text:
    JAMES CLAYTON et al., Plaintiffs-Appellants, v. THE VILLAGE OF OAK PARK, Defendant-Appellee.
    First District (2nd Division)
    No. 82 — 2168
    Opinion filed August 30, 1983.

      Thomas W. McNamara and Eugene R. Wedoff, both of Chicago (Jenner & Block, of counsel), for appellants.
    Arthur C. Thorpe, of Chicago (Klein, Thorpe & Jenkins, Ltd., of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

The intended purpose of the ordinance challenged here is “to insure the single-family residences in the village of Oak Park against the possibility of economic loss, and thereby help to eliminate irrational fears of racial change,” and to assure owners that their properties will not deteriorate in value as a result of projected racial changes in the community. A declaratory judgment action was brought by certain owners of nonqualifying properties within the village attacking the validity of the ordinance. The respective parties filed cross-motions for judgment on the pleadings. Judgment was entered for the village from which plaintiffs appeal.

The principal issues presented for review include whether: the ordinance places the village of Oak Park in the business of insurance, in violation of the Illinois Insurance Code; and, the ordinance is invalid for violating one or more of several constitutional provisions identified by plaintiffs.

We affirm for the reasons which follow.

The village notes in its brief, without contradiction, that “racial change is not an academic problem in Oak Park” and that it is surrounded by areas which are totally segregated, involving both wholly white and wholly black populations. Since its adoption of a fair housing ordinance 14 years ago, the village has endeavored to be a racially integrated community and has utilized its home rule powers since 1970 to combat “steering, blockbusting, segregation, and the attendant evil of blighted housing.”

The ordinance before us in this appeal is entitled “Ordinance Providing for an Equity Assurance Plan for Single Family Residences in the Village of Oak Park.” It creates an Equity Assurance Program (Program) administered by a nine-member commission appointed by the village president. Generally, the Program allows each owner who occupies his single-family residence in the village to apply by submitting a fee, now set at $90, upon receipt of which the residence is appraised by a commission-approved appraiser. When the appraisal is completed, the commission issues a certificate of participation to the homeowner showing, among other things, his membership in the Program and the home’s appraised valuation.

Through the Program, after a five-year waiting period, the village will reimburse a participating owner 80% of the difference between the appraised value of the home at time of certification and the value at the time of sale if there has been a diminution in value. The Program is not intended to “insure against a regional or national decline in values” of homes. Accordingly, in the event of general economic decline in the value of homes in the Cook County metropolitan area, the “President and Board of Trustees of the Village of Oak Park reserve the right to review, revise and suspend payments” under the Program.

I

Plaintiffs first contend that the ordinance is void because it places Oak Park in the insurance business without proper registration, in violation of section 121(1) of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1981, ch. 73, par. 733(1)), which provides: “It shall be unlawful for any company to enter into a contract of insurance as an insurer or to transact insurance business in this State, without a certificate of authority from the Director.” (Emphasis added.) Plaintiffs insist that the word “company” embraces municipal entities such as Oak Park. In section 2 of the Code, “company” is defined to include “*** [an] individual or aggregation of individuals engaging in or proposing or attempting to engage in any kind of insurance or surety business ***.” (Ill. Rev. Stat. 1981, ch. 73, par. 614(e).) Plaintiffs maintain further that absent a certificate of authority, the activities stemming from the Program constitute the unauthorized transaction of insurance business.

The term “company” under the regulatory provisions of the Code contemplates an entity engaged or attempting to engage in an “insurance or surety business.” (Ill. Rev. Stat. 1981, ch. 73, par. 614(e); see Ill. Rev. Stat. 1981, ch. 73, pars. 733(1), 733 — 3.) The phrase “insurance business” is not defined in the Code, but it cannot be construed as identical to “insurance”; otherwise, the word “business” would be without effect. (See People v. Lutz (1978), 73 Ill. 2d 204, 212, 383 N.E.2d 171.) The legislature must be presumed to have deliberately added the word “business” (State ex rel. Farmer v. Monsanto Co. (Mo. 1974), 517 S.W.2d 129, 132), and that the term is to be used in its ordinary sense. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46, 429 N.E.2d 492.) The word “business” has been defined as “ 'any particular occupation or employment, habitually engaged in, especially for livelihood or gain.’ ” (Svithiod Singing Club v. McKibbin (1942), 381 Ill. 194, 199, 44 N.E.2d 904.) An insurance company is an ordinary business corporation whose policies are obtained for ordinary business purposes. (Peterson v. Manhattan Life Insurance Co. (1910), 244 Ill. 329, 91 N.E. 466.) An insurance business transaction anticipates payment by the assured of a consideration proportionate to the insurer's risk of having to pay the potential loss. Vredenburgh v. Physicians Defense Co. (1906), 126 Ill. App. 509, 511.

The Program here cannot be. said to have been established as an “occupation” for “livelihood or gain” for the village. The nominal, one-time $90 fee charged to participating homeowners principally covers the expense of appraising the premises; it bears no proportionality to the extent of the risk covered. The cost of the Program is mainly borne by the village as a whole rather than by the applicants. These features of the Program thus are significantly distinguishable from the business venture of selling repurchase contracts involved in Commonwealth ex rel. Schnader v. Fidelity Land Value Assurance Co. (1933), 312 Pa. 425, 167 A. 300. The ordinance and its Program here focus upon a governmental purpose and do not place the village in the insurance business.

In 1971, article VUIVa (Ill. Rev. Stat. 1981, ch. 73, pars. 743.1 et seq.) was added to the Code, which relates to insurance holding company systems. It includes a special definition of “company” under section 131.1(d), which has “the same meaning as ‘company’ as defined in section 2 of this Code, except that it does not include agencies, authorities or instrumentalities of *** a State or political subdivision of a State.” (Ill. Rev. Stat. 1981, ch. 73, par. 743.1(d).) The express exclusion from this special definition of political subdivisions of a State and the absence of such an exclusion in section 2 of the Code lead plaintiffs to conclude that the general definition contained in section 2 must be read to include political subdivisions within its terms. Plaintiffs overlook the broad home rule powers enjoyed by municipal entities, such as Oak Park, under article VII, section 6(a) of the 1970 Illinois Constitution, to “*** exercise any power and perform any function pertaining to its government and affairs ***.” The omission of such an exclusion from the general definition in section 2 of the Code, written in 1937, cannot be construed to deny this fundamental grant of power by the 1970 Illinois Constitution. Involvement by home rule units in various forms of insurance programs pertaining to their government and affairs has been upheld in other jurisdictions as well. See, e.g., Butterworth v. Boyd (1938), 12 Cal. 2d 140, 82 P.2d 434; City of Wichita v. Wyman (1944), 158 Kan. 709, 150 P.2d 154.

Further, the intergovernmental cooperation provisions of the constitution authorize home rule entities to contract and otherwise associate with other public agencies or private corporations in any manner not prohibited by law. (Ill. Const. 1970, art. VII, sec. 10(a).) Section 6 of the Intergovernmental Cooperation Act (Ill. Rev. Stat. 1981, ch. 127, par. 746) allows governmental units to contract for joint self insurance and further liability or loss protection in such areas as may need insurance protection. When the foregoing, provisions are read together with the definition of an insurance holding company system (Ill. Rev. Stat. 1981, ch. 73, par. 743.1(c)), “two or more affiliated persons, one or more of which is an insurance company as defined ***” in section 2, section 131.1(d) simply makes clear that even if a home rule entity is associated with other agencies or corporations in an insurance holding company system, it is nevertheless exempted from Code regulations. The absence of an express exclusion of political subdivisions from the section 2 definition, therefore, is further explained and is of no consequence to the issues here presented.

Finally, the rights of the sovereign are not impaired by a general legislative enactment governing private rights unless the enactment expressly makes the sovereign accountable. (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 396, 367 N.E.2d 1302; Division of Old Age Assistance v. Lyman (1939), 373 Ill. 27, 30, 25 N.E.2d 49.) Since neither the State nor its municipalities or subdivisions are overtly mentioned in section 2, the Code does not regulate local governmental activities.

Much of plaintiffs’ brief focuses on whether the contracts arising from the Program constitute insurance contracts. The issue, however, is not whether the agreements are valid insurance contracts, but whether the Equity Assurance Program comprises an insurance business. We hold that it does not for the aforestated reasons.

II

Only owner-occupants of single-family residences are eligible for the benefits bestowed by the ordinance. Plaintiffs contend that this qualification violates the equal protection guarantees of both the Federal and Illinois constitutions, since it irrationally discriminates in favor of owner-occupants of single-family residences and against other property owners. Differences in classification between single-family and other residential uses have been sustained for many years. (See, e.g., Bennett v. City of Chicago (1962), 24 Ill. 2d 270, 181 N.E.2d 96; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 412 N.E.2d 151; In re Application of Kofzen (1978), 63 Ill. App. 3d 835, 380 N.E.2d 852.) The village asserts that the Program is reasonably related to its interest in preventing “blockbusting” or “panic peddling” by the “high pressure” sales techniques of certain unsavory real estate brokers traditionally targeting owner-occupied single-family residences. It maintains that condominium owners, through their associations, and owners of income producing properties, are generally more sophisticated and can more effectively combat blockbusters than individual homeowners. The village further asserts that owners of commercial property are less susceptible than homeowners to the approaches of panic peddlers. Plaintiffs respond that while the purpose of the ordinance is legitimate, there is no relationship between blockbusting and identifying single-family residences for protection.

The burden of establishing an enactment’s unconstitutionality is on the challenging party. (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 303, 395 N.E.2d 1376.) Legislation which does not create a suspect classification or infringe upon a fundamental right, but rather involves economic and social welfare policy, will be upheld against equal protection challenges if it is rationally related to the achievement of a legitimate State interest. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 119-22.) Whether the course chosen by the legislature to achieve a desired objective is the best means available is not subject to judicial inquiry. Garcia v. Tully (1978), 72 Ill. 2d 1, 10, 377 N.E.2d 10.

Plaintiffs have not sustained their burden of showing that the classification is unrelated to a legitimate governmental interest. A statutory scheme will be upheld if any statement of facts can be reasonably conceived to justify it. (Salyer Land Co. v. Tulare Water District (1973), 410 U.S. 719, 732, 35 L. Ed. 2d 659, 668, 93 S. Ct. 1224, 1231; McGowan v. Maryland (1961), 336 U.S. 420, 426, 6 L. Ed. 2d 393, 399, 81 S. Ct. 1101, 1105; Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 122.) The village reasonably could have found that owner-occupants of single-family residences were generally more prone to blockbusting schemes than other property owners. It was not obligated to support the ordinance’s validity by pointing to a report or study in support thereof. (See Jones v. United States (1983), 463 U.S___ 77 L. Ed. 2d 694, 103 S. Ct. 3043.) The village is not constitutionally required to extend the benefits of the Program to all property owners within its borders; it “could direct its attention to the aspect of the problem it deemed most acute.” (Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 549, 224 N.E.2d 793.) The purpose of the ordinance, to promote racial integration by eradicating panic peddling, is highly commendable. While innovative and untried, the means chosen to achieve this laudable objective are sufficiently related to a legitimate governmental interest to withstand scrutiny under the equal protection clause.

Plaintiffs also assert that the Program violates the Illinois constitutional prohibition against special legislation. (Ill. Const. 1970, art. IV, sec. 13.) Courts considering special legislation challenges employ the same test used in equal protection challenges, namely, whether the classification bears a rational relationship to a valid purpose. (Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 35, 428 N.E.2d 489.) As demonstrated above, the Program’s classifications are related to important governmental interests, and are therefore constitutional.

Ill

Plaintiffs claim that the program violates the constitutional mandate that public funds, property or credit be used solely for public purposes (Ill. Const. 1970, art. VIII, sec. 1(a)), by allowing the use of public funds to compensate participating homeowners for their individual real estate investment losses. We disagree. Whether a proposed expenditure serves public purposes is a determination initially made by the legislative body empowered to expend the resources. (Hagler v. Small (1923), 307 Ill. 460, 474-75, 138 N.E. 849; Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 366, 415 N.E.2d 1277.) Broad discretion is allowed in such matters. (People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 355, 291 N.E.2d 807.) There is no constitutional prohibition against the use of public funds which inure to the benefit of private interests, provided that the money is employed for a public purpose. (People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 75-76, 368 N.E.2d 915.) Although a self-serving recitation that public purposes are served is not conclusive of that question, the consensus of modern judicial thought is to broaden the scope of the activities that may be classified as involving a public purpose. Marshall Field & Co. v. Village of South Barrington (1981), 92 Ill. App. 3d 360, 366; People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 356.

The potential use of village funds under the Program here to compensate homeowners under specified circumstances serves a public purpose of singular importance: to enhance racial integration through the prevention of panic peddling and blockbusting. (See People v. Betts Realtors, Inc. (1977), 66 Ill. 2d 144, 149, 361 N.E.2d 581; Chicago Real Estate Board v. City of Chicago.) The benefit obtained by private homeowners is merely incidental thereto. See People ex rel. City of Canton v. Crouch (1980), 79 Ill. 2d 356, 368-69, 403 N.E.2d 242.

IV

It is next asserted by plaintiffs that the ordinance is invalid because it exceeds the village’s home rule power. They state that the problems of “white flight” and urban racial distribution to which the Program is addressed extend beyond the boundaries of the village. They do not argue, however, that the State already has exercised exclusive powers in this regard (Ill. Const. 1970, art. VII, sec. 6(h)), nor do they argue that this is an area demanding exclusive statewide control.

The fundamental grant of home rule power contained in section 6, article VII, of the 1970 Illinois Constitution is broad and contemplates considerable flexibility. That section permits a home rule unit such as Oak Park to “regulate for the protection of the public health, safety, morals and welfare.” Home rule units “have the same powers as the sovereign except where such powers are limited by the General Assembly.” (City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273, 367 N.E.2d 692.) Article VII requires that home rule powers be construed liberally. Ill. Const. 1970, art. VII, sec. 6(m).

Whether an ordinance has extraterritorial effect in excess of home rule powers must be analyzed by centering upon the subject being regulated. (City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 116, 421 N.E.2d 196; see Commercial National Bank v. City of Chicago (1981), 89 Ill. 2d 45, 78, 432 N.E.2d 227.) Here, the enactment affects only owner-occupied single-family residences within the borders of the village. The twin evils of blockbusting and white flight may well extend beyond Oak Park’s boundaries; yet, the ordinance does not purport to regulate or combat those problems as they pertain to other units of local government — only those which affect the owners of homes who live inside the village. See City of Evanston v. Create, Inc. (1981), 85 Ill. 2d 101, 116; City of Carbondale v. Eckert (1979), 76 Ill. App. 3d 881, 395 N.E.2d 607.

Plaintiffs’ reliance on City of Des Plaines v. Chicago & North Western Ry. Co. (1976), 65 Ill. 2d 1, 357 N.E.2d 433, is of little aid. There, the supreme court held that Des Plaines could not adopt a noise pollution ordinance inconsistent with the Illinois Environmental Protection Act. Plaintiffs here make no claim to the effect that the provisions of the Program conflict with provisions of the Code. (65 Ill. 2d 1, 7.) We conclude that the ordinance embodies a proper exercise of home rule power.

V

The next constitutional infirmity identified by plaintiffs is that the Program delegates to the commission legislative authority without providing adequate guidelines by which it is to be exercised. The Program provides that if a participating homeowner is unable to sell the residence at its previously appraised value within 90 days of placing it on the market, he is to submit all bids received on the residence during the next 30 days to the commission. The commission then has several options: it can approve a bid, thereby requiring the homeowners to accept the bid and obligating the village to pay 80% of the difference between the bid and the previously appraised value of the residence; it can reject a bid, requiring the owner to continue to show the residence to prospective buyers until termination of the 30-day period; or, it can purchase the residence at the offered purchase price, plus 80% of the balance remaining on the residence’s appraised value. If the residence is not sold at the end of the 30-day period, within 120 days of its being placed on the market, the commission is required to purchase the residence at the highest price offered, plus 80% of the difference between the purchase price and the appraised value. Because this feature of the Program provides no guidance as to which option should be chosen by the commission, plaintiffs claim, it exceeds constitutionally permissible delegation of power.

Absolute criteria, whereby every detail in the enforcement of an ordinance must be set forth, is not necessary to a valid delegation of power to an administrative agency. (Polich v. Chicago School Finance Authority (1980), 79 Ill. 2d 188, 206, 402 N.E.2d 247.) The constitution requires only that intelligible standards be set to guide the agency charged with enforcement, and the precision of the standard may be sufficiently flexible so as to be consonant with the nature of the ultimate objective and the problems involved. Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 300, 395 N.E.2d 1376.

The village’s interest in reducing its potential financial exposure under the Program is self-evident; it is beyond cavil that the discretion challenged by plaintiffs was incorporated into the ordinance in an effort to minimize that financial liability. The flexibility transferred to the commission permits it to determine which option among those expressly articulated would most likely reduce the monetary exposure of the village. In the final analysis, the contractual agreements necessary to administer the Program must be approved by the village president and board of trustees. The discretion afforded the commission therefore is of much more restricted scope than that contained in many other delegations found valid on review in Illinois. (See, e.g., Polich v. Chicago School Finance Authority (1980), 79 Ill. 2d 188, 402 N.E.2d 247 (delegation to financing authority to determine amount ultimately allocable to school district); Hill v. Relyea (1966), 34 Ill. 2d 552, 216 N.E.2d 795 (delegation to official to discharge mentally retarded persons from hospital); see generally also 1 K. Davis, Administrative Law Treatise secs. 3:1 through 3:18 (2d ed. 1978).) The municipal authority transferred to the commission here does not constitute an unlawful delegation by the village.

VI

Finally, plaintiffs contend that the ordinance is void because it unconstitutionally allows the village to impair contracts entered into under its terms. (Ill. Const. 1970, art. I, sec. 16.) The right of the village to review, revise and suspend payments under the Program is not an impairment of the homeowner’s contract with the village; rather, it is part and parcel of the agreement by which the homeowner elects to be bound. The Program was not intended to provide reimbursement to owners for losses attributable to a general decline in market values in the Cook County area, as expressly set forth in the ordinance. Such an economic decline can be ascertained factually in light of the computerized records kept by the Cook County Assessor of the sale price of every house sold in the county. Contracts executed subject to the Program protect owners against losses in equity subject to this express limitation. No impairment of contract exists under this procedure.

For the reasons set forth above, the judgment of the circuit court is affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

      The fee is based primarily upon costs of an appraisal.

      “That device, whereby owners are induced to part with their property by implanting or inflaming fears that property values will diminish because Negroes are, or may become residents *** is a technique used by some real-estate brokers to perpetuate segregated housing.” Chicago Real Estate Board v. City of Chicago (1967), 36 Ill. 2d 530, 553, 224 N.E.2d 793.

      See Note, Blockbusting: A Novel Statutory Approach to an Increasingly Serious Problem, 7 Colum. J. L. & Soc. Prob. 538 (1971); Note, Blockbusting 59 Geo. L. J. 170 (1970); Comment, Blockbusting: Judicial and Legislative Response to Real Estate Dealers’ Excesses, 22 De Paul L. Rev. 818 (1973).

      Oak Park has recognized problems of multiple family dwelling owners in racially changing areas by providing for the issuance of $3,000,000 in housing bonds for making low interest mortgages to such property owners to insure maintenance of this type of housing in the village.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    JOHN F. WALKER, Conservator of the Estate of Donald Reeves, Incompetent, Plaintiff-Appellant, v. MAXWELL CITY, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81 — 3179
    Opinion filed August 30, 1983.

      William J. Harte, Ltd., Patrick E. Dwyer, and John J. Lowrey, all of Chicago (William J. Harte, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, E. Michael Kelly, and Milo W. Lundblad, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Donald Reeves sustained serious facial and brain injuries following a collision between his motorcycle and an automobile. He wore a motorcycle safety helmet at the time of the accident, which took place in the village of Oak Lawn. The conservator of his estate brought a products liability action against defendants Maxwell City, Inc., the retailer of the helmet, and Seaway Importing Co./Wessex, Inc., the importer-wholesaler, seeking recovery for injuries he allegedly incurred as a result of helmet’s defects. The manufacturer of the helmet, Daiei Kogyo, of Japan, went out of business and was dismissed from the suit. Plaintiff appeals the jury verdict for defendants.

The principal issues raised on appeal include whether: the verdict was against the manifest weight of the evidence; and plaintiff was prejudiced by the purported refusal of the circuit court to allow “destructive” testing of the helmet.

We affirm for the reasons which follow.

On April 15, 1971, the date of the accident, and at the time of the occurrence, Reeves was wearing a Daiei Kogyo model TH-12 motorcycle helmet. The investigating police officer, James Cotter, stated that he found Reeves lying on the ground beside his motorcycle, wearing a red helmet. There were large amounts of blood around Reeves’ facial area. The passenger of the vehicle informed Cotter that Reeves hit the windshield support on the right side of the automobile with his head. Cotter noticed no external damage to the helmet. He saw a round dent on the right windshield support.

Reeves was transported to Christ Community Hospital. The examining physician there, Dr. Shu-Yung-Wang, found him in a comatose condition. His traumatic bone injuries and cuts were localized in the area of his jaw and 19 of his teeth were dislodged or broken. There was no tearing, laceration or fracture of any of the area of Reeves’ head that was covered by the helmet. Two neurosurgeons, Dr. George Bryar and Dr. Sherman Kaplitz, found that Reeves suffered a severe bruising of the brain, a basal skull fracture, and multiple fractures of his face and jaw bone. Dr. Bryar and Dr. Marshall Matz, a neurosurgeon testifying for defendants, testified that the “sudden stopping” of the head may cause severe brain damage even without a direct blow to the head or penetration of the skull. The sudden stopping of the skull causes the brain, which is still in motion, to strike against the skull’s inner surfaces. This is called a deceleration injury. A blunt injury even to the chin may be transmitted to the brain because the mandible is connected to the skull by means of the temporomandibular joint, which is one of the sidewalls of the brain cavity. Dr. Matz indicated that his review of Reeves’ records revealed none of the signs that might be seen if there had been a direct injury to the head area covered by the helmet. He was of the opinion that the impact to Reeves’ face was transmitted along the jawbone to the skull, causing a basal skull fracture, and that the force was from below upward. If the blow is to the face, no amount of padding at the top of the head can reduce the deceleration injury.

Dr. George Snively, M.D., director of research of the Snell Foundation (Snell), was of the opinion that the helmet did not come “into play” during the accident. The helmet, however, would have to be disassembled and the liner inspected to have a “complete picture.” James Albert Newman, Ph.D., an engineer, testified that the helmet did not appear to have sustained any severe impact. Plaintiff’s expert, Lee Rose, a design engineer, believed that the helmet incurred multiple hits during the crash.

The Snell Foundation and the American National Standards Institute (ANSI) both establish safety standards for motorcycle helmets. Compliance with these standards is voluntary. Snell standards are generally regarded as more stringent than ANSI’s. At the time it was manufactured in the late 1960’s, the “TH-12” model helmet worn by Reeves was in compliance "with both the Snell and ANSI standards. Reeves’ helmet, however, did not meet the Snell requirements when they were upgraded in 1970. In particular, it did not satisfy the requirements measuring a helmet’s ability to protect against impact. Reeves purchased the helmet in 1971. There were no standards then regulating impact protection to the facial region.

Newman testified that the outer shell on Reeves’ helmet was composed of a fiberglass resin composite. Most helmets in 1970-71 were made of plastic. Fiberglass has generally been regarded as superior. The next layer in Reeves’ helmet was composed of expanded polystyrene beads foam, which reflected the most advanced technology of helmetry in 1971. This foam was an “appropriate material” for use in a liner. Its function was to absorb the energy of the impact.

The helmet in question provided no facial protection. Dr. Richard Schultz, who testified on behalf of plaintiff, stated a helmet with a face guard would have absorbed a good deal of impact force, minimized the forces transmitted into the skull, and reduced the amount of brain damage.

Dr. Snively stated that to do an “optimal job” a helmet must be positioned in front of what is to be protected, namely, the head or nose. As a practicing physician, he would recommend that people protect their eyes and face when motorcycle riding. Newman recommended facial protection for motorcycle helmets. Rose observed that the technology was available to place a “chin bar” on motorcycle helmets in the late 1960’s. The cost of adding a chin bar would have been “pennies.”

The experts disagreed as to whether the subject helmet was reasonably safe. Defendants’ expert, Newman, believed that on April 15, 1971, Reeves’ helmet was reasonably capable of providing safe impact protection and in no way “unreasonably dangerous for its intended purpose.” Rose believed that the helmet was inherently dangerous for its intended purpose. The helmet was reasonably safe according to Dr. Snively.

I

Plaintiff asserts that the circuit court erred in denying his motions for a directed verdict, judgment n.o.v. and new trial. He observes that it is foreseeable for a motorcycle helmet to be called upon to protect the head of a motorcyclist. Because the helmet was not equipped with facial protection and did not meet the impact requirements set by the Snell Foundation in 1970, plaintiff argues the helmet failed to protect him adequately.

A manufacturer is not under a duty to design a product which is totally incapable of injuring those who foreseeably come into contact with the product. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104.) To succeed on a strict liability theory, a plaintiff must prove, inter alia, that the injury resulted from a condition of the product and that the condition was an unreasonably dangerous one. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.) Products are defective when they fail to perform in the manner reasonably to be expected in light of their nature and intended function. (Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342, 247 N.E.2d 401.) In Illinois, injuries are not compensable in products liability cases if they are caused by those inherent propensities of a product which are obvious to all who come into contact with them. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368; compare Annot., 95 A.L.R.Sd 1066 (1979); see also Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 467, 343 N.E.2d 465.) Strict liability applies only when the product is “dangerous to an extent beyond that which would be contemplated by the ordinary [person] ***, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts sec. 402A, comment i (1965); see Palmer v. Avco Distributing Corp. (1980), 82 Ill. 2d 211, 220, 412 N.E.2d 959.

It was well within the province of the jury to conclude that a helmet without a face guard, such as the one in dispute, could not be reasonably expected to guard against blows to the face. The absence of a face guard on Reeves’ helmet was an intrinsic property of the helmet. A person with ordinary knowledge would not expect a helmet to protect an area which it did not cover. Neither the Snell nor the ANSI standard required impact protection for the face. Plaintiff cites no precedent from any jurisdiction holding that the absence of facial protection on a motorcycle helmet makes it unreasonably dangerous. Applicable Illinois precedent points to the opposite conclusion. In Fuller v. Fend-All Co. (1979), 70 Ill. App. 3d 634, 638, 388 N.E.2d 964, the court held that safety glasses without side shields could not reasonably be expected to protect against side particle entry. More recently, in Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 450 N.E.2d 756, the court rejected plaintiff’s claim that a safety helmet was defective for its failure to shield against neck injury.

The fact that after its manufacture the helmet did not comply with the newest Snell impact standards did not render it unreasonably dangerous as a matter of law in light of the entire record as set forth above. Both Dr. Snively and Newman found it reasonably safe for street use. The helmet satisfied the Snell and ANSI standards in effect at the time of its manufacture. Furthermore, the jury may have concluded plausibly that the purported “inadequate” impact protection afforded by the helmet was not the proximate cause of Reeves’ injury. Expert evidence was adduced indicating that the helmet was not involved in the crash and that Reeves’ injuries were caused by a blow to the jaw which impacted the brain. The verdict for defendants was amply supported by the record. The evidence when viewed in its aspect most favorable to defendants, does not so overwhelmingly favor plaintiff that the verdict for defendants may not stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Nor was the verdict contrary to the manifest weight of the evidence. (Mizowek v. DeFranco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) Accordingly, plaintiff’s motions for a directed verdict, judgment n.o.v. and new trial were properly denied.

II

The next assignment of error concerns plaintiff’s attempts to have pretrial testing performed on the helmet. One such test proposed was to perform impact tests on the helmet in order to determine its shock absorbency properties, which would have partially destroyed the shell and would have altered its appearance. The other test sought by plaintiff was to dismantle the helmet “to inspect and measure the styrofoam liner.” This would not be “destructive testing,” according to plaintiff’s motion, and could be accomplished in the office of one of the attorneys through the use of simple hand tools. Following a hearing on April 8, 1980, the circuit court directed plaintiff to obtain a written report from his experts specifically setting forth: a description of the proposed impact tests; what effects the tests would have on the helmet; the reasons for conducting such tests; and a statement as to the relevancy of the obtainable data to the issues of the case. Defendants and their experts were to examine such reports and produce written responses thereto, all reports and responses to be filed with the court. The parties were to meet thereafter and attempt to reach an agreement on the testing; if no agreement could be reached, the matter was to be brought before the court for further hearing. Plaintiff subsequently filed excerpts from a deposition taken of his expert, Rose, together with a report written by Rose, addressing those concerns. When defendants failed to respond, plaintiff moved for leave of court to conduct impact tests. On June 9, 1980, that motion was denied. Thereafter, plaintiff moved for leave to dismantle the helmet, which would not destroy it. An order was entered on July 11, 1980, similar to that entered with regard to the proposed impact testing. Nothing further appears of record showing compliance therewith by the parties.

Plaintiff contends that the was prejudiced when the court erroneously refused to allow him to conduct, pretrial tests requiring that the helmet be dismantled. He argues that dismantling the helmet was necessary to determine whether the helmet had been impacted in the accident. The testing, he states, would not have been prejudicial to defendants. The court did not refuse to allow the dismantling of the helmet, however; it reserved ruling on plaintiff’s motion until certain expert evidence was presented to the court. The destructive consequences of the proposed tests was a relevant and proper factor to consider in evaluating the merits of plaintiff’s motion, particularly since no duplicate original of this helmet was available. See Sarver v. Barrett Ace Hardware, Inc. (1976), 63 Ill. 2d 454, 349 N.E.2d 28.

Assuming, for the sake of argument, that the court’s order somehow could be construed as a denial of plaintiff’s motion, any error was harmless, since plaintiff apparently declined defendants’ invitation to have their respective experts, Newman and Rose, dismantle the helmet during trial early in plaintiff’s case. Plaintiff claims that this offer was "pure sophistry,” because the testing would have taken two weeks and the testing laboratory was in Detroit, Michigan. These statements are based on a prior, separate request made' by plaintiff before trial for “impact testing” at an independent laboratory in Detroit, which would have required such time and analysis. Impact testing is completely different from dismantling the helmet to inspect the styrofoam liner. A letter from plaintiff’s expert Rose explained that impact testing involved dropping a weight from a specified height onto a helmet containing certain electronic instruments and other equipment to measure the amount of force transmitted. In contrast, plaintiff advised the court in a pretrial motion that dismantling the helmet could be accomplished “*** in the office of one of the attorneys for the parties *** by using simple hand tools” Plaintiff’s contention, that defendants’ offer to dismantle the helmet was not feasible, must therefore be rejected.

Plaintiff also contends that he was prejudiced when the jury was permitted to hear opinion evidence regarding the helmet’s role in the accident, because the helmet was not dismantled and tested. In particular, plaintiff objects to Dr. Snively’s testimony that, based on its appearance, the helmet probably was not involved in the accident. Dr. Snively had added that the helmet would have to be disassembled to have a “complete picture.” Plaintiff asserts that the jury should not have been exposed to this expert’s findings since he was not “absolutely sure” of his findings. This point has been waived, however, by plaintiff’s failure to object to this testimony at trial. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417.) Furthermore, “absolute” confidence in the truthfulness of an expert’s findings is not a prerequisite to admission in evidence. (Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535, 539, 343 N.E.2d 504.) The jury was advised of the qualification to Dr. Snively’s opinion and, as trier of fact, judge his testimony accordingly. Presswood v. Morris (1979), 70 Ill. App. 3d 513, 517-18, 388 N.E.2d 844.

Next, plaintiff assigns error to Office Cotter’s testimony on cross-examination, that he did not notice any damage to Reeves’ helmet at the scene of the accident. Again, however, since plaintiff did not object to Cotter’s testimony on the basis that the helmet was not disassembled, this issue has not been properly preserved for review. Assuming arguendo that the question had not been waived, plaintiff’s claim must still be rejected. Cotter did not testify as an expert as to whether the helmet had been impacted. He simply stated as a police officer what he did or did not notice at the accident scene.

Plaintiff maintains that the testimony of neurosurgeons Drs. Bryar and Matz regarding the protective qualities of the helmet was improper, because neither purportedly was an expert in helmet design. Dr. Bryar, who treated Reeves, stated that the helmet helped the latter survive the accident; Dr. Matz testified about damage to a person receiving a blow while wearing a helmet with facial protection. The circuit court did not abuse its discretion in allowing the neurosurgeons to so testify. (Kinsey v. Kolber (1982), 103 Ill. App. 3d 933, 952-53, 431 N.E.2d 1316; Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 3d 283, 293, 216 N.E.2d 14.) Furthermore, even if admission of the testimony was misguided, any error was not prejudicial given the strong evidence in support of the jury’s verdict.

Ill

Plaintiff urges that defendants improperly argued the defense of assumption of risk and that the lack of facial protection was an open and obvious condition which barred recovery. In particular, error is found in the defense statement to the effect that the helmet protected the area covered, and the helmet “by its very essence was never meant to protect the face.” Plaintiff’s failure to object to these arguments at trial precludes him from raising it for the first time on appeal. (Mulvey v. Illinois Bell Telephone Co. (1973), 53 Ill. 2d 591, 598, 294 N.E.2d 689; County of Cook v. Colonial Oil Corp. (1958), 15 Ill. 2d 67, 75, 153 N.E.2d 844.) Plaintiff had the burden of proving that the helmet was unreasonably dangerous, to an extent beyond that which would be contemplated by the ordinary consumer with ordinary knowledge as to the product’s characteristics. {Hunt.) One factor in determining whether a danger is unreasonable is the extent to which it would be obvious to all those who come into contact with the product. (Hunt; Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 467.) Thé statements challenged by plaintiff are related to the issue of whether the product was unreasonably dangerous and therefore constituted proper argument.

Plaintiff charges that defense counsel erred in his comment no one “could have made Donald Reeves put any type of helmet on his head,” insisting that this constituted an improper assumption of risk argument. At trial, plaintiff made a general objection to this remark, which was overruled. Assuming, for purposes of discussion, that the circuit court understood the basis for the general objection, plaintiff’s position- still cannot be sustained. The disputed statement bears only a tenuous connection to an assumption of risk defense. More significantly, the statement accurately reflects the fact that neither defendants nor the legislature itself were empowered to make plaintiff wear any kind of helmet. See People v. Fries (1969), 42 Ill. 2d 446, 450, 250 N.E.2d 149.

Plaintiff maintains defendants’ attorney improperly implied during closing argument that Reeves was injured by a car accident not the helmet. There was substantial evidence that the helmet was not involved in the collision, however; defendants were entitled to argue the issue of proximate cause to the jury.

IV

The circuit court is alleged to have erred in refusing to submit the following jury instruction proposed by plaintiff: “The defendants cannot avoid liability by attempting to show merely that they had done what the rest of their industry had done to make their product safe.” Plaintiff observes that a “state of the art” defense is inapplicable in a strict products liability action. (See, e.g., Gelsumino v. E. W. Bliss Co. (1973), 10 Ill. App. 3d 604, 295 N.E.2d 110.) Other than a brief, ambiguous comment, respecting the type of helmet with the “face cover configuration such as the one that was shown,” by the owner of a retail store in Bridgeview, plaintiff points to no evidence of a state of the art defense. Three experts in the field of helmet design testified that motorcycle helmets with facial protection were available at the time in question, thus eliminating or minimizing the possibility that the jury concluded that facial protection on helmets was unavailable or that defendants had done what the rest of the industry had done to make the helmet safe. Under these circumstances, the refusal by the court to permit the proposed instruction does not warrant reversal.

Plaintiff contends that the circuit court mistakenly refused his instruction number 12 to the effect that more than one person may be to blame for Reeves’ injury. The content of this instruction was already given, in effect, to the jury in plaintiff’s instruction No. 4, which stated that proximate cause need not be the only, last or nearest cause. Once clearly stated, a rule of law need not be restated in a different form of instruction. Ostendorf v. Brewer (1977), 51 Ill. App. 3d 1009, 1014, 367 N.E.2d 214.

V

The next assignment of error concerns defense efforts to impeach two of plaintiff’s witnesses. Defense counsel questioned Reeves’ former wife respecting certain prior inconsistent statements made at her divorce proceedings. She did not remember giving the statements. Once counsel has laid a foundation for impeachment, he is under an obligation to offer proof of the allegedly impeaching statement. (Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 1008, 295 N.E.2d 491.) Here defense counsel failed to satisfy his obligation under the law by not offering evidence of those allegedly impeaching statements. Failure to follow through with proof of a prior inconsistent statement is not automatically reversible error, however. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 897, 420 N.E.2d 461.) The prior inconsistent statements here concerned plaintiff’s home and family life prior to the accident, not the fundamental question of liability, decided against plaintiff. The failure of defense counsel to offer evidence of the statements under these circumstances was not sufficiently prejudicial to require reversal. See Purrazzo; Schoolfield v. Witkowski (1964), 54 Ill. App. 2d Ill. 126, 203 N.E.2d 460.

Finally, plaintiff charges that through innuendo and unfair inference, defense counsel attacked the credibility of plaintiff’s expert, Rose, on the issue of his employment at Riddell, Inc. No objection was raised during the defense cross-examination of this subject; thus, the propriety of defendants’ questioning has been waived for purposes of review. (Kravis; Delany v. Badame (1971), 49 Ill. 2d 168, 178, 274 N.E.2d 353.) Furthermore, under the facts of this controversy, any error in the cross-examination of Rose on his former employment would not necessitate reversal.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN J. FREY, Defendant-Appellant.
    Third District
    No. 82 — 625
    Opinion filed August 31, 1983.
    HEIPLE, J., dissenting.
    Arthur J. Inman, of Peoria (Joseph R. Napoli, of counsel), for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Brian J. Frey, the defendant, sometime after 11 p.m. on March 6, 1981, while driving his automobile was the cause of a collision between his vehicle and one being driven by Steven Updike. In the Updike vehicle was Connie Updike, the pregnant wife of Steven. The accident occurred on Willow Knolls Road in Peoria County. As the result of the accident Connie was killed, as was her child, Steven D. Updike, Jr., who was delivered dead at the St. Francis Hospital subsequent to the collision.

For the purpose of determining the issues presented in this appeal a further recitation of evidentiary facts may become necessary and if so they will be set forth if and when they become pertinent. It is necessary that we set forth a chronological history of this case.

On March 24, 1981, the defendant was indicted in two counts for reckless homicide. Count I charged him with causing the death of Connie Updike in that he caused her death by recklessly driving a motor vehicle while under the influence of intoxicating liquor. In count II he was charged in identical language with causing the death of the boy, Steven D. Updike, Jr. The defendant was arraigned on April 2, 1981, before Judge Stephen Covey. He pleaded not guilty and trial by jury was set for May 11, 1981. On this date Judge Covey continued the case on defendant’s motion, without objection from the prosecution, to June 5, 1981. Subsequently the prosecution moved for a continuance and trial by jury was set for July 20, 1981. On July 9, 1981, the case was set for plea negotiations on July 17, 1981, before Judge Covey. While not clear from the record, apparently plea negotiations were had because a defense motion was filed on August 12, 1981, requesting a substitution of judges because Judge Covey had expressed his opinion as to a proper sentence which did not include probation. This motion was granted and the case was assigned to Judge James Bumgarner for jury trial which was set for October 19, 1981. On October 8, 1981, the case was by agreement continued for bench trial on November 19, 1981. The October 8 order contained a finding that “the defendant’s attorney indicates the defendant will waive a jury trial in this case.” The order was approved in writing by counsel for defendant and signed by Judge Bumgarner. The record does not support a finding that the defendant was present at the October 8 meeting. On October 20, 1981, defendant filed a motion for view of the scene of the accident. In the motion the defendant asserted that he had waived trial by jury and since the judge would be the trier of fact it would be beneficial for him to view the scene of the accident. A further continuance was granted the defendant and a hearing on a motion by defendant to suppress certain evidence was set for January 21, 1982, and the bench trial for the reckless homicide counts was set for January 28,1982.

On January 21, 1982, defendant’s motion to suppress was granted and on January 27, 1982, the State filed count III to the indictment charging the defendant with driving under the influence of intoxicating liquor. On February 26, 1982, the defendant was arraigned and entered a plea of not guilty to the driving under influence count. A trial court order entered this date inter alia set a jury and/or bench trial for February 26,1982.

After again being continued, the defendant, his counsel and the prosecutor were all present in court on March 18, 1982, for the purpose of conducting the trial on the two reckless homicide charges and the driving under the influence charge. The trial court noted that “these causes were set today for the purposes of a bench trial.” The trial judge then noted for the record an agreement entered into by the parties that in order to avoid admission of certain evidence of a breathalyzer test in the reckless homicide cases, it was agreed upon that the issues presented by the first two counts of the indictment, to-wit, the charges of reckless homicide, would be tried first, after which the charge of driving under the influence of intoxicating liquor would be tried. All parties acknowledged to the court that they had entered into such an agreement.

The defendant after bench trial was acquitted of the reckless homicide charges; however, after a bench trial on the driving under the influence charge was found guilty and sentenced to one year probation conditioned inter alia upon 12 months periodic imprisonment at the Peoria County Work Release Center.

The defendant raised in his post-trial motion and as issue before this court that he did not expressly and knowingly and understandingly waive his right to trial by jury.

We reluctantly agree with the defendant; reluctantly because we harbor no doubts as to the fact that defendant well knew that he could have trial by jury if he so desired. However, the record does not support a finding that the defendant either expressly or implicitly waived a trial by jury as to the charge of driving under the influence of intoxicating liquor. A strong argument could be made that the defendant waived a jury trial as to the reckless homicide charges, but this court’s attention must be directed solely at the driving-under-the-influence charge. Count III of the indictment charging the defendant with driving under the influence was filed on January 27, 1982. The defendant was of necessity present in court with counsel when arraigned on the charge; however, after arraignment the court by written order set a trial date and the setting provided for a jury and/or bench trial. The defendant was next in court on March 18, 1982, for purposes of trial and the record discloses that the trial judge stated “these causes were set today for the purpose of a bench trial.” The trial judge was under the impression that the reckless homicide charges and the driving under the influence charge would all be tried together. However, such was not the case, because pursuant to agreement of counsel the driving-under-the-influence charge was severed and to be tried separately. This charge was in fact tried separately with the trial commencing on March 19, 1982. As to this trial the judge made no comment or observation as to whether there was to be a bench trial or jury trial. The failure of the court to address such question resulted in making it unnecessary for defendant or his counsel to make any remarks as to whether the case was to be tried by jury or bench trial. Consequently we do not have silent acquiescence as was present in People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182, the case strongly relied upon by the State.

We are confronted with a situation where there is nothing in the report of proceedings or common law record which supports a finding that the defendant waived either expressly or implicitly a trial by jury on the driving under the influence charge. Further, the situation presented will not support a determination that the defendant acquiesced in the waiver of a trial by jury. A waiver of jury trial cannot be presumed from a silent record. (People v. Gentry (1977), 48 Ill. App. 3d 900, 363 N.E.2d 146.) The record in this case does disclose that during a post-trial motion an assistant State’s Attorney attempted to testify as to discussions he had with counsel for defendant concerning whether the defendant would be tried by a bench trial or jury trial. The witness was unable to provide dates or other specific information, and objection to such testimony was sustained by the trial court and the testimony ordered stricken.

This court has determined that there was no waiver of a trial by jury in cases where the record was not entirely silent on the question as it is in the instant case. People v. French (1980), 84 Ill. App. 3d 60, 404 N.E.2d 1136; People v. Walton (1979), 77 Ill. App. 3d 905, 396 N.E.2d 841; and People v. Banks (1979), 71 Ill. App. 3d 15, 389 N.E.2d 180.

As the result of repeated continuances, pretrial motions and the involvement of several judges, there was a failure to obtain a waiver of trial by jury on the charge of driving under the influence of intoxicating liquor and hence the judgment against the defendant for this crime must be reversed and remanded for a new trial.

Since a new trial is to ensue an additional issue raised by the defendant should be put to rest. The defendant contends that he was improperly prosecuted for count III of the indictment (driving under the influence charge) because he had been acquitted after trial on the reckless homicide charges. This argument of the defendant is predicated on his assertion that the doctrine of res judicata bars his prosecution, since the trial court’s holding regarding intoxication in the reckless homicide trial precluded prosecution of the driving under the influence charge. We disagree, because the defendant wanted and stipulated to a severance of trial on the charges because he realized that certain evidence (a breathalyzer test) as to intoxication would be inadmissible in the reckless homicide trial but admissible in the driving under the influence trial. The defendant sought a severance, he received it and should not be permitted to renege on his agreement simply because the second trial produced a result unfavorable to him, to-wit, a conviction. It should be noted that counsel for defendant lays no claim to the effect that driving under influence is a lesser included offense of the offense of reckless homicide and during oral argument stated that it was not. We find no merit in defendant’s assertion that he should not have been tried for driving under the influence of intoxicating liquor.

For the reasons stated herein the defendant’s conviction by the circuit court of Peoria County is reversed and this case is remanded for a new trial.

Reversed and remanded.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

Although I agree with the majority that a trial without a jury cannot be upheld where the record is silent as to defendant’s jury waiver, the record before us is certainly not silent. Courts have repeatedly stated that whether a defendant has knowingly and understandingly waived his right to a jury trial depends upon the facts and circumstances of each case. In the context of what is essentially a bifurcated trial, the record here discloses a more than adequate jury waiver.

The defendant was first charged with reckless homicide. As to these charges, the defendant waived a jury trial. Later, the additional charge of driving under the influence was added. The defendant pleaded not guilty and both bench and jury trials were set. Ordinarily, the charges would have been tried together. However, the parties agreed to have the two offenses tried separately so that evidence admissible only as to the DUI charge would not be heard in connection with the reckless homicide charge.

As the majority candidly admits, a good argument can be made that the defendant properly waived his right to a jury in the reckless homicide trial and that the defendant was fully aware that he could demand a jury in the trial for DUI. Yet the majority refuses to take the additional step of finding that the defendant waived a jury in the second trial. In my opinion, this conclusion is based on an unreasonably restrictive reading of the record. The record discloses that on March 18, 1982, the parties were in court and ready to proceed with trial. In the defendant’s presence, the court announced that both the reckless homicide and the DUI counts were set for a bench trial. Defense counsel raised no objection to the bench-trial setting. Instead, he simply called the court’s attention to an agreement between the parties to try the charges separately. The court noted the agreement for the record and proceeded to try the reckless homicide charges. Since the defendant had previously waived a jury trial as to the reckless homicide counts, and because the defendant was clearly aware that he could demand a jury as to the DUI count, the courtroom events of March 18 constituted a jury waiver which was legally sufficient under the circumstances of this case.

In addition, it is important to note that the events of March 18 do not stand alone. Without going into further detail, the remainder of the record, especially the hearing on the motion for a new trial, indicates that the defendant, having been acquitted of reckless homicide after a bench trial, knowingly opted for the same procedure the following day as to the remaining charge. The majority opinion overlooks the obvious and demands more evidence than is necessary to show that the defendant waived a jury trial. Therefore, I dissent.


author: PRESIDING JUSTICE STOUDER

text:
    RICHARD CART, Plaintiff-Appellant, v. RICHARD DeROBERTIS et al., Defendants-Appellees.
    Third District
    No. 3 — 83—0019
    Opinion filed September 2, 1983.
    Rehearing denied September 27, 1983.

      Richard Cart, of Joliet, for appellant, pro se.

    Edward E Petka, State’s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Richard Cart, appeals from the denial of his petition for a writ of habeas corpus. The plaintiff has proceeded pro se on appeal. We interpret the plaintiff’s arguments on appeal to be whether the State of New York violated article III of the Interstate Agreement on Detainers and whether he was denied due process of law because the State of New York failed to promptly hold a parole violation hearing.

The plaintiff was on parole from the State of New York when, in December of 1979, he was charged with conspiracy to commit murder by the State of Illinois. Immediately thereafter, New York issued a parole violation warrant. In January of 1980, the plaintiff asked for a prompt parole violation hearing and waived his right to be present at the hearing. The plaintiff was convicted of the Illinois charge on May 27,1980.

In December of 1980, Illinois acknowledged receipt of the parole violation warrant. In February of 1981, New York requested custody of the plaintiff. This request was denied by Illinois on March 10, 1981. At this time, Illinois informed New York that the warrant would be placed in the plaintiff’s file. On July 24, 1981, the plaintiff filed a petition for mandamus, asking that Illinois be ordered to transfer him to New York. The plaintiff’s petition was denied.

The plaintiff was released from the Illinois Department of Corrections on September 6, 1982. On September 13, 1982, an Illinois Governor’s warrant was issued for the plaintiff based on his violation of parole. Following a hearing, custody of the plaintiff was granted to New York and the plaintiff’s petition for a writ of habeas corpus was denied on December 28, 1982. The trial court refused to quash the Governor’s warrant or the detainer. It is from this decision that the plaintiff now appeals.

The plaintiff argues initially that the delay in holding his parole violation hearing is a violation of the provisions of article III of the Agreement on Detainers (hereafter the Agreement), codified in Illinois as section 3 — 8—9 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9). Specifically, the plaintiff contends that he should have been granted a hearing within 180 days of his request in January of 1980 for a prompt parole violation hearing. Article III of the Agreement provides in relevant part:

“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint ***.” Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9.

We find that the plaintiff has no claim for relief under the Agreement because the facts of this case do not place the plaintiff within the scope of the Agreement. The Agreement covers those situations where one imprisoned by the custodial State has a detainer based upon “any untried indictment, information or complaint” lodged against him. The warrant in the instant case was not based on an untried indictment, information or complaint, but on a violation of the plaintiff’s parole.

The courts of Illinois have not addressed the question of whether a parole violation is an untried indictment, information or complaint. The courts of several of our sister States have considered this question in reference to their codifications of the Agreement. They have consistently held that a detainer based upon a parole violation warrant does not fall within the purview of the Agreement on Detainers. Buchanan v. Michigan Department of Corrections (1973), 50 Mich. App. 1, 212 N.W.2d 745; Maggard v. Wainwright (Fla. App. 1982), 411 So. 2d 200; Blackwell v. State (Tenn. Crim. App. 1976), 546 S.W.2d 828; Haley v. State (1980), 47 Md. App. 45, 421 A.2d 982; Engs v. District Court (Okla. Crim. 1982), 645 P.2d 1035; State v. Knowles (S.C. 1980), 270 S.E.2d 133; Suggs v. Hopper (1975), 234 Ga. 242, 215 S.E.2d 246. See also Hernandez v. United States (W.D. Okla. 1981), 527 F. Supp. 83; Annot., 98 A.L.R.Sd 160, 184 (1980).

We concur in the reasoning of these cases and hold that the provisions of the Agreement are not applicable to detainers based upon parole violation warrants. The plaintiff was not entitled to the benefit of the procedures established by the Agreement. The State of New York was not obligated under the Agreement to provide him with a hearing within 180 days.

We next consider whether the plaintiff was denied due process by the failure of New York State to promptly conduct a parole violation hearing. Based upon the decision in Moody v. Daggett (1976), 429 U.S. 78, 50 L. Ed. 2d 236, 97 S. Ct. 274, we find that the plaintiff was not denied due process. The defendant Moody was on parole from a Federal prison when he was imprisoned for a second crime in a different Federal prison. The government issued a warrant based on Moody’s parole violation but did not execute the warrant until after Moody was released from the second prison. Moody argued that the lack of a prompt hearing on his parole violation denied him his right to due process. He requested that the parole violation warrant be dismissed.

The Supreme Court held that a parole violator does not suffer the loss of his constitutionally protected liberty interest until the execution of the parole violation warrant and custody under the warrant. A parole violator’s freedom is a liberty interest protected by the due process clause. Because there is no loss of this protected liberty interest until execution and custody, the parole violator has no due process right to a prompt hearing until such time as he is deprived of his freedom. The court therefore held that the Federal Parole Commission had no constitutional duty to provide Moody with a parole violation hearing until Moody was taken into custody by execution of the warrant.

We believe the decision in Moody is dispositive of the plaintiff’s argument. The fundamental holding in Moody is that a parole violator has no due process rights to a prompt hearing on his parole revocation if he is in prison for a different offense until he is taken into custody for parole violation. Therefore, as Mr. Justice Stevens noted in his dissent in Moody, a paroling authority could wait for as long as 10 or 20 years after commencing revocation of parole before granting a parole revocation hearing. We do not consider the fact that Moody was both paroled and imprisoned by the Federal government to be sufficient to distinguish Moody from the instant case. We therefore hold that the plaintiff was not deprived of his due process rights by the State of New York’s failure to grant him a prompt hearing on his revocation of parole.

The State of New York could have conducted the hearing on the revocation of the plaintiff’s parole while he was incarcerated in Illinois since he specifically waived his right to be present. New York chose not to do so. The plaintiff had no right under either the Agreement on Detainers or the due process clause to be granted a prompt hearing on his parole violation. There is therefore no basis on which we may quash the Governor’s warrant or the detainer.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY McKINNEY, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 211
    Opinion filed August 30, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago, and Robert E. Senechalle, Jr., of Senechalle & Murray, pro bono, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant Anthony McKinney was charged by indictment with murder and armed robbery and a jury convicted him on both counts. Defendant waived his right to a jury at his sentencing hearing. Upon hearing the evidence in aggravation and mitigation, the trial court imposed a sentence of natural life imprisonment after rejecting the death penalty. Defendant then instituted this appeal.

The State’s evidence revealed that on September 15, 1978, Donald Lundahl was sitting in his car at 153rd Street near Lexington in Harvey, Illinois, just before 10 p.m. when defendant walked up to the car. Wayne Phillips, who was standing about 50 yards away, testified that defendant approached Lundahl with a shotgun in his hand, pointed the gun at Lundahl and said to him, “Your money or your life.” Phillips then heard defendant say, “Well, you just going to have to die.” Defendant then fired the shotgun, reached into the car, put something in his pocket, and ran down an alley. Dennis Pettis, who was standing with Phillips at the time of the shooting, was subpoenaed to testify but failed to do so.

Harvey police officer Coleman McCarthy testified that he went to investigate the shooting of Donald Lundahl on September 15, 1978, and saw defendant running down the street. McCarthy placed defendant under arrest. The police report stated only that defendant was standing with the rest of the crowd that had gathered following the shooting.

At the time of defendant’s arrest, defendant’s brother Michael was also arrested. Both were released the following day.

Officer McCarthy, along with Officer Morrison, arrested defendant again on September 20 at approximately 12:30 a.m. pursuant to an arrest warrant. Defendant was taken to the police station and the Miranda warnings were read to him. After initially denying any involvement in the shooting, defendant admitted to committing the murder and he signed a written confession to that effect. Defendant also admitted to having taken $3 from Lundahl, but that admission came after the signing of the confession and was not included therein.

Defendant’s confession was the subject of a pretrial motion to suppress. Defendant contended that he did not receive the Miranda warnings, that the confession was physically coerced, and that his request to call his mother was denied. The evidence at the hearing on the motion revealed that the Miranda warnings were read to defendant by Officer McCarthy and that defendant read his rights out loud before acknowledging in writing that he understood them. Defendant was also allowed to call his mother when he requested to do so. Defendant’s motion to suppress was denied.

At the close of the State’s case, defendant’s motion for a directed verdict was denied. Following a recess, defense counsel requested leave of the court to call two witnesses who were not included on defendant’s witness list. The witnesses were Gwendolyn Pettis, sister of Dennis Pettis, the absent eyewitness, and Robert McKinney, defendant’s father. The State opposed allowing either witness to testify. The court allowed McKinney to testify but excluded Pettis. Defense counsel claimed that he had just learned of Pettis’ testimony. In a- formal offer of proof, Pettis testified as to a conversation she had .with her brother and Wayne Phillips, the other eyewitness, in which Phillips said that the police beat them until they agreed to identify defendant as the murderer. The court excluded Pettis from testifying on the grounds that: (1) she was not an occurrence or alibi witness— her only value lay in the impeachment of Wayne Phillips’ testimony, and (2) there was no foundation for this impeachment. The defense then presented its case.

The defense called Lena Haller who testified that sometime after 9:30 p.m. on September 15, 1978, defendant ran into her yard at 15329 Lexington in Harvey, Illinois, asking for help. Defendant told Haller that several boys were chasing him. She told defendant to run over to where the police were investigating a shooting. Defendant asserts that he was arrested while running over to the scene of the shooting.

The defense also called defendant’s father, Robert McKinney. McKinney testified that he and a friend were at home from 7 to 10:15 p.m. on September 15, 1978, and that defendant was at home with them the entire time.

Defendant also took the stand. He testified that he was running near the scene of the shooting because he was being chased by a gang of youths. He also claimed that the police beat him until he signed the acknowledgment-of-rights form and the confession.

After the jury returned a guilty verdict, defendant moved for a new trial. The motion was denied. Defendant then waived his right to have a jury pass sentence, and a hearing in aggravation and mitigation was conducted. The court imposed a sentence of natural life after concluding that the death penalty was not warranted. Defendant then appealed.

Defendant first contends that the State did not meet its burden of proving that defendant knowingly and intelligently waived his constitutional rights as enunciated in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, prior to making a confession to the police. This question was for the trial court to decide on the basis of the surrounding facts and circumstances (People v. Johnson (1973), 55 Ill. 2d 62, 70, 71, 302 N.E.2d 20) including the defendant’s background, experience, and conduct. (See North Carolina v. Butler (1979), 441 U.S. 369, 374-75, 60 L.Ed. 2d 286, 293, 99 S. Ct. 1755, 1758.) The court need not be convinced beyond a reasonable doubt in making its decision and its finding will stand unless contrary to the manifest weight of the evidence. People v. Johnson (1973), 55 Ill. 2d 62, 70-71, 302 N.E.2d 20.

We note that in the instant case, defendant was 18 years old with an 11th grade education at the time of the confession and that he read out loud and answered in writing the questions on a form entitled “Constitutional Rights of Person in Custody” which included the Miranda warnings. Thus, it is evident that defendant was capable of making an intelligent waiver of his rights. Defendant also acknowledged in writing that he was informed of and understood his rights prior to making a confession. Under these circumstances, we find sufficient evidence that defendant knowingly and intelligently waived his rights. See People v. Brooks (1972), 51 Ill. 2d 156, 164, 281 N.E.2d 326.

Defendant’s next contention concerns the trial court’s exclusion of a defense witness. At the close of the State’s case in chief and following a denial of defendant’s motion for a directed verdict, defense counsel requested that he be allowed to call two witnesses who were not included on defendant’s witness list as required by Supreme Court Rule 413 (87 Ill. 2d R. 413(d)(i)). The witnesses were Robert McKinney, defendant’s father, and Gwendolyn Pettis, sister of Dennis Pettis, the eyewitness who failed to appear at trial. The court allowed Robert to testify but excluded Gwendolyn.

Following the court’s ruling, defense counsel called Gwendolyn to testify out of the presence of the jury in a formal offer of proof. In pertinent part, she testified that she spoke with the two eyewitnesses, Wayne Phillips and Dennis Pettis, on September 20, 1978, and Phillips told her that the police had kept them over night and had beaten them and forced them to identify defendant as the man who killed Lundahl. Defendant contends that the court erred by excluding Gwendolyn from testifying.

Supreme Court Rule 413(d)(i) requires that defendant disclose prior to trial a list of the witnesses that defendant intends to call. (87 Ill. 2d R. 413(d)(i).) Failure to comply with this disclosure requirement subjects the defendant to possible sanctions, including the exclusion of the undisclosed witness. (See 87 Ill. 2d R. 415(g)(i).) Exclusion has been held to be a proper sanction where the facts and circumstances justify such action. (People v. Braxton (1980), 81 Ill. App. 3d 808, 815, 401 N.E.2d 1062.) Whether or not to impose such a sanction is a matter within the trial court’s discretion, and the court’s decision will not be disturbed absent a showing by defendant of prejudice or surprise. People v. Morales (1982), 109 Ill. App. 3d 183, 189, 440 N.E.2d 302.

In the instant case, defense counsel claimed to have learned of Gwendolyn’s testimony during a lunch break following the conclusion of the State’s case in chief. Counsel questioned Gwendolyn at her parents’ home. He did not explain what prompted him to go to the Pettis’ home during the break or how it came about that Gwendolyn suddenly revealed the substance of her preferred testimony. The circumstances surrounding Gwendolyn’s revelation strongly suggest recent fabrication (see People v. Braxton (1980), 81 Ill. App. 3d 808, 815, 401 N.E.2d 1062), and in light of defense counsel’s failure to adequately explain the reasons for seeking Gwendolyn out at such a late date, we find that the trial court did not abuse its discretion by excluding Gwendolyn from testifying.

The next contention of error concerns several comments in the prosecution’s closing and rebuttal arguments. Defendant contends that these comments contain numerous improper arguments which, taken together, served to deprive him of a fair trial.

Defendant’s first objection concerns the following remarks:

“Miss Turkington: Now, Anthony McKinney, and you will take it back with you, has already been convicted of burglary. It is a felony. It involved theft of an automobile. He was given probation. They let him go back on the street.

Mr. Broussard: Objection.

The Court: What is your objection?

Miss Turkington: Now the —

Mr. Broussard: Counsel’s improper comment regarding that matter we just spoke about.

Miss Turkington: It was already published, Judge.

The Court: For a limited purpose.

Mr. Broussard: She is exceeding that purpose.

The Court: Miss Turkington, I don’t think is going beyond the purpose.

Miss Turkington: Now, he had left burglary and graduated to using a weapon; murder and armed robbery.

Mr. Broussard: Objection, Judge. Objection.

The Court: The Exhibits are certified copies and are for a limited purpose which the jury will be instructed what the limited purpose is, which may I suggest the comments not go beyond that limited purpose.

Miss Turkington: Now, we have an eyewitness and a confession here where he has used a gun to rob. Now I ask you, and I insist upon the fact that you do not convict the Defendant because of his past criminal history. The People of the State of Illinois insist you do not do that. What we ask is you convict him because he has unlawfully murdered Donald Lundahl.”

Defendant objects to the prosecution’s implication that his prior burglary conviction could be used as substantive evidence of guilt in the instant case. It was indeed improper to imply that the prior conviction could be used as substantive evidence. But the trial court immediately noted that the prior conviction was being admitted for a limited purpose and that the jury would be so instructed. The prosecutor was also quick to admonish the jury that the prior conviction was not to be used as evidence of guilt. Taken together, these comments served to lessen whatever prejudice had been created. (See People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.) Furthermore, the prosecution in rebuttal argument reminded the jury that the defendant’s prior conviction went only to his credibility and should not be used as substantive evidence of guilt. The court’s instructions to the jury were to the same effect. We find that the prosecution’s curative comments and the court’s instructions served to alleviate whatever prejudice was created by the prosecution’s references to defendant’s prior conviction.

Defendant also objects to the prosecution’s statement that he “graduated” from burglary to murder and armed robbery. While this comment is somewhat inflammatory, we find that any error created by this statement is harmless beyond a reasonable doubt.

Defendant’s next objection concerns the prosecution’s statement that the eyewitness Wayne Phillips showed courage in testifying because

“when he took that stand he knew he would have to return to that same home he had left which is within blocks of the McKinney home and many of the McKinneys, of course, are not in custody. None of them other than this one.”

Defense counsel objected to the remark concerning defendant’s family and the trial court instructed the jury to disregard it. This comment was clearly an improper attempt to bolster the credibility of Wayne Phillips. (See People v. Bolden (1978), 59 Ill. App. 3d 441, 453, 375 N.E.2d 898.) But we cannot say that the remarks complained of influenced the jury in a manner that resulted in substantial prejudice to the accused and we therefore find the error created by the comments to be harmless beyond a reasonable doubt. See 59 Ill. App. 3d 441, 451, 375 N.E.2d 898.

Defendant next objects to the prosecution’s comment that the State had been unable to locate the other eyewitness, Dennis Pettis. It would clearly have been improper if the prosecution had commented on defendant’s failure to locate Pettis and call him to testify. (See People v. Puente (1981), 98 Ill. App. 3d 936, 948, 424 N.E.2d 775.) But where the State refers to its own failure to locate a witness and does not attribute its failure to defendant, we fail to see any impropriety.

Defendant raises three other objections to comments made in the prosecution’s closing argument. Defendant failed either to object to these comments or to raise them in his post-trial motion. The objections have therefore been waived. (See People v. Thomas (1983), 116 Ill. App. 3d 216, 220.) Although we may elect to review these objections under the plain error rule (87 Ill. 2d R. 615(a)), we decline to do so here. After thoroujghly reviewing the record, defendant’s assignments of error, and the pertinent case law, we conclude that the evidence is not closely balanced and that the assignments of error are not of such magnitude as to warrant a finding that defendant was denied a fair trial.

Defendant next contends that the trial court’s imposition of a natural life sentence was excessive.

Defendant waived a jury at his sentencing hearing and the State presented its evidence in aggravation. The evidence revealed that defendant murdered an unarmed victim in furtherance of a robbery and that this crime was committed while defendant was on felony probation. In mitigation, the defense noted that defendant was 21 years old and undergoing psychological counseling for problems which existed at the time of the murder.

Following the presentation of evidence in aggravation and mitigation, the court stated that the mitigating factors were sufficient to preclude imposition of the death penalty. The court then imposed a sentence of natural life imprisonment. In imposing that sentence, the court noted that the crime was a serious one and that defendant had a prior felony conviction. It also noted that the murder was committed during the course of an armed robbery, and that this fact permitted the imposition of a life sentence. Finally, the court stated that it was not optimistic as to the rehabilitative potential of defendant and that it found no evidence of regret or remorse.

It is apparent that because the murder in this case was committed during the course of an armed robbery, the court was permitted to impose a sentence of natural life. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(1)(b); Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6)(c).) It was within the sound discretion of the court whether or not to impose that sentence, and its decision should not be disturbed absent a showing of abuse of discretion. (See People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The court heard evidence in aggravation and mitigation and concluded that rehabilitation was unlikely. It also noted that defendant was a convicted felon and lacked remorse and that the crime was serious. It appears that the trial- court did not impose sentence before giving the matter serious consideration. In light of the fact that the court has great discretion in imposing sentence upon even a youthful offender (People v. House (1981), 98 Ill. App. 3d 304, 307, 424 N.E.2d 412) and that its decision is due great deference (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882), we cannot conclude that the sentence here was an abuse of discretion.

Defendant’s final contention is that he was not proven guilty beyond a reasonable doubt.

The State’s evidence revealed that an eyewitness saw defendant shoot the victim and that defendant confessed to committing the murder. On appeal defendant contends that the eyewitness’ testimony was unbelievable and that the confession was coerced. It was the jury’s duty, however, to weigh the credibility of the testimony and resolve the conflicts in the evidence (People v. Gunderson (1978), 66 Ill. App. 3d 516, 524, 383 N.E.2d 1296), and unless the entire record leaves the reviewing court with a grave and substantial doubt of guilt, the jury’s judgment should stand. 66 Ill. App. 3d 516, 524.

The defense consisted of the testimony of defendant’s father, Lena Haller, and defendant. Defendant’s father claimed that defendant was at home at the time of the murder. Lena Haller said that defendant was running in the vicinity of the murder scene because he was being chased by a gang of teenagers. Defendant denied committing the murder and robbery and claimed that he was forced to sign the confession. The jury was entitled to believe or disbelieve the testimony of these witnesses and they chose to disbelieve them. See People v. Adams (1979), 71 Ill. App. 3d 70, 74, 388 N.E.2d 1362.

It is apparent that the evidence in this case was merely conflicting. Under these circumstances, the jury’s verdict should stand. See People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

PERLIN and HARTMAN, JJ., concur.