author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE WHITE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—92—3416
    Opinion filed June 29, 1993.

      Allan A. Ackerman, Joelle H. Hollander, and Neil H. Cohen, all of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and William L. Toffenetti, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Tyrone White, appeals his conviction on two counts of delivery of cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(a)(2)(A) (now 720 ILCS 5707401(a)(2)(A) (West 1992))), for which he was sentenced to two, concurrent six-year terms of imprisonment. Defendant presents as issues for review whether (1) the circuit court prejudged the case or acted as an advocate for the prosecution, (2) he was denied his right to effective assistance of counsel, and (3) he was entrapped as a matter of law. We affirm.

Chicago police officer Steven Haras testified that defendant delivered cocaine to Haras on three separate days as he was working undercover in February 1990. On February 21, defendant called Haras’ pager. Haras returned the call and told defendant that he wanted to purchase one ounce of cocaine. Defendant later called back with a price, $1,150, and they agreed to meet. When Haras arrived at 32nd and King Drive, defendant entered Haras’ car and told him to drive to an apartment building located at 401 East 32nd Street. Defendant exited the car and went inside. Five minutes later, defendant returned. He handed Haras a clear plastic bag containing white powder in exchange for $1,150 in cash. The bag contained 25.9 grams of cocaine.

On February 27, defendant called Haras’ pager. They agreed to meet at the same place and exchange two ounces of cocaine for $2,150. When Haras arrived, defendant exited his car and entered Haras’ car. They drove to the same apartment building. Defendant went inside, returned, and handed Haras a bag in exchange for $1,100. Defendant then reentered the building, returned with a second bag, and handed it to Haras in exchange for $1,050. The two bags contained a total of 51.08 grams of cocaine.

On cross-examination, Haras testified that Steven Skolnick, an informer brought to the Chicago police department by State’s Attorney investigators, introduced him to defendant on February 7 at an apartment on 52nd and Drexel. Haras gave defendant $350. Defendant went into a bedroom and returned, with cocaine, which he gave to Haras. Haras had no knowledge of what Skolnick said to defendant to persuade him to deliver cocaine.

Defendant testified that he first met Skolnick in 1985 when they worked together» They became friends and often socialized after work. Skolnick sold marijuana and cocaine. At first, Skolnick gave defendant drugs to use. Later, defendant purchased cocaine from Skolnick for personal use. They were “very good friends.” Defendant was addicted to cocaine at that time.

In 1987 Skolnick was severely injured in a motorcycle accident. He was in a full-body cast, had damaged vision, and slurred his speech. Skolnick’s live-in help sold drugs for him. Defendant was still purchasing drugs from Skolnick in 1988. Skolnick was defendant’s only source of supply. Defendant gave up drugs in September 1988 and no longer saw Skolnick.

In October 1989, Skolnick called defendant, claiming to be behind in his bills and unable to work because of his injuries. Skolnick asked defendant if he knew someone who could supply him with drugs. Defendant refused to get involved.

Skolnick called defendant five or six times per month for the next four or five months. He left messages with defendant’s wife and on the answering machine. Skolnick reached defendant on the telephone on or about December 26. Skolnick told defendant that things were worse and asked why defendant had not returned his calls. Defendant again refused to get involved.

On New Year’s Eve, defendant stopped by a party at the invitation of a woman named Cheryl. Floyd, the host, was supplying drugs to the guests. Defendant soon left. On February 2, 1990, Skolnick reached defendant on the telephone again. He said he barely had money for food and was disappointed in defendant as a friend. Defendant then told Skolnick about Cheryl and agreed to call her. Defendant agreed to call Cheryl because of Skolnick’s constant calling; his wife “automatically assumed” that he may be doing drugs again because Skolnick, a known drug dealer, continued calling him as he had done in the past when defendant owed him money.

Through Cheryl, defendant contacted Floyd. A meeting was arranged for February 7 at an apartment on 52nd and Drexel. Defendant waited outside for Skolnick, who arrived with Haras. Once in the apartment, Floyd remained in the bedroom "and refused to meet Skolnick because Haras was with him. Skolnick gave defendant the money, which defendant took into the bedroom and gave to Floyd. Floyd gave defendant the cocaine, which he in turn gave to Skolnick. Defendant was not paid for this service.

Another meeting was set for February 21. Floyd told defendant to act as the middle man, bringing the money up and the drugs back down-. Skolnick said he was unable to come because of his health. Defendant met Haras, who gave him $1,150. Defendant took the money to Floyd and carried the drugs down to Haras. He received no payment for this. On February 27, at Skolnick’s request, the transaction was repeated for twice the amount.

Later, Skolnick called defendant and requested him to obtain seven ounces. Skolnick offered to give defendant two ounces to set him up as a drug seller for Skolnick. Defendant refused and told him to quit calling. Haras called defendant one month later and repeated the same offer, which defendant again refused. Subsequently, defendant was arrested.

Defendant’s wife testified and corroborated defendant’s testimony as to the frequency of Skolnick’s telephone calls.

Sylvester Davis testified that he was present at the February 7 exchange. When he asked defendant “what was going on,” defendant said he was helping his friend Skolnick, who was in trouble.

I

Defendant initially contends that the circuit court prejudged the case and acted as an advocate for the prosecution.

The State counters that defendant waived review of these issues. The application of the waiver rule is less rigid where the basis for the objection is the circuit judge’s conduct, as here. (People v. Davilla (1992), 236 Ill. App. 3d 367, 379, 603 N.E.2d 666.) Therefore, we review these issues on their merits.

Defendant claims that the circuit court improperly prejudged his case because, during defense counsel’s opening statement, the court asked: “You’re sure this is not a jury trial?”

Prejudgment is the antithesis of a fair trial. (People v. Diaz (1971), 1 Ill. App. 3d 988, 992, 275 N.E.2d 210.) A fair and impartial trial is a judicial process by which a court hears before it decides; by which it conducts a dispassionate inquiry and renders judgment only after receiving evidence. Diaz, 1 Ill. App. 3d at 992.

The court’s question, quoted abbve, does not demonstrate any prejudgment, but merely indicates the court’s willingness to let defendant reconsider his jury waiver. This case is unlike People v. Kennedy (1989), 191 Ill. App. 3d 86, 547 N.E.2d 634, cited by defendant, because there the court improperly considered matters outside the record and expressed several preconceived notions about the defense witnesses. Also unlike this case is Diaz (1 Ill. App. 3d 988, 275 N.E.2d 210), because there the court improperly made premature findings of guilt. We are not persuaded that the circuit court prejudged defendant’s case.

Defendant submits that the circuit court abandoned its role as an impartial tribunal and assumed that of a prosecutor.

Following defendant’s wife’s cross-examination by the State, the court, sua sponte, made the following inquiry of her:

“Prior to the October phone calls, getting back to 1986 when [Skolnick] would call, did you know at that time that your husband was using drugs and that the calls were for payment of drugs that had been advanced?”

Defendant’s wife answered in the negative. During closing argument, defense counsel stated that the testimony of defendant and his wife was uncontradicted and unimpeached. The court challenged this conclusion, insisting that the wife’s answer to the court’s question constituted impeachment because she denied any knowledge of defendant’s drug use and monies he owed to Skolnick. Defendant argues that there is simply no way to separate the court’s “interrogation” of his wife from the court’s finding of guilty.

A circuit court is free to examine witnesses in its discretion, provided it does not become an advocate, thereby abandoning its function as an impartial tribunal. (People v. Griffin (1990), 194 Ill. App. 3d 286, 296, 550 N.E.2d 1244.) The court may be justified in making such inquiries as a seeker of the truth. (People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817.) The danger of prejudice due to judicial questioning decreases sharply in cases tried without a jury, as here. (Griffin, 194 Ill. App. 3d at 296.) The relevant inquiry in a non-jury trial is whether the tenor of the court’s questioning indicates that the court has prejudged the outcome before hearing all the evidence. Griffin, 194 Ill. App. 3d at 296.

In the present case, the court’s single question to defendant’s wife was neutral in tone: if she had answered affirmatively rather than negatively, defendant’s credibility would have been bolstered rather than marred. Consequently, the tenor of the court’s question shows no prejudgment. We conclude that the circuit court did not abandon its role as an impartial tribunal and assume that of a prosecutor.

II

Defendant next alleges that he was denied his right to effective assistance of counsel.

Ineffective assistance of counsel requires a defendant to show that (1) his defense counsel’s performance was deficient by identifying specific acts or omissions of counsel that, in the light of all the circumstances, were outside the range of professionally competent counsel; and (2) but for defense counsel’s deficient performance, the outcome would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-97, 104 S. Ct. 2052, 2064-68.

A

Defendant claims that his trial counsel was ineffective first because he did not understand the affirmative defenses of duress, coercion, and entrapment. Trial counsel may be deemed ineffective for misunderstanding the applicable law. (People v. Hartfield (1992), 232 Ill. App. 3d 198, 207, 596 N.E.2d 703; see People v. Chandler (1989), 129 Ill. 2d 233, 241-50, 543 N.E.2d 1290.) Here, however, defendant’s argument is without merit.

In arguing that his trial counsel misunderstood the affirmative defenses of duress and coercion, defendant focuses on two words used in counsel’s opening statement to claim that counsel relied on these defenses at trial. Defendant then explains at length why these two defenses are inapplicable. A review of the record and a plain reading of counsel’s opening statement show that counsel never asserted duress or coercion as a defense; rather, he merely used the terms in their nonlegal sense to support his proffered defense of entrapment. Counsel obviously understood that these two defenses are inapplicable.

Defendant contends that his trial counsel did not understand the affirmative defense of entrapment because he never cited cases nor did he refer to predisposition. Counsel is not required to cite cases. Additionally, although counsel never specifically referred to predisposition, he consistently argued that defendant was induced by Skolnick to deliver the cocaine and would not have done so but for Skolnick’s inducement. Counsel’s arguments and conduct demonstrate that he understood the theory of entrapment.

Defendant also insists that his trial counsel misunderstood the entrapment defense because he attempted to convince the court that defendant “was simply helping a friend in need” or “doing a friend a favor.” Defendant correctly cites several cases holding that appeals to friendship are not sufficient to support the defense of entrapment. (See, e.g., People v. DeBeck (1990), 204 Ill. App. 3d 15, 18, 561 N.E.2d 1081.) Here, counsel never asserted that helping or doing a favor for a friend was a defense. It was defendant himself and another defense witness, Davis, who offered these explanations for defendant’s drug deliveries on the stand. Counsel cannot be held responsible for the testimony of defense witnesses.

B

Defendant next asserts that his trial counsel was ineffective because he failed to call Skolnick as a witness. A failure by trial counsel to contact witnesses who possibly could have a serious impact on a case conceivably may support a claim of ineffective assistance of counsel. People v. Finley (1991), 222 Ill. App. 3d 571, 584, 584 N.E.2d 276.

Defendant claims that this case is identical to People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875. There, the appellate court reversed a conviction because defense counsel was ineffective when he set forth the affirmative defense of entrapment without taking reasonable steps to locate the confidential informant. (Solomon, 158 Ill. App. 3d at 436-37.) Solomon is distinguishable from the present case because there counsel made no effort to locate the informant! In contrast, here, trial counsel compelled production of Skolnick, interviewed him, and then apparently chose not to call him as a witness. Under the circumstances of this case, we conclude that counsel’s decision was a matter of trial strategy. Defendant’s claim of ineffective assistance of counsel fails in this instance as well.

Ill

Defendant lastly asserts that he was entrapped as a matter of law into delivering cocaine by Skolnick, the State informant.

The question of whether entrapment took place is one for the finder of fact and will not be disturbed on appeal unless the reviewing court concludes that defendant was entrapped as a matter of law. (People v. Poulos (1990), 196 Ill. App. 3d 653, 658, 554 N.E.2d 448.) In pleading entrapment, an accused necessarily admits having committed the crime, albeit only because of improper governmental inducement. (People v. Potthast (1991), 219 Ill. App. 3d 714, 725, 579 N.E.2d 1027.) Once an accused presents slight evidence of entrapment, it becomes incumbent upon the State to prove, in addition to each of the statutory elements of the offense, the absence of entrapment beyond a reasonable doubt. Potthast, 219 Ill. App. 3d at 725.

Here, defendant presented sufficient evidence of inducement to shift the burden to the State to prove beyond a reasonable doubt that defendant was not entrapped. Defendant and his wife testified that Skolnick, whom defendant considered a friend in great need, called defendant several times before convincing him to deliver cocaine.

Where a defendant already has the intent to commit a crime and does so merely because an officer affords him an opportunity to commit the crime or purposefully aids and encourages him in its perpetration, there is no entrapment. (People v. Gaytan (1989), 186 Ill. App. 3d 919, 925, 542 N.E.2d 1163.) For an entrapment defense to succeed, the evidence must disclose an improper inducement on the government agent’s part and a lack of predisposition to commit the crime on defendant’s part. (People v. Katsigiannis (1988), 171 Ill. App. 3d 1090, 1097, 526 N.E.2d 508.) The absence of a defendant’s predisposition to commit a crime is one of the crucial elements of an entrapment defense. People v. Schillaci (1988), 171 Ill. App. 3d 510, 517, 526 N.E.2d 871.

The determination of a defendant’s predisposition to commit a crime rests upon the facts of the case. (Katsigiannis, 171 Ill. App. 3d at 1097.) Factors to be considered in assessing predisposition include: (1) defendant’s initial reluctance or ready willingness to commit the crime; (2) defendant’s familiarity with drugs and willingness to accommodate thé needs of drug users; (3) defendant’s willingness to make a profit from the illegal act; (4) defendant’s prior or current use of illegal drugs; (5) defendant’s participation in testing or cutting the drugs; (6) defendant’s engagement in a course of conduct involving similar offenses; (7) defendant’s ready access to a drug supply; and (8) defendant’s subsequent activities. Poulos, 196 Ill. App. 3d at 661.

Here, the circuit court, as the trier of fact, expressly found that defendant was predisposed to commit the crime and therefore adjudged him guilty. It based this finding on appropriate factors. Defendant made four drug deliveries on three different occasions, with Skolnick present for only the first. Defendant himself contacted the drug purchaser, Officer Haras, prior to most of the deliveries and repeatedly dealt directly with Haras. Moreover, defendant had a ready access to a drug supply as he also dealt directly with his own drug source, Floyd. Lastly, defendant admitted his prior addiction to cocaine.

Defendant correctly notes that the State’s failure to call the informant to testify gives rise to an inference against the State. (Poulos, 196 Ill. App. 3d at 661.) Any inference arising out of the State’s failure to call the informant, however, can be balanced by evidence of predisposition. (People v. Tipton (1980), 78 Ill. 2d 477, 488, 401 N.E.2d 528; People v. Miszkiewicz (1992), 236 Ill. App. 3d 411, 430-32, 602 N.E.2d 1312.) We decline to disturb defendant’s conviction in light of this more than sufficient evidence of defendant’s predisposition.

For the reasons set forth, we affirm defendant’s conviction.

Affirmed.

McCORMICK, P.J., and DiVITO, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    BETTY ALSUP, as Mother and Guardian of Stacey Alsup, Plaintiff-Appellee, v. SYCAMORE MUNICIPAL HOSPITAL, Defendant-Appellant (Children’s Memorial Hospital et al., Defendants).
    First District (2nd Division)
    No. 1—92—1771
    Opinion filed June 29, 1993.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Anne Scheitlin Johnson, of counsel), for appellant.
    Law Office of Kenneth C. Chessick, M.D., S.C., of Chicago (Kenneth C. Chessick, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Sycamore Municipal Hospital (Sycamore), brings this interlocutory appeal pursuant to Supreme Court Rule 306(a)(1)(iv) (134 Ill. 2d R. 306(a)(1)(iv)), from an order of the circuit court of Cook County denying its motion to transfer venue to De Kalb County. Sycamore contends on appeal that the court erred in denying its motion to transfer venue pursuant to section 2 — 103(a) of the Code of Civil Procedure (Code), which provides that actions against a municipal corporation must be brought in the county where its principal office is located or where the transaction giving rise to the cause of action occurred. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 103(a) (now 735 ILCS 5/2 — 103 (West 1992)).) Sycamore also contends that the court erred in denying its subsequent motion to transfer venue under the general venue provision of the Code. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101 (now 735 ILCS 5/2 — 101 (West 1992)).) For reasons which follow, we affirm.

Plaintiff, Betty Alsup, as guardian of her daughter Stacey Alsup (minor plaintiff), filed this action in the circuit court of Cook County against Sycamore and various other defendants alleging negligence in the treatment of the minor plaintiff. Counts IV and V were directed against Dr. John Eggars and Sycamore, respectively, and alleged negligence during the birth of the minor plaintiff at Sycamore’s facility in De Kalb County on August 7, 1973. Counts I through III were directed at Children’s Memorial Hospital (Children’s) and various members of its staff based upon occurrences that took place at Children’s in May of 1982.

Essentially, the complaint alleges that as a result of negligence on the part of Dr. Eggars and Sycamore during the birth of the minor plaintiff, she suffered severe injuries, including complications of hydrocephalus, encephalopathy and mental retardation. She was taken to Children’s for treatment on August 11, 1973. In May of 1982, the minor plaintiff again was presented at Children’s for the diagnosis and treatment of medical and surgical conditions involving hydrocephalus, infected and malfunctioning ventriculoperitoneal shunts and related medical conditions. The complaint alleged that because of various acts of negligence on the part of Children’s and its staff, the minor plaintiff suffered, among other injuries, severe complications of hydrocephalus, encephalopathy, and mental retardation.

Sycamore filed a motion to transfer venue to De Kalb County on the grounds that it was a municipal corporation and, as such, could be sued only in the county where its principal office is located or where the transaction giving rise to the cause of action occurred. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 103(a) (now 735 ILCS 5/2 — 103 (West 1992)).) The motion alleged that “at all times relevant,” Sycamore was a municipal corporation with its principal place of business in De Kalb County. Three documents were attached to the motion. The first establishes that “Sycamore Memorial Hospital” was incorporated under the Hlinois “Act concerning Corporations” on April 22, 1909, in De Kalb County. The second document, dated January 11, 1937, shows that the name of the corporation was changed from Sycamore Memorial Hospital to Sycamore Municipal Hospital. The third document, dated June 27, 1944, is a certificate from the Secretary of State stating that articles of amendment to the articles of incorporation of Sycamore Municipal Hospital had been filed as provided by the Illinois “General Not for Profit Corporation Act.”

Plaintiff filed a response to the motion to transfer venue asserting that none of the documents attached to the motion established that. Sycamore is currently, or ever was, a municipal corporation. The response alleged that “upon information and belief, on or about November 18, 1958, Sycamore Municipal Hospital changed its name to Sycamore Charities, Inc. and is currently conducting business under that name.”

At a hearing on Sycamore’s motion to transfer venue, counsel for Sycamore stated that although Sycamore is not currently a municipal corporation, it was a municipal corporation at the time of the occurrence. The court, finding that Sycamore failed to establish its status as a municipal corporation, denied the motion to transfer venue.

Sycamore subsequently filed a second motion to transfer venue. This motion was based upon section 2 — 101 of the Code, which provides that an action must be filed in the county of residence of any defendant joined in good faith or in the county where the transaction giving rise to the cause of action occurred. Sycamore alleged in its motion that for the purpose of establishing venue, the count of the plaintiff’s complaint against Sycamore constituted a separate cause of action because it involves a different time and occurrence than the counts against Children’s. Therefore, venue in the plaintiff’s action against Sycamore could lie only in De Kalb County. The court rejected this argument on the ground that there existed a question as to what portion of the damages would be attributable to each defendant. Sycamore’s second motion for a transfer of venue was accordingly denied. We granted Sycamore leave to appeal.

Two venue provisions are pertinent to this appeal. Section 2 — 101 of the Code provides:

“Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county, or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101 (now 735 ILCS 5/2 — 101 (West 1992)).)

Section 2 — 103(a) relates specifically to public or municipal corporations and states:

“Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located or in the county in which the transaction or some part thereof occurred out of which the cause of action arose.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 103(a) (now 735 ILCS 5/2-103 (West 1992)).

Sycamore first contends that the court erred in refusing to transfer venue under section 2 — 103(a) based on its status as a municipal corporation. In making this argument, Sycamore does not address the trial court’s finding that Sycamore failed to establish its status as a municipal corporation other than to assert in its reply brief that “[t]he evidence provided to the trial court was sufficient to establish the municipal nature of [Sycamore].”

The party moving for a change of venue has the burden of proving that the selected venue is improper by setting forth facts, rather than conclusions, establishing a clear right to a change of venue. (American Country Insurance Co. v. Mahoney (1990), 203 Ill. App. 3d 453, 460, 560 N.E.2d 1035 (Mahoney)) Any doubts arising from the inadequacy of the record will be resolved against the party seeking a change of venue. Mahoney, 203 Ill. App. 3d 453, 560 N.E.2d 1035.

Based on the record before us, Sycamore failed to establish its status as a municipal corporation. The documents attached to its motion for a transfer of venue established, at best, that at some point in time Sycamore may have been a municipal corporation. In Wilson v. Central Illinois Public Service Co. (1988), 165 Ill. App. 3d 533, 537, 519 N.E.2d 44, the court held, in the context of a “doing business” case, that venue is established based upon the time suit is instituted rather than at the time the incident occurred. The same is true where venue depends upon the municipal status of a corporation. In Lawless v. Village of Park Forest South (1982), 108 Ill. App. 3d 191, 195, 438 N.E.2d 1299, the court noted that the public policy basis for giving municipal corporations a right to venue in their home county is to allow municipal officials to remain at home for the purpose of discharging their public duties. Sycamore does not demonstrate that policy would be furthered if the corporation challenging venue no longer enjoys the status of a municipal corporation. The circuit court did not err in denying Sycamore’s motion to transfer venue under section 2— 103(a).

Sycamore next contends that the circuit court erred in denying its second motion to transfer venue, which was based on the general venue provision of section 2 — 101 of the Code, which requires that, unless otherwise provided, venue must be set in the county of residence of any defendant joined in good faith or in the county where the transaction giving rise to the cause of action occurred. Sycamore acknowledges that defendants named in counts I through III of the plaintiff’s complaint are residents of Cook County, but argue that for purposes of determining venue the count against Sycamore should be considered as an entirely separate cause of action.

Sycamore cites Peterson v. Monsanto Co. (1987), 157 Ill. App. 3d 508, 510 N.E.2d 458, in support of its argument. Peterson involved 32 plaintiffs who filed a multicount complaint against two chemical companies to recover damages for injuries allegedly caused by exposure to herbicides. The court there held that although the rules of permissible joinder allowed such a procedure, each count was to be considered a separate action for the purpose of determining venue. We find Peterson distinguishable from the instant cause. Here, a single plaintiff sued two hospitals and various members of their staffs alleging that their negligence caused the minor plaintiff to suffer hydrocephalus, mental retardation and other injuries. Although the allegations against Children’s stem from a later date than the allegations against Sycamore, the court determined that there would be questions as to what portion of the injuries were attributable to each defendant. We conclude that the court acted properly in denying Sycamore’s motion to transfer venue pursuant to section 2 — 101 of the Code.

Accordingly, the order of the circuit court is affirmed.

Affirmed.

McCORMICK, P.J., and SCARIANO, J., concur.

      A settlement was reached with the estate of Dr. Eggars.


author: JUSTICE MURRAY

text:
    ESTATE OF CARL T. BARTH, Deceased, Plaintiff-Appellee, v. EDWARD R. SCHLANGEN, Defendant-Appellant.
    First District (5th Division)
    No. 1—92—2420
    Opinion filed June 30, 1993.

      William J. Flotow, of Palatine, for appellant.
    Spencer H. Raymond and Douglas A. Graham, both of Jenner & Block, of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Appellant, Edward R. Schlangen (Schlangen), appeals a probate court’s ruling which quieted title to a piece of a property owned by the estate of Carl T. Barth (Estate).

On September 14, 1984, Carl T. Barth (Barth) and Schlangen entered into a written contract (the Agreement) for the sale and conveyance of a parcel of real estate (the Poplar property). The Agreement provided:

“(c) The balance of the purchase price, to wit: $40,000.00 to be paid in equal monthly installments of $366.67 each, commencing on the 1st day of November, 1984 and on the 1st day of each month thereafter until the purchase price is paid in full ***;
(d) The final payment of the purchase price and all accrued but unpaid interest and other charges as hereinafter provided, if not sooner paid shall be due on the 1st day of November, 1989.”

The Agreement provided for payment of interest on the balance of the purchase price at the rate of 11% interest per annum. In addition, the “Memorandum of Agreement” provided:

“The terms of Agreement require the payment of monthly installments of interest thereon, for the period from October 1, 1984, through November 1, 1989, at which time the entire unpaid principal and interest shall be paid.”

Schlangen did not make any payments to Barth. Barth died on October 31, 1988. Under its own terms, the Agreement remained in force even upon Barth’s death.

On June 27, 1989, Schlangen filed a claim against the Estate seeking $35,000 for his interest in the Poplar property. According to the claim, Schlangen was entitled to the property “pursuant to Articles of Agreement for Deed and Rider, dated September 19, 1984.”

On August 2, 1989, the Estate paid Schlangen $8,651 owed him for the “Bode Road fire job,” a job completed by Schlangen in August 1984.

On August 24, 1989, the Estate filed an answer to Schlangen’s claim. The Estate disputed the legitimacy of Schlangen’s claim in light of Schlangen’s failure to make any payments under the Agreement. The Estate counterclaimed for abandonment and rescission of the written contract.

Schlangen filed his answer to the Estate’s counterclaim on February 15, 1990. Schlangen asserted that “all the terms and conditions of the sale” of the property were not contained in the Agreement. Schlangen asserted that “subsequent to the Articles of Agreement for Deed, the parties entered into an agreement relative to a setoff each had against the other.”

On October 5, 1990, the Estate filed a motion for summary judgment on Schlangen’s claim and on the Estate’s counterclaims for abandonment and rescission. The Estate filed a memorandum in support of its motion for summary judgment and attached a copy of the Agreement and an excerpt from Schlangen’s deposition. In his deposition Schlangen stated that he never made any payments to Barth prior to his death under the terms of the Agreement.

Schlangen filed a reply to the Estate’s motion for summary judgment on November 11, 1990. Schlangen asserted that he and Barth “had agreed that *** the sum of $8,651.85 [from the ‘Bode Road fire job’] would be a setoff against the sum due from the claimant [Schlangen] to the decedent pursuant to the Articles of Agreement.” Schlangen contended that he and the decedent orally modified the Agreement and extended Schlangen’s time for performance. Attached to Schlangen’s reply was the affidavit of his son George Schlangen (George). George’s affidavit stated in relevant part:

“On at least one occasion I was present at the decedent’s home during face-to-face conversations which took place between my father, Edward R. Schlangen, and the decedent, Carl T. Barth, wherein Mr. Barth expressed a desire to sell more real estate to my father, and at that time Mr. Barth also acknowledged to my father that he, Mr. Barth, owed my father approximately $8,600.00 for a certain ‘Bode Road fire job.’ Mr. Barth further indicated that my father therefore would not be required to make monthly payments for the Poplar Street property pursuant to certain Articles of Agreement and that they, Mr. Barth and Mr. Schlangen, would ‘settle up’ when the Poplar Street property was sold.”

On November 29, 1990, the trial court denied the Estate’s motion for summary judgment. In addition, on the court’s own motion, the trial court dismissed Schlangen’s claim without prejudice and granted Schlangen leave to file a complaint seeking specific performance naming all the necessary parties within 30 days. Schlangen never refiled a claim.

On January 16, 1992, the Estate moved for summary judgment based on its counterclaims. In its memorandum in support of its motion, the Estate argued that Schlangen had both abandoned and failed to perform the terms of the contract. The Estate further argued that even under the alleged oral agreement, Schlangen was only excused from making monthly interest payments until Schlangen was paid for the Bode Road project in August 1989. Thus, the Estate asserted that Schlangen was in default of this alleged agreement due to his failure to make monthly interest payments after receiving payment for the Bode Road project and because he failed to pay the $40,000 purchase price on November 1,1989.

The trial court ordered Schlangen to respond to the motion for summary judgment by February 21, 1992, the Estate to reply on March 6 and set hearing for March 10, 1992. Mr. Schlangen did not file a response by February 21, 1989, nor did he seek an extension to file a response. At the hearing on March 10, 1992, Schlangen presented a response. In his response, Schlangen acknowledged that he “never made any payments to Mr. Barth,” but alleged that this was not the issue in the case. Schlangen asserted that in his deposition, he stated (and the Estate had acknowledged) that he did several thousand dollars worth of repairs and improvements to the property and that the Estate’s claim of abandonment was simply false. Relying on the previously filed affidavit of his son, Schlangen asserted that summary judgment should be denied because the alleged oral agreement postponed all monthly payments and the parties agreed to “settle up” when the Poplar property was sold.

At the hearing on the motion for summary judgment, Schlangen argued that although he never made a tender of the $40,000, he offered to fulfill the terms of the contract to the administrator and to one of the Estate’s attorneys and they said no. Schlangen further argued that the parties had orally agreed to a modification. The trial court noted that although the affidavit stated that Schlangen would not be required to make monthly payments, it did not say anything about an extension as to the final payment. The trial court further noted that what was at issue was the final payment; the fact that Barth died was no basis for postponing the payment because there was an estate open. The trial court found that George Schlangen’s affidavit did not raise an issue of fact because the affidavit related to monthly payments and as such the affidavit was insufficient to overcome the Estate’s motion for summary judgment on the basis that there was never tender to perform the terms of the contract. The trial court held that failure to make a tender without any evidence of an extension was sufficient to allow judgment in favor of the Estate. The trial court granted summary judgment on the Estate’s counterclaims “because of the lack of tender and the lack of any affidavit demonstrating an extension of the final payment due 11/1/89.”

On April 9, 1992, Schlangen filed an “Emergency Motion for Rehearing” which alleged the trial court erred in holding that tender was required on November 1, 1989. Schlangen cited Dunham v. Dangeles (1978), 67 Ill. App. 3d 252, 384 N.E.2d 836, in support of his contention that in Illinois no tender of performance is necessary, but rather only an expression of readiness, willingness and ability to perform is needed to constitute a tender of performance. Schlangen did not submit any factual material in support of his motion.

On June 9, 1992, the motion for rehearing was heard and denied by the probate court. This timely appeal followed.

On appeal, Schlangen raises the following issues for review: (1) whether the time for performance of a written contract for the sale of land may be extended by an oral agreement before the time fixed in the contract has expired and the obligor relies on such oral agreement; (2) whether a genuine issue of material fact exists which would prevent summary judgment; (3) whether certain transcripts indicate the trial judge was biased in favor of the Estate; and (4) whether a tender of performance is necessary when a contract calls for acts to be done by both parties at the same time.

For the following reasons, we affirm the decision of the trial court.

The purpose of summary judgment is to determine whether a triable issue of fact exists. (Choi v. Commonwealth Edison Co. (1991), 217 Ill. App. 3d 952, 578 N.E.2d 33.) A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) In considering whether to grant summary judgment, the court must construe the evidence strictly against the movant and liberally in favor of the opponent. S J S Investments, Ltd. v. 450 East Partnership (1992), 232 Ill. App. 3d 429, 597 N.E.2d 1213.

Schlangen argues that a genuine issue of material fact exists and, thus, the entry of summary judgment was improper. Schlangen contends it is clear that the affidavit of George Schlangen raises a question of fact to be resolved at trial as to whether the Agreement was orally modified by the parties. In addition, Schlangen argues that there is a question of fact as to whether he relied upon the decedent’s waiver of strict compliance with the terms of the Agreement. Conversely, the Estate maintains the probate court properly granted summary judgment. The Estate argues that Schlangen failed to pay or offer to tender payment on November 1, 1989, and therefore lacks any claim to the Poplar property.

The Statute of Frauds prevents the enforcement of a contract for the sale of land or a contract creating an interest in land for longer than one year, unless the contract is in writing, and signed by the person against whom enforcement is sought. (Ill. Rev. Stat. 1989, ch. 59, par. 2; Pasulka v. Koob (1988), 170 Ill. App. 3d 191, 524 N.E.2d 1227.) An executory contract under the Illinois Statute of Frauds cannot be modified orally. Nelson v. Estes (1987), 154 Ill. App. 3d 937, 940, 507 N.E.2d 530, 619.

In Werner v. Timm (1972), 4 Ill. App. 3d 573, 281 N.E.2d 395, the court held that parties to a contract involving real estate can be estopped from raising the Statute of Frauds in an attempt to bar proof of an oral modification of the written contract where detrimental reliance on the oral modification is shown by the other parties. The court noted that this was particularly true where the oral modification was induced by the individual who later seeks to assert the Statute of Frauds as a defense. In Nelson v. Estes (1987), 154 Ill. App. 3d 937, 507 N.E.2d 530, the court held that the party who detrimentally relied upon the waiver of strict compliance with the original written contract and upon the oral contract need not have been induced by the other party.

The Estate makes several arguments attacking the validity of the oral agreement. Without ruling on the validity of the agreement, for the following reasons we find that even if the oral agreement existed and was valid, the trial court properly granted summary judgment in favor of the Estate.

Schlangen points to the affidavit of his son as evidence of the existence of an oral agreement to modify the terms of the agreement. However, this affidavit does not indicate an agreement by Barth to waive either the purchase price of the Poplar property or the amount of interest due on the purchase price (the affidavit of George Schlangen, filed in response to a previous motion for summary judgment, is the only evidence Schlangen has filed in support of his position). At best this oral agreement, if it existed, showed an agreement to postpone the monthly payments due to a past debt. Notwithstanding the issue of interest payments, the Agreement required Schlangen to pay the $40,000 purchase price by November 1, 1989. Since the alleged oral agreement with the deceased does not disclose either a waiver by Barth of a tender of the purchase price required by the Agreement, or a reliance by Schlangen on that type of a provision, we find there was no genuine issue as to any material fact to preclude the entry of summary judgment.

Schlangen further argues that to require him to make a tender of performance when he knew the Estate was actively resisting the claim would have been a waste of time. Schlangen raises the issue of whether there should be a tender of performance when the parties are in litigation. Schlangen does not provide any authority and this court was unable to find any authority that supports Schlangen’s position that the filing of a claim against the Estate in some manner excuses or holds in abeyance his need to perform his obligations under the contract in the present case.

Schlangen cites Dunham v. Dangeles (1978), 67 Ill. App. 3d 252, 384 N.E.2d 836, which holds that absent an express provision to the contrary, when a contract calls for acts by both parties to be done at the same time, no tender of performance is necessary, only an expression of readiness, willingness, and ability to perform. In Dunham the court found that, under the facts of that case, it was clearly reasonable for the plaintiffs to tender performance by conveying notice of their readiness to perform through an intermediary who had previously served in that capacity between the parties. In the present case, the Agreement provided for payment on November 1, 1989. At the hearing on the motion, Schlangen’s counsel indicated that at one time Schlangen had offered to pay the Estate. However, this was merely a statement by counsel; no affidavit was filed to this effect, and this statement did not in any way indicate an ability to perform. Schlangen admits he made no payments under the agreement, and he fails to allege any facts that he was ready, willing and able to tender payment of $40,000 on November 1, 1989. Moreover, the allegation that it would be a “waste of time” to tender performance does not equate to, or substitute for, an expression of readiness, willingness and ability to perform. We find the trial court properly granted summary judgment in favor of the Estate.

In determining whether summary judgment was correctly entered, a reviewing court is not limited to the precise reasons stated or those implied by the trial court in entering summary judgment. (Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill. App. 3d 1013, 1016, 576 N.E.2d 168.) Rather, in determining the propriety of the entry of summary judgment, the reviewing court will consider all grounds urged and facts revealed in the trial court and will affirm the grant of summary judgment if the decision is justified by any reason appearing in the record. Kirnbauer, 215 Ill. App. 3d at 1016-17.

“Abandonment of a contract may be deduced from circumstances or from conduct which clearly evidences an abandonment thereof. The acts relied upon must be positive, unequivocal and inconsistent with the existence of the contract to constitute abandonment.” (Bocchetta v. McCourt (1983), 115 Ill. App. 3d 297, 301, 450 N.E.2d 907, 910.) Even assuming, arguendo, Schlangen’s alleged oral agreement could be found to constitute a valid extension of the Agreement, we believe the record justifies a finding that Schlangen abandoned said oral agreement. Thus, we find support for the grant of summary judgment on grounds other than those expressly stated by the trial judge.

Schlangen claims that due to the alleged oral agreement, he never made any payments pursuant to the written agreement. He has alleged that the money from the “Bode Road fire job” was to be used as a setoff against the sum due from him to Barth pursuant to the Agreement. We believe the fact that Schlangen sought and received the money for the Bode Road work (the alleged basis for extending the time when interest payments would be due, as well as the amount allegedly to be used as a setoff against the interest payments), coupled with his admissions that he never made any payments to Barth, supports a finding that Schlangen abandoned the alleged oral modification to the Agreement.

Finally, Schlangen argues that a fair reading of the transcripts of the hearings held on March 10, 1992, and June 9, 1992, indicates the trial judge was biased in favor of the Estate. Except for a statement that the transcripts disclose “excessive interruption by the trial judge and a general hostility toward the claimant’s position,” Schlangen does not present any argument on this issue, nor does he cite any authority. After a careful review of the record, we find no merit to this claim.

For all the reasons set forth above, we affirm the decision of the trial court quieting title to the Poplar property.

Judgment affirmed.

GORDON, P.J., and COUSINS, J., concur.

      Mr. Doolittle, a partner of Schlangen, was also a signatory to the Agreement. However, on or about March 24, 1989, Mr. Doolittle assigned all interest he had in the property to Schlangen.


author: JUSTICE SLATER JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL L. BAILEY, Defendant-Appellant.
    Third District
    No. 3-91-0907
    Opinion filed July 9, 1993.
    STOUDER, J., dissenting.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael J. Herr, State’s Attorney, of Aledo (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

A jury convicted the defendant, Randall L. Bailey, of one count of attempted murder and two counts of aggravated battery (Ill. Rev. Stat. 1991, ch. 38, pars. 8 — 4, 9 — 1, 12 — 4). He was thereafter sentenced to 24 years’ imprisonment for the attempted murder conviction. He appeals. We affirm in part and vacate in part.

The record shows that the victim, Doug Bailey, is the brother of the defendant. Doug Bailey testified that on January 25, 1991, the defendant attacked him when he told the defendant not to call their mother names. He stated that the defendant “stomped” on his ribs and head. The defendant then pulled out a knife and held it to Doug’s throat while stating “you’re going to die.”

Other evidence showed that the victim managed to escape and make his way to a house that was about a mile away. The weather was cold and he was dressed in only jeans and a T-shirt.

The medical evidence showed that Doug Bailey had a laceration on his left wrist, cuts and abrasions on his face, a broken nose, bruised ribs, and a long scratch on his neck. He underwent surgery to repair his wrist and suffered a 20% to 30% permanent loss of function in his left thumb.

The defendant testified that he and his brother had fought, but stated that his brother had started it by hitting him on the head with a can of beer. He did not remember the specifics of the fight, but knew he did not pull a knife. He also could not say how Doug was injured so severely. The defendant did not suffer any injuries.

Other evidence showed that no beer cans were found at the scene of the incident. In addition, several witnesses testified that the defendant was an unreliable source of information and untruthful.

On appeal, the defendant first argues that prosecutorial misconduct occurred when the State introduced irrelevant, unsubstantiated, and patently prejudicial evidence of child molestation allegations involving him. He also contends that prosecutorial misconduct occurred when the prosecutor repeatedly expressed his personal opinions as to the credibility of the witnesses and the strength of the evidence.

Initially, we note that the defendant did not object at trial to the remarks he now complains of on appeal. He did, however, raise the issues in his post-trial motion. We also note that while the defendant did object at trial to the introduction of the molestation evidence, he did not raise the issue in his post-trial motion. The State therefore argues that the issues are waived since the defendant did not raise them both at trial and in his post-trial motion.

We agree with the State and find that the errors the defendant now complains of on appeal are waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Accordingly, we will only reverse if there was plain error, which is defined as error that either denies the defendant a fair trial or that occurs in a case where the evidence is closely balanced. People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755.

The State argues that the alleged errors were harmless since the evidence of the defendant’s guilt was overwhelming. We agree and find that the errors were harmless even when viewed in their totality. We do not find plain error.

We first address the defendant’s contention that the prosecutor improperly introduced inflammatory evidence. He notes that the prosecutor pursued an irrelevant line of questioning that resulted in the jury being exposed to unsubstantiated allegations that the defendant had sexually molested his own children. The prosecutor, during direct examination of the victim, elicited the following testimony:

“A. And then — and then [the defendant] said — he said, ‘You Mom, and Dad are the reasons my kids are gone.’
Q. And what happened to his kids?
A. Well, my mom took them and put them on a plane back to their parents — or not the parents — back to their mom when she found out he had been molesting the kids.
DEFENSE COUNSEL: Objection, your Honor.
Q. And what happened?
THE COURT: Anything concerning the molesting or alleged molesting is to be disregarded. The jury’s instructed to disregard. He’s not on trial for that.”

Thereafter, outside of the presence of the jury, the defendant moved for a mistrial, which was denied. While the trial court agreed the evidence was inflammatory, it found that it was not “so inflammatory as to make it impossible for the jurors to make a decision.”

A prosecutor is ethically obliged to refrain from presenting improper prejudicial evidence or argument. To this end, a prosecutor is barred from presenting irrelevant evidence that serves no purpose but to prejudicially inflame the passions and prejudice of the jury. (People v. Reimnitz (1979), 72 Ill. App. 3d 761, 391 N.E.2d 380.) We note that the erroneous admission of evidence of prior criminal activity carries a high risk of prejudice. (See People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) In addition, we note that evidence regarding child molestation, in and of itself, carries a high risk of prejudice since such evidence is highly inflammatory.

The evidence of guilt in this case was overwhelming and the isolated reference to child molestation did not rise to the level of plain error. Any .potential prejudice to the defendant was cured by the court’s instructions to the jury to disregard the remark. Where a timely objection is made at trial the court can usually correct any error by sustaining the objection or instructing the jury to disregard the answer or remark. (People v. Speight (1992), 153 Ill. 2d 365, 373.) We find that the prosecutor’s misconduct was properly cured by the trial court and this did not result in the defendant being deprived of a fair trial.

We now turn to the defendant’s argument regarding the prosecutor’s closing argument. On nine occasions during his closing argument, the prosecutor used the terms “I believe” and “I think,” when commenting on the credibility of the witnesses and the weight of the evidence. The State argues that such comments are not errors per se and that they were proper in the case at hand because the prosecutor’s comments were predicated on the evidence.

Error cannot be presumed simply because the prosecutor begins a sentence with such language, although we note that the better practice is to refrain from using sentences beginning with “I.” (People v. Baker (1990), 195 Ill. App. 3d 785, 552 N.E.2d 421.) The comments complained of are as follows:

“I think its obvious from Randy’s own testimony that he’s a violent person, that violence follows Randy Bailey.
* * *
So it’s obvious that Sister Camille didn’t believe Randy Bailey, and I don’t think that you, as jurors, should believe Randy Bailey either.
* * *
I think you’ll find that *** Doug is, far and away, the more believable of the two witnesses.
* * *
I don’t think there should be any doubt in your mind in this case as to any of the three offenses that Randy Bailey’s been charged with, but I believe that there certainly shouldn’t be a reasonable doubt of his guilt. And for that reason, I ask that you find the defendant Randy Bailey guilty [of all charges].
* * *
I think you’ll find that [Doug’s written statement] is remarkably consistent with his trial testimony.
* * *
I don’t think that if you look at Doug Bailey, which you’ve had a chance to do, that he looks like the kind of person that could drink 18 beers in four hours and still drive home.
* * *
I believe [Doug] would have died in the snow if he hadn’t made it to Cliff Anderson’s farmhouse.
* * *
And I don’t think anybody on this jury would disagree with me that this [the knife with a 3” blade] is a deadly weapon, that this can be used to kill. I certainly think it looked like a deadly weapon to Doug Bailey on January 25,1991.
* * *
So I submit to you that this was definitely great bodily harm. If the same thing happened to any of you, I’m sure you would consider it great bodily harm.”

The prosecutor, as the representative of the State, stands in a special relation to the jury. He must choose his words carefully so that he does not place the authority of his office behind the credibility of his witnesses. (People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.) He may express an opinion if it is based on the record. (People v. Johnson (1987), 119 Ill. 2d 119, 518 N.E.2d 100.) He may not, however, state his personal opinion regarding the veracity of a witness or vouch for a witness’ credibility. (People v. Wilson (1990), 199 Ill. App. 3d 792, 557 N.E.2d 571.) In addition, the prosecutor should refrain from expressing opinions on judgments that lie within the province of the jury. People v. Roach (1991), 213 Ill. App. 3d 119, 571 N.E.2d 515.

It is clear that a prosecutor’s statements should not be taken out of context but should be considered in their entirety to determine whether they are statements of personal belief or are based on the evidence presented at trial. (People v. Dail (1985), 139 Ill. App. 3d 941, 488 N.E.2d 286.) It is not improper for a prosecutor to state an opinion which is based on the record or on a reasonable inference drawn from the evidence. (People v. Baker (1990), 195 Ill. App. 3d 785, 552 N.E.2d 421.) Viewed in context, the statements of the prosecutor were based on the evidence presented and were not improper. We find that they did not result in substantial prejudice to the defendant so as to deny him a fair trial. Under the circumstances, the plain error doctrine is inapplicable.

Finally, the defendant argues that his two aggravated battery convictions resulting from the same act as the attempted murder must be vacated. The State agrees, but denies that a remand for re-sentencing is required. Under People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, a defendant cannot receive multiple convictions based upon a single act or single set of circumstances. The defendant’s aggravated battery convictions are accordingly vacated.

A review of the record sub judiee leads us to the determination that the trial judge did not substantially consider the vacated convictions in his imposition of the 24-year sentence. Remandment is not required. (People v. Robinson (1984), 122 Ill. App. 3d 362, 461 N.E.2d 493).

Accordingly, the judgment of the circuit court of Mercer County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

I must respectfully dissent.

In this case, the defendant contends that reversible error occurred when the State introduced irrelevant and prejudicial testimony of child molestation allegations involving the defendant. The majority in this case finds that it was error for the evidence to have been introduced but nonetheless finds that the error was cured and harmless, given the overwhelming evidence of the defendant’s guilt. I disagree.

As the majority notes, the erroneous admission of evidence of prior criminal activity carries a high risk of prejudice. I agree, but go further and note that evidence of child molestation carries a particularly high risk of prejudice to the defendant. There are few crimes more heinous and that evoke more outrage than sex crimes with a child victim. As such, evidence regarding such crimes is highly inflammatory and its prejudicial taint is unlikely to be cured by a trial court’s admonishments to disregard the evidence. As the Illinois Supreme Court noted long ago, driving a nail into a board and then pulling out the nail does not remove the hole. People v. Cepek (1934), 357 Ill. 560, 192 N.E. 573.

Accordingly, I find that the admission of the child molestation evidence was so substantially prejudicial that its taint could not be cured by the court’s admonishments to disregard it. I also find that the admission of the improper evidence was not harmless since the evidence of the defendant’s guilt was not so overwhelming that it outweighed the prejudicial effect of the evidence.

Here, the record shows that the evidence of the incident basically consisted of the defendant’s word against that of his brother, the victim. Both parties testified that they were arguing when the fight started. The defendant testified that his brother started the fight by throwing a beer can at him. He also stated that while he did not remember the specifics of the ensuing fight, he knew he did not pull out a knife. Lastly, he noted that although he had been in fights in the past, he never used a weapon.

The victim, on the other hand, stated that the fight started after the defendant became angry at him for telling him not to call their mother names. He testified that the defendant knocked him to the floor and “stomped” on his head and ribs. He also stated that it was the defendant who pulled out a knife.

Admittedly, evidence was elicited showing that the defendant may have been an unreliable source of information and untruthful. However, evidence was also elicited showing that the victim had once attacked another brother with a wrench when that brother had made a comment the victim did not like. On appeal, I note that since both witnesses lacked credibility, the evidence against the defendant cannot be characterized as overwhelming.

I also disagree with the majority’s conclusion that reversible error did not occur during the prosecutor’s closing argument. Here, the majority found the prosecutor’s remarks to be proper since they were based on the evidence presented. Apparently, under the majority’s view, a prosecutor is free to express his opinions or personal feelings on any topic as long as there is some basis in the record to support the opinion. This is clearly contrary to the law since it improperly places the authority and prestige of the State’s Attorney office behind the credibility of a witness and the evidence.

While acknowledging that a prosecutor may not state his personal opinion regarding the veracity of a witness and that a prosecutor should refrain from expressing opinions on judgments that lie within the province of the jury, the majority nonetheless allows the prosecutor to do just that in this case. As the following three comments illustrate, several of the prosecutor’s remarks were improper.

“So it’s obvious that Sister Camille didn’t believe Randy Bailey, and I don’t think that you, as jurors, should believe Randy Bailey either.
* * *
I think you’ll find that *** Doug is, far and away, the more believable of the two witnesses.
* * *
I don’t think there should be any doubt in your mind in this case as to any of the three offenses that Randy Bailey’s been charged with, but I believe that there certainly shouldn’t be a reasonable doubt of his guilt. And for that reason, I ask you to find the defendant Randy Bailey guilty ***.”

As these comments show, the prosecutor improperly expressed his opinion about the veracity of two of the witnesses. In addition, he improperly gave his opinion regarding the defendant’s guilt, a judgment that clearly lies solely within the province of the jury. As such, I find that these comments amounted to plain error. Taken with the other comments in this case and the improper admission of evidence regarding the child molestation, I find that the defendant did not receive a fair trial. As such, I would reverse the defendant’s conviction and remand the cause for a new trial.


author: JUSTICE COLWELL

text:
      In re CHRISTOPHER FRIBERG, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Christopher Friberg, Respondent-Appellant).
    Second District
    No. 2—92—0479
    Opinion filed August 9, 1993.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, and Susan J. Curry, of Hines, for appellant.

      Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Respondent, Christopher Friberg, appeals from an order of the circuit court of Winnebago County finding him to be a person subject to involuntary admission under section 3 — 701(a) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/3— 701(a) (West 1992)), and hospitalizing him in the Department of Mental Health and Developmental Disabilities (Department) (405 ILCS 5/3 — 700 (West 1992)). Respondent appeals, alleging the trial court’s order must be reversed because he was denied a verbatim, record of the proceedings. Alternatively, respondent alleges that the trial court failed to order the least restrictive alternative treatment and that the State failed to prove by clear and convincing evidence that he was unable to provide for his basic physical needs. We affirm.

A petition for respondent’s involuntary admission was filed on March 31, 1992, alleging respondent to be “[a] person who is mentally ill and who because of his/her illness is unable to provide for his/her basic physical needs so as to guard himself/herself from serious harm.” A report dated March 30, 1992, signed by Elizabeth Bolser Carpenter, LCSW, at the Janet Wattles Mental Health Clinic (Janet Wattles), found respondent to have a severe thought disorder and delusions that he is God. Carpenter also found respondent incoherent and unable to respond. A psychiatrist at the H.D. Singer Mental Health Clinic (Singer) also filed a report dated March 31, 1992, which noted that respondent exhibited aggressive and delusional behavior. The report stated that respondent was delusional, agitated, unpredictable, dangerous, and in further need of psychiatric assessment.

The State presented four witnesses at the April 6, 1992, hearing on the petition. Judith Friberg, respondent’s mother, testified that she lived with respondent. Respondent had been working at McDonald’s Restaurant for approximately two years. She received a phone call on March 30, 1992, asking her to come to McDonald’s to see respondent. Respondent was talking to the manager and telling people he was God when Judith arrived. Respondent did not want to go with the police because he was God and the law did not apply to him. Judith followed the police as they escorted respondent to Janet Wattles. There, respondent continued saying he was God or an individual named “Zero” and that the phones should all be thrown out.

Judith also described an incident that occurred in their home approximately three weeks prior to the hearing. She was speaking to respondent and his twin brother, Kevin, when respondent started saying that God told him he had a sister named Jennifer. Judith testified that respondent has no sister. In another incident, Judith was speaking to respondent about cleaning up after himself in the house. The discussion escalated into an argument. Judith told respondent if he could not follow the rules he would have to move out. Judith said she had been told by a psychiatrist that she should seek help if respondent had any eruptions. She moved toward the phone to call for help but respondent physically restrained her arms when she tried to get to the phone. Judith testified that she thought respondent would not intentionally hurt her but that she had sustained bruises on her arms from the restraint. Respondent then removed the phone from the wall.

Kevin Friberg, respondent’s brother, testified about an incident which occurred approximately one week before the hearing. Respondent said God told him he had been sexually abused by his mother and father. Respondent stated that God also told him he was supposed to be a female. Kevin admitted to receiving psychiatric treatment about six months prior to the hearing. Kevin was not on medication at the time of his testimony but was still in counseling.

Richard Apple, social work administrator at Singer, testified concerning an incident regarding respondent on March 31, 1992. Respondent was at that time locked in a seclusion area. Apple received a call for help from the nurses’ station located near the seclusion area. Apple approached the area and saw respondent racing toward the reinforced window to the door of the seclusion area and ramming himself against it. The glass shattered when Apple arrived. Apple and some staff members had to physically carry respondent to a restraint bed because he would not stop voluntarily. Respondent suffered a small cut to his finger.

The State’s last witness was Dr. Lewis. However, Lewis’ testimony on the audio tape was accidentally recorded over and thus unavailable for transcription. (All testimony from the April 6 hearing had been recorded on a cassette tape with no court reporter present.) The parties thereafter filed an agreed statement of facts prepared by the assistant public defender and the State’s Attorney summarizing the testimony of Lewis in this matter.

According to the summary, Lewis testified that he interviewed respondent for approximately 20 to 30 minutes on April 3, 1992, at Singer. Lewis had not met with respondent prior to their interview. Respondent informed him that he was sent to Singer because he had given away free food while working at McDonald’s. Respondent thought it would be a better world if no one had to pay bills. He had the name God put on his name tag. Respondent wanted the white men to get off the Indian land. Lewis referred to respondent’s medical records which indicated he displayed a flat affect and grandiose delusions on the day he smashed the seclusion area window. Respondent allegedly said at that time, “I am quite capable of killing you and I will if I get loose.”

Lewis opined that respondent is a person who is mentally ill. Lewis based his opinion upon his interview of respondent, his examination of respondent’s medical charts, and the testimony of the witnesses previously called during the hearing. Lewis believed that respondent was reasonably expected to inflict serious physical harm upon himself in the near future based on his breaking the glass in the seclusion area. Lewis found no basis to expect that respondent was likely to harm another. Lewis concluded that respondent was unable to provide for his basic needs so as to guard himself from serious harm. Lewis noted the extent of respondent’s delusions, in particular, his insistence on giving away food at his job. Lewis believed respondent’s delusions caused him to be unable to conform his behavior to the expectations of society. Lewis’ diagnosis of respondent was: “Clinical Impression: Schizophrenia, paranoid type, acute, with delusions of grandeur and persecution, agitation, destruction of property, aggressive and threatening behavior due to his mental illness.” Lewis’ certificate of his examination of respondent, required under the Code (405 ILCS 5/3 — 602 (West 1992)), restates some of the above summary.

The trial court rendered its decision on April 9, 1992, noting that respondent’s actions were clearly indicative of a person who is in a very active mental state, indicating a high degree of psychosis. Respondent’s behavior convinced the trial court he was an individual who cannot conform his behavior to real life surroundings. The trial court concluded that respondent could not function in an everyday environment and would not be able to care for himself if he did not stabilize his condition. Accordingly, the trial court found by clear and convincing evidence that respondent is unable to provide for his own basic needs so as to guard himself from serious harm. Respondent filed a timely appeal.

Respondent first contends the trial court’s order must be reversed because respondent was denied his statutory rights to an appeal and a verbatim record of the proceedings when Lewis’ testimony was accidentally recorded over and thus unavailable as evidence. Section 3 — 817 of the Code provides: “A verbatim record shall be made of all judicial hearings held pursuant to this Chapter.” (405 ILCS 5/3-817 (West 1992).) In In re Hays (1983), 115 Ill. App. 3d 686, respondent had voluntarily admitted himself to Mercy Hospital. A social worker at the hospital filed a petition alleging respondent to be a person subject to involuntary admission after he exhibited violent behavior. The State’s Attorney inquired of defense counsel at the commencement of the hearing whether counsel would waive part of the recording of the testimony since the reporter had to be absent during the first part of the testimony. Defense counsel agreed. Respondent then argued that he was deprived of a record for purposes of appeal by his counsel’s waiver of the presence of a reporter at the earlier stage of the proceeding. Respondent argued the incomplete record made it impossible to determine whether he asked for discharge from voluntary status. The appellate court noted that, where mental competency is at issue, both the State and defense counsel should be extremely wary of waiver. (Hays, 115 Ill. App. 3d at 689.) The court further noted that, where a full verbatim transcript is lacking, the parties have recourse to Supreme Court Rule 323(c) (134 Ill. 2d R. 323(c)) governing bystander’s reports. The respondent in Hays was responsible as the appellant for presenting an adequate record to the reviewing court, yet he made no argument that he was prevented from preparing a Rule 323(c) report. The court found the issue concerning the record to be without merit under the circumstances in that case although the court stated it did not condone the parties’ waiver of the court reporter. Hays, 115 Ill. App. 3d at 690.

Unlike in Hays, the parties here filed an agreed statement of facts which purportedly constituted an adequate record of Lewis’ testimony. The case at hand concerns subsection (d) of Rule 323, which provides in pertinent part: “(d) Agreed Statement of Facts. The parties by written stipulation may agree upon a statement of facts material to the controversy and file it without certification in lieu of and within the time for filing a report of proceedings.” (134 Ill. 2d R. 323(d).) Respondent correctly states that he did not waive his -rights to a verbatim transcript of the testimony. However, we find a waiver was not necessary where respondent’s attorney assisted in the preparation of the statement of facts, agreed to its content, and signed the document. We agree with the comment in Hays that the absence of a verbatim transcript is usually a situation to be avoided. However, the parties here were without a full transcript, not by mutual waiver, but due to a recording error. The parties submitted an agreed statement of facts under Rule 323(d), and we find such statement is adequate under these circumstances and does not render the order of commitment invalid. Accordingly, respondent had access to an adequate record in order to proceed with his appeal and therefore was not denied his rights under due process.

In spite of our ruling, we sympathize with the dilemma of the trial court on this issue. The Code states that a “verbatim record” shall be made of all judicial hearings but does not define “verbatim.” The Webster’s Third New International Dictionary 2542 (1986) defines “verbatim” as “reproduced from or repeating an original source word for word: following the original exactly.” The Court Reporters Act states in relevant part:

“The court reporter shall make a full reporting by means of stenographic hand or machine notes, or a combination thereof ***. In the event that the court utilizes an audio or video recording system to record the proceedings, a court reporter shall be in charge of such system; however, the appointment of a court reporter to be in charge of an audio or video recording system shall not be required where such system is the judge’s personal property or has been supplied by a party or such party’s attorney.” (705 ILCS 70/5 (West 1992).)

While the audio system utilized here is appropriate under the Court Reporters Act, this case demonstrates that an audio recording alone does not always produce a complete verbatim record as required under the Code. Significant testimony from Dr. Lewis was lost due to a recording error. In addition, the recording that survived was inaudible during some of the testimony which caused incomplete sentences in the transcript. We note that the lack of resources available to supply court reporters at all such hearings compromises the trial court’s effort to comply properly with the requirement of a verbatim record. The record here was sufficient to affirm the trial court’s findings; however, a case may arise where such a transcript is insufficient, even though the evidence concerning the mental illness of the respondent may be clear and convincing. We urge the future use of court reporters during such hearings in order to avoid the consequences of this scenario.

We also reject respondent’s argument that the trial court failed to order the least restrictive treatment alternative for respondent. Section 3 — 811 of the Code provides in relevant part:

“If any person is found subject to involuntary admission, the court shall consider alternative mental health facilities which are appropriate for and available to the respondent, including but not limited to hospitalization. *** The court shall order the least restrictive alternative for treatment which is appropriate.” 405 ILCS 5/3 — 811 (West 1992).

Respondent argues that neither the trial court’s order nor the evidence presented indicated that hospitalization was the least restrictive alternative for respondent. (See In re Devine (1991), 214 Ill. App. 3d 1, 7.) In Devine, the respondent argued that the order committing him to the Department must be overturned because it did not set out the least restrictive alternative treatment. This court found that the failure of the order to refer to the restrictiveness of the treatment was not fatal. We noted that although the Code directs the court to order the least restrictive alternative treatment, it does not say the court must make a finding that the treatment it is ordering is the least restrictive alternative. (Devine, 214 Ill. App. 3d at 7; see also In re Long (1992), 233 Ill. App. 3d 334, 340 (the statute directs the court to order the least restrictive alternative treatment, but does not order the court to make a specific showing of doing so).) We find that the trial court’s order here need not have included a statement indicating it considered hospitalization to be the least restrictive treatment alternative.

Furthermore, the record reflects a consideration and rejection of less restrictive alternatives. Dr. Lewis’ written report, which described respondent’s act of smashing the reinforced glass door to the seclusion area, specifically stated respondent was “[i]n need of immediate and continuing hospitalization.” The agreed statement of facts summarizing Lewis’ testimony states that Lewis found respondent to be mentally ill and unable to provide for his basic needs. Lewis opined that respondent’s delusions caused him to be unable to conform his behavior to the expectations of society.

The disposition evaluation prepared for the trial court by Richard Apple, LCSW, stated: “Hospitalization is necessary because Christopher presents a danger to himself and others until he has achieved a psychiatric and behavioral stability.” Apple’s testimony also described the window-breaking episode and indicated four assistants were needed to restrain respondent after this incident. We find the evidence at the hearing provided a sufficient basis upon which the court could find that involuntary hospitalization was the least restrictive treatment alternative.

Respondent last contends that the trial court’s order for involuntary admission must be reversed because it was not supported by clear and convincing evidence. A person is subject to involuntary admission if he is mentally ill and because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm. (405 ILCS 5/1 — 119(2) (West 1992).) No respondent may be found subject to involuntary admission unless that finding has been established by clear and convincing evidence. (405 ILCS 5/3— 808 (West 1992).) Such a clear and convincing finding must be based on the current condition of the respondent’s illness and the likelihood of future harm he might cause. (In re Houlihan (1992), 231 Ill. App. 3d 677, 682-83.) As this court has noted:

“ ‘To meet its burden of proof the State must submit “explicit medical testimony” that the respondent can be expected to be a serious danger to himself or someone else because of his mental illness. ***
The trial court’s decision following an involuntary admission hearing is given great deference and will not be set aside at the appellate level, even if the reviewing court, after applying the clear and convincing standard, would have ruled differently. [Citation.] The trial court is in the best position to determine the credibility of the testifying witnesses and weigh the evidence. Its determination should not be reversed unless it is manifestly erroneous.’ ” In re Cutsinger (1989), 186 Ill. App. 3d 219, 223, quoting In re Orr (1988), 176 Ill. App. 3d 498, 504-05.

We find the trial court’s decision that respondent was subject to involuntary hospitalization was not manifestly erroneous. The evidence indicates respondent smashed a reinforced window in the seclusion area at the" hospital and later stated “I am quite capable of killing you and I will if I get loose.” Respondent was giving away free food while working at McDonald’s and told those around him that he was God. Respondent forcibly restrained his mother at their house when she attempted to call someone to get help for him.

Lewis opined that respondent was mentally ill, specifically that he suffered from “[schizophrenia, paranoid type, acute, with delusions of grandeur and persecution, agitation, destruction of property, aggressive and threatening behavior due to his mental illness.” Lewis stated that respondent was unable to provide for his basic needs so as to guard himself from serious harm and that respondent’s delusions caused him to be unable to conform his behavior to the expectations of society. Apple also indicated his belief that hospitalization is necessary until respondent achieved psychiatric and behavioral stability.

For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

BOWMAN and QUETSCH, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re RITA GUZIK, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Rita Guzik, Respondent-Appellant).
    Second District
    No. 2—91—1271
    Opinion filed August 9, 1993.

      William E. Coffin, of Guardianship & Advocacy Commission, of Chicago, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Following an October 25, 1991, hearing on the State’s emergency petition for involuntary admission pursuant to the Mental Health and Developmental Disabilities Code (Mental Health Code or Code) (405 ILCS 5/3 — 600 et seq. (West 1992)), the circuit court entered an order finding respondent, Rita Guzik, to be a person subject to involuntary admission. The petition had alleged that she was in need of immediate hospitalization because she was mentally ill and because of her illness was unable to provide for her basic physical needs so as to guard herself from serious harm. (See 405 ILCS 5/1 — 119(2) (West 1992).) When the court noted that there was no social assessment report, the court continued the matter until November 22, 1991, for the presentation of the social assessment report, a treatment plan, and the entry of a “final order” of commitment.

On November 1, 1991, respondent filed her notice of appeal, arguing that the order of October 25 adjudicating her a person subject to involuntary commitment must be reversed because the trial court ordered a continuance in excess of 15 days contrary to the provisions of the Code (see 405 ILCS 5/3 — 800 (West 1992) (continuances shall not extend beyond 15 days unless requested by the respondent)). Alternatively, respondent argues that, under the rules of limited statutory jurisdiction, because the trial court failed to follow the provisions of the Code, the court lacked subject-matter jurisdiction and its order was therefore void. Finally, respondent argues that, on the merits, the adjudicatory order must be reversed because the evidence was not clear and convincing enough to show that respondent was unable to provide for her basic physical needs so as to guard herself from serious harm.

After considering respondent’s arguments concerning jurisdiction, we conclude that this court does not have appellate jurisdiction to hear her appeal. The notice of appeal from the October 25 order appears to be premature as it concerns an interlocutory, nonfinal order, and no timely notice of appeal was filed to perfect her appeal from the November 22, 1991, order of disposition. We cannot therefore reach the merits of respondent’s contentions, and we must dismiss the appeal.

The record shows that, on January 24, 1992, more than two months after the dispositional order of November 22, respondent filed with this court motions which alternatively sought to amend the November 1, 1991, notice of appeal to include the trial court’s order of November 22, 1991, or to file a late notice of appeal from the later order. On January 28, 1992, the State filed objections to respondent’s alternative requests and asserted that the requirements for amendment or a late notice of appeal could not be met in accordance with Supreme Court Rules 303(c)(4) and (e) (134 Ill. 2d Rules 303(c)(4), (e)). Additionally, the State suggested that respondent be required to establish our appellate jurisdiction because she had filed what appeared to be a premature notice of appeal from the October 25 order.

On February 5, 1992, we denied respondent’s motion to amend the notice of appeal or to file a late notice of appeal and ordered respondent to file a memorandum of law addressing this court’s jurisdiction to review the October 25, 1991, order. On March 3, 1992, we denied respondent’s motion to reconsider the order of February 5, 1992. We ordered respondent’s memorandum of law on this court’s appellate jurisdiction to be taken with the case.

In her memorandum of law, respondent first argues that the order of October 25 is a final order under Rule 301 (134 Ill. 2d R. 301) even though there were matters left undecided, namely, the court’s review of the social assessment report, the treatment plan, and the entry of a final disposition. Respondent cites no authority directly on point holding that a court’s initial adjudication or finding that a person is subject to involuntary admission under the Code is immediately reviewable in this court where no final disposition has been made. Although respondent suggests that this court has routinely reviewed such adjudications without the trial court’s having considered the respondent’s treatment plan, she cites no actual cases in support of her position.

Section 3 — 816 of the Code provides that an appeal from a final order may be taken in the same manner as in other civil cases. (405 ILCS 5/3 — 816 (West 1992).) For this court to have jurisdiction, the order of the trial court must- be a final order unless it comes within the exceptions set forth by the supreme court rules. (Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351; see In re J.N. (1982), 91 Ill. 2d 122, 126.) A final judgment is one which fixes absolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution of the judgment. (Flores v. Dugan (1982), 91 Ill. 2d 108, 113.) An order which leaves the cause still pending and undecided is not a final order. (In re Johnson (1981), 102 Ill. App. 3d 1005, 1014.) Thus, even though a party challenges an order for voidness, the order may be deemed neither final nor immediately appealable if it reserves an issue for further consideration or otherwise manifests the court’s intention to retain jurisdiction for the entry of a further order. See Nelson v. United Airlines, Inc. (1993), 243 Ill. App. 3d 795, 799-800, relying in part on Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 518-20.

In the instant case, the trial court’s order clearly reserved issues for further consideration and stated that it would enter a “final order” of commitment on November 22, 1991. The order was not final because the trial court did not make a final disposition.

Alternatively, respondent argues that the adjudicatory order was final and appealable under Rule 304(b)(1) (134 Ill. 2d R. 304(b)(1)) because an order is final and appealable as to fewer than all parties or claims without a special finding that there is no just reason for delaying enforcement or appeal if the order is “entered in the. administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” (134 Ill. 2d R. 304(b)(1).) Respondent likens a civil commitment proceeding to one in which there is an order appointing or removing a guardian under Rule 304(b)(1).

In support of her position, respondent cites In re Estate of Neuf (1980), 85 Ill. App. 3d 468 (order refusing to remove respondents as conservators was an appealable order which disposed of all issues), and In re Estate of Storino (1977), 51 Ill. App. 3d 49 (where order appointed respondent guardian of the estates and persons of minors and the only issue before the trial court was the appointment of a guardian, the order was final and appealable). However, unlike the present case, in each of these cited cases the order was final because it disposed of the entire issue or controversy. Additionally, respondent cites no case wherein-an involuntary admission under the Code was appealed under Rule 304(b)(1), and our research has not revealed such a case.

To be final, a judgment must dispose of or terminate the litigation or some definite part of it. If jurisdiction is retained for the future determination of matters of substantial controversy, the order is not final. (Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill. App. 3d 606, 609.) Here, the court’s order did not completely and finally determine respondent’s rights or status, and the matter was subject to further consideration by the court before a final order of disposition would be entered. We conclude that the court’s adjudication that respondent was a person subject to involuntary commitment under the Code does not qualify as a “final” order either under Rule 301 or under Rule 304(b)(1). Rather, we believe that this type of proceeding is more closely analogous to proceedings brought under the Juvenile Court Act of 1987 (Juvenile Court Act or Act) (705 ILCS 405/1 — 1 et seq. (West 1992)), which was intended to provide for the protection, guidance, care, custody and guardianship of delinquent, addicted, abused, neglected or dependent minors. Indeed, in her brief, respondent herself analogizes the limited subject-matter jurisdiction of courts in civil commitment proceedings to that of juvenile court proceedings in arguing that a trial court may be deprived of jurisdiction to enter an adjudicatory order where the notice requirements are not followed. See, e.g., People v. R.S. (1984), 104 Ill. 2d 1.

Our supreme court has similarly analogized the notice requirements of civil commitment proceedings to those of proceedings under the Juvenile Court Act in determining that strict, formal notice requirements may be excused where there was no objection, the party had actual notice, and no prejudice could be said to have resulted. In re Splett (1991), 143 Ill. 2d 225, 231-32, discussing In re J. W. (1981), 87 Ill. 2d 56.

In a juvenile proceeding, an order finding a minor neglected and adjudicating wardship is not a final order. (In re Johnson (1981), 102 Ill. App. 3d 1005, 1014.) Rather, the dispositional order is the final judgment from which the appeal is taken. (In re J.M. (1987), 151 Ill. App. 3d 1037, 1038, citing In re J.N. (1982), 91 Ill. 2d 122, 127; In re Smith (1980), 80 Ill. App. 3d 380, 381.) Although civil commitment proceedings differ in some significant respects from juvenile proceedings (see In re Lamb (1990), 202 Ill. App. 3d 725, 729), proceedings under the Mental Health Code are somewhat analogous to bifurcated juvenile proceedings in having an adjudicatory phase (finding a respondent subject to involuntary admission) and a final disposition. The Code distinguishes between a finding that the person is subject to involuntary admission and the court’s determination of an appropriate disposition. See 405 ILCS 5/3-808, 5/3-809, 5/3-810, 5/3-811 (West 1992).

Before a final disposition is ordered, the Mental Health Code requires that the court consider a predispositional report which includes the availability of alternative treatment settings, a social investigation of respondent, a preliminary treatment plan, and any other information that the court requires before it may determine an appropriate disposition. (See 405 ILCS 5/3 — 809, 5/3 — 810 (West 1992).) The purposes of the report are to assist the court in determining the necessity for involuntary admission to a mental health facility, to protect against unreasonable commitments and patient neglect, and to assure adequate treatment for mental health care recipients. See In re Robinson (1992), 151 Ill. 2d 126, 133.

Since a well-considered disposition was necessary to a final determination of the rights or status of the respondent in this civil commitment proceeding, we hold that it was the final disposition which constituted the final order from which an appeal could be taken. Ordinarily, there will be little delay between the adjudication and the final disposition. In some cases, the final disposition will immediately follow or be virtually contemporaneous with the adjudication where the court has the requisite evidence and information before it. In the case at bar, because respondent filed a notice, of appeal after the finding and before the final disposition, the appeal was premature, and this court has no jurisdiction to consider the merits of respondent’s contentions. See, e.g., In re Lee (1979), 73 Ill. App. 3d 449, 450.

In reaching our conclusion, we are not unaware of its ramifications. We observe that the trial court had personal jurisdiction and subject-matter jurisdiction of the cause when it made its finding on October 25, 1991. There is no assertion that the proceedings were improperly initiated. No objection has been made to the sufficiency of the notice or the timeliness of the adjudicatory hearing; respondent appeared at the hearing and was represented by counsel. The court had jurisdiction to hear the case on the merits. (See In re Devine (1991), 214 Ill. App. 3d 1, 3, 6; see also. In re Nau (1992), 153 Ill. 2d 406, 417-19.) Even if we were able to consider the issue of voidness raised by respondent on appeal, we fail to see how the order continuing the cause for final disposition would invalidate the court’s prior adjudication and render the prior decision void for want of jurisdiction.

Although respondent complains that the trial court sua sponte wrongly ordered a continuance of more than 15 days, she failed to bring the error to the attention of the court by objecting to the continuance and appears, instead, to have acquiesced in the delay. The proper remedy was not a premature appeal to this court. Respondent could have challenged, but chose not to contest, the court’s continuance of the matter, and this error could have been easily corrected. Additionally, if respondent remained wrongly confined, among other things, she could have sought a writ of habeas corpus to secure her release. (In re Houlihan (1992), 231 Ill. App. 3d 677, 682; 405 ILCS 5/ 3 — 905 (West 1992).) A person hospitalized or admitted to alternative treatment by virtue of a court order may also petition to be discharged under section 3 — 900 of the Code (405 ILCS 5/3 — 900 (West 1992)). Finally, respondent could have perfected a timely appeal from the final order of disposition.

While this court does not condone impermissible delays in civil commitment proceedings, the Code appears to be silent regarding any specific remedy for delays caused by unwarranted continuances, and this court would be reluctant to create a remedy in the absence of deliberate or egregious conduct by the State which deprived respondent of her rights. (See In re Williams (1987), 151 Ill. App. 3d 911, 918-19.) The issue cannot be resolved in the present case and may be more properly a matter for the legislature to consider. See In re Williams (1986), 140 Ill. App. 3d 708, 713.

In sum, we hold that respondent cannot perfect her appeal from a nonfinal order of adjudication either under Rule 301 or Rule 304(b)(1). In a civil commitment proceeding, under the circumstances presented here, an appeal is proper if it is taken from a final order of disposition. Because respondent’s notice of appeal was premature, we have no appellate jurisdiction. We must therefore dismiss the appeal.

Appeal dismissed.

QUETSCH and COLWELL, JJ., concur.