author: JUSTICE McNULTY

text:
    ANDREW B. PUNDY, Plaintiff-Appellant, v. THE DEPARTMENT OF PROFESSIONAL REGULATION et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—89—1702, 1—89—3296 cons.
    Opinion filed March 15, 1991.

      Sandra G. Nye, Elizabeth B. Rosenbloom, and Allen E. Shoenberger, all of Sandra G. Nye & Associates, of Chicago, for appellant.
    Roland Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Ann Plunkett-Sheldon, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE McNULTY

delivered the opinion of the court:

This opinion addresses two consolidated appeals of the plaintiff, Andrew B. Pundy, involving the suspension of his medical license. The first is an interlocutory appeal challenging the constitutionality of section 41 of the Medical Practice Act of 1987 (Medical Practice Act) (Ill. Rev. Stat. 1987, ch. 111, par. 4400—41), which prohibits the issuance of a stay of sanctions while judicial proceedings are pending. The second is an appeal of the circuit court's decision to uphold the decision of the Illinois Department of Professional Regulation finding Dr. Pundy guilty of professional misconduct and suspending his medical license for a period of six months to be followed by two years’ probation.

On appeal, Dr. Pundy contends that (1) section 41 of the Illinois Medical Practice Act, prohibiting the issuance of a stay of sanctions pending review, is unconstitutional as applied to plaintiff and his patients; (2) the board’s decision that the plaintiff had engaged in unprofessional conduct likely to cause harm to the public was against the manifest weight of the evidence; (3) the trial court applied the incorrect standard of review in its analysis of this case; (4) the plaintiff was deprived of procedural due process by the administrative proceeding; and (5) the penalty imposed upon the plaintiff by the board was arbitrary and capricious.

The relevant facts are as follows. On November 17, 1986, the Illinois Department of Professional Regulation (Department) filed a three-count complaint against Andrew B. Pundy, a psychiatrist. Count I of the complaint alleged that Dr. Pundy had engaged in sexual relations with Rebecca Besch, one of his patients, while she was under his care. Count II of the complaint alleged that Dr. Pundy had engaged in an improper dual relationship with Besch, acting as both her psychiatrist and her employer. Count III of the complaint alleged that Dr. Pundy had inappropriately utilized Besch as a therapist in his office when she did not have either the training or experience as such. The Department held a 16-day hearing on these charges.

It is undisputed that Dr. Pundy began treating Besch in March of 1982, for what Dr. Pundy diagnosed as acute anxiety disorder related to her employment situation. Furthermore, in July of 1982, Dr. Pundy hired Besch to work in his office. Moreover, at some point sexual relations ensued between Dr. Pundy and Besch.

There was, however, conflicting testimony as to when exactly the psychiatrist-patient relationship ended and when the sexual relations began. Besch testified that her first sexual contact with Dr. Pundy occurred at a regular therapy session sometime between June 12 and 15, 1982, and continued until November 1983. Besch testified that a few days after her first sexual encounter with Dr. Pundy, he offered her a job in his office as a biller. Besch testified that she .was employed by Dr. Pundy from July 1, 1982, to November 27, 1983, and that sometime between July and September of 1982, her duties were expanded by Dr. Pundy to include acting as his co-therapist with several patients. She stated that throughout her employment with Dr. Pundy, she considered Dr. Pundy to be her doctor. On cross-examination, Besch testified that in June 1982 and thereafter, while she was employed by Dr. Pundy, she did not have formal 45-minute therapy sessions with him, but had a “continuous, free-floating appointment” for therapy, and that all her contacts with him were therapeutic.

Besch further testified that on November 27, 1983, Dr. Pundy terminated both their personal relationship and her employment. Besch testified that as a result of Dr. Pundy’s conduct, she was unable to either hold a job or to engage in intimate relationships with men and even attempted to commit suicide.

Dr. Pundy, on the other hand, testified that it was with Besch’s full agreement that he ended Besch’s therapy sessions on June 5, 1982. Dr. Pundy further testified that on July 2, 1982, after he no longer considered Besch to be his patient, he offered her a position as a biller in his office. Beginning in the late fall of 1982, Dr. Pundy stated that he allowed Besch to act as a co-therapist, under his supervision, with selected patients. Pundy stated that his sexual relationship with Besch did not begin until the summer of 1983.

Dr. James Cavanaugh, a board-certified psychiatrist, testified as an expert witness on behalf of the Department. It was Dr. Cavanaugh’s opinion that Dr. Pundy, by entering into a sexual relationship with Besch, failed to recognize and react to the issues of transference and countertransference, and therefore breached the standard of care applicable to psychiatrists. In transference, the patient transfers to the psychiatrist feelings she had about a past relationship, while in countertransference, the therapist transfers to the patient feelings he had about a past relationship.

Four experts testified on Dr. Pundy’s behalf, Dr. Patrick Staunton, Dr. Jerome Beigler, Dr. Anne Maxwell Seiden, and Gary Schoener. These experts disagreed either in whole or in part with Dr. Cavanaugh’s theory on transference and countertransference. All four of these experts testified that Dr. Pundy had not violated any medical or ethical standard by entering into a sexual relationship with Besch. Dr. Staunton and Dr. Schoener did state that each specific case must be decided according to whether the behavior would have a harmful effect on the former patient.

Following the administrative hearing, the hearing officer for the Department found that there was no credible evidence from which to establish improper sexual activity between Dr. Pundy and Besch during his medical treatment of her nor was there evidence from which to establish clearly and convincingly any violation of the Medical Practice Act. Consequently, the hearing examiner recommended that no discipline be imposed. Declining to follow the hearing officer’s recommendation, the Medical Disciplinary Board (Board) found Dr. Pundy guilty of unprofessional conduct likely to harm the public, violating section 16(5) (Ill. Rev. Stat. 1983, ch. 111, par. 4433(5)), and recommended to the Department that it suspend Dr. Pundy’s medical license for six months to be followed by a probationary period of two years. The Board reached this conclusion based only on count I of the complaint and declined to reach any conclusion as to the issues raised in counts II and III of the complaint. The Department thereafter adopted the recommendation of the Board.

On June 2, 1989, plaintiff filed a complaint for judicial review of the decision of the Department finding him guilty of professional misconduct and suspending his licence. In conjunction with his complaint, plaintiff filed a petition for a stay of the Department’s decision pending judicial review of the decision. The trial court denied plaintiff’s petition, ruling that the court had no jurisdiction to grant a stay pending appeal since section 41 of the Illinois Medical Practice Act (Ill. Rev. Stat. 1987, ch. 111, par. 4400—41) prohibits such stays. On June 30, 1989, plaintiff filed an interlocutory appeal, challenging this ruling on the grounds that section 41 of the Medical Practice Act is unconstitutional as applied to Dr. Pundy and his patients. On November 3, 1989, the circuit court upheld the Department’s decision as not being against the manifest weight of the evidence, and on November 29, 1989, plaintiff filed an appeal of this trial court decision.

We first address Dr. Pundy’s contention that section 41 of the Medical Practice Act is unconstitutional as applied to plaintiff and his patients. Section 41 of the Illinois Medical Practice Act provides for judicial review of agency decisions pursuant to the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) while also providing:

“During the pendency and hearing of any and all judicial proceedings incident to such disciplinary action the sanctions imposed upon the accused by the Department shall remain in full force.” (Ill. Rev. Stat. 1987, ch. 111, par. 4400—41.)

In Ming Kow Hah v. Stackler (1978), 66 Ill. App. 3d 947, 383 N.E.2d 1264, this court addressed the conflict between section 17.08 of the Medical Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 16b.08), which prohibited the issuance of a stay pending review, and section 3—111(a)(1) of the Administrative Review Act, which authorized the circuit court to issue a stay. The court held that as a matter of statutory construction, section 17.08 prevailed over the earlier enacted, more general provision of the Administrative Review Act.

Although Ming Kow Hah did not address the constitutionality of prohibiting a stay pending review, this issue was later addressed in Blumstein v. Clayton (1985), 139 Ill. App. 3d 611, 487 N.E.2d 1176. In Blumstein, following an administrative hearing, the Department of Professional Registration and Education (now the Department of Professional Regulation) suspended the plaintiff’s license to practice medicine for 90 days and placed the plaintiff on probation for two years. The plaintiff filed a complaint for administrative review and sought to enjoin the Department from enforcing sanctions pending review. The trial court denied the stay ruling that section 17.08 prohibited any injunction and was constitutional. Blumstein, 139 Ill. App. 3d at 612.

On appeal, the plaintiff contended that section 17.08 violated his right to equal protection by treating physicians differently from other health care professionals. (Blumstein, 139 Ill. App. 3d at 613.) The court rejected the plaintiff’s argument, holding that sanctioned doctors present a greater risk of harm to the public than other health care professionals and this greater risk justifies the difference in treatment. The court noted that this is essentially a risk-shifting device. “Recognizing the possibility of erroneous decisions by administrative agencies, the legislature provided for judicial review, but allocated the risk of error to the doctor as opposed to the public.” Blumstein, 139 Ill. App. 3d at 614.

In the case at bar, plaintiff contends that Blumstein is not applicable to cases involving psychiatrists. Plaintiff maintains that the court must balance the possible erroneous damage to Dr. Pundy’s interest with the governmental interest in protecting the public. Plaintiff contends that while there is indeed a governmental interest in preventing injury to patients by dangerous practitioners, there is no such governmental interest in the immediate cessation of Dr. Pundy’s practice without allowing him the opportunity to arrange for the orderly transition of fragile or potentially dangerous patients to other psychiatrists. Plaintiff claims that physicians are generally “fungible,” and one doctor is as good as another to tend to the physical ills of a patient. He maintains that psychiatrists, however, are not fungible in light of the fact that the personal relationship between a psychiatrist and his patient is the very essence of the treatment.

Plaintiff’s contention that psychiatrists are of more value to their patients and the public than other doctors is unpersuasive. Different physicians have different degrees of skill, and a patient may be dependent on a particular physician because of his particular degree of skill. Moreover, while the personal knowledge between a psychiatrist and his patient is generally more intimate than the personal knowledge between other physicians and their patients, counseling is still a part of most doctor-patient relationships.

Plaintiff also maintains that the prohibition of such stays violates his constitutional right to due process. This contention is also without merit. The Blumstein court rejected the argument that section 17.08 violates the plaintiff’s right to due process, pointing out that the sanctions against the plaintiff were imposed only after a full hearing before the Medical Disciplinary Board. Blumstein, 139 Ill. App. 3d at 616.

Thus plaintiff’s due process argument in the present case must also fail. His sanctions were imposed only after a 16-day hearing before the Medical Disciplinary Board. In light of the decision in Blumstein, the circuit court’s order denying the plaintiff a stay pending judicial review is affirmed.

Plaintiff next contends that the Board’s decision that plaintiff engaged in unprofessional conduct likely to harm the public is against the manifest weight of the evidence. We disagree. The findings of an administrative agency on questions of fact are held to be prima facie true and correct and are not to be disturbed unless contrary to the manifest weight of the evidence. (Garland v. Department of Labor (1984), 104 Ill. 2d 383, 472 N.E.2d 434.) For a judgment to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident. (Cicmanec v. Department of Registration & Education (1989), 182 Ill. App. 3d 710, 538 N.E.2d 1166.) A reviewing court may not reweigh the evidence or substitute its judgment for that of the trier of fact. (Zaderaka v. Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.) If the issues are merely ones of conflicting testimony or credibility of witnesses, the determinations of the agency should be upheld. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190.

Plaintiff contends that the Department’s findings are contrary to the manifest weight of the evidence and legally erroneous. Initially, plaintiff maintains that the Board reached its decision by relying on the faulty conclusions of Dr. Cavanaugh and relying on matters outside of the record while ignoring the testimony of Dr. Pundy’s experts. In support of his argument that the Board’s factual findings were against the manifest weight of the evidence, plaintiff notes that the Board stated in its findings of fact and conclusions of law and recommendations that its decision was arrived at “less on a determination of factual issues than on fundamental principles to be observed by all doctors.” As plaintiff explains, members of an administrative tribunal may not rely on their own expertise in making factual determinations. (Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 394 N.E.2d 770.) Rather, the decision must be based on evidence presented at the hearing.

The record reveals the following factual evidence in support of the Board’s finding that Dr. Pundy’s conduct was substandard. While Dr. Cavanaugh was the only expert who concluded that Dr. Pundy deviated from the standard of care expected of a qualified psychiatrist by becoming sexually involved with a former patient, testimony of Dr. Pundy’s experts could also support the Board’s conclusion that Dr. Pundy engaged in unprofessional conduct likely to harm the public. Dr. Staunton testified that while the physician’s code of ethics did not address the issue of sexual relations with a former patient, each case must be decided according to whether this behavior could have a deleterious effect on the former patient. Similarly, Dr. Schoener testified that such cases should be resolved on the basis of whether there was an exploitation of the therapeutic relationship. Dr. Schoener also testified that if the former patient still maintains a tie to the therapist or still relates to the doctor as a therapist, it is not clear that therapy has ended. Moreover, he stated that it was entirely the physician’s responsibility to prevent sexual relations from occurring between the psychiatrist and his patient.

The Board, after evaluating the testimony of the parties and the various expert witnesses, stated that a pattern of behavior had emerged upon which it could base its decision. The Board first noted that Besch had a long-standing psychiatric history and an inability to handle her work situation at the time she first consulted with Dr. Pundy. Moreover, the Board pointed out that Besch’s inability to secure alternative employment up to the time that Dr. Pundy hired her and her financial demands indicated to the Board and should have indicated to Dr. Pundy that she continued to have problems after June of 1982 which were related to issues which brought her under his care initially.

The Board stated that rather than reinstitute therapy or secure other treatment for Besch, Dr. Pundy ignored the warning signs and entered into a sexual relationship with Besch at a time when he was feeling distant from his own marriage. The Board noted that Dr. Pundy acted in his own interest and not in the interest of Besch. The Board concluded by stating:

“What is right is that a patient should not be harmed by a doctor. That principle applies whether formal termination has occurred or not. An obligation attaches once he or she comes under the care of a physician that does not disappear until there has been a proper ending to that relationship.
As has been noted above, a special measure of dependence arises, indeed may even be encouraged in many cases, from the psychiatrist/patient relationship — no matter how brief or supportive — that finds its genesis in the emotional vulnerability of the patient. At best, Dr. Pundy was not fully conscious of this patient’s vulnerability, and this insensitivity to her condition ultimately led in ways clearly detrimental to her welfare.”

Thus, based on the testimony contained in the record, there is sufficient evidence to support the Board’s conclusion that Dr. Pundy engaged in unprofessional conduct likely to harm the public. The experts agree that a psychiatrist should not harm his patient. Yet that is exactly what Dr. Pundy did by entering into a sexual relationship with Besch. Besch testified that she was distraught by the termination of her relationship with Dr. Pundy and she therefore attempted to commit suicide. Moreover, although Dr. Pundy knew that Besch was emotionally unstable, he failed to secure other treatment for her.

Furthermore, in reaching its conclusion that Dr. Pundy’s conduct harmed Besch, the Board noted that a special measure of dependence arises from the psychiatrist-patient relationship. Even Dr. Pundy has recognized this special relationship. In support of Dr. Pundy’s earlier argument that section 41 of the Medical Practice Act is unconstitutional as applied to psychiatrists and their patients, plaintiff contended that psychiatrists are not fungible in light of the fact that the personal relationship of a psychiatrist to his patient is the very essence of the treatment. Plaintiff further maintained that “[sjhould a patient harm herself grievously, or erupt in a shooting spree in a local school, no amount of ‘special damages’ to Dr. Pundy would remedy that.” It is for this very reason that Dr. Pundy should have avoided entering into a sexual relationship with Besch. Consequently, plaintiff’s contention that the Board reached its conclusion by relying on evidence outside of the record is without merit as is his argument regarding the weight given to the testimony of the various experts.

In addition, plaintiff contends that the Department’s conclusions of law are erroneous. The Department found Dr. Pundy guilty of violating section 16(5) of the Medical Practice Act, “[ejngaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public.” (Ill. Rev. Stat. 1983, ch. 111, par. 4433(5).) Plaintiff claims that this section is overbroad and fails to encompass a sexual relationship with a former patient.

• 7 We reject plaintiff’s argument that the statute is overly broad. In Chastek v. Anderson (1981), 83 Ill. 2d 502, 416 N.E.2d 247, the supreme court, in reviewing a section of the Illinois Dental Practice Act, stated:

“[T]erms such as ‘unprofessional conduct’ are susceptible to common understanding by the members of the profession. When combined with the legislative purpose of protecting the public from people unfit to practice, the term ‘unprofessional conduct’ provides fair notice to licensed professionals and is not constitutionally vague.” (Chastek, 83 Ill. 2d at 509.)

The court pointed out that a statute such as this must be broad because it would be impossible for a statute to catalog specifically every act of unprofessional or dishonorable conduct which would justify the revocation of a license. Chastek, 83 Ill. 2d at 510.

Moreover, it should be noted that when a broad statutory standard has been delegated to an agency’s discretion, the reviewing court should rely on the agency’s interpretation as controlling. Cicmanec v. Department of Registration & Education (1989), 182 Ill. App. 3d 710, 717, 538 N.E.2d 1166.

Plaintiff cites to Yero v. Department of Professional Regulation (Fla. App. 1985), 481 So.2d 61, in support of his argument that a sexual relationship with a former patient is not a violation of accepted standards of medical practice. Yero, however, is distinguishable from the instant case in light of the fact that in Yero, the sexual relationship occurred after the patient’s therapy sessions had been clearly terminated, the psychiatrist had refused to see her again as a patient and had advised her to find another psychiatrist.

In the instant case, Besch testified that she still considered Dr. Pundy to be her physician even after he told her that he was terminating her therapy sessions. She worked in Dr. Pundy’s office and continued to discuss her problems with Dr. Pundy. Thus, there was no clear-cut ending to the therapy with Dr. Pundy advising Besch to seek help from another psychiatrist. Therefore, the Department’s finding that Dr. Pundy was guilty of engaging in unprofessional conduct likely to harm the public is neither factually against the manifest weight of the evidence nor legally erroneous.

Plaintiff next contends that the trial court erred in its review of this case because it did not consider the written report of the hearing officer which found in favor of Dr. Pundy. Plaintiff’s argument is, however, contrary to applicable case law. Plaintiff concedes that there is no requirement that the Board rehear the evidence in order to reject its hearing officer’s finding and recommendations. (Starkey v. Civil Service Comm’n (1983), 97 Ill. 2d 91, 100, 454 N.E.2d 265.) Plaintiff nonetheless contends that Starkey does not speak to the weight which should be given by a reviewing court to the hearing officer’s report. Plaintiff points to the United States Supreme Court decision in Universal Camera v. National Labor Standards Board (1951), 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456, and other Federal cases applying the Administrative Procedure Act which have ruled that significance must be given to the findings of the hearing officer.

This court has repeatedly found that while the decision of the hearing officer is part of the record, it is the decision of the Board, not the hearing officer, which is reviewed by the court. (Department of Corrections v. Adams (1986), 146 Ill. App. 3d 173, 496 N.E.2d 1138; Carroll v. Board of Review (1985), 132 Ill. App. 3d 686, 691, 477 N.E.2d 800; Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 465 N.E.2d 1052.) Accordingly, the trial court applied the correct standard of review by ascertaining whether the Board’s findings were contrary to the manifest weight of the evidence.

Plaintiff next contends that the proceedings as conducted by the Department deprived Dr. Pundy of due process of the law. Specifically, plaintiff maintains that he was deprived of a fair hearing by virtue of the fact that not all members of the Board were in attendance at the hearing when evidence was heard. Due process does not require that a quorum of the decision-making board personally hear all of the evidence in order for an administrative determination to be valid. (McCabe v. Department of Registration & Education (1981), 90 Ill. App. 3d 1123, 413 N.E.2d 1353, cert. denied (1981), 454 U.S. 838, 70 L. Ed. 2d 119, 102 S. Ct. 143; Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 357 N.E.2d 785.) All that is required is that the administrative agency consider the evidence contained in the transcript of the proceeding and base its decision thereon. Bruns v. Department of Registration & Education (1978), 59 Ill. App. 3d 872, 376 N.E.2d 82.

In the instant case, there is no evidence that the Board members failed to review the entire transcript of the proceedings before the Board rendered its decision. Plaintiff’s argument is therefore unpersuasive.

Plaintiff further maintains that he did not receive a fair and impartial hearing because the administrative hearing in this case was nothing more than a partisan hearing with the Department arrayed against Dr. Pundy. Specifically, plaintiff alleges that the Department failed to thoroughly investigate its case and it harassed and intimidated witnesses. Plaintiff also contends that a blatant effort was made by the prosecution to garner sympathy for Besch by repeatedly making reference to the prejudicial fact that Besch’s daughter was dying and then that her daughter had died.

Plaintiff relies on Gigger v. Board of Fire & Police Commissioners (1960), 23 Ill. App. 2d 433, 163 N.E.2d 2d 541, in support of his contention that he was deprived of procedural due process. In Gigger, the court found that plaintiff had been deprived of a fair hearing primarily because the administrative agency attempted to prove his guilt rather than ascertain the true facts. In Gigger, the Board’s attorney had also acted as the hearing officer, conducting the hearing and ruling on the evidence. Gigger, 23 Ill. App. 2d at 437.

It is well established that a hearing before an administrative agency should not be a partisan hearing with the agency on one side arrayed against the individual on the other. (Lakeland Construction Co. v. Department of Revenue (1978), 62 Ill. App. 3d 1036, 379 N.E.2d 859.) Rather, it should be an investigation instituted for the purpose of ascertaining and making findings of fact. (Lavin v. Civil Service Comm’n (1974), 18 Ill. App. 3d 982, 310 N.E.2d 858.) A fair hearing before an administrative agency includes the opportunity to be heard, the right to cross-examine adverse witnesses and impartiality in ruling upon the evidence. Mahonie v. Edgar (1985), 131 Ill. App. 3d 175, 476 N.E.2d 474.

In the instant case, there is no indication that plaintiff was the victim of unfair rulings concerning the admissibility of evidence, or that he was denied the right to cross-examine adverse witnesses. The Department’s hearing officer conducted the hearing, and plaintiff has conceded that the hearing officer’s conduct was fair and impartial.

Finally, plaintiff maintains that the six-month suspension imposed upon him by the Department was arbitrary and overly harsh in view of the fact that he had “no history of wrongdoing” and he had “taken steps to remedy whatever caused or enabled him to be exploited by Rebecca Besch.” A reviewing court will not substitute its judgment for that of an agency, absent an abuse of discretion. (Citrano v. Department of Registration & Education (1980), 90 Ill. App. 3d 937, 939, 414 N.E.2d 74.) An agency abuses its discretion when it imposes a sanction overly harsh in view of the mitigating circumstances or which is unrelated to the purpose of the statute. Baltin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 531, 519 N.E.2d 1151.

In the instant case, the sanction imposed upon Dr. Pundy was neither overly harsh nor unrelated to the purpose of the Illinois Medical Practice Act. The sanction was clearly not overly harsh even in light of the mitigating circumstances. We note that the Department did not revoke Dr. Pundy’s license. It merely suspended his license for a period of six months and placed him on probation for a period of two years. Furthermore, the Department suspended Dr. Pundy’s license because it determined that he had engaged in conduct likely to harm the public. During Dr. Pundy’s suspension and probation, he was to receive therapy in order to prevent such conduct from recurring. Thus the suspension of Dr. Pundy’s license is directly related to the purpose of the statute. Consequently, the Department did not abuse its discretion in suspending for six months Dr. Pundy’s license.

Accordingly, the circuit court’s order denying plaintiff a stay pending judicial review is affirmed as is the decision of the circuit court upholding the Department’s decision to suspend plaintiff’s license.

Judgment affirmed.

MURRAY and GORDON, JJ., concur.

      Subsequent to this hearing, the Illinois legislature passed “An Act Concerning sexual exploitation by psychotherapists.” Under this Act, a patient or former patient has a cause of action against a therapist for sexual contact while the patient was receiving therapy or within one year of terminating therapy. Ill. Rev. Stat. 1989, ch. 70, par. 801 et seq.

      In 1987, this subsection was repealed along with the rest of the Illinois Medical Practice Act but was reenacted as part of section 22 of the Illinois Medical Practice Act of 1987 (Ill. Rev. Stat. 1987, ch. 111, par. 4400-22).

      Section 17.08 of the Medical Practice Act was repealed but was reenacted with the identical language as section 41 of the Medical Practice Act of 1987.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    TRACY TEMPLETON, Plaintiff-Appellee, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0312
    Opinion filed March 15, 1991.

      George H. Brant and Myles L. Tobin, both of Chicago and North Western Transportation Company, and Cornelius P. Callahan and Mark E. Christensen, both of Butler, Callahan and Ehret, both of Chicago, for appellant.
    Demos & Burke, of Chicago (William J. Burke, James Thomas Demos, and Linda A. Leonetti, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court;

The plaintiff, Tracy Templeton (Templeton), was an employee of the defendant, Chicago and North Western Transportation Company (North Western). On January 27, 1984, Templeton was severely injured when he fell 31 feet through an opening in the deck of a railroad bridge to the ice below. At the time he was injured, Templeton was working on North Western’s bridge spanning the Illinois River near Pekin, Illinois. Templeton brought a negligence action pursuant to the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (1988)) in which plaintiff alleged that he was injured as a result of the negligence of North Western. A trial by jury resulted in a verdict for the plaintiff in the amount of $3.5 million after a reduction for the jury’s finding that the plaintiff was 14% contributorily negligent. North Western appeals from the final judgment entered on the verdict.

Templeton was 27 years of age at the time of his accident on January 27, 1984. He began employment with North Western in 1980. He worked both as a painter and a carpenter on the bridge and building (B&B) crew. The B&B department was responsible for the construction and maintenance of bridges.

The redecking project to which Templeton was assigned in October 1983 required the B&B crew to replace all of the ties on the Illinois River bridge in successive 40-foot sections. By January 27, 1984, the date of Templeton’s accident, the redecking had been completed, and the B&B crew was working on a fixed surface. However, the railroad track still had to be realigned in order to permit trains to again travel over the bridge at nominal operating speeds. Track realignment required access to the underside of the bridge, which was accomplished by temporarily removing individual sections of the walkway grating. Realignment work was being performed throughout the week of Templeton’s accident.

Templeton’s accident occurred on the bridge surface at about 10 a.m. He was assigned to remove bolts called “double grips” with an air impact wrench. Meanwhile, other employees removed a single, 30-foot by 15-inch section of walkway grating so that a scaffold could be lowered through the opening they had created. Once the scaffold was in place, another employee would use it as a platform underneath the bridge to assist in retightening bolts which anchored the track to the ties.

The narrow opening in the bridge deck was not barricaded while the employees raised the scaffold. Templeton was not wearing a safety line at the time of his accident. North Western’s safety policy did not require a restraining device to be used in all facets of bridge work.

At the time of the accident, Templeton was continuing to remove “double grips” on the west side of the bridge. His air impact wrench was connected to an air compressor by a hose approximately 100 feet long. His foreman thought Templeton was getting too far ahead of the rest of the crew and called him back. As Templeton started to walk back toward the rest of the crew, the hose on the air impact wrench hung up on one of the “double grips.”

No one knows exactly what happened next. No one saw what caused Templeton to fall. North Western alleges the last time anyone saw Templeton, he was moving south, but looking north, about five or six feet north of the narrow opening in the walkway. Templeton alleges the first notice any of the co-workers had of the fall was a scream at which time they each looked around and saw the plaintiff falling through the opening in the deck with his hands slightly lower than his feet and the air impact wrench still in his hands.

Templeton had no recollection of the events of the occurrence and could not say what happened or why or how he fell. A co-worker testified that he saw the plaintiff bounce off the ice below, slide 10 feet, then try unsuccessfully to get up. In any event, Templeton landed on the ground adjacent to the river and some 31 feet below the bridge. He was taken to the hospital by an emergency rescue squad. Temple-ton has suffered severe physical injuries as a result of his fall. The testimony conflicts as to the extent of brain damage, if any, sustained by Templeton.

North Western raises the following issues on appeal: (1) whether the trial court erred in permitting plaintiff to introduce evidence that North Western allegedly failed to comply with Occupational Safety and Health Administration (OSHA) regulations; (2) whether the trial court erred in instructing the jury that such an alleged violation could be considered as evidence of railroad negligence; (3) whether the trial court erred in permitting plaintiff to introduce evidence of previous employee accidents on other North Western bridges; (4) whether the trial court erred in not ordering a new trial when it learned that the jury surreptitiously brought extrinsic evidence into jury deliberations; and (5) whether the size of the verdict was excessive.

In its most decisive among the five alleged errors, North Western argues that the trial court erred in instructing the jury that a violation of an OSHA regulation could be considered as proof of North Western’s negligence. OSHA regulations are statutorily created working conditions based on the federally enacted Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. §651 et seq. (1970)). It is North Western’s contention that OSHA is inapplicable to a railroad employee such as Templeton.

Railroad workers do occupy a somewhat different status than the average American worker whether he is a fireman, oiler, engineer or whatever. The rights and responsibilities of the railroad worker injured during his employment are basically determined by the FELA (45 U.S.C. §51 et seq. (1908)) and Federal decisions construing that act. (Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755.) The FELA allows suits involving injuries to railroad men to be filed in either State or Federal courts. 45 U.S.C. §56 (1948).

At trial testimony was introduced that certain safety standards, including OSHA standards, required nets or safety belts whenever a worker was working higher than 25 feet above ground. The trial court also gave the jury an instruction embodying the OSHA catch net regulation.

The nub of North Western’s argument concerns the testimony of the absence of a safety net and safety belt and the judge’s instruction that the jury could consider OSHA regulations in its consideration of the issue of North Western’s negligence.

In 1970 Congress enacted the Federal Railroad Safety Act (FRSA) (45 U.S.C. §421 et seq. (1970)). The FRSA contemplated a comprehensive and uniform set of safety regulations in all areas of railroad operations. (Chicago Transit Authority v. Flohr (7th Cir. 1977), 570 F.2d 1305.) The United States Secretary of Transportation is charged with the duty to prescribe all necessary rules, regulations ordered and standards for all areas of railroad safety. (45 U.S.C. §431 (1970).) The Secretary of Transportation has delegated these responsibilities to the Administrator of the Federal Railroad Administration (FRA), a unit of the Department of Transportation. (49 C.F.R. §1.49(m) (1988).) Further, North Western argues that the FRA has exclusive jurisdiction over working conditions pertaining to railroad bridges and the issue of whether or not safety nets and safety belts are required in bridge redecking work.

North Western contends that the FRSA and not OSHA controls the safety standards applicable to the work Templeton was engaged in, i.e., “redecking of the bridge’s railway bed.”

Plaintiff asserted that North Western had been negligent in violating regulations promulgated by OSHA. Plaintiff argues that the OSHA requirements of nets and safety belts are not preempted by the FRSA. The basis of this argument is that OSHA regulations are only preempted by the FRSA when there is an exercise of authority over the same working conditions regulated by OSHA.

The real legal issue in respect to safety regulations was whether the FRA actually exercised its jurisdiction over the railroad deck work, and if not, does the FRSA preclude the application of OSHA safety rules as evidence of a railroad’s negligence in this case.

In this case, at the time of Templeton’s injury, January 1984, there was no clear-cut FRA regulation requiring nets or safety belts to be provided for workers on railroad bridges. In his 74-page brief plus appendix the plaintiff points to none. Alternatively, North Western points to numerous sections of the Federal Register indicating that no regulations requiring nets and/or safety belts were ever adopted by the FRA. Finally, the fact that there was no such requirement is disclosed in a proposed notice of rule published in the Federal Register by the FRA (56 Fed. Reg. 3434 through 3441 (1991)) and brought to this court’s attention just prior to oral argument. Although the plaintiff has emphasized certain portions of the notice by underlining proposed safety rules for railroads, counsel failed to note the following, also contained in the notice:

“43 FR 10585 Both courts and the Occupational Safety and Health Review Commission have held that the assertion of authority in a policy statement constitutes an exercise of FRA’s statutory authority under the rail safety laws sufficient to displace OSHA standards, pursuant to section 4(b)(1) of the OSH Act, with respect to health and safety issues intrinsic to ‘railroad operations.’ Velasquez v. Southern Pacific Transp. Co., 734 F.2d 216, 218 (5th Cir. 1984); Southern Pacific Transp. Co. v. Usery, 539 F.2d 386 (5th Cir. 1976), cert. denied, 434 U.S. 874 (1977); Consolidated Rail Corp., 10 OSHC (BNA) 1577 (1982).” 56 Fed. Reg. 3434, 3435 (1991).

In 1978 the FRA issued a statement to the effect that OSHA regulations would not apply to, among other aspects of the railroad industry, “railroad bridges.” (43 Fed. Reg. 10587 (1978).) The railroad industry points to this declaration as indicative of the vesting of exclusive jurisdiction over railroad bridges in the FRA.

Finally, North Western points to a 1988 amendment to the FRSA in which it was specifically stated, “[t]he Secretary shall, within one year after June 22, 1988, issue such rules, regulations, orders, and standards as may be necessary for the safety of maintenance-of-way employees, including standards for bridge safety equipment, such as nets, walkways, handrails and safety lines.” (45 U.S.C. §431(n) (1988).) This court could find no Federal case where a Federal court interpreted the FRSA as having either directly or inferentially held that the FRA did not intend to preempt OSHA regulations. North Western has cited a number of cases to the contrary. They are cited in the notice published by the FRA referred to above.

Preemption is viewed somewhat differently when applied to the question of preemption of State regulations by a Federal statute. That assumption is that historical police powers of a State are not superceded by a Federal act unless that is the clear intention of Congress. (Ray v. Atlantic Richfield Co. (1978), 435 U.S. 151, 55 L. Ed. 2d 179, 98 S. Ct. 988.) Where a particular area is not totally foreclosed to the State, the State may regulate in certain situations. In the FRSA, Congress made explicit declaration that no State rail safety regulations shall remain valid after the promulgation of a Federal regulation covering the same subject matter as that covered by the State law. (45 U.S.C. §434 (1970).) In Liepelt v. Norfolk & Western Ry. Co. (1978), 62 Ill. App. 3d 653, 378 N.E.2d 1232, rev’d on other grounds (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, the trial court held that the Federal act did not preempt an Indiana safety statute relating to railroads. We note, however, that the Liepelt court only considered the narrow issue of whether the Indiana Switch Light Act and Standard covered the same subject matter. Liepelt, 62 Ill. App. 3d at 660, 378 N.E.2d at 1239.

The able trial judge was obviously attempting to follow Illinois law on the subject. Yet, both the trial court and this court are compelled to follow Federal decisions in determining rights and obligations created by laws enacted by the United States Congress. Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186,142 N.E.2d 104.

North Western cites the case of Velasquez v. Southern Pacific Transportation Co. (5th Cir. 1984), 734 F.2d 216, in support of its proposition. The Velasquez case involved a railroad worker who was injured while working on a railroad bridge. The railroad workers had to remove a portion of the wooden walkway along the track so they could reach the area underneath the track. Velasquez slipped and fell through this opening, landing on the creek bed nine feet below. Templeton also involved a railroad worker injured in a fall. Templeton’s attorneys made a valiant attempt to distinguish his case from the Velasquez case; however, Velasquez is precedent for the proposition that the trial court erred in admitting evidence of OSHA violations and instructing the jury it could consider such evidence on the issue of railroad negligence. Velasquez v. Southern Pacific Transportation Co. (5th Cir. 1984), 734 F.2d 216.

In Velasquez the court held that a policy statement constituted a sufficient exercise of statutory authority delegated to the FRA to displace OSHA standards. Templeton attempts to distinguish his situation from that of Velasquez by arguing that the accident in this case occurred when Templeton fell 31 feet off a bridge whereas Velasquez was working replacing a large beam supporting the track when he slipped and fell through the opening. The Velasquez court plainly and clearly held that an instruction to the effect that the jury could consider an OSHA violation of the issue of a railroad’s negligence was reversible error. The court plainly stated, “We agree with Southern Pacific’s argument that OSHA standards do not apply to walkways along the tracks, or railroad bridges, because they have been displaced by a Federal Railroad Administration (FRA) policy statement.” Velasquez, 734 F.2d at 218.

The issue of whether or not the admission of the evidence concerning violations was harmless was not addressed in Velasquez. We do not address it here. It may well be that such evidence is admissible under a different theory, i.e., failure to provide a safe work place.

In Missouri Pacific R.R. Co. v. R.R. Comm’n (5th Cir. 1987), 833 F.2d 570, the court considered the question of whether the introduction of evidence of violations of certain State safety regulations was preempted by the FRSA policy statement. The court found, “[t]o hold as Velasquez did, that the FRA Policy Statement prevented plaintiff from securing an instruction on OSHA regulations, does not control the issue of the exercise of FRA jurisdiction to the exclusion of state regulations.” Missouri Pacific R.R. Co. v. R.R. Comm’n (5th Cir. 1987), 833 F.2d at 576 n.6.

Templeton also argues that the introduction of evidence concerning the OSHA violation and the instruction was at best harmless. Yet as the Velasquez court indicates, the error created “ ‘a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations’ ” and required a reversal. Velasquez v. Southern Pacific Transportation Co. (5th Cir. 1984), 734 F.2d at 219, quoting Miller v. Universal City Studios, Inc. (5th Cir. 1981), 650 F.2d 1365, 1372.

We believe the trial judge attempted to follow the spirit of both State and Federal law, yet we are compelled to follow the aforecited Federal cases. We reverse and remand the matter for a new trial based on the narrow issue of the erroneous instructions. In light of our conclusion, we do not reach the other issues raised by the parties.

Reversed and remanded.

LORENZ, P.J., and McNULTY, J., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS CROFT et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—87—2083, 1—87—2222, 1—87—2223 cons.
    Opinion filed March 15, 1991.

      Karen Daniel, of State Appellate Defender’s Office, of Chicago, for appellant Curtis Croft.
    Earl L. Washington, of Chicago, for appellants Kevin Campbell and Alonzo Woodard.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendants, Curtis Croft, Kevin Campbell and Alonzo Woodard, were indicted with Demetrius Henderson for the aggravated kidnapping, aggravated sexual assault, and the murder of 16-year-old Kimberly Boyd. They were also indicted for armed violence based on the acts performed against Boyd. Croft, Woodard and Campbell waived a jury; Croft’s bench trial was severed from the joint bench trial of Woodard and Campbell. Pursuant to an agreement of the parties, the defendants’ bench trials were tried together with Henderson’s jury trial. It was expressly understood that evidence pertaining to one defendant would not be admissible against the codefendants.

The judge found Campbell and Woodard guilty of aggravated criminal sexual assault and sentenced them to 28 years’ imprisonment. Croft was found guilty of murder, aggravated kidnapping and aggravated criminal sexual assault and sentenced to imprisonment for natural life for murder, 45 years for aggravated criminal sexual assault and 10 years for aggravated kidnapping. Croft’s sentences were to run concurrently.

Henderson was found guilty of all offenses charged and was sentenced to death. His appeal is currently pending before the Illinois Supreme Court.

Woodard filed appeal number 1 — 87—2222; Campbell filed appeal number 1 — 87—2223; and their appeals were consolidated upon their motion. Croft filed appeal number 1 — 87—2083; and on the State’s motion, Croft’s appeal was consolidated with the appeals of Woodard and Campbell.

Woodard and Campbell contend that the State failed to prove them guilty beyond a reasonable doubt; that the judge abused his discretion in hearing their bench trials simultaneously with the bench trial of Croft and the jury trial of Henderson; and that their sentences were excessive. Croft’s sole contention is that the judge erred in considering the statements of Henderson, Woodard and Campbell at Croft’s sentencing hearing.

On July 13, 1986, the body of 16-year-old Kim Boyd was discovered in the alley behind 6039 South Carpenter Street in Chicago. An autopsy performed by Dr. Mitre Kalekar revealed that Boyd had suffered over 40 stab wounds to the head, face, neck, hands, abdomen, back and buttocks. She also had bruises on her face, elbow and back, along with a broken right thigh bone and several fractured ribs. The skin on her face and right hip had experienced “skin slippage,” which could have been caused by coming into contact with the hot metal underside of a car. The cause of death was multiple stab wounds, which Dr. Kalekar described as defensive wounds.

Seventeen-year-old Wendy Herron testified that at 8 p.m. on Saturday, July 12, 1986, she went to dinner with Croft and their infant child, Yolanda Harris and Demetrius Henderson, and their baby. After dinner, they drove to Croft’s residence at 6736 South Bell. They talked and listened to music until 1 or 2 a.m. Henderson and Croft then dropped Harris and the two children off and returned to Croft’s home. On the way back to Croft’s home, they were joined by Alonzo and Anthony Woodard, Kevin Campbell, Kim Boyd and an unidentified woman. Later they were joined by Lester Snyder and a girl named Andrea, who was a friend of Wendy Herron’s. After several hours of drinking in the basement of Croft’s home, Croft and Henderson drove Snyder home. After returning, Henderson and Boyd were in a room located at the top of the basement stairs. Herron peered under the door to the room and saw the feet of Henderson and Boyd. Herron waited on the stairs until the door opened and Henderson and Boyd came out. Croft came down the stairs five minutes later. Herron and Andrea were then driven home by Henderson and Croft at about 3:45 a.m. Along the way, Croft and Henderson told her that they were returning to Croft’s home.

Sixteen-year-old Anthony Woodard testified that he was at Croft’s home on the evening of July 12. He, his brother Alonzo Woodard, his cousin Kevin Campbell, Kim Boyd and a girl named Angie got together with Croft, Henderson, Herron and a girl named Andrea, at Croft’s home. After awhile the only people that were left were the Woodard brothers, Kevin Campbell, Croft, Henderson and Boyd. Henderson had led Boyd to a television room and later demanded that Woodard and Croft come into the room. There Henderson demanded that Boyd remove her pants. When she asked “Why?” Henderson hit her in the jaw, knocking her to the floor. She tried to fight back, but Henderson hit her again in the jaw. Henderson had vaginal intercourse with Boyd on the floor for 5 to 10 minutes, and then Croft put his penis in Boyd’s mouth. Woodard tried to stop Henderson and Croft but refrained from doing so after he saw Croft had a knife. Croft told Woodard to sit down, and Woodard did so. Croft then ordered Boyd to perform an act of oral copulation upon him, which she did. Alonzo Woodard and Campbell tried to enter the room but could not because a chair was blocking the door. After having intercourse with Boyd, Henderson opened the door and, with a knife, forced Alonzo and Campbell to enter the room. Henderson and Croft then forced Alonzo Woodard and Kevin Campbell to have sex with Boyd. Croft held a knife to Alonzo, pulled Alonzo’s pants down and pushed him towards Boyd. Henderson had a knife in his back pocket.

Woodard also testified that Campbell stood up and said, “This ain’t right,” and everybody got dressed. Henderson took Boyd to the bathroom and, when they emerged, Boyd had cleanser on her face. Henderson then told the others that they would have to kill Boyd. Croft blindfolded her and led her out the side door of the house. Henderson then drove his car to the front of the house, where Anthony and Alonzo Woodard and Campbell were waiting in a separate car. Henderson gave someone a “jump start” and then drove around to the back of the house, at Croft’s request. When Henderson returned, Campbell asked him where Boyd was, and Croft responded by patting the trunk of the car, stating that he would take her home. Henderson drove to Boyd’s home but continued past. Woodard followed them for several blocks but lost them in traffic. Woodard admitted that he did not tell the police that Croft had a knife. He also did not tell the grand jury about the knife threats made to his brother Alonzo and cousin Campbell. He said that both Alonzo Woodard and Kevin Campbell were bigger than Croft and Henderson.

Detective Lawrence Tuider of the Chicago police department was assigned to investigate Boyd’s death. He learned that other detectives had spoken with Alonzo Woodard and that the names of Croft and Henderson had come up. On July 17 Tuider and other detectives arrested Henderson at his apartment; Croft was arrested in the parking lot of the same apartment complex. After Croft was told why he was under arrest, he said that Henderson, not he, had killed Boyd.

Wken Tuider interviewed Croft later, Croft told him that Henderson became drunk and forced the other men, except Anthony Woodard, to have sex with Boyd. He himself did not have sex with her. It was Henderson’s idea to kill Boyd. Henderson said Boyd should be killed because she would go to the police. She was then blindfolded with a brown rag that belonged to Croft. She was taken to the back of the house where she was placed in the trunk of the car by Henderson. (The car was owned by Henderson’s mother.) Croft acted as a lookout when Boyd was taken to the car. Henderson and Croft drove off with Boyd in the trunk. Campbell and the Woodard brothers followed in a separate car, but eventually they lost Croft and Henderson in traffic. Croft told Henderson during the ride that they should feed Boyd, calm her down, and let her go home, but Henderson insisted that he had to kill her. At the alley on Carpenter Street they removed Boyd from the trunk, walked her 15 feet down the alley and laid her down. Croft was a passenger in the car, and Henderson drove over Boyd five times. Henderson got out of the car and stabbed Boyd repeatedly with a knife and then returned to the car. Croft and Henderson drove to Croft’s house, where they washed up and went to bed.

Croft was also interviewed by Assistant State’s Attorney Murray and said essentially the same thing with a few more details. Croft told Murray that when he, Henderson and Boyd were initially in the T.V. room, Henderson asked Boyd to engage in sexual intercourse, and she refused. Henderson hit her with a rolled up piece of wallpaper in the head. At Henderson’s orders, Boyd removed her pants, and Henderson had vaginal intercourse with her from a frontal and rear position. After Henderson was finished, Alonzo Woodard entered the room and also had vaginal sex with Boyd. Croft also said Boyd was crying and begging them to stop. They discussed what they were going to do with Boyd. Henderson said that after what they had done to her they would have to kill her or she would go to the police. Alonzo Woodard agreed, but Croft did not agree. Henderson blindfolded Boyd and put her in the trunk of the car. Croft told Henderson to let Boyd go or to give her some food. Henderson disagreed; he said, “You know, she has to die.” They drove to an alley and, while Croft remained in the car, Henderson took Boyd from the trunk, and laid her on the ground. Henderson returned to the car and drove over Boyd four or five times. While Croft stayed in the car, Henderson got out and stabbed Boyd with a knife until she stopped moving. Henderson then wiped the blood off of his hands on a building, and they returned to Croft’s house, where they washed up.

Assistant State’s Attorney - Murray testified that after his interview with Croft, Croft was taken in front of Henderson and he repeated the statement he had just given to Murray. Croft refused, however, to make either a written or court-reported statement.

Murray spoke with Campbell and Alonzo Woodard at the Area 3 police station on July 18, 1986. They were both released. However, after Murray spoke with Croft and Henderson, the Chicago police were directed to bring Campbell and Alonzo Woodard back. Both Woodard and Campbell gave statements to Murray.

Campbell told Murray that he was at Croft’s house on the evening of July 12. Around midnight Croft and Henderson returned after dropping off their girlfriends. They then brought Boyd into the den and closed the door. There was a hole in the door, so he and Alonzo looked in. He saw Henderson hit the victim on the head with a roll of wallpaper and ordered her to “suck his dick.” While Boyd performed an act of oral copulation upon Croft, Henderson engaged in vaginal sex with Boyd from a rear position and frontal position. Campbell and Alonzo opened the door, but Croft said, “Be cool.” Croft closed the door while placing a pillow over the hole. Campbell heard Henderson tell Croft to go get some lotion so he could “fuck this bitch,” and Croft obeyed. Campbell and Alonzo made several more attempts to get inside. Finally, he and Alonzo pushed the door open and saw Boyd sitting on the floor wearing only her blouse. Boyd asked Campbell to help her, whereupon Henderson hit her on the head with a roll of wallpaper, and Croft kicked her in the head. Croft told Campbell and Anthony and Alonzo Woodard to “drop their pants” because Boyd was going to “suck everyone’s dick.” Boyd pulled down Campbell’s zipper and began to perform oral copulation on him and then on Alonzo. Anthony Woodard stood in the doorway but did not sexually assault Boyd.

Eventually, Campbell and the Woodard brothers left the room, and Henderson, Croft and Boyd emerged five minutes later. There was Comet cleanser on Boyd’s blouse. Croft told Henderson they had to kill Boyd, and Henderson agreed. Campbell disagreed and told Croft and Henderson that Boyd’s brothers were mean. Croft entered the room and put a brown rag over Boyd’s eyes. Croft informed Boyd that if she told anyone it would be all over for her. Croft led everyone to the rear room and picked up a knife from the kitchen on the way out.

Once outdoors, Croft refused to allow Alonzo to drive Boyd home. Croft, Henderson, Boyd and Campbell walked to the garage, and then Campbell joined Alonzo and Anthony Woodard in the front. Henderson and Croft drove to the front where they told Campbell that Boyd was in the trunk. Campbell attempted to follow Henderson and Croft, but he lost them in traffic.

Alonzo Woodard gave Murray an account similar to that provided by Campbell. Woodard, however, said that when he and Campbell opened the door, Croft told the others, “Why don’t you all get some[?]” When Alonzo refused, Croft ordered Boyd to do something to Campbell. When Campbell refused, Croft said he “had something on him.” Campbell pulled his pants down and put his penis in Boyd’s mouth. After that, Woodard sat on a pillow and pulled his pants down. Croft punched Boyd in the ribs, and then she performed oral copulation on Alonzo Woodard.

Croft was the only defendant to testify. He testified that during the party at his house he did not engage in sexual intercourse with Boyd but was in the room at the time the others did. Later, he was driving with Henderson and Boyd in Henderson’s car at about 4 a.m. They stopped at 60th and Aberdeen to visit Croft’s girlfriend, Jackie. Croft knocked on her door but received no answer. When he returned, Henderson had driven off with Boyd. Croft then walked down the block and called Jackie from a pay phone. He eventually arrived at Jackie’s house at about 5 a.m. He denied giving statements to the police or to Assistant State’s Attorney Murray.

Jackie Rucker testified that she saw Croft on July 13, 1986, before noon. He was not covered with blood.

The first contention of Woodard and Campbell is that they were not proved guilty beyond a reasonable doubt; they contend that they established, as a matter of law, that they were compelled to participate in the acts against Boyd. We disagree. It would serve no purpose to repeat the statements of Woodard and Campbell. Suffice it to say that their statements, which were corroborated in significant detail by the testimony of Anthony Woodard, established that they acted in concert with Croft and Henderson and had Boyd perform an act oral copulation on them.

In order to establish the affirmative defense of compulsion, it must be shown that the defendant’s acts were performed “under the compulsion of threat or menace of the imminent infliction of death or great bodily harm” and that the defendant reasonably believed that death or great bodily harm would be inflicted upon him if he did not perform the acts. (Ill. Rev. Stat. 1987, ch. 38, par. 7—11(a).) There is nothing in the statements of Woodard or Campbell that would justify a conclusion that they acted under a threat or menace of the imminent infliction of death or great bodily harm.

The defendant Woodard’s brother, Anthony, testified that Henderson and Croft forced his brother and Campbell at knife point to have oral sex with Boyd. His testimony is at odds with the statements of his brother and Campbell. Moreover, he never told the police that Croft had a knife, and he never told the grand jury about any knife threats made by Croft or Henderson to his brother and Campbell. In any event, the credibility of Anthony Woodard was for the trial judge to determine. (People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358.) Whether compulsion has been established is a question of fact. The trial judge concluded, in our judgment properly so, that the defense had not been established. The case cited by the defendants, People v. Adcock (1975), 29 Ill. App. 3d 917, 331 N.E.2d 573, is not in point. The issue in Adcock was whether a jury instruction concerning compulsion should have been given.

Woodard and Campbell next contend that the trial judge abused his discretion by conducting their bench trial with the bench trial of Croft and the jury trial of Henderson. The recent supreme court case of People v. Schmitt (1989), 131 Ill. 2d 128, 545 N.E.2d 665, is dispositive of their argument. The supreme court held that, when severed cases are heard simultaneously, it is presumed that the court will consider only competent evidence against each of the parties; that is, it is presumed that the trier of fact will separate the evidence admitted against each codefendant. This case began with that clear understanding. Schmitt also held that it would be better if the trial judge recited his findings and reasonings in each case. The judge did that in this case. Significantly, he found Woodard and Campbell not guilty of murder. (Cf. People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17.) Schmitt also held that where a party agrees to the trial judge conducting simultaneous severed cases, the defendant is not in the position to later claim he was prejudiced. As noted, the defendants agreed to have their trial conducted along with the trial of Croft and Henderson. For these reasons, we judge that no reversible error occurred when Woodard and Campbell were tried with Croft and Henderson.

The last contention of Woodard and Campbell is that the trial judge abused his discretion in sentencing them to a 28-year prison term. The defendants were convicted of a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(d)) and were subject to a sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(3)). The defendants concede that they were subject to an extended-term sentence under section 5 — 5—3.2(b)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(5)). Thus, the defendants were eligible for a maximum term of 60 years; the State recommended a term of 60 years. Considering the particularly heinous nature of the sexual crimes committed against Boyd by the four defendants, and the fact that Woodard and Campbell knew that Croft and Henderson said that Boyd should be killed, but they did nothing to save her, we do not believe that the judge abused his discretion in sentencing Woodard and Campbell to a term of 28 years’ imprisonment. (See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) For these reasons, the judgments of conviction and the sentences of Campbell and Woodard are affirmed.

Croft’s sole contention is that the judge erred in considering the statements of Woodard, Campbell and Henderson at Croft’s sentencing hearing. The record affirmatively shows that the judge did rely on their statements in his findings of fact before sentencing Croft. We will first consider Henderson’s statement.

When Henderson was first arrested he was questioned by Assistant State’s Attorney Murray, who had already spoken with Croft. When Murray asked Henderson about Boyd’s death, Henderson acknowledged being at Croft’s residence on the night of the murder but denied involvement in her death. Murray told Henderson that his denial was “inconsistent with what the other witnesses had told [him].” Henderson then asked him “what Croft had said.” Murray asked Henderson whether he wanted to hear for himself, and Henderson said that he did. Croft was brought into the room and repeated to Henderson the statements he had previously given Murray concerning Boyd’s death. Henderson then stated that he would tell “what really happened.” Henderson then gave an oral statement and agreed to give a court-reported statement.

Henderson said that he was at Croft’s residence at 6736 South Bell in Chicago with a group including Alonzo and Anthony Woodard, Kevin Campbell, Andrea Wilkes, a girl named Wendy and Kim Boyd. At 11 p.m. he drove Wendy and Andrea Wilkes home. When he returned he had a brief conversation with Anthony Woodard and Boyd. He became angry at Boyd because he believed she was cheating on Anthony by having sex with Anthony’s brother Alonzo. Henderson called Anthony and Boyd in a separate room where he asked Boyd why she was doing this. Boyd responded with a “smart remark,” so he struck her in the head with a roll of wallpaper. Boyd then removed her pants, and Henderson called Alonzo Woodard, Croft and Campbell into the room. Campbell said, “Give me some pussy.” Henderson told Boyd to “suck [his] dick,” which she did. Campbell then had vaginal intercourse with Boyd. Croft in the meantime was forcing Boyd to engage in an act of oral copulation with him. After Croft and Campbell ejaculated, Croft tried to have vaginal intercourse but could not maintain an erection. While Henderson stuck his penis in the victim’s vagina from a rear position, Alonzo forced Boyd to engage in an act of oral copulation.

At one point Henderson left the room to answer the doorbell when a man named Leroy and Leroy’s girlfriend arrived. Henderson told Leroy that the other men were in the room “getting laid.” Henderson then called Croft and Campbell out of the room and told them:

“We raped her, we got to do something with her. We can’t let her go because if we let her go, she said she wouldn’t do anything; but if I was a girl, I would.”

Croft agreed and suggested they take Boyd “down to the railroad tracks.” Henderson said, “Fuck that, you take her to the railroad tracks.” At that point Croft went back to the room where Boyd was and returned with Campbell, who asked Henderson, “What you going to do?” Croft said, “We going to take her on the railroad tracks.” Henderson disagreed and stated, “There’s got to be a better way. *** We ought to kill her, man, because I’m not going to spend no time in jail for a bitch.” Henderson then left the residence and “jump-started” Leroy’s car, which was parked in front of the house. When he returned, Croft, Campbell and Anthony Woodard were waiting at the rear door. At the request of Croft and Campbell, Henderson drove his car to the rear of the house. At that time Boyd was blindfolded with a pair of pants. Croft said they should put her in the front, but Henderson opened the trunk of the car, and Campbell and Croft put the victim in the trunk.

Croft suggested they drive to his girlfriend's house. They then drove to an alley off Carpenter Street. When they opened the trunk of the car, Boyd pleaded with him to “explain.” Henderson removed a knife from Croft’s pants and stabbed Boyd in the throat twice. Croft said, “Fuck, the bitch ain’t dead.” He and Croft then removed Boyd from the trunk and placed her on the ground. Henderson stabbed her in the chest. Though she continued to plead for her life, Croft took the knife and stabbed her several times. While she lay on the ground, Henderson again stabbed her and Croft noticed that she still was not dead. Croft then started stabbing Boyd in the head. Henderson then “got nervous” and told Croft that he “knew if she lived, we’re going to get caught. So I might as well finish her off.” Henderson told Murray, “I started finishing her off. I stabbed her in the behind, once in the leg and once in the stomach and that was it.” Boyd, however, continued to move. Croft then suggested that they run her over with the car. Henderson told Croft that he “would take responsibility for the car” and then drove the car within two inches of Boyd. Henderson backed up to the end of the alley and drove over Boyd’s midsection. He ran over her again, and this time Boyd’s foot hit the side fender. Boyd continued to move her arms and legs, so Henderson ran over her with the car for a third time.

The usual rules of evidence do not apply at a sentencing hearing. The test governing admissibility is whether the evidence is relevant and reliable. (People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118.) Hearsay testimony which meets the relevance and reliability test is admissible at a sentencing hearing. People v. Foster (1987), 119 Ill. 2d 69, 518 N.E.2d 82.

The principal case dealing with the admissibility of a codefendant’s statement is Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, in which the Supreme Court stated that a codefendant’s statement is presumptively unreliable because the statement might well be the product of the codefendant’s desire to shift or spread blame, exonerate himself or divert attention to another. The Lee court also held that, in considering whether the presumption of unreliability had been rebutted, the court could consider the circumstances surrounding the codefendant’s statement and whether the co-defendant’s statement “interlocks” with the defendant’s statement in all material aspects. 476 U.S. at 545, 90 L. Ed. 2d at 428-29, 106 S. Ct. at 2064.

In People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196, and People v. Rogers (1988), 123 Ill. 2d 487, 528 N.E.2d 667, the Illinois Supreme Court, following Lee, held that the rule governing the admissibility of codefendant’s statements is applicable at sentencing hearings. In Turner, there were five separate accounts of the defendant’s participation, including the defendant’s version and that of his codefendants. The court held that matters to be considered were whether the codefendants had an opportunity to contrive their defense, and whether their statements did not interlock with the defendant’s statement or other evidence on significant aspects of the offense involving the degree of the defendant’s planning and participation. The supreme court remanded for a new hearing, holding that the statement of the codefendant did not interlock with the defendant’s statement on significant aspects of the offense.

In our judgment, the evidence did not overcome the presumption of unreliability and Henderson’s confession should not have been considered in the sentencing of Croft. After being arrested, Henderson refused to give a statement other than to say that he was present at Croft’s house. He denied any wrongdoing. The assistant State’s Attorney told Henderson that his denial was inconsistent with what the other witnesses had said. The assistant State’s Attorney did not identify the witnesses, but Henderson asked only what Croft had said. When he was confronted with Croft’s statement, Henderson said he would tell “what really happened.” The most reasonable inference to be drawn from that sequence of events is that Henderson wanted to get even with Croft. Although the statements of Croft and Henderson did “interlock” on many aspects, they differed in two crucial aspects. Croft denied any sexual contact with Boyd, and he denied any active participation in the acts that took her life. Indeed, according to his statement he tried to talk Henderson out of harming her. He said that he told Henderson to give her some food and let her go home.

The State argues that, because Henderson was not trying to shift the blame to Croft and to exonerate himself, discrepancies between his statement and that of Croft are not significant. This argument was recently rejected in People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172, decided after this case was heard in the circuit court. We conclude, therefore, that Henderson’s statements should not have been admitted at Croft’s sentencing hearing.

We turn now to the admissibility of the statements of Woodard and Campbell. The pertinent parts of Campbell’s statement are as follows.

Croft engaged in an act of oral copulation with Boyd. When Boyd asked Campbell to help her, Henderson struck her with a roll of wallpaper and Croft kicked her in the head. Croft placed his buttocks on Boyd’s face and told her to “lick [his] ass.” Croft told Henderson they would have to kill her, and Henderson agreed. Croft told Boyd, “It is all over for you,” and Croft picked up a knife from the kitchen drawer as they were leaving.

Woodard’s statement was substantially the same as Campbell’s. In addition he said that Croft told them, “Wfiiy don’t you all get some[?]” When Campbell refused, Croft said he “had something on him.” Croft punched Boyd in the ribs. Boyd told Woodard that Henderson and Croft said they were going to kill her, and she asked for Woodard’s help. Woodard asked Croft and Henderson to let her go, and they refused. As Croft led Boyd out the door, Croft picked up a knife.

In our judgment the statements of Campbell and Woodard were damaging to Croft and were at variance with his statement. We note also that Woodard and Campbell told Murray that the first suggestion to kill Boyd came from Croft, which was contrary to the statement of Henderson. We judge that the statements of Campbell and Woodard also should not have been admitted at Croft’s sentencing hearing.

For these reasons, we vacate the sentence of Croft and remand the cause for a new sentencing hearing. We mean to imply no lack of confidence in the impartiality of the trial judge, but, under the circumstances, the resentencing should take place before a different judge. See People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618.

Appeal No. 1 — 87—2222, Judgment affirmed.

Appeal No. 1 — 87—2223, Judgment affirmed.

Appeal No. 1 — 87—2083, Judgment of sentence vacated and cause remanded with instructions.

RAKOWSKI, P.J., and McNAMARA, J. concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD SWANSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3571
    Opinion filed March 15, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Shelton O’Neal Green and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Janette Sublett, and Neera Walsh, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant, Richard Swanson, was charged by indictment with two counts of first degree murder. Following a bench trial, he was convicted of second degree murder and sentenced to three years’ probation with 26 weekends in the Cook County jail. On appeal, defendant contends that his conviction must be reversed because his use of force against the victim was justified. Additionally, he argues that the trial court was precluded from convicting him of second degree murder when he had been charged with first degree murder.

On December 18, 1987, defendant left work and went home to his room in a northside Chicago hotel. Sometime later, Timothy Bowden arrived at defendant’s room, and the two then went to a party in the hotel’s lounge. They were joined by Cathy Sadler about 11 p.m. Ms. Sadler had known defendant for a few weeks and had also previously met the victim. The three then ate and drank together for awhile. After the victim made a pass at Ms. Sadler, she and defendant left the lounge and went to defendant’s room on the second floor.

The victim came up to defendant’s room while defendant and Ms. Sadler were there. The victim was banging and kicking the door, saying that he wanted to retrieve some of his belongings from the room. However, defendant would not let the victim inside and finally called the front desk of the hotel to have someone come and remove the victim.

A short time later defendant left his room to purchase beer and cigarettes. While buying cigarettes he met the victim, and the two returned to defendant's room. There the victim again made a pass at Ms. Sadler, and defendant asked the victim to leave. Ms. Sadler consented to go into the bathroom with the victim so that the two could talk. The victim made a pass at her a third time, and at one point, he grabbed her hand and attempted to force her to leave the room with him.

When the victim refused to leave after another request by defendant, defendant reached for the telephone. A struggle ensued as the victim also reached for the telephone. The telephone fell to the floor, and defendant told Ms. Sadler to call the desk and have them send someone to the room.

The victim then began picking up some of his clothes from the room. As he walked past a table, he picked up a prescription bottle containing defendant’s Valium and told defendant that he would send defendant to prison and that the Valium would be the evidence.

Defendant then stood between the victim and the door and told the victim that he had “another thin[g] [sic] coming” if he thought he was going to take defendant’s belongings. Defendant and the victim then struggled, and defendant came from behind the victim and put his arm around the victim’s throat. Defendant asked Ms. Sadler to call the front desk again, which she did. When she turned around, defendant and the victim were on the floor. With his arm still around the victim’s neck, defendant told Ms. Sadler to go to the front desk to get help. As she left the room, she heard defendant threaten the victim.

When the victim stopped struggling, defendant released the chokehold and dragged the victim out into the hallway. Defendant claimed that he did this to avoid any more fighting. He acknowledged that the victim never even hit him during the struggle, and he disclaimed any intent to kill or harm the victim.

Defendant argues on appeal that his conviction should be reversed because, even though the victim died of strangulation, his use of force against the victim was justified. Defendant attempts to turn this single issue into four separate issues by arguing different theories under which his use of force might be justified. Regardless of the theory, however, this determination is a question of fact which will not be disturbed unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Price (1987), 158 Ill. App. 3d 921, 926, 511 N.E.2d 958; People v. Zolidis (1983), 115 Ill. App. 3d 669, 674, 450 N.E.2d 1290.

Defendant relies on the affirmative defenses set forth in article 7 of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, pars. 7—1, 7—2, 7— 3, 7— 6) in support of his argument that his use of force was justified. Specifically, he relies on section 7—3 (deadly force justified if reasonably believed necessary to prevent commission of forcible felony); section 7—2 (use of force justified in defense of dwelling where reasonably believed necessary); section 7—1 (deadly force justified if reasonably believed necessary to prevent death or imminent bodily harm to self or other or to prevent the commission of a forcible felony); and section 7—6 (deadly force justified in mating arrest where there is reasonable belief that such force is necessary to prevent death or great bodily harm).

Despite the section or circumstances under which the defense of use of force can be raised, each section requires that the use of force be reasonably believed necessary in order to be justified. Thus, once the defense is raised, a question of fact arises as to whether the belief was reasonable, and the State bears the burden of proving that defendant’s use of force was not justified. People v. Wilks (1988), 175 Ill. App. 3d 68, 72, 529 N.E.2d 690.

Although defendant raised some evidence in support of his claim that his use of force was justified, the State presented proof beyond a reasonable doubt that it was not. In order to justify deadly force, the defendant must show that unlawful force was threatened against him; he believed the danger of harm was imminent; force was necessary to avert the danger; and the amount of force was necessary. In the case of self-defense, defendant must additionally show that he was not the aggressor. People v. Alcazar (1988), 173 Ill. App. 3d 344, 349, 527 N.E.2d 325.

In the instant case, we note that defendant invited the victim into his room, where the victim had some personal belongings to retrieve. Moreover, although the victim made a verbal threat, nothing in the record before us suggests that the victim threatened defendant with the use of unlawful force. Finally, defendant’s act of positioning himself between the victim and the door suggests an aggressive rather than a defensive posture. We, therefore, conclude that the evidence was not so improbable, impossible or unsatisfactory as to raise a reasonable doubt of guilt.

Defendant’s final contention is that the court was precluded from finding him guilty of second degree murder because second degree murder is not a lesser included offense of first degree murder, and he did not request consideration of the lesser offense. Defendant points to the following language of the second degree murder statute to support his argument:

“In a jury trial for first degree murder in which evidence of either of the mitigating factors *** has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 9—2(c).)

Defendant argues that this language provides that a jury may be given the option of finding defendant guilty of second degree murder only if defendant has requested it, and that it is arguable, at least, that a defendant in a bench trial must also make that election as a prerequisite to a finding of guilty of second degree murder. Defendant cites Steigmann, First and Second Degree Murder in Illinois, 75 Ill. B.J. 494 (1987) for this proposition, as well as O’Neill, An Analysis of Illinois’ New Offense of Second Degree Murder, 20 J. Marshall L. Rev. 209 (1986).

The flaw in defendant’s argument is that second degree murder is a lesser included offense of first degree murder. While Professor O’Neill argues to the contrary, the Illinois Supreme Court in examining murder and voluntary manslaughter under the old law stated as follows:

“An ‘included offense’ is defined in Illinois as an offense which ‘[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.’ (Ill. Rev. Stat. 1981, ch. 38, par. 2—9(a).) The offenses of murder, voluntary manslaughter and involuntary manslaughter are distinguished only by the diminishing degree of mental culpability necessary to sustain each. While murder and voluntary manslaughter (unreasonable belief) both require proof of intent or knowledge (Ill. Rev. Stat. 1981, ch. 38, pars. 9—1(a)(1), 9—1(a)(2), 9—2(b)), the offense of voluntary manslaughter is committed only when the defendant acts with an unreasonable belief that the killing was justified. This mental state is considered less culpable, and, as such, voluntary manslaughter is considered an included offense of murder.” (People v. Hoffer (1985), 106 Ill. 2d 186, 194, 478 N.E.2d 335.)

(See also People v. Reddick (1988), 123 Ill. 2d 184, 196, 526 N.E.2d 141 (unreasonable belief of justification and intense provocation are less culpable mental states).) This same reasoning, of course, applies to first and second degree murder.

Moreover, by its unambiguous language section 9—2(c) (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(c)) applies to jury trials only. The omission of similar language with respect to bench trials was not unintentional. This is so because a jury, once defendant has requested consideration of second degree murder, “must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” (Ill. Rev. Stat. 1989, ch. 38, par. 9—2(c).) These considerations do not apply to a bench trial.

Neither can defendant find comfort from the Steigmann article. Steigmann states:

“Accordingly, some time before closing argument in a bench trial, the trial judge should have the defendant and defense counsel elect on the record whether they are asking the trial judge to consider second degree murder as an option.- Without such an election appearing [on the] record, a verdict in a bench trial finding a defendant guilty of second degree murder may well be subject to reversal as a denial of the defendant’s procedural rights under the new statute.” (75 Ill. B.J. at 497.)

As we have previously stated, because defendant was not tried by a jury and because second degree murder is a lesser included offense of first degree murder, defendant was not entitled to such an election. However, even if he were, we believe that Steigmann’s concerns were satisfied when the court instructed the defendant during admonishments concerning his jury waiver that “I decided [sic\ whether or not you are innocent or guilty of first degree murder or anything less than that, which would include second degree murder ***.”

Finally, we comment upon what, in our view, is the paradoxical nature of defendant’s argument. He argues that he should be allowed to “roll the dice.” Clearly, we understand why a defendant would take that position under the old law, but we fail to see why he would do it presently. In effect, defendant is saying that if he should be found guilty of first degree murder, he does not want the judge to consider second degree murder. In this vein, we agree with Professor O’Neill when he quotes the principle set forth in People v. Taylor that ‘[a] defendant being tried of murder at a bench trial had absolutely no right to restrict the trial judge from considering the possibility of a finding of voluntary manslaughter.’ ” (20 J. Marshall L. Rev. at 230, quoting People v. Taylor (1967), 36 Ill. 2d 483, 224 N.E.2d 266.) O’Neill adds:

“Even though the new Act states that a first degree murder defendant should have an absolute right to prevent a jury from considering second degree murder, it is silent regarding a bench trial. Judge Steigmann argues that the defendant at a bench trial should have a similar right. Symmetry would appear to support this, although in reality it might appear foolhardy for a defendant to attempt to prevent a judge from finding that the murder was accompanied by mitigating circumstances.” 20 J. Marshall L. Rev. at 230.

Additionally, because the trial judge had already found defendant guilty of first degree murder, it is difficult to understand how defendant was prejudiced by the court’s consideration of mitigating factors and subsequent finding that he was guilty of second degree murder. Haddad, Second Degree Murder Replaces Voluntary Manslaughter In Illinois: Problems Solved, Problems Created, 19 Loy. U. Chi. L.J. 995 (1988).

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

EGAN and LaPORTA, JJ., concur.