended term, will be totally separate and distinct from the charges for which the extended sentence is imposed, so that it is clear that the accused is in fact a recidivist.” (People v. Way (1983), 115 Ill. App. 3d 198, 202.)

Under the rationale of the Way and Baker decisions, defendants’ position on their sentencing hearings has no merit.

Consistent with the holdings and conclusions of this opinion, we reverse, in trial court number 81 CF 325 of the Eighteenth Judicial Circuit, defendant Harry Martin’s judgments of conviction and sentences for armed robbery in counts I and II, for armed violence in count III, and for unlawful use of weapons in count VI; we affirm the judgments of conviction and sentences of Harry Martin for armed violence in count IV and for unlawful use of weapons in count VII.

In trial court number 81 CF 326 of the Eighteenth Judicial Circuit, we reverse the judgments of conviction and sentences of Dennis McClinton for armed robbery in counts I and II, for armed violence in count III and for unlawful use of weapons in counts III and VII; we affirm the judgment of conviction and sentence of Dennis McClinton for armed violence in count IV

Affirmed in part and reversed in part.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: JUSTICE GREEN

text:
    TOWN & COUNTRY BANK OF SPRINGFIELD, Plaintiff-Appellee, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—83—0494
    Opinion filed January 24, 1984.

      Patrick J. Cadigan, of Gillespie, Cadigan & Gillespie, of Springfield, for appellant.
    Thomas R. Appleton, of Presney, Huffman, Kelly & Appleton, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Town & Country Bank of Springfield, brought this action in the circuit court of Sangamon County as assignee of the proceeds of a cause of action for personal injury. Plaintiff sought to recover a sum of money pursuant to that assignment. On June 14, 1983, following a bench trial, the court entered a judgment in favor of plaintiff finding the assignment was valid, and defendant, Country Mutual Insurance Company, was liable pursuant to the assignment. On appeal, defendant maintains the trial court erred in holding that the proceeds from a cause of action for personal injury could be assigned. We agree.

The facts, as stipulated by the parties pursuant to Supreme Court Rule 323(d) (87 Ill. 2d R. 323(d)), indicate in part that (1) on January 27, 1981, Charles and Linda Austin executed a note in favor of plaintiff for $4,000 plus interest at the rate of 22% per annum; (2) on February 26, 1981, Charles Austin signed a document entitled “Assignment” wherein he purportedly assigned to plaintiff the sum of $4,000 plus interest at the rate of $2.44 per day on any proceeds emanating from settlement of an automobile accident between Charles Austin and Hazel Snyder, who was insured by defendant; (3) no additional monetary consideration passed from plaintiff to Austin as a result of the assignment, but plaintiff released other security in consideration; (4) on March 6, 1981, the assignment was forwarded to defendant’s regional claims office; (5) Charles and Linda Austin were divorced following the date of the assignment to plaintiff and prior to Austin’s settlement with defendant; (6) on July 24, 1981, Charles Austin filed for bankruptcy listing plaintiff as a secured creditor but not listing the potential receipt of proceeds from the personal injury claim as an asset; (7) plaintiff was listed on the list of discharged creditors and notified when Austin’s debts were discharged in bankruptcy in October 1981; (8) on December 10, 1981, defendant settled the personal injury claim and issued a draft to Charles Austin but did not include plaintiff’s name on the draft nor pay any funds to plaintiff; and (9) plaintiff made a claim against defendant for the principal amount of the loan plus accrued interest, and payment was rejected by defendant.

Illinois law has established that a cause of action for personal injuries may survive by virtue of the Survival Act, but it is nevertheless not assignable, on public policy grounds. (North Chicago Street R.R. Co. v. Ackley (1897), 171 Ill. 100, 49 N.E. 222; see also Wilcox v. Bierd (1928), 330 Ill. 571, 585, 162 N.E. 170, 176.) Two reasons were given for this principle: (1) A litigious person could harass and annoy others if allowed to purchase claims for pain and suffering and pursue the claims in court as assignees; and (2) all assignments are void unless the assignor has either actually or potentially the thing which he attempts to assign. Ackley.

In the instant case, however, plaintiff attempts to draw a distinction between the assignment of a right to recover for personal injuries and an assignment of the expectancy of recovery.

Plaintiff claims the distinction .has been recognized by Illinois courts. In Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912, the court noted that an insured’s cause of action against his insurer for failing to settle within the policy limits could be assigned to the insured’s judgment creditor. However, that cause of action was not one for personal injury but was for causing the insured to incur monetary liability in the form of a judgment. The cause of action arose from a breach by the insurer of its duties under the insurance contract.

Plaintiff also argues the assignment allowed in Rahn v. Beurskens (1966), 66 Ill. App. 2d 423, 213 N.E.2d 301, is analogous to the case at bar. There, the parents assigned to the injured minor any interest in recovery of medical and hospital bills incurred and paid by the father and loss of wages sustained by the mother while at home caring for the child. This court determined that such assignment was “apparently not void.” (66 Ill. App. 2d 423, 431, 213 N.E.2d 301, 305.) Rahn is distinguishable because, there, the plaintiff assigned recovery for damages resulting from liability incurred under the family expense statute (Ill. Rev. Stat. 1965, ch. 68, par. 15). This was in the nature of a recovery for damage to property rather than a recovery for personal injuries incurred by the assignor.

We consider the distinction between the assignment of a cause of action for personal injuries and the assignment of the expectancy of recovery from such an action to be a fiction not necessary to support some public policy. The reasons against assigning the cause of action are based on public policy established by the precedent of Ack ley, and we will not adopt this meaningless distinction to circumvent that public policy. If the assignment of the cause of action is void, the assignment of the expectancy of the proceeds is also void.

For the foregoing reasons, the judgment of the circuit court of Sangamon County is reversed.

Reversed.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE WEBBER

text:
    THE WORNER AGENCY, INC., Plaintiff-Appellee, v. MORRIS DOYLE et al., d/b/a Doyle Construction Company, Defendants-Appellants.
    Fourth District
    No. 4—83—0429
    Opinion filed January 19, 1984.

      Tepper & Gwinn, P.C., of Urbana (John Gwinn, of counsel), for appellants.
    Dobbins, Fraker, Tennant, Joy & Perlstein, of Champaign, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

This is a contract case based upon a writing prepared by the defendants and signed by one of them in his capacity as a partner; it was unsigned by the plaintiff. Both parties moved for summary judgment and the trial court awarded summary judgment to the plaintiff and denied it to the defendants who appeal.

The plaintiffs complaint is extremely attenuated. It alleges the identification of the parties and venue, and then further alleges that “defendants agreed in writing to pay plaintiff a real estate commission upon the construction of an office for the Institute for Personality and Ability Testing.” There are further allegations that defendants received the bid for the construction, completed the construction, and that the building was occupied. The commission was then demanded.

Appended to the complaint and incorporated by reference therein is the writing described above. The complete text is as follows:

“If Doyle Construction Co. should receive the bid to build an office building for Mrs. Cattell or the I.P.A.T. organization, a 3% real estate commission will be paid The Worner Agency of Rantoul on the total cost of the building. If the land is purchased separately by the buyer, this cost would not be included in the cost of the building.
The commission will be paid within 15 days of final settlement day, date of occupancy, or within 1 year of the above date, whichever occurs first.”

A motion to dismiss was denied and the defendants then answered, admitting the authenticity of the document appended to the complaint and also admitting they received the bid for the structure and built it. They denied that any commission was due and set up as an affirmative defense the following:

“There was no consideration of any kind whatsoever for the agreement set forth in exhibit A of the complaint, for the reason that:
(a) The complaint does not set forth facts showing the existence of consideration in return for defendant’s promise.
(b) The written agreement set forth in exhibit A fails to mention any act or promise on the part of Plaintiffs which constitute consideration for Defendant’s promise.
(c) Any contract between Doyle Construction Company and the Institute for Personality and Ability Testing for the construction of an office building was not the result of any efforts of employees or agents of THE WORNER AGENCY, INC.”

The plaintiff filed a general denial to the affirmative defense.

As has been indicated, both sides filed motions for summary judgment. Defendants’ motion was bottomed on section 4.02(a) of the Real Estate Brokers and Salesmen License Act (Ill. Rev. Stat. 1981, ch. 111, par. 5706). In substance, it alleged that plaintiff was seeking a commission as a real estate broker and that the act limited brokers to commissions on sales, purchases, and exchanges of real estate, none of which occurred here.

Plaintiff’s motion incorporated a copy of defendants’ bid on the construction of the building which included an item designated “3% Real, fee 5000.” The theory apparently was that this was an indication that defendants admitted that such a fee was due in accordance with the writing.'

The trial court denied defendants’ motion, holding that the Real Estate Brokers and Salesmen License Act does not define a real estate commission, nor does it prohibit a licensed broker from receiving a commission on simple contracts. The court allowed the plaintiff’s motion with the following terse finding:

“A contract or memorandum executed by Morris Doyle does not specify the activity in which the Worner Agency was to engage, but the tenor of the writing would indicate that it is based on a finders fee. In any event, it is apparent that the parties were aware of what they were bargaining for and memorialized that in the document dated November 19, 1980.”

The court’s calculation of the amount due under the agreement was stated with equal brevity:

“The defendant does not quarrel with the cost of the building constructed, such amount being $201,747. Three percent of that figure is $6,052.41,”

In addition, the court awarded $470.10 in interest plus costs.

On appeal the defendants have raised a variety of issues, two of which we deem most significant to the disposition of this case: first, the complaint is defective in that it alleges no facts from which it may be deduced that there was consideration for defendants’ promise to pay; therefore, the trial court was in error in denying the motion to dismiss. Second, the defendants having answered the defective complaint, their affirmative defense raised an issue of fact, making summary judgment inappropriate.

Plaintiff maintains that a want or failure of consideration is an affirmative defense under section 2 — 613 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613.) This is true, but it is also apparent that the legislature, like many courts, has fallen into confusion between want of consideration and failure of consideration. These are distinct concepts and lead to quite different results. If there be a want of consideration, there can be no contract and hence no complaint sounding in contract could stand. Failure of consideration, on the other hand, necessarily admits the contract, but then refers to transactions in which consideration was anticipated but did not materialize. It is then possible to state a cause of action in contract reciting the consideration therefor; and it then becomes the burden of the defendant by means of affirmative defense to establish failure of that consideration. See 17 C.J.S. Contracts sec. 129 (1963); 17 Am. Jur. 2d Contracts sec. 397 (1964).

We believe that, properly construed, section 2 — 613 may apply only to failure of consideration. The structure of its language leads to this result: “want or failure of consideration in whole or in part ***,” (Empliasig added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613.) Logically there can be no want of consideration “in part.”

The test of whether a defense is affirmative and must be pleaded by a defendant is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. The admission of the apparent -right is inferable from the affirmative defense. (Warren Barr Supply Co. v. Haber Corp. (1973), 12 Ill. App. 3d 147, 298 N.E.2d 301; Horst v. Morand Brothers Beverage Co. (1968), 96 Ill. App. 2d 68, 237 N.E.2d 732.) Under this test the defense of failure of consideration would be an affirmative defense, because the defense impliedly admits the sufficiency of the underlying contract but offers an excuse for the defendant’s failure to perform. In contrast, the defense of want of consideration would not constitute an affirmative defense. It does not give color to the plaintiff’s claim, but rather attacks the sufficiency of that claim.

Examined in the light of these principles, the complaint becomes entirely defective. Plaintiff makes no serious argument that it states any facts supporting consideration. In fact, it does not even allege a contract; it simply refers to the fact that the parties had “agreed in writing.” The trial judge, in his written memorandum found that the agreement did “not specify the activity in which the [plaintiff] was to engage,” but concluded that the “tenor” of the writing indicated that it was based upon a “finders [sic] fee.” We disagree. Any number of alternatives might by speculation appear equally valid. To imply a promise under these circumstances is guesswork at best and begs the question.

We therefore hold that the complaint failed to state a cause of action and the trial court was in error in denying the motion to dismiss. Nevertheless, the error has not been properly preserved.

It has long been the law in this State that if a motion to dismiss because of legal insufficiency (formerly section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) now codified as section 2— 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615)) be denied, the defendant waives the insufficiency by pleading over. (Swift & Co. v. Dollahan (1954), 2 Ill. App. 2d 574, 587, 120 N.E.2d 249.) The same is not true of a motion for involuntary dismissal based upon certain defects (formerly section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) now codified as section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619)). The statute specifically preserves the point. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(d).

In the instant case the defendants failed to designate which section, 2 — 615 or 2 — 619, controlled their motion. (See Galayda v. Penman (1980), 80 Ill. App. 3d 423, 399 N.E.2d 656.) An inspection of the document in the record leads us to the conclusion that section 2 — 615 was intended. By answering after denial of the motion, defendants have waived the sufficiency of the complaint.

The question then becomes: was summary judgment proper? We think not. Plaintiff maintains that defendants admitted all the material allegations of the complaint. The record belies this. The defendants throughout disputed the alleged obligation on the basis of no consideration. This appears both in the abortive motion to dismiss and in the affirmative defense. They also disputed the total cost of the project. The trial judge ignored the affirmative defense in making his judgment and erroneously concluded that the defendants admitted the cost of the project.

Plaintiff’s motion for summary judgment is not supported by any affidavits or other sworn testimony, only by three exhibits purportedly extracted from a discovery deposition which is not clearly identified. Defendants’ affirmative defense was verified by the affidavit of both defendants and contrary to plaintiff’s selective reading of it, clearly states in our opinion a want of consideration, i.e., that any contract obtained by defendants was not the result of any efforts on the part of plaintiff or its employees or agents. (Compare Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 406 N.E.2d 946.) An issue of material fact was evident.

Since this case must be remanded for trial, defendants’ other contentions in opposition to the granting of summary judgment become moot.

The order of the circuit court of Champaign County granting summary judgment to the plaintiff is reversed and the cause is remanded to that court for trial on the merits of the complaint, the answer and affirmative defense, and the reply thereto.

Reversed and remanded with directions.

MILLS, P.J., and TRAPP, J., concur.