No. 2--05--0439 filed: 9/5/06
______________________________________________________________________
________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________
________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
)
Plaintiff-Appellee, )
)
v. ) No. 04--MRB345
)
ONE 1999 LEXUS, )
VIN JT8BH68X2X0018305 )
)
Defendant ) Honorable
) Edward R. Duncan, Jr.,
(John Suich, Claimant-Appellant). ) Judge, Presiding.
_________________________________________________________________________
_____
JUSTICE BOWMAN delivered the opinion of the court:
The claimant, John Suich, appeals the circuit court's order forfeiting to the State a
1999 Lexus. He contends that the trial court's finding that the car was subject to forfeiture
was against the manifest weight of the evidence. We affirm.
On February 10, 2004, Phillip Massey was arrested and charged with driving under
the influence of alcohol (DUI) and driving with a suspended or revoked license. He was
driving a 1999 Lexus owned by the claimant, his grandfather. The State filed a petition
seeking forfeiture of the Lexus. The petition alleged that Massey's license had been
suspended or revoked because of a prior DUI conviction. It further alleged that the
claimant knew this, but allowed Massey to drive the car.
At the hearing on the petition, the prosecutor referred to various documents that he
had shown to defense counsel. Defense counsel responded, "We will stipulate." The
documents include the notice of forfeiture, title and registration documents for the Lexus,
the petition for forfeiture, and the indictment and sentencing order from Massey's
underlying criminal case. These documents allege that Massey's license had been
suspended or revoked based on a previous DUI conviction. They also show that Massey
was found not guilty of DUI but guilty of driving with a suspended or revoked license in the
underlying case. The State also called three police officers who testified that Massey had
been arrested three times for DUI, including the arrest that led to the underlying case.
The claimant testified that Massey moved in with him when he could no longer afford
to maintain his own apartment. Massey did not have a car, so the claimant let him use his
car to get to work. The claimant was aware that Massey had been arrested previously for
DUI. He knew that after one arrest Massey had pleaded guilty to DUI and had been
sentenced to two years' probation. However, he did not know that Massey's license was
suspended or revoked. Massey was never impaired when he asked to use the car. After
the second DUI arrest, Massey said that he was not drinking anymore.
The trial court ordered the car forfeited. The claimant timely appeals.
The claimant contends that the State failed to prove that Massey's license was
revoked as the result of one or more DUI convictions and that the claimant knew that
Massey's license was suspended or revoked. Therefore, the claimant contends that the
trial court's finding that the vehicle was subject to forfeiture was against the manifest weight
No. 2--05--0439
of the evidence. The State responds that the circumstantial evidence was sufficient to
prove both these points.
Section 36--1 of the Criminal Code of 1961 provides as follows:
"Any vessel, vehicle or aircraft used with the knowledge and consent of the
owner in the commission of *** an offense prohibited by *** subsection (g) of Section
6--303 of the Illinois Vehicle Code *** may be seized ***." 720 ILCS 5/36--1 (West
2004).
Section 6--303 of the Illinois Vehicle Code prohibits driving while one's license is
suspended or revoked. 625 ILCS 5/6--303 (West 2004). Subsection (g) of that section
provides that a vehicle may be forfeited "if the person's driving privilege was revoked or
suspended as a result of a violation listed in paragraph (1), (2), or (3) of subsection (c) of
this Section." 625 ILCS 5/6--303(g) (West 2004). Paragraph (1) of subsection (c) refers to
section 11--501 of the Illinois Vehicle Code (625 ILCS 5/11--501 (West 2004)), which
prohibits driving while under the influence of alcohol. Thus, the claimant's car was subject
to forfeiture if the State proved that he knowingly permitted Massey to use it while Massey's
driver's license was suspended or revoked as a result of one or more DUI convictions.
However, the claimant could avoid forfeiture by showing, by a preponderance of the
evidence, that he did not know or have reason to know that the vehicle would be used in
the commission of a crime. 720 ILCS 5/36--2 (West 2004); People v. 1991 Chevrolet
Camaro, VIN 1GFP23E9ML117842, 251 Ill. App. 3d 382, 386 (1993).
A forfeiture proceeding is civil and the State must show by a preponderance of the
evidence that the vehicle was used in the commission of a crime enumerated in the
forfeiture statute. 1991 Chevrolet Camaro, 251 Ill. App. 3d at 386. The trial court's findings
-3-
No. 2--05--0439
in a forfeiture proceeding will not be disturbed unless they are against the manifest weight
of the evidence. People ex rel. Spencer v. One 1978 Pontiac Automobile, VIN No.
2L69Y8P243561, 242 Ill. App. 3d 411, 412 (1993).
The claimant first contends that the State did not prove that Massey's driver's license
was suspended or revoked for a DUI conviction. We disagree. We note that the claimant
does not appear to dispute that Massey's driving privileges were in fact suspended or
revoked; he contends only that the State failed to prove the reason for the suspension or
revocation.
The stipulated documents the State tendered included the indictment from the
underlying case, which alleges that Massey's driving privileges were suspended or revoked
"for a violation of 625 ILCS 5/11--501.1," which provides for the suspension or revocation of
the driver's license of one convicted of DUI. They also include the order convicting him of
driving with a suspended or revoked license.
In his reply brief, the claimant contends that the stipulated documents were never
introduced into evidence. The record shows that the prosecutor tendered the documents to
the trial court. However, the prosecutor never asked the trial court to admit them into
evidence. The documents nevertheless appear in the common-law record.
It is true that generally a document must be offered by its proponent and admitted
into evidence by the trial court before it may be considered evidence. L.S. Huckabay, M.D.
Memorial Hospital, Inc. v. KPMG Peat Marwick, LLP, 843 So. 2d 1186, 1201 (La. App.
2003); 75 Am. Jur. 2d Trial '346 (1991); 29 Am. Jur. 2d Evidence '3 (1994). It is error to
permit the trier of fact to consider documents that have not been tendered or admitted into
evidence. 75 Am. Jur. 2d Trial '346 (1991); see Cannon v. Venture Stores, Inc., 743
-4-
No. 2--05--0439
S.W.2d 473, 476 (Mo. App. 1987) (attorney could not use for impeachment purposes a
police report that had not been offered to or received by the court).
It appears that the primary purpose of this rule is to give the opposing party an
opportunity to object to the document before the court rules. Anderzhon/Architects, Inc. v.
57 Oxbow II Partnership, 250 Neb. 768, 774, 553 N.W.2d 157, 161 (1996); see also Hazdra
Homes, Inc. v. County of Du Page, 27 Ill. App. 3d 685, 690 (1975) (document is not
properly admitted into evidence unless opposing party has prior opportunity to examine it);
75 Am. Jur. 2d Trial '350 (1991).
These principles have been applied in only a handful of Illinois cases. In People v.
McClerren, 197 Ill. App. 3d 441 (1990), the trial court erred by relying on facts that were
deemed admitted by the defendant's failure to respond to the plaintiff's request to admit
facts (see 134 Ill. 2d R. 216(c)), because the request to admit was never introduced or
received into evidence at the trial. McClerren, 197 Ill. App. 3d at 443. On the other hand,
where the plaintiff's counsel admitted that a dismissed codefendant had executed a
covenant not to sue and stated for the record that the defendant's counsel was being
furnished with a copy of the covenant, there was "a sufficient presentation of the issue of
the covenant into the record to warrant its consideration by the court." Burns v. Stouffer,
344 Ill. App. 105, 113 (1951).
Exceptions to the requirement of formal admission of documents have been
recognized where the opposing party stipulates to their admission or they contain facts that
may be judicially noticed. See Reynolds v. Burt, 359 So. 2d 50, 51-52 (Fla. App. 1978).
Both exceptions could potentially apply in this case. We note that the most relevant
documents in question here, the indictment and judgment in the underlying case, are court
-5-
No. 2--05--0439
records, of which the court could take judicial notice. See People v. White, 311 Ill. App. 3d
374, 380 (2000).
A case factually quite similar to this one is Chandler v. Hemeyer, 49 S.W.3d 786
(Mo. App. 2001). There, the owner of "video games" that the State deemed gambling
devices intervened to attempt to prevent their forfeiture. The trial court took judicial notice
of the court file in an underlying gambling prosecution. On appeal, the court recited the
general rule that a record must be introduced into evidence. Chandler, 49 S.W.3d at 791.
However, the court held that where the trial court takes judicial notice of a file physically
before it, the court file is deemed introduced into evidence and the trial court may consider
it. Chandler, 49 S.W.3d at 791-92. The court further noted that the claimant waived any
objection to the records because he did not object when the prosecutor asked the trial court
to judicially notice the file. Chandler, 49 S.W.3d at 792.
The procedure followed here was functionally equivalent to that in Chandler. The
prosecutor physically tendered the documents to the trial court and to the claimant's
counsel. The latter did not object, and in fact "stipulated" to the documents. Although the
trial court did not explicitly state that it was taking judicial notice of the records, it certainly
could have done so. In any event, a stipulation waives the formal requisites of admission
into evidence. As the supreme court recently stated:
"A defendant, however, may waive the necessity of proof of chain of custody
by entering into a stipulation with respect to the evidence. People v. Holloman, 46
Ill. 2d 311 (1970); People v. Polk, 19 Ill. 2d 310, 315 (1960); see People v.
Carpenter, 228 Ill. App. 3d 899, 904 (1992). A stipulation is an agreement between
parties or their attorneys with respect to an issue before the court (People ex rel.
-6-
No. 2--05--0439
Stead v. Spring Lake Drainage Levee District, 253 Ill. 479, 492 (1912); see Wright v.
County of Du Page, 316 Ill. App. 3d 28, 40 (2000)), and courts look with favor upon
stipulations because ' "they tend to promote disposition of cases, simplification of
issues[,] and the saving of expense to litigants." ' People v. Coleman, 301 Ill. App.
3d 37, 48 (1998), quoting In re Estate of Moss, 109 Ill. App. 2d 185, 192 (1969).
The primary rule in the construction of stipulations is that the court must ascertain
and give effect to the intent of the parties. In re Marriage of Galen, 157 Ill. App. 3d
341, 344-45 (1987). 'A stipulation is conclusive as to all matters necessarily
included in it' [citation] and '[n]o proof of stipulated facts is necessary, since the
stipulation is substituted for proof and dispenses with the need for evidence'
[citation]. Generally speaking, a defendant is precluded from attacking or otherwise
contradicting any facts to which he or she stipulated. See Polk, 19 Ill. 2d at 315; 34
Ill. L. & Prac. Stipulations '11 (2001)." People v. Woods, 214 Ill. 2d 455, 468-69
(2005).
Thus, a defendant may by stipulation waive the necessity of proof of part of the case.
People v. Rucker, 346 Ill. App. 3d 873, 892 (2003). A stipulation has the effect of
eliminating the need for proof that might otherwise have been required. Polk, 19 Ill. 2d at
315; People v. Spivey, 351 Ill. App. 3d 763, 769 (2004).
These cases suggest that a stipulation either serves the function of admitting
documents or testimony into evidence or removes the issue from the case entirely,
dispensing with the need for a formal presentation of evidence (see People v. Hill, 345 Ill.
App. 3d 620, 632 (2003)). If there is a functional difference between these formulations, it
may have to do with the precise timing and nature of the stipulation. In either case, if the
-7-
No. 2--05--0439
claimant's stipulation here was valid, there was no need to formally introduce and admit the
documents into evidence.
A further aspect of stipulations is that a stipulation to an item of evidence waives the
right to challenge that evidence on appeal. Hill, 345 Ill. App. 3d at 631; People v. Calvert,
326 Ill. App. 3d 414, 419 (2001). This is so because in most cases, if the defendant had
objected to the evidence at trial, the State could have cured the alleged deficiencies at that
time. Hill, 345 Ill. App. 3d at 632. Moreover, even plain error review is generally
unavailable because, by stipulating, a party is deemed to have participated in presenting
the evidence. " 'Under the doctrine of invited error, an accused may not request to proceed
in one manner and then later contend on appeal that the course of action was in error.' "
Hill, 345 Ill. App. 3d at 633, quoting People v. Carter, 208 Ill. 2d 309, 319 (2003).
Therefore, if the claimant's stipulation here was binding, he cannot now complain that the
trial court improperly considered the documents.
There remains the interpretation of the claimant's rather terse stipulation. A
stipulation, although lacking some of the formal requisites of a contract, is an agreement
between the parties. 73 Am. Jur. 2d Stipulations '1 (2001). Accordingly, like a contract, a
stipulation is interpreted according to the parties' intent. See Woods, 214 Ill. 2d at 468-69;
Calvert, 326 Ill. App. 3d at 419. As with a contract, to be enforceable a stipulation must be
clear, certain, and definite in its material terms. West v. H.P.H., Inc., 231 Ill. App. 3d 1, 6
(1992).
Here, after the State presented its last witness, the following colloquy occurred:
-8-
No. 2--05--0439
"MR. DIAMOND [Assistant State's Attorney]: Judge, at this point in time I've
shown counsel the supporting documentation regarding the vehicle forfeiture
including the notifications and the title and registration documents.
MR. FENELON [The claimant's counsel]: Judge, if I might just peruse them
once again.
We would stipulate to the proof of service, and receipt of the same by Mr.
Suich.
MR. DIAMOND: Judge, I've also included in the packet copies of the
indictment, complaint ***
MR. FENELON: We would stipulate.
MR. DIAMOND: *** sentencing order from the underlying case which is the
basis of this forfeiture.
MR. FENELON: Correct. So stipulated, Judge.
THE COURT: Thank you."
The State then rested. Defense counsel approached the bench and asked to see the
documents again. He then called his client to the stand and began questioning him.
The claimant does not argue that the stipulation was not sufficiently specific to be
enforced or that it was ambiguous. In fact, he concedes in his appellant's brief that the
"introduction of the State's evidence was by stipulation." Based on the above-quoted
colloquy, the most reasonable interpretation is that the claimant's counsel was stipulating
that the documents be admitted into evidence. The sequence came at the end of the
State's case, when it would normally be expected to move its exhibits into evidence.
Moreover, the fact that the claimant did not object in the trial court that the exhibits were not
-9-
No. 2--05--0439
admitted further supports the conclusion that the claimant's counsel believed that he had
stipulated to the admission of the documents.
Of course, it is possible that the claimant's counsel meant to stipulate only that the
documents existed, but this is not a reasonable interpretation. In construing a contract, a
court should not adopt a construction that will render any term meaningless. In re Marriage
of Perdue, 162 Ill. App. 3d 126, 131 (1987). Interpreting the stipulation as counsel agreeing
to what was already obvious to the judge would render the stipulation meaningless.
Thus, there was no need for the prosecutor to formally introduce the documents into
evidence or for the trial court to formally admit them. The trial court could take judicial
notice of the documents, and the claimant's stipulation meant, at a minimum, that he did not
object to them. Therefore, the trial court did not err in considering the documents despite
the lack of a formal action admitting them into evidence.
We note that the claimant does not fault his trial counsel for making the stipulation.
Because a forfeiture action is civil, it is doubtful that a claim of ineffective assistance of
counsel would be viable. See Kalabogias v. Georgou, 254 Ill. App. 3d 740, 750 (1993) (no
right to effective assistance of counsel in civil case); In re D.B., 246 Ill. App. 3d 484, 492
(1993) (same). But see In re Carmody, 274 Ill. App. 3d 46, 56-57 (1995) (right to effective
assistance of counsel has been extended to various types of civil actions). A claim that
counsel was ineffective for unadvisedly stipulating to certain evidence might be viable in a
criminal case. In any event, with no indication in this record of why counsel decided to
stipulate to the documents, it would be impossible to evaluate such a claim in this case.
See Calvert, 326 Ill. App. 3d at 421.
-10-
No. 2--05--0439
Moreover, we note that the State presented evidence apart from the documents that
Massey's license was suspended or revoked due to a DUI conviction. Three officers
testified that they had previously arrested Massey for DUI. No evidence was presented of
any other reason that Massey's license might have been suspended or revoked. Finally,
the claimant testified that Massey had been convicted of DUI. Based on this evidence, the
trial court could reasonably find that Massey's license was suspended or revoked on the
basis of a DUI conviction.
The claimant also contends that the State failed to prove that the claimant knew that
Massey's driver's license was suspended or revoked. Section 36--1 states that, before it
can be forfeited, the vehicle must be used "with the knowledge and consent of the owner"
in the commission of a crime. 720 ILCS 5/36--1 (West 2004). The claimant insists that the
State failed to prove this element of its case. Again, we disagree.
Generally, knowledge is proved by circumstantial evidence. See People v. Brogan,
352 Ill. App. 3d 477, 493 (2004). Moreover, knowledge can be inferred from the facts of the
particular case. People v. Holt, 271 Ill. App. 3d 1016, 1025 (1995). Therefore, one need
not admit knowledge for the trier of fact to conclude that he or she acted knowingly. People
v. Melton, 282 Ill. App. 3d 408, 417-18 (1996).
Here, the claimant testified that Massey lived with him. They apparently had a close
relationship and the claimant knew important details about Massey's life. He knew that
Massey did not own a car. He knew about Massey's previous DUI arrests. He knew that
one had led to a conviction and a sentence of probation. Yet the claimant denied knowing
that Massey's driver's license was suspended or revoked. It is common knowledge that a
driver's license can be suspended or revoked following a DUI conviction. See 625 ILCS
-11-
No. 2--05--0439
5/11--501.1 (West 2004). Moreover, it is inherently doubtful that the claimant would know
of Massey's arrests, know of his conviction, and know of his sentence, yet not know of the
suspension or revocation. Thus, the trial court could reasonably find that the claimant knew
about the status of Massey's driver's license, despite his express denials.
The judgment of the circuit court of Du Page County is affirmed.
Affirmed.
O'MALLEY and KAPALA, JJ., concur.
-12-