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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 ...


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