author: JUSTICE CHAPMAN JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. KEVIN McMILLAN, Defendant-Appellee.
    Fifth District
    No. 5—91—0165
    Opinion filed August 4, 1992.

      WELCH, J., dissenting.
    Paula Phillips, State’s Attorney, of Effingham (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Kevin McMillan was charged with two counts of aggravated criminal sexual assault against a minor. On January 10, 1991, a hearing was held on the six-year-old minor’s competency to testify. (See Ill. Rev. Stat. 1989, ch. 38, par. 115 — 14.) At that hearing the circuit court ruled that the minor would not be allowed to testify.

“The Court finds that the minor witness is capable of expressing himself but not capable of expressing himself concerning the matter that is before the Court. The Court finds further that the minor is incapable of understanding the duty of a witness to tell the truth. The witness is disqualified.”

On January 22, 1991, a hearing was held pursuant to section 115 — 10(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b)) to determine whether out-of-court statements made by the minor would be admitted into evidence at trial. The court ruled that the minor’s statements to his mother were admissible under the “excited utterance” exception to the hearsay rule. The circuit court suppressed the minor’s statements to Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), because those statements did not demonstrate “sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s Confrontation Clause objection.” The State appeals the suppression of the statements the minor made to Vieregge. We affirm.

Section 115 — 10 of the Code of Criminal Procedure of 1963 contains a hearsay exception:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1991, ch. 110, par. 115-10.)

Under this provision, there are no precise tests for evaluating trustworthiness or reliability, but rather “particularized guarantees of trustworthiness must be drawn from the totality of the circumstances surrounding the victim’s statements.” Idaho v. Wright (1990), 497 U.S. 805, 819, Ill L. Ed. 2d 638, 654-55, 110 S. Ct. 3139, 3148-49; People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010.

The relevant circumstances to be examined when determining reliability are those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 819, 111 L. Ed. 2d at 655, 110 S. Ct. at 3148.) According to Wright, factors that relate to whether hearsay statements made by a child witness in a child sexual abuse case are reliable include, but are not limited to: spontaneity and consistent repetition; mental state of the declarant; use of terminology unexpected of a child of similar age; and a lack of motive to fabricate. 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150; see also Kling, The Confrontation Clause and Illinois’ Hearsay Exception for Child Sex Abuse Victims, 79 Ill. B.J. 560 (1991).

At the section 115 — 10 pretrial hearing, Kara Rickfelder, the minor’s mother, described statements that the minor had made to her shortly after the alleged assault. Rickfelder testified that she and the minor had visited Rickfelder’s grandmother and the defendant on January 6, 1990, at the grandmother’s trailer home in Altamont. During their visit, the minor and the defendant left the trailer about the same time. Later they returned together. Rickfelder returned to her home in Effingham and was preparing supper when she noticed that the minor was quiet. She went to check on him and found him standing in his bedroom closet. His pants were down and he was holding a stuffed animal in front of himself.

Rickfelder asked the minor what he was doing, and he responded that he was “playing house.” Rickfelder told him that they did not play house that way and asked whether anyone had touched him. The minor began crying and answered, “Yeah, Kevin.” Rickfelder testified that her son told her that the defendant placed his “thing” in the minor’s mouth and touched the minor’s “pee-pee” and pinched him. Rickfelder testified that at the time of the incident there was no foreign substance on the minor or his clothing.

Boyd Vieregge, an investigator for the Department of Children and Family Services (DCFS), testified that he met with the minor and his mother at their apartment on January 9, 1990. Vieregge testified that the minor, using the colloquialism “pee-pee,” told him that the defendant had touched the minor’s “pee-pee” both inside and outside his clothing. The minor told him that the defendant also grabbed his hair and pulled the minor’s head down to the defendant’s penis, which he placed in the minor’s mouth. The minor stated that “sticky” water came out of the defendant’s penis while it was in the minor’s mouth. The defendant also placed his mouth on the minor’s penis. Vieregge testified that the minor also told him that after he put his mouth on the defendant’s penis the defendant told him to keep their activity a secret.

Vieregge also testified that the minor told him that the defendant placed his finger in the minor’s bottom “where he goes poop” and that it had hurt. The minor told the defendant to stop, but the defendant said that he was going to do it again. However, the defendant ceased the assault.

Vieregge testified that as an investigator for DCFS he has interviewed at least several hundred children about allegations of sexual abuse. In making his reports of those interviews, he had not found all the allegations to be substantiated. Vieregge has been a child abuse investigator for approximately 12 years. He testified that he has attended a number of seminars designed to teach DCFS employees effective methods of interviewing children. In July 1990, he completed a DCFS requirement for 20 hours of such training in a two-year period. Prior to the effective date of that requirement, Vieregge had attended probably 10 or 15 different courses or seminars for training and interviewing techniques and for the use of anatomically correct dolls. Those who spoke at the seminars, including physicians and psychologists, taught that questions asked of children should be open-ended and not leading. Vieregge testified that obtaining details in response to nonleading questions, watching the child’s body language, and ascertaining whether the child can distinguish day and night are ways of determining whether a child is credible.

On cross-examination, Vieregge testified that he did not hold a Ph.D. or a master’s degree in psychology and that he was not a psychiatrist or a registered clinical psychologist. Vieregge began talking with the minor about school and similar matters before asking him questions and receiving his answers about his contact with the defendant. He did not have a tape recorder when he interviewed the minor, whose mother was present on the opposite side of the room. Vieregge stated that during his interview of the minor he wrote out the questions and answers as they were asked and given.

The circuit court suppressed Vieregge’s testimony as to any statements the minor made to him and explained its ruling as follows:

“[T]he child’s statements in response to the DCFS Child Abuse Investigator fail to demonstrate sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s Confrontation Clause objection. The statements were not spontaneous but were in response to questioning. The allegations of sexual abuse were not consistently repeated by the child: to the mother he complained of fondling and fellatio on defendant; to the DCFS Investigator he complained of fondling outside his clothing, fondling inside his clothing, forced fellatio on defendant to orgasm, defendant’s fellatio on the child, and digital sodomy; and to the Court the child denied any such conduct by defendant. The child’s mental state is not conducive to truthtelling, i.e., the child is incompetent to testify precisely because he cannot distinguish between truth and falsity. While it is true that the child did not, according to the investigator’s holographic notes, use any terminology unexpected of a five-year-old child, the interview was not videotaped nor tape-recorded nor was a verbatim transcript taken. The child had a motive to fabricate: the mother had caught the child in the closet where he had been before (because the mother ‘figured he was in the closet’), the child [sic] there made an allegation of sex abuse against defendant arguably to defuse the mother’s ire, and the DCFS Investigator allowed the mother to be present while he questioned the child. The DCFS Investigator, even according to his own holographic notes, asked leading questions of the child: ‘Were you touched under the clothes?’ ‘Did he shake his body or use his hand?’ ‘Did Kevin put his mouth on your body?’ And of course the DCFS Investigator had a preconceived idea of what the child’s complaints should be to seem consistent with the Child Abuse Hotline report which he specifically had come to investigate.
*** The child’s hearsay statements to the DCFS Child Abuse Investigator must be suppressed.”

Because Vieregge’s notes documenting his interview with the minor appear to underly the court’s decision, they are set forth below:

“Initially [the minor] and I talked about school. He said he was in kindergarten and that he likes school. He then showed me some of the things he had gotten for Xmas — 2 games a stuffed animal and 2 Tonka trucks. I then told [the minor] I wanted to talk to him about good touches and bad touches. I asked him if anyone else had ever talked to him about that. [The minor] said yes — the doctor. I told him I wanted to talk to him about that again to make sure he understood. I then discussed and explained good touches and bad touches w/ [the minor],
Q. Has anyone ever given you a bad touch?
A. Yes.
Q. Who?
A. Kevin.
Q. What did Kevin do?
A. He touched my pee-pee.
I then explained touches over and under the clothes to [the minor] by touching my arm on top of my sweater w/my hand as a touch over or on top of the clothes and touching my arm with my hand under my shirt and sweater as a touch under the clothes.
Q. How did Kevin touch you?
A. On top of my clothes.
Q. Where did this happen?
A. At Grandmas.
Q. Where does Grandma live?
A. Altamont.
Q. Did this happen inside or outside?
A. Outside.
Q. Was anyone else out there when this happened?
A. No — just me and Kevin.
I then talked to [the minor] about days of the week telling him today was Tuesday — a school day, that yesterday was Monday a school day, the day before that Sunday — w/Sunday school and church and the day before that was Saturday — cartoon day when cartoons are on all morning.
Q. What day did this happen?
A. Saturday.
Q. Did anything else happen?
A. (He put his hand under his shirt sleeve — as I had done when explaining a touch under the clothes.)
Q. Were you touched under the clothes?
A. Yes.
Q. How?
A. Kevin put his hand under my clothes and touched my pee-pee.
Q. Then what happened?
A. Kevin shook his pee-pee at me.
Q. Where?
A. Outside behind the trailer.
Q. How did Kevin do this — did he shake his body or use his hand, [sic]
A. He shook his body. ([The minor] made motions with his hip.)
Q. Then what happened?
A. He grabbed my head (as he said this [the minor] grabbed the hair of his head and pulled his head forward) and put his pee-pee in my mouth.
Q. Did anything come out of his pee-pee?
A. Water but it was sticky.
Q. Did Kevin say anything to you?
A. He said ‘keep it a secret.’
Q. Did Kevin put his mouth on your body?
A. Yes.
Q. Where on your body?
A. Kevin put his mouth on my pee-pee.
I then explained words ‘before’ and ‘after’ to [the minor] and before being what happened first.
Q. Can you tell me which one happened first?
A. I had to put my mouth on Kevin’s pee-pee first, then Kevin put his mouth on my pee-pee.
Q. Did anything else happen?
A. ([The minor] put his hand on his bottom and patted it.)
Q. Your bottom?
A. Yes.
Q. What about your bottom?
A. He touched it.
Q. How did he touch it?
A. With his hand.
Q. On top of the clothes or under the clothes?
A. Under the clothes.
I then talked about the bottom having two cheeks and a crack in the middle.
Q. Where did he touch your bottom?
A. The crack.
Q. What did he touch the crack with.
A. His fingers.
Q. Did it hurt?
A. Yes.
Q. Did he put his finger inside your bottom or just in the crack.
A. In my bottom where I go poop — that’s when it hurt.
Q. Did you say anything?
A. I said no.
Q. Did Kevin say anything?
A. He said Yeah.
Q. Did he stop.
A. No — he kept on doing it.
Q. Did you say anything else?
A. I said stop.
Q. Did Kevin say anything?
A. He said ‘I’m going to do it again.’
Q. Then what happened?
A. He stopped.
Q. Then what happened?
A. I went back in the trailer.
Q. Where does Kevin stay?
A. At Grandma’s.
Q. Was this in the morning or afternoon?
A. Afternoon.
Q. Was it light out or dark?
A. Still light.
Q. Has anyone else given you a bad touch.
A. No.
Q. Has anyone ever made you touch them?
A. No.
Q. Is the time you just told me about on Saturday the only time this has happened?
A. Yes.”

A court of review cannot be permitted to simply substitute its assessment of the evidence for that of the trial court (which saw and heard the witnesses who testified) when it reviews a trial court determination that hearsay statements are admissible under section 115— 10. (People v. Beavers (1991), 220 Ill. App. 3d 1057, 1068, 580 N.E.2d 1367, 1375.) The appropriate standard of review in such a case is whether the trial court’s decision is contrary to the manifest weight of the evidence. (220 Ill. App. 3d at 1068, 580 N.E.2d at 1375.) In the present case, our review of the record satisfies us that the trial court’s determination was not contrary to the manifest weight of the evidence.

The trial court found that the statements to Vieregge were not spontaneous but were in response to questioning. The State agrees that the minor made his statements to Vieregge three days after the alleged incident. The trial court next found that the “allegations of sexual abuse were not consistently repeated by the child.” The State argues that the testimony by the minor’s mother about his complaint to her was probably more general than Vieregge’s testimony because Vieregge is a trained and experienced investigator. Nonetheless it is undisputed that the minor was not consistent in the allegations of sexual abuse. The trial court’s finding is supported by the record.

The court next found that the child’s “mental state is not conducive to truth telling.” A child’s incompetence to testify at trial does not per se render the child’s out-of-court complaint unreliable under section 115 — 10. A case-by-case analysis is necessary to determine whether the statement is made unreliable under the specific facts and circumstances of the case. (Idaho v. Wright (1990), 497 U.S. at 824, 111 L. Ed. 2d at 658, 110 S. Ct. at 3151; People v. Rocha (1989), 191 Ill. App. 3d 529, 539, 547 N.E.2d 1335, 1341.) The court’s order refers to the competency hearing wherein the child denied any misconduct by the defendant when questioned in court. We have reviewed the transcript of the minor’s competency hearing. Under the circumstances of this case, we cannot conclude that the trial court erred in finding that the minor’s incompetence as a witness affected the reliability of his statements to Vieregge.

The State next challenges the trial court’s finding that Vieregge asked leading questions and had a preconceived notion of what the child’s complaints should be to be consistent with the child abuse hotline report. It is apparent from the record that Vieregge did have prior knowledge of the minor’s complaints as related to his mother. A review of Vieregge’s interview notes confirms that leading questions were asked of the minor. While Vieregge’s notes indicate that much of the interview was conducted using open-ended questions, the trial court considered that “the interview was not videotaped nor tape-recorded nor was a verbatim transcript taken.” This fact is not disputed by the State. Vieregge’s notes and his testimony are the only evidence of the interview. Defendant argues that the reliability of the minor’s statement rests upon Vieregge’s credibility in how he conducted the interview. Credibility of a witness is a matter for the trial court to determine, and a court of review will not disturb the trial court’s finding unless it is against the manifest weight of the evidence. (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App. 3d 656, 485 N.E.2d 1248.) We agree with the defendant that the trial court could have concluded that Vieregge had not conducted an interview conducive to obtaining a reliable statement. Given the facts of this case and because the trial court observed Vieregge’s demeanor while testifying, we cannot conclude that the trial court’s conclusion was contrary to the manifest weight of the evidence.

Finally, the trial court found that the minor “had a motive to fabricate.” There is no direct evidence that the mother found the minor in the closet on prior occasions or that the minor feared punishment from his mother because he was in the closet. However, the trial court is in a better position to judge the credibility of the witnesses and in this case was able to observe the demeanor of the mother while testifying. The inferences the trial court could draw from the mother’s manner while testifying support the trial court’s factual conclusion.

The court has considerable leeway in its consideration of appropriate factors when evaluating the totality of the circumstances surrounding a victim’s statements to determine their reliability. (Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150; People v. Beavers (1991), 220 Ill. App. 3d 1057, 580 N.E.2d 1367.) Under the circumstances in this case we cannot find that the trial court considered inappropriate factors in making its determination. In light of the above, we hold that the trial court’s decision that the minor’s statements to Vieregge were unreliable and, thus, inadmissible under section 115 — 10 of the Code was not contrary to the manifest weight of the evidence.

Affirmed.

GOLDENHERSH, P.J., concurs.

JUSTICE WELCH,

dissenting:

I respectfully dissent. As the circuit court noted in its February 12, 1991, order, the State sought to introduce the child complainant’s hearsay statements to the DCFS investigator pursuant to the statutory exception to the rule against hearsay, and defendant sought to bar the introduction of the statements because such introduction would constitute a violation of his constitutional right of confrontation. Following a hearing to determine whether the hearsay statements could be admitted, the circuit court suppressed the hearsay statements of the child complainant to the DCFS investigator. The circuit court found in its February 12, 1991, order that the child’s statements to the investigator failed to demonstrate sufficient particularized guarantees of trustworthiness to be admissible in the face of defendant’s confrontation clause objection.

Section 115 — 10(aX2) of the Code of Criminal Procedure of 1963 (Code) provides that for any prosecution of a sexual offense committed on a child under age 13, the testimony of an out-of-court statement made by the child describing any complaint of such an act or matter or detail pertaining to any act which is an element of the charged offense is admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(aX2).) This section of the Code further provides:

“Such testimony shall only be admitted if:
(1) The Court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(b).)

The confrontation clause bars the admission of some evidence which would otherwise be admissible under an exception to the hearsay rule. However, the confrontation clause will, where necessary, permit the admission of certain hearsay statements against a defendant, if the prosecution is able to demonstrate the unavailability of the declarant and that his or her statement bears adequate indicia of reliability. Because the evidence did not fall within a firmly rooted hearsay exception, reliability, in the instant case, must be proved by a showing of particularized guarantees of trustworthiness, in order to pass constitutional muster. See Idaho v. Wright (1990), 497 U.S. 805, 814-15, 111 L. Ed. 2d 638, 651-52,110 S. Ct. 3139, 3146.

The particularized guarantees of trustworthiness required for admission under the confrontation clause must be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. (Idaho v. Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149.) Wright identified several factors which it felt properly related to whether hearsay statements made by a child witness in child sexual abuse cases are reliable; to wit, spontaneity and consistent repetition, mental state of the declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. The Court emphasized, however, that these factors were not exclusive and declined to endorse a mechanical test for determining “particularized guarantees of trustworthiness”. Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.

The circuit court found that the child’s statements to the investigator were not spontaneous but in response to questioning, and that the allegations of sexual abuse were not consistently repeated by the child. However, with respect to count I of the information, which charged that defendant placed his penis in the mouth of the complainant/child and which was the only count for which the court found probable cause at the preliminary hearing, the child’s statement to the DCFS investigator was consistently repeated from the initial declaration made by the child to his mother on the day of the alleged sexual abuse. The child told both his mother and the investigator that defendant had placed his penis in the child’s mouth. While the child elaborated on that statement in response to further questioning by the investigator, stating that defendant had grabbed his hair and pulled his head down to the defendant’s penis and placed it in his mouth, I believe both such statements were consistent. I therefore believe that this particular finding was against the manifest weight of the evidence.

The court also noted that the investigator used leading questions of the child and found that the investigator had a preconceived idea of what the child’s complaints should be, based on the Child Abuse Hotline report that he had received and was presently investigating. We note that the child’s statement that defendant placed his penis in his mouth was not made in response to a leading question; however, the child’s statement that “water” had come out of defendant’s penis “but it was sticky” was made in response to the leading question, “did anything come out of his pee-pee?” Additionally, the court found that while the child did not use any terminology unexpected of a five-year-old child, no videotape or tape recording was taken of the interview.

The Supreme Court in Wright, however, rejected the dispositive weight placed by the State appellate court therein on the lack of procedural safeguards at the interview (failure to record the interview on videotape, the asking of leading questions and questioning of the child with a preconceived idea of what she should be disclosing), finding that such procedural requirements may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for confrontation clause purposes. The Court noted that the use of leading questions with children, when appropriate, does not necessarily render responses untrustworthy. The Court also noted that a videotape requirement may not be feasible, especially, as in the instant case, where the defendant had not yet been criminally charged. The Court stated that although these procedural guidelines may enhance the reliability of such out-of-court statements it would decline to read into the confrontation clause a preconceived and artificial litmus test for the procedural propriety of professional interviews in which children make hearsay statements against a defendant. Wright, 497 U.S. at 818, 111 L. Ed. 2d at 654, 110 S. Ct. at 3148.

In the instant case, the portions of the child’s statement to the investigator, relevant to count I of the information, involved the allegation of oral sex. I do not believe that the leading question asked with regard to the specifics of the act destroyed the reliability of the child’s response. As the Court noted in Wright, the unifying principle is that the factor relate to whether the child declarant was particularly likely to be telling the truth when the statement was made. (Wright, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) In spite of the fact that the Supreme Court in Wright affirmed the decision of the appellate court reversing an order which denied suppression of a child’s out-of-court statement, the Court gave approval to two factors with which the trial court supported its determination that the child’s statement should not be suppressed: whether the child had a motive to “make up a story of this nature,” and whether, given the child’s age, the statements are of the type “that one would expect a child to fabricate.” The nature of the child’s response to the leading question asked by the DCFS investigator in the instant case was certainly not a response that a typical five-year-old child was likely to have made up and indeed was consistent with a description of the sexual abuse that was alleged, indicating that the child was likely to be telling the truth when the statement was made. I therefore believe the circuit court placed undue emphasis on the leading question factor.

I also believe that the circuit court’s emphasis on the factor that the investigator had a preconceived idea of what the child should be disclosing places undue restriction on investigators of child sexual abuse claims and, from a practical standpoint, should not be given undue emphasis unless it is clear from the child’s statement that the investigator is “putting words in the child’s mouth.” In this particular case, I did not find Mr. Vieregge to be directing the child’s statement to support the charge of sexual abuse that he was investigating.

The circuit court also found that the child had a motive to fabricate because he sought to defuse the mother’s ire at having found him in the closet, noting also that the mother was allowed to be present when the DCFS investigator interviewed the child. However, there is nothing in the record to support such speculation on the part of the court and nothing in the record to indicate any premature sexual precocity on the part of this young child which might cause the child to tell his mother that defendant had placed his penis in his mouth. We note that the child’s statement to his mother was not suppressed by the court. I believe that the finding of the court with regard to the child’s motive to lie was also not supported by the manifest weight of the evidence.

The circuit court also found that the child’s mental state was not conducive to truth-telling, noting that the child was incompetent to testify precisely because he could not distinguish between truth and falsity. However, the Supreme Court rejected the defendant’s contention in Wright that the child’s out-of-court statements were presumptively unreliable on the ground that the trial court found the child incompetent to testify at trial. As the Court emphasized, the relevant circumstances to be considered include only those that surround the making of the statement and that render the declarant particularly worthy of belief. (Wright, 497 U.S. at 820, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149.) While the child may have been unable to answer questions in a courtroom in which the defendant was seated, about a traumatic event which was alleged to have taken place some 12 months earlier, I do not believe the court can reasonably infer from this that at the time the child made the statement to the DCFS investigator, he was not truthfully relating what had happened to him on January 6, 1990. Indeed, by finding that the child’s out-of-court statement to his mother constituted an excited utterance exception to the hearsay rule, the circuit court implicitly found such statement reliable. (See Wright, 497 U.S. at 815, 111 L. Ed. 2d at 652, 110 S. Ct. at 3146 (“Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception”).) I believe the circuit court’s finding that the child’s mental state was not conducive to truth-telling was against the manifest weight of the evidence and based upon an irrelevant factor under the reasoning of Idaho v. Wright.

In my opinion the prosecution did, in fact, demonstrate that the declarant was unavailable, that the evidence showed particularized guarantees of trustworthiness, and accordingly that the declarant’s statement bore adequate indicia of reliability. The prosecution also showed that there was corroborative evidence of the act which was the subject of the statement, by way of admissible evidence of the child’s statement to his mother. Therefore, the portion of the child’s statement to Mr. Vierrege relevant to proof of Count I of the information should not have been suppressed.

The appropriate standard of review of a trial court’s determination pursuant to section 115 — 10 of the Code is whether the ruling was clearly contrary to the manifest weight of the evidence. (People v. Deavers (1991), 220 Ill. App. 3d 1057, 1068, 580 N.E.2d 1367, 1375.) Additionally, a reviewing court will reverse a circuit court’s order suppressing evidence when that ruling is manifestly erroneous. (People v. Smith (1991), 208 Ill. App. 3d 44, 48, 566 N.E.2d 939, 941-42.) I believe that the February 12, 1991, ruling was clearly contrary to the manifest weight of the evidence with regard to the section 115 — 10 determination and manifestly erroneous with regard to the confrontation clause analysis. I would hold that the circuit court improperly suppressed the complainant/child’s statements to the DCFS investigator and accordingly would reverse the February 12, 1991, ruling of the circuit court of Effingham County.


source: Caselaw Access Project

license: Public Domain

text:
    RAPP INSURANCE AGENCY, INC., Plaintiff-Appellant, v. DAVID W.K. BALDREE, Defendant-Appellee.
    Fifth District
    No. 5 — 92—0218
    Opinion filed August 6,1992.

      WELCH, J., dissenting.
    Crowder & Scoggins, Ltd., of Columbia (Mark S. Rohr and Floyd E. Crowder, of counsel), for appellant.
    Baker, Hayes & Kloess, of Belleville (Harold G. Baker, Jr., and Daniel J. Hayes, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff, Rapp Insurance, seeks a preliminary injunction to enjoin its former employee, David Baldree, from transacting any business with plaintiff’s customers and from using confidential information Baldree obtained on customers while working for the plaintiff. The trial court granted plaintiff a temporary restraining order but denied it a preliminary injunction. Plaintiff appeals. We affirm.

Plaintiff is a general insurance agency dealing in both personal and commercial accounts. In December 1988, plaintiff hired defendant, David Baldree, to solicit and service new insurance accounts. Defendant signed an employment contract which stated:

“(5) In the event this agreement is terminated by the Employer, Employee hereby covenants and agrees with the Employer that he or she will not for a period of three (3) years from the date of such discharge, transact any business with any (individual) persons and/or corporate-commercial accounts and/or Association and its member accounts doing business with the Employer at the time of such termination without first obtaining the written consent of the Employer.”

An identical clause followed which applied in the event of a voluntary termination on the part of the employee. Another clause provided:

“(2) Employee shall receive as compensation such salary and wages as shall be agreed upon between Employer and Employee from time to time in exchange for performing the duties outlined in Paragraph 1 hereof and in consideration of the covenants and/or non-privacy agreement in Paragraphs 5 and 6 hereof.”

At the end of 1991, plaintiff reduced Baldree’s compensation, and he became dissatisfied with the arrangement. Defendant admittedly copied Rapp Insurance files which he had compiled on his customers while working for Rapp. On February 9, 1992, plaintiff had a meeting with defendant in an attempt to retain defendant as an employee and to address his dissatisfaction with the new compensation agreement. During that meeting defendant stated that he had obtained a “better deal” with another agency. Defendant also asked for time to discuss his options with his wife and told Rapp that he would notify it by the following Friday on his final decision. Defendant then sent a letter dated February 5, 1992, to plaintiff in which he demanded a restoration of his original compensation and stated that a failure by plaintiff to respond to the letter within 10 days of its mailing would be deemed a breach of their written contract. Defendant did not return to work.

On February 13, 1992, plaintiff’s attorney delivered a letter to defendant stating that plaintiff considered defendant to have terminated his employment. The letter further stated that if defendant contended otherwise he should respond within seven days or plaintiff would terminate his employment.

On February 14, 1992, plaintiff filed its complaint requesting a temporary restraining order and a preliminary injunction. The court granted the temporary restraining order preventing defendant from using the allegedly confidential insurance files and from transacting any business with any of plaintiffs customers. The order was set to expire on February 24, 1992, at which time a hearing on the preliminary injunction would be heard. Plaintiffs motion for preliminary injunction was heard on February 24, 1992, and denied by an order filed February 27, 1992. Plaintiff filed a notice of interlocutory appeal on March 24,1992.

The issue before this court is whether the circuit court’s denial of the preliminary injunction was contrary to the manifest weight of the evidence. In order to prevail on a motion for a preliminary injunction, a plaintiff must prove that: (1) a clearly ascertained right or interest exists which needs protection; (2) irreparable injury will occur without the protection of an injunction; (3) the remedy at law is inadequate; and (4) there is a likelihood of success on the merits of the case. Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 671, 546 N.E.2d 1059, 1065; Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 355, 425 N.E.2d 1034, 1036.

The party seeking a preliminary injunction must raise a fair question as to the existence of the right claimed and establish that it probably will be entitled to the requested relief if it proves its allegations. (Lincoln Towers, 99 Ill. App. 3d at 355, 425 N.E .2d at 1036.) The role of the reviewing court is to determine whether the trial court’s findings are contrary to the manifest weight of the evidence and to reverse the findings only upon such showing. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 743-44, 566 N.E .2d 379, 383.) We affirm.

There were, in fact, two preliminary injunctions requested by the plaintiff. The first sought to enjoin defendant from using plaintiff’s proprietary business information (i.e., customer files), and the second was to enjoin defendant from transacting any business with plaintiff’s customers as per the employment contract. The trial court denied the plaintiff’s requests without specific comment.

We first address the trial court’s refusal to restrain defendant from transacting any business with plaintiff’s customers based on the employment contract signed by the defendant with Rapp. The enforceability of a restrictive covenant is a question of law to be carefully scrutinized by the courts because such covenants operate as partial restraints of trade. (Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15, 490 N.E.2d 1302, 1306-07.) A restrictive covenant may be held enforceable only if the time and territorial limitations are reasonably necessary to protect a legitimate business interest of the employer. (Reinhardt, 142 Ill. App. 3d at 15, 490 N.E.2d at 1307.) Plaintiff must therefore first establish that a legitimate business interest was threatened. In doing so, plaintiff must show injury to its legitimate business interests separate and distinct from defendant’s breach of the covenant to secure enforcement thereof, or such covenant will be deemed an unenforceable attempt to prevent competition per se. Reinhardt, 142 Ill. App. 3d at 15, 490 N.E.2d at 1307.

Ordinarily an employer has no proprietary interest in its clients; however, such an interest may be found for purposes of enforcing a covenant not to compete: (1) where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his or her employment, defendant would not have had contact with them; or (2) where the former employee learned trade secrets or acquired other confidential information while in plaintiff’s employ and subsequently attempted to use it for his own benefit. Camillo, 190 Ill. App. 3d at 673, 546 N.E.2d at 1065; Reinhardt, 142 Ill. App. 3d at 15-16, 490 N.E.2d at 1307.

Some of the factors to be considered in determining whether a near-permanent relationship exists include the time, cost, and difficulty involved in developing and maintaining the clientele, the parties’ intention to remain affiliated for an indefinite period, and the continuity and duration of the relationship. A.B. Dick, Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 793, 514 N.E.2d 45, 49; Reinhardt, 142 Ill. App. 3d at 16, 490 N.E.2d at 1307.

As. concerns the time, continuity and duration factors of the relationships, we believe that the nature of most general insurance policies is somewhat transient. Granted, many such relationships endure over lengthy periods of time; however, most are easily can-celled within relatively short time periods and depend on constant periodic renewals. (See Camillo, 190 Ill. App. 3d at 674, 546 N.E.2d at 1066.) The evidence was undisputed that the customer files taken by defendant were those of his own customers. As such they could not have exceeded three years in duration when defendant left Rapp. We cannot say that such relationships were near-permanent.

Contrary to plaintiff’s argument, the mere potential to become a long-standing customer is not sufficient. As regards the remainder of Rapp’s customers, we again emphasize the transient nature of insurance policies in general. It was uncontested that insurance customers are frequently approached by competitors and that the customers willingly give the competitor information regarding their premiums in hopes of obtaining a better deal. Plaintiff has also failed to demonstrate any substantial cost or difficulties in developing or maintaining the clientele. Camillo, 190 Ill. App. 3d at 674, 546 N.E.2d at 1066.

As most of the clients, according to testimony, were brought in via “cold calls,” we cannot say that defendant would not have had contact with them but for his employment with plaintiff, since most of these customers could be found in the phone book and randomly contacted by any insurance agent.

We also do not conclude that the information in the customer files taken by the defendant contained trade secrets or confidential information. A trade secret has been defined as “a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such limited other persons to whom it may be necessary to confide it.” (Reinhardt, 142 Ill. App. 3d at 17, 490 N.E.2d at 1308.) Again, it was uncontested that the files defendant copied were those of his own customers, accounts he had established during his three-year tenure. Defendant could easily have contacted his former customers and obtained from them most, if not all, of the information contained in their files. Various employees of plaintiff had access to the same information, and plaintiff made little effort to guard the secrecy of the information other than the employment contract itself. As has already been stated, insurance customers may be targeted or contacted randomly by any given insurance salesman for any company and, more often than not, will voluntarily disclose information about their policies in the hopes of obtaining better deals. This is the nature of competition. Rapp wants this information, which may be liberally distributed by its very own customers to competing agents, to be classified, in the case of David K. Baldree, as a trade secret or confidential information which would prohibit him from transacting business with any of Rapp’s customers. The information is out there to be found by any persistent agent. It is neither a secret nor confidential.

Thus, finding no permanent customer relationship or trade secret/confidential information involved, we cannot say that plaintiff has demonstrated a proprietary business interest such as to warrant an enforcement of a covenant not to compete.

Concerning the first requested preliminary injunction seeking to enjoin defendant from using plaintiff’s proprietary business information (i.e., the customer files), we have already determined that these files contained no trade secret or information of a confidential nature which would warrant the reversal of the trial court’s ruling.

We, therefore, cannot say that the trial court’s findings were contrary to the manifest weight of the evidence and, therefore, affirm.

Affirmed.

GOLDENHERSH, P.J., concurs.

JUSTICE WELCH,

dissenting:

I respectfully dissent. The majority found that plaintiff insurance agency had no proprietary interest in its clients for purposes of enforcing the covenant not to compete against defendant because it did not have a near-permanent relationship with its customers and because the information in the customer files taken by defendant did not contain trade secrets or confidential information. I believe that both such findings are against the manifest weight of the evidence.

As the majority notes, an employer may be found to have a proprietary interest in its clients where, by the nature of the business, plaintiff has a near-permanent relationship with its customers and but for his or her employment, defendant would not have had contact with them. (Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 673, 546 N.E.2d 1059, 1065.) I would first note that the majority ignored the evidence that but for defendant’s employment with plaintiff agency, he would not have had contact with plaintiff’s clients. The evidence was clear that defendant had brought no accounts with him to the agency when he was first employed there; indeed, defendant had had no prior experience in the insurance industry. Plaintiff also incurred expenses of approximately $5,500 in sending defendant to licensing school to secure the necessary license to sell insurance in the State of Illinois and to a series of extended information classes. Moreover, it cannot be disputed that defendant was hired, at least with respect to the first three years of his employment, to secure customers for the agency, not for himself on a commission basis, and that, accordingly, defendant was paid on a salary basis.

With regard to the near-permanent relationship factors, the majority makes a generalization with respect to the insurance industry, that because insurance policies are easily cancelled and depend on constant periodic renewal, the nature of most general insurance policies is transient. It is apparent that the majority based this determination upon an assumption that the only files defendant was copying before he left the agency were the accounts which he had developed in the three years he was with the agency. The evidence indicates, however, that other files had been tampered with and that the agency had some 600 outstanding customer files, creating the inference that defendant was also interested in pirating other customers for the new agency by which he was to become employed.

Moreover, no one factor is to be given greater weight, and the factors enunciated in the Illinois cases cited by the majority must be balanced. (Camillo, 190 Ill. App. 3d at 674, 546 N.E.2d at 1065.) It is well established that the amount of time and money it takes for an employer to develop a clientele is an indicator of how long the firm and its clients intend to remain affiliated. (Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 747-48, 566 N.E.2d 379, 386.) The evidence at the hearing on the preliminary injunction indicated that plaintiff agency had been in existence since 1892 and that the agency had a retention rate of 75% to 80% on its customer policies. I also note that the new agency by which defendant had become employed was a competitor, located in the same town as plaintiff agency. In addition, the majority cites the Camillo case for the proposition that because the insurance contract is easily cancelled and depends on constant periodic renewal, the relationship between plaintiff and its customers is transient. I note, however, that in Camillo, plaintiff’s potential customers changed laboratory service providers constantly, that defendant was well-known in the industry as a skilled phlebotomist, and that the customers defendant was able to solicit during his employment were procured not because of defendant’s association with plaintiff but rather through defendant’s own efforts in association with plaintiff. In contrast, defendant in the instant case would not have had contact with plaintiff’s customers but for his education, training and association with plaintiff’s well-established insurance agency.

I also disagree with the majority’s conclusion that the information in the customer files taken by defendant did not constitute a trade secret or confidential information. The majority again emphasizes that defendant only copied information from his own account files and could easily have duplicated this information by contacting the customer and asking for it. I do not believe that the evidence of the extent of defendant’s information gathering was as limited as the majority concludes. In any event, a restrictive covenant will be enforced where the former employee acquires confidential information while in plaintiff’s employ and subsequently attempts to use it for his or her own benefit. (A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 792, 514 N.E.2d 45, 48.) The manager of plaintiff agency testified that the agency files are confidential because the information contained in the files would give the competitor the upper hand, i.e., they would know the pricing they had to beat to take the account away from plaintiff. The evidence also left no doubt, in my estimation, that defendant’s intent in copying the files was to use this information for his own benefit at his new employment. Although the majority also emphasized that plaintiff made little effort to guard the secrecy of the information located in the customer files, I would note that an employee breaches his confidential relationship with his employer where he acts in a manner inconsistent with his employer’s interest during his employment in that he surreptitiously copies or memorizes trade secret information for use after his termination in the solicitation of his employer’s customers or utilizes information in his possession to develop a product to compete with his employer’s product while still in his employ. (Lincoln Towers Insurance Agency v. Farrell (1981), 99 Ill. App. 3d 353, 358-59, 425 N.E.2d 1034, 1038.) The evidence was clear that defendant copied customer files which contained the agency’s “book of business,” including the name of the client, how much his premium was, when the coverage was due and other information necessary to write the coverage. The evidence was also clear that defendant intended to use this information in pursuit of his career in the insurance business. I believe a finding that the information taken by defendant from his employer was not confidential was clearly against the manifest weight of the evidence.

A party who seeks a preliminary injunction must establish that a certain and clearly ascertained right needs protection, irreparable injury will occur without the injunction, no adequate remedy at law exists, and that there is a probability of success on the merits. (A.B. Dick, 159 Ill. App. 3d at 791, 514 N.E.2d at 48.) Further, to establish a probability of success on the merits, the petitioner need only raise a fair question as to the existence of the right claimed and show that he will probably be entitled to injunctive relief if he proves his allegations. (A.B. Dick, 159 Ill. App. 3d at 791, 514 N.E.2d at 48.) I believe plaintiff established a proprietary right that needs protection, that irreparable injury would occur without the injunction and that no adequate remedy at law exists. I also believe that plaintiff raised a fair question as to the existence of a right needing protection. I therefore would hold that plaintiff agency was entitled to a preliminary injunction.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN MURRAY, Defendant-Appellant.
    Fifth District
    No. 5—90—0821
    Opinion filed August 6,1992.

      Daniel M. Kirwan and Stanley R Stasiulis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, defendant, Brian Murray, was found guilty of involuntary manslaughter (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)) in connection with the shooting death of Tameka Fowler. He was sentenced to three years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(a)(6)), and his motion to reconsider and reduce that sentence was denied. Murray now appeals. Two issues are presented for our review: (1) whether the evidence was sufficient to sustain Murray’s conviction, and (2) whether the circuit court considered improper factors when it imposed sentence. We affirm.

The events which gave rise to this case occurred on December 4, 1988. At that time, Murray resided with his girlfriend, Sabrina Moore, in her apartment in the City of East St. Louis. Earlier in the day, Murray had quarreled with Moore when Moore called out the name of another man while the two were having sex. Murray became so upset that he packed his belongings and was prepared to move out. He left the apartment for the day, but came back after dark to pick up his things.

When Murray returned, he and Sabrina argued again. Soon, however, a number of friends and acquaintances gathered in the apartment along with Murray, Sabrina, and Sabrina’s young children. Included in this group was a young woman named Tameka Fowler, a friend of both Murray and Sabrina. By all accounts, the gathering was congenial, even festive. According to the defendant, “[everybody was playing, joking, laughing.”

At some point, Murray and Fowler became involved in an exchange which included references by Fowler to organized gang activity. Murray responded by going into an adjacent bedroom, where he retrieved a .357 revolver owned by Sabrina. Murray testified that he had told Sabrina earlier in the day to unload the weapon and had seen her do it. Sabrina confirmed that she had unloaded the gun, but indicated that she had done so as a precautionary measure given all the children in the house and the difficulty she had been having with Murray. At trial, neither she nor any other witness was willing to corroborate Murray’s claim that the gun had been unloaded at his request and in his presence. In any case, there was no real question that Murray did not subsequently check the weapon to see if it was still unloaded at the time he removed it from the bedroom.

Murray’s appearance with the weapon created no sense of alarm among the group gathered in the apartment, for he was known to play with handguns and to flourish them in front of others for “fun.” The pistol was cocked. Fowler, in jest, dared Murray to shoot her. She was smiling and saying, “Shoot me. Shoot me,” or “Do it. Do it.” Murray did. He pulled the trigger, the gun discharged, and the bullet pierced Fowler’s brain and lodged in the wall. She died instantly.

On this appeal, Murray first argues that the evidence was insufficient to support his conviction for involuntary manslaughter. A person commits involuntary manslaughter when he unintentionally kills an individual without lawful justification and “his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a).) Murray contends that he should not have been convicted for this offense because he did not act “recklessly.” We disagree.

A person acts recklessly “when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in this situation.” (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.) The mental state of “recklessness” is to be inferred from all the facts and circumstances in the record, viewed as a whole. Whether recklessness has been proved is an issue for the trier of fact to decide, and where it has found the defendant guilty, a reviewing court may not reverse the conviction unless the evidence was so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt. People v. Wilson (1991), 143 Ill. 2d 236, 246-47, 572 N.E.2d 937, 942.

As our review of the record has shown, the defendant in this case brandished a powerful handgun in front of a group of people which included small children, and the jury could certainly have found that he aimed it directly at his victim in response to her taunts to “shoot me.” Murray claims that he did not realize that the weapon was cocked, yet that would have been obvious upon even the most cursory look. There is no dispute that he knew how pistols worked, and the evidence established that he had deliberately mishandled firearms in front of others before. Accordingly, the jury could easily have found not only that Murray realized the gun’s hammer was cocked but that he also deliberately pulled the trigger to release it.

Murray nevertheless argues that his actions do not rise to the level of “recklessness” because he believed that the pistol was unloaded. The factual predicate for this argument is his assertion that he told Sabrina to unload the weapon and observed her doing so, but that assertion is one which none of the other witnesses was willing to corroborate at trial. Moreover, even if Murray’s assertion could be taken at face value, the fact remains that the events with Sabrina took place sometime prior to the shooting, and there is absolutely no indication that Murray made any effort to verify that the pistol was still unloaded at the time he retrieved it, pointed it at his victim, and released the trigger. We believe that “[a] reasonable person could fairly conclude from this evidence that defendant acted with a conscious disregard of a substantial risk that he would cause great bodily harm or death.” (People v. Smith (1992), 149 111. 2d 558, 566.) We therefore conclude that this evidence was sufficient to support Murray’s conviction for involuntary manslaughter.

Murray argues in the alternative that he is entitled to a new sentencing hearing because the circuit court considered three improper factors in aggravation. First, Murray contends that the circuit court erred when it took into account that Murray’s conduct resulted in Fowler’s death. Murray argues that this factor should not have been considered by way of aggravation because killing is inherent in the offense of involuntary manslaughter. We note, however, that while the circuit court did observe “for the record that the conduct of Mr. Murray obviously caused the death of Tameka Fowler,” it also went on to hold that it was “not specifically considering that as a matter in determining sentencing, the death of Tameka Fowler being obviously a material issue in the charge itself.”

Murray attempts to make much of the fact that the circuit court then went on to say that “in this particular situation a girl was killed in by all accounts what essentially was a social setting.” Murray construes this passage as showing that notwithstanding its previous remarks, the court was in fact improperly considering that Fowler had been killed. From the court’s remarks as a whole, however, it appears that what the circuit court was concerned with was not simply that Fowler had been killed, but that she had been killed in this particular situation. That, in turn, related to the circuit court’s consideration of the question of deterrence. As the court explained:

“This is one case where I believe that the deterrent effect of a prison sentence has some meaning because the Court is of the opinion that society requires and that the public will take note that if you’re going to play with guns or use guns or point guns at unarmed victims in social settings that you’re going to have to pay a price for the consequences of that act, and the Court finds that it is necessary to incarcerate Mr. Murray as a deterrent to others from killing people in settings similar to these *** yy

In response to this, Murray next contends that the circuit court should not have considered deterrence as an aggravating factor because involuntary manslaughter involves killing which is “unintentional” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a)), and conduct which is unintentional is difficult to deter. In support of his position, Murray cites People v. Martin (1988), 119 Ill. 2d 453, 519 N.E.2d 884, but that case does not stand for the proposition that deterrence is never a proper aggravating factor in cases of involuntary manslaughter. What Martin teaches is that considerations of deterrence do not warrant imposition of the maximum statutory sentence for involuntary manslaughter where the only other aggravating factor is the harm to the victim and there are substantial factors in mitigation. In this case, by contrast, no mitigating factors were overlooked, and the maximum sentence of five years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(a)(6)) was not imposed. To the contrary, Murray received only one year more than the two-year statutory minimum (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(6)).

Even after Martin, our court has recognized that deterrence may be taken into account in sentencing a defendant for involuntary manslaughter. (People v. Gold (1991), 221 Ill. App. 3d 187, 190, 581 N.E.2d 904, 906.) We agree with the circuit court that it was properly considered here. Implicit in the jury’s verdict is that while Murray did not intend to kill Fowler, he did act “recklessly,” that is, he “consciously disregarded the substantial and unjustifiable risk” attendant to pointing the gun at Fowler and pulling the trigger without first checking to see that it was unloaded, a “gross deviation from the standard of care which a reasonable person would exercise in [this] situation.” (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 6.) To the extent that such “recklessness,” by definition, presupposes misconduct engaged in “consciously,” it is surely susceptible to being deterred through a sentence of imprisonment, and by deterring such “recklessness,” the commission of the crime of involuntary manslaughter will thereby be deterred as well.

Finally, Murray argues that the circuit court erred when it refused to impose a sentence of probation on the grounds that probation would deprecate the seriousness of Murray’s conduct. This argument must also fail. The decision to grant or deny probation is a matter within the discretion of the trial court. In reviewing a trial court’s decision not to grant probation, this court’s inquiry is limited to determining whether the trial court did in fact exercise its discretion or whether it abused that discretion by acting in an arbitrary manner. (People v. Florey (1987), 153 Ill. App. 3d 530, 540, 505 N.E.2d 1096, 1103.) There is no cognizable basis for finding an abuse of discretion here. The judgment of the circuit court of St. Clair County is therefore affirmed.

Affirmed.

H. LEWIS and WELCH, JJ., concur.


author: JUSTICE HAASE

text:
    MARCIA KRUSE, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC AID et al., Defendants-Appellees.
    Third District
    No. 3—91—0603
    Opinion filed July 1,1992.

      Gerald Brask, Jr., of Prairie State Legal Services, Inc., of Rockford, and Prairie State Legal Services, Inc., of Rock Island (Carol Pentuic, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Dora L. McNew, Assistant Attorney General, of Rockford, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court;

The plaintiff, Marcia Kruse, began receiving public aid benefits in 1984. In 1989, the defendant, the Illinois Department of Public Aid (IDEA), terminated her assistance and issued a notice stating that it had overpaid her $8,913. The plaintiff subsequently filed a claim for administrative review. On review, the IDEA reduced the overpayment amount to $2,019. The circuit court of Rock Island County affirmed that decision. The plaintiff appeals.

The record shows that the plaintiff began receiving an Aid to Families with Dependent Children (AFDC) grant in 1984. At the time that the plaintiff applied for assistance, she indicated on her application that she had two small life insurance policies. The IDEA determined annually that the plaintiff was financially eligible for aid from 1984 through 1989. Each of those years, the IDEA conducted a recertification procedure as required by its policy. The plaintiff always provided the IDEA with all the necessary information it needed to make a proper eligibility determination.

In September 1989, an IDEA caseworker discovered that the agency had been erroneously calculating the cash value of the plaintiff’s insurance policies. The policies were valued at $3,019.29, which exceeded the defendant’s maximum asset level of $1,000. Apparently, all the previous IDEA caseworkers in charge of the plaintiff’s file used the wrong tables to calculate the value of the policies. Given that the plaintiff’s assets exceeded the maximum amount allowable to qualify for assistance, the IDEA terminated her aid and issued a notice of overpayment totaling $8,913. The overpayment was calculated from September 1986 through October 1989, which covered 38 monthly benefit checks.

The plaintiff testified at the administrative hearing that if she had been advised correctly about her eligibility in 1986, she would have cashed in her insurance policies. She noted that in 1986 she had exceeded the asset limit for that year by only $201. Thus, she could have easily remedied any eligibility problems by spending the difference.

On administrative review, the IDPA reduced the overpayment amount to $2,019, finding that the plaintiff was only required to repay the amount that her total assets exceeded the IDPA’s $1,000 limit. The IDPA noted that it would recoup the overpayment out of any future public aid checks the plaintiff would receive at a rate of 10% of her monthly benefit.

On appeal, the plaintiff argues that the IDPA should be estopped from collecting the overpayment made to the plaintiff.

We agree. Although the application of the estoppel doctrine against the State is little favored, it may be invoked under circumstances where it would be inequitable to permit the State to stultify itself by retracting what its officers had previously done. The doctrine is invoked only to prevent fraud and injustice. (Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415.) However, before an estoppel against a government agency can be found, it must be shown that an affirmative act occurred on the part of the agency and that the affirmative act of the agency induced substantial reliance by the litigant and the complained-of action by the litigant. See Schumann v. Kumarich (1981), 102 Ill. App. 3d 454, 430 N.E.2d 99; Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 350 N.E.2d 17.

Historically, under existing Illinois case law, the affirmative act inducing reliance must be the act of a governmental body itself, rather than the unauthorized act of a ministerial officer or a ministerial miscalculation. (See Schumann, 102 Ill. App. 3d 454, 430 N.E.2d 99; Lake Shore Riding Academy, 38 Ill. App. 3d 100, 350 N.E.2d 17; County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376.) Defendant, IDPA, argues in this case that there is no act of the governmental body itself involved therein. Rather, the action complained of is a ministerial miscalculation made by a ministerial officer. Defendant cites the general rule that “[ajnyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority, and that this is so even though the agent himself may have been unaware of the limitations on his authority. (Federal Crop Insurance Corp. v. Merrill (1947), 332 U.S. 380, 384, 92 L. Ed. 10, 15, 68 S. Ct. 1, 4.) In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights.” Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157,160-61,171 N.E.2d 605.

The question then presented to this court is whether there are any circumstances under which an administrative agency such as IDPA can be estopped from enforcing a public right against a private citizen where a ministerial officer of the Department has made a miscalculation which has induced substantial reliance upon the private litigant to the private litigant’s detriment. In the instant case, the detriment to the private litigant caused by the agency’s miscalculation is substantial. After all, to a public aid recipient the amount of $2,019 is a significant sum. The public right to recoup the overpayment of $2,019 seems to this court to be minimal in the light of the detriment caused to the plaintiff by her reliance on the ministerial actions of the IDPA. Here, the plaintiff provided the IDPA with all the necessary information it needed to make a correct eligibility determination. In terms of annual income, the plaintiff properly qualified for aid. The IDPA erroneously calculated the cash value of two small insurance policies of the plaintiff for a period of five years. Had the calculation been correct, and had the plaintiff been informed as to the correct calculation, the cash value of the plaintiff’s insurance policies in 1986 only exceeded the IDPA asset limit by $201. The plaintiff would have merely cashed in her insurance policies, spent the $201 difference, and qualified for public aid.

The clients of the IDPA are, by definition, poor people who are often unsophisticated in matters of government relations. We find that it is fair and equitable for public aid recipients to rely on the calculations and determinations of the officers of the IDPA. We further find that as a matter of the public policy of this State, persons who deal with IDPA should be able to rely on the actions of IDPA’s officers and agents. Likewise, we hold that it is unfair, inequitable, and unjust for the IDPA to repeatedly review accurate information provided by a claimant, advise the claimant incorrectly and then sue the public aid recipient for the overpayment which is a result of agency negligence. The burden to supervise the employees of IDPA should rest on IDPA and not on the clients of the agency. It appears from the record in this case that the miscalculations involved may have been made by several IDPA employees. We hold that IDPA has an affirmative duty to provide adequate supervision for its employees.

In holding that the IDPA is estopped from recouping $2,019 from the plaintiff herein, we express no opinion about other situations where the miscalculation should be obvious to a claimant, or where the overpayment is a result of a single miscalculation. Those situations are not presented here. The fact that the miscalculation in this case occurred over a period of five years is especially significant to the court in our ruling.

We recognize that our decision herein is a departure from existing case law in that the affirmative act of IDPA which we are relying upon to estop them from asserting a claim for recoupment of public monies is the act of a ministerial officer. However, we believe that the public policy in favor of accountability of the IDPA outweighs the minimal benefit to the State of recovering $2,019 from a poor public aid recipient.

Accordingly, the judgment of the circuit court of Rock Island County is reversed.

Reversed.

BARRY, P.J., and McCUSKEY, J., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE WILLIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—91—2794
    Opinion filed July 10,1992.
    Rehearing denied August 28,1992.

      Rita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Rogelio Pena, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a bench trial, defendant George Willis was found guilty of voluntary manslaughter and sentenced to 10 years’ imprisonment. On direct appeal, his conviction was affirmed, but the cause was remanded for resentencing because the trial court imposed the sentence based on the aggravating factor that defendant’s conduct resulted in the taking of a life. (People v. Willis (1991), 210 Ill. App. 3d 379, 569 N.E.2d 113.) Following a new sentencing hearing, defendant was again sentenced to 10 years’ imprisonment. Defendant challenges the sentence on the following bases: (1) the trial court abused its discretion by improperly holding defendant to a higher standard of rehabilitation than is required by law; (2) the court’s finding that mitigating factors were not present was against the manifest weight of the evidence; and (3) the court had no grounds to impose the same sentence where the original sentence was vacated because of the court’s consideration of an improper aggravating factor, and where no new matters in aggravation were presented at the resentencing hearing.

At the new sentencing hearing, decedent’s mother read a victim-impact statement. The State then referred to the brutal character of defendant’s conduct in the commission of the offense. Specifically, the State pointed out that defendant inflicted numerous stab wounds to decedent. In mitigation, defendant’s landlady, supervisor and brother testified concerning defendant’s good character and peaceful nature. Prior to the hearing, defendant had been employed for two years for a railroad company. He began his employment as a laborer on a “steel gang” and was promoted to machine operator. His supervisor recalled one instance where he unjustifiably “came down pretty hard” on defendant and defendant did not become aggressive or lose his temper. The record contained a statement from Ralph Stevens, a tavern owner who knew defendant. Stevens recalled an incident at his tavern in 1988. He was talking with defendant when four men entered the tavern. According to Stevens, one of the men “appeared to be trying to provoke George.” Defendant ignored the man. When Stevens told the man to leave defendant alone or vacate the premises, the man grabbed a club Stevens kept on a shelf and threatened Stevens. When the man moved as if to hit Stevens, defendant disarmed him. “The three other men jumped on George from behind, but he was able to discourage their attempts to fight and they then withdrew and left the tavern.” Stevens concluded, “I have only admiration for his reserved behavior, and bravery that night, as well as his ability to defuse that situation.” Defendant was honorably discharged from the army and obtained an associate of arts degree from a junior college. Defendant had no prior convictions.

After hearing matters in aggravation and mitigation, the court sentenced defendant to 10 years’ imprisonment, stating:

“[T]he Appellate Court points out that the manner in which the crime was committed is something that can appropriately be considered, as well as the factors listed in the statute in mitigation and the other factors listed in aggravation.
It’s true that the defendant has no history of prior delinquency or criminal activity and that he has no history of anything of that sort subsequent to this offense as well.
And I considered that in arriving at the original sentence, and I am still considering it today.
It is also true that at least in his initial stabbing of Lee Cummings, George Willis acted under strong provocation and, in fact, I found that the first stabbing was an act conducted in self-defense.
But the fact remains that George Willis stabbed Lee Cummings ten more times after that, and four of them were in the back while Lee Cummings was begging and pleading for his life.
I am reviewing in my mind — or I have reviewed in my mind, I should say, whether or not the character and attitude of the defendant indicate that he is unlikely to commit another crime.
And whether or not it’s likely that the circumstances would recur, or whether these are circumstances that are unlikely to recur, and I am not convinced enough of that to find those factors exist in mitigation.
Arguments with other people can always occur. Arguments with people in superior positions can always occur. Arguments that lead to physical violence can occur.
* * *
I think the statement made by defense counsel in argument in mitigation, in fact, correctly sums up the situation here.
She said that George Willis has lived the last five years just like he lived the first 32, and I agree with that.
I think that he has done the best he could do for himself and in the intervening years between the killing of Lee Cummings and today’s resentencing hearing George has kept himself busy. He’s improved his personal income. He’s working on his education. He’s joined some social organizations. He’s working on his own self-esteem.
But I also feel that this is for himself and while he may have been given the last four years, or five years, in which to do that by virtue of the fact that he was not incarcerated, that there has not been a significant change that’s been demonstrated to me by the evidence presented and the arguments of the attorneys that would change my opinion as to the likelihood — Let me put it this way.
As to the necessity for protecting society, the serious nature of the offense, and the qualities of the defendant himself.
I agree Mr. Willis hasn’t made it any worse, and I’m certainly glad of that. But I haven’t really heard anything here that would lead me to believe me that he’s made it better in such a way that probation would be an appropriate disposition in this case. I don’t think it is.
Having considered all the factors listed by the statute, all of the evidence that’s been presented to me today, and the arguments, the sentence that I feel is appropriate here is again a period of incarceration.
And my original determination as to the period that would be appropriate has not changed.”

A sentence within the statutory limitations will not be disturbed on review absent an abuse of discretion. (People v. Lucas (1991), 215 Ill. App. 3d 148, 156, 574 N.E.2d 850.) However, if the trial court has abused its discretion, this court has the power and authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) to reduce the sentence imposed by the trial court. While we recognize that the reviewing court must exercise its authority under Rule 615 sparingly, it is our opinion that this is a proper case in which to exercise our authority to reduce defendant’s sentence.

When we remanded this case to the trial court to conduct a new sentencing hearing, we instructed the trial court that it may not consider as an aggravating factor that defendant’s conduct resulted in the taking of a life. At the second sentencing hearing, the State introduced essentially the same evidence in aggravation that it had introduced in defendant’s first sentencing hearing. This evidence concerned the amount of stab wounds defendant inflicted on the victim and the manner in which the victim died. While the State introduced a victim-impact statement read by the victim’s mother, this statement was virtually identical to the statement that had been read by the victim’s cousin in defendant’s first sentencing hearing. Despite the fact that the trial court had one less aggravating factor to consider, the trial court again sentenced defendant to 10 years.

A similar situation occurred in People v. McCumber (1986), 148 Ill. App. 3d 19, 499 N.E.2d 139, wherein the court vacated the defendant’s 10-year sentence for voluntary manslaughter because of the trial court’s consideration of improper factors. On remand, the trial court again imposed a 10-year sentence, but this time the sentences were to run concurrently, rather than consecutively. In reducing the defendant’s sentence to seven years, the appellate court found that it had engaged in an act of futility in remanding the case for a resentencing hearing since defendant’s original sentence was determined after considering improper factors and at defendant’s second sentencing hearing the judge imposed the same sentence.

In the instant case, while no new aggravating evidence was introduced at defendant’s second sentencing hearing, new mitigating evidence was submitted. At the second hearing, as in the initial sentencing hearing, defendant introduced evidence that he had no prior criminal record, had a peaceful nature prior to the incident, served in the military and received an honorable discharge, and received a degree from junior college. At the resentencing hearing, defendant submitted additional mitigating evidence pertaining to his conduct since the stabbing while defendant was free on appeal bond. Defendant introduced evidence of his peaceful nature since the stabbing, the counselling he received in order to help him deal with anger and aggression, his continued schooling and his steady employment. This mitigating evidence indicates that defendant has strong potential for rehabilitation. See People v. Walker (1972), 4 Ill. App. 3d 294, 280 N.E.2d 726 (in reducing defendant’s sentence, the court observed that the mitigating evidence introduced at the resentencing hearing “from the vantage point in time four years after the commission of the offense” showed “that defendant has sufficiently established a more favorable potential for rehabilitation so as to qualify this as an appropriate case for us to reduce defendant’s sentence”). 4 Ill. App. 3d at 296.

Based on these particular circumstances, where no new factors in aggravation were introduced, the trial court had one less aggravating factor to consider, and new mitigating evidence was introduced, we exercise our authority under Supreme Court Rule 615 to reduce defendant’s sentence to seven years.

Accordingly, defendant’s sentence is affirmed as modified.

Affirmed as modified.

LORENZ and MURRAY, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    LEONARD FISHER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (4456 Oakton Street Corporation et al., Appellees).
    First District (Industrial Commission Division)
    No. 1—91—2757WC
    Opinion filed July 10,1992.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lisa Thaviu, of counsel), for appellant.
    Roddy, Power, Leahy, Guill, Zima & Gifford, Ltd., of Chicago (John H. Guill and W. Daniel Leahy, of counsel), for appellees.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Leonard Fisher brings this appeal from an order of the circuit court of Cook County dismissing his petition for judicial review because that court was without jurisdiction to review the decision of the Illinois Industrial Commission (Commission). Respondents in this case are the 4456 Oakton Street Corporation and Travelers Insurance Company. In spite of the ruling as to jurisdiction, the circuit judge’s order additionally decided that the evidentiary rulings of the Commission were not contrary to the law and the decision of the Commission was not against the manifest weight of the evidence.

In this appeal, the issues raised are (1) whether the circuit court correctly determined it had no jurisdiction to review the decision of the Commission because it had no jurisdiction on an earlier occasion at which time the circuit court ordered a remand to the Commission; (2) if jurisdiction did exist at the earlier circuit court proceeding, whether the circuit court properly ordered a remand of the Commission’s summary affirmance directing the Commission to consider the record; and (3) whether the Commission properly conducted a trial de novo and whether an attorney for one of the parties was properly allowed to testify as a witness at the hearing. Since we determine the circuit court lacked subject-matter jurisdiction to order the remand to the Commission, the remaining issues will not be addressed.

The order from which this appeal is taken begins:

“This Court finds that it has no jurisdiction to conduct a review of the Illinois Industrial Commission’s, DECISION AND OPINION ON REMAND, dated November 22, 1989, because it initially had no jurisdiction to order the remand upon which this review is predicated.” (Emphasis in original.)

The procedural history of this cause began when claimant filed his application for adjustment of claim on September 1, 1978. In that application, the claimant originally designated the date of accident as August 25, 1978, but it was later amended to July 2, 1977. The application described the accident as exposure to chemicals and the injury as damage to lungs and central nervous system. The arbitrator’s decision, as corrected on February 20, 1980, found that the injury occurred on August 25, 1978, and that Travelers Insurance Company should be dismissed and held not liable; made an award in favor of claimant against respondent, 4456 Oakton Street Corporation, in the sum of $321.49 per week for life, on account of claimant being wholly and permanently incapable of work; and further found that claimant was entitled to the sum of $23,790.26, being the amount of compensation that had accrued from August 25,1978, to January 26,1980.

The claimant filed the initial petition for review in the circuit court following a summary affirmance of the arbitrator’s decision by the Commission. The Commission issued its summary affirmance on the ground that the claimant had failed to file a brief with the Commission. The summary affirmance of the Commission was dated October 30, 1986. Prior thereto, because the record was lost or destroyed, a trial de novo had been had before the Commission. On review, the circuit court remanded the cause to the Commission for a consideration of the record. The circuit court’s order was filed February 17, 1987. On remand, in a decision dated November 27, 1989, the Commission affirmed the arbitrator’s February 20, 1980, decision. In so doing, the Commission made additional findings which are not relevant to the jurisdictional issue before this court.

Claimant sought review of the November 27, 1989, decision of the Commission in the circuit court. The result was the order from which this appeal is taken. In determining that the circuit court had no jurisdiction in this matter, the circuit judge made the following findings:

“a. Respondent correctly points out that this Court’s order of remand was void ab initio because it had no subject matter jurisdiction due to Petitioner’s failure to file the requisite written request for summons (Section 19(f)(1)) in the original review of this matter (86 L 51330). That review was dismissed on 11/ 19/1990 without any attempt to consolidate into this matter.
b. Although this present request for review of the decision on remand has complied with all requisite provisions of Section 19(f)(1), it cannot cure the original jurisdictional defect. Although it is sometimes proper to correct a mistake on appeal, it is not proper to belatedly supply a jurisdiction[al] element. Illinois Armored Car Corp. v. Industrial Commission [(1990),] 205 Ill. App 3d 993.
c. Therefore, the Commission’s original affirmation of the Arbitrator’s decision must stand.”

The written request for summons is required by section 19(f)(1) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f)(1)), which statute provided in relevant part:

“A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons.” (Emphasis added.)

Summonses were sent to respondents and the Commission on November 17, 1986. Filed in the circuit court on that date was a certificate of mailing the summonses. No objection was made by respondents to the jurisdiction of the circuit court in the proceeding which resulted in remand and respondents participated in that proceeding. However, the issue of subject-matter jurisdiction cannot be waived and may be raised collaterally in a second appeal. (Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 509, 451 N.E.2d 866, 867.) It is claimant’s contention that there was substantial compliance with the provisions of the Act and, therefore, that the circuit court incorrectly determined the issue regarding subject-matter jurisdiction.

In Whitmer v. Industrial Comm’n (1989), 187 Ill. App. 3d 409, 549 N.E.2d 353, the claimant sought review in the circuit court and filed a summons to the Commission, summons to respondent’s attorney, a certificate of mailing, and a receipt of payment for the record of the Commission. However, a separate document requesting issuance of summons was not filed. In Whitmer, the court stated:

“We deem the failure to file any written request to be substantive, since to hold otherwise would completely emasculate a clear requirement of section 19(f)(1). We conclude the trial court properly determined it lacked subject-matter jurisdiction because of claimant’s failure to strictly comply with the statute.” Whitmer, 187 Ill. App. 3d at 411, 549 N.E.2d at 354.

Claimant relies on Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, 507 N.E.2d 878, Mitchell v. Industrial Comm’n (1986), 148 Ill. App. 3d 690, 499 N.E.2d 999, and Bethlehem Steel Corp. v. Industrial Comm’n (1968), 41 Ill. 2d 40, 241 N.E.2d 444. In Whitmer, the Chadwick decision was considered and distinguished because in Chadwick a written request was made, although it was in improper form. (Whitmer, 187 Ill. App. 3d at 411, 549 N.E.2d at 354.) Mitchell was also a case in which the proper form of the document was considered. The court noted the contents of the writs of certiorari and scire facias were identical to the contents of the summons required by Supreme Court Rule 292 (103 Ill. 2d R. 292) and that the character of the pleading is determined from the content, not its heading. In Mitchell, the proper procedure was employed, but the document simply had the incorrect heading. That is distinguishable from the case at bar wherein the request for issuance of summons was not filed at all. Similarly, Bethlehem Steel is distinguishable. In that case, the issue was whether the praecipe was sufficient since it failed to contain the name of the law firm acting as attorneys of record. (Bethlehem Steel, 41 Ill. 2d at 44, 241 N.E.2d at 446.) Bethlehem Steel did not consider the complete absence of filing of the statutorily required document.

We recently reaffirmed Whitmer in Taylor v. Industrial Comm’n (1991), 221 Ill. App. 3d 701, 703, 583 N.E.2d 4, 6. Based on Whitmer and Taylor, the circuit court did not have subject-matter jurisdiction to review the final decision of the Commission, and the order of remand was void, as were all subsequent proceedings. Accordingly, the circuit court properly dismissed the cause for want of subject-matter jurisdiction. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

RAKOWSKI, WOODWARD, STOUDER and H. LEWIS, JJ., concur.