Porter v. City of Chicago

Decision Date31 July 2009
Docket NumberNo. 1-06-1438.,1-06-1438.
Citation912 N.E.2d 1262
PartiesAnthony PORTER, Plaintiff-Appellant, v. The CITY OF CHICAGO, a Municipal Corporation, and Charles Salvatore, Star No. 13636; Dennis Gray, Star No. 13605; Geraldine Perry, Star No. 4667; Anthony Liace, Star No. 1803; Dennis Dwyer, Star No. 15615, as Individuals and Employees of the City of Chicago, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Michael W. Rathsack (James Montgomery, James Montgomery, Jr., and Michael W. Rathsack, of counsel), Chicago, IL, for Appellant.

Mara S. Georges, Corporation Counsel of City of Chicago (Benna Ruth Solomon, Deputy Corporation Counsel, Myriam Zreczny Kasper, Chief Assistant Corporation Counsel, and Christopher S. Norborg, Assistant Corporation Counsel, of counsel), Chicago, IL, for Appellees.

Justice CAHILL delivered the opinion of the court:

Anthony Porter filed a malicious prosecution complaint against the City of Chicago and several city police officers (collectively, defendants). The trial court entered a directed verdict for three of the officers. A jury returned a verdict for the City and Officers Charles Salvatore and Dennis Gray. The jury found, in response to special interrogatories, that Officers Salvatore and Gray had probable cause to prosecute Porter for the 1982 murders of Jerry Hillard and Marilyn Green and that the officers were not motivated by malice.

Porter raises four issues on appeal: (1) whether the trial court erred by excluding evidence of a subsequent third-party confession to the murders; (2) whether the trial court erred by allowing testimony about plaintiff's reputation as a juvenile and the details surrounding an unrelated criminal conviction; (3) whether the existence of probable cause, an absolute bar to a malicious prosecution action, is determined at the time of arrest or at the time of subscribing a criminal complaint; and (4) whether the trial court erred by refusing to instruct the jury that malice can be inferred from a lack of probable cause. After the parties filed their briefs but before oral argument, another division of this court decided Aguirre v. City of Chicago, 382 Ill.App.3d 89, 320 Ill.Dec. 512, 887 N.E.2d 656 (2008). Porter filed a motion to cite Aguirre as additional authority in support of his first contention on appeal: that the trial court erred by barring evidence of a subsequent third-party confession. We granted Porter's motion. Due to the retirement of a justice on the original panel, we held a second oral argument and gave the parties an opportunity to address the impact of Aguirre on this case.

We begin with our standard of review. The first two issues Porter raises on appeal call into question evidentiary rulings by the trial court. These are reviewed for an abuse of discretion. See People v. Illgen, 145 Ill.2d 353, 364, 164 Ill.Dec. 599, 583 N.E.2d 515 (1991). Although Porter concedes this in his appellate brief, he later suggested at oral argument that we apply de novo review to the trial court's ruling to exclude evidence of the third-party confession. De novo review of evidentiary rulings is an "exception to the general rule of deference [and] applies in cases where `a trial court's exercise of discretion has been frustrated by an erroneous rule of law.'" People v. Caffey, 205 Ill.2d 52, 89, 275 Ill.Dec. 390, 792 N.E.2d 1163 (2001), quoting People v. Williams, 188 Ill.2d 365, 369, 242 Ill.Dec. 260, 721 N.E.2d 539 (1999). The exception does not apply here. The record shows that the trial court excluded the evidence on relevancy grounds and not because the trial court misapplied a rule of law. The third issue Porter raises on appeal involves an important ruling and a question of law in Aguirre that impacts on this case: what is the relevant time frame for events that may be considered in deciding whether or not the police had probable cause to prosecute. We review the trial court's rulings on questions of law de novo. Eychaner v Gross, 202 Ill.2d 228, 252, 269 Ill.Dec. 80, 779 N.E.2d 1115 (2002). The final issue raised is the trial court's refusal to instruct the jury that malice can be inferred from a lack of probable cause. "While the threshold for permitting an instruction in a civil case is modest, the standard for reversing a judgment based on failure to permit an instruction is high." Heastie v. Roberts, 226 Ill.2d 515, 543, 315 Ill.Dec. 735, 877 N.E.2d 1064 (2007). We will not reverse absent an abuse of discretion. Heastie, 226 Ill.2d at 543, 315 Ill.Dec. 735, 877 N.E.2d 1064.

The elements essential to a malicious prosecution claim are firmly established in Illinois: (1) the defendant brought a criminal proceeding against the plaintiff; (2) the proceeding terminated in a manner indicative of innocence; (3) the defendant lacked probable cause to bring the proceeding; (4) the defendant acted out of malice; and (5) injury. Swick v. Liautaud, 169 Ill.2d 504, 512, 215 Ill.Dec. 98, 662 N.E.2d 1238 (1996). Defendants do not dispute that they initiated a criminal proceeding against Porter that resulted in a conviction. The facts that led to that conviction are set out in People v. Porter, 111 Ill.2d 386, 95 Ill.Dec. 465, 489 N.E.2d 1329 (1986). We recite the relevant facts in our supreme court opinion verbatim:

"On August 15, 1982, at approximately 1 a.m., Henry Williams and William Taylor went to Washington Park in Chicago. They climbed a fence to enter the pool area in the park and went swimming. At the same time, Jerry Hillard and his fiancee, Marilyn Green, were sitting in the upper portion of bleachers located to the west of the pools. After swimming for a while Williams decided to get out of the water. As he was putting on his pants, [Porter] approached with a gun in his hand and asked Williams if he had any money. [Porter] put the gun up to Williams' forehead, took $2 from his pocket, and then left. Williams continued to get dressed and looked for Taylor, who was still in the pool. He then saw [Porter] up in the bleacher area within three or four feet of Jerry Hillard with a gun pointed at Hillard. Williams finished dressing, and as he jumped back over the fence he heard several shots.

Taylor had continued to swim after Williams left the pool. He got out of the water and as he was drying off he saw [Porter] up in the north end of the bleachers. [Porter] was standing less than two feet from Hillard with his arm extended and a gun in his hand. [Porter] shot Hillard. Hillard fell back, and [Porter] shot him again. [Porter] then ran down the bleachers toward Taylor, passed within three feet of him, and left the pool area to the south. Taylor went up to where Hillard had fallen. He did not see Marilyn Green shot.

Shortly after 1 a.m., on August 15, 1982, Officer Anthony Liance, of the Chicago police department, responded to a call that a man had been shot in Washington Park. As he approached the pool area from the north he observed Marilyn Green running from the north end of the bleachers. She was holding her neck with her right hand and pointed to the south end of the bleachers with her left hand. Liance continued to approach the pools and saw a person whom he later identified in court as being [Porter], running south next to the bleachers. He stopped and frisked [Porter], but let him go because he did not find a weapon on him. After running past Officer Liance, Green staggered toward Officer B. Johnson and his partner. The two officers were issuing a motorist a traffic citation at the time. Johnson helped Green into a squad car and noticed that there was a hole in her neck. She was taken to a hospital where she died.

Officer Dennis T. Dwyer and his partner also responded to the call. As they approached the pools from the north, Williams walked out from the bleachers and told them that a man had been shot up in the bleachers. Dwyer observed Hillard on the top step of the bleachers lying on his back and bleeding from the head. Hillard was taken to a hospital where he underwent surgery and later died.

* * *

Both Henry Williams and William Taylor were taken by the police from the pool area to a police station. Williams identified a photograph of [Porter] in a mug book. He testified that he had seen [Porter] in the neighborhood almost every day for a period of about a year and a half before Hillard and Green were shot. Taylor also identified a photograph of [Porter] in a mug book. He had seen [Porter] in the neighborhood once or twice a month for a period of two to three years prior to the shootings. Taylor testified that when he was at the police station on August 15, 1982, he told the police that he did not see [Porter] shoot Hillard because he was afraid for his life. He had seen [Porter] mug two old men and said that one of his friends had been jumped by [Porter]. Taylor was living with his 95-year-old great-grandmother and stated that since he had to leave her alone when he went to work, he feared for her safety. On August 18, 1982, Taylor viewed a lineup at a police station and again identified [Porter].

* * *

[Porter] called three witnesses on his behalf. Eric Werner, a professional photographer, presented testimony regarding the physical appearance of the pool area at Washington Park. Werner had photographed the area at the request of [Porter's] counsel. The pictures were taken more than one year after Marilyn Green and Jerry Hillard were shot.

Kenneth Doyle also testified for [Porter]. He stated that he was at [Porter's] mother's house during the evening of August 14, 1982, and sat on the back porch with [Porter] drinking until about 2 a.m. the next morning. At that time he went with [Porter] and a friend to a nearby playground where they talked and continued to drink until 9 a.m. On cross-examination Doyle admitted he had talked to two detectives on August 17, 1982, and told them that he was drinking with [Porter] until about 10:30 p.m. on August 14, 1982, and then spent the rest of the night at...

To continue reading

Request your trial
31 cases
  • American Serv. Ins. Co. v. China Ocean Shipping Co. Inc.
    • United States
    • United States Appellate Court of Illinois
    • June 16, 2010
    ...of withdrawing a fact from issue and dispensing wholly with the need for proof of that fact. Porter v. City of Chicago, 393 Ill.App.3d 855, 864, 332 Ill.Dec. 376, 912 N.E.2d 1262 (2009). Therefore, a judicial admission cannot be contradicted in a motion for summary judgment or at trial. Rat......
  • Gauger v. Hendle
    • United States
    • United States Appellate Court of Illinois
    • June 28, 2011
    ...Ill.Dec. 446, 899 N.E.2d 1097 (2008). We review evidentiary rulings for an abuse of discretion. Porter v. City of Chicago, 393 Ill.App.3d 855, 857, 332 Ill.Dec. 376, 912 N.E.2d 1262 (2009). A trial court abuses its discretion where no reasonable person would take the view adopted by the cou......
  • Cui v. Elmhurst Police Dep't, Corp.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 14, 2015
    ...169 Ill.2d 504, 215, 662 N.E.2d 1238, 1242 (1996) (setting out the elements for this claim); Porter v. City of Chi., 393 Ill. App. 855, 858, 912 N.E.2d 1262, 1265 (1st Dist. 2009); see Thompson v. City of Chi., 722 F.3d 963, 978 (7th Cir. 2013). At this juncture, we grant Cui leave to amend......
  • Murawski v. Reid
    • United States
    • U.S. District Court — Northern District of Illinois
    • April 12, 2019
    ...the time of the arrest." Holland v. City of Chicago , 643 F.3d 248, 254 (7th Cir. 2011) (citing Porter v. City of Chicago , 393 Ill.App.3d 855, 332 Ill.Dec. 376, 912 N.E.2d 1262, 1274 (2009) ). For malicious prosecution under Illinois law, probable cause "is defined as a state of facts that......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT