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Ritenour v. Police Bd. of City of Chicago

OPINION FILED OCTOBER 7, 1977.

DEWEY RITENOUR, PLAINTIFF-APPELLEE,

v.

THE POLICE BOARD OF THE CITY OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND K. BERG, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 17, 1977.

In an action brought under the Administrative Review Act (the Act) (Ill. Rev. Stat. 1973, ch. 110, par. 264 et seq.), the trial court reversed a decision of the Chicago Police Board (Board) discharging plaintiff. On appeal, the following contentions are presented: (1) that the Board's findings and conclusions were based on improperly admitted evidence; and (2) that the manifest weight of the evidence supports the findings of the Board.

It appears that at approximately 8:30 on the evening of December 31, 1974, someone shot out a street lamp in an alley in the vicinity of 1844 West Grace Street, and that two persons residing at that address heard the shot. One of them, Caroline Kelley, upon looking out saw a man standing in the alley next to a car with an open door. She saw him enter the car and, as he drove away, Kelley asked Oscar Whitehead (her boarder) to get the license number of the car. Whitehead, who had also heard the shot, ran after the car and observed the license plate number as the car was at a nearby traffic stop sign. Later, he described the car to the police as a gold or yellow 1963 or 1964 Chevrolet Camaro, with license number DR 7897. That number was registered to a car owned by plaintiff and, at his home that evening, a police officer questioned him about the shooting incident and the fact that his license plate was seen on a car in the vicinity of the occurrence. Plaintiff told the officer that he had been at home all evening and had not been at the location of the firing that evening; that he had not been aware prior thereto of a missing front license plate; and that his car was a 1972 blue Datsun.

On January 7, 1975, Sergeant Dorff and Investigator Hovland examined a mercury vapor street lamp located in the alley behind 1844 West Grace Street. From the ground they each saw a small hole in both the glass and the reflector. At Dorff's request, the Bureau of Electricity sent two of its employees to open the lamp fixture. When one of them removed the glass and reflector from the lamp fixture, two metal fragments fell to the ground. The particles were picked up by the two men and given to Dorff, who put them in his pocket and brought them to the crime lab for analysis.

On January 9, 1975, Dorff, in the presence of plaintiff's attorney, obtained a statement from plaintiff in which he listed the manufacturer, the model, and the serial number of each firearm he owned. At Dorff's request, plaintiff submitted four of his handguns to the crime lab, where they were test-fired by Sergeant Smith, a ballistics expert, and immediately returned to plaintiff. Subsequently, the metal fragments found at the scene were found by Smith to be portions of bullets fired from one of plaintiff's handguns, a Smith & Wesson.

Plaintiff was then charged with violations of the following departmental rules: "Rule 2 Any action or conduct which impedes the Department's efforts to achieve its goals, or brings discredit upon the Department. Rule 38 Unlawful or unnecessary use of display of a weapon. Rule 39 Failure to immediately make an oral report to the desk sergeant at the District of occurrence and to follow such oral report with a written report on the prescribed form, whenever a firearm is discharged by a member."

At the hearing, plaintiff's written statement containing an admission of ownership of the Smith & Wesson handgun linked to the bullet fragments found in the lamp fixture was admitted into evidence. Plaintiff stated that he had been in a traffic accident early on December 31, 1974. His car, a 1972 Datsun, was damaged, and he was injured. He reported to work at 4:30 that afternoon but was excused because of his injuries and arrived home about 5:30 p.m. A police officer came to his home and questioned him concerning the shooting incident and the fact that his license plate was on the car which left the alley immediately after the shooting. This was the first time he was aware that his license plate was missing. He denied being at the location of the incident, stating that he was at home alone at the time of the shooting.

The Board made findings that plaintiff violated Rule 2, 38 and 39 and ordered that plaintiff be discharged, but the trial court on administrative review held that "the finding of the Police Board was and is against the manifest weight of the evidence."

OPINION

• 1 Defendants contend that the court erred in finding the decision of the Board to be against the manifest weight of the evidence. On administrative review, the scope of inquiry is limited to ascertaining whether the agency's finding was contrary to the manifest weight of the evidence. (Kerr v. Police Board (1974), 59 Ill.2d 140, 319 N.E.2d 478.) Preponderance of the evidence is the standard of proof required (Drezner v. Civil Service Com. (1947), 398 Ill. 219, 75 N.E.2d 303), and it is particularly within the province of the agency to resolve evidentiary conflicts and to determine the credibility of the witnesses (Peterson v. Board of Trustees (1973), 54 Ill.2d 260, 296 N.E.2d 721).

Here, it is the position of defendants that the decision of the Board was supported by the evidence. Plaintiff maintains, however, that certain of the evidence was improperly admitted, and it will be necessary that we examine his contentions before we resolve the manifest weight question.

First, he asserts that a proper foundation was not established for the admission of the bullet fragments because a continuous chain of their possession was not shown and, as a result, the testimony of Sergeant Smith that the fragments were of a bullet fired from the Smith & Wesson in question was improperly received. After the particles fell from the alley lamp, they were picked up by the two men from the Bureau of Electricity, who handed them to Sergeant Dorff. He then took them to the police crime lab. There, Dorff placed them in a brown envelope, which he sealed and then initialed and dated the envelope flap — following which he placed cellophane tape over the flap. He then gave the sealed envelope to Officer Charnow, a lab technician, who gave him an investory receipt. Sergeant Smith stated that he was given the sealed envelope the next day by Charnow and placed it in an evidence retention drawer, where it remained until opened by him to conduct his analysis, at which time Smith said it showed no signs of tampering.

• 2 Plaintiff argues that because there was no direct testimony from Officer Charnow, who accepted the fragments from Dorff, the chain of possession was broken and, as a result, the foundation for the admission of the documents was insufficient. He cites no supporting authority, and we find that case law is to the contrary. In People v. Anthony (1963), 28 Ill.2d 65, 69, 190 N.E.2d 837, 839, the court rejected a similar contention that a chain of possession was broken because there was no direct ...


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