author: PRESIDING JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM SORICE, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—1343
    Opinion filed May 5, 1989.

      Ettinger & Pechter, Ltd., of Oak Lawn, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, defendant William Sorice was found guilty of conspiracy to commit a burglary and burglary and sentenced to four years’ imprisonment. On appeal, he contends: (1) the trial court erred in denying his motion to suppress evidence; (2) he was denied a fair trial because the prosecutor elicited testimony suggesting prior criminal conduct by him; (3) the trial court erred in permitting a Chicago police department criminologist to testify concerning certain evidence; (4) he was not proved guilty beyond a reasonable doubt; (5) he was denied a fair trial because the prosecutor commented on his silence during closing argument; (6) he was substantially prejudiced because of an improper communication to the jury which impermissibly hastened its verdict; and (7) the court abused its discretion in sentencing him to four years’ imprisonment. For the reasons set forth below, we affirm in part and reverse in part.

The record discloses that at a hearing on defendant’s motion to suppress, he testified that on February 10, 1985, he was employed as a Chicago police officer and worked the third watch out of the 12th District (3 to 11:30 p.m.), at which time he had his service revolver with him. On February 11, at 7:30 a.m., two uniformed and two plainclothes police officers came to his home. The officers told him that someone had been found with his identification card and badge. He was asked to accompany the officers to the 12th District police station and said, “O.K.” At the station, he filled out a “to-from report.” He did not recall if he stated therein that he had lost his car, identification, gun, and house and car keys. He also did not know if his gun was lost or stolen and only knew that his car was missing because he did not know where he had parked it. Defendant further related that he went from the 12th District to Area 4, where he signed some complaints for the theft of his star and identification because an officer informed him that they were not in his car, which the police had subsequently located. He was also informed that his car had been towed at 8:30 that morning from a parking lot of the Lawrence Fishery at 22nd and Canal in Chicago and that the tow operator could not stop laughing because of the large number of empty beer cans and bottles that were in the backseat.

Sergeant Melvin Bynum, a Chicago police officer assigned to the Internal Affairs Unit, Confidential and Corrupt Police Practices Section, testified that he went to defendant’s home on February 11 with other officers. He told defendant he was needed at the 12th District in regard to the burglary of a jewelry store which had occurred earlier that morning and that one of the offenders had been found with his identification and star. On the way to the station, defendant told Bynum that he had no idea where his identification and star were, that he had bought a six-pack and had been drinking, he could not recall what happened to his car or gun, and that the last time he saw his revolver it was in his car; Bynum did not include this conversation in his report. Bynum further stated that he and a fellow officer were ordered to locate defendant’s car to see if his gun was in it inasmuch as his badge and identification had been recovered. They found the car in the Lawrence Fishery parking lot. After brushing some snow off the car window, Bynum saw that the inside was in disarray. He then used a coat hanger to gain entry into the car. He found defendant’s loaded gun under the front seat of the vehicle, as well as a lock puller, jumper wires, and a set of lock fix, which were in “plain view” adjacent to the gun. He also observed a pair of coveralls and a knit hat in the back section of the car. Defendant’s car was subsequently towed to the police station and the items found therein inventoried by someone other than Bynum.

Based on the foregoing, the trial court denied defendant’s motion to suppress, finding the exigent circumstances excused the warrant-less search of defendant’s car. Prior to trial, the court also granted defendant’s motion in limine barring the State from introducing any evidence regarding defendant’s alleged involvement in the attempted burglary of a currency exchange.

At trial, police officer Thomas Hughes testified that he and another officer were ordered to investigate a burglary at the Princessa Jewelry store located at 1650 West 18th Street in Chicago. When they arrived at the store, they saw some footprints in the newly fallen snow coming out from the rear of the store, up on a porch, and in the areaway between two garages and then out into an alley. Once on the porch, Hughes observed wires hanging down from the side of the building and an iron gate and wooden door to the rear of the building were standing open. After entering the store they found a large safe with its doors and drawers open, a glove in front of it, and various tools for “peeling” open the safe.

The police notified the owner of the store, Jesus Amaya. Amaya subsequently testified at trial that upon arriving at the store he found showcases broken, the safe open and the store in complete disarray. The value of the goods taken amounted to $216,000. Amaya identified defendant as someone who had come into the jewelry store dressed in his uniform several times before the burglary, i.e., January 1985, a week later, and on a Friday in February just prior to the burglary. On the first occasion, defendant brought a Timex watch in to be repaired, the second time he stayed for 10 to 15 minutes and asked if the store carried 14k or 18k gold and what the quality of it was and the price of a chain and ring, and on the last occasion defendant came in, looked around the store and told Amaya that he had a couple of gold chains he was going to bring in to be repaired. Approximately two weeks before the burglary, defendant also told Amaya about some strange men he had seen standing around on the second-floor landing of the store.

Steven Manning also testified on behalf of the prosecution. Manning was a former police officer who was discharged from the department in 1983 after he pleaded guilty to theft and official misconduct. When he was arrested for the burglary at issue here, he was on probation. He pleaded guilty to the violation of probation petition and was sentenced to four years’ imprisonment. Manning further testified that he first met defendant in June or July 1984 at a restaurant; in September 1984 he and defendant met at another restaurant and defendant asked him if he was interested in a “score” (“illegal payday” or a burglary) during which his only function would be to act as a lookout; and he and defendant continued to converse by telephone throughout the fall and into the winter, contacting each other through beepers and using pay phones.

On February 4 or 5, 1985, defendant called Manning and said he should prepare himself because defendant had a score available. They subsequently met each other at that time at the Lawrence Fishery located at 2120 South Canal. During their conversation, defendant told Manning that he had a jewelry store set up and that they would take it within a week. Defendant told him he would receive $1,000 for his role as lookout. They were to use Manning’s Lincoln town car because it was official looking and defendant directed him to get valid license plates which did not check out to him.

On February 9, Manning received a page from defendant. When he called defendant, defendant told him that they were going to score the next night, to meet him at the Lawrence Fishery after the third watch at 11:30 or 11:45 p.m., to bring a scanner to monitor the police ban, and to bring his Lincoln town car. Manning arrived at the Fishery the next evening at 10:30 p.m.; defendant arrived at 11:45 p.m. in his own car; defendant got out of his car, said hello to Manning, took a bag out of his car trunk and put it in Manning’s trunk; defendant got into Manning’s car and gave him directions to the area of 18th and Ashland; and defendant told Manning not to worry because they were in the 12th District and he knew most of the police officers in the area. When they arrived at the jewelry store, defendant told Manning to park across the street. Defendant then instructed Manning to listen to the scanner, which was tuned to the band for the 9th and 12th Districts; that if he heard or saw anything he was to sound the car horn or set off the car’s alarm system; and that if there was a problem he was to tell the police that defendant was down the street having sex with some girl. Defendant, after telling Manning that he was going to leave his star and identification in Manning’s car, got out of the car, took the bag from the trunk, and left. Manning’s car was facing east when he saw defendant go north across the street in the direction of a Clark gas station, which was located next to the Princessa Jewelry store.

At approximately 2 a.m., a squad car passed Manning’s car. Manning froze for a moment, then reached for the car’s inoperable mobile telephone and feigned making a phone call. The squad car made a U-turn, pulled up alongside Manning’s car, and two police officers got out of the car and told Manning to do the same. Manning asked the officers what the problem was and informed them he was an ex-police officer and that he was making a phone call while waiting for a friend. The officers told Manning that if he was an ex-police officer he would not mind them searching his car and Manning then consented to a search. Thereafter, one of the officers found the scanner with an earplug and defendant’s badge, identification and beeper. Manning informed the police that the owner of the badge, whom the officers knew, was down the street with his girl friend.

The officers arrested Manning and took him to the 12th District and then to Area 4 headquarters, where he saw defendant in another room. Initially, Manning told the police he had no comment other than he did not steal the badge recovered from his car. However, after defendant signed complaints for the theft of his star, Manning agreed to answer questions and to testify before the grand jury. He subsequently gave an oral statement to the police, which was written down, telling them he was involved in a burglary with defendant. Manning further stated that defendant never told him he could use his badge and identification and that is why he did not show them to the arresting officers; he left his position opposite the jewelry store on two or three occasions; he did not know what defendant took out of the trunk of his car once they got to the jewelry store; and he did not see defendant enter the jewelry store.

Chicago police officer Donald Johnson testified that on February 11 it was snowing heavily and around 2 a.m. he and a fellow officer observed a car parked on the street without any snow on it. They drove up to the car and confronted the occupant — Manning. They asked Manning what he was doing and he responded he was making a phone call, they asked him if he lived in the neighborhood and he responded he was an ex-police officer, they asked him if he still carried a weapon and he responded that he did not, and they asked him if there was a weapon in the car and he said no and to take a look. Upon searching the car, they found a wallet with a police star and a beeper. One of the officers knew the police officer named on the star and identification and asked Manning where the officer was, to which Manning responded that he was upstairs with some girl, pointing to a row of houses. Manning was then placed under arrest for possession of stolen property — the police star.

Geraldine Roman, a personnel manager of Rogers Radio Communications, d/b/a Metromedia Paging, also testified for the prosecution. She stated that she keeps the business records of the company, that the People’s exhibit 3, a Metromedia pager, was rented by defendant in 1984 and that he was still renting it on February 10 and 11, 1985. Finally, she identified People’s exhibit 44 as a work order dated March 7, 1985, wherein defendant stated that the beeper had been lost.

The State also called Ray Lenz, a criminologist of the Chicago police department’s crime lab, to testify as an expert. He stated that a fiber on a glove found in the jewelry store was very similar in cross-sectional shape as well as in other materials to fibers found on the' coveralls recovered from defendant’s car. It was his opinion that the fiber on the glove could have originated from the coveralls and that there were no differences which were apparent that would lead him to believe that the fiber definitely did not originate from the coveralls.

The jury subsequently found defendant guilty of the crimes charged, he was sentenced to four years’ imprisonment, and this appeal followed.

Defendant first argues that, contrary to the trial court’s ruling, exigent circumstances did not exist to excuse the warrantless search of his car and, accordingly, it erred in denying his motion to suppress. Defendant distinguishes his circumstances from those in Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523, upon which the trial court relied in denying his motion. In Cady, the defendant, a Chicago police officer, was driving his car in Wisconsin when it went through a guard rail and crashed into a bridge abutment. A passing motorist drove defendant to a telephone, defendant called the Wisconsin police and informed them he was also a police officer, and the Wisconsin police, upon returning defendant to his vehicle, noticed that defendant appeared drunk. The Wisconsin officers, believing that police officers are required to carry their service revolvers at all times, subsequently searched defendant and his car at the scene of the accident but did not find the weapon. The defendant’s car was then towed to a private garage where it was left outside without a guard, and the defendant was taken to a hospital where he lapsed into a coma. The police subsequently returned to the defendant’s vehicle and continued their search for his revolver. In searching the locked trunk of the defendant’s car, they came upon other evidence which implicated the defendant in a murder. In upholding the search of the defendant's car, the Supreme Court stated:

“First, the police had exercised a form of custody or control over the 1967 Thunderbird. Respondent’s vehicle was disabled as a result of the accident, and constituted a nuisance along the highway. Respondent, being intoxicated (and later comatose), could not make arrangements to have the vehicle towed and stored. At the direction of the police, and for elemental reasons of safety, the automobile was towed to a private garage. Second, both the state courts and the District Court found as a fact that the search of the trunk to retrieve the revolver was ‘standard procedure in [that police] department,’ to protect the public from the possibility that a revolver would fall into untrained or perhaps malicious hands. Although the trunk was locked, the car was left outside, in a lot seven miles from the police station to which respondent had been taken, and no guard was posted over it.” (Emphasis added.) (Cady v. Dombrowski (1973), 413 U.S. 433, 443, 37 L. Ed. 2d 706, 715-16, 93 S. Ct. 2523, 2529.)

In the instant case, defendant argues that the Court’s reasons for upholding the search, as indicated as italicized above, are not present under the circumstances here, i.e., initially the police had not exercised any control over his vehicle and it was not disabled in any way, he was not disabled, and no evidence was presented that it was standard procedure for the police to protect the public from the possibility that a police officer’s weapon might fall into untrained or malicious hands.

We find that while it is true that the Cady Court in part based its rationale for upholding the search of the defendant’s car on the established standard procedure in Wisconsin, we do not find that the absence of evidence to show a similar standard of procedure under the circumstances here affects the action of the police based on their most fundamental duty as law enforcement officers — to act to protect the public. Moreover, it is well settled that the criterion for determining the existence of an emergency to justify a warrantless search depends on a police officer’s reasonable belief that an emergency exists, not the existence of an emergency in fact. The reasonableness of the officer’s belief is determined by the entirety of all the circumstances known to him at the time of a warrantless entry. (Peo pie v. McGee (1986), 140 Ill. App. 3d 677, 489 N.E.2d 439.) In the present case, defendant did not know where his badge and identification were, where his car was or where his gun was. He stated that he last remembered having his gun in his car. Although the police had found the person who had his badge and identification, it did not necessarily follow that the same person might have taken his gun-defendant could have misplaced or lost each separately. Additionally, since defendant did not know where he had parked his car because he had been drinking the night before, it could be presumed that he had not necessarily locked his car, that his gun was loaded and was in the car, and that anyone with malicious intent or otherwise could enter his car and take the weapon. We further observe that even though defendant was not under arrest, his immediate presence was required at the station to make out the to-from report and various complaint forms and, at the time, he had no immediate transport to go looking for his car and gun. Under the circumstances, therefore, we believe Cady is applicable to the facts here and the facts in and of themselves presented exigent circumstances to justify the police officers’ warrantless search of defendant’s car. We thus do not find that the trial court’s denial of defendant’s motion to suppress was manifestly erroneous. See People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941.

Defendant next contends that he was denied a fair trial by the elicitation of improper testimony by the State suggesting prior criminal conduct by him. Prior to trial the court granted defendant’s motion in limine to bar the State from introducing any evidence concerning defendant’s alleged involvement in the attempted burglary of a particular currency exchange. Specifically, the court ordered that “[t]here will be a motion in limine with regards to the State offering any evidence as to other crimes in the trial of the matter.” (Emphasis added.) Despite the allowance of the motion, the State, on its direct examination of Manning, elicited from him that during a conversation with defendant, defendant “mentioned something about a screw-up with a currency exchange.” The State contended in a conference outside of the jury’s presence that reference to the currency exchange matter by Manning through his relation of his conversation with defendant was an admission by defendant and therefore was not “covered” under defendant’s motion in limine. Clearly this “misunderstanding” of the nature of defendant’s motion violated the spirit if not the words of the trial court’s order granting the motion. The State’s elicitation of this testimony was undisputably improper and, if this were a close case on the issue of guilty, would have entitled defendant to a new trial. (See People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734 (it is fundamental that a defendant must be judged on the particular charge before the trier of fact and not on his “evil character”); People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650 (no question is more damaging to a defendant with a jury than one that suggests or intimates that he is a criminal or has been charged with criminal offenses).) However, this was not a close case on the issue of guilt, as is discussed more fully below, and the error was cured by the trial court’s instructed to the jury to disregard Manning’s testimony relative to the currency exchange reference.

Defendant also argues that the trial court erred in permitting a police department criminologist to testify as to his opinion regarding the origin of a fiber found on a glove at the scene of the burglary with the fibers of the coveralls found in defendant’s car because the expert’s opinion was based upon mere conjecture and speculation. (See People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466 (expert testimony which is merely speculative is incompetent and therefore inadmissible).) We disagree. “An individual will be permitted to testify as an expert when his experience and qualifications give him knowledge which is not common to the world and where his testimony will aid the [trier of fact] in reaching its determination.” (People v. Beil (1979), 76 Ill. App. 3d 924, 929, 395 N.E.2d 400.) Here, as the State points out, its expert gave an exhaustive explanation of the tests he performed on the coveralls’ material, he stated that the fiber on the glove and the fibers from the coveralls were very similar in cross-sectional shape and in material makeup, and that there were no differences which were apparent that would lead him to believe that the fiber definitely did not originate from the coveralls. Clearly, the State’s expert’s testimony was not mere speculation as defendant asserts, but rather an opinion based on proven accepted scientific analysis necessary to aid the trier of fact.

Defendant next argues that he was not proved guilty beyond a reasonable doubt. He contends that Manning’s testimony failed to adequately connect him with the burglary of the jewelry store; i.e., that Manning did not testify as to any specific conversation with defendant regarding a burglary of the Princessa Jewelry store but only to Manning being a “lookout” for a “score” and that Manning did not observe defendant enter the store but only observed him go in the direction of the store. Defendant further asserts that Manning had a motive to testify falsely because, if he did not testify, the State would leave his sentence up to the court, he was not worthy of belief based on his prior commission of automobile insurance fraud which involved deceit, and he disobeyed a court order by going to Germany without leave of court and while on probation. Additionally, defendant contends that the State’s expert’s testimony that a fiber found on the glove discovered at the scene of the burglary “could have” originated from the coveralls found in his car deserved little or no weight in proving him guilty, nor the fact that defendant had been a customer at the jewelry store. Defendant finally asserts that his fingerprints were not found at the scene and no proceeds taken in the burglary were recovered from him, his vehicle or his residence. Accordingly, defendant argues that the evidence against him was merely circumstantial and insubstantial to establish his guilt beyond a reasonable doubt.

Contrary to defendant’s argument, as the State points out, circumstantial evidence is sufficient to support a conviction. (See People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605.) In the instant case, the testimony of the State’s witnesses indicated as follows: the Princessa Jewelry store was burglarized sometime between late evening on February 10 and early morning on February 11; Manning testified that he and defendant had been discussing a “score” for several months and that he would be a lookout and receive $1,000 for his services; on February 9 defendant told Manning they would score the next night, to meet him at the Lawrence Fishery at 11:30 p.m., and to bring a scanner and his Lincoln town car with fictitious license plates, which Manning did; defendant’s car was found in the parking lot of the Lawrence Fishery where Manning told police he and defendant had met prior to the burglary; Manning was discovered by the police sitting in his car across the street from the burglarized jewelry store at 2 a.m. on February 11, minutes after other police officers discovered that the store had been burglarized; defendant’s badge, identification and a beeper rented to him were discovered in Manning’s car, none of which had been reported stolen by defendant prior to the burglary; and the fiber found on a glove discovered in the burglarized store was determined by the State’s expert to be without any apparent differences from the fibers obtained from the coveralls found in defendant’s car. We further note that the jury was aware that Manning stood to benefit if he testified truthfully for the prosecution. Based on the foregoing, we find that it was not unreasonable for the jury to conclude, beyond a reasonable doubt, that defendant was guilty as charged.

Defendant also contends that he was denied a fair trial when the State allegedly commented on his silence during closing argument, i.e.:

“[ASSISTANT STATE’S ATTORNEY]: Where was this glove, probably in the pocket of these coveralls, and the defendant pulled this glove out of the coveralls when he went to do the burglary. He had the glove with him because he didn’t want, to have prints left behind. That’s when he went to do the burglary with Steve Manning.
He didn’t do the burglary with a reputable citizen, and note how he did not, did not come forward with the truth, initially. Well why should he—
[DEFENSE COUNSEL]: Objection, I object to that and I would like to be heard. I move, I move for a mistrial. I object to that.
[THE COURT]: Motion for a Mistrial will be denied, and counsel, the jury will be instructed to disregard that.” (Emphasis added.)

It is well settled that the prosecution is prohibited from commenting on a defendant’s failure to testify at trial. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.) Here, the State argues that the complained-of comment referred to Manning, not defendant, as borne out by the fact that in the last sentence of the first paragraph quoted above the State was discussing “Steve Manning.” The State further asserts that its comments immediately following the complained-of remark supports its contention, i.e.:

“[ASSISTANT STATE’S ATTORNEY]: Steve Manning did not come forward with the truth initially. Steve Manning went to the police department. Now where [sic] is a man the defense would have you to believe wanted to make a deal with me. He wanted to make a deal with this case.
Why didn’t he make a deal right off the get go, why didn’t he come forward right off the get go and say this man the defendant, William Sorice, that is the man that did the burglary with me. Why didn’t he do that? He didn’t do that because there was still a deal going on at that point between the two men ***.”

In other words, the State was referring to the evidence that Manning did not initially tell the truth; he did not tell the police about his and defendant’s collusion in the burglary until late February 11 when defendant signed the complaints stating his badge and identification had been stolen. Based on the record, therefore, we agree with the State that the objected-to reference was directed toward Manning, not defendant.

Defendant next contends that he was substantially prejudiced because of an improper communication to the jury which impermissibly hastened the jury’s verdict. While the jury was deliberating, the following exchange took place in the courtroom between the court and counsel:

“[THE COURT]: We have had a conference with regard to the equestering [sic] of the jury for the evening. It is now approaching 9:30. I have discussed with both counsel for the defendant and counsel for the state and I have indicated to them that I would give to jurors the following instruction; ‘You are hereby advised that the jury is now going to be sequestered for the evening and Court will resume at 9:00 o’clock tomorrow.
You are hereby directed to cease all deliberations, and you are further directed not to discuss the evidence or the testimony in this case until you are directed to resume your deliberation tomorrow morning.’
Is that correct, Mr. Banks?
[DEFENSE COUNSEL]: That’s my understanding, Judge.
[THE COURT]: Mr. Gardiner?
[ASSISTANT STATE’S ATTORNEY]: Yes, Judge, that is fíne.
[THE COURT]: And last, I have indicated that all of the exhibits that are back in the jury room with the jurors and the instructions will be placed on the cart and they will be locked in my chambers.
Ready?
[ASSISTANT STATE’S ATTORNEY]: They would like to know if they can have 10 or 15 more minutes.
[THE COURT]: Yes. Tell them 10 or 15 more minutes.
(A further recess was taken while the jury deliberated, after which the following proceedings were had:)
[THE CLERK]: The People of the State of Illinois versus William Sorice.
[THE COURT]: Please be seated.
In the matter of the People versus William Sorice, let the record reflect that the Defendant and his attorneys are present in court, as are the state’s attorneys and all 12 jurors are present in the jury box.
Mr. Foreman, has the jury reached a verdict?
[THE FOREMAN]: Yes, your Honor.
The Defendant was found guilty of conspiracy and burglary.”

The State argues that this issue is waived because defendant failed to object at that time, as well as in his post-trial motion for a new trial. (See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) It also asserts that the above colloquy is devoid of any indication that it, a bailiff or some other party in fact communicated the impending sequestration to the jury and, therefore, that defendant’s argument is mere speculation.

We first observe that notwithstanding defendant’s failure to object to this alleged error at trial or in his post-trial motion, we could consider the complained-of error under the plain error rule if applicable. (107 Ill. 2d R. 615(a).) However, based on the record, we must agree with the State that there is no evidence that any communication concerning the sequestration of the jury was in fact made to the jury, which hastened its verdict; the record only shows that the jury was deliberating while the court and the parties held the above-cited conference and, for whatever reasons, the jury coincidentally requested 10 to 15 more minutes to deliberate immediately following the conference which was outside its presence.

Defendant’s final argument is that the trial court abused its discretion in sentencing him to four years’ imprisonment. The imposition of a sentence is a matter of judicial discretion and will not be disturbed absent an abuse. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Here, defendant contends that mitigating factors outweighed a sole aggravating factor relative to the imposition of his sentence. Specifically, defendant points to the fact that prior to the burglary for which he was convicted he had no other convictions, no serious harm was caused or threatened, he had a steady record of employment, he supports his wife and four children, and two of his children have an illness requiring occasional hospitalization throughout the year. Defendant further points out that the only factor in aggravation is the fact that he was employed as a Chicago police officer when the burglary occurred. Defendant also asserts that the trial court erred in considering an additional factor in aggravation — the value of the proceeds taken during the burglary.

The State contends that the trial court did not abuse its discretion in sentencing defendant in light of the fact that defendant had violated his public trust as a police officer, the burglary was well planned and organized, and a more severe sentence was necessary to deter others from committing the same offense. Lastly, the State asserts that the trial court properly considered the value of the proceeds taken in the burglary as a factor in aggravation and argues that defendant has failed to cite to authority holding otherwise.

Contrary to the State’s final contention, defendant cited to authority in support of his contention that the court improperly considered the value of the proceeds taken from the burglary — People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906. In fact, in Conover this was the sole question before our supreme court. In holding that proceeds taken from a burglary or theft may not be considered as an aggravating factor in sentencing a defendant, the court stated:

“The legislature has established the range of penalties to be imposed in burglary [citation] and in theft [citation] ***. Inasmuch as most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties. If the General Assembly had intended that proceeds be utilized again to impose a more severe penalty for those offenses, such intent would be more clearly expressed. Consequently, we believe receiving compensation for committing the offense under the statute applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime. *** We hold that section 5 — 5—3.2(a)(2) of the Unified Code of Corrections may be considered as a factor in aggravation only when one is remunerated, as explained above, to commit an offense, whether the offense is burglary or theft, where proceeds may be taken, or the crime is one that does not involve proceeds, e.g., aggravated battery.” (84 Ill. 2d at 404-05.)

In light of the above, we must remand this case for a reconsideration of defendant’s sentence inasmuch as we cannot determine how much weight the trial court accorded the improperly considered factor in aggravation of the value of the proceeds taken in the burglary.

For the reasons stated, defendant’s conviction is affirmed, his sentence is reversed and vacated, and the cause is remanded to the circuit court of Cook County for a new sentencing hearing.

Affirmed in part; reversed in part; sentence vacated and cause remanded.

LORENZ and COCCIA, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RITA GORDON et al., Plaintiffs-Appellants, v. SUDAHYL NASR et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—0087
    Opinion filed May 5, 1989.

      Barry D. Goldberg, of Goldberg & Goldberg, and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky, of counsel), for appellants.
    Cassiday, Schade & Gloor, of Chicago (Bradford D. Roth and Michael J. Cucco, of counsel), for appellees.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

This appeal by plaintiffs Rita and Vincent Gordon concerns various orders entered in a medical malpractice case by two trial courts. The orders barred testimony by plaintiffs’ medical experts, granted summary judgment in favor of defendants, and denied plaintiffs’ motion to reconsider the previously entered orders. The following facts are pertinent to this appeal.

In 1979, Rita Gordon received certain care and treatment at the Illinois State Psychiatric Institute where she was initially diagnosed as having acute schizophrenia. Approximately five days later, it was discovered that she had viral encephalitis and she was transferred to another hospital. Plaintiffs, Rita and her husband Vincent, subsequently filed a medical negligence action against 32 defendants in 1980; only 16 defendants were remaining at the time the orders appealed from were entered.

In December 1982, defendants moved to compel plaintiffs to disclose their expert witnesses or, alternatively, to bar expert testimony at trial. The motion was continued and transferred to a “fast track” court whereupon, on March 9, 1983, Judge William A. Kelly ordered all discovery completed by August 1, 1983. On August 22, 1983, Judge Kelly ordered plaintiffs to disclose their expert witnesses by October 1, 1983, and ordered all discovery to be completed by April 1, 1984. Plaintiffs did not obtain an expert by the deadline, and on May 9, 1984, a hearing was held on defendants’ motion to bar any plaintiff expert testimony. On that date, Judge Kelly entered an order barring such testimony.

Three years later (April 1987), defendants filed a motion for summary judgment. The motion was transferred to Judge Edwin M. Berman, and a hearing date was continued several times until August 12, 1987. At that time, plaintiffs had not yet filed any responses or briefs to the summary judgment motion and informed the court that they were not ready. Judge Berman refused to grant another continuance and, after oral arguments, granted defendants’ motion for summary judgment which was supported by affidavits of two medical experts who opined that defendants’ care and treatment of Rita Gordon had met the applicable standard of care.

Subsequently, plaintiffs timely moved to vacate and reconsider the August 12 order. On September 12, a hearing was held on plaintiffs’ motion, at which time they sought leave to file a response to defendants’ summary judgment motion which had already been ruled on and, also, for leave to file affidavits of two medical experts. When reminded of Judge Kelly’s order barring expert testimony, plaintiffs informed Judge Berman of their intent to seek vacatur of that order. Judge Berman then continued the hearing on plaintiffs’ motion to vacate and reconsider his summary judgment order. After plaintiffs obtained several continuances in both courts, Judge Kelly denied their last continuance request in November 1987. On December 3, plaintiffs filed an affidavit of a third doctor not named in their motion filed in September. On December 4, 1987, Judge Berman denied plaintiffs’ motion for reconsideration and also struck the affidavit of plaintiffs’ expert.

Plaintiffs appealed the August 12 summary judgment order and that portion of the December 4 order denying their motion for reconsideration. In this appeal, plaintiffs allege that the trial court’s summary judgment order was improperly based on Judge Kelly’s discovery sanction order, that Supreme Court Rule 220 (107 Ill. 2d R. 220) does not mandate dismissal with prejudice for failure to comply with discovery orders, and that Judge Berman abused his discretion under Rule 220 by upholding Judge Kelly’s order. Based on Illinois discovery rules and case law, we must affirm the trial court.

In essence, the issue in this appeal is whether the summary judgment order was a sanction upon a sanction and did the trial court therefore abuse, or not exercise at all, its discretion in refusing to reconsider that order.

It is well settled that summary judgment is proper where the pleadings, depositions, and affidavits on file establish there is no genuine issue of material fact and, when no conflicting affidavits and depositions have been filed, the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Failure to file counteraffidavits leaves an opponent of a summary judgment motion at risk since assertions in the movant’s affidavit must be taken as true even though the opponent’s pleadings contain contrary assertions. (Eberle v. Brenner (1985), 131 Ill. App. 3d 394.) In medical malpractice cases, a plaintiff must present expert medical testimony to establish the duty of care and breach thereof. (Purtill v. Hess (1986), 111 Ill. 2d 229.) Plaintiffs appear to be asking this court to ignore these rules. Judge Berman had before him a motion for summary judgment accompanied by two affidavits of medical experts stating that defendants had met the applicable standard of care. Plaintiffs did not respond to the summary judgment motion in any manner. Under these circumstances, the trial court properly granted summary judgment.

Plaintiffs’ argument that Judge Berman granted summary judgment based on Judge Kelly’s previous discovery sanction is without merit. According to the statutory rules regarding motions for summary judgment, the court had no option but to grant it under these circumstances. (See Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) During the reconsideration hearing, Judge Berman stated, “I didn’t state from the bench that I am granting the summary judgment because Judge Kelly barred you.” He then continued, “What I said was you haven’t — you are unable to present an affidavit, therefore, there is nothing for any — no reason to go any further.” In other words, since there was no counteraffidavit, or any counterevidence, summary judgment was appropriate.

Plaintiffs’ argument that it was an abuse of discretion to refuse to reconsider the summary judgment is similarly flawed. Several of their contentions are based on the application and scope of Rule 220. However, it must be noted, as defendants point out, that Rule 220 did not apply to Judge Kelly’s order barring plaintiffs from using expert testimony. Rule 220 went into effect on October 1, 1984, five months after entry of the sanction order. Defendants’ motion for sanction apparently was made pursuant to section 2 — 1003(c) of the civil practice rules (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1003(c)), which provides that a party can file a motion to compel disclosure of expert witnesses a sufficient time prior to trial so as to allow adequate preparation of the case by other parties.

Plaintiffs rely on Addison v. Whittenberg (1987), 159 Ill. App. 3d 585, for the proposition that Rule 220 does not operate to bar a plaintiff’s action if it is not followed; it merely prohibits plaintiffs’ experts from testifying at trial if they are not disclosed. However, our supreme court, in reversing Addison, found that Rule 220 was not relevant in determining whether summary judgment was appropriate. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 295.) The supreme court noted that even if Rule 220 were to preclude a party from introducing trial material, it had nothing to do with making the existence of a genuine issue of material fact any more or less certain for purposes of determining a summary judgment motion. (Addison, 124 El. 2d at 296.) It was also stated that it is acceptable for a party to offer substitutes, e.g., professional guides, for expert testimony in establishing a prima facie case of medical malpractice. In any event, plaintiffs’ case was not dismissed as a sanction for failure to comply with discovery rules; it was dismissed on summary judgment (as to the present defendants) as a result of plaintiffs’ failure to present, or even attempt to present, a prima facie case of medical negligence.

Relying on Balciunas v. Duff (1983), 94 Ill. 2d 176, plaintiffs assert that Judge Berman converted and expanded Judge Kelly’s order to one that effectively dismissed plaintiffs’ complaint. The record indicates, however, that Judge Berman merely ruled on defendants’ motion for summary judgment on the basis of the evidence properly before the court. Since there was no genuine issue of material fact shown by that evidence, summary judgment was proper.

Plaintiffs’ arguments as to why Judge Berman abused his discretion in denying their motion for reconsideration appear to focus on the court’s failure to reconsider Judge Kelly’s 1984 sanction order. This argument rests on the premise that the summary judgment order was, in reality, a sanction on a sanction. We have already held that this is not the case. Plaintiffs’ other theories are based on Supreme Court Rule 220. (107 Ill. 2d R. 220.) Even assuming that Rule 220 did apply to Judge Kelly’s sanction order, and we have already held that it did not, this court in Castro v. South Chicago Community Hospital (1988), 166 Ill. App. 3d 479, has responded negatively to plaintiffs’ arguments. Moreover, the Castro court held that it is entirely proper for a court to set a cutoff date for disclosure of experts more than 60 days before trial.

The facts in this case show that 3½ years had elapsed between the sanction order and Judge Berman’s denial of plaintiff’s reconsideration motion. During that time, plaintiffs never attempted to vacate Judge Kelly’s order. Then, after summary judgment was granted, Judge Berman exercised his discretion in granting plaintiffs another four months in which they could vacate the sanction order. After having granted plaintiffs two continuances, Judge Kelly refused to grant another one, and the sanction was never vacated. Actually, plaintiffs never did file a motion to vacate before either Judge Kelly or Judge Berman. Moreover, as Judge Berman noted, plaintiffs never tried to seek relief from the sanction order through several available procedural means nor did they attempt to present any evidence at all to support their claim.

Under these circumstances, we find not a scintilla of abuse of discretion by the trial court in refusing to reconsider either the summary judgment motion or the 1984 discovery sanction order.

Accordingly, both orders of the trial court (Judge Berman) are affirmed.

Affirmed.

PINCHAM and LORENZ, JJ., concur.


author: JUSTICE COCCIA

text:
    GENEVA HANDY, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1773
    Opinion filed May 5, 1989.

      Morton Abt, of Abt, Meyers & Kages, of Chicago, for appellant.
    Arnstein & Lehr, of Chicago (Arthur L. Klein, Hal R. Morris, and Nancy J. Montroy, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

On September 19, 1985, plaintiff Geneva Handy filed a complaint in the circuit court of Cook County for injuries sustained when she slipped and fell while on the premises of defendant, Sears, Roebuck and Company (Sears). The complaint was dismissed on defendant’s motion for summary judgment and plaintiff appeals.

While shopping at a Sears store on January 17, 1985, plaintiff slipped and fell on some water located within the store. Plaintiff’s complaint alleged that the incident occurred as a result of defendant’s negligence in maintaining the property and in allowing “an unusual accumulation of water and foreign material” to remain on the floor rendering that condition dangerous and hazardous.

Defendant filed a motion for summary judgment alleging that the evidence was uncontroverted in establishing that plaintiff’s injuries occurred as a result of a natural accumulation of water which had been tracked into the store by customers. The circuit court granted the motion but gave plaintiff leave to take an additional deposition of one of the eyewitnesses. After the deposition was completed, plaintiff presented an oral motion to reconsider which the circuit court denied.

On appeal plaintiff argues that the circuit court erred in granting summary judgment because there was a genuine issue as to the source of the accumulated water. In her brief plaintiff advances for the first time several theories as to the possible sources of the water which she asserts would contradict defendant’s theory of a natural accumulation caused by customers who tracked it into the store. However, this court’s review is limited to those facts and theories presented in the circuit court, and plaintiff may not now raise new factual theories for this court to consider. See Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417, 420.

Defendant’s motion for summary judgment was supported by two affidavits: one from an eyewitness stating that the water had been tracked inside defendant’s store by customers and another from an employee who placed plaintiff’s fall at approximately 23 feet from an entrance and 10 feet from the walk-off mat at that entrance. Defendant’s motion also included a written statement from a second eyewitness which corroborated the affidavit of the first eyewitness, a climatological report indicating there had been six inches of snow on the ground that day, and the transcripts of depositions taken of plaintiff and her daughter, who had been with her at the time of the incident.

Plaintiff’s response to the motion for summary judgment contained no counteraffidavits, but included certain passages from the transcripts described above.

It is well established in Illinois that a property owner has no liability for injuries which result from natural accumulations of water, snow or ice. (Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173, 488 N.E.2d 679, 680.) However, a property owner does have a duty and therefore may be liable where the injuries are a result of an unnatural or artificial accumulation, or a natural condition aggravated by the owner. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 535, 519 N.E.2d 1160, 1161-62.) In order to withstand a motion for summary judgment, a plaintiff must allege sufficient facts to permit the trier of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or snow which caused plaintiff’s injuries. 166 Ill. App. 3d at 535, 519 N.E.2d at 1162.

After reviewing the record, we find that plaintiff did not offer any facts which would have allowed the trier of fact to find that the water inside the store was an unnatural accumulation or a natural condition aggravated by the owner. (See Lohan v. Walgreens Co., 140 Ill. App. 3d 171, 488 N.E.2d 679; Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d 533, 519 N.E.2d 1160.) Further, in her response to the motion for summary judgment plaintiff offered no explanation for the source of the water, nor did she present evidence refuting the affidavits and statements of eyewitnesses stating that the water was tracked in by customers. (See Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d at 536, 519 N.E.2d at 1162-63.) The fact that plaintiff stated at her deposition that she had no idea where the water came from and that it looked like a spill did not create a triable issue of material fact. (See Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d 533, 519 N.E.2d 1160.) Although plaintiff did not have to try her case on a motion for summary judgment, she did have to provide a factual basis which would have arguably entitled her to judgment. (Amalgamated Trust & Savings Bank v. Silha (1984), 121 Ill. App. 3d 1033, 1040, 460 N.E.2d 372, 377.) We find that plaintiff failed to do so.

Plaintiff contends that defendant owed plaintiff a duty to remove the liquid on the floor because it created a hazardous condition. However, this court has repeatedly held that a storekeeper has no duty to remove tracks left by customers who have entered the building after walking through natural accumulations of snow, slush or water. Bernard v. Sears, Roebuck & Co., 166 Ill. App. 3d at 536, 519 N.E.2d at 1162; Lohan v. Walgreens Co., 140 Ill. App. 3d at 173, 488 N.E.2d at 681.

Plaintiff states that the record contains evidence that defendant’s security guard was aware of the accumulated water at least one-half hour prior to plaintiff’s fall because another individual slipped in the same spot. Plaintiff asserts that the security guard’s knowledge gave defendant effective notice of the hazardous condition requiring defendant to warn plaintiff of the potential danger. Plaintiff cites Walter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 386 N.E.2d 495, in support of her argument. However, in Wolter this court stated that a defendant had a duty to warn plaintiff of a hazardous condition only if that condition had resulted from an unnatural or artificial accumulation of water or ice. (68 Ill. App. 3d at 1019, 386 N.E.2d at 500-01.) The present record does not uphold plaintiff’s contentions.

Finally, plaintiff urges that this court overturn our previous decisions in Lohan and Bernard, citing a single Georgia case in support of her argument. Finding plaintiff’s argument to be without merit, we decline to do so.

This case is almost factually indistinguishable from Lohan and Bernard, and in the absence of any evidence of an alternative source of water or evidence that defendant was responsible for an unnatural accumulation of water, we believe the circuit court properly granted summary judgment. Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MURRAY, P.J., and LORENZ, J., concur.


text:
      In re PETITION TO FORM A NEW PARK DISTRICT COTERMINOUS WITH THE VILLAGE OF MAYWOOD, ILLINOIS, TO SUPERCEDE THE EXISTING CENTRAL AREA AND WEST MAYWOOD PARK DISTRICTS
    First District (5th Division)
    No. 1—89—0432
    Opinion filed May 5, 1989.

      Gregory A. Friedman, Charlene L. Holtz, and Evdoxia Beroukas, all of Friedman & Holtz, P.C., of Chicago, for appellant.
    Stanley L. Hill, Adolphus Hall, Jr., and Vickie Voukidis Blum, all of Stanley L. Hill & Associates, P.C., of Chicago, for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

This action was brought on December 16, 1988, as a petition for the submission of the question whether to form a new park district with boundaries coterminous with those of the Village of Maywood and, in so doing, to supercede the existing West Maywood and Central Area Park Districts. In support of the petition, three separate sets of petition sheets were submitted to the trial court: one set purporting to include signatures of legal voters residing in the West Maywood Park District, a second set for purported legal voters residing in the Central Area Park District, and a third set for purported legal voters residing in the area within the Village of Maywood not currently within either park district.

On February 8, 1989, the trial court entered an order certifying the petition for submission to referendum. It is from that order that this appeal is taken.

We immediately took this appeal as an expedited matter on briefs only. On April 3, 1989, due to the shortness of time before the election within which to deal with the appeal, we entered an order staying certification of the referendum results until the further order of this court.

We have reviewed the briefs and record in this case and have concluded that the trial court erred in finding that the petition filed in this cause met the requirements of the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 1 et seq.) and the general election law of Illinois. Accordingly, we need not deal with the several additional issues assigned as errors in this case. We therefore reverse and remand this cause to the trial court with directions as set forth herein.

On December 16, 1988, the last day permitted under the applicable provisions of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 28— 2), a group calling itself the “Citizens for a Unified Park District” filed a petition in the county division of the circuit court of Cook County, Illinois, entitled “IN THE MATTER OF THE PETITION TO FORM A NEW PARK DISTRICT COTERMINOUS WITH THE VILLAGE OF MAYWOOD, ILLINOIS, TO SUPERCEDE THE EXISTING CENTRAL AND WEST MAYWOOD PARK DISTRICTS.” Attached to that petition were the three sets of petition sheets purporting to contain the signatures of legal voters residing within the Central Area Park District, the West Maywood Park District, and the area within the Village of Maywood which was not a part of nor situated within a park district.

On January 18, 1989, the West Maywood Park District filed a motion to strike and dismiss the petition on grounds that the petition did not conform with section 2 — 4 of the Park District Code. Ill. Rev. Stat. 1987, ch. 105, par. 2-4.

Section 2 — 4 of the Park District Code specifically provides the trial court may certify a petition only if there is a finding that it “meets the requirements of [the Park District Code] and the general election law.” (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 4.) In particular, the West Maywood Park District asserted that the petition failed to comply with the requirements of the general election law, i.e., section 28 — 3 of the Election Code. Ill. Rev. Stat. 1987, ch. 46, par. 28 — 3.

Petitioners filed their response to the West Maywood Park District’s motion to strike and dismiss on January 24, 1989. They argued that the petition not only met the requirements of the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 1 et seq.), but also that the Park District Code governed exclusively the procedure and contents of petitions for the formation of new park districts. They cited the case of In re Organization of Greater Algonquin Park District (1982), 103 Ill. App. 3d 1056, 432 N.E.2d 306, in support of their contention. Relying on Algonquin, petitioners asserted that, contrary to section 28 — 3, no circulator’s statement and verification were needed. They further asserted that the heading requirement of section 28 — 3 did not apply to the petition sheets.

On January 25, 1989, the West Maywood Park District filed its reply in support of its motion to strike and dismiss. The West Maywood Park District informed the court that the second district’s reasoning in Algonquin had been addressed and rejected in the subsequent fourth district decision in Adsit v. Sanders (1987), 157 Ill. App. 3d 416, 510 N.E.2d 547. The trial court reserved ruling on the applicability of section 28 — 3 of the Election Code until after evidence was heard on the objections.

After hearings over several days and after the taking of evidence, the court held that the provisions of the Election Code, including those under section 28 — 3 which require a circulator’s verification and statement on each petition sheet, did not apply to a petition to form a new park district which would supercede existing park districts.

The West Maywood Park District complained that without a circulator’s verification, it was unable to conduct a cross-examination to determine if the individuals signing the petition were legal voters as required by section 2 — 2.1 of the Park District Code. Ill. Rev. Stat. 1987, ch. 105, par. 2 — 2.1.

The trial court thereafter ruled that the three sets of petition sheets complied with the statute. The court further ruled that the petition met the requirements of the Park District Code and the general election law, and that the boundaries defined were reasonable boundaries for the formation of a park district. On February 8, 1989, the trial court ordered the question submitted to referendum at the next general election, April 4, 1989, and further ordered the clerk of the circuit court to certify the proposition to the county clerk.

A petition for the submission of the question whether to form a new park district is governed by statute. (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 1.) Section 28 — 1 states:

“The initiation and submission of all public questions to be voted upon by the electors of the State or of any political subdivision or district or precinct or combination of precincts shall be subject to the provisions of this Article.
Questions of public policy which have any legal effect shall be submitted to referendum only as authorized by a statute which so provides or by the Constitution.” (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 1.)

Section 28 — 1 provides further:

“Whenever a statute provides for the initiation of a public question by a petition of electors, the provisions of such statute shall govern with respect to the number of signatures required, the qualifications of persons entitled to sign the petition, the contents of the petition, the officer with whom the petition must be filed, and the form of the question to be submitted.” Ill. Rev. Stat. 1987, ch. 46, par. 28 — 1.

We are accordingly free, by direction of this section of the Election Code, to proceed to that statute which provides for the initiation of a public question, namely the Park District Code, found in section 2 — 2 et seq. (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 2 et seq.), which sets forth the conditions and requirements that must be addressed in a petition to form a park district, particularly one that shall supercede the park districts previously existing within the limits of the municipality. See particularly Ill. Rev. Stat. 1987, ch. 105, par. 2 — 2.1.

Section 2 — 4 of the Park District Code provides:

“If the circuit judge finds, upon such hearing, that the petition meets the requirements of this Act and the general election law, *** he shall order the question submitted to referendum ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 105, par. 2 — 4.

The “general election law” as referred to in section 2 — 4 is defined in section 1 — 1 of the Election Code:

“This Act is the general election law of Illinois and any reference in any other Act to ‘the general election law’ or ‘the general election law of this State’ is a reference to this Act, as now or hereafter amended.” Ill. Rev. Stat. 1987, ch. 46, par. 1 — 1.

When comparing the requirements of petitions for the formation of park districts, as set forth in the Park District Code, with those of the Election Code, as required by section 2 — 4 of the Park District Code, we are directed to section 28 — 3 of the Election Code, which provides:

“Petitions for the submission of public questions shall consist of sheets of uniform size and each sheet shall contain, above the space for signature, an appropriate heading, giving the information as to the question of public policy to be submitted, and specifying the state at large or the political subdivision or district or precinct or combination of precincts or other territory in which it is to be submitted and, where by law the public question must be submitted at a particular election, the election at which it is to be submitted. *** Such petition shall be signed by the registered voters of the political subdivision or district or precinct or combination of precincts in which the question of public policy is to be submitted in their own proper persons only, and opposite the signature of each signer his residence address shall be written or printed ***.
At the bottom of each sheet of such petition shall be added a statement, signed by a registered voter of the political subdivision or district or precinct or combination of precincts in which the question of public policy is to be submitted, stating the street address or rural route number of the voter, as the case may be, as well as the voter’s city, village or town, certifying that the signatures on that sheet of the petition were signed in his presence and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petition registered voters of the political subdivision or district or precinct or combination of precincts in which the question of public policy is to be submitted and that their respective residences are correctly stated therein. Such statement shall be sworn to before some officer authorized to administer oaths in this State.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 46, par. 28 — 3.

Noticeably absent in the required petition contents found in section 2 — 2 of the Park District Code are those provisions dealing with heading and certification which are required by the Election Code in section 28 — 3.

The issue that is framed before us accordingly is reduced to a resolution of the question of whether the petition as filed by the petitioners, seeking to form a new park district, is in conformity with the Park District Code and the general election law.

The West Maywood Park District contends that petitioners failed to comply with the heading requirement of section 28 — 3, because the petition sheets did not state that forming a new park district would require dissolving the existing park districts. The park district further contends that petitioners did not comply with the certification requirement of section 28 — 3, because the petition sheets failed to include the circulators’ statements, sworn to or otherwise.

Petitioners respond that section 28 — 3 of the Election Code is not applicable, in view of section 28 — 1 of the Election Code which, as noted above, states in effect that whenever a statute provides for the initiation of a public question by petition, the provisions of that statute shall govern with respect to the contents of the petition.

According to the petitioners, section 2 — 2 of the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 2 — 2) alone governs the contents of their petition. Section 2 — 2 of the Park District Code states:

“In organizing any park district under this Code not less than 100 legal voters resident within the limits of such proposed park district may petition the circuit judge of the county in which such territory, or the greater or greatest portion thereof, in area, lies, to cause the question to be submitted to the legal voters of such proposed park district whether they will organize as a park district. Such petition shall clearly define the territory intended to be embraced in such district and the name of such proposed district. The petition must include an affidavit attesting that notice of intent to petition for formation of a park district has been published as required by the general election law. In cases coming within the terms of Section 2 — 2.1 the petition shall also set forth facts showing that the proposed park district meets the requirements of that Section and shall be signed by the number of legal voters required by that Section.” Ill. Rev. Stat. 1987, ch. 105, par. 2-2.

Petitioners point out that section 2 — 2 does not require certification or a heading; consequently, their petition met the requirements of the Park District Code. Petitioners rely upon In re Organization of Greater Algonquin Park District (1982), 103 Ill. App. 3d 1056, 432 N.E.2d 306, in support of their position.

The petitioners in Algonquin, as well as the petitioners in this cause, sought to organize a park district. The objectors in both cases moved to dismiss the petition on the grounds that it violated section 28 — 3 of the Election Code; in particular, the objectors in each case argued that the petition failed to meet the requirement as to the proper certification of the genuineness of the signatures appearing on each petition sheet. The circuit court in Algonquin dismissed the petition, and the petitioners appealed. The second district reversed, holding that section 28 — 3 was inapplicable.

The Algonquin court invoked section 28 — 1 of the Election Code to support its holding. The court concluded that it was clear from the provisions of section 28 — 1 that if the statute providing for the initiation of a public question specifies the petition requirements, then it controls on these requirements over provisions of the Election Code. The court then turned to section 2 — 2 of the Park District Code (Ill. Rev. Stat., 1980 Supp., ch. 105, par. 2 — 2) and found that it specifically provided, for the contents of the petition. It therefore concluded that section 28 — 3 of the Election Code, which provided generally for the contents of petitions, did not govern since the Park District Code provided for more specific legislation on the same topic. It went on to note that it is a “fundamental rule of statutory construction that where there exist[s] a general statutory provision and a specific statutory provision, either in the same or another act, which both relate to the same subject, the specific provision controls and should be applied. [Citations.]” Algonquin, 103 Ill. App. 3d at 1063, 432 N.E.2d at 311-12.

The Algonquin court reasoned that had the legislature intended that a petition to organize a park district include appropriate certification (as set forth in section 28 — 3), it could have so provided. That court in further analyzing the problem was of the opinion that the legislature intended to govern the time and manner of referenda in the Election Code, leaving it to specific statutes such as the Park District Code to govern the contents of petitions. Algonquin, 103 Ill. App. 3d at 1063-64, 432 N.E.2d at 312, citing Ill. Rev. Stat., 1980 Supp., ch. 105, par. 1 — 5.

The West Maywood Park District, in contrast, points out that the rationale for the holding in Algonquin was subsequently rejected by the fourth district in Adsit v. Sanders (1987), 157 Ill. App. 3d 416, 510 N.E.2d 547.

The fourth district court refused to follow Algonquin on the issue of the applicability of section 28 — 3. Defendants in Adsit sought a referendum on the question of whether a new community unit school district should be formed. Objections to the petition were grounded on section 28 — 3, since it allegedly failed to meet that section’s heading and certification standards. The defendants countered by arguing that section 28 — 3 was not applicable, in light of Algonquin.

The fourth district reviewed Algonquin at length. Unlike the second district, it also considered section 1 — 1 of the Election Code and section 2 — 4 of the Park District Code. The fourth district noted the similarities between section 2 — 4, which required then, as it does now, that a petition “meet[ ] the requirements of *** the general election law,” and section 11A — 3 of the School Code (Ill. Rev. Stat., 1984 Supp., ch. 122, par. 11A — 3), which required compliance with “the petition requirements set forth in the Election Code.” Adsit, 157 Ill. App. 3d at 423, 510 N.E.2d at 552.

The fourth district court, in rejecting Algonquin, went on to rely upon section 2A — 1 of the Election Code:

“(a) No public question may be submitted to any voters in this State, *** except pursuant to this Code, notwithstanding the provisions of any other statute or municipal charter.” (Ill. Rev. Stat. 1983, ch. 46, par. 2A — 1.)

The court also made reference to the requirement of section 28 — 1 that all referenda be governed by the Election Code. (Adsit, 157 Ill. App. 3d at 425-26, 510 N.E.2d at 553.) Thus, the court concluded, the legislature intended for section 28 — 3 of the Election Code to apply. (Adsit, 157 Ill. App. 3d at 426, 510 N.E.2d at 553.) Relying upon the reasoning of this court in Shapiro v. Regional Board of School Trustees (1983), 116 Ill. App. 3d 397, 451 N.E.2d 1282, the fourth district observed that compliance with section 28 — 3 would have avoided many objection problems in the case before it. Adsit, 157 Ill. App. 3d at 426, 510 N.E.2d at 553.

Given the similarities between section 2 — 4 of the Park District Code and section 11A — 3 of the School Code, Algonquin and Adsit appear to be irreconcilable. Although we are not bound by either decision (see Seibring v. Parcell’s Inc. (1989), 178 Ill. App. 3d 62, 70, 532 N.E.2d 1335, 1340), we conclude that the fourth district reached the correct result in Adsit, by applying section 28 — 3. We will not assume that the legislature intended for section 28 — 3 not to apply merely because section 2 — 2 contains no heading or certification requirements. Undeniably, a proper reading of the Election Code’s section 28 — 1 reveals that the Park District Code’s section 2 — 2 is applicable in this case. Yet that code’s section 2 — 4, which applies with equal force, requires that petitions meet the requirements of the general election law. The Election Code’s section 1 — 1, in turn, teaches that the general election law is the Election Code. And that code’s section 28 — 3 requires headings and certification. If the legislature intended for section 28 — 3 not to apply, then why was the general election law mentioned in section 2 — 4 of the Park District Code? Were we to adopt the holding of Algonquin on this issue, the reference to the general election law in section 2 — 4 would be rendered superfluous. Such a result would be contrary to settled principles of statutory construction. See 2A N. Singer, Sutherland on Statutory Construction §46.06 (4th ed. 1984).

Our conclusion, however, rests upon an additional principle. The certification and oath requirement of section 28 — 3 is a meaningful method of significantly reducing the opportunity to introduce fraud through the use of illegal signatures on petitions. The requirement that the petition circulator certify that the signatures on that petition sheet signed in his presence are genuine and valid subjects the certifier to the penalty of perjury prosecution. (Shipley v. Stephenson County Electoral Board (1985), 130 Ill. App. 3d 900, 906-07, 474 N.E.2d 905, 910.) If we decided that section 28 — 3 did not apply, fraud would be more difficult to detect, at best; at worst, fraud would be tacitly encouraged. We do not believe the legislature intended to abandon this safeguard, nor will we countenance the loss of such protection for the electorate. See People ex rel. Holland v. Edelman (1975), 27 Ill. App. 3d 793, 796, 327 N.E.2d 338, 340 (in determining legislative intent, the consequences of various statutory constructions must be considered).

In the alternative, petitioners argue thqt if we apply section 28 — 3, it should not apply retroactively. They cite Shapiro to support their argument. But the reasons which moved us to hold, in Shapiro, that section 28 — 3 was inapplicable retroactively do not obtain here, because the facts of the case are distinguishable. First, Shapiro involved a detachment proceeding. Therefore, plaintiffs in Shapiro could argue, with some justification, that retroactive application of section 28 — 3 was oppressive, given the significant differences between detachment proceedings and referenda. In contrast, this case concerns a referendum, to which the Election Code’s section 28 — 3 logically applies, since article 28 of that Code governs referenda. Second, the board in Shapiro had a history of accepting nonconforming petitions, and plaintiffs relied on that history when preparing their petition. Yet in our case petitioners rely solely upon what they describe in their brief as “the long established valid precedent of Algonquin.” Curiously, Adsit is the only case that mentions Algonquin. Petitioners have failed to persuade us that section 28 — 3 should not apply retroactively.

We further note that the certification requirement of section 28 — 3 is mandatory. Shipley v. Stephenson County Electoral Board (1985), 130 Ill. App. 3d 900, 906, 474 N.E.2d 905, 910.

Finally, we hold that the heading requirement of section 28 — 3 is equally mandatory. Although we find no case authority that has dealt with this question in Illinois, we feel that the legislature sought to protect the signators and the electorate from misrepresentation and fraud as well as to make certain that they be fully informed as to the question of public policy they are being asked to support.

Given our view that the need for headings as required in section 28 — 3 is mandatory, there is a need to determine whether the headings supplied were in substantial compliance with the statutory requirement. We do note that the heading furnished does not indicate or advise the intended signator that the petition which has for its purpose the creation of a new park district would in fact supercede the two existing park districts, in that the two would of necessity be dissolved, should the referendum carry. We leave this for the circuit court to resolve.

We therefore reverse and remand this cause to the circuit court for a hearing on the issue of whether the subject petition meets the heading and certification requirements of section 28 — 3 of the Election Code. Accordingly, the mandate of this court shall issue forthwith. The stay entered on April 3, 1989, shall remain in effect pending the circuit court’s ruling. Should the court rule that petitioners have complied with both the heading and certification requirements of section 28 — 3, then the stay shall automatically dissolve and the referendum results be certified. Should the circuit court rule, however, that petitioners have not complied with both the heading and certification requirements of section 28 — 3, then the trial court is directed to declare the referendum results void.

Reversed and remanded with directions.

MURRAY, P.J., and LORENZ, J., concur.


author: JUSTICE WOODWARD

text:
    BOARD OF EDUCATION OF THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Phillip Stice, Appellee).
    First District (Industrial Commission Division)
    No. 1—87—2700WC
    Opinion filed May 5, 1989.
    Patricia J. Whitten, of Law Department of Board of Education, of Chicago, for appellant.
    Monico Pavich, of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

This is an appeal from an award of benefits under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1985, ch. 48, par. 172.36 et seq.) on remand from the appellate court. Initially, claimant, Phillip Stice, filed an application for adjustment of claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) for an incident occurring on September 5, 1979. The arbitrator found an accident but no causal connection based on the workers’ compensation application. The arbitrator denied claimant’s motion to add an occupational disease claim. The Industrial Commission (Commission) affirmed the arbitrator’s decision but allowed the claimant to add an occupational disease claim. The circuit court confirmed the Commission’s decision. The appellate court entered an order remanding the case to the commission for a hearing on the occupational disease claim. On remand, the Commission awarded 1832/? weeks temporary total disability and $10,114.33 in medical expenses under the Occupational Diseases Act. The circuit court confirmed the Commission’s decision. This appeal followed.

At the arbitration hearing held on February 17, 1982, only the claimant testified; on March 11, 1983, claimant and Dr. Schiff, his psychiatrist, testified before a member of the Commission. The following statement is taken verbatim from the statement of facts in claimant’s brief:

“Phillip L. Stice was born in Chicago in 1928. He served his country in the United States Navy from 1945 to 1947. From 1949 to 1951 he attended Wilson Junior College and then in 1955 enrolled in Chicago Teacher’s College from where he was graduated in 1957. That same year he took a position with the Chicago Board of Education teaching at Beale Elementary School.
Mr. Stice taught at Beal for 22 years. During that time he maintained excellent physical health — he had been a recreational boxer for several years until 1956 or 1957, and played handball three times a week from 1948 to 1978.
However, sometime during the late Summer and early Fall of 1978, Mr. Stice began experiencing deepening depression and frustration over his job, which was requiring, him to become a disciplinarian rather than a teacher. Dr. Sheldon Schiff, a Board Certified Psychiatrist, testified that Mr. Stice essentially ‘was teaching less and less, being insulted more and more, and being in situations which were undoing everything in increasing amounts.’ He withdrew from all his social and recreational activities. Dr. Schiff testified that over a 12 to 16 month period, Mr. Stice was becoming ‘more and more psychiatrically vulnerable’ because of job frustrations.
During this period, Mr. Stice developed a non-disabling depression. On September 5, 1979, it became an acute suicidal depression after an 8th Grade girl slapped Mr. Stice in the face in the Beale lunchroom. Within one week he was seen and examined by Dr. Schiff, who thereafter began seeing him weekly and then bi-weekly. Mr. Stice never returned to work.
Based on his treatment, Dr. Schiff testified that Mr. Stice suffered from a post-traumatic depressive neurosis with phobic features. He found that Mr. Stice’s job frustrations had rendered him increasingly depressed and vulnerable. Dr. Schiff determined that the depression and vulnerability developed as a consequence of Mr. Stice’s work environment, and that this depression, vulnerability and professional frustration in large part caused the condition for which he treated Mr. Stice. Dr. Schiff found the slapping incident to be the acute precipitating cause of his condition, i.e., the ‘straw that broke the camel’s back.’ Mr. Stice has been ‘unremittingly’ totally disabled since September 5,1979.
The Board presented no evidence. It did ask Dr. Arthur Price to examine Mr. Stice prior to the hearing, but did not offer Dr. Price as a witness. As a result, Mr. Stice offered Dr. Price’s report into evidence, which the Arbitrator admitted over the Board’s objection. The Board made no issue on appeal of the admission of Dr. Price’s report, and therefore, it can be assumed that the objection was waived. Dr. Price’s report contained this conclusion:
‘Then all the responsibilities and stresses of life must have come to bear upon him and he has felt a grave sense of failure only to get more responsibility and “topped” by the humiliating insult, physical and mental, inflicted by only a child, resulted in a profound depression, manifested by despair, fear and thoughts of suicide — running away. As a consequence, he has not returned to work since the incident of being struck.
He essentially is running away and withdrawing which is his usual coping mechanism.
It is my opinion that the incident did not cause Mr. Stice’s depression. Certainly he has been depressed for most of his life and has been increasing to intensity during the past few years and many factors have contributed.’ ”

On appeal, respondent argues that the Commission’s award is barred by collateral estoppel on the theory that the issue of causal connection was found against the claimant’s workmen’s compensation claim and that this finding, likewise, applied to claimant’s occupational disease claim. In view of our disposition of this case, it is not necessary to address the issue of estoppel.

First, it must be determined as a matter of law whether the claimant has established that he was exposed to the hazards and sustained an injury under section 1(d) of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1987, ch. 48, par. 172.36(d)), which states in pertinent part as follows:

“In this Act the term ‘Occupational Disease’ means a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.
A disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence.” Ill. Rev. Stat. 1985, ch. 48, par. 172.36(d).

Claimant seeks compensation under the Occupational Diseases Act for a mental disorder which began in the summer of 1978 and which continued for a period of 12 to 16 months, until September 5, 1979, when he was slapped in the face by an eighth-grade girl while he was escorting her from the room. This event precipitated a post-traumatic depressive neurosis with phobic factors. Claimant’s psychiatrist found that this condition was caused by claimant’s frustration and his work environment. Therefore, the issue raised is whether or not claimant’s mental illness under the facts here presented qualifies as an occupational disease which arose out of and in the course of his employment and that the disease developed therefrom as a rational consequence.

Our research has disclosed three Illinois cases involving compensation claims for mental illness that were caused by conditions of employment. In Pathfinder Co. v. Industrial Comm’n (1976), 62 Ill. 2d 556, the claimant instructed a co-worker in the operation of a punch press and shortly thereafter, the co-worker screamed when her hand was severed at the wrist; the claimant pulled the severed hand of the co-worker from the machine and fainted; she remembered nothing thereafter until the next day when she was discharged from the hospital with a diagnosis of having had an anxiety reaction; thereafter, she tried working but ultimately terminated her employment due to mental and physical problems originated with the last-described event. Our supreme court affirmed the award although the claimant sustained no physical trauma.

Claimant cites Pathfinder as Illinois authority that psychological disabilities are compensable and that the reasoning should apply here. In this case, the testimony of Dr. Schiff, claimant’s expert, is not contradicted that the claimant’s mental problems were triggered by the face-slapping event. A comparison of the facts in Pathfinder with the facts in this case clearly demonstrates that the event described by claimant was not the sudden severe emotional shock that the supreme court found to be compensable in Pathfinder. Furthermore, in Pathfinder, the claimant there had not been involved with an emotional depression that had developed over 12 to 16 months prior to the slapping incident. In effect, the event relied upon by claimant “as the straw that broke the camel’s back” was a risk connected with claimant’s employment that could or might occur in the ordinary course of events to a person engaged as a school teacher or engaged in some other pursuit.

Having determined that the physical trauma sustained by claimant does not approach the sudden, shocking event found in Pathfinder, we must examine this claim in comparison with other Illinois cases that involve mental disorders which were attributed to the worker’s environment. In General Motors Parts Division v. Industrial Comm’n (1988), 168 Ill. App. 3d 678, claimant sought workmen’s compensation for a mental disorder suffered after his supervisor verbally assaulted him with profane, racial slurs, calling him by highly obscene and racial names. By reason of this conduct, claimant became mentally ill and stated that he felt “less than a man” and “down graded.” This court denied compensation as a matter of law, holding that the event was nontraumatic and not out of proportion to the incidents of normal employment activity. It should also be pointed out that no physical trauma was involved in that case.

Understandably, neither party here addressed Chicago Board of Education v. Industrial Comm’n (1988), 169 Ill. App. 3d 459 (Moore), which was filed several months after this case was argued. Board of Education (hereinafter Moore) addresses the issue of when compensation for a mental disorder allegedly emanating from on-the-job stressful conditions is allowed under the Occupational Diseases Act. There, the claimant was a 56-year-old teacher who worked for respondent, Chicago Board of Education, from June 1967 to June 1978. Claimant testified regarding a number of instances in which he was verbally and physically assaulted by students. He described a variety of working conditions which exacerbated his problems, i.e., increased paperwork, unruly students, and lack of support from the school administration.

Claimant in Moore stated that he could not return to teaching in September 1978 because he could not physically or mentally handle returning to the stressful school environment. On cross-examination, claimant admitted that he had been discharged from the Army for psychiatric problems, which were manifested in crying outbursts and tremors. He also admitted that he had separated from his family in April 1979 due to continual arguments with his wife and children. He denied telling a psychiatrist that his wife and he fought physically.

In Moore, the claimant’s mental disorder developed over a period of five years; it was a claim under the Occupational Diseases Act similar to the one involved here, namely, a Chicago school teacher had been exposed to many stressful incidents, including physical trauma and humiliating events. The issue determined was whether claimant had established that he was exposed to the hazards of or sustained an injury from occupational disease. The court observed that unruly students, unresponsive administration, and the burdens of record keeping were not unusual in the claimant’s profession; compensation was denied by the decision of this court, holding that claimant had not established that the events creating his mental disability were out of the ordinary workplace environment.

Here, the claimant’s proof establishes that he has a mental disorder that developed over a period of 12 to 16 months and that said illness was greatly exacerbated when he was slapped in the face by an eighth-grade girl. Nevertheless, the evidence fails to establish that this was an extraordinary event that arose from an uncommon or unusual stress situation of much greater dimensions than the experience encountered by teachers in the Chicago school system or that might be encountered in another employment-type relationship. Furthermore, the stress must be present when viewed objectively and not strictly as perceived by the claimant. As stated above, the evidence does not support an award for the petitioner in this case.

On-the-job stress, of itself, is not a disease. (McGarrah v. State Accident Insurance Fund Corp. (1983), 296 Or. 145, 675 P.2d 159.) The following excerpt from the Moore case at page 466, applies to this case as well:

“To recognize that our occupational disease law would allow compensation for any mental diseases and disorders caused by on-the-job stressful events or conditions would, in the words of one court, open a floodgate for workers who succumb to the everyday pressures of life.” Chicago Board of Education v. Industrial Comm’n (1988), 169 Ill. App. 3d 459, 466.

Accordingly, the judgments of the circuit court and decision of the Industrial Commission are reversed.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.