text:
    THE DEPARTMENT OF REGISTRATION AND EDUCATION, n/k/a The Department of Professional Regulation, Plaintiff-Appellee, v. ROBERT W. SCHMIDT, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0853
    Opinion filed March 30, 1990.

      Ronald E. Stackier, John A. Holtaway, and Stephen C. Shamberg, all of Stackier & Shamberg, of Chicago, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Robert Schmidt (Schmidt) appeals from an order of the circuit court of Cook County holding him in contempt for violation of an administrative subpoena duces tecum to produce certain dental records of his patients. The facts are not disputed and are as follows.

In May 1986, plaintiff Department of Registration and Education (Department) instituted disciplinary proceedings against Schmidt. The Department’s 41-count complaint sought the suspension or revocation of Schmidt’s dentistry license based on the care rendered to and/or diagnoses made by him to over 40 patients; Schmidt’s actions were alleged to constitute professional incompetency manifested by poor standards of care or improper and unprofessional conduct, in violation of the Illinois Dental Practice Act (Ill. Rev. Stat. 1985, ch. Ill, pars. 2323(11), (23)).

In October 1986, the Department issued a subpoena duces tecum to Schmidt, requiring him to produce certain dental records of his patients. Schmidt refused to comply with the subpoena and, on March 5, 1987, the Department filed a petition in the circuit court to enforce the subpoena. Schmidt filed an answer to the Department’s petition, alleging, among other things, that the fifth amendment privilege against self-incrimination protected him from complying with the Department’s subpoena.

On May 16, 1988, the Department filed a motion for summary judgment. Thereafter, the parties filed memoranda in support and in opposition to the motion. On July 21, the trial court entered summary judgment in favor of the Department and ordered Schmidt to produce the requested dental records.

Schmidt filed a notice of appeal from the July order to this court on August 18, 1988. On January 27, 1989, however, he filed a motion to dismiss the appeal based upon his contention that the July order was not a final order. Over the objections of the Department, we granted Schmidt’s motion to dismiss without prejudice.

On February 3, Schmidt was held in contempt by the trial court for refusing to produce the previously ordered records. Schmidt subsequently filed a “motion for judgment on the order of contempt.” On March 30, Schmidt was again held in contempt and fined $100 by the trial court. Enforcement of the court’s March 30 order was stayed pending disposition of Schmidt’s second appeal to this court from that order.

Before proceeding on the merits of this case, we must address the Department’s challenge to our jurisdiction over the controversy. Specifically, the Department argues as follows:

“[T]he July 21, 1988 order granting judgment to the Department was a final and appealable order in this enforcement proceeding. Schmidt has errantly abandoned his first appeal of a final order and therefore this Court lacks jurisdiction over the underlying merits of that order, which rejected Schmidt’s challenges to the administrative subpoena. All that Schmidt has now appealed from is the trial court’s finding of contempt and the imposition of a fine; the propriety of which he nowhere challenges in his brief.”

The Department cites to several cases in support of its contention that, notwithstanding this court’s order dismissing Schmidt’s first appeal based on our determination that the July order was not a final order, the July order was in fact a final order and Schmidt cannot now raise issues concerning the merits of that order. See People v. Pine (1989), 129 Ill. 2d 88, citing with approval Laurent v. Brelji (1979), 74 Ill. App. 3d 214 (in an action to enforce an administrative subpoena, the proceeding is a separate, independent action, and an order to comply with the subpoena was therefore final and appealable, since the order finally determined the rights of the parties before it and terminated the litigation); see also People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167 (an order to comply with an administrative subpoena, unlike a discovery subpoena in a pending case, is a final order without a contempt finding because the rights of the parties have been determined).

While we find, upon further review, that the cases cited by the Department are dispositive of the finality of the July 21 order, our order of dismissal of Schmidt’s first appeal, although based on an erroneous finding, is now the law of the case. “[Wjhere the evidence on a subsequent appeal is the same as on the first or prior appeal, * * * the adjudications of such first or prior appeal are binding on the reviewing court on a subsequent appeal.” (Noe v. Chicago Great Western Ry. Co. (1969), 130 Ill. App. 2d 36, 41; see also Moricoli v. P & S Management Co. (1982), 104 Ill. App. 3d 234.) Accordingly, we have jurisdiction over the trial court’s July 21 order, which was the basis of Schmidt’s first appeal, as a result of our dismissal of the appeal “without prejudice” to Schmidt to perfect a later appeal.

In this second appeal, Schmidt argues that: (1) the privilege against self-incrimination, guaranteed by the fifth amendment of the United States Constitution (U.S. Const., amend V), as incorporated in Illinois’ Constitution of 1970 (Ill. Const. 1970, art. I, §10), extends to the instant proceeding, precluding compliance with the issued subpoena; and (2) the trial court erred in granting the Department’s motion for summary judgment because genuine issues of material fact existed. For the reasons set forth below, we remand the matter to the trial court for further proceedings.

Summary judgment should be granted where “the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” (Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108, 110; Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Evidence is to be construed strictly against the moving party and liberally in favor of the opponent. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053.) The right to summary judgment must be clear beyond question and an order granting summary judgment must be reversed if a reviewing court determines that a material question of fact does exist. Wright v. Adonis Compania Naviera, S.A. (1978), 59 Ill. App. 3d 108.

In the instant case, Schmidt, in his answer to the Department’s petition to enforce its subpoena, denied that he “is incorporated as Robert W. Schmidt, D.D.S. a licensed professional service corporation.” The trial court record is silent with respect to this dispute. This was a material question of fact, since a determination of whether Schmidt’s records were' personal, records of a sole proprietor, or corporate would be a consideration dispositive of application of his asserted affirmative defense that he was protected from producing them under the privilege against self-incrimination. (See In re Zisook (1981), 88 Ill. 2d 321.) This was a material issue of fact not fully addressed in the trial court.

The Department, in the appendix to its appellate brief, has included a copy of the articles of incorporation filed by Schmidt with the Secretary of State of Illinois, incorporating “Robert W. Schmidt, D.D.S., P.C.” as a domestic corporation on April 23, 1982. The articles list Schmidt as the only incorporator and the corporation’s regis tered agent. Our courts can, and under the circumstances here, we must take judicial notice of the public records of the aforementioned articles of incorporation. (See Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill. 2d 131.) In so noting, we observe that the fifth amendment privilege against self-incrimination cannot be claimed “ ‘by the custodian of corporation records, regardless of how small the corporation may be.’ ” (In re Zisook (1981), 88 Ill. 2d 321, 339, quoting Reamer v. Beall (4th Cir. 1974), 506 F.2d 1345, 1346.) Nor does an employee of a professional corporation possess the privilege against self-incrimination so far as records of the corporation are concerned. (Zisook, 88 Ill. 2d at 337.) As our supreme court has stated:

“ ‘Basically, the power to compel the production of the records of any organization, whether it be incorporated or not, arises out of the inherent and necessary power of the federal and state governments to enforce their laws, with the privilege against self-incrimination being limited to its historic functions of protecting only the natural individual from compulsory incrimination through his own testimony or personal records.’ [Citations.]” (Emphasis in original.) (In re Zisook (1981), 88 Ill. 2d 321, 340, quoting United States v. White (1944), 322 U.S. 694, 700-01, 88 L. Ed. 1542, 1547, 64 S. Ct. 1248, 1252.)

As further stated in Zisook:

“Thus the privilege protects an employee from disclosing his ‘personal’ records which may incriminate him, but it does not protect him from providing corporate records in his possession, which may incriminate him. The distinction between these two is that in the second situation the witness holds the documents in a representative, as opposed to personal, capacity. [Citations.]” 88 Ill. 2d at 340.

Further, in the case before us, we find that the fact that Schmidt was named in the action appealed from, rather than the corporation, his employer, does not necessarily defeat Schmidt’s required compliance.

During oral argument it appeared that Schmidt contends that, even though Robert W. Schmidt D.D.S. appears to be a licensed professional corporation, the involved records may be personal records and not corporate records. Thus, an issue of fact unaddressed or even fully raised in the trial court exists, both as to the order compelling the production of records and the order holding Schmidt personally in contempt.

Accordingly we remand the case to the trial court for a factual hearing and determination on the issue of whether the involved records are corporate or personal records and such other relevant issues that may be raised by either or both of the parties. In any subsequent appeal, the excellent briefs of the parties in this appeal may stand on the issues tendered herein. Accordingly, the case is remanded to the trial court for further hearing on the factual issues herein stated.

Remanded with directions.

COCCIA, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH DAVIDSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—0311
    Opinion filed March 30, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Barbara McClure, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Marilyn F. Schlesinger, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Kenneth Davidson, was charged with attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8—4, 9—1), two counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 12—4(a), (b)(1)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, pars. 33A—2, 12—4(a)). Following a bench trial, defendant was convicted of one count of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(b)(1)) and was sentenced to probation for a term of two years. Defendant has appealed his conviction, contending that he was deprived of the right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) because his attorney failed to move to suppress a statement made by defendant.

The evidence adduced at trial established that on April 28, 1987, defendant shot his wife, Stephanie Stelly, in the forehead with his .357-caliber handgun. The victim was hospitalized for two months, suffered permanent memory loss as a result of the gunshot wound, and had no recollection of the shooting incident or anything prior thereto.

Chicago police detective Steven Brownsfield testified that he arrived at the scene about 12 noon and found the victim in the basement with a gunshot wound in the middle of her forehead. Browns-field saw little blood, but did observe brain matter exuding from the wound. Defendant was in the backyard and was subsequently placed under arrest and advised of his Miranda rights. He indicated that he understood his rights and initially said that the shooting was an accident, but later altered his story several different times. Defendant was very distraught and had to be restrained when the victim was carried from the house by the paramedics. Brownsfield recovered a .357-caliber handgun with two spent cartridges from the scene. He testified further that he was present during the conversation between defendant and Assistant State’s Attorney David Cuomo at the police station and that the conversation was subsequently reduced to writing.

Assistant State’s Attorney David Cuomo testified that he spoke with defendant at about 5 p.m. Cuomo introduced himself to defendant and advised him of his Miranda rights. Defendant indicated that he understood his rights and agreed to give Cuomo a statement regarding the shooting.

Thereafter, defendant stated that he and the victim had been married since 1984 and had two children. Defendant was in the Army Reserves and was stationed at Fort Sheridan, Illinois. Defendant had recently purchased a .357-caliber handgun for use on his part-time job as a security guard. He had received weapons training in the service and was considered a marksman. After a physical examination at Fort Sheridan, defendant learned that he had gonorrhea. Defendant stated that he intentionally shot the victim out of anger after she admitted, in writing, that she had been unfaithful to him and had transmitted the venereal disease to him. Defendant stated further that after he shot the victim, he burned her written admission because he believed it could get him into trouble.

Defendant subsequently agreed to have his statement reduced to writing. Prior to signing the written statement, defendant added the comment that he was sorry and had not wanted to hurt the victim. The statement also indicated that defendant had not been threatened by the police and that the statement had been given freely and voluntarily. Cuomo also signed the statement, as did Detectives Brownsfield and Higgins, who were present during the interview.

Cuomo testified further that defendant asked several times about the victim’s condition and that Cuomo told him that her condition was critical and it was likely that she could die. Upon receiving this information, defendant made his statement regarding the shooting. Defendant was not so upset that his ability to converse was affected, and Cuomo did not have any difficulty communicating with him. Cuomo stated that although defendant added only one comment to the statement, he was free to add anything that he wished. He also denied that any of the officers threatened to charge defendant’s sister with a crime.

Defendant’s statement was admitted into evidence without objection by defense counsel.

At trial, defendant testified that about 12 noon on April 28, 1987, he received a telephone call about a job interview with a security company and went upstairs for his gun. When he returned downstairs, defendant was jumping up and down because he was happy about the interview. The gun discharged when he picked it up to look at it. Defendant stated that he “tried to grab it again and it went off again.” Defendant called to his wife, who was in the basement, but she did not answer. When he went toward her and turned the light on, he discovered that she was lying on the floor, and he called for emergency assistance. He then called his sister, his brother, and his mother-in-law. Defendant stated that he did not intentionally shoot his wife. He stated further that after the paramedics arrived, he “freaked out” and could not believe what was happening. Defendant’s sister arrived at the same time as the police. Defendant also testified that he had handled rifles in the military, but he had no experience with handguns. He indicated that at the direction of his superiors, he had burned some papers relating to his military service on the night before the shooting.

Defendant stated that he was taken to the police station about 12 noon. Although he repeatedly asked about his wife’s condition, the police would not give him any information and denied his requests to see her. Defendant denied the veracity of the written statement introduced against him and testified that he only signed it because the police officers threatened to charge his sister as an accessory because she allegedly threw some papers down the toilet. He indicated that he repeatedly told the police that the shooting was an accident, but they wanted to know whether he and his wife had been fighting.

On cross-examination, defendant initially testified that he opened his gun case to check the gun. When he picked up the weapon, it jerked out of his hand and discharged. He subsequently testified that he never really picked up the gun or got it out of the case. When he touched it, the gun jumped in his hand and discharged, and when he picked it up, it discharged a second time. After it discharged the second time, defendant put the gun back into the case and went to look for his wife.

The trial court found the defendant guilty of one count of aggravated battery and sentenced him to a term of two years’ probation. Defendant appeals, contending that he was deprived of the effective assistance of counsel because his attorney failed to move to suppress the written statement introduced against him.

The adequacy of a defendant’s trial counsel entitles him to a new trial only if his counsel was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246, 1255-56.) A defendant is entitled to competent, not perfect, representation. (People v. Eddmonds (1984), 101 Ill. 2d 44, 69, 461 N.E.2d 347, 359.) When incompetency of trial counsel is alleged, the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable legal assistance. Strickland v. Washington (1984), 466 U.S. 668, 688-89, 80 L. Ed. 2d 674, 694-95, 104 S. Ct. 2052, 2065.

Competency is determined from the totality of counsel’s conduct at trial. (Eddmonds, 101 Ill. 2d at 69, 461 N.E.2d at 359; People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677, 685.) Errors in judgment or trial strategy do not establish incompetent representation by counsel. (Eddmonds, 101 Ill. 2d at 70, 461 N.E.2d at 360.) The decision of whether to file a motion to suppress evidence in a criminal case is a question of trial strategy and has no bearing on the issue of competency of counsel. People v. Atkins (1987), 161 Ill. App. 3d 600, 609, 515 N.E.2d 272, 277; People v. Conley (1983), 118 Ill. App. 3d 122, 129, 454 N.E.2d 1107, 1114.

Careful review of the trial record in the instant case reveals that defense counsel cross-examined the State’s witnesses at length. Defendant’s attorney questioned Brownsfield and Cuomo about the circumstances surrounding defendant’s arrest and his verbal and written statements. He entered several objections during the course of the trial and moved for a finding of not guilty at the close of the State’s evidence. The closing argument of defense counsel focused upon defendant’s testimony that the shooting was accidental and that he was under a great deal of stress when Cuomo summarized his verbal statement and reduced it to writing.

Moreover, comparison of defendant’s testimony on direct with his cross-examination testimony indicates that even during trial, he offered several different descriptions and versions of the shooting incident. He also offered several different explanations as to why he signed the inculpatory statement. This lends credibility to the testimony of Brownsfield and Cuomo about the circumstances surrounding defendant’s arrest and his verbal and written statements. The record indicates that a motion to suppress defendant’s statement would likely have been denied, and the result of the trial would not have been different. Consequently, the failure of defendant’s attorney to file such a motion did not constitute a deprivation of the right to effective assistance of counsel.

Defendant relies primarily on People v. Christomos (1988), 172 Ill. App. 3d 585, 527 N.E.2d 41, and on In re T.S. (1986), 151 Ill. App. 3d 344, 502 N.E.2d 761. These cases are, however, factually distinguishable from the case at bar. In re T.S. involved a minor who was not advised of his Miranda rights and was coerced into making a confession by police officers who interrogated him without counsel or his parents present, misled him about the evidence against him, and told him that he would be released if he confessed. The court concluded that the respondent’s confession was not given voluntarily and was, therefore, inadmissible in light of the intimidating, coercive, and deceptive atmosphere of the interrogation. In re T.S., 151 Ill. App. 3d at 351, 502 N.E.2d at 766.

The record in the instant case does not indicate that defendant was coerced into making a confession. Rather, the evidence established that he was advised of his Miranda rights and voluntarily agreed to give Cuomo a verbal and written statement. Although defendant asked about his wife several times, he did not testify that he signed the statement because the police would not give him information about his wife’s condition. Instead, he testified at one point that the handwriting on the statement did not resemble his signature. At another point, defendant stated that his motivation for making the statement centered upon the possibility that his sister might be arrested and charged as an accessory. Cuomo denied that defendant’s sister was ever at risk of being arrested or charged with a crime. Moreover, there is no indication that the police misled defendant about the evidence obtained or promised that he would be released if he confessed. Consequently, the circumstances surrounding defendant’s statement are not analogous to those surrounding the respondent’s confession in In re T.S.

In People v. Christomos (1988), 172 Ill. App. 3d 585, 527 N.E.2d 41, the court affirmed the ruling of the trial court which sustained defendant’s motion to suppress his statement based upon the finding that, although defendant had requested an attorney, his request was not honored, and he was denied the right to counsel prior to giving his statement. The court also found that the evidence established that defendant was precluded from seeing his wife until he made a statement. The trial court concluded that defendant’s confession was coerced and involuntary.

The record in the case at bar does not indicate that defendant requested or was denied the right to counsel. Rather, Brownsfield testified that defendant was advised of his Miranda rights and voluntarily gave a verbal and written statement. Moreover, Cuomo testified that when asked by defendant about the victim’s condition, he told defendant that there was a likelihood that she could die as a result of the gunshot wound, and there is nothing in the record to contradict the accuracy of this information. In addition, defendant’s own testimony reveals that he did not give Cuomo a statement so that he could see his wife. Instead, defendant claimed that he gave his statement because the officers threatened to arrest and charge' his sister. This claim was denied by Cuomo. Defendant also stated that the handwriting on the statement did not resemble his signature, implying that the signature had been forced. The trial court obviously found this testimony incredible. In sum, the record does not support a claim that defendant’s statement was coerced or involuntary. Consequently, the statement was properly held admissible, and defense counsel’s failure to file a motion to suppress cannot be considered ineffective assistance of counsel. See Murphy, 72 Ill. 2d at 436-37, 381 N.E.2d at 685-86.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    LEONARD RUSSELL, Plaintiff-Appellant, v. THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Defendants-Appellees.-RICHARD GILDEHAUS, Plaintiff-Appellant, v. THE DEPARTMENT OF CENTRAL MANAGEMENT SERVICES et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1—89—0726, 1—89—1810 cons.
    Opinion filed March 30, 1990.

      Cornfield & Feldman, of Chicago (Denial I. Koen, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This is an appeal from separate administrative review actions which affirmed decisions of the defendant Illinois Civil Services Commission (Commission). The Commission had upheld decisions by the defendant Illinois Department of Central Management Services (CMS) to demote plaintiffs Leonard Russell and Richard Gildehaus by reclassifying their job status at the Illinois Department of Corrections (IDOC). Russell and Gildehaus now appeal pursuant to Illinois Supreme Court Rule 301 (107 Ill. 2d R. 301). Gildehaus’ motion to consolidate these cases was granted on December 18, 1989.

The sole issue on appeal is whether the rulings of the circuit courts were in error when they affirmed the Commission decisions that CMS properly reclassified the job status of Russell and Gildehaus based on the findings that neither exercised the full responsibilities of a qualified examiner. We affirm.

The undisputed facts are that on June 1, 1982, Gildehaus was hired as a clinical social worker at the Menard adult facility within IDOC and classified as a social worker IV. In June 1985, Russell transferred employment from the Illinois Department of Mental Health (DMH) to the IDOC youth facility at Harrisburg. With this transfer, he was promoted from social worker III to social worker IV. On December 1, 1986, as a result of a general job audit, CMS reclassified Russell to social worker II and Gildehaus to social worker III. This action caused each man’s salary rate to drop, although his duties remained the same. Subsequently, both plaintiffs petitioned first CMS and then the Commission for reclassification back to social worker IV.

The position of social worker IV is defined under the authority of the Illinois Personnel Code. The director of personnel proposes rules and qualifications for various positions. (Ill. Rev. Stat. 1987, ch. 127, pars. 63b108 through 63b110.) The rules define a social worker IV as someone who “[u]nder direction, serves as a qualified examiner; makes clinical diagnoses; signs certificates of admission for involuntary and court-ordered admissions; presents certificate [sic] in court regarding the competency of a recipient who may be discharged by the court and testifies regarding same.”

Dr. Schaff, chief of mental health for IDOC, testified at the Gildehaus hearing that, as of September 1988, IDOC had employed only two people with the classification of social worker IV.

On January 22, 1988, the Commission held a hearing on -Russell’s complaint. Russell claimed, and the Commission found, that he met the requirements to be a qualified examiner in that he had a master’s degree in social work and three years of supervised, post-graduate clinical experience. (Ill. Rev. Stat. 1987, ch. 911/2, pars. 1—122, 1—122.1.) CMS also concedes this point in its appellate brief.

Russell claimed, in addition, that he performed the duties of a social worker IV because he diagnosed inmates, prepared the documents for transfer to DMH, and would testify if a case should go to court. The Commission and CMS agreed that Russell did perform these duties.

CMS claimed, however, that Russell did not perform all the duties of a qualified examiner. The duty of certifying a person for commitment is performed by workers from DMH. During testimony, Russell admitted that after he processed an inmate, the patient would then be observed by workers at DMH. By the time a commitment reached court, Russell’s recommendations would be about two weeks old and the court would have to rely on the more recent evaluations by DMH personnel. In fact, no inmates recommended by Russell were committed through a court hearing without additional processing by DMH.

The Commission hearing officer ruled in favor of CMS because a patient is not admitted to a mental health facility directly upon Russell’s recommendation but is admitted directly upon the certification of a social worker IV from DMH. Furthermore, if a patient has to be admitted through a court hearing, the court must rely on a recent evaluation and testimony from a DMH worker regardless of whether an IDOC worker certified the patient about two weeks before the hearing and later testified in court. The Commission concluded that Russell’s role and that of a social worker IV differ in responsibility. Therefore, the Commission held that CMS properly allocated Russell’s position to the class of social worker II.

On September 6, 1988, the Commission heard Gildehaus’ complaint. Gildehaus claimed and the hearing officer found that he does meet the requirements of a qualified examiner and did, in fact, perform many of the job functions of a social worker IV.

CMS’s position at trial was, once again, that Gildehaus did not function as a qualified examiner. It argued that Gildehaus had not been involved in preparing a patient for involuntary commitment directly to a DMH facility during his employment at Menard. It further argued that even if Gildehaus did sign commitment papers for a Menard inmate, the patient would then be observed by DMH personnel, who would have to make and sign their own evaluation before a court-ordered commitment.

The Commission held:

“The Petitioner does not have the authority to place an individual in a mental health institution. *** A patient cannot be admitted based upon the Petitioner’s certificate, but a patient can be admitted upon the basis of the Social Worker IV qualified examiner working in the Department of Mental Health and Developmental Disabilities. There is a difference in the responsibility between the identified roles and based upon this difference the Hearing Officer concludes the Respondent has properly allocated Petitioner’s position. The appeal is, therefore, denied.”

On February 15, 1989, Judge Harold Siegan heard plaintiff Russell’s appeal from the Commission’s decision and affirmed the decision of the Commission’s hearing officer without further comment.

On June 6, 1989, Judge Thomas O’Brien heard similar arguments with respect to plaintiff Gildehaus. The court analyzed statutory provisions and discussed the kind of hearing that might be necessary under the Mental Health and Developmental Disabilities Code. The court then affirmed the Commission’s decision.

Trial and appellate review of administrative decisions cover “all questions of law and of fact presented by the entire record before the court.” (Ill. Rev. Stat. 1987, ch. 110, par. 3—110; Barron v. Ward (1987), 165 Ill. App. 3d 653, 659, 517 N.E.2d 591, 596.) This review involves questions of law and fact with separate standards for each.

In reviewing questions of law, courts must defer to an agency’s interpretation of its own rules and do not substitute their own judgments unless the agency interpretation is unreasonable. (Brown v. Sexner (1980), 85 Ill. App. 3d 139, 148, 405 N.E.2d 1082, 1089.) Courts, however, do exercise independent review over an agency decision which interprets statutory law. (Carson Pirie Scott & Co. v. Department of Employment Security (1987), 164 Ill. App. 3d 530, 535, 518 N.E.2d 161, 164.) Courts also review as a matter of law the legal effect of facts that are not in dispute. B.F. Gump Co. v. Industrial Comm’n (1952), 411 Ill. 196, 198, 103 N.E.2d 504, 506; Barron, 165 Ill. App. 3d at 659, 517 N.E.2d at 596.

The facts here, uncontested by the defendants, show that Russell and Gildehaus each have the necessary qualifications to be a social worker IV and that each one has also performed many of the duties. The disputed issue is whether or not plaintiffs perform all of the duties of a qualified examiner and are therefore entitled, under present law, to the classification of social worker IV.

The duties of a qualified examiner include executing certificates to be filed in court as part of the process for involuntary commitment to a mental health facility. Ill. Rev. Stat. 1987, ch. 911/2, pars. 3 —600 through 3—604, 3—700 through 3 —703.

Social workers at IDOC, however, cannot directly certify IDOC inmates for nonemergency commitments because the Mental Health and Developmental Disabilities Code dictates that inmate commitments occur “only as provided in the Unified Code of Corrections.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 3— 200.) Under the Unified Code of Corrections, the procedures for involuntary, nonemergency commitments require a petition filed by the Director of the Department of Corrections accompanied by a certificate of a physician. Ill. Rev. Stat. 1987, ch. 38, par. 1003—8—5(c).

These procedures do not limit the right of the director or chief administrator of any prison facility to use the emergency admission procedures of the Mental Health and Developmental Disabilities Code. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—8—5(e).) This provision could suggest that a qualified examiner from IDOC might certify someone for emergency transfer to DMH. (Ill. Rev. Stat. 1987, ch. 911/2, par. 3—602.) Alternatively, it could simply signify that IDOC may make emergency transfers even without a certificate, pending examination and certification by DMH workers after the inmate is in DMH custody. Ill. Rev. Stat. 1987, ch. 911/2, par. 3—603.

On appeal, Russell and Gildehaus each contend that his status as “qualified examiner” of social worker IV should be based on his training, experience, and duties, not on the fact that he works for IDOC instead of DMH. In support of this contention, they cite three points of law. First, the statute does not restrict examiners only to qualified workers in a DMH facility. (Ill. Rev. Stat. 1987, ch. 911/2, pars. 1—122, 1—122.1.) Second, even the qualified examiners working for DMH only certify someone to go to court; the court alone has authority to commit the patient. (Ill. Rev. Stat. 1987, ch. 38, par. 1003—8— 5(c); Ill. Rev. Stat. 1987, ch. 911/2, par. 3— 700; see, e.g., In re Love (1977), 48 Ill. App. 3d 517, 363 N.E.2d 21.) Third, while it is true that a certificate from an IDOC social worker would be too old to serve as the final certificate for commitment in court, if an IDOC social worker signed a certificate, that certificate must be filed with the court along with more recent ones. (Ill. Rev. Stat. 1987, ch. 911/2, par. 3-703; People v. Sansone (1974), 18 Ill. App. 3d 315, 327-28, 309 N.E.2d 733, 742.) Defendants do not dispute these points.

Defendants’ position on appeal is that Russell and Gildehaus cannot function as qualified examiners for two reasons. First, if a worker from IDOC signed a certificate referring someone for involuntary commitment to DMH, his certificate would function merely as a recommendation and not the official certification of a qualified examiner because any certificate either one signed would be more than 72 hours old by the time the court hearing occurred. (Ill. Rev. Stat. 1987, ch. 911/2, par. 3— 602.) Second, since all nonemergency commitments from IDOC require the certification of a physician, IDOC social workers cannot certify an inmate for nonemergency commitment. (Ill. Rev. Stat. 1987, ch. 911/2, par. 3—200; Ill. Rev. Stat. 1987, ch. 38, par. 1003—8—5(c).) Plaintiffs do not dispute these points.

The parties only disagree about whether the responsibility which IDOC workers could have in emergency, nonvoluntary commitments entitles plaintiffs to the classification of social worker IV. Ill. Rev. Stat. 1987, ch. 38, par. 1003—8—5(e).

The Commission found against Russell and Gildehaus, basing its findings on a difference in required responsibility between the roles Russell and Gildehaus can or do play within IDOC and the complete role of a social worker IV. Neither one can certify an inmate for commitment except in emergencies and, even then, that certification would be too old to function as the official one. Regardless of any action by Russell or Gildehaus, an inmate patient could not be committed in court without a further evaluation by DMH workers made just prior to the court hearing.

Russell also argues that he shares equal responsibility with qualified examiners working in DMH because his actions as an examiner expose him to liability for malicious prosecution. (Olsen v. Karwoski (1979), 68 Ill. App. 3d 1031, 1036, 386 N.E.2d 444, 450.) The Olsen case, however, distinguishes the examiner who acts alone from the person who presents evidence to assist the court at a hearing where the court also examines other witnesses. (Olsen, 68 Ill. App. 3d at 1036-37, 386 N.E.2d at 450.) Russell will never have liability under Olsen because a social worker IV from DMH must always examine a patient after Russell does.

In sum, the CMS interpretation that social worker IV’s are workers who can certify for commitment in both emergency and non-emergency situations is a reasonable one. Therefore, neither the Commission nor the circuit court was unreasonable when it affirmed the CMS reclassification for Russell and Gildehaus. For the reasons stated, we affirm the judgment of the trial court.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: JUSTICE McNAMARA

text:
    LAURIE LENG, Adm’r of the Estate of Julian Leng, Deceased, Plaintiff-Appellant, v. THE CELOTEX CORPORATION et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1864
    Opinion filed March 30, 1990.

      Cooney & Conway, of Chicago (William R. Fahey, James R. Hopkinson, and Kathy Byrne, of counsel), for appellant.
    Kelley, Drye & Warren and Schiff Hardin & Waite, both of Chicago, and Heyl, Royster, Voelker & Allen, EC., of Peoria (John Dames, Eric Quandt, Peter Carlson, Carolyn Quinn, Karen Kendall, David Sinn, Christopher Larson, and Robert Riley, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Laurie Leng, administrator of the estate of Julian Leng, deceased, appeals from an order dismissing certain counts as to defendants Celotex Corporation, A & M Insulation Company, Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Fibreboard Corporation, Pittsburgh Corning Corporation, Armstrong World Industries, Inc., Keene Building Products Corporation, Keene Corporation, GAF Corporation, and T & N, PLC. The sole issue on appeal is whether Illinois should adopt the modified market share liability theory in asbestos cases where the manufacturers of the asbestos products cannot be identified by plaintiff. The trial court dismissed counts V through VIII, which asserted a market share theory of liability, and found the order final and appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). The four remaining counts, which are still pending in the trial court, alleged negligence and strict liability.

On February 27, 1987, the 34-year-old decedent died of mesothelioma, a form of cancer which occurs almost always as a result of exposure of asbestos fibers. Decedent worked as an industrial welder at several companies in Illinois, including Chrysler Motors and Sundstrand Corporation, between 1973 and 1987. He installed and removed asbestos-containing products, including insulation materials, gaskets, cement and block, allegedly manufactured, sold, distributed and installed by defendants.

Plaintiff, decedent’s wife, brought this action on February 9, 1989. Co-workers of decedent have not been able to identify brand names of the products at issue. Using information and histories gathered in other cases, plaintiff selected as defendants the 20 manufacturers of asbestos-containing products most likely to have been used at Chrysler and Sundstrand during the relevant time period.

Counts V, VI, VII and VIII of the complaint alleged a market share theory of liability against defendants. Several defendants filed motions to dismiss the market share counts on the ground that the theory is not recognized in Illinois. On June 29, 1989, the court granted the motion to dismiss, pursuant to section 2—615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615).

In a products liability action, plaintiff must establish that the injury complained of resulted from a condition of the product, that the condition was unreasonably dangerous, and that the condition existed when the product left the manufacturer’s control. (Nadan v. Celotex Corp. (1989), 190 Ill. App. 3d 410, 546 N.E.2d 766.) Plaintiff must establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of that product, thus requiring that plaintiff identify the particular manufacturer of the product. (Zimmer v. Celotex Corp. (1989), 192 Ill. App. 3d 1088, 549 N.E.2d 881.) While these elements may be proved by direct or circumstantial evidence, liability cannot be based on speculation, guess or conjecture. Naden v. Celotex Corp., 190 Ill. App. 3d 410, 546 N.E.2d 766.

In the present case, plaintiff has presented nothing which justifies an inference that decedent was exposed to defendants’ products. She concedes that she cannot identify the manufacturers who produced the asbestos-containing products to which decedent was exposed. The mere possibility of such exposure is insufficient to withstand defendants’ motion to dismiss.

Plaintiff, however, relies on Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, 527 N.E.2d 333, appeal allowed (1988), 123 Ill. 2d 567, 535 N.E.2d 411, where this court adopted the modified market share liability theory in a products liability case. That case involved the drug diethylstilbestrol (DES) and was brought by a woman who suffered from cancer as the result of her mother having ingested DES while she was pregnant with plaintiff. Plaintiff could not identify the manufacturer of the DES, but was permitted to bring suit against more than 100 companies which had potentially made the DES her mother had ingested.

The overwhelming majority of courts which have addressed the precise issue before us have held that the market share liability theory cannot be used in asbestos cases. See, e.g., Menne v. Celotex Corp. (10th Cir. 1988), 861 F.2d 1453, 1468 n.24; Vigiolto v. JohnsManville Corp. (3d Cir. 1987), 826 F.2d 1058, aff'g (W.D. Pa. 1986), 643 F. Supp. 1454; Bateman v. Johns-Manville Sales Corp. (5th Cir. 1986), 781 F.2d 1132 (applying Louisiana law); Blackston v. Shook & Fletcher Insulation Co. (11th Cir. 1985), 764 F.2d 1480 (applying Georgia law); Thompson v. Johns-Manville Sales Corp. (5th Cir. 1983), 714 F.2d 581; Marshall v. Celotex Corp. (E.D. Mich. 1987), 651 F. Supp. 389; Hannon v. Waterman Steamship Corp. (E.D. La. 1983), 567 F. Supp. 90; Prelick v. Johns-Manville Corp. (W.D. Pa. 1982), 531 F. Supp. 96; In re Related Asbestos Cases (N.D. Cal. 1982), 543 F. Supp. 1152; Starling v. Seaboard Coast Line R.R. Co. (S.D. Ga. 1982), 533 F. Supp. 183; Tidler v. Eli Lilly & Co. (D.C. Cir. 1982), 95 F.R.D. 332; Gaulding v. Celotex Corp. (Tex. 1989), 772 S.W.2d 66; Case v. Fibreboard Corp. (Okla. 1987), 743 P.2d 1062; Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St. 3d 40, 514 N.E.2d 691; Nicolet, Inc. v. Nutt (Del. 1987), 525 A.2d 146, aff'g In re Asbestos Litigation (Del. Sup. Ct. 1986), 509 A.2d 1116; Celotex Corp. v. Copeland (Fla. 1985), 471 So. 2d 533; Mullen v. Armstrong World Industries, Inc. (1988), 200 Cal. App. 3d 250, 246 Cal. Rptr. 32.

Plaintiff in the present case expressly relies on the Smith court’s acceptance of “the modified alternate liability theory first adopted by the Washington Supreme Court in Martin v. Abbott Laboratories” (1984), 102 Wash. 2d 581, 689 P.2d 368 (product liability action against DES manufacturers). The Washington Supreme Court, however, has since commented on that same theory of liability in an asbestos case. In Lockwood v. AC & S, Inc. (1987), 109 Wash. 2d 235, 744 P.2d 605, that court stated that the use of a market share theory in asbestos cases was a substantial and complex issue, which it declined to address “in detail” in that case. The court did note, however, that “the use of market-share alternate liability theory in the asbestos products context is not without difficulties.” Lockwood v. AC & S, Inc., 109 Wash. 2d at 245 n.6, 744 P.2d at 612 n.6, citing Note, The Causation Problem in Asbestos Litigation: Is There an Alternative Theory of Liability? 15 Ind. L. Rev. 679, 691-711 (1982), and Celotex Corp. v. Copeland (Fla. 1985), 471 So. 2d 533. Cf. Sholtis v. American Cyanamid Co. (1989), 238 N.J. Super. 8, 568 A.2d 1196 (construing Lockwood as intimating that a market share theory might be advisable in the proper asbestos case).

The courts holding that asbestos, unlike DES, could not accommodate the market share theory of liability have relied upon the inherent differences between DES and asbestos. DES is a truly fungible product. DES was produced pursuant to one formula, and so it had identical physical properties and chemical compositions. Thus, pregnant women ingesting DES were exposed to the same risk. (Vigiolto v. Johns-Manville Corp., 643 F. Supp. at 1463, aff'd (3d Cir. 1987), 826 F.2d 1058; Celotex Corp. v. Copeland, 471 So. 2d at 537-38.) In stark contrast, asbestos products vary drastically as to the risk of harm they present, partially due to the fact that there are six different types of asbestos silicates. 471 So. 2d at 537-38.

Plaintiff concedes that the six asbestos fibers are not identical, but maintains that they are “all considered to be carcinogenic under both federal and state law,” including the Illinois Asbestos Abatement Act (Ill. Rev. Stat. 1987, ch. 122, pars. 1401 through 1415(a)), and Zurich Insurance Co. v. Raymark Industries (1987), 118 Ill. 2d 23, 514 N.E.2d 150 (recognizing that each type of asbestos fiber inhaled over the exposure period contributes to the eventual development of the disease).

Each type of fiber, however, has a different toxicity. In addition, other significant variables include the physical properties of the product itself, the percentage of asbestos used in the product, the form of the product and the amount of dust it generates. The greater the product’s tendency to produce airborne fibers, the greater the likelihood that the fibers will be ingested and produce disease. Thus, the products with high concentrations of asbestos fibers have a correspondingly high potential for inducing disease. The geographical origin of the mineral can also affect the product’s risk potential. Vigiolto v. Johns-Manville Corp., 643 F. Supp. at 1463, aff'd (3d Cir. 1987), 826 F.2d 1058; Celotex Corp. v. Copeland, 471 So. 2d at 537-38.

Unlike DES, asbestos is not a product. Instead, asbestos is a generic name for a family consisting of more than 30 different minerals. (Mullen v. Armstrong World Industries, Inc., 200 Cal. App. 3d at 258, 246 Cal. Rptr. at 37, citing Goldman v. Johns-Manville Sales Corp., 33 Ohio St. 3d at 50, 514 N.E.2d at 700.) Significantly, the market share liability theory was formulated in Sindell v. Abbott Laboratories (1980), 26 Cal. 3d 588, 163 Cal. Rptr. 132, 607 P.2d 924, where the product involved, DES, carried with it a singular risk factor. (Case v. Fibreboard Corp., 743 P.2d at 1066.) In Sindell, the court held that public policy considerations justified shifting the burden of proof of causation from plaintiff to defendants in order that innocent plaintiffs could recover against negligent defendants, where each potential defendant shared responsibility for producing a product which presented a single risk factor. (Case v. Fibreboard Corp., 743 P.2d at 1066.) In the asbestos cases, however, such a balance cannot be struck due to the incalculable difficulties where the tortfeasor cannot be identified, and the injury caused, unlike that caused by DES, does not arise at a specific time. Asbestos continues to cause injury throughout the time of its use and exposure.

We agree with the rationale of other courts which have found it impossible to identify sufficient public policy reasons to support the use of market share liability in asbestos cases. “[T]he public policy favoring recovery on the part of an innocent plaintiff does not justify the abrogation of the rights of a potential defendant to have a causative link proved between that defendant’s specific tortious acts and the plaintiff’s injuries where there is a lack of circumstances which would insure that there was a significant probability that those acts were related to the injury.” (Case v. Fibreboard Corp., 743 P.2d at 1067.) Furthermore, we agree that the problem of how to apportion liability and define the relevant product and geographic markets would be extraordinarily complex and not feasible. (See Blackston v. Shook & Fletcher Insulation Co., 764 F.2d at 1483; Vigiolto v. JohnsManville Corp., 643 F. Supp. at 1464, aff’d (3d Cir. 1987), 826 F.2d 1048; Celotex Corp. v. Copeland, 471 So. 2d at 538; In re Related Asbestos Cases, 543 F. Supp. at 1158.) Additionally, eliminating a causation requirement in the area of asbestos-related injuries would force every manufacturer to be an insurer of its own products and all genetically similar products manufactured by competitors. Blackston v. Shook & Fletcher Insulation, 764 F.2d at 1483.

Finally, we note that the counts pending in the trial court indicate that plaintiff has some ability to identify certain manufacturers who allegedly caused decedent’s injury. Such identification would, of course, preclude the use of the market share liability theory. See Vigiolto v. Johns-Manville Corp., 643 F. Supp. at 1463 n.6, citing Prelick v. Johns-Manville Corp. (W.D. Pa. 1982), 531 F. Supp. 96, and Copeland v. Celotex Corp. (Fla. 1985), 471 So. 2d 533.

We conclude that plaintiff has failed to state a cause of action for market share liability. We align Illinois with the overwhelming majority of jurisdictions which decline to extend that theory of liability to asbestos cases. We hold that the trial court properly dismissed counts V through VIII for failure to state a cause of action.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

EGAN and RAKOWSKI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER POULOS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2738
    Opinion filed March 30, 1990.

      Louis B. Garippo, Ltd., of Chicago (Louis B. Garippo and Thomas A. Moore,- of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a trial without a jury, defendant, Peter Poulos, was convicted of delivery of a controlled substance, and subsequently was sentenced to a six-year prison term. Defendant appeals, alleging that the trial court erred in finding him guilty since he was entrapped by a State agent.

The following facts were elicited at trial. Defendant testified in his own behalf. He stated that at the time of his arrest, he was employed as a sales representative for the Dimock-Gould Company. On March 6, 1988, he saw an advertisement for the sale of a video game room. The advertisement stated, “Game room and candy store for sale. Great money maker. Asking $26,000. 916-8150.”

That evening, defendant called the telephone number listed in the advertisement. Michael Budaj answered the call, identifying himself as Mike Peligreno. Budaj was an informant for the State. Budaj told defendant that he was associated with a company called Glennit Vending. He further told defendant that the game room was doing approximately $250 of business each day.

On March 9, 1988, defendant and Budaj met for 2V2 hours at the game room, which was located at 5659 West North Avenue. The game room contained 11 video machines for playing, and various items such as candy, perfume and jewelry for sale. The game room was frequented by children from a nearby school. After observing the business operation, defendant negotiated with Budaj. regarding the selling price. The sale was completed on March 29, 1988, for a final price of $18,000. Defendant executed a lease agreement with Better Deal Realty for the lease of the premises, and additionally leased an alarm system from Gilbert Security Company. At Budaj’s urging, defendant hired Antonio Jarmello to work at the game room. ■

Defendant testified that following the purchase, Budaj continued to frequent the game room, and for a few days after the sale, Budaj assisted in the operation of the business. Budaj then told defendant he was going to New York and that he would return in mid-April.

Upon Budaj’s return, he met with defendant at the game room. Defendant stated that they discussed Budaj’s failure to obtain city stickers for the video machines as promised, and that defendant asked him when he would get these stickers. Defendant additionally testified that he asked Budaj to purchase new video machines from the company with which Budaj was associated. Defendant testified that it was during this mid-April meeting that Budaj asked defendant if he could find a cocaine supplier. Defendant told Budaj that he could not and that he had never been involved with cocaine and did not want to get involved.

A few days later, Budaj brought Gregory Brotan, a special agent with the Northeastern Metropolitan Enforcement Group, to the game room. Budaj introduced Brotan to defendant as “Greg.” This was defendant’s first contact with Brotan.

Defendant continued to work as a sales representative for Di-mock-Gould throughout the period of mid-April 1988 to May 1988. He usually arrived at the game room at approximately 6:30 p.m. and stayed until closing, at 9 p.m. During this time, Budaj was at the game room at least five days a week. Budaj had no ownership interest in, nor was he employed at, the game room.

Defendant stated that he and Budaj went out to local restaurants at least twice a week after the game room closed. During these meetings, defendant constantly asked Budaj to purchase new video machines for the game room. Budaj always steered the conversation to drugs. Specifically, Budaj wanted defendant to find a cocaine supplier for Brotan. Defendant stated that Budaj asked him to do so on at least 15 to 20 occasions, and that on each occasion, defendant refused.

Defendant stated that on June 9, 1988, as he was closing the game room, Budaj came in, telephoned an individual named Jessie, and then left. Approximately 30 minutes later Budaj returned, and shortly afterward, Jessie arrived. Defendant, Budaj and Jessie went into a back room, where Budaj handed Jessie money in exchange for a package containing cocaine. Jessie then left the game room. After Jessie left, Budaj asked defendant to sell the cocaine to Brotan. Defendant stated that he repeatedly refused, but that he eventually agreed to sell the cocaine to Brotan as a favor to Budaj. At Budaj’s request, defendant telephoned Brotan.

Brotan stated that at approximately 10:30 p.m., he telephoned defendant at the game room in response to a message left on his pager. The two agreed that Brotan would come to get the cocaine the following day. Brotan stated that prior to that date, he had spoken to defendant both on the telephone and twice in person. Brotan further stated that defendant had negotiated the sale of the cocaine on one of the earlier dates. Brotan did not contradict defendant’s testimony that Budaj introduced him to defendant.

Defendant testified that Brotan came to the game room at approximately 11 a.m. on June 10, 1988. Defendant gave him the cocaine and, in return, Brotan gave him $1,100. Brotan stated that defendant told him he was “really going to like it because it was good looking stuff.” Brotan further stated that he and defendant began negotiating another drug deal for one kilogram of cocaine and that defendant told Brotan that he was getting familiar with his connection. Brotan said that defendant said that he would contact Brotan at a later date. Further, defendant told Brotan that he would “have to do a couple of ounces” with him once this next deal was completed. Brotan then left.

Defendant testified that Budaj arrived one hour after the completion of this transaction. Defendant gave him the $1,100. Budaj put $100 in defendant’s shirt pocket. Defendant stated that he immediately told Budaj that he did not want the money. Later, he accepted the $100. He stated, however, that there was no prior agreement with Budaj that defendant would be paid for his actions.

Defendant stated that prior to the June 10, 1988, transaction, he had spoken on the telephone with Brotan five or six times. Each time he contacted Brotan, the call was placed from the game room, and Budaj was present. Brotan testified that on at least one of these occasions, May 8, 1988, he and defendant discussed a transaction for one kilogram of cocaine. Brotan stated that defendant informed him that Antonio (Jarmello) was putting together a kilogram for $20,000, and that Brotan was to give defendant $5,000 prior to receiving the cocaine. Defendant agreed that this conversation occurred, but not on May 8, 1988. Defendant stated that he had this conversation only because Budaj asked him to do so. Budaj was not called to testify.

At trial defendant raised the affirmative defense of entrapment. The trial court, however, found that defendant had not established the defense and, accordingly, found defendant guilty of delivery of a controlled substance. In his motion for a new trial, defendant argued that the defense of entrapment was unrebutted. The State countered that defendant’s conduct showed beyond a reasonable doubt that defendant was predisposed to commit the offense of delivery of a controlled substance. The trial court denied defendant’s motion.

Citing People v. Connor (1988), 176 Ill. App. 3d 900, 531 N.E.2d 966, and People v. Husted (1981), 97 Ill. App. 3d 160, 422 N.E.2d 962, defendant initially notes that in appellate review of the entrapment defense, the court is to determine all testimony of the defendant in the light most favorable to him. This rule, however, originated in People v. Carpentier (1974), 20 Ill. App. 3d 1024, 314 N.E.2d 647, and in that case, this court stated that when determining whether a defendant is entitled to a jury instruction on the defense of entrapment, the court is to examine the defendant’s testimony in the light most favorable to him. Thus, in our view, Connor and Husted misstate our standard in review of the entrapment defense. The proper standard was articulated by the supreme court in People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528. Specifically, the question of whether entrapment exists is one for the finder of fact and will not be disturbed on appeal unless the reviewing court concludes that entrapment exists as a matter of law. People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.

With this general principle in mind, we will examine defendant’s contentions on appeal. Defendant maintains that he was entrapped into making the sale of cocaine by Budaj, the State informant, who originated the plan. Defendant further maintains that he lacked the predisposition to make the sale.

The Illinois entrapment statutes provides as follows:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7— 12.)

Thus, the critical inquiry in an entrapment case is whether the criminal purpose originated with the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 7-12; People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.) If some evidence on the issue of entrapment is raised, the State must prove beyond a reasonable doubt that the defendant was not entrapped, together with all other elements of the offense. (People v. Andreano (1978), 64 Ill. App. 3d 551, 381 N.E.2d 783.) More specifically, the defendant must demonstrate that the State induced him to commit a criminal act, and if the defendant does so, then the burden is on the State to prove the defendant was ready and willing to commit the crime without persuasion. (Ill. Rev. Stat. 1987, ch. 38, par. 7— 12; People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369.) Merely affording an opportunity for the criminal act, however, does not constitute entrapment. People v. Connor (1988), 176 Ill. App. 3d 900, 531 N.E.2d 966.

A review of the evidence presented here leads to the conclusion that defendant was entrapped as a matter of law. The testimony reflects that the State more than merely afforded defendant an opportunity for the criminal act. Rather, the State through Budaj induced defendant to enter into the transaction resulting in the delivery of a controlled substance. Brotan did not and apparently could not rebut Budaj’s role in inducing defendant to commit the offense. Moreover, the evidence is insufficient to support a finding of predisposition on the part of defendant.

In March 1988, Budaj placed an advertisement in a newspaper for the sale of a game room. Defendant was looking for new financial opportunities and called Budaj so as to investigate this potential opportunity. Defendant purchased the game room from Budaj after negotiating the selling price down from $26,000 to $18,000. There is no indication that when Budaj placed the advertisement in the paper, he did so with the intent that defendant be the party to respond to the advertisement; rather, it appears that defendant’s response was merely fortuitous.

Following the purchase of the game room, defendant entered into a series of transactions, all of which we view as tending to establish the legitimacy of the business enterprise. First, defendant entered into a lease for the use of the premises. Defendant additionally leased a security system. Defendant then obtained a membership in a wholesale candy distributor club. Defendant purchased candy from the wholesale business throughout the two-month period during which he operated the business. These transactions, supported by documentation which was entered into evidence, lead us to the conclusion that defendant was attempting to operate a lawful business.

Budaj continued to frequent the game room, and just two weeks after the sale, asked if defendant could find him a supplier of cocaine. Defendant replied that he had never been involved with drugs and did not want to become involved. Nonetheless, during the next two months, Budaj repeatedly asked defendant to find a cocaine supplier. These requests frequently came at restaurant meetings when defendant was attempting to get Budaj to rotate the video machines at the game room.

Budaj next arranged to have the cocaine delivered to the game room, and then requested that defendant contact Brotan and arrange to sell him the cocaine. (Budaj previously had asked defendant to contact Brotan to discuss the possible sale of one kilogram of cocaine.) Defendant first refused, but later relented.

It is clear that the criminal conduct was conceived in the mind of the State agent, and not in defendant’s mind. The type of governmental misconduct in which Budaj engaged consistently has been held to be entrapment. (See, e.g., People v. Boalbey, (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369; People v. Martin (1984), 124 Ill. App. 3d 590, 464 N.E.2d 837.) Defendant was running a legitimate business when, for no apparent reason, he was approached by Budaj and induced to commit a crime. In our view, this was a State-generated crime.

The State argues, however, that the trial court properly found that defendant had not introduced credible evidence to support his contention that he was entrapped due to the inducement of the informer. In explaining its verdict, the trial court stated:

“It is absolutely incredible to suggest that somehow the hope of getting a transfer of machines, when the defendant admits he is aware that there are other sources is going to be a sufficient basis for the defense of entrapment.”

The State maintains that this statement should be interpreted as a finding that defendant’s entire testimony was incredible. A review of the record, however, reveals that the trial court found incredible only the sufficiency of defendant’s motivation for agreeing to deliver the cocaine to Brotan. In fact, at the hearing on defendant’s motion for a new trial, the court stated:

“The bottom line in this case is that the defendant was — no question about it — was persuaded to become involved in this because there was an informant. But as I indicated at the time, the defendant easily could have said, ‘No.’ ”

This statement leads to the conclusion that the trial court found credible at least this critical portion of defendant’s testimony. Thus, we do not find that the trial court found defendant’s entire testimony to be incredible.

The State additionally argues that defendant improperly relies on hearsay statements to establish his contention that he was induced by Budaj into delivering the cocaine to Brotan. The statements of which the State complains were admitted into evidence, over the State’s objections, for the purpose of showing defendant’s state of mind. The State maintains that defendant is attempting to expand the use of these conversations to show that Budaj actually coaxed him into becoming a drug dealer. Here, however, where our inquiry necessarily must be into the effect which these statements had upon defendant, the state of mind exception to the hearsay rule operates to permit examination of these statements as substantive evidence of defendant’s state of mind. Defendant does not make improper use of this evidence.

We find that defendant, as a matter of law, introduced evidence of inducement sufficient to shift the burden to the State to prove beyond a reasonable doubt that defendant was not entrapped. (See People v. Chanath (1989), 184 Ill. App. 3d 521, 540 N.E.2d 468.) The State did not meet that burden. Defendant presented unrebutted testimony that the criminal purpose originated in the mind of a State agent and that this State agent induced him to commit the offense.

It is noteworthy that the State failed to call the informant to testify. While the State was not obligated to call the informant, its failure to do so gives rise to an inference against the State. (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812; People v. Strong (1961), 21 Ill. 2d 320, 172 N.E.2d 765.) This inference is particularly significant where, as here, the State fails to establish beyond a reasonable doubt that defendant was predisposed to commit the offense of delivery of a controlled substance. See People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528; People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812.

Generally, predisposition is established by a defendant’s willingness to participate in criminal activity before his initial exposure to government agents. (People v. Connor (1988), 176 Ill. App. 3d 900, 531 N.E.2d 966.) The determination of predisposition to commit crime rests upon the facts of the case. (People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 526 N.E.2d 508.) Factors to be considered in assessing predisposition include the defendant’s initial reluctance or his ready willingness to commit the crime, the defendant’s familiarity with drugs and his willingness to accommodate the needs of drug users, the defendant’s willingness to make a profit from the illegal act, the defendant’s prior or current use of illegal drugs, and the defendant’s participation in testing or cutting the drugs. (People v. Schillaci (1988), 171 Ill. App. 3d 510, 526 N.E.2d 871; People v. Norks (1985), 137 Ill. App. 3d 1078, 484 N.E.2d 1261.) Moreover, the trial court should consider whether the defendant engaged in a course of conduct involving similar offenses and whether the defendant had ready access to a drug supply. (People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438.) Finally, the trial court may consider evidence of a defendant’s subsequent activities. People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528.

A review of the record with these considerations in mind reveals no evidence that defendant was willing to commit the offense in furtherance of a criminal purpose which he originated. Rather, defendant committed the offense only after exposure to the State’s agent.

The unrebutted testimony of defendant reveals his initial refusal to commit the offense as well as his lack of knowledge of the narcotics business. The State introduced no evidence of prior narcotics-related offenses, nor did it introduce evidence of subsequent narcotics-related activities. Defendant specifically stated that he did not know of a cocaine supplier because he had never been involved in narcotics and did not want to become involved. (See People v. Beavers (1986), 141 Ill. App. 3d 790, 491 N.E.2d 438 (trial court properly found defense of entrapment had not been established when evidence established that defendant sold cocaine three times within two weeks and that she frequently used cocaine, was able to acquire promptly the requested quantities, was familiar with drug terminology and prices, and housed the equipment associated with cocaine use in her home).) Defendant did not participate in testing or cutting the cocaine. Moreover, although defendant did eventually accept $100 from Budaj, he did not enter into an agreement to profit financially from the transaction. See People v. Norks (1985), 137 Ill. App. 3d 1078, 484 N.E.2d 1261 (trial court properly found defendant had not established the defense of entrapment when defendant admitted he engaged in a drug transaction to make money).

The State argues that defendant’s expression of a desire to do drug business in the future with Brotan was indicative of a predisposition to deliver a controlled substance. The State notes that defendant negotiated with Brotan and that he told Brotan he was getting familiar with his connection. Further, the State observes that defendant told Brotan that they would have to “do a couple of ounces” together. The State concludes that the trial court properly determined that these conversations manifested a familiarity with drugs and a willingness to accommodate the needs of drug users.

In our view, however, these conversations fall short of establishing a predisposition, and at most, establish that once induced to commit the offense, defendant in fact committed the offense. The unrebutted testimony of defendant reveals that he committed the offense at the urging of Budaj, that Budaj, not defendant, supplied the cocaine, that all of his conversations with Brotan were directed by Budaj, and most significantly, that prior to meeting Budaj, defendant was not involved in drugs in any way.

Finally, the State argues that defendant’s failure to withdraw from the scheme shows his predisposition to commit the offense. The State points out that defendant was a sophisticated businessman, who had effectively negotiated the sales price of the game room, and who chose not to withdraw from the criminal scheme. While all this is true, the failure to “just say no” is immaterial in an entrapment defense. The plain language of the statute sets forth only two requirements, improper inducement on the part of the government, and a lack of predisposition to commit the crime on the part of the defendant. (People v. Andreano (1978), 64 Ill. App. 3d 551, 381 N.E.2d 783.) There is no requirement that the defendant demonstrate an attempt to withdraw once induced into committing the offense.

In our view, the State failed to establish beyond a reasonable doubt that defendant was predisposed to commit the offense. Thus, in light of our earlier finding of improper inducement on the part of the government, we find that defendant, as a matter of law, established the affirmative defense of entrapment. Accordingly, we hold that defendant was improperly convicted of delivery of a controlled substance.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

EGAN and RAKOWSKI, JJ., concur.