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04/03/89 Eddie Horton, v. Marshall Field & Company


April 3, 1989

EDDIE HORTON, PLAINTIFF-APPELLEE

v.

MARSHALL FIELD & COMPANY, A DELAWARE CORPORATION, DEFENDANT-APPELLANT, AND CHARLES CAMPBELL, THOMAS BENZ, ROBERT GRAHAM, AND WILLIAM SCHMIDT, DEFENDANTS 1989.IL.470

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE HARRY S. STARK, JUDGE PRESIDING.

APPELLATE Judges:

JUSTICE O'CONNOR, MANNING, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

Plaintiff Eddie Horton sued Marshall Field & Co. ("Marshall Fields") for battery, false imprisonment, and malicious prosecution. A jury returned verdicts in Horton's favor on all three counts, assessing exemplary and compensatory damages.

Eddie Horton was a shoe salesman in Marshall Field's State Street store. On July 1, 1982, Ms. Patricia Owens approached Horton and asked to exchange a pair of shoes that she had purchased from the store. Horton exchanged the shoes without processing the transaction on his cash register or creating a new receipt, a procedure allowed by the store. Horton testified he forgot to return Owens' original receipt, however, and assuming that she would return for it, put it in the register drawer.

As Owens started to leave the store, she was stopped by security agent Charles Campbell, who asked to see her receipt. Campbell had observed Owens behaving suspiciously, watched her transaction with Horton, and followed her. Owens told Campbell that she had a receipt, which should have been in her bag. Campbell, with Owens' permission, searched the bag but found no receipt. Campbell took Owens to a 3' X 5' interrogation room where, about an hour later, Owens wrote and signed a statement that she had "purchased a pair of shoes for $23.00, which should of [sic] been $46.00," that she had asked "the salesperson Eddie" for a "deal," and that Eddie had responded, "yes, I will see for 1/2 off." The statement was signed by Owens and witnessed by Robert Graham, an employee in the store's internal investigations department.

Subsequently, Campbell and Security agent Thomas Benz took Horton to an interrogation room and handcuffed him. Horton was shown to Owens, who identified him as the salesperson Eddie. Horton's register showed no transaction for the shoes, and a cursory search by the Security Personnel produced no receipt, Horton was told that he was to be arrested. The handcuffs were removed and Horton searched. Horton became abusive, and the security agents fought him to the floor. Horton was again handcuffed. The police were summoned, and Horton was charged with retail theft and disorderly conduct.

The next day, Horton contacted a fellow employee, who located Owens' receipt near Horton's register. The receipt showed a sale of the same type of shoes by shoe salesman Julius Doss on the afternoon of July 1, 1982. Horton showed the receipt to security personnel. Five days later, Benz interviewed Doss, who told him that a woman had bought the same type of shoes that Horton had exchanged for Owens. Boss later identified Owens as the woman to whom he had sold the shoes.

Prosecution of Horton for disorderly conduct and retail theft was not discontinued. Agent Campbell signed the complaint against Horton. In a bench trial, Horton was acquitted of both charges. Prosecution of Owens was stricken on leave.

Horton sued the store for battery, false imprisonment, and malicious prosecution, alleging that he had been beaten by the security agents when taken into custody, and held and prosecuted without probable cause. Prior to trial, Horton stated in answers to interrogatories that he had been convicted of retail theft on January 26, 1983. The trial court refused to admit into evidence Horton's conviction for impeachment purposes. The jury returned verdicts in favor of Horton on all counts, and assessed $74 compensatory damages for the battery, $1 compensatory and $1 exemplary for the false imprisonment, and $500 compensatory and $25,000 exemplary for the malicious prosecution. The trial court denied the store's post-trial motions for judgment n.o.v. or new trial. The store appeals.

Marshall Field's makes two arguments: first, it argues that the trial court abused its discretion when it refused to admit Horton's prior conviction for retail theft for impeachment purposes. Second, the store argues that the trial court improperly denied its motions for judgment n.o.v. or new trial because the finding of no probable cause for detaining or prosecuting Horton was incorrect as a matter of law. The record, however, supports the trial court's rulings.

Marshall Field's argues that Horton's conviction for retail theft, offered to impeach Horton, was erroneously excluded by the trial court. The trial court, Field's maintains, mistakenly attached significance to the fact that Horton was convicted after the incident at the store. Marshall Field's contends that the conviction met the standards for admission for impeachment purposes set forth in People v. Montgomery (1971), 47 Ill. 2d 510, 216 N.E.2d 695, and was not barred because it was subsequent to the events about which Horton would testify. Horton responds that the prejudicial effect of the conviction outweighed its probative value. The record supports Horton. The trial court was apparently cognizant of Montgomery and Marshall Field's was not prejudiced by exclusion of Horton's conviction.

People v. Montgomery (1971), 47 Ill. 2d 510, 216 N.E.2d 695, adopted Rule 609 of the Federal Rules of Evidence, which admits felony convictions less than 10 years old for impeachment purposes unless the court determines that the probative value of the conviction is substantially outweighed by its prejudicial effect. Four factors are to be considered in balancing probative value against prejudicial effect: the nature of the crime, its similarity to the crime charged if the witness is the defendant, the proximity in time to the trial in which the witness testifies, and the subsequent career of the witness. (Montgomery, 47 Ill. 2d at 518.) The trial court need not expressly apply Montgomery, but the record must show that the factors were considered. (People v. Ellison (1984), 123 Ill. App. 3d 615, 463 N.E.2d 175.) The trial court's decision to admit or exclude a prior conviction will not be overturned absent a clear abuse of discretion. Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 399 N.E.2d 606.

The trial court did not expressly apply Montgomery, but the record shows that the court was aware of the case. With no showing to the contrary, we therefore assume that the trial court properly considered the relevant factors. (See People v. Marron (1986), 145 Ill. App. 3d 975, 983-84, 496 N.E.2d 297.) Horton was convicted just 9 months after the incident at the store, and 4 1/2 years before the trial. The conviction for retail theft was the same crime that Horton had been originally accused of by Marshall Field's. The trial court may reasonably have concluded that the identical nature of the conviction, and its proximity in time to the incident at the store, outweighed its probative value concerning Horton's credibility 4 1/2 years later.

The decision to admit or exclude prior convictions rests within the discretion of the trial court, and its decision generally has been upheld. (e.g., People v. Marron (1986), 145 Ill. App. 3d 975, 496 N.E.2d 297; People v. Tennin (1984), 123 Ill. App. 3d 894, 463 N.E.2d 202 (convictions admitted); and Brown v. Chicago Northwestern Transportation Co. (1987), 162 Ill. App. 3d 926, 516 N.E.2d 320; Ashby v. Price (1983), 112 Ill. App. 3d 114, 445 N.E.2d 438 (convictions excluded).) People v. Walker (1987), 157 Ill. App. 3d 133, 510 N.E.2d 29, however, reversed a trial court ruling to exclude convictions for impeachment purposes, where the conviction was offered to impeach a witness who was not the defendant. The appellate court noted that the jury was foreclosed from considering the conviction for any purpose but impeachment. (157 Ill. App. 3d at 137.) Here, Horton was a witness, and had the jury been prejudiced by the prior conviction, he would not have risked conviction of a crime. Horton would, however, have risked the loss of his case against Marshall Field's. Assuming, as we do, that the trial court applied Montgomery, we find that the court's ruling was proper.

Although Horton faced a great potential risk of prejudice had the conviction been admitted, Marshall Field's suffered little, if any, prejudice by exclusion of the conviction. Marshall Field's pointed out that Horton was the only witness to several facts in the case, and therefore an accurate assessment of his credibility was important. But, as Marshall Field's also noted, Horton gave conflicting testimony, testimony the store described as "labrythine." Further, the store had the opportunity to present witnesses to support its theory of the case and rebut Horton. The store also had the opportunity to argue its case to the jury, and argue the inconsistent nature of Horton's testimony to the jury. Marshall Field's had sufficient means and opportunity to attack Horton's credibility as a witness without resort to the conviction.

Marshall Field's points to a colloquy where the trial court gave weight to the fact that Horton was convicted after the incident at the store, but in context that colloquy concerned the admissibility of Horton's conviction as evidence to challenge Horton's allegations of damage to his reputation subsequently all allegations of damage to reputation were dropped. The colloquy did not address admissibility for impeachment. A conviction subsequent to the incident upon which a witness testifies is permissible for impeachment, (Pratt v. Bartoli (1977), 55 Ill. App. 3d 884, 887, 371 N.E.2d 359), but assuming the trial court excluded the conviction for impeachment purposes based on the sequence of events, the error was not reversible. Where a trial court's ruling is correct it will be upheld, even if the rationale was incorrect. (See People v. Smith (1984), 127 Ill. App. 3d 622, 469 N.E.2d 641.) The record indicates that the trial court considered Montgomery, and that Marshall Field's was not prejudiced by the exclusion. We therefore conclude that the trial court's decision to not admit Horton's conviction for retail theft was correct and in no respect an abuse of discretion.

Marshall Field's also argues that the trial court erroneously denied its motions for judgment n.o.v. and new trial because the store had probable cause to detain and prosecute Horton, an affirmative defense to malicious prosecution. The store also argues that it was insufficiently involved in the continued prosecution of Horton to sustain a cause of action for malicious prosecution. Horton responds that the motions were properly denied, applying the standards for judgment n.o.v. or new trial, and that jury's finding of no probable cause should not be disturbed.

Judgment n.o.v. will be entered where the evidence, viewed most favorably to the non-moving party, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern Railroad (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Granting or denying motions for new trial is within the discretion of the trial court, and its decision will not be overturned absent a clear abuse of discretion. (In re Matter of Village of Bridgeview (1985), 139 Ill. App. 3d 744, 487 N.E.2d 1109.) Examination of the record in the instant case reveals that the trial court properly applied the above standards.

Construing the facts most favorably to the non-movant, Horton, it appears that the jury's finding of no probable cause was not unreasonable. The store's assertion of probable cause was based on Owens' statement, and the fact that Horton's register tape showed no transaction for even exchange. Owens' hand-written statement seems dubious, however, since it contradicts her original assertion that she had a receipt for the exchange of the shoes, and because it was made after she had been in custody for an hour, locked in a tiny room with at least one security guard present at all times.

The evidence of the register tape is even more dubious. It was unnecessary to make an even exchange through the cash register, and even had Horton done so, the register tape would not have shown the time of the transaction. Nevertheless, the security personnel chose to interpret the register tape's lack of exculpatory evidence as incriminating. Further, Horton told the security agents that Owens had shown him a receipt, but the agents made but a dilatory search for the receipt, preferring instead to search Horton for weapons and charge him with disorderly conduct and retail theft.

The day after the incident, Horton contacted another employee, who located the missing receipt. The security personnel never interviewed that employee. The receipt showed the in the afternoon of July 1, 1982, sales clerk Julius Doss had sold the same type of shoes that Horton had been accused of giving to Owens. With this knowledge, the security agents waited five more days to interview Doss. After the investigation, Marshall Field decided to institute action against Horton, and security agent Campbell signed the complaint against Horton.

In actions for malicious prosecution, want of probable cause is a mixed question of law and fact. (Mack v. First Security Bank of Chicago (1987), 158 Ill. App. 3d 497, 502, 511 N.E.2d 714, app. den. 117 Ill. 2d 545.) Here, the trial court found sufficient evidence to submit the issue to the jury. The jury, after hearing the evidence and being able to assess the credibility of all witnesses, returned a finding of lack of probable cause. The evidence, construed most favorably to Horton, compels neither a contrary verdict nor a new trial.

In summary, Marshall Field's argues that the trial court erred by excluding Horton's prior conviction and denying its post-trial motions. The record shows, however, that the trial court considered all of the relevant factors in ruling on the admissibility of the conviction. The post-trial motions were denied with neither abuse of discretion nor error of law. The judgment in favor of Eddie Horton and against Marshall Field & Company is therefore affirmed.

CASE RESOLUTION

Affirmed.

19890403

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