author: JUSTICE GOLDBERG

text:
      In re MARRIAGE OF MICHELE RIFKIN, Petitioner-Appellant and Cross-Appellee, and BENNETT L. RIFKIN, Respondent.—(Gerard A. Facchini et al., Appellees and Cross-Appellants.)
    First District (1st Division)
    No. 82—1455
    Opinion filed May 2, 1983.
    Rehearing denied June 6, 1983.

      Mark H. Barinholtz, of Chicago, for appellant.
    Springer, Casey, Haas, Dienstag & Silverman, of Chicago (Gary E. Dienstag and Michael G. Elia, of counsel), for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The issue presented in this appeal is one of law revolving about the often difficult concept of subject matter jurisdiction. These are the pertinent facts.

The litigation commenced as a proceeding for dissolution of marriage brought by Michele Rifkin (petitioner) against Bennett L. Rifkin (respondent). Petitioner was represented by the law firm of Facchini and Minton (attorneys). A judgment for dissolution of the marriage was entered on February 20, 1981. The only provision of the judgment pertaining to the attorney fees is:

“Attorneys Fees
Husband shall pay to the wife’s attorneys, the sum of Twenty-Five Hundred ($2,500.00) Dollars as and for her attorneys fees and costs incurred during the pendency of this cause.”

On December 9, 1981, the attorneys filed a “petition for judgment.” The petition alleged the execution of a written retainer agreement between the attorneys and petitioner. It prayed for entry of judgment in favor of the attorneys and against petitioner for the balance of fees allegedly due said attorneys in the amount of $2,981.65.

Petitioner filed a motion to strike and dismiss this petition. (Ill. Rev. Stat. 1981, ch. 110, par. 48.) This motion averred that substantially more than 30 days had elapsed between the entry of the judgment for dissolution and the filing of the petition. It averred that the petition was therefore “impermissible for jurisdictional reasons.”

After a full hearing the trial court entered judgment in favor of the attorneys and against petitioner for $2,981.65, costs included. Petitioner appeals.

Petitioner’s primary contention is that the trial court had no jurisdiction to hear the petition without the preservation of this issue by proper language in the judgment for dissolution. Petitioner also raises other matters such as denial of petitioner’s motions for jury trial and for change of venue. The attorneys contend that the trial court had jurisdiction to hear and determine the fee issue. The attorneys also have cross-appealed on the theory that the trial court erred in denying their request for relief against petitioner under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41).

In our opinion, the dispositive issue here is jurisdiction of the trial court over the subject matter of the petition for fees. Generally stated, the attorneys contend that Article VI, section 9, of the Illinois Constitution of 1970, grants the circuit courts of Illinois “original jurisdiction of all justiciable matters” excepting only the situations in which the Supreme Court of Illinois has “original and exclusive jurisdiction.” (Ill. Const. 1970, art. VI, sec. 9.) Many cases bring out this basic definition of jurisdiction of the subject matter as vested in circuit courts. See the cases cited in English v. English (1979), 72 Ill. App. 3d 736, 741, 393 N.E.2d 18.

The attorneys cite Knudsen v. Arlington Heights Federal Savings & Loan Association (1981), 100 Ill. App. 3d 1088, 427 N.E.2d 865. In Knudsen, this court held that the divorce division of the circuit court properly granted a petition to permit a withdrawal from a minor’s account without the need of bringing the matter before the probate division of the circuit court. However, in In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 955-56, 407 N.E.2d 746, this court expressly held:

“The jurisdiction of courts of equity to hear divorce cases is conferred by statute [citation] and thus the equity courts have no inherent power in these cases. [Citation.] Illinois statutory law requires that the final decree in a civil case is a ‘conclusive adjudication after the passage of 30 days from the date of its rendition.’ [Citations.] Additionally, subject matter jurisdiction in divorce cases cannot be conferred even by stipulation or consent of the parties. [Citation.] Property rights created in a divorce decree become vested after 30 days, and the trial court lacks jurisdiction to modify an order affecting those rights. [Citations.]”

Following Kekstadt, in Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 139, 434 N.E.2d 55, appeal denied (1982), 91 Ill. 2d 570, this court held that the jurisdiction of a court hearing matters concerning dissolution of a marriage is limited to that “conferred by statute.” Thus, the court held that a final judgment for divorce is conclusive after the expiration of 30 days. 105 Ill. App. 3d 136, 139-40; see also Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5.

We find a clear distinction between cases such as Kekstadt and Kelly on the one hand and cases like Knudsen on the other. In Kekstadt and Kelly the courts dealt with an attempt to modify a final judgment in a dissolution of marriage case more than 30 days after the entry thereof. These courts held that they could not modify their own orders after they had become final by the passage of 30 days. The issue in Kekstadt and Kelly was thus limited to the power of the court to modify an order in a marriage dissolution case more than 30 days after its entry. No question of the basic jurisdiction of the subject matter by these courts was considered. Quite to the contrary, in Knudsen there was an attempt to declare the orders of the chancery court to be void completely apart from the issue of loss of jurisdiction by passage of time. This court properly held that the court did have jurisdiction. This was not an attempt to modify a previous order despite passage of time but an attempt to.disregard it entirely.

It is clear from these authorities that, where a circuit court is hearing matters relating to the dissolution of a marriage, it is not acting within the unlimited jurisdiction conferred upon it by the Constitution of Illinois. It is necessarily acting in accordance with the authority vested in it by the applicable provisions of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) And, in this type of situation the jurisdiction of the circuit qourt is limited to that vested in it by the pertinent provisions of the statute. The issue of the jurisdictional powers vested in the circuit court by the Constitution of Illinois is not pertinent here. The issue is the power of the marriage dissolution court to modify its own judgment more than 30 days after entry thereof.

The applicable statute clearly holds that the disposition of property by a judgment for dissolution of marriage “may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1981, ch. 40, par. 510(a). See also In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 111, 438 N.E.2d 957, and cases there cited.) We see no reason not to apply this clear language of the statute to a matter involving allowance of attorney fees.

Reasoning from these principles to the case before us, the judgment for dissolution was entered on February 20, 1981. After the expiration of 30 days, the provisions of this judgment relating to property rights and attorney fees became fixed and final. The judgment for dissolution contained no provision for continuing exercise of jurisdiction over the issues of attorney fees. (Compare Pettit v. Pettit (1978), 60 Ill. App. 3d 375, 378, 376 N.E.2d 782.) The petition herein was not filed by the attorneys until December 9, 1981. Thus, since 30 days had elapsed from entry of the judgment, the provision of the judgment for dissolution above cited became final and could be modified only in accordance with the provisions of section 510(a) of the dissolution statute (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)), which in turn leads directly into section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72). The allowance of attorney fees in the final judgment could be modified or supplemented only by the filing of a proper petition under section 72 showing not only a meritorious cause of action but also the exercise of due diligence by the moving party.

In this regard, the argument by the attorneys that there was an ambiguity in the judgment for dissolution which required clarification by the trial court necessarily fails. We find no ambiguity in the clear language of the judgment before us. We find simply an attempt to modify the provisions of the judgment with reference to attorney fees. (See In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 954-55.) It is true that under the present marriage and dissolution statute the court may order “either spouse to pay a reasonable amount for his own costs and attorney’s fees ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 508(a); see In re Marriage of Galvin (1981), 94 Ill. App. 3d 1032, 419 N.E.2d 417.) However, that fact has no relationship to the tardy filing of the present petition.

We accordingly conclude that the trial court lacked jurisdiction to modify the final judgment for dissolution of marriage. Consequently, we need not consider any of the remaining contentions made by petitioner, and we need not consider the cross-appeal filed by the attorneys. Accordingly, the judgment appealed from is vacated and the cross-appeal is dismissed.

Judgment vacated, cross-appeal dismissed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE ex rel. TYRONE C. FAHNER, Attorney General, Petitioner-Appellant, v. JOSEPH J. HALZEL, d/b/a Video Movies of Hollywood, Inc., Respondent-Appellee.
    First District (2nd Division)
    No. 81—2576
    Opinion filed December 14, 1982.
    Tyrone C. Fahner, Attorney General, of Springfield (Donald Townsend and Joseph M. Spielman III, Assistant Attorneys General, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The sole issue raised on appeal is whether the circuit court erred in denying the Attorney General’s petition for an order compelling compliance with an investigatory subpoena brought pursuant to section 26(g) of the Franchise Disclosure Act (Act) (Ill. Rev. Stat. 1979, ch. 121V2, par. 726(g)). For the reasons which follow, we reverse.

On July 28, 1981, the Attorney General filed a petition in the circuit court for an order compelling Joseph Halzel, d/b/a Video Movies of Hollywood, Inc. (Video Movies), to produce the documentary materials previously demanded in his investigatory subpoena concerning Halzel’s offering or selling of unregistered franchises in Illinois. The petition alleged, inter alia, that: Halzel was believed to be engaged in the business of selling franchises for the operation of outlets to sell at retail and wholesale levels and to rent video cassettes and movies; Halzel sold at least seven franchise/partnerships to Illinois residents since 1974, but has never registered to offer or sell franchises; Halzel advertised, offered and/or sold unregistered franchises to Illinois residents; prior attempts to receive voluntary statutory compliance from Halzel were to no avail; he had reason to believe that the offer and/or sale of Halzel’s businesses in Illinois involved the offer and/or sale of unregistered franchises; a subpoena sent to Halzel by certified mail was returned unclaimed; on March 18, 1981, Halzel was personally served with a subpoena requiring the production of certain documents before March 31, 1981; and that Halzel refused and continues to refuse to produce the required information. The affidavit of the Stickney police officer who served the subpoena was attached to the petition.

Halzel filed an answer admitting that he has never been registered to offer or sell franchises in Illinois but denying the petition’s other material allegations. The answer further alleged that Halzel had at no time engaged in the selling of franchises and that the investigation was unfounded and based on speculation or for purposes of harassment. On appeal, Halzel has not filed a brief in support of the circuit court’s order.

The Attorney General maintains that the circuit court erred in denying his petition to enforce compliance with its investigatory subpoena. The merits of this contention are reached since the record here is simple and the claimed errors easily resolvable. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

The Act grants the “Administrator,” defined as the Illinois Attorney General (Ill. Rev. Stat. 1979, ch. 12V-k, par. 703(20)), with the authority to make such investigations “as he deems necessary (i) to determine whether any person has violated, is violating, or is about to violate any provision of this Act *** or (ii) to aid in the enforcement of this Act ***.” (Ill. Rev. Stat. 1979, ch. I2IV2, par. 726(a).) For the purpose of any investigation, the Administrator is given the power to “require the production of any books, documents, records, tangible things *** which the Administrator deems relevant or material to his investigation.” (Ill. Rev. Stat. 1979, ch. 121V2, par. 726(b).) Possible violations of sections 4, 16, 16.1 and 25 (Ill. Rev. Stat. 1979, ch. I2IV2, pars. 704, 716, 716.1, 725) were being investigated in the instant controversy.

The subpoena duces tecum demanded, inter alia, a production of the following papers for the period since January 1, 1974: a sample copy of Halzel’s sales, purchase, distributorship, dealer, licensee or franchise agreement; copies of all Halzel’s advertisements; certain information concerning Halzel’s utilization of an advertising agency; a sample copy of Halzel’s marketing and promotional material; a list of all Halzel’s current and past purchasers, distributors, dealers, licensees and franchisees in Illinois; a copy of each agreement for current and past purchasers, distributors, dealers, licensees or franchisees for Halzel; a list of all individuals residing in Illinois who requested and/or received promotional material from Halzel; a list of all current and former salespersons of Halzel; a list of all Halzel’s outlets or operations in Illinois; and supporting documentation for all pro forma and profit projects employed in the promotional literature forwarded to prospective purchasers, distributors, dealers, licensees or franchisees of Halzel.

In reviewing the validity of an administrative subpoena, a court must consider the constitutionality of the statute, whether the contemplated agency proceedings are included within the statutory authority, the reasonableness of the demand and the relevance of the information sought. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 296, 430 N.E.2d 1012; see People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 344, 291 N.E.2d 648.) An investigation that is arbitrary or undertaken for an improper purpose violates due process. (United States v. Powell (1964), 379 U.S. 48, 58, 13 L. Ed. 2d 112, 119-20, 85 S. Ct. 248, 255.) Courts cannot scrutinize whether the agency has probable cause for its proposed action, defenses on the merits of the administrative proceeding, or procedural irregularities. (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 562, 224 N.E.2d 236.) The effectiveness of regulatory legislation depends on the ability of the officials responsible for enforcing it to obtain information. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 295.) The purpose of an administrative investigation, like that of the grand jury, is to uncover matters previously unknown to the investigating body which may or may not provide grounds for further action. Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 298; see People v. Allen (1951), 410 Ill. 508, 517, 103 N.E.2d 92.

Applying these principles to the instant controversy, we are compelled to conclude that the petition for an order of compliance with the investigatory subpoena should have been allowed. The Administrator’s investigation of Halzel was well within his statutory authority, the demand for the specified documents was reasonably definite, and the papers sought were relevant to a determination of whether sections 4, 16, 16.1 and 25 of the Act had been violated (Ill. Rev. Stat. 1979, ch. 121V2, pars. 704, 716, 716.1, 725).

Accordingly, the judgment of the circuit court is reversed with directions to enter an order compeEing compliance with the subpoena.

Reversed with directions.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE MEJDA

text:
    VIRGINIA KORPALSKI, Plaintiff-Appellee, v. RALPH W. LYMAN, Defendant-Appellant.
    First District (5th Division)
    No. 81—2947
    Opinion filed May 6, 1983.
    Rehearing denied June 13, 1983.

      Sloan and Connelly, of Chicago (Mark A. Moynihan, of counsel), for appellant.
    Martin J. McGuire, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This action was brought as a result of injuries sustained by plaintiff in a three-car rear-end collision. The trial court entered judgment upon a directed verdict in favor of the plaintiff on the issue of negligence, with damages assessed and awarded by the jury. Defendant appeals, raising the following issues: (1) whether the trial court erred in directing a verdict in favor of plaintiff and against defendant on the issue of negligence; and (2) whether the trial court erred in refusing the tendered “burden of proof” jury instruction and submitting to the jury a court-modified version of that instruction. The pertinent facts are as follows.

On September 29, 1974, the three automobiles involved in the collision described herein were northbound in the same traffic lane. The first car was occupied by a driver and one passenger, neither of whom were named as parties to this suit. Plaintiff Virginia Korpalski was seated in the front passenger seat of the second car which was driven by her husband Walter Korpalski (hereinafter Korpalski). Korpalski also was not named as a party to this suit. Defendant Ralph Lyman was the driver and only occupant of the third car.

At trial plaintiff testified that, just prior to the collision, the car she was riding in was traveling at approximately 15 miles per hour and was about 21k car lengths behind the first car. She stated that she saw the first car slowing, saw its turn signal and brake lights go on, and then felt the impact of being struck from the rear. Korpalski concurred with plaintiff’s testimony. He stated that when he saw the turn signal and brake lights of the car in front of him he applied his brakes and was struck from the rear, which impact pushed him into the car in front of him. He testified that he had tested his brake lights earlier that day and that they were working properly.

Defendant testified that he had been traveling at about 30 miles per hour but, just prior to the collision, had slowed to about 15 miles per hour, that he did not see the brake lights on the car in front of him, and that when he observed the rear end of the car in front of him go up six to eight inches he applied his brakes and then struck the car ahead of him. He stated that he did not see and was not aware of any other collision and did no know whether he had pushed the Korpalski car into another car.

Dorothy Peterson, the driver of the first car, testified that just before the collision she had stopped her car and had activated her right turn signal, preparing to pull into a parking space. She stated that, in her rear view mirror, she saw the Kropalski car approaching and observed plaintiff and defendant looking at each other. She then felt the impact as the Korpalski car struck hers and felt a second impact several seconds later. Julia Peterson, a passenger in the first car, also testified that the car she was riding in had come to a complete stop before she felt the first impact, and that she felt a second impact a few seconds after the first.

The police officer who arrived at the scene after the accident stated that each of the three drivers told him that the third car hit the second car and pushed it into the first car.

Dr. Allen Hirschtick, a physician specializing in orthopedic surgery, testified that the type of injury plaintiff sustained results from the vehicle in which the subject is riding being struck from the rear. He and other expert witnesses testified regarding the nature and extent of plaintiff’s injuries.

On rebuttal, plaintiff presented the testimony of an investigator who had taken the statements of defendant and the Petersons six weeks after the accident. Defendant told the investigator that he hadn’t seen the tail lights on the car in front of him and that when he hit the car in front of him he pushed it into the first car. In her statement, the driver of the first car stated that as she was slowing down she heard the impact of the two cars behind her, which impact pushed the second car into her car. The passenger in the third car also stated that she heard the sound of the impact to the Kropalski car and then heard and felt the impact to the car she was in.

At the close of all the evidence, the court granted plaintiff’s motion for a directed verdict on the issue of negligence only and submitted to the jury the questions of proximate cause and damages. On September 28, 1981, the jury awarded damages in the amount of $100,000 and judgment was entered. Defendant appeals.

Opinion

Defendant argues first that the court erred in finding him negligent as a matter of law and directing a verdict in favor of plaintiff on that issue. A verdict should be directed in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Where a substantial factual dispute is disclosed by the evidence, however, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. (Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 251 N.E.2d 77.) A rear-end collision does not automatically create an inference as a matter of law that the driver of the rear car was negligent. The trier of fact must determine whether the rear driver was acting reasonably under the circumstances or that the accident was unavoidable. Burgdorff v. International Business Machines Corp. (1979), 74 Ill. App. 3d 158, 392 N.E.2d 183.

The driver of a car has a duty to see other cars traveling ahead in the traffic lane and to be sufficiently in control of his or her own vehicle so as to be able to stop it without running into other traffic lawfully on the roadway. (Houchins v. Cocci (1963), 43 Ill. App. 2d 433, 193 N.E.2d 597.) In the instant case, defendant admits that, considering the speed at which he was traveling and his distance from the Kropalski car, he could not stop in time to avoid a collision. Unlike the situation in Burgdorff, there was no evidence presented tending to show that defendant was in a helpless or an unavoidable situation. Further, Korpalski testified that his brake lights were on, but defendant stated only that he did not see them. At no time did defendant testify that the brake lights were not on. Thus, regarding the presence or absence of brake lights, there was no question of fact before the trial court. (See Wissmann v. Jedrzejak (1979), 71 Ill. App. 3d 688, 389 N.E.2d 8.) In view of such evidence, we cannot say that the court erred in finding defendant negligent as a matter of law. When viewed in a light most favorable to defendant, the evidence would not support a contrary verdict. Pedrick.

Defendant also contends that the directed verdict against him on the issue of negligence constituted error in that it precluded jury consideration of the plaintiff’s alleged comparative negligence. (See Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) Although the court directed a finding that defendant was negligent, it reached no conclusion as to plaintiff’s possible contributory negligence. Thus, the issue was left for consideration by the jury. We note, however, that defendant tendered no instruction concerning comparative negligence or the legal effect thereof and made no objection to the court’s failure to give such an instruction. It is a well-established rule that unless a party tenders an instruction he waives the right to appeal the failure to give the instruction. (73 Ill. 2d R. 366(b)(2)(i); Bohnen v. Wingereid (1979), 80 Ill. App. 3d 232, 398 N.E.2d 1204; Cratsley v. Commonwealth Edison Co. (1976), 38 Ill. App. 3d 55, 347 N.E.2d 496.) As the court’s finding did not preclude jury consideration of the issue of plaintiff’s negligence, the jury’s failure to consider such negligence, if any, was attributable to defendant and we conclude that defendant cannot now argue that such failure constituted prejudicial error.

The final issue raised by defendant is whether the court erred in refusing his tendered burden of proof instruction and submitting to the jury a modified version of that instruction. The tendered instruction properly deleted portions of Illinois Pattern Jury Instruction (IPI), Civil, No. 21.02 (2d ed. 1971) concerning plaintiff’s contributory negligence and defendant’s negligence, reflecting the change in the law under Alvis v. Ribar and the court’s pronouncement of defendant’s negligence. The instruction as tendered was otherwise in accord with IPI Civil Nos. 21.02 and A21.02, and reads as follows:

“The plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff was injured;
Second, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” (Emphasis added.)

The trial court refused defendant’s instruction as tendered, deleted the portion italicized above, and substituted “then this fact should be considered and reflected in your verdict.”

A litigant has the right to have submitted to the jury instructions which inform the jury of the issues presented, the principles of law to be applied, and the necessary facts to be proved in support of its verdict. (Winston v. Chicago Transit Authority (1971), 2 Ill. App. 3d 151, 276 N.E.2d 65.) The test is whether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law. (Cole v. Brundage (1976), 36 Ill. App. 3d 782, 344 N.E.2d 583.) However, even if the court has erroneously refused an instruction, reversal for a new trial is required only where there has been prejudice. Goodrick v. Bassick Co. (1978), 58 Ill. App. 3d 447, 374 N.E.2d 1262.

It is only where Illinois Pattern Jury Instructions do not accurately state the applicable law that the court may give another instruction. (Ryan v. Fleischman (1978), 64 Ill. App. 3d 75, 380 N.E.2d 1099.) We agree with defendant’s contention that the court erred in giving the modified instruction. In instructing the jury the court directed a finding on the issue of defendant’s negligence but properly left to the jury the determinations regarding proximate cause and damages. The modified burden of proof instruction, however, injected confusion into the deliberations of the jury as it required only that the jury “consider” plaintiff’s failure to prove proximate cause and to “reflect” this failure in their verdict, seemingly allowing the jury to return a verdict for plaintiff without the requisite finding that defendant’s negligence was a proximate cause of plaintiff’s injury. The use of the modified instruction was unduly prejudicial to defendant in that it created an emphasis favorable to plaintiff and precluded the jury from reaching a verdict in favor of defendant even though the jury could have found that plaintiff had not been injured or that defendant’s negligence was not a proximate cause of plaintiff’s injury.

Because the erroneous instruction affected the jury’s understanding of whether plaintiff had met her burden of proof and therefore affected the ultimate determination of liability we hold that defendant was deprived of a fair trial. Accordingly we reverse the judgment of the circuit court and remand the cause for a new trial.

Reversed and remanded.

WILSON, P.J., and SULLIVAN, J., concur.

      The tendered instruction omitted the following portions of IPI Civil No. 21.02:
      “First, that the plaintiff before and at the time of the occurrence was using ordinary care for [his own safety] [and] [the safety of his property];
      Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent;”


text:
    JAMES SPRAY, Plaintiff-Appellee, v. ILLINOIS CIVIL SERVICE COMMISSION et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—656
    Opinion filed May 3, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Kathleen M. Lein, Assistant Attorney General, of counsel), for appellants.
    Gilbert A. Cornfield, of Cornfield and Feldman, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff filed a complaint for administrative review in the circuit court of Cook County against defendants Illinois Civil Service Commission (Commission) and Illinois Department of Corrections (Department) (sometimes collectively called defendants), seeking review of the Commission’s decision to discharge him as a Pontiac Correctional Center correctional officer. The circuit court reversed the administrative decision, finding that it was rendered without statutory jurisdiction, from which defendants appeal. The principal issues raised on appeal include whether: plaintiff timely requested a section 11 hearing (Ill. Rev. Stat. 1981, ch. 127, par. 63blll) (section 11) and the Commission had jurisdiction to grant it; and, the Commission’s decision was against the manifest weight of the evidence.

For the reasons set forth below, we affirm the judgment of the circuit court.

The jurisdictional issue requires an analysis of the procedural history in this controversy. Employee review hearings relative to plaintiff’s alleged misconduct were conducted by the Department, in which plaintiff participated. The hearings culminated in the recommendation to the warden of the Pontiac Correctional Center that plaintiff “*** be suspended for twenty-nine (29) days and discharged in accordance with the policy of progressive discipline because he was guilty of conduct unbecoming an officer on November 22, 1979.” The recommendation was concurred in by the warden and forwarded to plaintiff. On July 12, 1980, according to plaintiff’s affidavit, he received the warden’s recommendation of discharge at his “*** then current address, Lincolnshire Apartments, apartment #14, Pontiac, Illinois.” The affidavit further avers generally that plaintiff notified the Pontiac Correctional Center of each change of address he made.

Statutory written charges for discharge were prepared and approved by the Director of the Department of Personnel (Personnel) (Ill. Rev. Stat. 1981, ch. 127, par. 63blll) on July 31, 1980, and sent on that date to plaintiff at 212 East Jackson Street, Cullom, Illinois, by certified mail, return receipt requested. The charges were returned “unclaimed.” The affidavit of a Personnel employee averred that 212 East Jackson Street was the last known address appearing in plaintiff’s personnel file; and that on September 17, 1980, a different address, 756 North Chicago, Pontiac, Illinois, was obtained from plaintiff through inquiry of the warden’s administrative assistant. On that same day, September 17, another copy of the approved written charges was claimed by affidavit to have been mailed to the new address by the secretary to the Department’s chief personnel officer. No mention was made in this affidavit that the letter was sent by certified mail, return receipt requested, as required by Personnel Rule 2— 730. Whether plaintiff ever received one, both, or none of the approved written charges and, if so, when he received them, is not made clear in the record, although in a document filed with the Commission, plaintiff’s position appears to be that he has never received either copy.

On December 12, 1980, plaintiff sent a letter to the Commission indicating that he had not received his “Civil Service papers” and requesting a hearing regarding his discharge. He asked that all correspondence be sent to still another address, 1306 North Main, Pontiac, Illinois. Upon preliminary investigation, the Commission’s staff recommended that plaintiff’s appeal be denied for failure to file a timely request. On January 14, 1981, plaintiff’s counsel filed objections to the staff recommendation to which the Department filed an answer and plaintiff a reply. After consideration of the jurisdictional arguments, a Commission hearing officer found that although plaintiff was never personally served with charges for discharge, he had in fact received the initial employee review recommendation, concurred in by the warden, that he be discharged, on July 12, 1980. The hearing officer recommended that the appeal be denied for lack of jurisdiction due to Spray’s failure to pursue his right of appeal within proper time limits.

At its public meeting of February 19, 1981, the Commission rejected the recommended decision, and directed the staff to convene a hearing on the merits of the charges. On March 5, 1981, the Commission sent a letter to plaintiff’s attorneys stating that it was Commission policy to deny appeal to employees who do not make diligent efforts to claim charges against them for discharge, but that since plaintiff and “*** his union made efforts to claim the charges,” a hearing on the merits of the appeal would be held on April 2, 1981.

Also on March 5, 1981, plaintiff’s counsel wrote a letter to the executive secretary of the Civil Service Commission recounting telephone conversations held between a Commission employee and himself on March 4 and 5 in which counsel: was asked whether March 13, 1981, would be an available date for him to attend the hearing, which was first declined and then accepted; that he was thereafter informed that the assistant Attorney General would not be prepared for a hearing on March 13; that he was asked about an April 2 or 3 hearing date; and that he responded that an attorney would be “available” for April 2.

Plaintiff’s counsel filed a motion to dismiss the proceedings with the Commission dated April 1, 1981, in which it was alleged that the Commission lost jurisdiction because it failed to grant a hearing to plaintiff within 30 days after requested, citing section 11. That motion was denied on April 7, 1981. The hearing was continued to May 8 at plaintiff’s request. Following an evidentiary hearing, the Commission determined that the written charges for discharge were proved and warranted plaintiff’s discharge.

On administrative review taken by plaintiff, the circuit court reversed the Commission’s order holding it invalid due to the Commission’s failure to grant him a timely section 11 hearing. The circuit court, in an opinion delivered orally prior to the entry of judgment, concluded that plaintiff’s letter of December 12, 1980, triggered the 30-day mandatory hearing contained within section 11 and that even after the Commission found it had jurisdiction on February 19, 1981, it did not set the cause down for hearing until April 2, 1981, for some unexplained reason. It is from this order that defendants appeal.

Defendants maintain that plaintiff’s failure to request a hearing within the prescribed time limits set forth in section 11 placed the Commission’s jurisdiction for hearing outside section 11, asserting that the circuit court erred in its application of the statute and case law to the facts of this case. That part of section 11 pertinent to the issue raised reads as follows:

“No officer or employee under jurisdiction B, relating to merit and fitness *** shall be removed discharged or demoted *** except for cause, upon written charges approved by the Director of Personnel, and after an opportunity to be heard in his own defense if he makes written request to the Commission within 15 days after the serving of the written charges upon him. Upon the filing of such a request for a hearing, the Commission shall grant a hearing within 30 days.” (Ill. Rev. Stat. 1981, ch. 127, par. 63blll.)

From the foregoing statutory prescription, it appears that three events are required to take place in order to establish Commission jurisdiction for a hearing: first, written charges approved by the Director of Personnel must be served upon the employee; second, the employee must make a written request for a hearing to the Commission within 15 days after service; and third, the Commission is required to commence a hearing within 30 days.

The difficulty raised by this record is that plaintiff has asserted continuously that he had never been served with the approved written charges required by statute. There is no evidence in the record to prove to the contrary. In fact, the Commission’s hearing officer found that personal service was never effectuated upon plaintiff. The record shows that the first letter containing the approved written charges was forwarded to plaintiff by certified mail, return receipt requested, on July 31, 1980, which was returned to the Department of Personnel with the explanation that the letter was “unclaimed.” On the envelope, the following legend appeared: “Authorized time for forwarding has expired. Please advise your correspondents of your new address.” The second effort to forward the approved written charges to plaintiff was made on September 17, 1980, but not through certified, return receipt requested, mail as required by rule. The record is silent as to what became of this letter. Meanwhile, an affidavit filed by plaintiff’s local union president reveals that he contacted the chief personnel officer assigned to the Department “*** at least by August 14, 1980 and notified him that James Spray had not received his official notice of discharge or notice of his right to appeal,” and that he had contacted the same personnel officer or his office “*** several times during the months of August, September, October, November and December, ***” concerning the same problem. The absence of a definite starting date from which other time-constrained activities were to proceed tainted the proceedings which followed.

Nevertheless, December 12, 1980, must be deemed as the date by which plaintiff either had received or had waived personal service of the charges by virtue of his having then directly requested a Commission hearing. Although the 30-day hearing commencement period required by section 11 should have begun with December 12, when it was postmarked, Commission personnel apparently determined that the issue of jurisdiction had to be resolved separately from the section 11 hearing.

The term “jurisdiction” may not be strictly applicable to the administrative body; however, it is appropriately utilized to designate the authority of that agency to act. (Pocahontas Mining Co. v. Industrial Com. (1922), 301 Ill. 462, 474-75, 134 N.E. 160; Beam v. Erven (1971), 133 Ill. App. 2d 193, 196, 272 N.E.2d 685.) An administrative authority derives its power solely from the statute through which it was created, and where jurisdiction is conferred by statute upon the agency, all facts necessary to the exercise of such jurisdiction must affirmatively appear from the record. (Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 552, 76 N.E.2d 478; Illinois Commerce Com. ex rel. East St. Louis, Columbia & Waterloo Ry. v. East St. Louis & Carondelet Ry. (1935), 361 Ill. 606, 611, 198 N.E. 716; New Landing Utility, Inc. v. Illinois Commerce Com. (1977), 58 Ill. App. 3d 868, 871, 374 N.E.2d 6.) Under the circumstances presented by the instant case, the Commission had the right, if not the duty, to ascertain whether it had jurisdiction to grant the statutory hearing demanded by plaintiff. See Anderson Lumber & Supply Co. v. Fletcher (1950), 228 Ind. 383, 389-90, 89 N.E.2d 449, 452; 2 Am. Jur. 2d Administrative Law sec. 332 (1962).

The Commission’s jurisdictional investigation was as much for plaintiff’s benefit as it was for the employing agency, so that plaintiff’s rights and the Department’s responsibilities would be determined and adjudicated with a modicum of certainty and stability. (See McReynolds v. Civil Service Com. (1974), 18 Ill. App. 3d 1062, 1065-66, 311 N.E.2d 308.) Having decided to make that determination, however, the Commission nevertheless should have set a date for hearings to commence within 30 days (McReynolds) from December 12, 1980, or no later than January 11, 1981, a Sunday, which would have permitted the hearing to have commenced on January 12, 1981. (Ill. Rev. Stat. 1981, ch. 1, par. 1012.) This, for some inexplicable reason, it did not do. No reason is suggested by this record as to why the jurisdictional issue could not have been considered at the section 11 hearing as the first order of business, and thereby remain in compliance with the statute. If, indeed, jurisdiction was found to be lacking, the hearing could have been terminated. Instead, the matter was needlessly delayed and the hearing process prolonged by resorting to staff investigations neither contemplated nor recognized by statute as bases for extending the commencement of the statutory hearing.

Defendants claim waiver of the 30-day rule in that plaintiff’s objection to the recommended staff decision to deny a Commission hearing and his request that he be granted the hearing was made on January 14, 1981, more than 30 days after plaintiff’s request for hearing on December 12, 1980. Waiver, however, presupposes that the party intends to forego a known right; there must be both knowledge that the right exists and an intent to relinquish it. (Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 372, 335 N.E.2d 491.) Defendants here identify no rule which specifies that an employee must present an objection based upon the Commission’s failure to comply with the statute, nor any time period within which it must be made. In the absence of such a rule, it cannot be inferred that plaintiff intended to waive the statutory provisions. Parsons v. Civil Service Com. (1977), 50 Ill. App. 3d 519, 524, 365 N.E.2d 544.

Even if the mandatory hearing period were to be deemed extended by virtue of the confused jurisdictional situation in this case, no basis is shown in the record for the Commission to have set the hearing to commence on April 2, 1981, some 42 days after its order of February 19, 1981, in which it found that it had jurisdiction. No act of plaintiff can be deemed to have extended that time. When contacted by the Commission on March 4, 1981, plaintiffs counsel was offered March 13, 1981, as a proposed hearing date, which, after first having been declined, was accepted by him the next day. A Commission employee thereafter contacted the assistant Attorney General, who declined that date because he was unable to prepare for the hearing. The Commission employee then suggested April 2 or 3, 1981, as available hearing dates. The fact that plaintiff’s counsel advised the Commission that an attorney would be “available” for that hearing does not amount to acquiescence in the April dates and, in fact, plaintiff subsequently moved to dismiss the proceedings for want of jurisdiction.

Further argument is made that the granting of the hearing beyond the 30-day requirement of section 11 constituted a discretionary benefit which, according to defendants, “*** place *** [the subject case] outside the contemplated statutory scheme ***,” which should somehow be legitimized because “*** the Commission generously granted Plaintiff a hearing on the merits of the charges against him.” No authority is cited, and none has been found, which authorizes a hearing “outside the contemplated statutory scheme,” whether “generously granted” or not. Accordingly, the hearing and its result were nullities and the circuit court’s finding to this effect must be affirmed.

In view of the disposition of the jurisdictional issues in this case, we need not address the arguments relating to the merits of plaintiff’s discharge.

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

Affirmed.

DOWNING, P.J., andPERLIN, J., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY JONES, Defendant-Appellant.
    First District (5th Division)
    No. 82—320
    Opinion filed May 13, 1983.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Matthew J. Egan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After being convicted by a jury, defendant was sentenced to concurrent terms of six years for rape and one year for unlawful restraint. On appeal, he contends that (1) the trial court erred in (a) denying his motion to quash his arrest, (b) allowing identification testimony which was the product of that unlawful arrest, and (c) refusing to admit a photograph of the crime scene; (2) he was denied a fair trial when the State used its peremptory challenges to exclude blacks from the jury; (3) he was not proved guilty beyond a reasonable doubt; (4) he was denied his constitutional right to confront witnesses against him by the trial court’s failure to exclude inadmissible and prejudicial hearsay evidence; and (5) he was improperly convicted of and sentenced for both crimes since they arose out of a single transaction.

At a hearing on his motion to quash his arrest and suppress lineup identifications, defendant testified that he was arrested at approximately 3 a.m. on June 15, 1980, as he stood on the porch of his home. He had spent the entire evening at home watching television with his family, but he and his brother, Raleigh Harris, left the house at about 3 a.m. Harris walked to a restaurant to get a sandwich while he (defendant) walked his dog. When arrested, he was standing on the porch with his dog and was clad only in black slacks and gym shoes.

Officer Raitano testified that he and his partner responded to a radio call of a rape in progress and were met at the scene by the victim and Jerome Chudnow. The latter told them that the offenders were two male blacks who had just run south. The officers, with Chudnow in their car, were driving south in pursuit when they saw two male blacks running through a well-lighted alley about a block and a half from the scene of the rape. When Chudnow said, “Those are the two,” the officers pursued them and arrested one (Harris) in the 1900 block of North Albany. Chudnow identified him as one of the men involved in the rape, and he then described the other as a male black, approximately six feet tall, who was very muscular and wore brown pants. Raitano also testified that, while his initial view of the men in the alley was brief and although he lost sight of them for about five seconds during the chase, he was sure that Harris was one of them and that the other was tall and very muscular.

Officer Penkala testified that he and his partner heard the original report of a rape in progress, and they were in the 1900 block of North Albany when they received another report that officers were in pursuit of a second person involved in a rape who was described as a muscular male black, six feet tall, and wearing brown pants. As they drove south on Albany, they were told by an unidentified woman that a male black had run south past her a few seconds before. A half block further, about two or three blocks from the rape scene, they saw defendant, a tall, muscular male black wearing brown pants, sitting on a porch. He was out of breath, and not seeing anyone else in the area, they placed him under arrest. They did not see a dog on the porch.

Defendant’s sister testified that she was awakened at 3:15 a.m. by the sound of voices and a dog barking. When she looked out the window, the police were putting her brother into a squad car, and she noticed that their dog was on the porch.

Defendant’s motion to suppress was denied, and at trial the victim testified that she left a family party about 12:30 a.m. with a friend who was to drive her home. In the car, they argued and she got out, intending to walk the rest of the way home. As she walked, a Puerto Rican man came up to her, held a gun to her throat, and forced her into nearby Palmer Square Park. He said that he was going to rape her and threatened to kill her if she screamed. She persuaded him to come home with her, hoping that once out of the park she could find help, but as they walked out of the park defendant and Harris approached, and one of them grabbed her while the Puerto Rican pulled a gun, and she started to run but was caught by defendant and dragged into the park under a streetlight where he beat her repeatedly about the face, bit her, tore her clothes, and raped her. She noticed that defendant wore a white shirt and a cap and that Harris wore a blue shirt. When another man approached, defendant and Harris ran away. The police arrived immediately thereafter and took her to the hospital. Later that day, she went to the police station and identified defendant and Harris in a lineup. She acknowledged that she was in the park with the Puerto Rican for a long time but said that he did not strike her or tear her clothes. She did not speak to police officers at the scene, explaining that she does not speak English, and she said that Harris did not strike or rape her.

Jerome Chudnow testified that he was in his home across from Palmer Square when he heard a commotion and, upon looking out the window, saw a Puerto Rican with a gun in his hand pointed at Harris and another man dragging a woman out of the street into the park. He (Chudnow) told a friend to call the police, and after hearing Harris say, “The gun is a toy,” he went out and walked down the street to a point in front of a church directly across the street from defendant and the woman, and when defendant looked up, he (Chudnow) had a clear view of his face. At this point, the police car approached, and the two men ran south through the park and down Albany where they entered an alley. He noted that Harris wore light slacks and a blue shirt, while defendant wore dark brown pants, a white dress shirt, gym shoes, and a golf cap. He told the officers that a rape had occurred, and he got into the squad car, which was driven across the park after the fleeing men. The squad car was driven into the alley where he had last seen the two men, and he saw them again. The officers turned on their headlights and, as they came closer, the men started to run away. He was able to see that they were dressed the same as the men he had seen in the park, but he could not see their faces. One officer jumped out of the car and caught Harris, who was breathing heavily. He (Chudnow) accompanied the officers to the police station, where he saw other officers bringing in defendant whom he identified as the other man in the park. At the station, defendant was wearing only pants and gym shoes.

Officer Restivo testified that when he and his partner were flagged down by Chudnow at about 3 a.m., he saw the victim and noted that her knees were bleeding, her clothes were in disarray, and she was sobbing. Chudnow told them that the victim was raped and that the two men involved ran south on Albany. With Chudnow in their car to direct them, they pursued the two men and, upon entering an alley off Albany, they saw two men walking halfway down the alley. The two men turned and, seeing the police car, they began running. The officers broadcast the details of the pursuit, describing one of the men as being approximately five feet seven inches tall, wearing light pants with a blue shirt, and the other about six feet tall, wearing a light shirt and dark pants. Restivo pursued and caught the man in the blue shirt, and Chudnow identified him as one of the men in the park. Restivo acknowledged that he first saw the two individuals when they were in the alley and twice lost sight of them for a few seconds during the pursuit.

Officer Saenz testified that when he heard that an officer was pursuing one of the subjects south, between Albany and Whipple, he and his partner proceeded to Albany. A woman walking her dog in the 1900 block of North Albany told them she had seen a black man running south on Albany. They proceeded south down Albany and saw defendant sitting on a porch. They saw no one else in the vicinity and, noticing that he was six feet tall, wore brown pants and gym shoes, and that he was panting heavily and sweating, they placed him under arrest. He admitted that defendant did not try to run away when they approached him.

Investigators for the public defender’s office testified that they went to the scene of the rape on December 7, 1981, at approximately 12:30 p.m. and took a photograph of the park from a position at the bottom of the steps of a church across the street. They acknowledged that the picture did not accurately portray how the park looked at 3:15 a.m. on June 15, 1980, and that the measurements were not made with a tape measure but were paced off.

Defendant testified that he was arrested while sitting on his front porch at approximately 3:15 a.m. He was at home with his sisters and brother Harris from 9:30 p.m. until the time of his arrest, but Harris left the house at about 3 a.m. to walk to a nearby restaurant. When arrested, he was wearing only black pants and gym shoes and had not been running. He acknowledged that his brother was wearing beige pants and a blue shirt on the night in question, and that his sisters were asleep at the time of his arrest.

Sharon Jones, the defendant’s sister, testified that she and her sisters were asleep when defendant was arrested, but he and Harris had been at home with the family all evening. She admitted that she did not know where her brothers were between 2:15 and 3:15 a.m.

Opinion

Defendant first contends that the trial court erred in refusing to quash his arrest and to exclude identification testimony which was a product thereof. He maintains that the general description given by an eyewitness, absent other supporting facts connecting him to the crime, did not provide reasonable grounds for his arrest. Furthermore, he argues, his pretrial motion should have been granted because there was no testimony establishing the reliability of an eyewitness-informant’s conclusion that defendant was a participant.

A warrantless arrest is invalid unless there is probable cause to believe that the person is committing or has committed an offense (People v. Coleman (1978), 63 Ill. App. 3d 814, 380 N.E.2d 829), and the test is whether, when the situation confronting the arresting officer is viewed objectively (People v. Thomas (1980), 80 Ill. App. 3d 1121, 400 N.E.2d 1019), we can say that the “facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing” the person to be arrested has committed a crime (People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605, 608, cert. denied (1982), _ U.S. ___, 74 L. Ed. 2d 85, 103 S. Ct. 92), bearing in mind that we are dealing with probabilities (People v. Spencer (1982), 107 Ill. App. 3d 835, 438 N.E.2d 603), not proof beyond a reasonable doubt (People v. Blitz (1977), 68 Ill. 2d 287, 369 N.E.2d 1238, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622), and often “police officers must act upon a quick appraisal of the data before them and *** the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals” (People v. Walls (1980), 87 Ill. App. 3d 256, 263, 408 N.E.2d 1056, 1062). On a motion to quash an arrest, the burden of proof is on the defendant (People v. Robinson (1980), 91 Ill. App. 3d 1138, 415 N.E.2d 585), but once he has made a prima facie showing of the lack of probable cause, the burden of going forward with the evidence shifts to the State (People v. Garcia (1981), 94 Ill. App. 3d 940, 419 N.E.2d 542), and where the arresting officer has relied on information provided by an informant, the evidence must indicate both the reliability of the person providing information and the reliability of his conclusion that defendant was involved in a crime (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509). Once the trial court finds that probable cause for the arrest existed, its determination will not be disturbed unless manifestly erroneous (People v. Brown (1980), 88 Ill. App. 3d 514, 410 N.E.2d 505, cert. denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 392, 101 S. Ct. 3010) and, since a ruling on a motion to suppress is not final and can be reversed at any time, a reviewing court may consider evidence subsequently received during trial (People v. Taylor (1981), 99 Ill. App. 3d 15, 424 N.E.2d 1246).

Initially, defendant argues that the sole basis for his arrest was a general description provided by an eyewitness, who first stated that he saw “two male Negroes,” and later, when Harris was arrested, he supplemented this with the information that the other man was tall and muscular and wore brown pants, a white shirt, gym shoes, and a hat. While it is true, as defendant asserts, that a general description standing alone is insufficient to justify an arrest (People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574; In re Woods (1974), 20 Ill. App. 3d 641, 314 N.E.2d 606), we believe that the arrest in the instant case was based on more than a mere general description. Officers arrived at the scene of the rape at 3:10 a.m., within moments of its occurrence, and observed that the victim was sobbing, her knees were bleeding, and her clothing was in disarray. A witness told them that he observed the crime and saw the two offenders flee into a nearby alley. The witness went with them in the squad car and when they entered the alley, they saw two men, and the witness exclaimed, “Those are the two.” The officers pursued them and also sent a radio message containing their description to other officers in the area. One of the arresting officers testified that he heard the description and the information that a suspect was running in the vicinity of 1900 North Albany. There, the officer was told by a passerby that a man ran past her seconds before the officer arrived. One-half block from that point, and only two or three blocks from the scene of the offense, the officers came upon defendant. Because he matched the description and was panting heavily, he was arrested. All of this took place within five minutes after the rape occurred, and no other person was observed in the vicinity, although several police cars were searching the area.

These same circumstances were found sufficient to establish probable cause in People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, and People v. Coleman (1978), 63 Ill. App. 3d 814, 380 N.E.2d 829. In Lippert, the victims told an officer that they had been robbed by four men in a car approximately 25 minutes before the officer arrived. Only two of the offenders were described, and no description of the car was given. As the officer cruised the area minutes later, he saw two men who matched the description alone in a car and arrested them. The supreme court held that the officer’s knowledge was sufficient to constitute probable cause, noting that he knew an armed robbery was committed, had a general description of two men involved, and began searching the area within 30 minutes of the crime. The court also considered the fact that, because of the lateness of the hour, there were only a few people in the area.

Similarly, in Coleman, a victim saw two men trying to steal his car at 6:30 a.m. He called to an officer, who saw the men get out of the car and flee. One was apprehended, and a radio message was sent detailing the pursuit and describing the second suspect as a male black, five feet six inches tall, with dark curly hair, and wearing dark clothing. Another officer arrested the defendant minutes later, within eight blocks of the scene, after noting that he fit the general description and was breathing heavily. He found that there was probable cause for the arrest, noting that the officer knew that a crime had recently been committed in the area, that there were no other individuals in the area at that early hour of the morning, and that the defendant matched the general description and was breathing heavily.

Although we believe that these cases are dispositive of the issue, we note the additional argument of defendant that, because the eyewitness did not testify at the suppression hearing, there was no basis upon which the court could determine that he was reliable. He admits that an officer may rely on information supplied by a private citizen (People v. Spencer (1982), 107 Ill. App. 3d 835, 438 N.E.2d 603), but maintains that the State failed to show any underlying facts or circumstances from which the court could conclude that the informant had reason to know that the defendant was engaged in criminal activity (People v. Garcia (1981), 94 Ill. App. 3d 940, 419 N.E.2d 542). In the instant case, however, the eyewitness did testify at trial, detailed what he saw, and established his ability to see defendant clearly during the commission of the crime. This evidence satisfies the second prong of the Aguilar test, and defendant therefore “cannot avail himself of any error on the motion to suppress.” (People v. Braden (1966), 34 Ill. 2d 516, 520, 216 N.E.2d 808, 810.) Since we have determined that probable cause existed, any identifications following therefrom were admissible against defendant. People v. Hinton (1977), 45 Ill. App. 3d 925, 360 N.E.2d 451.

Defendant next contends that he was denied a fair trial by the State’s use of its peremptory challenges to exclude blacks from the jury and, in support thereof, cites People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046. He points out that the prosecutor exercised seven peremptory challenges, four of them against black members of the venire, and as a result only one black served on the jury.

In Payne, the prosecutor exercised eight peremptory challenges, six of them against blacks, and thus only one black remained on the jury. In reversing the defendant’s conviction, the third division of this court held that “when it reasonably appears to the trial court, either by its own observation or after motion by the defendant, that the prosecuting attorney is using peremptory challenges to systematically exclude blacks from the jury solely because they are blacks, the court should require the prosecutor to demonstrate, by whatever facts and circumstances exist, that blacks were not being systematically excluded from the jury solely because they were blacks.” (106 Ill. App. 3d 1034, 1040, 436 N.E.2d 1046, 1050.) The Payne court noted that its decision was contrary to Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, and People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89, which hold that defendant must prove systematic exclusion of blacks in case after case in order to prevail. (See also People v. Davis (1983), 95 Ill. 2d 1.) The Payne court reasoned that Swain was distinguishable because it was decided under the equal protection clause of the fourteenth amendment (U.S. Const., amend XIV); whereas, Payne relied on the sixth amendment guarantee of a fair and impartial jury (U.S. Const., amend. VI; see People v. Gilliard (1983), 112 Ill. App. 3d 799, 804, 445 N.E.2d 1293, 1297). Payne draws its reasoning and conclusions in great part from People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170, which rely on provisions of their respective State constitutions guaranteeing, as does the sixth amendment, a fair and impartial jury. Wheeler and Soares, along with Payne, either ignore or distinguish Swain and rely instead on Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, which holds that exclusion of a discrete group in selecting the venire violates the sixth amendment guarantee of an impartial jury trial in criminal prosecutions.

After defendant filed his brief in the instant case, the Illinois Supreme Court rendered its decision in People v. Davis (1983), 95 Ill. 2d 1, which was on direct appeal because of the death penalty imposed. There, the defendant alleged that the State used its peremptory challenges to exclude blacks, thus depriving him of his right to a fair and impartial jury. The supreme court stated that “[t]his contention has been resolved adversely to the defendant in Swain v. Alabama ***.” (95 Ill. 2d 1, 16.) It discussed the rejection of Swain by the courts in Wheeler and Soares, the cases relied upon in Payne, and disagreeing with their reasoning, stated:

“However, we are not disposed to depart from the principle enunciated in Swain. ‘Peremptory challenges historically and by definition, are arbitrary and perhaps even irrational challenges to the seating of a juror. They are totally subjective and not subject to scrutiny or examination. *** [T]he Court in Swain pointed out that to entertain objections of the nature raised in this case would be to destroy the peremptory nature of the challenge ***.’ Commonwealth v. Henderson (1981), 497 Pa. 23, 29-30, 438 A.2d 951, 954.” 95 Ill. 2d 1, 17.

It is established that once our supreme court declares the law on any point, its decision is binding on all Illinois courts (People v. Reese (1978), 66 Ill. App. 3d 199, 383 N.E.2d 759), and we may not refuse to follow it, whatever our personal views of that decision might be (People v. O’Neal (1976), 40 Ill. App. 3d 448, 352 N.E.2d 282, cert. denied (1977), 431 U.S. 969, 53 L. Ed. 2d 1065, 97 S. Ct. 2929), because the supreme court alone has the power to overrule or modify its decisions (People v. Tannahill (1976), 38 Ill. App. 3d 767, 348 N.E.2d 847). In the instant case, however, while defendant agreed during oral argument that the above-quoted language in Davis appears to be dis-positive of the issue here, he argued that we should not so consider it because (a) it is merely dictum which we should not follow, and (b) it is based on the equal protection clause of the fourteenth amendment and is therefore not dispositive of the sixth amendment argument addressed in Payne.

We believe, however, that defendant’s arguments are disposed of by the supreme court’s recent order issued in People v. Gosberry (1983), 93 Ill. 2d 544. There, the supreme court in the exercise of its supervisory jurisdiction, reversed this court’s decision, which was based solely on Payne, that the defendant was denied his constitutional right to a fair and impartial jury by the prosecutor’s use of peremptory challenges to exclude blacks from the jury. (People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954.) The supreme court relied on Davis in reversing Gosberry, therefore, it would appear that the holding in Davis is not dictum, and since Gosberry is based entirely on the sixth amendment, we conclude that Davis is dis-positive of this issue.

Our conclusion is bolstered by an analysis of the Davis decision itself. In arguing that the Davis court’s reliance on Swain is dictum, defendant relies upon a comment in Davis that the record “[did] not reveal the number of black jurors called for service.” (95 Ill. 2d 1, 16.) Defendant concludes that the court’s decision was based on the inadequacy of the record before it rather than on a holding that the State’s use of peremptory challenges to exclude blacks from a particular jury does not deprive the defendant of his constitutional right to a fair and impartial jury. However, the supreme court also stated in Davis that in order to prevail, the defendant had to establish a systematic and purposeful exclusion of blacks in case after case, and the quoted language relied on by defendant appears in the court’s discussion of the defendant’s failure to meet this burden of proof. We believe that, had the court meant to find that the issue was not properly presented by the record before it, it would have cited People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2034, where it refused to consider the issues raised in Wheeler and Soares because the record did not reveal necessary factual information on the racial composition of the jury.

We find it difficult to accept another assertion of defendant that we should not consider Davis as controlling because it fails to address the sixth amendment argument, on which Payne is based. Initially, we note that Davis states the issue as “whether the State’s use of peremptory challenges to allegedly obtain an all-white jury deprived defendant of his right to a fair and impartial jury." (Emphasis added.) (95 Ill. 2d 1, 16.) This language clearly addresses the sixth amendment, rather than the fourteenth amendment. Furthermore, the reasoning of Wheeler and Soares, relied upon in Payne, which was based upon a sixth amendment rationale, was expressly rejected by Davis. (95 Ill. 2d 1, 17.) This rejection was in the face of the one-justice dissent in Davis, which quotes from Payne and points out the sixth amendment right as recognized in Taylor v. Louisiana. (95 Ill. 2d 1, 58-59.) We do not believe, as defendant’s argument suggests, that the supreme court rejected these opinions without reading them, or that it is unfamiliar with the sixth amendment guarantee of an impartial jury. For these reasons, it is our view that Davis supports the rejection of defendant’s contention that he was denied a fair trial by the State’s use of peremptory challenges.

Defendant further argues that he was not proved guilty beyond a reasonable doubt. He bases his argument on the alleged inadequacy of the witnesses’ opportunity to observe and contradictions in the details of the offender’s description.

The State has the burden of proving beyond a reasonable doubt that a crime occurred and that the accused is the person who committed it (People v. Bridges (1979), 71 Ill. App. 3d 868, 390 N.E.2d 407), but the latter burden may be met by offering a positive identification by a single witness who had an adequate opportunity to observe the offender (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801) even if the circumstances of the observation are less than perfect (People v. Lomax (1980), 89 Ill. App. 3d 651, 411 N.E.2d 1212). It is the jury’s province to determine whether the State has met this burden (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489); therefore, the “[rjesolution of factual disputes and the assessment of the credibility of the witnesses” is for the jurors (People v. Williams (1983), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138), and we will not substitute our judgment for theirs unless the evidence itself is so improbable as to raise a reasonable doubt of defendant’s guilt (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233).

In the instant case, the 'victim testified that she had a clear view of defendant’s face when he and Harris first approached her, and again as he raped her under a streetlight. An eyewitness also testified that defendant, while under a streetlight, looked directly at him, and that his view of defendant’s face was clear and unobstructed. We note that each witness identified defendant later despite the fact that he was no longer wearing a cap or a white shirt as he was during the commission of the crime. While defendant maintains that the cap worn by the offender would have cast a shadow on his face and prevented his identification, we note that there was no such testimony, and the jury might well have believed that the brim of a golf cap, as a witness described his head covering, would not have produced such a large shadow as to totally obscure defendant’s features. Defendant further argues that the victim’s ability to observe was limited by the severe beating she sustained and by her fear, and that the eyewitness was too far away to have a clear view of the offender’s face. These factors were before the jury and were vigorously argued by defense counsel in his closing argument. The jury could have found the witnesses credible in spite of the imperfect circumstances, since a victim’s attention would naturally be focused on her attacker, whose face was in close proximity to hers for a period of time, and the eyewitness too miight be particularly attentive, knowing that he was witnessing a crime and might later be called upon to describe it.

Defendant also maintains that there were discrepancies in the witnesses’ description of the offender, and notes that Chudnow did not give a full description until after he saw the two men in the alley, suggesting that it was influenced more by his view of the men in the alley than by his observations at the scene. However, Chudnow testified that when he saw the two men in the alley, he noted that their clothing was the same as the men he saw in the park, thus negating defendant’s theory on the origin of Chudnow’s description. Furthermore, we do not believe that the failure to obtain the description at the scene indicates that the witnesses could not provide one, or that their later descriptions “contradict” their failure to give a description initially. The victim stated that she did not speak English and was therefore unable to communicate with the officers at the scene, and it does not appear that a description was asked from the other witness at the scene by the officers who, instead, asked him to accompany them in their immediate pursuit of the offenders.

Defendant further argues that his attire at the time of his arrest negates any possibility of his guilt. He notes that the offender was described as wearing a white shirt and cap, while he was shirtless and hatless, positing that he could not have arrived home, shed the incriminating clothing, and returned to the porch before the police came. However, it is not unreasonable to assume that they were discarded as defendant fled in an attempt to avoid capture.

It is our view that the evidence was not so improbable as to raise a reasonable doubt as to defendant’s guilt.

Defendant also contends that the trial court erred in refusing to exclude alleged hearsay evidence. Over defendant’s objection, the arresting officer testified that, during his pursuit of the fleeing suspect, an unidentified woman told him she saw a man running south on Albany. Defendant was arrested immediately thereafter on Albany, one-half block south of the site of this conversation.

Hearsay is “testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter” (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226), and with certain exceptions, such testimony is inadmissible at trial because the party against whom it is offered has no opportunity to test the absent declarant’s credibility (People v. Langdon (1980), 91 Ill. App. 3d 1050, 415 N.E.2d 578); however, statements which would be hearsay if offered for the truth of the matter asserted therein may be admissible if offered for the limited purpose of explaining why the police conducted their investigation as they did (People v. Sanders (1980), 80 Ill. App. 3d 809, 400 N.E.2d 468) or why they arrested the defendant (People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661). Furthermore, the admission of hearsay evidence is harmless error where there is uncontroverted eyewitness testimony sufficient to sustain a conviction (People v. Gaines (1982), 88 Ill. 2d 342, 430 N.E.2d 1046, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2034) since, in that event, there is no reasonable possibility that the verdict would have been different had the hearsay been excluded (People v. Griggs (1982), 104 Ill. App. 3d 527, 432 N.E.2d 1176).

Defendant maintains that the testimony was offered to prove the truth of the matter asserted therein — that a man was running south on Albany. The State argues that its only purpose in offering this testimony was to explain why the officers proceeded south on Albany, therefore the statement was properly admitted to explain the circumstances of defendant’s arrest. Recently, in People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245, we found remarkably similar testimony admissible for the limited purpose of explaining the investigatory procedures undertaken by a security guard. There, the victim testified that he was robbed in an apartment building elevator by three boys. He proceeded to the lobby, where he told a security guard of the robbery, and an unidentified woman standing nearby stated that she had seen three boys on the 15th floor. The guard immediately went to an apartment on the 15th floor, where one of the defendants lived, but was refused admittance. There, as here, the woman did not describe the persons she saw, nor did her statement connect them with the crime charged. We believe that here, as in Agee, the only value in this testimony was to explain the officer’s subsequent conduct, since in neither case did the statement identify the defendant as the person observed, nor did it link the person observed to the crime.

Moreover, even assuming that the statement was offered to prove the truth of the matter asserted, we believe that its admission was harmless in the light of the overwhelming evidence of defendant’s guilt. Two eyewitnesses with an adequate opportunity to observe identified defendant as the perpetrator. Furthermore, the circumstances of his arrest logically tend to connect him with the crime, since he was arrested within minutes thereafter, only two or three blocks from the scene, and his physical condition at the time of his arrest indicated that he had been running, which is consistent with police testimony that the suspect fled from the scene on foot.

Defendant next contends that the trial court erred in refusing to admit a photograph of the crime scene into evidence. He argues that, given the conflicting testimony on how far the eyewitness was from defendant during his observation, the photograph was relevant and would have aided the jury in resolving this factual dispute.

Ordinarily, it is within the discretion of the trial court whether or not to admit a photograph into evidence (People v. Williams (1979), 71 Ill. App. 3d 547, 390 N.E.2d 32), based on its consideration of the photograph’s probative value as opposed to its prejudicial effect (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203) and a determination whether it portrays facts relevant to an issue and can be verified as a correct representation of those facts (People v. Williams (1979), 71 Ill. App. 3d 547, 390 N.E.2d 32), and its decision will not be reversed absent a showing of an abuse of that discretion and resulting prejudice to the defendant (People v. Craig (1977), 47 Ill. App. 3d 242, 361 N.E.2d 736).

We have examined the photograph in question, which purports to be the view which Chudnow would have had of the scene from his vantage point in front of the church. The witness who took the picture admitted that it did not portray the scene as it would have appeared at 3:15 a.m. on the day of the crime, since it was taken at 12:30 p.m., almost 18 months later. While the man who appears in the photograph was presumably standing approximately where defendant would have been on the night in question, we note that the photograph was taken from the bottom of the church steps, approximately 36 feet from the curb, although Chudnow testified that he stood “in front of the church,” but did not state whether he was at the curb, at the steps, or at some point between them. In addition, the other man in the photograph was standing in the middle of a jogging path, approximately 12 feet from the opposite curb; whereas, Chudnow testified that defendant was “near” the path, about four feet from the curb. Thus, while the picture suggests a distance of 114 feet, Chudnow might have been substantially closer to defendant than that, perhaps as much as 44 feet closer. For these reasons, we do not believe that the trial court abused its discretion, since the photograph admittedly does not accurately portray the scene as it appeared at the time of the crime (see People v. Williams (1979), 71 Ill. App. 3d 547, 390 N.E.2d 32) and might have given the jury a misleading impression of the view Chudnow had of the crime (see People v. Rolon (1979), 71 Ill. App. 3d 746, 390 N.E.2d 107).

Furthermore, even assuming arguendo that the photograph should have been admitted, we believe that its exclusion was harmless error in this case. While it might have cast some doubt on the credibility of Chudnow’s identification, the victim’s positive identification after an opportunity to observe defendant at close range was sufficient to support conviction even in the absence of Chudnow’s corroboration. See People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801.

Finally, defendant contends that his conviction and sentencing for both rape and unlawful restraint were improper. He argues that the offenses occurred as part of a single transaction involving a single victim; therefore, he asserts, his conviction for unlawful restraint must be vacated.

Defendant correctly states that “where there [is] a single act, there [can] be but one conviction of crime” (People v. Donaldson (1982), 91 Ill. 2d 164, 168, 435 N.E.2d 477, 478); however, “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions -with concurrent sentences can be entered” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273). The State argues that the crimes in question did not arise from the same physical act, positing that the crime of unlawful restraint was completed when defendant ran after the victim and grabbed her as she attempted to escape; whereas, the rape did not occur until after he dragged her into the park, threw her to the ground, and ripped her clothing.

This issue has arisen in three recent cases. In People v. Bachman (1981), 92 Ill. App. 3d 419, 414 N.E.2d 1369, the defendant grabbed the victim as she sat in a truck, choked her, and threatened to rape her. In an effort to delay him, the victim suggested that they leave the truck. The defendant then took the victim to a nearby corn crib and raped her. In People v. Coleman (1980), 83 Ill. App. 3d 429, 403 N.E.2d 1266, the defendant confronted the victim with a gun and ordered her to disrobe, but she refused. He then forced her into another room and raped her. Afterward, when the victim asked if she could leave, the defendant refused. Finally, in People v. McCann (1979), 76 Ill. App. 3d 184, 394 N.E.2d 1055, the victim was hitchhiking when the defendant picked her up, grabbed her by the hair, locked the car doors, and held a knife to her throat. They then drove a short distance before the defendant parked the car and raped her. In each ease, the court found that “there were not two acts committed which were sufficient to support convictions for both rape and unlawful restraint” (People v. Bachman (1981), 92 Ill. App. 3d 419, 421, 414 N.E.2d 1369, 1371) and vacated the defendant’s conviction for unlawful restraint.

The State maintains that these cases are distinguishable, arguing that, in each, “the unlawful restraint occurred virtually simultaneously with the rape”; whereas, here, “the criminal conduct by defendant which constituted the unlawful restraint was separate and distinct in both time and distance from that which constituted the rape.” However, we believe that the above cited cases are analogous to the present situation. Here, as in Bachman, Coleman, and McCann, the victim was first restrained, then taken to another location where she was raped. None of the cases indicate what length of time elapsed between the initial restraint and the subsequent rape, although in each it appears that, as here, the time period was relatively short. Therefore, we believe that the two crimes arose out of a single act, and defendant’s convictior for the lesser offense of unlawful restraint must be vacated. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

For the reasons stated, defendant’s conviction and sentence for rape are affirmed, and his conviction and sentence for unlawful restraint are vacated.

Affirmed in part; vacated in part.

WILSON, P.J, and LORENZ, J., concur.

      In the same trial, eodefendant Raleigh Harris, who has not appealed, was found not guilty of rape but guilty of unlawful restraint.

      Presently before our supreme court on leave to appeal. The division of this court which authored Payne has reaffirmed its position in People v. Gilliard (1983), 112 Ill. App. 3d 799, 445 N.E.2d 1293, and People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954. Two other divisions have rejected Payne (People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634, and People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066), as have courts in other appellate districts (People v. Osborn (1983), 111 Ill. App. 3d 1078, 444 N.E.2d 1158; People v. Baylor (1982), 111 Ill. App. 3d 286, 443 N.E.2d 1137).

      Prior to Payne, this court expressly rejected the reasoning of Wheeler and Soares. People v. Mims (1981), 103 Ill. App. 3d 673, 431 N.E.2d 1126; People v. Lavinder (1981), 102 Ill. App. 3d 662, 430 N.E.2d 243; People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330.

      In the case cited, the Pennsylvania Supreme Court also expressly rejects the reasoning of Wheeler and Soares, as have the New York Court of Appeals (People v. McCray (1982), 57 N.Y. 2d 542, 443 N.E.2d 915) and the District of Columbia Court of Appeals (Doepel v. United States (D.C. App. 1981), 434 A.2d 449). But see State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716.

      Although based on provisions of their State constitutions, they essentially concern the same right to an impartial jury as provided by the sixth amendment.