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

• Decision Date: 11 December 2013
• Docket Number: Docket Nos. 1–09–3547,1–09–3549 cons.
• Citation: 377 Ill.Dec. 111,1 N.E.3d 998,2013 IL App (1st) 093547
• Parties: The PEOPLE ex rel. the CITY OF CHICAGO, Petitioner–Appellee, v. LE MIRAGE, INC., a/k/a La Mirage All Nite Studio, Ltd., Dwain Johnson Kyles, and Calvin Hollins, Jr., Respondents–Appellants.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 093547

1 N.E.3d 998

377 Ill.Dec. 111

The PEOPLE ex rel. the CITY OF CHICAGO, Petitioner–Appellee,

v.LE MIRAGE, INC., a/k/a La Mirage All Nite Studio, Ltd., Dwain Johnson Kyles, and Calvin Hollins, Jr., Respondents–Appellants.

Docket Nos. 1–09–3547, 1–09–3549 cons.

Appellate Court of Illinois,

First District, Fourth Division.

Nov. 14, 2013.

Rehearing Denied Dec. 11, 2013.

Abishi C. Cunningham, Jr., Public Defender, of Chicago (Lester Finkle and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant Calvin Hollins, Jr.

Victor P. Henderson, Christopher W. Carmichael, Chelsea C. Ashbrook, and Darren H. Goodson, all of Holland & Knight LLP, of Chicago, for appellant Dwain Johnson Kyles.

Stephen R. Patton, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for appellee.

OPINION

Justice EPSTEIN delivered the judgment of the court, with 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.

¶ 2 BACKGROUND

¶ 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, 369 Ill.Dec. 335, 986 N.E.2d 648. 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, 307 Ill.Dec. 253, 859 N.E.2d 253 (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...