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12/16/87 Lon Whipple, v. the Department of

December 16, 1987

LON WHIPPLE, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

518 N.E.2d 386, 164 Ill. App. 3d 902, 115 Ill. Dec. 861 1987.IL.1850

Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI, J., concurs. PRESIDING JUSTICE McNAMARA, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

This case arises out of an escape from Stateville Correctional Center on December 31, 1982. Plaintiff, Lon Whipple, worked as a tower guard during the 3 p.m. to 11 p.m. shift that evening and was charged with negligence in violation of Stateville Employee Rules 10 and 53, which essentially provide that the prevention of escape is paramount and that escape is attributable to employee negligence. After an administrative hearing, the hearing officer made an extensive set of factual findings and recommended that the charge against plaintiff be dismissed. The Civil Service Commission (hereinafter Commission) rejected the hearing officer's recommendation and ordered plaintiff's discharge. The Commission's decision adopted the hearing officer's findings to the extent that they were not inconsistent with the Commission's decision. Plaintiff then filed suit in the circuit court of Cook County against the Commission and the Department of Corrections seeking judicial review of the Commission's decision. The circuit court reversed and ordered plaintiff reinstated to his job with no penalty. The Commission and the Department of Corrections have appealed, contending that the manifest weight of the evidence supported the Commission's decision to discharge plaintiff.

On January 18, 1982, plaintiff began working at Stateville as a correctional officer-trainee, and was promoted on January 18, 1983, to the position of correctional officer. On December 31, 1982, while still a trainee, plaintiff was assigned to work the 3 p.m. to 11 p.m. shift in tower 5. Plaintiff had received that particular assignment twice each week since the previous April or May. Tower 5 was located at the corner of the north and west walls of the prison and was one of five towers situated along the north wall. The circular interior of tower 5 had a diameter of about 10 feet and the tower contained windows and two doors. One of the doors led to a steel catwalk which extended seven or eight feet toward tower 4 along the north wall. The other door led to a steel catwalk which extended seven or eight feet toward towers 6 and 7 along the west wall. The catwalks were situated outside of the walls and the walls were about 40 feet high.

Sometime during the evening in question, three inmates, Randy Velleff, Patrick Cecconi, and Frank Amato, attempted to escape over the north wall at tower 4, which was located approximately 360 feet away from where plaintiff was stationed in tower 5. Of the five towers along the north wall, only towers 1 and 5 were staffed that evening. Velleff and Cecconi succeeded in escaping over the north wall at tower 4. The Commission contends on appeal that the manifest weight of the evidence disclosed that the escape occurred during plaintiff's shift and that he could and should have noticed the inmates' activities. Plaintiff contended below that the manifest weight of the evidence disclosed that the escape occurred after his shift had ended because no physical evidence of the escape was found until about 12:30 a.m. Plaintiff also contended that the manifest weight of the evidence did not show that he could or should have noticed the inmates' activities. Because of the nature of the parties' contentions, it is necessary to set forth the evidence in detail.

Five witnesses testified at the administrative hearing. First, Darrell Cobb, a supervisor at Stateville who was in charge during the night in question, testified that the prison was secured and that the inmates were counted early that night, about 6:30 p.m., because it was New Year's Eve. The count normally occurs about 9 p.m. After the count, at approximately 8:45 p.m., Cobb was informed that three inmates were missing, and Cobb ordered a search. He also testified that the tower guards were informed at 8:30 p.m. of a possible escape. At that time, the tower telephones were working. However, at approximately 9:30 p.m., a power failure occurred, knocking out the prison telephones until about 5:30 p.m. on January 1, 1983. At one point, Cobb testified that, to his knowledge, the area where plaintiff was stationed was unaffected by the power failure. At another point, he testified that the tower telephones were out of order beginning at 9:30 p.m. Regardless of whether or not the phones were working, the tower guards had radios which did work. Cobb testified that both tower 5 and tower 3 had lights, but that tower 4 lacked lights.

Sometime after 10 p.m., Cobb received a radio message that Amato had just appeared. Amato claimed that he had stumbled near the prison chapel at 4:30 p.m. and that he had lain there unconscious until almost 10 p.m. There was mud on Amato's pants and shoes. Cobb then investigated the chapel area. He did not see any mud. To the contrary, the weather was extremely cold, and the ground was frozen. Cobb ordered a search of the sewers and ditches, which were the only places where water was running and where there could have been mud. The various searches yielded no results until 12:25 a.m. At that time, the guards found pipes placed against the inside of the wall in the position of a ladder. They also found a rope hanging down to the ground from a stanchion that protruded from tower 4. The rope was wrapped around the stanchion, and a piece of pipe 12 to 18 inches long was attached to the rope.

During cross-examination, Cobb contradicted his earlier testimony that tower 3 had lights and stated that only towers 1 and 5 had lights. He testified further that tower 5 had two spotlights, both of which were directed toward the inside of the institution. He said that one light was directed down the north wall, while the other light was directed to an area in the northwest corner of the prison yard. He also said that he was notified at 8:30 p.m. (rather than 8:45 p.m.) that someone was missing. At 10 p.m., he ordered a search of the areas inside and outside of the wall, but no evidence of an escape was discovered until 12:25 a.m., when the pipes were found lying on the ground west of and directly under tower 4.

During redirect examination, Cobb testified that there is no "obstruction from the towers."

The second witness, Randy Velleff, was one of the inmates who escaped. He was captured on March 4, 1983, in Dallas, Texas, and was incarcerated at Menard. Velleff testified that he chose New Year's Eve to attempt an escape because he believed that the prison would be understaffed that night. During the day, he had worked with the tunnel crew. He subsequently met Cecconi and Amato at the chapel. They went to the gymnasium until about 3 p.m. Then they "sort of just hung out" in the tunnel. They also hid in an underground manhole next to the block shop until about 6:30 p.m., when they left to gather rope and pieces of pipe which were stashed in an area between the block shop and the north wall. They reached the north wall at approximately 7:30 p.m., and attempted to assemble the pieces of pipe to create a makeshift ladder that they could use to scale the wall. The pieces of pipe, however, kept breaking apart and falling down, making noise in the process. The inmates themselves also made noise. They talked to each other and cursed at the pipe. When the pipe continued to fall apart, the inmates ran back through the prison yard to obtain more pipe. They then returned to the wall and tried to reassemble the pipe, which continued to break, to fall, and to create noise. It took about five minutes to run over, pick up the pipe, and run back.

As to the lighting conditions, Velleff stated that the night was dark but not black "like I wanted." There were lights on in tower 3, but at 7 p.m. or 7:15 p.m. the lights went out. Velleff thought that they had been seen so they froze for about 10 minutes, made their way back to the end of a building, and lay there for a while. The lights in tower 3 eventually returned about 20 minutes after they had failed, and they remained on until Velleff and Cecconi scaled the wall. The lights were also on in tower 5. He described the area as "so well lit up, it is like a street lamp."

Velleff testified further that, after the pieces of pipe continued to break apart, he tied the rope to one piece of pipe. He and Cecconi then stood 15 to 20 feet from the wall and in front of tower 4 and tried to lasso the rope around the stanchion that protruded from tower 4. They threw the rope and the pipe about 15 times before finally getting it hooked over the bar. Of the 15 times that they threw the pipe, the pipe hit the steel tower 12 or 13 times. Each time that the pipe struck the tower, the impact created a very loud noise that sounded like a shotgun and that scared Velleff "witless." Velleff said that that occurred at about 9 p.m., when it was "dead quiet" in the yard. Velleff thought that the tower guard would hear the noise. After having lassoed the rope to the stanchion, Velleff worked the piece of pipe down the rope in order to fashion a double rope. This took 10 to 15 minutes. He and Cecconi then climbed up the rope in 3 to 5 seconds each. They waited on top of the wall for 10 minutes while Amato tried to climb up, but Amato was physically unable to climb the rope. Velleff then pulled up the rope and dropped it down the outside of the wall. He and Cecconi descended. Velleff looked at his watch when he touched down and noticed that it was 9:20 p.m. He and Cecconi proceeded to walk several miles to a steak house, where they called a cab and had a few drinks. They waited an hour and a half for a cab, because the cab company "didn't give us prompt service." As previously noted, Velleff was captured several months later, but the record does not indicate whether or not Cecconi was captured.

During cross-examination, Velleff testified that they crawled along the furniture factory in the prison yard in the course of the escape. He also stated that he was very much aware that there was no guard in tower 4, and that he thought that a guard was stationed in tower 3 until he started hitting tower 4 with the pipe. He said that a guard in tower 3 would have heard the noise. Velleff admitted that he had been convicted of two prior armed robberies, as well as a credit card offense and the escape.

During redirect examination, Velleff stated that he thought that both towers 3 and 5 were unmanned because the inmates had made a great amount of noise yet were not discovered. He knew, however, that a corner tower such as tower 5 would always be manned at night.

The record also contains a transcript of testimony Velleff provided at Amato's trial, which was held about one month after Velleff testified at plaintiff's administrative hearing. During Amato's trial, and in Amato's presence, Velleff testified that he did not remember testifying at plaintiff's administrative hearing.

The third witness at the administrative hearing was Captain Ulsey Price, who was the correctional captain of the 3 p.m. to 11 p.m. shift but who previously had worked as a tower guard in tower 5. He described Stateville as a maximum security institution housing approximately 1,900 inmates, 90% of whom had committed a crime of violence. According to Price, a tower guard basically has the duty to be alert for the security, custody, and control of the residents in the front, sides, and back of his tower, and to guard against all unauthorized movement and activity. More particularly, the tower 5 guard is responsible for the entire area between the wall in front of tower 4 and the lumber yard. When the tower spotlight was on, the guard would be able to see the area on ...


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