text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD ERNEST ARMSTRONG, Defendant-Appellant.
    Fourth District
    No. 4—82—0058
    Opinion filed January 6, 1983.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, and Ruth M. Braswell, law student, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Uxoricide.

A jury found Armstrong guilty of murdering his estranged wife and he was sentenced to 25 years.

We affirm.

Since the hub and axle of this appeal is whether the evidence is sufficient to prove Armstrong’s guilt beyond a reasonable doubt, a detailed recitation of that evidence is mandated.

FACTS

Late in the evening on a Saturday night in August, Champaign County Deputy Sheriff James Stewart responded to a call for assistance at the Green Acres Apartment Complex located on U.S. Route 45 between Thomasboro and Rantoul. Upon arriving at the complex, Stewart was met by Armstrong — an Air Force sergeant stationed at Chanute AFB — and Armstrong’s companion. Armstrong told Stewart he was worried about his estranged wife because he had not heard from her for over a day. Using the manager’s master key, Stewart entered the wife’s apartment and discovered her body in one of the bedrooms. The body was covered with a sheet to shoulder level and a nylon stocking was wrapped around her neck. The air conditioning in the apartment was off and there were no signs of forced entry. During Stewart’s investigation, the telephone rang, he answered it and spoke with a male caller, who identified himself as the wife’s boyfriend.

While Stewart was inside the apartment, Armstrong and his companion waited outside. Armstrong told his companion that he had been to his wife’s apartment on Thursday night to leave some flowers as a wedding anniversary present. His wife refused to allow him in the apartment so he left the flowers in front of her door and then went home. Armstrong then explained to his companion that around 9 a.m. the next morning — Friday morning — he was on his way to Thomasboro to meet with his insurance agent when he decided to stop at his wife’s apartment. Armstrong said that she answered the door and after asking her whether she found the flowers he left the night before, he then asked to use the bathroom. She allowed him to enter the apartment. Armstrong told his companion that he had the impression that someone else was in his wife’s bedroom because she kept the door to the bedroom closed and he thought he heard someone moving in the bed. Armstrong said that after he used the bathroom, he left his wife’s apartment and proceeded to Thomasboro to meet with his insurance agent.

Evidence concerning the cause and the time of the wife’s death was presented by the pathologist who performed the autopsy. He testified that when he first observed the body of the wife, she was clothed in a negligee and had dark brown pantyhose wrapped around her neck. The word “hooker” was written on her chest in red lipstick and a lipstick case was lodged in her rectum. He testified that the wife had died of acute asphyxia caused by the tightly tied pantyhose around her neck. He testified that the death most likely occurred 12 to 20 hours prior to the discovery of the body at 10:45 p.m. on Saturday.

The prosecution produced evidence to establish a pattern of circumstances suggesting that the wife was killed on Friday morning. Armstrong’s mother testified that the wife was to have picked up the couple’s two daughters at Armstrong’s residence by 11 a.m. Friday morning to take them to their swimming lessons. The wife never came for the girls and could not be reached by telephone at her apartment. A friend of the wife testified that the wife also promised to take the friend’s daughter to the 11 a.m. swimming lesson but the wife failed to show up. This was the first time the wife had ever failed to take her girls to their swimming lessons. The manager of the Timbers Nightclub — where the wife was employed as a cocktail waitress-testified that the wife was scheduled to work from 4 p.m. to midnight on Friday. She failed to appear for work and could not be contacted by telephone. The wife’s boyfriend testified that he tried to reach her by telephone at her apartment Friday afternoon and again Saturday, but received no answer.

One of Armstrong’s coworkers at the Chanute Air Force Base in Rantoul testified that on Friday morning she took a telephone call for Armstrong because he was in a meeting. The caller would not leave his name, identified himself as Armstrong’s insurance agent, and left a message for Armstrong to see him at the agent’s house as soon as possible. At a few minutes before 9, she delivered the message to Armstrong and he left the office at approximately 9 a.m. She testified that she saw Armstrong approximately an hour later when he returned to the office. He told her that he had gone to Thomasboro to see his insurance agent but that he had been unable to find the agent’s house. Evidence was introduced later that the insurance agent had neither called nor seen Armstrong on Friday morning.

The prosecution also presented testimony about the marital difficulties that existed between Armstrong and his wife. One of the wife’s coworkers testified that the wife planned to leave Illinois and move to New Jersey with her boyfriend after the divorce. The "wife had said that Armstrong made numerous attempts to reconcile with her but that she had no intention of going back to him. The wife’s attorney testified that the court had awarded temporary custody of the couple’s two daughters to the wife and had awarded temporary custody of the couple’s son to Armstrong. According to the attorney, a hearing was to have been held on Friday to determine whether the wife could leave Illinois with the children. The attorney further testified that Armstrong had been aware of the wife’s love affair with her boyfriend since March 1981 when Armstrong took the keys to his wife’s locker at the Timbers Nightclub and discovered some love letters written to his wife from her boyfriend. In those letters, the boyfriend had referred to Armstrong’s wife as a “hooker” — apparently as a term of endearment!

Walter Wolfe, an investigator with the Champaign County Sheriff’s Department, testified that he was at the wife’s apartment on the morning after her body was discovered, when Armstrong came to the apartment. After advising Armstrong that he was not under arrest and that he need not answer any questions, Wolfe told Armstrong that it was just a matter of time before the police could prove Armstrong killed his wife. Wolfe then advised Armstrong to tell him what happened. Armstrong asked what was in it for him if he did confess and then Armstrong said the outcome would be the same whether or not he confessed.

Armstrong, testifying in his own defense, stated that after he first learned that his wife wanted a divorce, the two of them sought the advice of an attorney but then decided to reconcile. The wife, however, changed her mind after her boyfriend came to town for a visit. Armstrong insisted that he never gave up hope that a reconciliation between himself and his wife was possible.

Armstrong testified that on Thursday night at approximately 11:30 p.m. he took some flowers to his wife’s apartment because it was their wedding anniversary. According to Armstrong, he knocked on her apartment door but she would not let him inside. He then left the flowers in front of her door and went home. The next day he went to work at the Air Force base and around 9 o’clock he received the message from his insurance agent. On the way to his agent’s house in Thomasboro, he stopped at his wife’s apartment to see if she had found the flowers he had left the night before. His wife answered the door and at approximately 9:10 a.m. she allowed him inside the apartment to use the bathroom. He recalled that she was wearing a negligee. He testified that after leaving his wife’s apartment, he went to Thomasboro, was unable to find his insurance agent’s house, and then returned to his job at approximately 10 a.m. Later that day, he tried to call his wife but received no answer. Saturday he took his children to the Illinois State Fair in Springfield. After returning home in the evening, he received a telephone call from his wife’s boyfriend who expressed concern that the wife had not been answering her telephone. Armstrong then called the Champaign County Sheriff’s Department and his wife’s body was discovered that night.

The jury found Armstrong guilty of murdering his wife.

LAW

He argues that the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt. The prosecution’s case against Armstrong is based primarily on circumstantial evidence. In order to support a conviction based on circumstantial evidence, that evidence must be inconsistent with any reasonable hypothesis of the defendant’s innocence. (People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651; People v. Holsapple (1975), 30 Ill. App. 3d 976, 333 N.E.2d 683.) The evidence must produce a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770.) If the evidence raises only the possibility that the defendant is the guilty party, he must be freed. People v. Williams (1977), 66 Ill. 2d 478, 363 N.E.2d 801.

Proof of guilt beyond a reasonable doubt, however, does not require circumstantial proof beyond any possibility of a doubt. (People v. Murdock (1971), 48 Ill. 2d 362, 270 N.E.2d 21.) Furthermore, every link in the chain of circumstances does not have to be proven beyond a reasonable doubt. {Williams.) It is only necessary that the evidence be of a conclusive nature and, as a whole, produce, with a reasonable and moral certainty, a conclusion that the accused committed the crime. (People v. Magnafichi (1956), 9 Ill. 2d 169, 137 N.E.2d 256.) A court of review will not set aside a verdict based on circumstantial evidence unless the proof is so unsatisfactory that a reasonable doubt of guilt does appear. People v. Lofton (1977), 69 Ill. 2d 67, 370 N.E.2d 517; People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.

REASONABLE DOUBT

The prosecution’s theory of the case is that Armstrong murdered his wife between 9 and 10 a.m. on Friday morning. Basically, there are three links in the chain of circumstantial evidence which the prosecution presented to the jury to support that theory. First, the prosecution argues that the wife knew her murderer. To support this argument, the prosecution presented evidence that the doors and windows to the wife’s apartment were all closed and locked. There were no signs of disturbance inside of the apartment. The manager of the apartment complex did not receive notice of any disturbance. The prosecution points out that the wife’s body was found clad only in a revealing negligee and that it is unlikely that she would invite a stranger into her house dressed in such a manner. The prosecution also argues that the victim had long, painted fingernails and that none of her nails were bent back, the polish was not cracked, and there were no foreign substances under her nails. After hearing the above testimony, the jury could have reasonably determined that the wife knew her assailant.

The second link in the prosecution’s chain of circumstantial evidence is that the victim was killed before 11 o’clock on Friday morning. The jury heard testimony that the wife failed to take her two daughters to their swimming lesson that morning and she could not be reached by phone. This was the only time the wife failed to take her girls to their swimming lesson. The wife’s boyfriend tried to call her Friday afternoon and did not get any answer. She failed to report to work Friday night and could not be reached by phone. All of this testimony does point to the fact that she was murdered Friday morning.

The only evidence that does not support the theory that the wife was murdered Friday morning is the pathologist’s estimate of her time of death. He estimated the time of her death to be 12 to 20 hours prior to the discovery of her body at 10:45 p.m. Saturday night. Using the pathologist’s estimate, the wife’s death would have had to occur between 2:45 a.m. and 10:45 a.m. Saturday morning. The prosecution’s theory has Armstrong murdering his wife between 9 and 10 a.m. Friday morning — 36 to 37 hours before the discovery of her body. The pathologist stated that he was 99% certain that the wife’s death could not have occurred 30 to 36 hours before the discovery of the body.

The pathologist, however, also testified that if the room was warmer than he estimated, the time of death could have been earlier. The victim was found in early August, lying in her bed, covered with a sheet, in an apartment where the windows were all closed and the air conditioner was turned off. Furthermore, the pathologist testified that after 24 to 30 hours have passed, all of the processes by which the time of death is established stop and there is no reliable way to measure the time of death until a few days have passed. Finally, the only times of death the pathologist was willing to exclude as being impossible were less than 12 hours and more than 72 hours. After hearing the above testimony, the jury could have weighed the conflicting evidence and reasonably concluded that the wife was murdered between 9 and 10 a.m. Friday.

The third link in the prosecution’s chain of circumstantial evidence is that Armstrong had a motive to murder his wife. Armstrong did not want a divorce. He made repeated attempts at reconciliation. He was upset that his wife was leaving him for another man. Armstrong knew that the word “hooker” was a term of tender affection his wife’s boyfriend used to refer to her. The word “hooker” was written on the wife’s chest in red lipstick. Armstrong also knew that the boyfriend had given the wife a gold wedding ring which she always wore. The ring was not on the wife’s body when she was found and it was not found anywhere in the apartment. Other jewelry and cash were found in the apartment. Finally, Armstrong’s explanation for his presence at his wife’s apartment that Friday morning is not supported by the evidence. His insurance agent testified that he neither called nor saw Armstrong on Friday. Furthermore, it is unlikely that Armstrong would have been unable to find the agent’s home because he had been there more than once before. After hearing the above testimony, the jury could have reasonably concluded that Armstrong had a motive to kill his wife and that he exercised that motive by murdering her, writing “hooker” on her chest, and removing her boyfriend’s ring from her hand. After reviewing all of the links in the prosecution’s chain of circumstantial evidence, we find that the jury correctly concluded that beyond a reasonable doubt Armstrong murdered his wife.

DEFENDANT’S STATEMENT

Armstrong’s second contention is that the trial court erred in admitting evidence of his statement to Detective Wolfe. Armstrong argues that the following testimony should not have been allowed:

“Q. Did you advise Sergeant Armstrong of anything else concerning your beliefs about the investigation?
A. [Detective Wolfe] Yes, sir. I advised him that it was just a matter of time before we could prove that he had killed his wife.
* * *
Q. Okay. After advising Sergeant Armstrong of your beliefs concerning the matter and suggesting that he tell you what had happened, what, if anything, did Sergeant Armstrong say?
A. He asked if he could ask me a hypothetical question.
Q. And what was your response?
A. Yes, that he could.
Q. And what, if anything, did Sergeant Armstrong say then?
A. He asked me what was in it for him if he confessed?
* * *
Q. Okay. Did Sergeant Armstrong say anything else after you told him that [no promises could be made]?
A. Yes, sir.
Q. What was that?
A. He stated whether he confessed or not the outcome would be the same.”

We find that it was not error to admit the above testimony. Illinois follows the tacit admission rule by which silence following an accusatory statement may be considered as an admission of the charge of the accusation. (People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280.) Not only may silence be considered as an admission, but an evasive or unresponsive reply to an incriminatory, accusatory statement may also be considered as an admission of the accusation’s truth. (People v. Wright (1965), 65 Ill. App. 2d 23, 212 N.E.2d 126.) A statement such as the present one — “what’s in it for me if I confess” — is exactly the type of evasive reply that is admissible under the rule.

Furthermore, regardless of whether Armstrong’s statement was a tacit admission, any possible error connected with its introduction into evidence has been waived. Although this statement was the subject of an unsuccessful motion in limine made by Armstrong, he failed to file a timely post-trial motion raising this issue. A motion in limine does not preserve evidentiary questions for review. (People v. Martinico (1981), 101 Ill. App. 3d 250, 427 N.E.2d 1340.) In the absence of a timely post-trial motion, no questions are before the reviewing court except whether the conviction is based upon evidence proving the defendant guilty beyond a reasonable doubt or whether plain error exists in the record. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040.) We have already determined that Armstrong’s guilt was proved beyond a reasonable doubt. Any error with regard to Detective Wolfe’s testimony certainly does not rise to the level of plain error. It was arguably admissible under the tacit admission rule and even if it was not admissible, the evidence in this case is not so closely balanced that its admission would have deprived Armstrong of a fair trial.

Affirmed.

TRAPP and LEWIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT JUSTICE LINDBERG,

license: Public Domain

text:
    THOMAS FINNAN et al., Plaintiff, v. WILLIAM JOHNSON, Defendant and Third-Party Plaintiff-Appellee.—(Mid-America Fire and Marine Insurance Company, Third-Party Defendant-Appellant.)
    Second District
    No. 82—287
    Opinion filed January 6, 1983.

      LINDBERG, J., specially concurring.
    Peter K. Wilson, Jr., and Irving J. Ochsenschlager, both of Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, for appellant.
    Charles G. Brown, of Boyle, Cordes, Witheft & Brown, and Roger W. Hayes, both of De Kalb, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Mid-America Fire and Marine Insurance Company (Mid-America) appeals from the trial court’s granting of summary judgment to third-party plaintiff, William C. Johnson (Johnson), on his complaint which alleged that Mid-America refused to defend a lawsuit against Johnson and denied liability coverage of Johnson in the accident which was the subject of the lawsuit against him. Mid-America contends on appeal that the decision of the trial court is against the clear and manifest weight of the evidence.

This cause visits the appellate court for the second time. In the first appeal, this court determined in a Rule 23 order (87 Ill. 2d R. 23) that the trial court had incorrectly entered summary judgment in favor of Johnson and against Mid-America. (Finnan v. Johnson (1981), 98 Ill. App. 3d 1203 (Rule 23 order).) This court remanded the cause for further proceedings to resolve a material issue of fact concerning the date that Johnson acquired ownership of a 1965 GMC truck. Upon remand, and after holding an evidentiary hearing, the trial court again entered judgment in favor of Johnson and against Mid-America after making the required factual determination. The court below concluded that Mid-America was required to defend Johnson because the GMC truck qualified for coverage under the newly acquired vehicle provisions of the insurance policy in question.

Mid-America issued an insurance policy to Johnson for his 1972 Chevrolet and his 1972 Capri. The policy extended for a six-month period; it became effective on February 1, 1977, and was to expire on August 3, 1977. However, the policy was renewable for successive six-month periods upon payment of a renewal premium. Johnson renewed the policy for an additional six months prior to the August 3, 1977, expiration date.

The insurance policy in question contained a provision (Condition 5) entitled “Automatic Insurance on Newly-Acquired Vehicle,” which stated in pertinent part:

“The insurance coverage of this policy with respect to the vehicle described in the Declarations shall also apply to an additional vehicle of which the Named Insured or spouse acquired ownership evidenced by certificate of title thereto. If the vehicle acquired is a motor vehicle as defined in Section I this paragraph shall apply if the newly acquired motor vehicle was acquired for the same use as a motor vehicle described in the Declarations and, provided further the Company insures all vehicles and automobiles owned by and titled to the Named Insured or spouse.
The terms of the two preceding paragraphs apply provided notice of delivery of such vehicle to the Named Insured or spouse is given to the Company within the policy period then current, or if delivery is less than thirty (30) days prior to the end of such period, then within thirty (30) days after delivery. This General Condition 5 shall not extend or affect the expiration provisions of this policy. The named Insured shall pay any additional premiums required for such insurance afforded from date of delivery of such vehicle.”

In July 1977, Johnson negotiated "with Mark List for the purchase of a 1965 three-quarter ton, GMC pickup truck. List signed over title to the truck to Johnson on July 25, 1977, and the transfer of title document was notarized at that time. On that same day, Johnson applied for a title and license plates; the Secretary of State’s office received the application on July 28, 1977, and issued the certificate of title to Johnson on August 10,1977.

Johnson testified at the hearing held upon remand that he gave List $400 for the truck on August 8, 1977, and that the parties had intended that the truck would become Johnson’s when he paid List for it. The truck, which was totally inoperative due to a “blown engine,” was located at a garage of a third party, who was a friend of both Johnson and List. In September 1977, Johnson began working on the vehicle; he replaced the ruined engine with a good one, did some repair work on the brakes, and painted the truck. The repairs were completed and the vehicle became drivable in November 1977, at which time Johnson removed it from the friend’s garage to his own home.

On December 17, 1977, Johnson was involved in an automobile accident while driving the truck. He gave notice of the accident to Mid-America on December 19, 1977. Subsequently, the plaintiffs, Thomas Finnan, driver and owner, Sandra Finnan and Grace Myers who were passengers in the other vehicle involved in the collision, brought lawsuits against Johnson. Thereafter, Johnson sued Mid-America and sought a declaration that the insurance policy which covered his Chevrolet and Capri also extended to his GMC truck. In response, Mid-America filed a motion for summary judgment in which it claimed that Johnson’s truck was acquired prior to July 28, 1977, that is, less than 30 days before the policy’s expiration date of August 3, 1977, and that no notice of this acquisition had been given to Mid-America within 30 days of acquisition as required by the insurance policy. The trial court denied Mid-America’s motion for summary judgment.

Johnson then filed a motion for summary judgment in which he claimed that he paid for and took constructive possession of the GMC truck on August 7, 1977, and that because this acquisition occurred within the policy period of August 3, 1977, to February 3, 1978, his notice to Mid-America on December 19, 1977, complied fully with the provisions of the insurance policy, which required that notice be given to Mid-America before the end of the policy period. As previously noted, the trial court granted Johnson’s motion for summary judgment, and this court reversed the entry of summary judgment and remanded the cause for further proceedings.

After conducting the evidentiary hearing upon remand, the trial court found, in a letter of opinion, that Johnson and the seller (List) had intended that the sale of the truck would not be final until the payment of the purchase price, which occurred on August 7, 1977, and, therefore, concluded that Johnson did not acquire ownership prior to August 3, 1977. The trial court also noted that the Secretary of State did not issue title to Johnson until August 10, 1977. In addition, the court found that the truck was in an inoperative condition when Johnson acquired it and was incapable of being used as a vehicle of transportation prior to November 1977.

The issue therefore presented is whether the trial court’s'finding that Johnson had not acquired ownership of the truck prior to August 3, 1977, and its conclusion that the truck was covered under the newly acquired vehicle provision of the insurance policy is against the manifest weight of the evidence or contrary to law.

Mid-America contends on appeal that the evidence adduced in this cause established that Johnson acquired ownership of the 1965 GMC truck for purposes of insurance coverage on July 25, 1977. If Johnson acquired ownership of that vehicle on July 25, 1977, then he could obtain insurance coverage for it under the newly acquired vehicle provision of his insurance policy only if he gave Mid-America notice of the acquisition within 30 days of delivery. Johnson sent the required notice on December 19, 1977. Mid-America claims that the transfer of title from List to Johnson and Johnson’s application for title and license plates, both of which occurred on July 25, 1977, indicate conclusively that, under the applicable provisions of the insurance policy, Johnson acquired ownership of the truck on the date of those occurrences.

It is axiomatic that the question when ownership has passed from one person to another for purposes of insurance coverage is a question of the intention of the parties. (Allstate Insurance Co. v. Elliott (1980), 89 Ill. App. 3d 140, 143.) Where conflicting interpretations may be drawn from the evidence regarding at what point a party acquired ownership of a motor vehicle, a court of review will not disturb the decision of the trial court unless it is patently wrong (See Country Mutual Insurance Co. v. Murray (1968), 97 Ill. App. 2d 61, 79), or contrary to the manifest weight of the evidence (see 89 Ill. App. 3d 140,143).

In support of its contention that Johnson acquired ownership of the automobile on July 25, 1977, when List signed over or transferred title to him, Mid-America relies heavily upon Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280. A significant factor present in Mullen is absent, however, from the present case. In Mullen, unlike the case at bar, the prospective buyer had also paid for the car at the time title was signed over to him. (21 Ill. App. 2d 280, 284.) Thus, Mullen, is factually distinguishable from the case now before the court and, therefore, should not, in our opinion, control the present situation.

Our review of other relevant cases indicates that while the transfer of title is a factor which the court considers in arriving at a determination regarding ownership or delivery, that fact alone is not dispositive or conclusive evidence that ownership has passed. See, e.g., Allstate Insurance Co. v. Elliott (1980), 89 Ill. App. 3d 140, 143; Country Mutual Insurance Co. v. Aetna Life & Casualty Insurance Co. (1979), 69 Ill. App. 3d 764, 767-69; State Farm Mutual Automobile Insurance Co. v. Lucas (1977), 50 Ill. App. 3d 894; Perry v. Saleda (1975), 34 Ill. App. 3d 729; Illinois National Insurance Co. v. Trainer (1971), 1 Ill. App. 3d 34, 37; Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280, 284.

In the present case, Johnson’s uncontroverted testimony indicated, and the trial court expressly found, that Johnson and List had intended that ownership of the truck would pass with the payment of the purchase price, an event which occurred on August 7, 1977. Unlike the cases cited in the paragraph immediately above, here Johnson did not acquire actual possesion of the vehicle prior to the date of payment; did not begin to repair the vehicle until after he paid the purchase price; and paid the purchase price after the transfer of title had taken place and after he had applied for a new, corrected title and license plates. Furthermore, there was no evidence presented at trial that the parties to the transaction contemplated that ownership would be transferred prior to the payment of the sales price. We point out that Johnson’s testimony that the buyer and seller intended that ownership would pass with the payment of the purchase price was not contradicted. See Allstate Insurance Co. v. Elliott (1980), 89 Ill. App. 3d 140, 143, a case which is factually distinguishable from the present one for the reasons that (1) there the controverted evidence was that the parties intended ownership to pass with transfer of possesion, and (2) there was an adverse admission regarding ownership.

Based on the totality of the facts of the present case, we cannot say that the trial court’s finding that Johnson did not acquire ownership before August 3, 1977, is against the manifest weight of the evidence. We believe there is ample evidence to support that finding as well as the concomitant conclusion that the 1965 GMC pickup truck was qualified for coverage under the newly acquired vehicle provision of the policy, because Johnson notified Mid-America of his ownership of the vehicle on December 19, 1977, a date which fell within the six-month period (August 3, 1977, to February 3, 1978) of the then-existing coverage.

It appears that the trial court based its decision, in part, on the fact that the truck was inoperative at the time it was purchased and remained in that condition until November 1977, by which time Johnson had installed a functioning engine in the vehicle. The trial court, citing Quick v. Michigan Millers Mutual Insurance Co. (1969), 112 Ill. App. 2d 314, 319, concluded that a nonoperating automobile, such as the GMC truck, was not considered an automobile under the terms of the newly acquired vehicle provision of the insurance policy.

In Quick v. Michigan Millers Mutual Insurance Co. (1969), 112 Ill. App. 2d 314, 319, the court reviewed the relevant case law from other jurisdictions. Based on that review, it devised the general rule that if the nonoperating condition were deemed temporary, then the vehicle would be considered an automobile for purposes of insurance coverage; on the other hand, if the inoperative nature of the car was viewed as permanent or of long duration with little possibility that the vehicle could be restored to a condition where it could be driven on the roads, then the vehicle would not be considered an automobile under the provisions of the insurance policy. In accordance with that decision, we determine that where, as here, the car is temporarily inoperative and is being repaired for use in the near future, it falls within the term “automobile” for purposes of the particular provision of the insurance policy. See Luke v. American Family Mutual Insurance Co. (8th Cir. 1973), 476 F.2d 1015, 1018, cert. denied (1973), 414 U.S. 856, 38 L. Ed. 2d 105, 94 S. Ct. 158, citing Williams v. Standard Accident Insurance Co. (1958), 158 Cal. App. 2d 506, 322 P.2d 1026.

In Illinois National Insurance Co. v. Trainer (1971), 1 Ill. App. 3d 34, 37-38, the court clearly rejected the theory that a car is not “acquired” until made operative. The court held that a car was acquired for purposes of a newly acquired vehicle insurance provision when the insured purchased it, received a bill of sale and assignment of title, and towed it to her home, even though it was a “wreck.” According to that decision, Johnson’s truck came within the newly acquired vehicle provision of his insurance policy prior to the time it was ultimately repaired and put into working order in November 1977.

We are of the opinion, however, that neither the rationale of Quick , as applied to the facts of the present case, nor the result of Trainer, changes the decision which the trial court reached in the present case, because the fact remains that Johnson did not “acquire ownership” of the truck until after August 3, 1977. Thus, even if the inoperative condition of the truck was not a proper factor for the trial court to rely upon here, the trial court’s implicit finding that Johnson’s notice of ownership to Mid-America was timely and its conclusion that the truck qualified for insurance coverage under the newly acquired vehicle provision were nonetheless correct and dispositive of the present case.

The trial court’s finding that Johnson had not acquired ownership of the truck prior to August 3, 1977, was not contrary to the manifest weight of the evidence and the judgment of the circuit court of De Kalb County is affirmed.

Judgment affirmed.

NASH, J., concurs.

JUSTICE LINDBERG,

specially concurring.

I agree with the majority’s disposition of this case. However, there is a language problem which should be noted. A reading of the policy language quoted in the majority opinion reveals that “delivery” is the essential occurrence for the purpose of deciding when notice must be given the insurer.

The majority here (as did the parties, the trial court and this court in the first appeal) focuses on the language of the first-quoted paragraph of the automatic insurance provision namely “acquisition of ownership.” I am quick to add however that under the facts of the instant case my observation is a distinction without a difference as I will indicate both “acquisition of ownership” and “delivery” occurred after August 3, 1977, and before February 3, 1978. Therefore the December 19, 1977, notice of delivery was timely under the second paragraph of the automatic insurance provision.

Contrary to the view of the majority I would rely on the authority of this court’s decision in Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280, 157 N.E.2d 679, which is not factually distinguishable in its significant parts. I conclude that rather than favoring third-party defendant insurer, the case compels an affirmance of the instant case.

This court held in Mullen that the crucial determination is whether or not there has been a “delivery” within the meaning of the policy and that delivery is an essential prerequisite to coverage. The court observed that there need not be a manual delivery of the article. The court concluded that the payment of the purchase price and the fee for transfer of the license and certificate of title was sufficient evidence of delivery to implement the automatic insurance provision. Mullen v. Farm Bureau (1959), 21 Ill. App. 2d 280, 285-89, 157 N.E.2d 679, 682-84. See generally 7 Am. Jur. 2d Automobile Insurance sec. 233 (1980).

Since in the instant case the receipt of title evidencing acquisition of ownership and payment of the purchase price occurred after August 3, 1977, “delivery,” as defined in Mullen, occurred after August 3, 1977. Under these facts plaintiff had until February 3, 1978, to give notice to the insurer of the delivery of the vehicle. Notice given December 19, 1977, two days after the accident, was timely and the insurer is liable under the terms of its policy.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BERRY, Defendant-Appellant.
    First District (3rd Division)
    No. 80—829
    Opinion filed December 22, 1982.

      Ralph Ruebner and Nancy Abrahams, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Warren A. Zimmerman, and Edward M. Rubin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, James Berry, was found guilty of murder and armed violence in a jury trial and was sentenced to a term of 30 years. On appeal he contends that (1) because self-defense was raised, the instructions should have informed the jury that the State was required to prove beyond a reasonable doubt that his actions were not justified and (2) he was denied effective assistance of counsel. We reverse and remand.

On September 13, 1978, at approximately 9:30 p.m., defendant came to the apartment of Gertrude Hollie at 4429 S. Federal in Chicago, Illinois. He stayed until about 10:30 p.m. when his friend came to Gertrude’s door, and defendant went outside to speak to him. While defendant was outside, Richard Spaulding, who lived with Gertrude, arrived at Gertrude’s apartment. Gertrude’s brother, Billy Square Hollie, was also at the apartment.

According to Gertrude and her brother, defendant returned to the apartment between 10:30 and 11 p.m. At that time, Spaulding said that defendant had sold him a bad bag of “reefer.” Spaulding and defendant began to shout at each other. Spaulding moved to grab defendant when Gertrude stepped between the two men and shoved Spaulding towards the kitchen. Billy testified that defendant took out a gun and shot Spaulding. Spaulding did not have anything in his hand at the time. Billy then jumped up, tried to force defendant to drop the gun and pushed defendant out the door. Gertrude stated that she heard a gunshot and ran into a closet. She then turned around to see Spaulding lying on the floor with blood on his shirt. She also saw defendant and Billy struggling over the gun defendant had in his hand.

Shortly thereafter, defendant was arrested. At the time of his arrest, defendant told a police officer, “I did it. I shot him. Let’s go to the station.”

Defendant testified that Spaulding had ordered him to enter the apartment at gunpoint. According to defendant, Spaulding said that he was going to shoot him because he had sold him some bad marijuana. Gertrude jumped between defendant and Spaulding and started pushing Spaulding. Spaulding broke loose and turned around. As Spaulding turned around, defendant pulled out a gun, cocked it and aimed it. Spaulding was aiming his gun at defendant. At this point, Billy grabbed defendant’s hand, and the gun fired. In an earlier statement, defendant said that he fired a shot at Spaulding before Billy struggled with him.

Defendant argues that reversible error occurred because the instructions did not inform the jury that the State was required to prove beyond a reasonable doubt that defendant’s actions were not justified. Without objection by defendant, the jury was given Illinois Pattern Jury Instruction, Criminal, No. 7.02 (1968) (hereinafter cited as IPI Criminal), the issue instruction for a murder case when self-defense is not an issue, and IPI Criminal No. 24.06, the instruction defining when the use of force is justified in defense of a person. The jury also was given IPI Criminal No. 2.03, which states that a defendant is not required to prove his innocence and that the State has the burden of proving defendant guilty beyond a reasonable doubt. Defendant contends that the trial court should have given IPI Criminal No. 25.05 instead of No. 7.02 because No. 25.05 includes the defendant’s lack of justification as an additional element to be proved. Defendant did not tender IPI Criminal No. 25.05.

Once self-defense is properly raised, the State has the burden of proving beyond a reasonable doubt that the defendant was not justified in using the force which he used. (People v. Pernell (1979), 72 Ill. App. 3d 664, 666, 391 N.E.2d 85, 86; People v. Graves (1978), 61 Ill. App. 3d. 732, 742, 378 N.E.2d 293, 301.) The State maintains, however, that in the present case, defendant waived any error in this regard by failing to object to the instructions given, by failing to tender the proper instruction and by failing to include the point in his post-trial motion. We disagree.

While the appellate court has recognized that IPI Criminal No. 25.05 should be given so that the jury is informed of the State’s burden of proof on the issue of self-defense (see People v. Churchill (1980), 80 Ill. App. 3d 405, 410, 399 N.E.2d 985, 988-89; People v. Wright (1975), 32 Ill. App. 3d 736, 744, 336 N.E.2d 18, 25), the court has been divided on the question of whether the failure to give IPI Criminal No. 25.05 constitutes plain error under Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)) regardless of whether defendant tendered the instruction (see People v. Huckstead (1982), 91 Ill. 2d 536, 544, 440 N.E.2d 1248, 1251-52, and cases cited therein). The supreme court addressed this question for the first time in the recent case of People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248.

In Huckstead, the court stated that the plain error exception to the waiver rule is restricted to the correction of grave errors or to situations where the case is close factually and fundamental fairness requires that the jury be properly instructed. (91 Ill. 2d 536, 544, 440 N.E.2d 1248, 1252.) In deciding that the failure to give IPI Criminal No. 25.05 did not constitute plain error under the circumstances before it, the court relied upon the presence of the following factors: (1) IPI Criminal No. 24.06 was given, and it informed the jury that the defendant was justified in using deadly force if he reasonably believed that force was necessary to prevent imminent death or great bodily harm to himself; (2) IPI Criminal No. 2.03 was given, and it informed the jury that the defendant did not have to prove his innocence and that the burden of proof remained with the State throughout the trial; (3) during closing argument, defense counsel repeatedly and specifically emphasized that the State had the burden of proving defendant was not justified in the force he used; and (4) during rebuttal argument, the State acknowledged that it had to show that the shooting was not justified. The court concluded that “in this case, the instructions, in combination with the closing arguments by counsel for both sides, apprised the jury that the State had the burden of proving that defendant was not justified in the force he used. Consequently, the failure of the trial court to give IPI Criminal No. 25.05 did not constitute ‘grave error.’ ” (People v. Huckstead (1982), 91 Ill. 2d 536, 545, 440 N.E.2d 1248, 1252.) The court further decided that the evidence was not factually close and therefore the case did not fall within the narrow constraints of the “factually close” standard of plain error. 91 Ill. 2d 536, 546-47, 440 N.E.2d 1248,1252-53.

We do not believe that the decision in Huckstead means that failure to give IPI Criminal No. 25.05 when self-defense is an issue can never constitute plain error. Rather, Huckstead requires that the circumstances of each case be carefully examined to determine (1) whether the instructions, together with the closing arguments by counsel, adequately apprised the jury of the State’s burden of proof regarding defendant’s claim of self-defense so that there was no grave error, and (2) whether the evidence of defendant’s guilt was closely balanced. (See People v. Huckstead (1982), 91 Ill. 2d 536, 545, 440 N.E.2d 1248, 1252, discussing United States v. Jackson (7th Cir. 1978), 569 F.2d 1003. Applying these standards to the case before us, we conclude that the failure to give IPI Criminal No. 25.05 was plain error. See People v. Wells. (1982), 110 Ill. App. 3d 700, 442 N.E.2d 1341.

Turning first to the grave-error prong of the plain error rule, the record reflects that the jury was given IPI Criminal No. 24.06 and IPI Criminal No. 2.03, as was the jury in Huckstead. However, unlike Huckstead, the defense counsel did not “repeatedly and specifically [emphasize]” that the State had the burden of proving that defendant was not justified in his use of force. Here, defense counsel made only the following brief statement regarding the burden of proof: “[T]he State has the burden of proof against any person who is charged with any crime and against Mr. James Berry, of proving him guilty of each and every allegation that is charged, beyond a reasonable doubt.” Clearly, this general statement regarding burden of proof, which did not even refer to the issue of justification, did not inform the jury of the State’s burden of proof regarding that issue. As for the State’s rebuttal argument, the prosecutor merely acknowledged that the State had the burden of proof. He did not mention that this burden of proof extended to the issue of justification.

We believe that the distinction between the closing arguments in Huckstead and those presented here is critical. In the present case, the instructions, standing alone, were insufficient to apprise the jury of the State’s burden of proof regarding justification, and the closing arguments did not fill this gap in the jury’s knowledge. (See United States v. Jackson (7th Cir. 1978), 569 F.2d 1003, 1011 (Tone, J., dissenting).) While IPI Criminal No. 24.06 defined the use of force, it did not tell the jury that the State had the burden of proving that defendant was not justified in using the force which he used. (People v. Pernell (1979), 72 Ill. App. 3d 664, 668, 391 N.E.2d 85, 88.) It is only IPI Criminal No. 25.05 which tells the jury “that lack of self-defense must be proved beyond a reasonable doubt — something that is not readily apparent to many jurors and [that is] potentially vital to defendants *** whose sole defense is self-defense.” (People v. Huck-stead (1982), 91 Ill. 2d 536, 548-49, 440 N.E.2d 1248, 1254 (Simon, J., dissenting).) Even when the jury instructions given here are viewed in conjunction with the closing arguments of both counsel, it is clear that the jury was not adequately instructed on the issue of self-defense. We therefore conclude that under the circumstances of this case, the failure to give the jury IPI Criminal No. 25.05 constituted grave error which was not waived by defendant. In this case, defendant’s failure to object to the instructions given, to tender the particular instruction, or to include the point in his post-trial motion “is not as important with reference to fundamental fairness as the quintessential requirement that the jury be properly instructed when one stands to lose his liberty.” People v. Pernell (1979), 72 Ill. App. 3d 664, 666, 391 N.E.2d 85, 87, quoted in People v. Martinez (1979), 76 Ill. App. 3d 280, 283, 395 N.E.2d 86, 89.

In addition, we believe that this case also falls within the narrow constraints of the “factually close” prong of the plain error test. The evidence shows that defendant had sold Spaulding or Gertrude a “nickel bag” of marijuana two weeks prior to the shooting. On the evening of the occurrence, defendant spent some time socializing at Spaulding and Gertrude’s apartment while Spaulding was not present. Defendant left to speak with a friend. Defendant testified that Spaulding walked by, and they spoke and shook hands. Shortly thereafter, as defendant was walking to his girlfriend’s apartment, he was called over to Spaulding’s apartment. When he reached the door, he saw that Spaulding had a gun in his hand, and he was forced into the apartment. According to defendant, Spaulding threatened to kill him because he had sold Spaulding some bad marijuana. At this time, Gertrude jumped between the two men and started pushing Spaulding back, telling him not to shoot. Spaulding got loose, turned toward defendant, and pointed a gun at him. Defendant stated that he told Spaulding to put the gun down, and he began backing away. Billy then came over to defendant, who had drawn his pistol. Defendant testified that his gun went off when Billy grabbed his hand, although in an earlier statement defendant had stated that he fired the gun before he struggled with Billy.

The only other testimony as to the events surrounding the shooting came from Gertrude, who lived with Spaulding, and Billy, her brother. Gertrude testified that Spaulding and defendant argued about the marijuana, and Spaulding grabbed at defendant. She stepped between the two men and started pushing Spaulding back. Gertrude stated that the only thing she saw in defendant’s hands was a bottle of beer. Spaulding did not have anything in his hands. As she was pushing Spaulding back, she heard a shot, and she ran into the closet. Billy testified that as his sister was pushing Spaulding, he saw defendant bring out a gun, aim it at Spaulding, and shoot. According to Billy, he then struggled with defendant and pushed him out the door.

Plainly, this case is factually close on the issue of whether the shooting occurred as the result of self-defense. Unlike Huckstead, there is no indication that defendant ever voiced any intent to kill Spaulding. (See People v. Huckstead (1982), 91 Ill. 2d 536, 546-47, 440 N.E.2d 1248, 1253.) Moreover, it is undisputed that it was Spaulding who was angry with defendant because he was dissatisified with the marijuana purchased from defendant. It is also undisputed that Spaulding was the initial aggressor. The only occurrence witnesses to testify other than defendant were Spaulding’s girlfriend, who did not see the actual shooting, and her brother. Since the evidence regarding self-defense was so closely balanced, it was imperative that the jury be properly instructed on this issue. Under these circumstances, the failure to give the jury IPI Criminal No. 25.05 constituted plain error. We conclude that this error was sufficiently serious to “severely threaten the fundamental fairness of the defendant’s trial.” People v. Roberts (1979), 75 Ill. 2d 1, 15, 387 N.E.2d 331, 337-38; See People v. Huckstead (1982), 91 Ill. 2d 536, 547, 440 N.E.2d 1248, 1253.

We also conclude that there is merit to defendant’s argument that his representation was incompetent as reflected in the performance of his trial attorney and that this incompetent representation produced substantial prejudice to defendant without which the result of the trial would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203, 211.) In addition to the fact that trial counsel did not tender IPI Criminal No. 25.05, the record shows that trial counsel did not present important testimony to the jury and that he did not object when the State introduced improper testimony which was detrimental to defendant’s case. Moreover, comments made by the trial judge demonstrate that he was troubled by the quality of the representation afforded defendant. Under the totality of the circumstances, it is clear that defendant did not receive a fair trial.

Accordingly, the judgment is reversed, and the case is remanded for a new trial.

Reversed and remanded.

WHITE, RJ., and McNAMARA, J., concur.

      Supreme Court Rule 451(c) provides: “[S]ubstantial defects [in instructions in criminal cases] are not waived by failure to make timely objections thereto if the interests of justice require. ’ ’


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SMITH, a/k/a Donald Wells, Defendant-Appellant.
    First District (1st Division)
    No. 80—1171
    Opinion filed December 20, 1982.

      Steven Clark, of State Appellate Defender’s Office, and William R. Hogan, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Stephen R. Botti, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Donald Smith, was charged with attempted murder, armed violence, armed robbery, aggravated battery, and unlawful restraint in connection with the robbery of a food store. After a jury trial defendant was found guilty on all counts and sentenced to consecutive sentences of 60 years for armed robbery, 30 years for attempted murder and six years for unlawful restraint. Defendant appeals.

Three briefs were filed on behalf of defendant: a pro se brief, a brief by appointed counsel, and a brief by the State Appellate Defender. The issues raised in the briefs may be summarized as follows: (1) whether the trial court abused its discretion in denying defendant’s request for appointed counsel other than the public defender when the court’s refusal to appoint other counsel led to the defendant’s decision to defend his case pro se; (2) whether the assignment of defendant’s case to a special ex-offender court carried an unacceptable risk of prejudice; (3) whether the judgments on the offenses of aggravated battery and armed violence, on which no sentence was entered, may be upheld when they arose for the same acts on which the judgments for attempted murder and unlawful restraint rest; and (4) whether the trial court abused its discretion in sentencing a man 62 years of age to consecutive sentences totaling 96 years.

On December 3, 1979, defendant was arraigned and a public defender was appointed to defend him. On March 19, 1980, defendant’s case was called. The assistant public defender informed the court that he and the State’s Attorney were ready to proceed to trial. The public defender also informed the court that on the last court date and again today defendant had said that he wanted to retain private counsel and was not ready to proceed to trial. Defendant addressed the court. He requested the court to appoint counsel other than the public defender’s office to represent him because he did not think the public defender was doing enough to defend his case. The court denied defendant’s motion.

After the jury was selected, defendant again expressed his dissatisfaction with defense counsel. In chambers, the court asked defendant why he wanted private counsel appointed. Defendant replied, “They told me this morning that everything was cut and dried, so I don’t need them, let me do it myself then.” Defendant also said that the assistant public defender had told him that he would probably get a sentence of 60 years and that he (the assistant public defender) hopes defendant would get 100 years. Defendant told the court that he did not want to represent himself but since the court would not grant his motion to appoint other counsel, he would rather represent himself than have the public defenders try his case because he did not believe they would do their best to defend him. The assistant public defenders then outlined for the court what actions they had taken to prepare defendant’s case. The assistant public defenders told the court that they had filed oral and written motions for discovery; that they reviewed the police reports and the charges with defendant; and that they discussed with him whether any witnesses could be called on his behalf. Defense counsel stated that when they were explaining the case to defendant, defendant had not indicated that there was any substance of any defense that would contradict or tend to contradict the testimony that the State was going to produce at trial. Defense counsel told the court that they intended to hold the State to its burden of proof. The court found that the public defender was adequately representing defendant and that defendant’s complaints were without merit.

After additional colloquy between the court and defendant, the court explained in detail to defendant the consequences of self-representation, the charges against defendant and the penalties to which he was subject. Defendant chose to represent himself rather than have the assistant public defenders present his defense. The court instructed the assistant public defenders to stay in the courtroom behind the barrier to advise defendant should he request any assistance.

At trial, James Smith, the manager of the Jewel Food Store at 2303 North Clark Street in Chicago, testified that at approximately 2:30 p.m. on November 17, 1979, defendant, armed with a gun, approached the service desk of the store and demanded money. He was given money from the store’s safe. As defendant left the store, the manager and a stock boy, Gordon Michaelson, followed about four feet behind him. Smith testified that as defendant fled he turned and shot Michaelson in the abdomen.

Roy Burman testified that he was standing next to his car in the Jewel parking lot when defendant approached him. Defendant ordered Burman to drive him to the nearest bus stop and warned Burman that he had shot someone and would not hesitate to shoot Burman. Defendant crouched on the floor of the passenger side of the car facing Burman.

Officer Pecak of the Chicago Police Department testified that he arrived at the scene immediately after the robbery and was given a description of Burman’s car. He caught up with Burman’s vehicle at an intersection, but when he saw defendant on the floor of the car with a gun in his hand, he backed away and radioed for assistance. Within a few blocks Burman’s car was surrounded by police vehicles and defendant was arrested. The stolen money was found in defendant’s possession and defendant’s weapon was found on the floor of Burman’s car. The spent bullet recovered at the scene of the shooting was determined to have been fired from defendant’s gun.

Defendant declined to make an opening statement or to cross-examine any witnesses for the People. Frank Wilson appeared on behalf of the defendant. Wilson testified that in his opinion defendant was an alcoholic. Defendant’s second witness, Marilyn Eads, testified that she did not consider defendant an alcoholic. Eads testified that she had known defendant since 1960 and that they used to be close friends. Eads also testified that defendant was not addicted to any narcotics and that she had never seen defendant take any narcotics. Eads further testified that she did not see defendant on the date in question and did not drink with him on that date.

Defendant informed the court that he would like to call a psychiatrist on his behalf in order to testify that a person could commit a crime under the influence of narcotics and alcohol and yet have no memory of such an occurrence. The court explained to defendant that there must be some evidence of intoxication in the record before expert testimony would be allowed. The court ruled that there was no such evidence in the record and, therefore, no basis for the requested expert testimony.

After final argument by the State, the court instructed the jury. The jury returned verdicts of guilty on all counts, and the trial court entered judgments on the verdicts.

Defendant first contends that the trial court’s refusal to appoint counsel other than the public defender was an abuse of discretion. Defendant argues that the court gave defendant a “Hobson’s choice” in compelling him to choose between representing himself and in being represented by the public defenders. Defendant asserts that he was forced to go to trial without counsel. Defendant argues that his waiver of counsel was not knowing and intelligent and, therefore, cannot stand.

An indigent defendant is entitled to counsel other than the public defender only upon a showing of good cause. (People v. Drew (1976), 36 Ill. App. 3d 807, 345 N.E.2d 45.) Absent such a showing the trial court has discretion to deny defendant’s request. (Drew.) A defendant’s request for appointed counsel other than the public defender is seldom granted without a showing of potentially great harm to defendant’s legitimate interest. (People v. Slaughter (1980), 84 Ill. App. 3d 88, 404 N.E.2d 1058.) Moreover, an indigent defendant does not have the right to choose his court-appointed counsel. People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14; see People v. Gray (1965), 33 Ill. 2d 349, 211 N.E.2d 369, cert. denied (1966), 384 U.S. 718, 16 L. Ed. 2d 881, 86 S. Ct. 1899.

Defendant’s statements to the trial court reveal that his dissatisfaction with the public defenders developed because defendant was displeased with the public defender’s opinion as to the likely outcome of defendant’s case. The trial court reviewed the action taken by the public defenders to prepare defendant’s case and found that defendant’s complaint that they were not doing enough for him was groundless. Defendant did not show good cause entitling him to appointment of counsel other than the public defenders already assigned to his case. The trial court fully appraised defendant of his right to counsel, the consequences arising from self-representation, the nature of the charges against him and the penalties to which he may be subjected in compliance with Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)). The court then determined that defendant was capable of representing himself. See People v. Baker (1982), 92 Ill. 2d 85, 440 N.E.2d 856.

We have carefully reviewed the facts of this case and find that defendant’s decision to represent himself was knowingly and intelligently made. The trial court did not abuse its discretion in refusing to appoint counsel other than the public defender and in allowing defendant to proceed to defend his case pro se.

Defendant also argues that he received an unfair trial because he was unable to cross-examine the witnesses against him. Defendant has the right to waive counsel and conduct his own defense. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) “A defendant who knowingly and voluntarily waives his right to counsel cannot be heard to complain that his pro se representation prevented him from receiving effective representation of counsel or a fair trial.” People v. Smith (1975), 33 Ill. App. 3d 725, 727-28, 338 N.E.2d 207, 208; People v. Richardson (1959), 17 Ill. 2d 253, 260, 161 N.E.2d 268, 272.

Defendant’s second contention is that the assignment of his case to a special ex-offender court carried an unacceptable risk of prejudice. In People v. Jones (1980), 88 Ill. App. 3d 629, 410 N.E.2d 1122, cert. denied (1981), 452 U.S. 964, 69 L. Ed. 2d 976, 101 S. Ct. 3116, the court found a similar allegation of prejudice resulting from the assignment of a case to a special ex-offender court to be without merit. The court stated that “[s]o long as the expedience and efficiency sought to be achieved are not accomplished at the expense of undue prejudice to defendants,” the establishment of special courts for recidivist cases is proper. (People v. Jones (1980), 88 Ill. App. 3d 629, 633, 410 N.E.2d 1122, 1125.) There is no evidence in the record that defendant suffered any prejudice as a result of the assignment of his case to a special ex-offender court.

Defendant next argues that this court should vacate the convictions entered against him for armed violence and aggravated battery on which no sentence was imposed. The jury returned guilty verdicts on all counts: attempted murder, armed robbery, unlawful restraint, four counts of aggravated battery arising out of the shooting of Michaelson, and one count of armed violence predicated on the shooting of Michaelson and one count of armed violence predicated on the unlawful restraint of Burman.

The court entered judgment on the verdicts but only sentenced defendant on attempted murder, armed robbery, and unlawful restraint. No sentence was entered on the armed violence and aggravated battery counts. Defendant argues that based upon People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, this court should vacate the convictions on which no sentence was entered since the convictions for armed violence and aggravated battery arose from the same physical acts as the convictions for attempted murder and unlawful restraint on which a sentence was imposed. (Lilly; People v. Pierce (1977), 50 Ill. App. 3d 525, 365 N.E.2d 988, cert. denied (1978), 434 U.S. 1077, 55 L. Ed. 2d 784, 98 S. Ct. 1270.) A defendant suffers prejudice when more than one offense is carved from the same physical act. People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

The State argues that a conviction without a sentence is a nonfinal judgment from which defendant cannot appeal. The supreme court, however, resolved this issue in Lilly. When a case is properly before the reviewing court on appeal from other convictions defendant received, the court has authority under Supreme Court Rule 366 (73 Ill. 2d R. 366) to . vacate the incomplete judgment entered on the lesser included offense. Lilly.

The State concedes that if we reach the issue of the incomplete judgments, the convictions on four counts of aggravated battery and one count of armed violence predicated upon the shooting of Michaelson should be vacated because they did arise from the same physical act as the conviction for attempted murder. Additionally, the State argues that the trial court incorrectly sentenced defendant on the unlawful restraint conviction rather than on the conviction for armed violence predicated upon unlawful restraint. Unlawful restraint is a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 3(b)), while armed violence committed with a Category 1 weapon is a Class X felony (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 3(a)). The State urges this court to vacate the conviction and sentence entered on the unlawful restraint conviction and remand the conviction of armed violence predicated upon unlawful restraint or sentencing.

Multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis of both charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; see People v. Mormon (1982), 92 Ill. 2d 268; People v. Simmons (1982), 93 Ill. 2d 94.) In such a situation, judgment should have been entered and sentence imposed only on the more serious offense. (Donaldson.) Under the facts of this case, defendant should have been sentenced on the conviction for armed violence based upon unlawful restraint. Donaldson.

The issue raised by the State was recently considered in People v. Felton (1982), 108 Ill. App. 3d 763, 439 N.E.2d 1107. There the court concluded that it was “not aware of any authority permitting this court to vacate the lesser offenses in order to remand for sentencing on the greater.” (108 Ill. App. 3d 763, 770, 439 N.E.2d 1107, 1112.) We note that the State has not cited any authority for the position it urges, and we therefore vacate the convictions on four counts of aggravated battery and two counts of armed violence on which no sentence was entered. People v. Lilly (1974), 56 Ill. 2d 493.

The last issue raised by defendant is whether the trial court abused its discretion in sentencing a man 62 years of age to consecutive sentences totaling 96 years. The imposition of a sentence is a matter of judicial discretion and absent an abuse of that discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.) The record reveals that the trial court considered appropriate factors in sentencing defendant, including his rehabilitative potential, the circumstances surrounding the commission of the crime and defendant’s long criminal record which indicates consistent criminal activity since 1935. The trial judge’s decision in sentencing defendant to 96 years is entitled to great deference and weight. {Perruquet.) We cannot say that the sentence imposed by the trial court constituted an abuse of discretion.

Accordingly, the judgment entered by the circuit court of Cook County on four counts of aggravated battery and on two counts of armed violence is vacated and, in all other respects, its judgment and sentences are affirmed.

Affirmed in part, vacated in part.

GOLDBERG and O’CONNOR, JJ., concur.


author: JUSTICE PERLIN

text:
    EMIL PETRIK, Plaintiff-Appellant, v. MONARCH PRINTING CORPORA-TION, Defendant-Appellee.
    First District (2nd Division)
    No. 81—2732
    Opinion filed December 21, 1982.
    Gregory A. Stayart, of Sullivan & Associates, Ltd., of Chicago, for appellant.
    Martha L. Ashenhurst and William M. McErlean, both of Chicago (Boodell, Sears, Sugrue, Giambalvo & Crowley, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Emil Petrik, filed a three-count complaint against defendant, Monarch Printing Corporation (Monarch), his former employer, alleging inter alia that he had been discharged from his position as vice-president in retaliation for his reporting suspicions of embezzlement of corporate funds to Monarch’s president and chief operating officer, Herbert C. Hansen. The trial court dismissed Petrik’s retaliatory discharge claim, which was set forth in counts II and III, for failure to state a cause of action. Count I, which sought damages for defendant’s alleged breach of an oral contract, is still pending in the trial court and is not involved in this appeal. The sole issue presented for our review is whether Petrik’s complaint set forth sufficient facts to state a cause of action for retaliatory discharge. For the reasons which follow, we conclude that it does, reverse the trial court and remand the cause for further proceedings.

Petrik alleged in his complaint that he was hired by Monarch in 1975 and that from 1975 until 1978 he was employed as the controller of the corporation. In 1978 Petrik was promoted to vice-president-finance in which position he earned a salary of $28,188 per year and was responsible for certain accounting and financing duties for Monarch “such as cost accounting, forecasting, pricing, budgeting, inventory control and preparation and review of financial statements.”

In September 1978 Petrik, in the course of his duties as vice-president-finance, discovered a $130,000 “discrepancy” in Monarch’s financial books and records. Petrik immediately informed Herbert C. Hansen, Monarch’s president and chief operating officer, of the discrepancy and Hansen “orally requested” Petrik to investigate the source of the missing funds and hired an assistant to aid Petrik in this assignment. In pursuing his investigation, Petrik, in October 1978, discovered what he characterized as “misconduct” by Hansen and “certain unknown persons” in their purchase of Monarch’s capital stock from John Selig, Monarch’s chairman of the board. The specific allegations of misconduct set forth in Petrik’s complaint are as follows:

“(a) That the present management of defendant had agreed to purchase 51% of the capital stock of defendant from John Selig, Chairman of the Board of defendant, for a purchase price of about $640,000;
(b) That 25% of the purchase price was to be paid by a loan obtained by the present management of defendant from LaSalle National Bank, Chicago, Illinois, with the remaining purchase price to be paid in 20 bi-monthly installments at an interest rate of 6% per year;
(c) That the purchase price was to be totally paid out of personal, not corporate funds;
(d) That some of the loan payments to LaSalle National Bank and some of the payments to John Selig had in fact been made from corporate funds of defendant, in direct violation of the purchase agreement; and
(e) That the findings of plaintiff suggested embezzlement of corporate funds of defendant.”

Petrik asserts in his complaint that he immediately notified Hansen of his findings and warned him that “officers and/or employees” of Monarch “might be involved in violation of the criminal laws of Illinois.” Hansen replied that the contract for the purchase of Monarch’s capital stock had been “changed” in June 1978 and he told Petrik “not to worry about anything.” Between November 1978 and April 1979 Petrik repeatedly but unsuccessfully attempted to obtain a copy of the purported revised contract.

According to his complaint, on April 6, 1979, Petrik was discharged by Richard Volpe, Monarch’s vice-president and treasurer, in direct retaliation for his efforts to bring to Monarch’s attention the evidence he had uncovered of possible embezzlement of corporate funds and to require Monarch to operate in compliance with the criminal laws of Illinois. In count II of his complaint, Petrik sought compensatory damages for his discharge; in count III, he asked for punitive damages, alleging that Monarch’s conduct was malicious.

On July 13, 1981, Monarch moved to dismiss Petrik’s complaint, which motion was granted with leave to amend on September 30, 1981. The trial court reasoned that there are two elements to a claim for retaliatory discharge: an employment-at-will status and acts that would clearly violate public policy. The trial court ruled that since Petrik did not allege that he had disclosed his suspicions of wrongdoing to the public authorities, his complaint merely alleged an internal corporate dispute which did not involve violations of public policy. The complaint was dismissed and Petrik was given leave to amend so that, if possible, he could add an allegation that he had reported his suspicions to the public authorities. Subsequently, the parties stipulated that Petrik did not report his discovery of alleged wrongdoing to the police or to any other law enforcement officials; that no criminal or quasi-criminal investigation was ever conducted as a result of any of the alleged wrongdoings; and that, to the best of his knowledge, Petrik was never a party to a criminal or quasi-criminal investigation of the matters alleged. Following the stipulation, Petrik’s complaint was dismissed with prejudice.

On appeal, the ultimate issue to be decided is whether Petrik has alleged facts sufficient to set forth a claim for retaliatory discharge. As the trial court correctly noted, there are two elements to a claim for retaliatory discharge: at-will employment status and acts that violate public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) There is no dispute that Petrik was an at-will employee. Thus the issue to be resolved is whether Petrik alleged facts which set forth acts by Monarch which were in violation of public policy.

Because the judgment below was entered upon allowance of defendant’s motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.) Further, it is well established that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128, 133, 361 N.E.2d 575.

Until 1978 Illinois courts steadfastly adhered to the rule that an employment contract of unspecified duration is terminable at the will of either the employer or the employee. According to this rule, an employee could quit or be fired at any time, with or without cause, and no liability would arise for the termination. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, however, Illinois joined a growing number of States which have recognized the tort of retaliatory discharge as an exception to the rule that at-will employment is terminable at any time for any or no cause. In Kelsay, our supreme court held that an at-will employee could not be dismissed for bringing a worker’s compensation claim against her employer. The court ruled that such a retaliatory discharge offended the public policy embodied in the Illinois Workers’ Compensation Act and, therefore, gave rise to a cause of action for compensatory and punitive damages.

Following Kelsay, several appellate court decisions in other districts appeared to severely limit the scope of the Kelsay doctrine. In Palmateer v. International Harvester Co. (1980), 85 Ill. App. 3d 50, 406 N.E.2d 595, aff’d in part, rev’d in part and remanded with directions (1981), 85 Ill. 2d 124, 421 N.E.2d 876, the Appellate Court for the Third District, in a divided opinion, upheld the trial court’s dismissal of plaintiff’s complaint in which he alleged that he was fired both for supplying information to local law enforcement authorities that a fellow employee might be in violation of the Illinois Criminal Code and for agreeing to assist in the investigation and prosecution of the employee, if requested. The appellate court refused to extend the tort of retaliatory discharge to include plaintiff’s termination noting that the only Illinois cases applying the public policy exception to the at-will employment rule concerned workers’ compensation claims. 85 Ill. App. 3d 50, 52.

Shortly thereafter, the same court, again in a divided opinion, narrowed Kelsay’s holding by denying tort relief to a union employee who allegedly had been fired for filing a worker’s compensation claim against his employer. (Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95.) The court reasoned that the employee was not terminable at will because he had recourse against his employer under a collective bargaining agreement which permitted discharge only for just cause and allowed for arbitration to guarantee the parties’ rights. Since filing a worker’s compensation claim would not constitute just cause for dismissal, the employee was protected by the contract which, according to the court, provided his sole remedy. (Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 404-06; contra, Wyatt v. Jewel Companies, Inc. (1982), 108 Ill. App. 3d 840, 439 N.E.2d 1053.) The court held that before bringing an action on the contract, the employee had to exhaust his remedies under the contract by challenging his dismissal in a grievance procedure. His failure to do so precluded a contract action for retaliatory discharge. Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 406-07.

In his dissent in Cook, Justice Barry distinguished between an allegation that Cook’s discharge was unlawful because it violated the terms of the collective bargaining agreement and an allegation that his discharge was unlawful because it was in retaliation for pursuing his worker’s compensation claim. Because the complaint involved the latter allegation and not the former, the dissent concluded that the cause of action sounded not in contract but in tort and could therefore be maintained under Kelsay independent of the employee’s rights under the collective bargaining agreement. (85 Ill. App. 3d 402, 407.) Justice Barry stated, “[t]he result reached in this case and in Palmateer v. International Harvester (1980), 85 Ill. App. 3d 50, [406] N.E.2d [595], reflects a conservatism in matters of employer-employee relations which I find disturbing, and assures to employers that the tort of retaliatory discharge, although recognized by our supreme court, is virtually nonexistent in the Third District.” 85 Ill. App. 3d 402, 409.

In Rozier v. St. Mary’s Hospital (1980), 88 Ill. App. 3d 994, 411 N.E.2d 50, the Appellate Court for the Fifth District, also in a divided opinion and relying upon the third district’s decision in Palmateer, held that discharging a nurse for informing a local newspaper of the allegedly immoral and improper acts of other hospital employees was not actionable. In analyzing Kelsay, the majority stated that “Kelsay was a decision of narrow applicability intended only to promote the public policy furthered by the Workmen’s Compensation Act,” and that “the cause of action recognized in Kelsay is and should be limited to discharge in retaliation for the employee’s exercise of his rights under the Workmen’s Compensation Act.” 88 Ill. App. 3d 994, 998.

On April 17, 1981, the Illinois Supreme Court reversed that part of the third1 district’s decision in Palmateer which had affirmed the dismissal of plaintiff’s claim for retaliatory discharge. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876.) In so ruling, the supreme court cast considerable doubt on the narrow interpretation the foregoing appellate decisions placed on Kelsay and expanded the contours of the tort of retaliatory discharge in Illinois.

• Ray Palmateer worked in a management position for International Harvester for more than eleven years. Aware of another employee’s possible crimes, Palmateer approached local law enforcement authorities and offered to testify and gather additional evidence against the suspect employee. As a result, Harvester dismissed Palmateer citing as reasons for his discharge that Palmateer refused to comply with the company's requests not to supply law enforcement authorities with information and his agreement to assist in the investigation and prosecution of the employee, if requested. The circuit court granted defendant’s motion to dismiss Palmateer’s action for failure to state a cause of action which was affirmed by the appellate court in a divided opinion. Palmateer v. International Harvester Co. (1980), 85 Ill. App. 3d 50, 406 N.E.2d 595.

In reversing the appellate court on this issue, the supreme court examined public policy, which the court stated was “[t]he foundation of the tort of retaliatory discharge.” The court characterized Palmateer’s conduct — voluntary information to a law enforcement agency— as being “favored” by public policy and held that Palmateer had stated a cause of action for retaliatory discharge. Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 133.

Monarch purports to distinguish Palmateer on the ground that in Palmateer the employee notified public authorities of his suspicions while Petrik did not. Monarch argues that because Petrik did not inform public authorities of his suspicions, the instant case merely involves an internal dispute regarding the proper method of managing defendant corporation and that Palmateer is inapplicable because “it is only the political rights and duties of the State’s citizens which Palmateer prohibits an employer from infringing.” We do not agree with Monarch’s characterization of the facts in the instant case as involving a mere internal dispute or with its limitations of Palmateer to “political rights.”

In discussing the parameters of the tort of retaliatory discharge in Illinois, the supreme court observed that “there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal.” (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130.) The court acknowledged that:

“[T]he Achilles heel of the principle [of the tort of retaliatory discharge] lies in the definition of public policy. When a discharge contravenes public policy in any way the employer has committed a legal wrong. However, the employer retains the right to fire workers at will in cases ‘where no clear mandate of public policy is involved’ [citation]. But what constitutes clearly mandated public policy?” 85 Ill. 2d 124, 130.

The supreme court, noting the absence of a precise definition for the term “public policy,” surveyed cases from other States and found that where “a matter *** strike[s] at the heart of a citizen’s social rights, duties, and responsibilities,” the tort of retaliatory discharge has been allowed. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 130.) In finding that Palmateer had stated a cause of action, our supreme court held that “[t]here is no public policy more basic, nothing more implicit in the concept of ordered liberty [citation], than the enforcement of a State’s criminal code,” and that “public policy *** favors citizen crime-fighters.” (85 Ill. 2d 124, 132.) The court stated that “there is a clear public policy favoring investigation and prosecution of criminal offenses.” 85 Ill. 2d 124, 133.

In the instant case the crux of Petrik’s complaint is clear. He alleged that in the course of performing his duties at Monarch he discovered a discrepancy in the corporation’s financial records which he believed may have been due to criminal conduct; he investigated the source of the discrepancy and in an effort to force Monarch to comply with the Illinois Criminal Code he reported his suspicions to Monarch’s management. Monarch then discharged Petrik allegedly to aid in the concealment of its wrongdoing and in retaliation for his efforts to ensure management’s compliance with the requirements of the criminal law. Accepting, as we must, the truth of these allegations, it is apparent that Petrik’s complaint involves something more than an ordinary internal dispute between an employee and his employer. It is equally apparent that the public policy considerations that underlie Palmateer also support Petrik’s conduct.

In a recent case similar to the one at bar, the Connecticut Supreme Court found a cause of action for retaliatory discharge had been stated where plaintiff, the quality control director of defendant corporation, alleged that he had been discharged because he called to his employer’s attention repeated violations of the Connecticut Uniform Food, Drug and Cosmetic Act. (Sheets v. Teddy’s Frosted Foods, Inc. (1980), 179 Conn. 471, 427 A.2d 385.) The Sheets court found that the employee’s termination violated public policy even though as the dissent in Sheets noted the employee did not inform the public law enforcement authorities of the corporation’s alleged violations. (See also Harless v. First National Bank (W. Va. 1978), 246 S.E.2d 270, where the court held that an employer wrongfully discharged an employee who had notified his superiors at a bank of violations of various State and Federal consumer credit and protection laws.) We find Sheets persuasive and consistent with the national trend which evidences a growing judicial receptivity to the recognition of a tort cause of action for retaliatory discharge. Accordingly, we conclude that Petrik has alleged facts sufficient to withstand a motion to dismiss.

For the foregoing reasons, we reverse the trial court’s order dismissing counts II and III of plaintiff’s complaint and remand the cause for further proceedings.

Reversed and remanded.

DOWNING and HARTMAN, JJ., concur.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT UNDERWOOD, Defendant-Appellee.
    First District (3rd Division)
    No. 81—1016
    Opinion filed December 22, 1982.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Gregory J. Ellis, Assistant State’s Attorneys, of counsel), for the People.

      Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellee.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Robert Underwood, who had been charged by information with burglary, was adjudicated unfit to stand trial and committed to the Department of Mental Health and Developmental Disabilities (Department) on June 21, 1979. His adjudication of incompetence tolled the running of the speedy-trial statute (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5). The question raised by this appeal is whether the tolling ended and the running of time under the speedy-trial provisions recommenced when the State failed to accord the defendant a fitness hearing required by section 104 — 28(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 28(b)).

Sections 104 — 27 and 104 — 28 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 27, 104 — 28) became effective on December 28, 1979, and they provide a system for review of the condition of persons who, like the defendant, had been found unfit prior to that date. Section 104 — 27(a) provides:

“Within 180 days after the effective date of this Article, the Department of Mental Health and Developmental Disabilities shall compile a report on each defendant under its custody who was found unfit or incompetent to stand trial *** prior to the . effective date of this Article. ***”

Section 104 — 27(b) provides:

“The reports shall be forwarded to the Administrative Office of the Illinois Courts which shall distribute copies thereof to the chief judge of the court in which the criminal charges were originally filed, to the state’s attorney and the public defender of the same county, and to the defendant’s attorney of record,, if any. ***”

Section 104 — 28(b) provides:

“[T]he court shall conduct a hearing pursuant to Section 104— 20 forthwith to redetermine the issue of the defendant’s fitness to stand trial or to plead.”

Following the June 21, 1979, finding of unfitness and commitment to the Department, defendant remained in the Department’s custody until April 1, 1981, when he was brought before the trial court on his motion to dismiss for failure to comply with the speedy trial provisions of section 103 — 5. It is undisputed that defendant was not given the hearing required by section 104 — 28. On April 1, 1981, the trial court found that defendant remained unfit to stand trial, and subsequently it granted his motion to dismiss. The State appeals this ruling.

Defendant argues that the 180-day report required by section 104 — 27(a) was due to be completed no later than June 28, 1980, and that the hearing required by section 104 — 28 should have taken place “forthwith” in late June or July of 1980. Since parties agree that the evidence before the trial court established that during the period between June 21, 1979, and April 1, 1981, defendant remained continuously unfit to stand trial, it is undisputed that had a timely review hearing been held defendant would have been found still unfit more than one year after the original finding of unfitness. Therefore, defendant argues that under the express terms of section 104 — 28, he would be subject to section 104 — 23 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 23), which provided in pertinent part:

“*** if at the end of one year from that date (the date of the original finding of unfitness) the court finds the defendant still unfit *** the speedy trial provisions of Section 103 — 5 shall commence to run ***.”

Thus, according to defendant, the 120-day term of section 103 — 5(a) began to run when the fitness hearing should have been held and had expired well before April 1, 1981, when the trial court first considered defendant’s motion to dismiss. The State, to the contrary, contends that the speedy-trial provisions did not commence to run until April 1, 1981, when the trial court in fact had a fitness hearing and found that defendant remained unfit to stand trial. Defendant does not dispute the State’s contention that if the speedy-trial provisions commenced to run on that date, there had been no violation of defendant’s statutory right to a speedy trial.

Thus, the dispositive question is when did the speedy-trial provisions of section 103 — 5 commence to run. If they did not commence until April 1, 1981, there was no violation of defendant’s statutory right to a speedy trial. If they commenced during the summer of 1980, defendant was denied his statutory right, and the trial court should be affirmed.

Section 103 — 5(a) provides:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless the delay is occasioned *** by an adjudication of incompetency for trial, ***.”

Although section 103 — 5(a) refers to “competency” rather than “fitness,” Illinois courts have held that “the present standard of ‘unfitness’ must be equated with ‘incompetence’ for the purposes of tolling the speedy trial term.” (People v. Williams (1977), 48 Ill. App. 3d 842, 849, 362 N.E.2d 1306; see People v. Cole (1978), 66 Ill. App. 3d 210, 211-12, 383 N.E.2d 613.) Thus, under our statutory protection of the right to a speedy trial, the time period during which an accused’s trial must commence so as to satisfy the speedy trial statute tolls during the period when he is unfit to stand trial. (See People v. Cole (1978), 66 Ill. App. 3d 210, 212; People v. Williams (1977), 48 Ill. App. 3d 842, 849.) The parties agree that the finding of unfitness on June 21,1979, tolled the running of the speedy trial statute.

An Illinois statute also provides for the running of the speedy trial provisions of section 103 — 5 after a finding of unfitness. Section 104 — 23, prior to its amendment by Public Act 82 — 577, effective September 24, 1981, provided that after a finding of unfitness the speedy trial provisions shall commence to run upon the occurrence of any one of the following three circumstances:

(1) the filing of a motion for a discharge hearing by the defendant or his attorney;

(2) a court determination that “there is not a substantial probability that the defendant will become fit to stand trial or to plead within one year from the date of the original finding of unfitness”; or

(3) a court finding at the end of one year from the date of the original finding of unfitness that the defendant remains unfit. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 23(a) and (b).)

None of these circumstances occurred prior to April 1, 1981. Defendant’s argument is based on the third circumstance. He argues that if the hearing required by section 104 — 28 had been held in late June or July of 1980, the trial court would have made a finding more than one year after the original finding of unfitness that he remained unfit, and the speedy-trial provisions would have commenced to run. His argument, however, is based on what should have occurred and not what actually occurred. The trial court did not make a second finding of unfitness until April 1, 1981, and therefore, the speedy-trial provisions did not commence to run until that date. While it was improper not to have a timely fitness hearing as required by section 104 — 28, we hold that the fact that a section 104 — 28(b) hearing was not held does not cause the speedy-trial provisions of section 103 — 5 to commence to run. (See People v. Cole (1978), 66 Ill. App. 3d 210, 212.) In short, none of the three circumstances under section 104 — 23 which would have caused the speedy-trial provisions to commence to run occurred, and the speedy trial term was tolled, until April 1, 1981, by the June 21, 1979, adjudication of unfitness to stand trial. Accordingly, we find no violation of defendant’s statutory right to a speedy trial.

For the aforementioned reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded.

McNAMARA and RIZZI, JJ., concur.

      Defendant’s argument proceeds on the assumption that the report would not be prepared until the last day of the 180-day period. If the report had been prepared earlier, the hearing required by section 104 — 28(b) could have occurred prior to one year after the original finding of unfitness. However, since we ultimately hold that defendant was not denied his statutory right to a speedy trial, we will accept defendant’s assumption for purposes of argument.

      See footnote 3.

      The references to the speedy trial provisions in section 104 — 23(a) and (b) were deleted by Public Act 82 — 577. That amendment also added subparagraph (c) which provides: “If the defendant is restored to fitness and the original charges against him are reinstated, the speedy trial provisions of Section 103 — 5 shall commence to run.”

      No question was raised in the court below or in this court concerning defendant’s constitutional right to a speedy trial (U.S. Const., amends. VI and XIV; Ill. Const. 1970, art. I, sec. 8).