author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT F. CRABBE, Defendant-Appellant.
    Second District
    No. 2—89—0520
    Opinion filed March 15, 1990.
    Mark A. Rouleau, of Crosby & Lambert, of Rockford, 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 McLAREN

delivered the opinion of the court:

Defendant, Herbert F. Crabbe, appeals from a judgment of the circuit court which denied defendant’s petition for rescission of the statutory summary suspension of his driving privileges, pursuant to section 2—118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1). Defendant contends that the breath-analysis machine used to test his breath at the time of his arrest for driving under the influence of alcohol was not properly certified as accurate, thus rendering his breath-test result invalid and inadmissible. We affirm.

Officer Gary Reffett of the Rockford police department arrested defendant in the early morning hours of April 7, 1988. Officer Reffett charged defendant with driving under the influence of alcohol in violation of section 11 — 501 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501). At the officer’s request, defendant submitted to a breath-analysis test. Defendant’s test result was .19. Following this test, Officer Reffett prepared a law enforcement sworn report and served notice upon defendant of the summary suspension of his driving privileges pursuant to section 11 — 501.1 of the Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1). Defendant timely filed a petition requesting rescission of the statutory summary suspension. The circuit court denied his petition and sustained the suspension. Defendant’s timely appeal ensued; however, pursuant to defendant’s motion, the circuit court stayed the suspension of his license pending the instant appeal.

The sole issue on appeal is whether the breath-analysis machine used to test defendant’s breath was properly certified as accurate pursuant to State statutes and applicable regulations. Defendant contends that the machine used to test his breath was not accurate within the meaning of the Department of Public Health’s regulations, thus rendering his breath test invalid and inadmissible. Defendant’s contention is based on his interesting but ultimately unconvincing interpretation of the applicable regulations.

The parties stipulate that the breath-analysis machine in question, a Smith and Wesson Model 2000 Breathalyzer, with a serial number of 20567, was tested by a licensed inspector on April 6, 1989, the day before defendant’s arrest. The parties further stipulate that the inspector conducted two analyses on the machine using a certified controlled reference sample with a known ethyl alcohol concentration of .10% weight per volume and that the machine yielded .09% weight per volume values for both analyses.

The Department of Public Health promulgated regulations concerning the proper procedures for administering breath-analysis tests and maintaining accurate breath-analysis machines. (77 Ill. Adm. Code §510.10 et seq. (1985).) The regulations require breath-analysis machines to “be accurate within ± 0.01% W/V to be certified [as valid alcohol concentration analysis machines].” (77 Ill. Adm. Code §510.100(a) (1985); see also People v. Davis (1989), 180 Ill. App. 3d 749, 752-53.) As noted in Davis, the regulations define “W/V” as the weight of alcohol per volume of breath or other substance sampled. 180 Ill. App. 3d at 753, citing 77 Ill. Adm. Code §510.20 (1985).

Defendant asserts that the phrase “within ± 0.01%’’ means “less than ± 0.01%.” Defendant argues that the April 6 analysis of the machine in question demonstrated that that machine’s margin of error was not “within” the margin of error specified by the regulation. In support of his interpretation, defendant quotes various definitions of the term “within” and cites two appellate court decisions.

One definition offered by the defendant defines “within” to mean “in the limits or compass of [as in within a mile].” We note the following similar definition:

“(1) Not beyond the quantity, degree or limitations of; (2) in or into the scope or sphere of; (3) in or into the range of; (4) used as a function word to indicate a specified difference or margin.” (Webster’s Ninth Collegiate Dictionary 1355 (1986).)

With these definitions in mind, we believe the term “within” as used in the Department of Public Health’s regulations means “range.” In other words, pursuant to the regulations, a breath-analysis machine which yields test sample results ranging from +0.01% to -0.01% is certifiably accurate. Case law cited by defendant does not disturb our determination in this regard.

In Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, the defendant board maintained a promotional rule that candidates for promotion whose written exam grades were “within the highest 25%” of all grades would advance to oral interviews. In November 1974, 17 corporals took the test. Noting that 25% of 17 is 4.25, the defendant board took the top five candidates and advanced them to oral interviews. It explained its action was based on its long-established practice of rounding the percentage up to a whole number whenever the actual percentage resulted in a whole number and a fraction. The appellate court held that the phrase “within 25%” was not ambiguous and, therefore, the board was not entitled to apply its long-standing practice in interpreting such ambiguous language. The court stated, “[fjive is 29.41 percent of 17 and thus not within 25 percent of 17.” (Emphasis in original.) (49 Ill. App. 3d at 1048.) We are unable to see how the holding in Hetzer supports defendant’s assertion that the term “within” as used in the Department of Public Health regulations means “less than.”

Defendant’s other citation is equally inapposite. In Sacks v. Legg (1920), 219 Ill. App. 144, 148, the appellate court considered the phrase “within a radius of 300 feet.” The court determined that the phrase required that “the whole territory embraced in the limits of such 300 feet should be included.” (219 Ill. App. at 148.) Again, we are unable to discern support in Sacks for defendant’s interpretation of “within.”

As an appendix to his reply brief, defendant has submitted a photocopy of an operator’s manual for the Smith and Wesson Model 2000 Breathalyzer. This document is extrinsic evidence and, as such, is not part of the record on appeal; thus, we shall not consider it. Nevertheless, the information contained in the operator’s manual does not support defendant’s contention, for it reveals that the Model 2000 breath-analysis machine provides for a numerical readout of only two digits to the right of the decimal point. In other words, it is apparent that the machine is capable of yielding numerical results.of only .10, .11, .09, and so on. The machine in question produced sample test results of .09 when it was tested with controlled samples with a known alcohol concentration of .10. Clearly, the machine yielded a numerical value that was .01 less than the controlled samples’ known concentration, or, put more simply, the machine erred by exactly .01. Defendant argues that, in order to be certified as accurate, the machine must err less than .01. Apparently, defendant believes that in order to satisfy the regulations’ requirements, a breath-analysis machine must register sample test results that are + .009%; however, according to the design of the machine itself, a sample test result consisting of three digits to the right of the decimal point is simply impossible. Although we do not consider the operator’s manual as part of the record on appeal, we offer the discussion above merely to illustrate the absurdity of defendant’s interpretation.

We reiterate a statement we made earlier in People v. Davis and determine that the Department of Public Health’s regulations clearly provide that the acceptable margin of error on a breath-analysis machine is ± .01%, a margin which is incorporated throughout the statutory scheme. See Davis, 180 Ill. App. 3d at 754.

In view of the foregoing, we reject defendant’s novel interpretation of the term “within,” and we affirm the order of the circuit court of Winnebago County sustaining the statutory summary suspension of defendant’s driving privileges.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP TRITTHARDT, Defendant-Appellant.
    Second District
    No. 2—88—1215
    Opinion filed March 14, 1990.

      Donald J. Ramsell, of Ramsell & Associates, of Schaumburg, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Phillip Tritthardt, appeals from an order of the circuit court denying his motion to declare unconstitutional the definition of “first offender” in section 11—500 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—500) and also to declare unconstitutional sections 5—6—1(d)(1) and 5 — 6—1(d)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—1(d)(1), (d)(2)). Defendant argued before the trial court and maintains on appeal that these sections are unconstitutional because they violate the equal protection clauses of the constitutions of the United States and the State of Illinois.

Defendant was arrested and charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501) on April 28, 1983. He was convicted of that offense on December 18, 1983. In October 1988, defendant was again arrested and charged with DUI. The Secretary of State suspended defendant’s driver’s license for one year beginning November 28, 1988.

Prior to the DUI trial, defendant filed a motion requesting that the court declare unconstitutional the definition of “first offender” in section 11 — 500 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 9572, par. 11—500) and also declare unconstitutional sections 5 — 6— 1(d)(1) and 5 — 6—1(d)(2) (supervision statute) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—1(d)). (The supervision statute excludes from eligibility for an order of supervision those defendants convicted of DUI who had been convicted of a similar offense or had been assigned supervision for DUI within the previous five years.) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—1(d)(1), (d)(2).) The court denied the motion. Following a stipulated bench trial, the court found defendant guilty of DUI and sentenced him to a term of seven days in the county jail with one year of probation.

Since defendant had been convicted of DUI within five years of his second DUI arrest, he was ineligible for an order of supervision, and he was also ineligible for a judicial driving permit (JDP) (see Ill. Rev. Stat. 1987, ch. 95½, par. 6—206.1). Defendant contends on appeal that the trial court erred in denying his motion to declare the supervision statute and section 11 — 500 of the Illinois Vehicle Code unconstitutional as violative of the equal protection clauses. Although the supervision statute and section 11 — 500 are not identical, their application to defendant and effect on him are sufficiently similar to permit us to combine the issues for purposes of this appeal. Compare Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—1(d)(1), (d)(2), with Ill. Rev. Stat. 1987, ch. 95½, par. 11—500.

The basis of defendant’s contention is that the determination of first-offender status from the date of conviction, rather than the date of the commission of the offense (see People v. Brom (1989), 189 Ill. App. 3d 910), creates two classes of defendants who are similarly situated, yet treated differently. Defendant argues that the statutes differentiate between persons on the basis of the date of prior conviction or supervision regardless of the date of the commission of the prior DUI offense. Arguing by example, defendant presents the following scenario. Another offender also was arrested for DUI on April 28, 1983, but that offender pleaded guilty and was convicted on June 28, 1983, whereas defendant was not convicted until December 1983. Both the offender and defendant were again arrested for DUI in October 1988. The hypothetical offender would be eligible for a JDP and supervision as a first offender, but defendant would not because his conviction was less than five years old at the time of the second arrest. Defendant asserts that there is no rational basis for treating him differently from the hypothetical offender, since they both committed the same offense on the same day.

A denial of equal protection is an arbitrary and invidious discrimination against a person or class. (Bilyk v. Chicago Transit Authority (1988), 125 Ill. 2d 230, 236.) A statute invidiously discriminates “when government withholds from a person or class of persons a right, benefit or privilege without a reasonable basis for the governmental action.” (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill. 2d 357, 367.) Where, as here, the legislation does not operate to the disadvantage of a suspect classification or infringe on a fundamental right, it will be upheld if it bears a rational relationship to a legitimate governmental interest. (People v. Esposito (1988), 121 Ill. 2d 491, 500.) The legislature has broad latitude and discretion in drawing statutory classifications, and those classifications are presumed to be valid. (Bilyk, 125 Ill. 2d at 236.) “A legislative classification will be upheld if any set of facts can be reasonably conceived which justify distinguishing the class to which the law applies from the class to which the statute is inapplicable.” Bilyk, 125 Ill. 2d at 236.

We must determine whether running the five-year time period from the date of conviction rather than the date of arrest invidiously discriminates against some drivers. Obviously, the legislature had to choose a date from which the five-year time period would run. The date of conviction is the most practical commencement point because the five-year period begins to run when the conviction is entered, rather than beginning retroactively. (Cf. People v. Carlock (1981), 102 Ill. App. 3d 1100, 1103 (wherein this court concluded that the plain language of the statute demonstrates that penalty for a second or subsequent offense for obscenity could not be enhanced unless there had been a prior conviction of defendant for an obscenity offense); see also People v. Brom (1989), 189 Ill. App. 3d 910 (in which this court found that the plain language of the statute demonstrates that the five-year period commences with the defendant’s conviction, assignment of supervision, or guilty plea).) Brom further finds that the statute does not state or imply a fourth alternative, namely, that the period is to commence with the defendant’s arrest. (Brom, 189 Ill. App. 3d at 913.) In addition, it is fairer to calculate the time period from the date of conviction than from the date of arrest because in the former case everyone in fact must wait five years before he or she is eligible for either benefit, whereas in the latter, the actual time that a defendant would have to wait varies. The present statutory scheme treats everyone the same: no one is eligible for a JDP or supervision for a period of five years from the date of conviction or from the date an order of supervision is imposed for DUI. The statutory scheme is reasonable and related to the legislative purposes.

Because defendant has failed to maintain his burden to show that the statutory scheme invidiously discriminates against a class of persons, we conclude that section 11—500 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½ par. 11—500) and sections 5 — 6—1(d)(1) and 5 — 6—1(d)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—6—1(d)(1), (d)(2)) are constitutional.

The order of the circuit court is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE GEIGER

text:
    AMERICAN PROPERTY MANAGEMENT COMPANY, d/b/a De Kalb Plaza Apartments, Plaintiff-Appellee, v. SHIRLEY GREEN-TALAEFARD, Defendant-Appellant.
    Second District
    No. 2—89—0590
    Opinion filed March 15, 1990.

      Anne S. Quincy, Jerry Brask, and Sarah Megan, all of Prairie State Legal Services, of Batavia, for appellant.
    James R. Buck, of Klein, Stoddard & Buck, of Sycamore, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Shirley Green-Talaefard, appeals from the trial court’s order granting possession and a money judgment to the defendant’s landlord, the plaintiff American Property Management Company, d/b/a De Kalb Plaza Apartments. On appeal, the defendant contends that the plaintiff improperly terminated the defendant’s Federal housing assistance, which resulted in her ultimate inability to pay her rent and her subsequent eviction. We reverse the judgment and remand the cause with directions.

The following facts were adduced at a bench trial on the plaintiff’s complaint in forcible entry and detainer. The proceedings were not transcribed; however, the parties have supplied the appellate court with a stipulated bystander’s report. At trial the plaintiff presented the testimony of Lon VanOuwerkerk, who managed De Kalb Plaza Apartments for the plaintiff; Scott Clausen, the assistant manager; and Stephanie VanOuwerkerk, Lon’s wife and the plaintiff’s bookkeeper at the De Kalb Plaza facility. The defendant testified in her own behalf.

According to Lon, approximately 30 units in the De Kalb Plaza are subsidized under a Federal housing-assistance program administered by the Department of Housing and Urban Development (HUD) (see 42 U.S.C. §1437f (1989 Supp.)). The defendant has been a tenant in one of those such subsidized units since approximately October 1985.

The defendant was tendered a new lease on February 14, 1989, effective March 1, 1989, which called for a monthly rental payment of $287. Lon stated that defendant failed to make the full rental payment for March 1989, within the 10-day grace period provided in the lease, so he delivered a notice to her that her tenancy was terminated due to nonpayment. The defendant failed to make a rental payment in April, and the plaintiff commenced the instant action against her on April 13,1989.

The parties each produced leases which preceded the lease which became effective March 1, 1989. Plaintiff’s exhibit No. 3, effective June 1, 1988, included the defendant’s signature and that of her husband, Hadi Talaefard. Defendant’s exhibit No. 1, effective January 1, 1989, is signed only by the defendant, as is the lease effective March 1,1989.

Paragraph three in each lease provides, in pertinent part:

“3. Rent: *** Tenant agrees to pay the monthly rent set forth in column (1) above on the date the rent is due at the Owner’s address set forth above. The Owner certifies that HUD has authorized him/her to collect the type of charges shown in column (1) and that the amounts shown in column (1) do not exceed the amounts authorized by HUD. The Tenant understands that this monthly rent is less than the market (unsubsidized) rent due on this unit. This lower rent is available *** because HUD makes monthly payments to the Owner on behalf of the Tenant. The amount, if any, that HUD makes available monthly on behalf of the Tenant is called the tenant assistance payment and is shown on the ‘Assistance Payment’ line of the Certification and Recertification of Tenant Eligibility Form which is attachment A No. 1 to this Agreement.” (Emphasis in original.)

Column 1 on each of the three leases provides for a monthly rental payment of $287 due on the first day of the month. None of the three leases submitted into evidence includes Attachment No. 1 as referred to in paragraph 3; however, the lease effective June 1, 1988, includes the following notation in a box entitled “Additional Agreements & Covenants:”

“HUD $228.00 Tenant 59.00.”

The lease effective January 1, 1989, contains a similar legend reading: “Res $90.00[,] HUD $197.00.” The lease effective March 1, 1989, contains no such legend.

The defendant also submitted a rental application executed by her husband on July 16, 1988. In it he provided information concerning his current employer and approximated his net monthly salary. The defendant testified that her husband was added as a signatory to her lease in June 1988 at his request.

On November 30, 1988, Stephanie VanOuwerkerk, plaintiff’s bookkeeper, prepared a HUD Tenant Eligibility Form in which she calculated defendant’s income status and the assistance payment the defendant would receive from HUD. Stephanie categorized the defendant’s income status as “very low” and calculated the defendant’s portion of the rent at $90, with an assistance payment of $197. The form further indicates that the defendant’s next annual recertification was to be effective January 1, 1990. The defendant certified the information contained in the Tenant Eligibility Form by signing it on December 2, 1988, simultaneous with her execution of the lease which became effective January 1, 1989. The defendant testified that she requested that her husband be left off the lease since he was not living with her.

On January 16, 1989, Lon delivered to the defendant a form purporting to be a notification of rent change. It provided as follows:

“This is to notify you that on the basis of information obtained by the De Kalb Plaza management, your rent has been adjusted to $287.00. This new rent rate is effective March 1st, 1989. This notification amends paragraph 3 of your lease agreement which sets forth the amount of rent you pay each month.
Please come by the office no later than January 26th, 1989 to sign your new lease and to discuss this change.”

The defendant and her husband met with Lon and Scott Clausen on January 26, 1989, to discuss the notice. On cross-examination Lon admitted that no new certification on defendant’s income had been prepared in support of the lease effective March 1, 1989. He further admitted that although paragraph 17(a)(1) of the lease required HUD’s approval for the termination of a tenant’s rental subsidy, he had not obtained such approval. He stated, however, that he had received a directive from HUD permitting the termination of such subsidies without HUD approval in cases of fraud or where management believed the tenant had not provided all of the information requested by management.

Lon did not produce the alleged HUD directive. Lon further stated that although the January 16, 1989, notice did not explicitly state that the defendant’s HUD rental subsidy was being terminated, such termination was clear from the language of the notice. Lon further testified that at the January 26 meeting, the parties made no specific reference to the termination of the defendant’s rental subsidy and that no other meetings took place between the parties.

Testifying for the plaintiff, Scott Clausen, the assistant manager at De Kalb Plaza, stated that he was present at the meeting with the defendant and her husband on January 26, 1989. He stated that the parties discussed the change in rent and indicated that management’s concern was the defendant’s husband’s actual residence, his income, and his contribution to the support of the defendant. According to Clausen, sometime after the January 26 meeting the defendant provided him with a notarized statement from an individual named Hassan Azarpira. It was dated January 30, 1989, and stated that Hadi Talaefard, the defendant’s husband, had been living with him for the past five months, seeking employment in the Chicago area. The plaintiff submitted this document as well as a claim eligibility notice from an Illinois unemployment compensation office which indicated that Hadi Talaefard was “ineligible due to wages” for unemployment benefits.

Both Lon and Clausen stated that the defendant told them Talaefard was not living with her; however, both testified that they continued to see Talaefard in and around the apartment complex throughout January 1989. Clausen further testified that he directed a mailman to deliver Talaefard’s mail to defendant’s mailbox.

The defendant testified that although she and Talaefard were married in December 1987, the couple had never lived together. She stated that she and her children had lived in apartment 502A at De Kalb Plaza Apartments for approximately four years and that she was employed at Northern Illinois University as a secretary. According to the defendant, Talaefard visited her often and had stayed with her two to four evenings a week through January 1989. She denied that her husband ever lived with her at the De Kalb Plaza Apartments on a continuous basis. She further stated that she was unaware of his current whereabouts.

The defendant testified that she received the notification of rent change, that she read it, and that she attended a meeting on January 26, 1989, concerning the notice. She stated, however, that she did not understand she was to pay the full amount of rent. On February 14, 1989, defendant signed a new lease effective March 1, 1989. On March 2, 1989, she tendered $90 to Lon, who refused to accept it and demanded payment of the full amount of the rent. Lon delivered a notice of termination of tenancy to the defendant on March 10, 1989, and subsequently commenced the forcible entry and detainer action against her.

At trial, defendant’s counsel attempted to submit photocopies of Federal housing regulations as well as excerpts of provisions of the HUD handbook which she stated were applicable to the Federal housing subsidy program at issue. The plaintiff objected to the submission of those documents, and, despite defense counsel’s argument that the trial court was required to take judicial notice of the Federal regulations, the trial court sustained the plaintiff’s objection.

In closing argument, plaintiff’s counsel asserted that the defendant had executed a new lease, had failed to pay the required rent, had been appropriately notified of the termination of her tenancy, and had failed to resolve the dispute with her landlord. Plaintiff’s counsel further asserted that the defendant’s allegations concerning the plaintiff’s failure to properly terminate the defendant’s rental subsidy were immaterial to the plaintiff’s complaint.

Defendant’s counsel argued that the defendant’s housing assistance had not been properly terminated pursuant to the parties’ lease and that the plaintiff’s termination of the defendant’s housing assistance violated defendant’s due process rights. Defendant’s counsel further argued that each lease in evidence contained identical language requiring HUD’s approval, which plaintiff failed to obtain, to terminate a tenant’s housing assistance.

Relying on basic landlord-tenant law, the trial court found that rent of $287 was due, that the defendant had failed to pay the rent, and that the plaintiff was entitled to possession. The court did not address the issue of the propriety of the termination of the defendant’s housing-assistance subsidy. The court subsequently denied the defendant’s amended post-trial motion to vacate the judgment but, upon the parties’ agreement that the defendant pay the full rent during the pendency of this appeal, granted the defendant’s oral motion for a stay of execution of the judgment pending appeal. The defendant’s timely appeal ensued.

The plaintiff contends that the instant cause involves no more than a tenant’s failure to pay her rent and the landlord’s concomitant right to evict her for this failure. It is apparent from the record, however, that the plaintiff’s unilateral termination of the defendant’s housing-assistance benefits directly resulted in the defendant’s inability to pay her rent. In short, the plaintiff’s conduct brought about defendant’s alleged breach. Thus, the issue before us is not simply whether plaintiff properly terminated defendant’s lease but, rather, whether defendant’s failure to pay rent, under the circumstances presented, constitutes cause for such termination.

In order to resolve this matter, we must consider an issue the trial court failed to address, i.e., the propriety of the plaintiff’s unilateral termination of the defendant’s housing-assistance benefits. At the outset, we note that the defendant has a property interest in the continued receipt of such benefits, which may not be terminated without regard for the defendant’s due process rights. See Holbrook v. Pitt (7th Cir. 1981), 643 F.2d 1261, 1277-78.

Plaintiff apparently concedes that the defendant has a property interest in her entitlement to the continuation of housing-assistance benefits but claims that the defendant has waived her due process rights by failing to assert them at the trial level. Our review of the record satisfies us that the defendant sufficiently invoked her due process claims both in her closing argument at trial and in her post-trial motion.

We now consider whether the defendant was accorded due process prior to the termination of her housing-assistance benefits. The plaintiff correctly states that due process “is a flexible concept that requires such procedural protections as the particular situation demands” (Holbrook, 643 F.2d at 1280). In Holbrook, the United States Court of Appeals for the Seventh Circuit enumerated several factors the court must weigh in its due process determination, including: (1) the private interest to be affected by the termination of the entitlement; (2) the risk of erroneous deprivation; and (3) the burden on the governmental entity to provide varying degrees of procedural safeguards. 643 F.2d at 1280, citing Mathews v. Eldridge (1976), 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903.

Clearly, the private interest at stake is significant: as a practical matter, defendant’s loss of housing-assistance benefits may result in her and her children’s loss of their shelter.

In order to weigh the next factor, i.e., the risk of erroneous deprivation of housing-assistance benefits, we must consider the procedural safeguards actually used by the plaintiff in the instant matter. The Supreme Court has stated that notice and the opportunity to be heard are essential in order to accord due process to an individual faced with a significant loss. (Mathews, 424 U.S. at 348, 47 L. Ed. 2d at 41, 96 S. Ct. at 909.) Indeed, the parties’ leases of June 1, 1988, January 1, 1989, and March 1, 1989, provide these basic elements of due process in paragraph 4, “Changes in the Tenant’s Share of the Rent,” and paragraph 17, “Termination of Assistance.”

Paragraph 4 provides, in part:

“The Owner agrees to implement changes in the Tenant’s rent or rental assistance payment only in accordance with the time frames and administrative procedures set forth in HUD’s handbooks, instructions and regulations related [sic] to administration of multifamily subsidy programs. *** The Notice [of changes in the tenant’s rent or tenant assistance payment] will state the new amount the Tenant is required to pay, the date the new amount is effective, and the reasons for the change in rent.” (Emphasis added.)

Paragraph 17 authorizes the landlord to terminate a tenant’s housing-assistance benefit if the tenant provides false information to the landlord for the purpose of obtaining such assistance or if the tenant fails to submit household composition and income information to the landlord in a timely manner. In either case, paragraph 17(b) provides:

“The Owner agrees to give the Tenant written notice of the proposed termination. The notice will advise the Tenant that, during the ten calendar days following the date of the notice, he/she may request to meet the Owner to discuss the proposed termination of assistance. If the Tenant requests a discussion of the proposed termination, the Owner agrees to meet with the Tenant.” (Emphasis added.)

On January 16, 1989, as noted above, the plaintiff did provide defendant with notice of a change in her rent. The deficiency in this notice, however, is threefold. First, although the notice purports to amend paragraph 3 of the lease effective January 1, 1989, by changing the defendant’s rent to $287 per month, paragraph 3 already provided for a monthly rent of $287 by virtue of its reference to column 1. In fact, column 1 provided for a monthly rent of $287 on all three of the leases submitted into evidence.

Second, nowhere does the notice state that the plaintiff proposed to terminate (or, as is the case here, had already terminated) the defendant’s housing-assistance benefits. Although Lon, the plaintiff’s manager, testified that the notice clearly implied that the defendant’s benefits were being terminated since it stated her rent was being changed, the defendant testified she did not understand she was to pay the full rental amount.

Third, the notice is also deficient in its failure to state the reason or reasons for the “rent change.” The notice merely states that the defendant’s rent is being changed, “on the basis of information obtained by the *** management,” when, in fact, Lon’s testimony and the plaintiffs appellate brief suggest that Lon terminated the defendant’s benefits because she failed to provide necessary household composition and income information. In short, we determine that the plaintiff failed to give proper notice to the defendant that it had terminated her housing-assistance benefits.

The plaintiff’s manager did meet with the defendant to discuss the notice. Lon testified, however, that at this meeting no specific reference was made to the termination of the defendant’s benefits. Lon and Scott Clausen both stated that the meeting was focused on Hadi Talaefard, the defendant’s husband, i.e., where he was living, whether he had income, and whether he contributed to the defendant’s support. Although Lon stated that the defendant never answered these questions, his testimony was contradicted by the defendant and by Clausen. The defendant stated that she told Lon and Clausen that her husband did not live with her; and shortly after the meeting she confirmed this statement by providing Clausen with the sworn statement of Hassan Azarpira. She also gave Clausen an unemployment form which confirmed that Talaefard had not earned wages from the named employer for four quarters, ending with the third quarter of 1988.

The record fails to disclose what, if any, effort the plaintiff made to confirm or disprove the information provided by defendant. We note further that although defendant’s lease, effective January 1, 1989, provided for a monthly subsidy of $197 based on a HUD recertification procedure followed by plaintiff, Lon testified that he did not perform a new recertification for the lease effective March 1, 1989, which provided no subsidy. In other words, Lon terminated defendant’s housing-assistance benefits without affording her any due process protection and failed to reconsider the termination when the defendant provided the information he had requested.

We find that in contrast to the severe hardship upon defendant resulting from the plaintiff’s unilateral termination of her housing-assistance benefits, the burden on the plaintiff to employ procedural measures to safeguard the defendant’s rights is minimal.

Our determination that plaintiff terminated defendant’s housing-assistance benefits in violation of her due process rights is not affected by plaintiff’s assertion that it had been authorized by HUD to proceed without HUD’s approval. First, the plaintiff failed to produce the alleged directive containing the authority. Second, and more important, no matter what the directive said, it could not have authorized the plaintiff to terminate welfare tenants’ housing benefits in the absence of proper procedure. A decision by HUD to give the plaintiff the unreviewable right to cut off a tenant’s benefits would clearly “offendQ the concepts of fairness and nonarbitrariness which are at the heart of the constitutional requirement of due process.” Holbrook, 643 F.2d at 1279.

The plaintiff brought about defendant’s breach of the March 1, 1989, lease by its improper termination of her housing-assistance benefits. Accordingly, the plaintiff is not entitled to possession of the unit or to a money judgment. Thus, we reverse the judgment of the circuit court. Further, we vacate the circuit court’s order that the defendant pay the full monthly rental amount of $287 during the pendency of this appeal and remand the cause with directions that the circuit court calculate the amount which the plaintiff must refund to the defendant as a result of this order.

Reversed and remanded with directions.

DUNN and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL ACCARDO, Defendant-Appellant.
    Second District
    No. 2—89—0185
    Opinion filed March 14, 1990.
    Rehearing denied April 12, 1990.

      Carl P. Clavelli, of Schiller Park, of appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and John Thomas Moran, of Law Offices of John Thomas Moran, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Daniel Accardo, was charged with unlawful possession and delivery of more than 500 grams of cannabis. (Ill. Rev. Stat. 1987, ch. 56½, pars. 704(e), 705(e).) Accardo was found guilty after a bench trial and sentenced to a four-year term of imprisonment. Accardo appeals, claiming four instances of error: (1) evidence of taped conversations was admitted in violation of the Illinois eavesdropping statute; (2) Accardo’s right to confrontation was violated when the State failed to disclose an informant’s written statement and failed to reveal the details of the agreement reached between the State and the informant; (3) Accardo’s right to confrontation was violated when a witness for the State was allowed to invoke his fifth amendment rights during cross-examination; and (4) Accardo’s affirmative defense of entrapment was not refuted beyond a reasonable doubt.

In October 1984, Lonnie Maret, the informant, was arrested in Stillwater, Oklahoma, and charged with unlawful distribution of cocaine. Maret, in an attempt to work out a deal, was introduced to Grady Lowrey, an agent with the Oklahoma Bureau of Narcotics and Dangerous Drugs. Maret agreed to act as an informant against Accardo and Timothy O’Leary, both Illinois residents, if Lowrey could arrange some consideration on his pending drug charge. Maret told Lowrey that he had purchased a total of 30 to 50 pounds of cocaine and a large quantity of marijuana from the two men throughout the past several years. Maret revoked his offer to act as an informant when Lowrey indicated the prosecutor would not afford Maret any consideration. Lowrey did not prepare any reports of these discussions. Maret was convicted in October 1986 and received a three-year sentence with all but the first six months suspended.

On February 8, 1988, Maret was found to be in possession of a small amount of cocaine by a local chief of police, Mike Devlin. Again, Maret offered to act as an informant in exchange for consideration on the State’s part. Devlin transported Maret to Tulsa, Oklahoma, to meet with Lowrey. Lowrey learned that Maret was on probation at the time for his prior conviction and would receive a “total pass” in this instance if he cooperated. However, there is nothing in the record to indicate that the local prosecutor was ever contacted or consulted as to this arrangement.

Maret again gave Lowrey the names of Accardo and O’Leary, although he indicated that he had not been in close contact with or purchased drugs from them since 1984. Maret placed phone calls to both O’Leary and Accardo from Lowrey’s office on February 10, 1988. These calls were tape-recorded. Throughout the next six weeks, several more phone calls were made to Accardo from Maret and Lowrey. These calls were also recorded.

An agreement was reached in which Accardo agreed to sell Maret and Lowrey 55 pounds of marijuana for approximately $67,000. Maret and Lowrey traveled to Lake County, Illinois, on March 28, 1989, and contacted Accardo. The three men met, and on March 30, Accardo gave the marijuana to Lowrey. Accardo was then placed under arrest. The Lake County officials were first notified on the following day, and they charged Accardo with unlawful possession and delivery of more than 500 grams of cannabis.

The case proceeded to trial on November 14, 1988. After brief opening statements, the State called Lowrey as its first witness. Lowrey testified that Devlin brought Maret to him on February 10, 1988. Maret placed a phone call to Accardo on this date and the call was recorded.

At this point in the testimony, Accardo filed a motion in limine seeking to exclude from evidence any reference to the substance of the taped conversations. Accardo alleged that the tape recordings were made in violation of the Illinois eavesdropping statute and, therefore, evidence contained on the tapes was inadmissible. The court denied the motion, finding that thére was no collusion between Oklahoma and Illinois authorities and the Oklahoma authorities were in compliance with Oklahoma law. Accardo was permitted to lodge a continuing objection to the testimonies of Lowrey and Maret on the basis that the recorded evidence was obtained in violation of Illinois law. A total of seven tapes were admitted into evidence.

On cross-examination, Lowrey stated that when he and Maret came in contact on February 10, 1988, Maret again offered to set up a drug deal with Accardo and O’Leary. It was Lowrey’s understanding that Maret had been detained for possession of cocaine and that Devlin had reached an agreement with the local prosecutor in which Maret would receive a “total pass” on the possession of cocaine if he agreed to cooperate. Lowrey testified that he did not know if Devlin had formally arrested Maret prior to bringing him to Tulsa. Lowrey did not inquire as to whether Maret was in custody at the time. Lowrey was informed that Maret was still on probation at the time he was found to be in possession of cocaine. Lowrey did not check with any prosecuting official to determine if Maret’s probation violation would be excused in exchange for his cooperation.

Lowrey testified that the Oklahoma Bureau of Narcotics and Dangerous Drugs has a written policy regulating its activities with informants. The policy calls for an in-depth interview to be conducted with the informant and a “history sheet” to be prepared and signed by the informant. Lowrey initially testified that he prepared the statement but forgot to bring it with him. He later stated that he doubted if there was a written history taken.

Lowrey acknowledged that the policy requires all pertinent information to be recorded and forwarded to headquarters. Lowrey admitted that his April 8, 1988, report did not contain the detailed information required by the policy, and he characterized these omissions as administrative errors. Lowrey’s report was prepared from notes that he had kept throughout the investigation, and the notes were discarded when the report was typed. The report detailed the substance of the various telephone contacts between Maret, Lowrey and Accardo. Lowrey admitted that “all of the information is not in that report.” Accardo reiterated his request to discover the notes and reports of interviews and any promises of leniency made in exchange for Maret’s cooperation.

Lowrey testified that the informant policy also requires the cooperating individual to disclose all his knowledge of criminal activity. Lowrey admitted that it would not surprise him if Maret had withheld information concerning his knowledge of illegal activity. Lowrey testified that Maret gave him several names of people who were involved in drug dealing. Lowrey did not give those names to local police and threw away the notes containing these names. Lowrey did not prepare a report containing this information, and the only names that Lowrey could remember were Accardo and O’Leary. Lowrey testified that he did not ask where Maret had purchased the cocaine he possessed when stopped by Devlin. Lowrey testified that it was his understanding that Maret was never “arrested” for possession of cocaine in 1988, and Maret’s probation officer was never notified of the probation violation.

Maret testified concerning his relationship with Accardo and O’Leary. He stated that he had purchased approximately one ton of marijuana and 25 to 30 pounds of cocaine from the two men during the early 1980s.

On cross-examination, Maret admitted to having an alcohol and drug problem until his arrest in 1984. Maret testified that it was at this time he stopped dealing in drugs. Maret admitted he was arrested on February 8, 1988, for being in possession of a small amount of cocaine. Maret also admitted that he was on probation at the time for his 1986 drug conviction. Maret knew that a condition of his probation was to abstain from using or possessing unlawful substances and to avoid places where they are used or sold. Maret denied that his drug problem was such that he could not abstain even while on probation. The following exchange occurred:

“Q. Well, you were aware that one of the conditions of your drug conviction and sentence were [sic] to abstain from using any unlawful substances?
A. Yes.
Q. You were unable to do that, is that right?
A. I’d like to say that there’s — who says I was using it? I mean — .
Q. So you deny you were using cocaine in 1988?
A. I am going to stand on my 5th amendment on that.
Q. Mr. Maret, you use drugs — when was the last time you used drugs?
MR. SCHOSTOK: Objection.
* * *
THE COURT: Objection sustained.
MR. CLAVE LLI: Well, I move to strike this witness’s testimony then.”

During the ensuing discussion outside the presence of the witness, the court opined that Maret had the right to remain silent. The court admonished Maret that he had the right “not to answer questions that you feel may tend to incriminate you. That’s your right.” The court also chose not to strike Maret’s testimony as a result of his exercise of his right. When questioning resumed, Maret denied being arrested in February 1988.

Maret testified that the car he was driving on February 8, 1988, was stopped by Devlin. Maret and his two passengers, Rick and Connie Sindorf, were each in possession of cocaine and were taken to the Perry County police station, where Maret was detained for four hours. Maret stated that Devlin knew him from the 1984 investigation, which led to his arrest and conviction, and Devlin knew that Maret was on probation at the time.

Maret reached a deal with Devlin in which Maret would cooperate, and no charges would be brought against him for the cocaine possession. Devlin told him that it would be “like it never happened.” When Maret filed his monthly probation report for February 1988, he indicated to his probation officer that he was stopped for “failure to signal a lane change” and received a “verbal warning.” He made no mention of his cocaine possession. Maret testified that Devlin specifically told him he did not have to report his possession of cocaine to his probation officer. There is no evidence that the local prosecuting attorney was ever consulted as to this arrangement. When asked if he had violated the conditions of his probation, Maret again resorted to his fifth amendment privilege and refused to answer. A side-bar conference followed during which the court held that it was inappropriate to require Maret to admit that he knew he had violated a condition of his probation. The court sustained the State’s objection made after Maret had invoked his constitutional privilege.

Maret was then questioned concerning his 1986 conviction of distribution of cocaine. Maret testified that he submitted an application for a suspended sentence. In the application, Maret agreed to provide information and to cooperate with his probation officer. He met with the officer on several occasions and claimed to have cooperated with her as directed. When asked if he admitted to her that he had committed the offense with which he was charged in 1984, Maret replied that it was “obvious he had dealt drugs. Yes.” When the answer was stricken as not responsive, he replied that he did not know “if I ever admitted to her or not that I had sold the drugs.” When asked if the statement contained in the presentence investigation report that he was “offered an opportunity to cooperate and refused” was true, Maret testified that it was. Follow-up questions were curtailed when the State objected, claiming Maret had “no duty to admit anything.” The court sustained the objection. The court refused to admit into evidence either the application for a suspended sentence or the presentence investigation report.

Maret testified that he was present and heard everything said by his attorney on his behalf at the October 3, 1986, sentencing hearing. The State objected to any cross-examination concerning Maret’s attorney’s statements at his sentencing hearing. An offer of proof detailed several of Maret’s lawyer’s statements at the sentencing hearing, which directly contradicted Maret’s testimony in the case at bar. Maret’s attorney told the sentencing judge that Maret was a plumber and not a big drug dealer. These arguments prompted the sentencing judge to remark that he had a problem concluding that Maret was the large drug dealer the prosecutor had claimed. Maret received a three-year sentence with all but the first six months suspended. Though Accardo argued that he should be permitted to cross-examine Maret with the statements made by his attorney in his previous prosecution, the objection was sustained on the basis that the statements were not made by Maret himself.

Maret claimed to have disclosed to Lowrey all his knowledge about drug dealing in Oklahoma as part of his cooperation, including the names of approximately six people. Maret stated that, at the conclusion of the two- or three-hour interview with Lowrey, he was sure he signed a statement, which he himself had prepared concerning his activities.

Maret refused to answer questions about his personal drug purchases. The following exchange occurred:

“Q. Did you give him names of other people whom you have purchased drugs from?
A. I gave him names of people that I believed were probably still in the drug business.
Q. Well, Mr. Maret, let’s quit skirting the issue. Did you give him names of people you purchased drugs from?
A. I am going to have to stand on my 5th Amendment.”

Accardo testified that Maret had previously informed him of Maret’s arrest in 1984 for selling cocaine. Subsequent to 1984, Accardo spoke to Maret only a couple of times a year until February 1988. Accardo testified that there were many phone conversations between himself and Maret other than the seven recorded by Lowrey. Accardo testified that Maret called him and implored him to sell a large quantity of drugs. Maret indicated that he owed some people a large sum of money and, unless he arranged a drug transaction for these people, they would harm him and his family. Accardo stated that he agreed to the drug transaction only when it appeared that the lives of Maret and his family were in danger.

At the close of evidence, the court found Accardo guilty of the offenses charged. A hearing was subsequently held, and Accardo was sentenced to four years’ imprisonment. The court denied Accardo’s post-trial motion, and he appealed.

Defendant contends that the court erred by admitting into evidence the tape-recorded phone conversations. Defendant argues that these conversations were recorded in violation of the Illinois eavesdropping statute. Therefore, the tapes should not have been allowed into evidence.

The Illinois eavesdropping statute provides:

“A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation and in accordance with Article 108A of the ‘Code of Criminal Procedure of 1963’ ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 14—2(a).)

Article 108A provides:

“The State’s Attorney may authorize an application to a circuit judge for, and such judge may grant in conformity with this Article, an order authorizing or approving the use of an eavesdropping device by a law enforcement officer or agency having the responsibility for the investigation of any felony under Illinois law where any one party to a conversation to be monitored *** has consented to such monitoring.” (Ill. Rev. Stat. 1987, ch. 38, par. 108A—1.)

Evidence obtained in violation of this provision is inadmissible. Ill. Rev. Stat. 1987, ch. 38, par. 14—5.

It is uncontradicted that the directives of the Illinois statute were not complied with in making the tapes. While there was consent by one party to the conversations, there was never an application to and approval by a circuit court judge. Nevertheless, the State maintains that the tapes are admissible because they were obtained in conformity with Oklahoma and Federal statutory provisions. See Okla. Rev. Stat. 1987, ch. 13, par. 176.4; 18 U.S.C. §2511(2)(c) (1987).

The issue is whether evidence gathered by foreign State law enforcement officials as a result of eavesdropping, which conforms to the foreign State’s statutory requirements but not with the Illinois eavesdropping statute, can be used against the defendant in an Illinois proceeding.

In People v. Fidler (1979), 72 Ill. App. 3d 924, Federal officers conducted a search pursuant to a Federal search warrant. The warrant was obtained as a result of electronic eavesdropping which conformed to Federal constitutional and statutory requirements but was in violation of the Illinois statute. The trial court suppressed the evidence. This court, in reversing the trial court, stated:

“The purpose of the exclusionary rule is to deter law enforcement officers from violating the constitutional rights of citizens by removing the incentive for disregarding such rights. [Citation.] The suppression order in this case did not serve this end, however, since the actions of the Federal postal authorities, pursuing a wholly Federal investigation, were entirely lawful, and the record contains no hint of collusion between Federal and State authorities seeking to avoid the limitations of the Illinois Eavesdropping Statute. The only result of the entry of the suppression order in this case is that it prevents highly probative evidence from being available to the finder of fact in a criminal trial. In our view, the order constituted an unwarranted extension of the exclusionary rule and must therefore be reversed.” Fidler, 72 Ill. App. 3d at 926.

See also People v. Manna (1981), 96 Ill. App. 3d 506, 516 (this court again held that evidence gathered by Federal authorities in violation of the Illinois eavesdropping statute was admissible when there was nothing in the record to suggest a collusive attempt to evade the Illinois statute).

In People v. Winchell (1986), 140 Ill. App. 3d 244, the eavesdropping was carried out by both Illinois and Federal authorities in compliance with Federal law but in violation of the Illinois directives. The court held the evidence to be admissible as there was no evidence of collusion to avoid the Illinois requirements. Winchell, 140 Ill. App. 3d at 246, 247.

The only difference in this case from those cited above is that, in admitting the tapes, the trial court relied on the fact that foreign State authorities conducted the eavesdropping pursuant to their State statutes as opposed to Federal authorities acting pursuant to Federal directives. We find this distinction to be meaningless. The policy behind the exclusionary rule, as enunciated by this court in Fidler, is not forwarded by suppression of evidence obtained by others in conformance with laws governing their conduct, regardless of whether it is the Federal government or a foreign State agency. We find that the absence of evidence of collusion between Oklahoma authorities and Illinois authorities to circumvent the Illinois eavesdropping statute renders the evidence admissible. The trial court was correct in allowing the taped conversations into evidence.

Accardo next contends that he was denied his constitutional right to confrontation due to the State’s failure to comply with discovery requests. Specifically, Accardo claims that he should have received the notes taken by Lowrey during the interview with Maret. Accardo also claims that he should have received the written statement given to Lowrey by Maret. Due to these omissions, Accardo argues that his right to cross-examination was nullified.

It is uncontradicted that Lowrey’s notes of his interview with Maret were destroyed. Lowrey testified that as the investigation progressed, his notes would be typed by his secretary and the notes destroyed. It is obvious that evidence cannot be discovered if it does not exist. The fact that the notes were destroyed may reflect on Lowrey’s credibility. However, Lowrey was present at trial and subject to cross-examination. He was questioned about the notes and his methods of investigation. The fact that the notes were destroyed is not a denial of Maret’s right to confrontation.

Additionally, there is some question as to whether Maret prepared a written statement. Maret testified that he did, but Lowrey testified that if it was not included in the file that he produced, it did not exist. Again, nonexistent evidence cannot be disclosed. Absent proof that the statement exists, there can be no error in failing to tender it to Accardo.

Accardo also claims that his right to confrontation was violated as the State did not fully disclose Maret’s criminal conduct and the extent of promises of leniency given to Maret. Accardo cites Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, in support of his argument. In Giglio, the assistant United States Attorney who presented the case to the grand jury promised the witness, a coconspirator, that he would not be prosecuted if he testified before the grand jury and at trial. The assistant United States Attorney who tried the case was unaware of the promise of leniency. The defendant filed a motion for a new trial on the basis of newly discovered evidence, contending the government failed to disclose the alleged promise of leniency made to its key witness in return for his testimony. The court held that the defendant was entitled to a new trial because the witness’ credibility was an important issue in the case and an agreement as to future prosecution would be relevant to his credibility. Giglio, 405 U.S. at 154, 31 L. Ed. 2d at 108, 92 S. Ct. at 766.

The case at bar is distinguishable in two respects. First, in this case, the trier of fact was clearly apprised that an agreement existed in which Maret would be given leniency in exchange for his testimony. Lowrey and Maret both testified that he was to receive a “total pass” on his probation violation if he agreed to cooperate. This fact is emphasized by the evidence that Maret refused to cooperate in the past when he was denied leniency. Unlike Giglio, Accardo was able to attack Maret’s credibility by cross-examining him regarding this agreement. It was certainly established that Maret was cooperating in exchange for leniency. The lack of detail concerning the agreement and the circumstances surrounding it is a result of Accardo’s failure to investigate.

Secondly, Accardo was aware of an agreement to cooperate prior to trial. When made aware at trial that it was Devlin who had “arrested” Maret and offered the “total pass,” Accardo did not request a continuance to interview Devlin. In fact, Accardo did not request any relief. This is contrary to Giglio, in which the defendant requested relief from the trial court as soon as he discovered the omitted evidence. It is true that Devlin was not disclosed to Accardo prior to trial. However, while the purposes of discovery are to eliminate surprise and unfairness, and to afford a party an opportunity to investigate, upon learning of a failure to disclose information, the defendant must take affirmative action. (People v. Smith (1982), 111 Ill. App. 3d 895, 905.) The failure to request a continuance in order to investigate or interview witnesses negates a claim of surprise or unfairness. (Smith, 111 Ill. App. 3d at 905.) Accardo was aware that some type of agreement was made with Maret prior to trial. Accardo did not seek a continuance to interview Devlin and find out the specifics of the agreement. Therefore, Accardo cannot now claim prejudice. The alleged discovery violations did not amount to a deprivation of Accardo’s right to confrontation.

Defendant next contends that his sixth amendment right to confrontation was also violated when the court restricted his cross-examination of Maret. Specifically, Accardo alleges that the court erred when it allowed Maret to invoke his fifth amendment right against self-incrimination and decline to answer several questions.

On cross-examination, Accardo asked Maret, inter alia, the following three questions:

“Q. So you deny you were using cocaine in 1988?
* * *
Q. You agreed to certain conditions as part of probation.
You signed a document that says I agree.
* * *
And you violated the conditions, is that correct, as you have told us?
* * *
Q. Well, Mr. Maret, let’s quit skirting the issue. Did you give him names of people you purchased drugs from?”

In response to each of these questions, Maret declined to answer, citing his fifth amendment rights. Accardo argues that Maret had waived his rights against self-incrimination and, if he had not, Maret’s prior testimony should have been stricken.

It is clear that a defendant has the right to confront and cross-examine witnesses against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.) While the scope of cross-examination is within the trial court’s discretion, that discretion must be exercised in a manner allowing the defendant wide latitude in establishing interest, bias, or motive of a witness. (People v. Adams (1984), 129 Ill. App. 3d 202, 207-08.) Where the credibility of the witness is a key issue, wide latitude in conducting cross-examination is particularly important. Adams, 129 Ill. App. 3d at 208.

It is also clear that a witness has the right to remain silent, and he cannot be compelled to provide answers which may tend to establish his criminal liability. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) A witness may, however, waive this privilege against self-incrimination if he answers a question "without claiming the privilege. People v. Nachowicz (1930), 340 Ill. 480, 492.

In Rogers v. United States (1951), 340 U.S. 367, 95 L. Ed. 344, 71 S. Ct. 438, the United States initiated contempt proceedings against Rogers based on her refusal to answer questions propounded by a grand jury and by the court. Rogers did testify that she had been the treasurer of the Communist Party until a specific date, at which time she turned the books and records of the party over to another individual. Rogers refused to identify that individual, citing her privilege against self-incrimination. The court held her refusal to answer further inquiry improper, citing the uniform position that where incriminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details. (Rogers, 340 U.S. at 371-72, 95 L. Ed. at 348, 71 S. Ct. at 441.) The court reasoned that to uphold a claim of privilege in this situation would open the door to distortion of the facts by allowing a witness to select any stopping point in the testimony. Rogers, 340 U.S. at 371, 95 L. Ed. at 348, 71 S. Ct. at 441.

In discussing the same issue, our supreme court found that when a witness voluntarily answers questions propounded on direct examination, he waives his privilege against self-incrimination and subjects himself to the right of the other party to a full cross-examination of him and a disclosure of the whole truth as to the matters about which he testified. (Nachowicz, 340 Ill. at 492-93.) The court stated:

“The reason of this rule is that a witness cannot arbitrarily waive his privilege in part for the purpose of revealing only so much of the truth as will benefit one of the parties and assert it in part when interrogated as to facts which might benefit the other party. When the privilege is once waived in a trial it is completely waived for that trial and the witness becomes subject to cross-examination the same as any other witness examined in the case. *** If the witness consents to testify to one matter tending to criminate himself he must testify in all respects relating to that matter so far as material to the issues. If he waives the privilege he does so fully in relation to that act ***." (Nachowicz, 340 Ill. at 493.)

This court has also espoused a view consistent with this approach. See Heath v. Heath (1986), 143 Ill. App. 3d 390, 397.

In People v. Peebles (1983), 120 Ill. App. 3d 376, the defendant was charged with theft and conspiracy to commit theft. The defendant’s husband, after waiving his fifth amendment rights, testified for the defense. However, during cross-examination, he asserted his fifth amendment rights when asked questions relating to his direct testimony. The court noted that a witness may not claim the privilege against self-incrimination on cross-examination to matters reasonably related to the subject matter discussed during direct examination. (Peebles, 120 Ill. App. 3d at 381.) The court, finding that the witness’ testimony was not subject to proper cross-examination due to the assertion of his fifth amendment right, held that the testimony was untested and clearly unreliable. (Peebles, 120 Ill. App. 3d at 382.) The court affirmed the trial court’s decision to strike the witness’ testimony. Peebles, 120 Ill. App. 3d at 382.

In the case at bar, it is clear that the questions propounded on cross-examination to which Maret asserted his fifth amendment rights directly related to matters raised on direct examination and which had already been discussed somewhat during Maret’s cross-examination. Maret had testified to the circumstances surrounding his 1988 detention for possession of cocaine. He admitted he was, in fact, in possession of cocaine. He acknowledged the conditions of his probation. Additionally, he testified about the interview with Lowrey and the statement he prepared. Maret also admitted that he was a rather large drug dealer in the past and had purchased drugs from Accardo and O’Leary. By testifying to the above incidents and facts, Maret waived his right to refuse to answer the questions propounded on cross-examination. Maret was allowed to testify selectively to those things which benefitted the State and to refuse to provide the whole story. This resulted in a distortion of the facts. Maret’s testimony was not fully tested. The court erred by permitting Maret to decline to give the details of these acts to which he had already testified and then not striking his testimony.

Additionally, we note that Accardo was attempting to establish that Maret was a narcotics addict. Narcotics addiction is a proper area of cross-examination as the testimony of a narcotics addict is subject to suspicion because habitual users of narcotics become habitual liars. (People v. Strother (1972), 53 Ill. 2d 95, 99; see also People v. Collins (1985), 106 Ill. 2d 237, 270.) Accardo was entitled to have Maret respond to questions concerning his recent drug use and possible addiction.

Accardo also contends that the court erred by not allowing him to impeach Maret with statements made by Maret’s attorney during Maret’s sentencing hearing in 1986. Maret’s attorney, in arguing for a suspended sentence, told the court that Maret would not be working as a plumber if he was a large drug dealer as the prosecution alleged. Accardo sought to use this statement to impeach Maret as it directly contradicted Maret’s testimony in the case at bar. Accardo argued that Maret would say anything that would benefit him regardless of the truth. The court sustained the State’s objection to this inquiry and did not permit Accardo to question Maret further on this issue. Accardo argued that the statements made by Maret’s attorney at his sentencing hearing are attributable to Maret and can be used to impeach Maret in the case at bar.

The statements made by Maret’s attorney are arguably proper for impeachment purposes as they are prior inconsistent statements. Prior inconsistent statements are admissible for the purpose of impeachment. (See Ill. Rev. Stat. 1987, ch. 38, par. 115—10.1.) A statement can be used as a prior inconsistent statement for impeachment purposes when the statement is specifically attributable to the witness. (People v. Mays (1980), 81 Ill. App. 3d 1090, 1097.) Although in a civil setting, this court has found that an attorney is the client’s agent and statements made by the attorney are binding on the client. See Lowe v. Kang (1988), 167 Ill. App. 3d 772, 776.

Maret’s attorney made statements to the court during a sentencing hearing in a previous proceeding that are directly contrary to the statements made by Maret in the case at bar. In the previous proceeding, Maret’s attorney stated that Maret was a plumber and not a large drug dealer during the early 1980s. Maret did not exercise his right to allocution and remained silent in the face of these statements. In this proceeding, Maret has stated that he was a large drug dealer during the early 1980s. The statements made by Maret’s attorney on his behalf during his sentencing hearing should be attributed to Maret and allowed for impeachment purposes. This is particularly true as Maret was present during the hearing and did nothing to indicate that these statements were false.

The court in the instant case was incorrect in finding that this line of questioning was an attempt to retry Maret on the previous charges. This line of questioning was an attempt to establish that Maret’s story changes depending on the circumstances with which he is confronted. It is irrelevant for purposes of impeachment which story is true. When determining the witness’ credibility, the court is not concerned with whether Maret is in fact a plumber or a drug dealer. The important aspect of this inquiry is that Maret’s story changes, and that relates directly to his credibility. The court erred by not allowing Accardo to impeach Maret with the statements made by his attorney during his earlier sentencing hearing.

Accordingly, we find that Accardo’s right to cross-examine witnesses against him was improperly restricted. The court erred by allowing Maret to invoke his fifth amendment rights and decline to answer several questions propounded on cross-examination after Maret had waived his fifth amendment rights. If Maret stood on his fifth amendment rights, the court should have struck his testimony. Additionally, the court erred by not allowing Maret to be impeached with statements made at his prior sentencing hearing. Due to these errors, a new trial is warranted.

Since we have found that relevant and important impeaching evidence was improperly excluded, it is not necessary or even possible for this Court to determine if Accardo’s affirmative defense of entrapment was refuted beyond a reasonable doubt. For example, Maret may have refused to answer in which case the Court should have stricken the testimony and the record would then reflect little, if any, evidence to refute Accardo’s defense of entrapment.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    EAST LAKE MANAGEMENT AND DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. LOUDELL IRVIN, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—0398
    Opinion filed February 9, 1990.

      Sanford Kahn, Ltd., of Chicago (Richard W. Christoff, of counsel), for appellant.
    Timothy Huizenga, Antoinette D. Moore, and Jack Tibbetts, all of Legal Assistance Foundation, of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff filed suit for possession of the apartment occupied by defendant under a written lease. Plaintiff alleged defendant’s breach of certain lease provisions. On defendant’s motion, the trial court entered summary judgment in favor of defendant, and plaintiff appealed.

Plaintiff on appeal argues the trial court committed error in granting summary judgment and in finding that plaintiff had waived defendant’s breach of the lease by its acceptance of housing subsidy payments from HUD subsequent to serving a termination notice on defendant.

Plaintiff, as lessor, and defendant, as lessee, entered into a written lease on August 4, 1983, for apartment unit 2B at 4048 South Lake Park Avenue, Chicago, Illinois, for the period beginning September 1, 1983, and ending August 31, 1984, for a monthly rental of $33 with the lights and electric to be paid by the tenant. The lease provided that after the expiration of the initial lease period, the lease would continue on a month-to-month basis unless terminated according to the provisions of the lease.

The record discloses two written amendments to the lease. On November 19, 1985, the parties executed an amendment to the lease which referred to a lease agreement for the period from November 1, 1985, to July 1, 1986, with tenant’s rental payment obligation to be $44 per month. On or about August 1, 1986, the lease was extended by written agreement from that date until July 31, 1987, with tenant’s rental obligation to be $36 per month.

Plaintiff operated the building in which the apartment was located as a subsidized housing complex pursuant to a contract with the United States Department of Housing and Urban Development (HUD), under a section 8 program of the United States Housing Act of 1937 (42 U.S.C. §1437f (1985)) whereby a housing assistance subsidy is paid to the landlord in addition to the tenant’s rental payment specified in the lease for a given unit to more closely compete with rentals available in the non-subsidized-housing market. The defendant qualified for subsidized housing and executed the lease for apartment 2B in plaintiff’s building.

The lease agreement included the defendant’s obligations “not to destroy, damage or remove any part of the unit, common areas, or project grounds” and “not to *** make or permit noises or acts that will disturb the rights or comfort of neighbors.” The tenant agreed “to keep the volume of any radio, phonograph, television or musical instrument at a level which will not disturb the neighbors.”

On August 13, 1987, the plaintiff served a notice of termination of tenancy on the defendant with a final date of occupancy on August 23, 1987, citing damage to property, loud noise, fighting, loitering in the common areas and generally disturbing other building residents as the grounds for termination of the lease. The record discloses the defendant was served personally and by mail. The defendant did not vacate the apartment, and the plaintiff filed a forcible detainer suit for possession on September 14, 1987.

The defendant moved for summary judgment. The defendant argued there, as here, that the plaintiff in its answer to interrogatories acknowledged its receipt of HUD housing subsidy payments for defendant’s apartment for the months of September and October 1987, following the service of the termination notice on defendant, and therefore this action constituted acceptance of rent, a waiver of the alleged breach and plaintiff’s election to reinstate the tenancy. The defendant does not challenge the violations of the lease recited in the termination notice nor are the validity and service of the notice contested. The parties agree that plaintiff accepted no rental payments from defendant subsequent to service of the termination notice.

On January 6, 1988, the trial judge entered summary judgment in favor of defendant and dismissed the case. The court found that “the plaintiff has waived its notice by accepting H.A.P. payments from the Department of Housing” and found that “the acceptance of the HUD payment constitutes rent.” This appeal followed.

We first consider plaintiff’s argument that HUD’s housing assistance payments are not the equivalent of rent, as that term is generally understood.

The landlord’s acceptance of rent from a tenant following a notice of termination of the tenancy for violation of the lease provisions is generally considered to be a waiver of the breach which operates to reinstate the lease. (Vintaloro v. Pappas (1923), 310 Ill. 115, 117, 141 N.E. 377, 378.) The landlord who accepts rent payments after terminating a lease waives the right to terminate based upon circumstances of which he had knowledge at the time of acceptance. Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 991-92, 422 N.E.2d 221, 225; American National Bank & Trust Co. v. Dominick (1987), 154 Ill. App. 3d 275, 281, 507 N.E.2d 512, 516.

The lease between plaintiff and defendant here includes the following pertinent language:

“3. *** Tenant agrees to pay the monthly rent *** on the date the rent is due. *** The Tenant understands that this monthly rent is less than the market (unsubsidized) rent due on this unit. This lower rent is available *** because HUD makes monthly payments to the Owner on behalf of the Tenant. The amount, if any, that HUD makes available monthly on behalf of the Tenant is called the tenant assistance payment * * * n

Because the housing assistance payments (HAP) contract is not part of the record, we look to the language of the statute by which subsidized housing under HUD’s section 8 programs is administered. The United States Housing Act of 1937, section 8, as amended (42 U.S.C. §1437f(a) (Supp. 1985)), was enacted “[flor the purpose of aiding lower-income families in obtaining a decent place to live and of promoting economically mixed housing” and, in furtherance of its purpose, the Act provided that “assistance payments may be made with respect to existing housing in accordance with” the statute (42 U.S.C. §1437f(a) (Supp. 1985)). The Act provided a formula to determine the value of a subsidized apartment based on a fair market rental value amount in a non-subsidized-housing market, which value is required to be adjusted annually. (42 U.S.C. §1437f(c)(1) (1982).) Thereafter, based on the apartment’s rental value, the qualified tenant pays a monthly rent amount based on his income and HUD pays the balance to the landlord in the form of a subsidy referred to as a housing assistance payment. 42 U.S.C. §1437f(c)(1) (1982).

The lease which the trial court here was asked to construe is the written agreement between the plaintiff as landlord and the defendant as tenant. The lease initially recited a monthly rental, to be paid by the tenant, which was adjusted from time to time during the tenancy. When the landlord served the notice of termination on August 13, 1987, the tenant’s monthly rent payment was $36. The tenant occupied the apartment as a holdover tenant under the terms of an amendment to the original lease which extended the lease for a one-year period ending on July 31, 1987.

Defendant cites a number of cases from other jurisdictions in support of her argument that the HUD payment is rent and that the plaintiff’s acceptance of the HUD payment after serving the notice on defendant constitutes a waiver of the notice of termination of tenancy. Four of those cases are trial court opinions rather than opinions of a court of review, and we therefore find they have no precedential value for our consideration of the issues before us.

Defendant cites Holbrook v. Pitt (7th Cir. 1981), 643 F.2d 1261, for the proposition that as tenant she is the third-party beneficiary of the contract between HUD and plaintiff and that she has enforceable rights with regard to the housing assistance subsidy payments. Holbrook is distinguishable on its facts. In that case, plaintiff was a tenant in an apartment which qualified for HUD housing assistance subsidies. The landlord failed to certify the tenant for more than six months after the HUD contract was signed with the result that no HUD payments were made to the landlord for the apartment occupied by the tenant during that period of time. The court found that qualified tenants had entitlement rights as third-party beneficiaries under the HUD contracts to be certified and that the tenant litigant was entitled to retroactive payments of HUD subsidy payments. Tenant sued the landlord for the subsidy payments, and the landlord filed a third-party complaint against HUD. The landlord was dismissed on his own motion, and the dispute was determined based on the tenant’s rights against HUD. Because of factual considerations which are not common to the facts in our case, Holbrook does not support defendant’s position here.

In support of its argument for reversal of the trial court’s dismissal of the suit for possession and its ruling in favor of defendant on her summary judgment motion finding that acceptance of HUD housing assistance subsidy payments constitutes acceptance of rent, plaintiff cites two Ohio appellate court cases which we find persuasive.

In National Corp. for Housing Partnerships v. Chapman (1984), 18 Ohio App. 3d 104, 481 N.E.2d 654, the tenant, who frequently paid her $21 monthly rent late and who had been warned by the landlord that her rent must be paid when due, was served with a notice to terminate. Following the service of notice and refusal to accept tenant’s late offer of rent payment, the landlord accepted HUD payments for the apartment. In affirming the judgment of the trial court granting the landlord possession, the appellate court considered whether HUD payments had the same legal effect as if they were rent payments made by the tenant. The court examined the terms of the landlord/tenant agreement which provided in part that the landlord could terminate the lease for the tenant’s noncompliance with its terms including, but not limited to, payment of rent. The court then examined the relevant provisions of the Federal statutes. The court affirmed the trial court and held that

“a tenant may be evicted for failing to pay rent or a portion of the rent even though the landlord has received partial payment in the form of federal housing assistance. [Citation.]
The rent subsidy, while providing a personal benefit to a qualified tenant such as Chapman, is not personal in the sense that it is her money. The fact that Spring Hill continued to receive the rent from HUD for Chapman’s account does not entitle Chapman to avoid her contractual obligations.” National Corp. for Housing Partnerships v. Chapman (1984), 18 Ohio App. 3d 104, 106, 481 N.E.2d 654, 656.

In Sandefur Co. v. Jones (1982), 9 Ohio App. 3d 85, 458 N.E.2d 390, because of the tenant’s delinquency in rent payments, the landlord served notice to vacate the premises. The court found that because the subject housing was federally subsidized, and the owner accepted substantial rent subsidies from the Federal government, the plaintiff waived ordinary rights of a landlord and instead was bound by the statutory regulations of the Federal government. The issue determined by the court was the sufficiency of the notice to terminate and does not discuss the issue in our case of subsequent subsidy payments by HUD.

Defendant attempts to distinguish the Chapman and Sandefur cases from our case based on tenants’ failure to pay rent in a timely fashion, while defendant in the present case was charged with noncompliance of the lease prohibitions against noise and damage to property. We find this argument to be a distinction without a difference in our consideration of the issue raised. All acts are tenant failures to comply with the terms of the lease and as such are appropriate grounds for a notice to terminate the lease.

The validity of the notice of termination, the grounds for termination recited in the notice and the propriety of service of the notice on defendant are not challenged by either party. For purposes of this appeal, we conclude that the appropriate HUD regulations with regard to these requirements have been met.

When a subsidized unit becomes vacant following owner’s eviction of an eligible tenant, HUD regulations provide the owner is entitled to receive vacancy payments for 60 days or more upon a showing that he is actively attempting to fill the vacancy. (20 C.F.R. §§880.611, 881.611.) We believe the statutory intention is to reserve the subsidized unit for a subsequent qualified low-income tenant. Housing assistance subsidy payments under plaintiff owner’s contract with HUD serve the same purpose. Both are intended to induce the owner to participate in the section 8 low-income housing program and offer some protection to the owner from monetary loss in doing so. We find that under these regulations the owner's acceptance of HUD payments does not constitute acceptance of rent or a waiver of the right to terminate the lease for noncompliance with its terms.

The appeals court in Tullahoma Village Apartments v. Cyree (Tenn. Ct. App. Feb. 7, 1986), No. 85—206—II, 20 Clearinghouse Rev. 1560, in reviewing the amount of the appeal bond set by the trial court to be posted by an evicted tenant of subsidized housing, found that the local statute which required a bond in the sum of three times the monthly rent required the tenant to post bond in the sum of $78 (three times her monthly rent of $26) and reversed the lower court’s requirement of a bond in the sum of $978 (three times market value of $329). In reaching its decision, the appeals court reasoned:

“[W]e think the trial judge erroneously included the market or unsubsidized amount of rent in the bond amount.
*** [t]he lease states that '*** Tenant agrees to pay a rent of $26.00 per month.’ That paragraph later provides that the market or unsubsidized rent of the apartment is $329.00 per month.
*** The terms ‘unsubsidized rent’ and ‘market rent’ are not to be found in [local statute] and *** we cannot give the statute a construction that would encompass those terms. ‘Rent’ is all that is contemplated by [local statute] and only the ‘rent’ provided in the lease may be considered under the statute, and not the ‘market rent’ or ‘unsubsidized rent.’ *** We think the term ‘rent’ in its natural and ordinary meaning, refers to the money or compensation which passes from the tenant to the landlord. 52 C.J.S., Landlord and Tenant, Sec. 462. Therefore, the ‘rent’ in this case is the amount of $26.00 per month, regardless of the landlord’s arrangement with HUD regarding the market rent.” Tullahoma Village Apartments v. Cyree (Tenn. Ct. App. Feb. 7, 1986), No. 85—206—11, slip op. at 6, 20 Clearinghouse Rev. 1560.

We find that the defendant had an obligation to comply with the provisions of the written lease agreement with plaintiff, including, but not limited to, payment of monthly rent of $36, and upon her violation of any of its terms the landlord was entitled to terminate the lease. All of the agreements between the plaintiff and the defendant were included in the written lease.

We further find that plaintiff’s written agreement with HUD to provide subsidized housing did not impose on the plaintiff owner any obligations to the tenant to forego its right to terminate the tenancy for lease violations nor did the agreement construe plaintiff’s acceptance of housing subsidy payments as rent such as would invalidate the termination notice.

The trial court erred in its finding that plaintiff had waived its notice of termination by accepting HUD housing assistance subsidy payments and in its finding that HUD payments constitute rent.

The dismissal of plaintiff’s suit was error, and the summary judgment entered in favor of the defendant on January 6, 1988, is reversed.

For all of these reasons, the judgment is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and EGAN, JJ., concur.