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People ex rel. City of Chicago v. Le Mirage, Inc.

Court of Appeals of Illinois, Fourth District

November 14, 2013

THE PEOPLE ex rel. THE CITY OF CHICAGO, Petitioner-Appellee,
LE MIRAGE, INC., a/k/a La Mirage All Nite Studio, Ltd., DWAIN JOHNSON KYLES, and CALVIN HOLLINS, JR., Respondents-Appellants.

Appeal from the Circuit Court of Cook County 03 MC1-19280102, 03 MC1-19280103 Honorable Daniel T. Gillespie, Judge Presiding.

JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Lavin concurred in the judgment and opinion.



¶ 1 Respondents Dwain J. Kyles and Calvin Hollins, Jr., owned and operated a first-floor restaurant (Epitome) and second-floor nightclub (Epitome 2 or E2) at 2347 South Michigan Avenue in Chicago, Illinois. On July 19, 2002, the circuit court ordered respondents to vacate the second floor because of building code violations. They continued to operate E2 until February 17, 2003, when 21 people were crushed to death in a panic after security guards sprayed pepper spray in an attempt to subdue a fight. Following a jury trial, respondents were convicted of indirect criminal contempt and sentenced to two years' imprisonment based on their violation of the circuit court's order. They now raise evidentiary, jury instruction, and sentencing challenges. We affirm their convictions, but, because the trial court improperly relied on the nightclub tragedy in aggravation, we vacate respondents' sentences and remand for a new sentencing hearing.


¶ 3 This case comes to us on remand from the Illinois Supreme Court. See People ex rel. City of Chicago v. Le Mirage, Inc., 2013 IL 113482. The supreme court reversed the holding by another panel of this court that respondents were not proven guilty beyond a reasonable doubt—an issue not raised before our court on appeal—and remanded with instructions for us to consider the issues raised by respondents. Id. ¶ 78.

¶ 4 Building Code Violation

¶ 5 On April 29, 2002, a City of Chicago (City) building inspector discovered that E2's mezzanine VIP rooms[1] were constructed improperly and without a permit. On June 18, 2002, the City filed a building code enforcement action against Lesly Motors, Inc., respondents' landlord. Le Mirage, Inc., the company through which respondents owned and operated E2, was voluntarily impleaded.

¶ 6 Four court dates followed. On July 19, 2002, the parties initially agreed "not to occupy the second floor V.I.P. rooms." When the court asked if there were any other issues, the City presented building inspector Marguerite Shahi, who testified regarding her July 16, 2002, inspection of 2347 South Michigan Avenue:

"Q. [City] Other than the items that we already addressed, is there anything else that's dangerous and hazardous that you would like to address to the Court?
A. [Shahi] One is the substandard partitions that were used to build the V.I.P. rooms that are supported by the boisterous [sic] roof. Everything I've learned is that there should be absolutely no weight on structural members especially suspended from a boisterous [sic] roof ceiling. So, the whole second floor would be dangerous and hazardous, since it was built without plans and permits to begin with. And also, there's suspended weight from the boisterous [sic] roof.
Q. And an Order today to not occupy that second floor would abate your concerns?
A. Yes.
Q. Are there any other violations besides the second floor that you are concerned about?
A. No. The second floor is the major one."

Following Shahi's testimony, the court announced, "Your agreement is no occupancy of the second floor. You have to keep it vacant." The court also issued a written order stating, "Mandatory order not to occupy 2nd floor."

¶ 7 On the following court date, August 9, 2002, the City noted that a hearing "as to the conditions on the second floor" had been scheduled, but requested a continuance. The court granted a continuance and issued an order stating, "Mandatory order not to occupy 2nd floor of subject premises."

¶ 8 On September 6, 2002, the City said its motion "that the second floor and the mezzanine not be occupied" had previously been granted. The court issued an order stating, "All previous orders remain in full force and effect."

¶ 9 On October 25, 2002, the City noted the court had issued an "order not to occupy the mezzanine and the second floor VIP rooms." When the court asked if there were any dangerous and hazardous conditions, the City responded, "They would be abated, if the Court does continue the previous orders not to occupy the mezzanine, the second floor, and the VIP rooms." Kyles, present in court that day, agreed. The court announced, "All prior orders to stand, " and issued an order stating, "All prior orders to remain in full force and effect." The matter was continued until March 7, 2003.

¶ 10 Indirect Criminal Contempt

¶ 11 The E2 tragedy occurred in the early hours of February 17, 2003. The following day, the City filed a petition for adjudication of indirect criminal contempt against Kyles and Le Mirage, Inc. The City later amended the petition, adding Hollins and omitting Le Mirage. After a mistrial, another panel of this court rejected respondents' double jeopardy arguments, but ordered that a different judge preside over the retrial. See People ex rel. City of Chicago v. Hollins, 368 Ill.App.3d 934 (2006). The instant appeal concerns the results of that retrial.

¶ 12 Motion in Limine

¶ 13 Respondents listed a half-sheet and a letter from their attorney among exhibits they intended to introduce at trial. The half-sheet stated, "BA [by agreement] Mirage will not occupy 2nd floor VIP rooms." In pertinent part, attorney Bradley Prendergast's letter to attorney Thomas Royce stated, "The judge entered an Order that the second floor mezzanine not be used, the VIP room, until there is a hearing." The City moved in limine to exclude this evidence, arguing that, because the order itself was controlling, the half-sheet and letter were irrelevant and would only confuse the jury. Hollins argued that the exhibits would show that the building court's order was ambiguous; Kyles argued they would show that he did not willfully violate the order, because he misunderstood its scope. Following a hearing, the trial court granted the City's motion, finding that the order alone was controlling, and that the half-sheet and letter could not be introduced to show respondents' lack of willfulness.

¶ 14 Jury Trial

¶ 15 Building inspector Marguerite Shahi testified that, based on her July 16, 2002 inspection, she believed E2's VIP skyboxes were "dangerous and hazardous" and built without a permit. On July 19, 2002, she asked the building court to close the entire second floor, not just the VIP rooms. Shahi said that she was concerned that the weight of a "live load" could cause the trusses to become unstable, and the skyboxes, which extended 15 feet over the dance floor, could collapse onto the second floor. The City introduced the July 19, 2002 transcripts and order.

¶ 16 Shahi further testified that, when she returned to E2 on August 8, 2002, none of the violations had been corrected. On August 9, 2002, the court entered an order stating, "Mandatory order not to occupy second floor of subject premise." She visited E2 again on September 5, 2002, but did not gain entry. The following day, she again went to court, and the trial judge stated that all previous orders were to remain in full force and effect. She visited E2 a final time on October 23, 2002, where she met Hollins, who identified himself as the building's owner and said that he "wanted to know what he had to do to comply in order to lift the order to use the second floor." Shahi showed him a crack in one of the trusses and told him that they could collapse from supporting too much weight. She advised him to obtain plans and permits for repairing the trusses and the skybox VIP rooms. None of the violations had been corrected, nor had permits been obtained, by October 23, 2002. On October 25, 2002, the court entered another order stating that all previous orders would remain in effect.

¶ 17 City building inspector Julio Montilla testified that he accompanied Shahi to E2 on September 5 and October 23, 2002. According to Montilla, the skyboxes were suspended from fractured roof trusses and were not original to the building. Montilla identified several photographs he took of the damaged trusses.

¶ 18 Attorney Demetrius Kare represented the City in the underlying building code action. He testified that the City intended for the entire second floor, not just the VIP rooms, to be closed. Accordingly, on July 19, 2002, the circuit court ordered respondents not to occupy the second floor. That day, respondents' attorney, Bradley Prendergast, did not wait to receive a copy of the court's order. The court entered a similar order on August 9, 2002. Kyles was present in court on October 25, 2002, when Kare again asked that no one occupy the second floor or the mezzanine. Kare denied that he and respondents ever entered into an agreed order.

¶ 19 Lesly Benodin testified that he leased 2347 South Michigan Avenue through his company, Lesly Motors, Inc., to respondents, but had no role in operating E2. He identified a 10-year lease, in which respondents agreed to be responsible for all repairs and additions. The mezzanine was built prior to respondents' lease, but respondents added the skyboxes. When Benodin received notice of building code violations at 2347 South Michigan Avenue, he hired attorney Ed Morris, who told him that the entire second floor must be closed. Benodin, in turn, told Hollins that the entire second floor must be closed.

¶ 20 Detective John Lucki testified that he and Detective Ed McMahon interviewed Hollins on February 17, 2003, in the presence of Hollins' attorney, Thomas Royce. Hollins said that he was E2's operations manager and had an office in E2's second-floor loft. Hollins also told him that he and Kyles had a joint bank account and had obtained a $150, 000 loan to finance E2 operating costs. Finally, Hollins told him that, since August 2002, a company called Envy had hosted engagements on Fridays and Sundays and hosted a ladies' night on February 16, 2003. Detective Lucki also spoke with Kyles, who stated that he was an attorney and E2's owner and confirmed that he and Hollins had a joint bank account. Kyles further stated that Envy hosted ladies' nights at E2 on Sundays, including February 16, 2003, but he had little knowledge of the event. According to Kyles, Envy normally provided entertainment and security for these events.

¶ 21 Stan Bochnowski testified that he served as vice president of commercial loans at Lakeside Bank in 2000. That year, Hollins, individually and on behalf of Le Mirage, Inc., mortgaged a Darien, Illinois, property for $150, 000 to cover E2's operating costs. Hollins repeatedly told Bochnowski that he was E2's owner and general manager.

¶ 22 Seven witnesses for the City testified that E2's main floor and mezzanine were occupied post-July 19, 2002. Sherman Bramlett testified that he provided E2's security through a private contractor every Sunday from October through December of 2002. During that time, hundreds of clubgoers occupied E2, and people routinely entered the VIP rooms. The VIP area was never blocked by ropes, signs, or security guards. On one occasion, a man fell through the floor of the VIP area, his feet dangling above the floor below.

¶ 23 Kionna Henry and Lashanda Hudson testified that they visited E2 seven and three times, respectively, post-July 19, 2002. On weekends, the club would fill to nearly 800 people. They never visited the VIP skyboxes, but observed people in that area. No ropes, signs, or security guards barred access to the VIP area. On February 16, 2003, the crowd swelled to over 1, 000, including approximately 50 or 60 people in the VIP rooms.

¶ 24 Chiquita Henry testified that she attended E2 approximately 10 to 15 times post-July 19, 2002. She visited the VIP area several times and observed others in that area. Nothing indicated that the VIP rooms were closed. On February 16, 2003, approximately 1, 000 people were in the club, including 100 to 150 in the VIP room.

¶ 25 Shanethia Allen testified that she and her friends were admitted into E2's VIP rooms on February 16, 2003. No signs or security guards barred access to the VIP area. Approximately 15 or 20 people were in the VIP area. Over 1, 000 people filled the club that night.

¶ 26 Asonjin Gamble testified that she went to E2 over 50 times after July 19, 2002, and occasionally visited the mezzanine VIP rooms, where the club operated an additional bar. There was no indication that the VIP rooms were closed. The club was crowded on February 16, 2003. Gamble went to the VIP rooms that night. Again, nothing indicated that the VIP rooms were closed, and over 30 people were in the VIP area that night.

¶ 27 Off-duty police officer Samuel Smith testified that he and three others visited E2 on February 14, 2003, and occupied a VIP skybox. There were 15 or 20 people in the skyboxes. No security guard or sign barred access to the VIP area.

¶ 28 Attorney Bradley Prendergast testified for the defense that he represented respondents on July 19, 2002, because Thomas Royce, with whom he shared an office, was unavailable. According to Prendergast, prior to the hearing, he, the City, and Lesly Motors' attorney developed an agreed order barring access only to the VIP rooms. No one mentioned closing the entire club. He admitted, however, that he did not obtain a copy of the court's written order that day. Although Shahi testified that the "whole second floor" should be vacated, and the judge said, "Your agreement is no occupancy of the second floor, " Prendergast believed that "second floor" referred to the mezzanine VIP rooms. When he returned to his office, he dictated a letter to Royce indicating that the court had barred access to the VIP rooms. The court's order was faxed to the office he shared with Royce on July 23, 2002.

¶ 29 Attorney Thomas Royce testified that he represented respondents in the underlying building code enforcement action. Because he was unavailable for the July 19, 2002, court date, Prendergast went in his stead and left a letter on Royce's desk describing the proceedings. Royce received a copy of the court order on approximately July 24th or 25th and noticed that it was inconsistent with Prendergast's letter. He then looked at the July 19, 2002 half-sheet and found that it was consistent with the letter, but inconsistent with the order. The letter and half-sheet both referenced the VIP rooms, while the order referenced the second floor. Sometime between July 19, and August 9, 2002, he told Kyles about this inconsistency, but advised him to vacate only the VIP section. On his visit to E2, Royce observed a sign barring access to the VIP rooms. Royce appeared in court on August 9, 2002, but never brought the inconsistency to the court's attention. The judge signed another order that day prohibiting occupancy of E2's second floor. Royce testified that the first time he heard that the club should be closed was in February of 2003. He acknowledged that occupying VIP rooms would be a violation of the court's order.

¶ 30 Kyles testified that he is a lawyer and E2's owner-operator. According to Kyles, when Le Mirage built the VIP skyboxes in 2000 or 2001, its contractors and architects said that permits were unnecessary, because the changes were cosmetic and the mezzanine was stable, having previously been used for engine part storage. When, in July of 2002, he learned of E2's building code violations, Kyles voluntarily impleaded himself. He contacted Royce to represent him on July 19, 2002, but Prendergast appeared in Royce's stead. After the hearing, Royce instructed Kyles to vacate the mezzanine VIP area. Royce informed him that the court's order and half-sheet were inconsistent, but Kyles never asked to see either. At an E2 staff meeting, Kyles told his employees that the mezzanine VIP rooms were unavailable. Kyles admitted that he possessed no documents memorializing this order to his staff.

¶ 31 Kyles attended the building code enforcement proceedings on October 25, 2002, believing that E2 had reached an agreement with the City, but the City still insisted that he file plans and permits. Although he agreed on that date that previous orders should stand, Kyles believed that the previous orders barred only occupancy of the mezzanine VIP area. Neither the City, nor Royce, nor Benodin informed Kyles that the club was supposed to be closed.

¶ 32 Between July 19, 2002, and February 16, 2003, Kyles continued to operate E2. According to Kyles, he was unaware that he was violating a court order and believed that the order barred only access to the mezzanine VIP rooms. In 2002, Marco Flores from Envy began leasing E2 to host events on Fridays and Sundays, including a ladies' night. Flores hired a company called Team 1 Security to provide E2 security. Kyles attempted to bar mezzanine access with a sign and a rope, but that was insufficient. Eventually, Team 1 Security stationed a guard to prevent access to the VIP area. He never heard that someone fell through the skybox floor.

¶ 33 Kyles stated that he and Hollins never tried to conceal their business partnership, but was impeached on this point: the City confronted Kyles with an affidavit pertaining to a 2002 liquor license action, in which Kyles swore that Hollins was merely a consultant. Kyles admitted that he did so because Hollins was "legally ineligible" to manage E2.

¶ 34 Kyles further testified that he never asked his managers whether they leased the mezzanine VIP area in their contracts. When confronted with a contract signed by Janielle Taylor leasing E2's VIP area post-July 19, 2002, Kyles claimed that he did not recognize the contract and that Taylor was an independent contractor who lacked authority to accept contracts. He was impeached by a memorandum in which he described her as a promotion and events manager who negotiated agreements for the club.

¶ 35 According to Kyles, it was not until February 17, 2003, that he learned that E2 was supposed to be closed. Kyles never obtained a permit for the skyboxes.

¶ 36 Verdict and Sentence

¶ 37 During the jury instruction conference, the City requested Illinois Pattern Jury Instructions, Criminal, No. 5.11 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 5.11), which concerns acts an individual commits on behalf of a corporation. Kyles and Hollins objected, arguing that Le Mirage was no longer a respondent and that neither individual had tried to hide behind a corporation. The trial court instructed the jury pursuant to IPI Criminal 4th No. 5.11 over respondents' objections.

¶ 38 Approximately 30 minutes into deliberations, the jury sent a note asking for a definition of the term "willfully." The court instructed the jury that it had "received all the instructions and evidence the Court has admitted. Please continue to deliberate." The jury found respondents guilty of indirect criminal contempt.

¶ 39 Prior to sentencing, respondents argued that the trial court should bar any evidence of the February 17, 2003 tragedy, because the contempt charges concerned violation of a building court order unrelated to the tragedy, and because they had already been acquitted of manslaughter charges stemming from the tragedy. The City maintained that punishment should be measured by the gravity of the contemptuous conduct and the power to punish contempt is not limited by statute. The trial court denied respondents' motions, but asked the City to "streamline" the evidence regarding the tragedy. The court further noted that evidence of the tragedy was excluded during the guilt phase because "the facts of that night would be so prejudicial that it would outweigh the probative factor, " but that "those facts are entitled to be presented at sentencing."

¶ 40 The City argued in aggravation, "We are here six years later, 21 people dead. And the reason those 21 people are dead is because these two men willfully violated four court orders that had been put in place to protect the public." After discussing the building code violation, the City concluded, "The bottom line is that because of their willful and wanton violations of these court orders we have 21 people dead. As such, Judge we ask you and we believe that justice cries out for it, both of these men should receive substantial periods of incarceration."

¶ 41 Kyles argued in mitigation that the City argued that "they are concerned about how 21 black people lost their lives in February of 2003 in a tragic accident which by the way the Illinois Appellate Court already has told you had nothing to do with the building code violations." Kyles continued, "to want to see them behind bars for a tragic accident is improper and not supported by anything in the case law . And no case has been cited that indicates that building code violations result and may [sic] spending time in jail. It doesn't exist."

¶ 42 After respondents presented several mitigation witnesses, the City again argued, "Judge, you know, I respect all the people that stood up today and, you know, I respect everything they said. I just want to remind your Honor that there are 21 people who couldn't stand up today. They were a terrible loss to the community. [B]ut for what [respondents] did, those 21 people would be alive today if they had stepped up and if they had closed the place which they chose not to do. They need to be told and they need to be sent a message about those 21 people who would still be alive here today."

ΒΆ 43 The trial court sentenced respondents to two years' imprisonment. The court did not explicitly refer to the E2 tragedy during its pronouncement, but noted that probation would be improper ...

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