author: JUSTICE CAMPBELL

text:
    OCTABIO MARTINEZ, a Minor, by Carolyn Martinez, Guardian and Next Friend, Plaintiff-Appellant, v. PFIZER LABORATORIES DIVISION, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 89—0325
    Opinion filed June 28,1991.

      Goldberg & Goldberg and David A. Novoselsky & Associates, both of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellant.

      Kirkland & Ellis, of Chicago (Stephanie A. Scharf, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Octabio Martinez (a minor represented by guardian Carolyn Martinez), appeals orders of the circuit court of Cook County compelling the production of certain documents and dismissing his claims against defendant Pfizer Laboratories for failing to comply with those discovery orders. For the reasons which follow, we reverse the judgment of the circuit court and remand for further proceedings.

The record on appeal discloses the following. In 1981, a complaint was filed on plaintiff’s behalf which alleged a product liability claim against defendant. The complaint alleged that plaintiff had suffered harm resulting from the prescription of a drug manufactured by defendant to plaintiff’s mother during her pregnancy with plaintiff.

On February 18, 1983, the trial court ordered plaintiff to disclose his expert witnesses on or before July 15, 1983. On July 24, 1986, the trial court ordered plaintiff to disclose his expert witnesses on or before August 24, 1986. On December 23, 1986, the trial court issued an order barring plaintiff from presenting expert testimony. This last order was subsequently vacated by the trial court.

The trial court entered an order on January 21, 1988, requiring plaintiff to produce Dr. Tomasi by May 10, 1988, or his testimony would be barred at trial. An April 25, 1988, order required plaintiff to produce certain documents and respond to interrogatories by May 3, 1988.

The trial court again ordered plaintiff to produce Dr. Tomasi on May 10, 1988, setting a July 1, 1988, deadline. This order also required plaintiff to answer interrogatories. An order dated June 23, 1988, moved the deadline for producing Dr. Tomasi and answering the interrogatories to August 31,1988.

On August 9, 1988, the trial court ordered plaintiff to produce Dr. Tomasi by August 29, 1988. The trial court then entered an order on August 30, 1988, directing plaintiff to produce Dr. Tomasi and disclose any other experts he intended to call against defendant by September 20,1988.

On September 29, 1988, defendant filed a motion to compel the production of information reflecting the relationship between plaintiffs counsel and plaintiff’s expert, Dr. Tomasi. In that motion defendant stated that it requested:

“All documents in the possession of plaintiff, plaintiff’s counsel or any other person who is plaintiffs agent or representative that reflect, refer or relate to Lawrence Tomasi, M.D., including but not limited to documents reflecting fees paid or bills received by plaintiff or plaintiff’s counsel in this or other" matters and transcripts of or affidavit ever given by Dr. Tomasi.”

Defendant further requested that plaintiff’s counsel:

“Identify by title and case number any other litigation in which he [Dr. Tomasi] has been consulted or testified as an expert, at trial or in deposition, specifying those matters to which he testified which are the same or similar to the matters involved in this lawsuit (Pfizer Supplemental Rule 220 Interrogatories, No. 1(f)).”

At a hearing held on the matter, plaintiff’s counsel argued that the information sought by defendant was shielded from discovery by the attorney-client and physician-patient privileges. Plaintiff’s counsel also indicated that he would refuse to comply with an order granting defendant’s motion and asked the trial court to hold him in contempt. The trial court refused this request, but indicated that the matter could be taken up if the order was ignored. The trial court granted defendant’s motion on October 7, 1988.

On November 16, 1988, defendant filed a motion pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219), urging the trial court to tax plaintiff’s counsel with the costs, fees and other expenses of completing Dr. Tomasi’s deposition and of bringing the motion, along with other sanctions. On January 6, 1989, following a hearing on the motion, the trial court entered an order which required plaintiff to produce material listed in paragraph three of defendant’s motion, to wit:

“a. Documents that show how much money Dr. Tomasi has earned from Goldberg & Goldberg [plaintiff’s counsel] since he began consulting with Goldberg & Goldberg sometime in the 1970’s, whether he earned those fees as a treating physician, consulting expert or expert witness. Such documents include IRS 1099 forms, cancelled checks, check stubs and any other records of payment or requests for payment.
b. Identification of the cases in which Dr. Tomasi has been disclosed by Goldberg & Goldberg as an expert witness and, for such cases, providing answers to interrogatories posed about Dr. Tomasi and his opinions, all transcripts of Dr. Tomasi’s testimony and all affidavits signed by Dr. Tomasi.
c. The number of cases on which Dr. Tomasi has consulted to Goldberg & Goldberg whether as a treating physician, consulting expert or expert witness; and
d. The number of patients referred to Dr. Tomasi by Goldberg & Goldberg.”

The order stated that if this information was not produced by January 11, 1989, all of plaintiff’s claims against defendant would be dismissed.

On January 9, 1989, plaintiff filed a motion to vacate the order of January 6, arguing that the requested documents could not be compiled within five days and that dismissal was an inappropriate sanction in this matter, requesting in the alternative that plaintiff’s counsel be held in contempt.

On January 12, 1989, defendant filed a certification of plaintiff’s noncompliance with the October 7, 1988, and January 6, 1989, court orders. The following day, defendant filed an emergency motion for the entry of a finding pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of the claims that were dismissed against Pfizer. At a hearing held that day on the matter, plaintiff again requested that the trial court issue a contempt citation rather than dismiss the claims. The trial court granted defendant’s motion.

On appeal, plaintiff argues that the trial court erred by issuing discovery orders that were overbroad and required the disclosure of privileged information.

The supreme court rules authorize broad discovery “ ‘regarding any matter relevant to the subject matter involved in the pending action.’ ” (Computer Teaching Corp. v. Courseware Applications, Inc. (1990), 199 Ill. App. 3d 154, 157, 556 N.E.2d 816, 818, quoting 107 Ill. 2d R. 201(b)(1).) The objectives of pretrial discovery are: (1) the enhancement of the truth-seeking process; (2) the improvement in preparation by attorneys for trial; (3) the elimination of unfair surprise; and (4) the expeditious and final determination of controversies in accordance with the substantive rights of the parties. (See Mistier v. Mancini (1982), 111 Ill. App. 3d 228, 231-32, 443 N.E.2d 1125, 1128.) Disclosure is the object of all discovery procedures. (Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, 374 N.E.2d 460, 467.) Traditionally, the trial court is accorded great latitude in determining the scope of discovery because the range of relevance and materiality for discovery purposes includes not only what is admissible at trial but also that which leads to what is admissible at trial. (Mistier, 111 Ill. App. 3d at 232, 443 N.E.2d at 1128.) A reviewing court will not disturb a trial court’s discovery rulings absent an abuse of discretion. (M. Loeb Corp. v. Brychek (1981), 98 Ill. App. 3d 1122, 424 N.E.2d 1193.) Nevertheless, that discretion must be carefully exercised in order to balance the needs of discovery and resolution of the issues on their merits. Tennicott v. Chicago Transit Authority (1981), 103 Ill. App. 3d 607, 431 N.E.2d 1077.

The breadth of permissible discovery has its limits; discovery requests and orders must have some degree of specificity. The specificity requirement has two purposes: (1) to provide a reasonable description of the items requested, giving those from whom discovery is sought notice of what is being demanded of them; and (2) to aid the trial court in determining whether the requested material is exempted or privileged from discovery. Monier v. Chamberlain (1966), 35 Ill. 2d 351, 356, 221 N.E.2d 410, 414.

What suffices as a reasonable description may be determined on a case-by-case basis. (See Monier, 35 Ill. 2d at 356.) For example, in People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6, defendant General Motors filed a writ of mandamus against Judge Nicholas J. Bua for his entry of a default judgment where defendant violated a court order requiring the production of all documents relating to the design of the Corvair automobile for the model years 1960 through 1965. In vacating the default judgment, the Illinois Supreme Court noted the production order was a “catch-all demand for the production of documents without the slightest degree of specificity.” (Bua, 37 Ill. 2d at 194, 226 N.E.2d at 15.) The court noted the records sought for each year were voluminous and their production would require substantial expense, labor, and a certain degree of business disruption. (Bua, 37 Ill. 2d at 193-94, 226 N.E.2d at 14.) The court concluded:

“While flexibility is necessary in discovery, due process requires that production orders be sufficiently specific to inform a person of his obligation thereunder, especially in light of the extreme sanctions available for a violation of such order.” Bua, 37 Ill. 2d at 195, 226 N.E.2d at 15.

Similarly, in Monier v. Chamberlain (1966), 66 Ill. App. 2d 472, 213 N.E.2d 425, aff'd (1966), 35 Ill. 2d 351, 221 N.E.2d 410, the plaintiff filed two motions to compel discovery from the defendant and the trial court entered an order requiring defendant to produce documents for inspection and copying which included:

“5) All written statements of witnesses, whether signed or unsigned, obtained by agents, employees or other personnel of the Country Mutual Insurance Company obtained prior to the employment of Eugene H. Rennick, Jr., Attorney at Law, Toulon, Illinois, or Robt. A. Barnes, Attorney at Law, Lacón, Illinois, attorneys for the defendant in the cause.” (Morder, 66 Ill. App. 2d at 477, 213 N.E.2d at 429.)

The Illinois Appellate Court held this request to have been overbroad, stating: “Where a request is made for ‘all written statements’ as ordered in paragraph 5 there is nothing therein contained which even limits such statements to the immediate cause of action.” Morder, 66 Ill. App. 2d at 487, 213 N.E.2d at 434. Compare with Nehring v. First National Bank (1986), 143 Ill. App. 3d 791, 797-98, 493 N.E.2d 1119, 1124 (approving discovery where defendant’s request was limited to documents connected to the immediate cause of action).

As to the second purpose of the specificity requirement, aiding the trial court in determining whether the material sought is exempt or privileged from discovery, Supreme Court Rule 201(b)(2) states:

“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (134 Ill. 2d R. 201(b)(2).)

Privileges are designed to protect interests outside the truth-seeking process. (Waste Management, Inc. v. International Surplus Lines Insurance Co. (1990), 203 Ill. App. 3d 172, 176, 560 N.E.2d 1093, 1096, appeal allowed (1990), 135 Ill. 2d 567, 564 N.E.2d 849, citing E. Cleary, McCormick on Evidence §92, at 192 (2d ed. 1972).) Therefore, privileges are strictly construed as an exception to the general duty to disclose. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 535, 332 N.E.2d 649.) When the principles of disclosure and privilege clash, the court must balance them in light of the specific facts in each case. Taylor v. Taylor (1977), 45 Ill. App. 3d 352, 354-55, 359 N.E.2d 820, 821.

In the present appeal, defendant has sought information regarding the relationship between plaintiff’s counsel and plaintiff’s medical expert witness. Our supreme court has not directly addressed this issue. In Sears v. Rutishauser (1984), 102 Ill. 2d 402, 466 N.E.2d 210, the supreme court held that defense counsel may cross-examine plaintiff’s expert witness concerning the number and frequency of referrals the expert had received from plaintiff’s attorney and the financial benefit derived from them. (Sears, 102 Ill. 2d at 408-09, 466 N.E.2d at 214.) The court warned, however, that the vigorous cross-examination of physicians must be limited by protection of the physician-patient privilege as well as avoidance of subtrials on issues remote from the subject of the lawsuit or pertaining to cases having no relation to the litigation. (Sears, 102 Ill. 2d at 407-08, 466 N.E.2d at 213.) In Trower v. Jones (1988), 121 Ill. 2d 211, 520 N.E.2d 297, the court held that an expert can be cross-examined concerning the expert’s annual income from her services as an expert witness for the previous two years and the frequency with which she has testified for a particular class of persons, such as plaintiffs or defendants. (Trower, 121 Ill. 2d at 218, 220, 520 N.E.2d at 300, 301.) The court also explicitly noted that its decision did not create any additional exceptions to existing evidentiary privileges or restrict the discretion of the trial court in overseeing or limiting the discovery process. Trower, 121 Ill. 2d at 221-22, 520 N.E.2d at 302.

While Sears and Trower were concerned with cross-examination rather than discovery, this court addressed the latter issue in Davis v. Hinde (1986), 141 Ill. App. 3d 664, 490 N.E.2d 1049, which was decided between Sears and Trower. In Davis, the defendant requested plaintiff’s counsel to list the names of every client represented by his firm who had also been treated by plaintiff’s treating physicians. Defendant’s stated purpose was to try to establish the existence of a lucrative business relationship between plaintiff’s retained law firm and other clients of that firm receiving treatments for soft-tissue injuries. Once established, defendant would argue that the opinion of the testifying doctor was the natural and expected result of his employment. Asserting both the attorney-client and physician-patient privileges, plaintiff’s attorney declined to turn over the requested material, even though the court ordered him to do so and eventually imposed sanctions on plaintiff for failing to comply with the order. See Davis, 141 Ill. App. 3d at 665-66, 490 N.E.2d at 1050.

This court reversed the sanctions. The court noted that while the identity of a lawyer’s client is typically outside the scope of the attorney-client privilege, the names sought by defendant were also names of patients of plaintiff’s physicians. Thus, in light of Sears, the court examined whether disclosure would violate the physician-patient privilege or result in subtrials remote from the case before it. Davis, 141 Ill. App. 3d at 666, 490 N.E.2d at 1051.

The court concluded that the disclosure ordered by the trial court would violate the physician-patient privilege. Although disclosure of the names by themselves might be permissible, the record indicated that defendant sought the names of patients who had particular injuries. Such disclosure would necessitate examining the treatment records of nonparty patients, which would violate the privilege in the context of a civil malpractice case. Davis, 141 Ill. App. 3d at 666-67, 490 N.E.2d at 1051, discussing Parkson v. Central DuPage Hospital (1982), 105 Ill. App. 3d 850, 435 N.E.2d 140.

The court also concluded that the disclosure ordered by the trial court would result in subtrials remote from the case before it, stating:

“Although it is arguable that the revelation of an arrangement between attorneys and doctors, such as defendant suggests, would be in the public interest, the matter is collateral to the issue of plaintiff’s immediate action. Furthermore, even if the names were supplied, other patients contacted and their waivers and records obtained, it would be impossible to determine from a cursory questioning of the doctors either at a deposition or at trial whether each particular case varied in any way from plaintiff’s problem so as to validly establish the generalization defendant seeks. In our opinion, this would necessarily result in the time consuming subtrials remote from the subject of the lawsuit as warned against by the Sears court. We conclude, therefore, that the request for production in its present form was too broad and that for the purpose of showing bias and attacking credibility it should have been limited to the number and frequency of referrals from plaintiff’s attorney and any financial benefit derived therefrom.” (Davis, 141 Ill. App. 3d at 667-68, 490 N.E.2d at 1052.)

This court now turns to an examination of the orders at issue in this case. First, there is the order dated October 7, 1988, which grants the motion to compel filed by defendant on September 29, 1988. The order reads as follows:

“This cause coming to be heard on defendant Pfizer’s motion to compel, due notice having been given, oral argument having been heard and the Court being fully advised in the premises, defendant Pfizer’s motion to compel is hereby granted.”

As mentioned previously, the motion to compel sought:

“All documents in the possession of plaintiff, plaintiff’s counsel or any other person who is plaintiff’s agent or representative that reflect, refer or relate to Lawrence Tomasi, M.D., including but not limited to documents reflecting fees paid or bills received by plaintiff or plaintiff’s counsel in this or other matters and transcripts of or affidavit ever given by Dr. Tomasi.”

The motion further requested that plaintiff’s counsel:

“Identify by title and case number any other litigation in which he [Dr. Tomasi] has been consulted or testified as an expert, at trial or in deposition, specifying those matters to which he testified which are the same or similar to the matters involved in this lawsuit (Pfizer Supplemental Rule 220 Interrogatories, No. 1(f)).”

This order, as written, merely refers back to the motion. The motion, as drafted, is of the type disapproved by this court in Monier: it broadly requests “all documents in the possession of plaintiff, plaintiff’s counsel or any other person who is plaintiff’s agent or representative that reflect, refer or relate to” plaintiff’s expert. Moreover, the motion expressly seeks documents outside the immediate cause of action without limitation. Hence, the discovery requested and ordered was overbroad. Monier, 66 Ill. App. 2d at 487, 213 N.E.2d at 434.

Defendant has urged this court to disregard the actual terms of this order and look instead to the transcript of the October 7, 1988, hearing which is included in the record on appeal. Even if this court were willing to undertake such an examination, it would not aid defendant. At the hearing, defendant asserted that it did not seek the names of patients or clients that had not filed lawsuits or the names of cases in which Dr. Tomasi had merely been a consulting expert. Defendant further asserted that it did not seek privileged information and that, to the extent that the disclosure of nonparty patient or client names would violate privileges, they could be redacted.

The transcript, however, does not appear to indicate that the trial court accepted this characterization of the motion or relied on this characterization in reaching its decision. Rather, the record indicates that the trial court approved discovery concerning how often the expert testified, what remuneration he received, which cases were tried and which were settled and the expert’s qualifications. The trial court described defendant’s motion as going a “little far afield,” but nonetheless proceeded to allow discovery of the subject matter of cases involving the expert, the names of the individuals involved and that material which might be discovered from the record in those cases. The court expressly barred discovery of work product, but expressly allowed discovery of the names of cases in which Dr. Tomasi was a “consulting expert.” Finally, the record reflects that the court decided that “the whole theory of privilege is something that can be determined by the trial judge if it is necessary to go to trial on the case.”

Defendant’s reliance on this transcript would be unavailing before this court for two reasons. First, the scope of discovery that would be approved by the trial court would conflict not only with the broad language employed in defendant’s motion to compel, but also with defendant’s characterization of the motion at the hearing. This conflict may have made it difficult for plaintiff to comply with the order, and the first purpose of the specificity requirement is that a party should be put reasonably on notice as to what materials should be turned over to the opposing party. Monier, 35 Ill. 2d at 356, 221 N.E.2d at 414.

Second, the transcript indicates that the trial court intended to allow discovery that would go beyond that which is permitted by the supreme court rales. For example, the trial court explicitly told plaintiff’s counsel to turn over the names of cases in which Dr. Tomasi was employed as a consulting expert, whereas the supreme court rales state in relevant part:

“The identity, opinions and work product of consulting experts are discoverable only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject matter by other means.” (Emphasis added.) (134 Ill. 2d R. 220(c)(5).)

There is nothing in the record in this case indicating that defendant was required to show exceptional circumstances before the court ordered this discovery. Moreover, the trial court’s statements to the effect that claims of privilege could be decided later, if the case had to go to trial, runs contrary not only to the second purpose of the specificity requirement established in Monier, but also to the express language of Rule 201(b)(2). Monier, 35 Ill. 2d at 356, 221 N.E.2d at 414; 134 Ill. 2d R. 201(b)(2).

In sum, regardless of whether this court relied merely on the October 7, 1988, order and the motion to compel or whether we relied on the record of proceedings, the order did not conform to either of the purposes of the specificity requirement.

We next turn to an examination of the order issued on January 6, 1989, which stated in relevant part that

“unless all of the material and information that is listed in paragraph 3 of defendant Pfizer’s Rule 219 motion *** is produced for inspection and copying by January 11, 1989, then all claims against Pfizer Inc. in the above-captioned lawsuit are dismissed with prejudice.”

As mentioned earlier, defendant’s Rule 219 motion sought:

“a. Documents that show how much money Dr. Tomasi has earned from Goldberg & Goldberg [plaintiff’s counsel] since he began consulting with Goldberg & Goldberg sometime in the 1970’s, whether he earned those fees as a treating physician, consulting expert or expert witness. Such documents include IRS 1099 forms, cancelled checks, check stubs and any other records of payment or requests for payment.
b. Identification of the cases in which Dr. Tomasi has been disclosed by Goldberg & Goldberg as an expert witness and, for such cases, providing answers to interrogatories posed about Dr. Tomasi and his opinions, all transcripts of Dr. Tomasi’s testimony and all affidavits signed by Dr. Tomasi.
c. The number of cases on which Dr. Tomasi has consulted to Goldberg & Goldberg whether as a treating physician, consulting expert or expert witness; and
d. The number of patients referred to Dr. Tomasi by Goldberg & Goldberg.”

On its face, the Rule 219 motion appears to be far more limited in scope than the previous motion to compel. It appears that this motion seeks nonprivileged information concerning the fees paid to Dr. Tomasi, information on the public record concerning Dr. Tomasi’s participation as a testifying witness in Goldberg & Goldberg cases, the number of cases in which Dr. Tomasi participated in any capacity and the number of referrals Dr. Tomasi received from Goldberg & Goldberg.

The fact that the Rule 219 motion appears to be more limited in scope, however, again raises the question of whether plaintiff’s counsel was put on sufficient notice of which information defendant sought, as this second request is far different from the first request. We note that subparagraphs 3(a), (c) and (d) of the Rule 219 motion do not purport to limit discovery to cases which are already filed and that there is no reference to permitting the trial court or plaintiff’s expert or attorney to redact information which may violate the attorney-client or physician-patient privilege, even though defendant asserts that the request should be read that way. More importantly, defendant’s request for answers to interrogatories, transcripts of testimony and affidavits run afoul of the prohibition of subtrials enunciated in Sears and Davis. (Davis, 141 Ill. App. 3d at 667-68, 490 N.E.2d at 1052; see Sears, 102 Ill. 2d at 407-08, 466 N.E.2d at 213.) Moreover, the request for billing documents seeks discovery for a period of at least 11 and perhaps as much as 20 years. Such discovery may be considered overburdensome in light of Bua and Trower. (Cf. Bua, 37 Ill. 2d at 193-94, 226 N.E.2d at 14 (disapproving request spanning five years of documents where production would be expensive, laborious and disruptive); Trower, 121 Ill. 2d at 218, 520 N.E.2d at 300 (approving cross-examination on expert’s income for two previous years).) Defendant asserts in its brief that the billing documents are easily obtainable. However, the record citation provided by defendant refers to a deposition of Dr. Tomasi, whereas the Rule 219 motion is directed toward plaintiff’s counsel.

In sum, while the Rule 219 motion was an improvement over the initial discovery request, it violated Davis at the very least. Plaintiff’s counsel was therefore justified in refusing to comply with the second order, particularly where counsel was given only five days to comply and counsel sought the alternative sanction of contempt in order to test the court’s decision.

The second issue on appeal is whether the trial court erred in dismissing the claims against defendant for plaintiff’s failure to comply with discovery orders. Supreme Court Rule 219(c) (134 Ill. R. 219(c)) provides that where a party unreasonably refuses to comply with discovery rules or orders, the trial court may enter “such orders as are just” to remedy the situation. The rule contains a nonexclusive list of sanctions available to the trial court, such as staying the proceedings, barring testimony, striking claims or defenses, awarding fees and costs, instituting contempt proceedings, entering a default judgment and dismissing the action. The imposition of sanctions is a matter largely within the discretion of the trial court and should not be disturbed on review unless the order constitutes an abuse of discretion, such as where the record shows that the party’s conduct was not unreasonable or where the sanction itself is not just. Kubian v. Labinsky (1988), 178 Ill. App. 3d 191,196, 533 N.E.2d 22, 25.

Because the purpose of these sanctions is to effect discovery, rather than to punish the dilatory party (Jones v. Healy (1981), 97 Ill. App. 3d 255, 422 N.E.2d 904), a “just order” under Rule 219(c) is one which, to the degree possible, ensures both the accomplishment of discovery and a trial on the merits (White v. Henrotin Hospital Corp. (1979), 78 Ill. App. 3d 1025, 398 N.E.2d 24). For these reasons, default judgment or dismissal of the action, being the most drastic sanctions, are ones which courts are reluctant to impose and should be imposed only as a last resort in cases where the actions of the party demonstrate a deliberate, contumacious and unwarranted disregard of the trial court’s authority, all other enforcement powers at the court’s disposal have failed to advance the litigation, and which may be set aside where a trial on the merits could be had without hardship or prejudice. (Kubian, 178 Ill. App. 3d at 196-97, 533 N.E.2d at 25.) However, once the trial court imposes a sanction for noncompliance, the sanctioned party has the burden of establishing that the noncompliance was reasonable or justified by extenuating circumstances or events. Cedric Spring & Associates, Inc. v. N.E.I. Corp. (1980), 81 Ill. App. 3d 1031, 402 N.E.2d 352.

Defendant argues that plaintiff’s counsel has shown a deliberate and continuing disregard of a whole series of court orders, purportedly supported by an “exhibit” which appears in defendant’s brief. The record contains an order barring expert witnesses, which was subsequently vacated by the trial court. The record of the hearing on defendant’s Rule 304(a) motion (134 Ill. 2d R. 304(a)) contains the trial court’s statement that “[tjhis is not the first time that this particular issue has come up *** we have talked about this particular matter many, many times.”

Defendant, however, did not indicate in its purported “exhibit” where the trial court’s reasons for granting new discovery orders can be found in the record. Moreover, the transcript of proceedings of January 6, 1989, indicates that the court, before issuing the order giving plaintiff’s counsel five days to comply with its previous discovery order, stated that “[t]he order’s been in effect since November” and does not explicitly refer to any other order. The court’s statement suggests that it was concerned that plaintiff’s counsel comply with the October 7, 1988, order. Although defendant argued that “after literally years of rankling [sic]” plaintiff had only produced one “half-baked witness” against defendant, the court refused to grant the immediate dismissal with prejudice defendant sought.

In sum, the record is unclear as to whether the trial court granted the dismissal due to the failure to comply with 10 discovery orders or only two. At this juncture we note that plaintiff’s counsel had sought a contempt citation in order to appeal the trial court’s decisions regarding discovery; such a citation can be an appropriate method of testing the validity of a discovery order. (E.g., Bua, 37 Ill. 2d at 189, 226 N.E.2d at 12.) If a contempt citation had issued in this case, the trial court would have been required to issue an order setting forth specific grounds to support its action. (E.g., Hellige v. Hellige (1977), 50 Ill. App. 3d 209, 365 N.E.2d 220.) Keeping in mind that a “just order” under Rule 219(c) must, to the greatest extent possible, ensure both discovery and a trial on the merits, a trial court cannot choose the more drastic path of dismissing a claim without giving specific reasons subject to review. The record in this case does not support the dismissal order.

For all of the aforementioned reasons, we reverse the judgment of the circuit court of Cook County and remand the case for further proceedings.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

       The complaint also asserted medical malpractice claims against a number of physicians and a hospital, none of which are involved in this appeal.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND JACKSON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—0857
    Opinion filed June 28,1991.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Chapman & Cutler, both of Chicago (Susan Shallenberger, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial defendant was found guilty of criminal sexual assault and sentenced to four years in prison. On appeal defendant contends that the trial court’s refusal to permit certain cross-examination of complainant denied him his constitutional right to confrontation of witnesses.

Defendant has also moved for leave to file a supplemental brief in which he contends that he should be granted a new trial under the plain error doctrine because the trial court allowed the complainant to testify regarding her homosexual relationship. (134 Ill. 2d R. 615(a).) In response the State filed a motion to strike the brief.

The consensual nature of the sexual encounter which took place between complainant and defendant was the central issue at trial. Prior to trial, the trial court granted the State’s motion to bar any reference to complainant’s abortion of June 1986 and miscarriage two months later. This information appeared in the medical history complainant gave to the hospital personnel after she claimed defendant had raped her.

Before eliciting testimony from the complaining witness regarding the events of November 3, 1987, complainant was asked about her relationship with Christine Mathis (Shannon). Complainant stated that at the time of the occurrence Shannon was her lesbian lover, and that she, complainant, did not date men. She also testified that the last time she had “messed around with men” was in 1983 or 1984. On cross-examination complainant denied “messing around” with any men in 1986.

Complainant testified that on the evening in question she was preparing for a party at her apartment at 6458 South Marshfield in Chicago. All the guests except Shannon left by 4 a.m., and she and Shannon made love before Shannon left at 7:30 a.m. Complainant then agreed to allow defendant, who was visiting complainant’s aunt in an upstairs apartment, to sleep on the floor of her apartment and she returned to bed. Complainant was acquainted with defendant because he was dating her sister Rita. Sometime later she was awakened by defendant, who said he wanted to make love to her. Complainant testified that he grabbed her arms, pulled down her pants, forced her legs open and had vaginal intercourse with her. He then turned her over and again had vaginal intercourse with her from the rear. Complainant testified that she fought with defendant but did not scream. When the telephone rang she was able to pick up the telephone and say “Shannon,” but defendant grabbed her arm and pulled the telephone jack from the wall. Defendant left when complainant agreed not to tell her sister.

Shannon confirmed that she left complainant’s apartment at approximately 7:30 the morning after the party and that her telephone call to complainant was cut off. She testified that when she called again, there was no answer. When she finally reached complainant, complainant told her that defendant had raped her.

Complainant’s aunt also confirmed that complainant came to her apartment about 9 a.m.; she was crying and saying that defendant had raped her. Police were called and complainant was taken to a hospital.

MaryAnne McClory, a nurse from Central Community Hospital, assisted in complainant’s examination on the morning of November 4, 1987. McClory testified that complainant stated that she had been raped and McClory observed some bruises. McClory also testified that the complainant’s pelvic examination revealed no vaginal trauma.

Complainant’s sister Lorevius Jones (Rita) testified that in November 1987 she was six months pregnant by defendant and that she and defendant often spent time in complainant’s apartment. She claimed that on one occasion complainant walked around clad only in a T-shirt and that another time complainant asked defendant to bring her a cigarette while she was bathing. Rita claimed that complainant dated both men and women and that two weeks prior to trial she had seen complainant with someone complainant described as “her man.” Rita also claimed that complainant confided to her shortly after the incident that she had always wanted to have sexual intercourse with defendant.

Defendant testified that he was at complainant’s apartment for the party on November 3, 1987, and then went upstairs. When complainant came upstairs later, defendant asked if he could retrieve a bag he had left in her apartment. When he arrived two hours later, complainant invited him into her bedroom to watch television. She told him to make himself comfortable and eventually they had sexual intercourse with complainant’s consent. Defendant recalled that complainant answered her telephone once but denied pulling the telephone jack. He confirmed that complainant had walked around her apartment on other occasions wearing little clothing and once had requested that he bring her a cigarette while she was in the bathtub. When contacted by police, defendant voluntarily went to the station.

In the prosecution’s rebuttal argument, counsel argued that since complainant’s sexual preference excluded males, the only conclusion that the jury could draw was that defendant forced her to have sexual relations.

We will consider first the State’s request that defendant be denied leave to file his supplemental brief. Defendant claims that a new trial is warranted because the trial court allowed the prosecution to elicit testimony from complainant and her lesbian lover about their homosexual relationship. Defendant alleges that this error should be cognizable under Illinois Supreme Court Rule 615(a) in spite of his failure to raise the issue at trial, in a post-trial motion, in his docketing statement or initial brief. Defendant also refers to our recent decision in People v. KemblowsM (1990), 201 Ill. App. 3d 824, 559 N.E.2d 247, in which we determined that a new trial should be granted because the trial court erroneously allowed the jury to hear evidence that the complaining witness was a lesbian who had never consummated her marriage to her homosexual husband. The pivotal issue in KemblowsM was also consent to sexual intercourse.

Failure to object to questions at trial generally operates as a waiver of the right to consideration of the issue on appeal. (People v. Hudson (1985), 137 Ill. App. 3d 606, 610, 484 N.E.2d 1246.) Only if the improper questions were plain error or defects affecting substantial rights will we consider them under Supreme Court Rule 615(a) even though no objection was made at trial. Plain error occurs when the evidence is closely balanced or when the evidence is of such magnitude that defendant was denied a fair trial. (Hudson, 137 Ill. App. 3d 606, 484 N.E.2d 1246.) In addition the record must show that the jury verdict may have resulted from the error before plain error can be considered as a means of circumventing the waiver rule. People v. Yates (1983), 98 Ill. 2d 502, 533, 456 N.E.2d 1369.

In this case complainant admitted that she had previous relationships with men. Complainant’s sister saw complainant with a man complainant described as “her man” shortly before the incident. The sister also testified that complainant desired sexual intercourse with defendant. In light of this testimony, the jury could have rejected testimony of both complainant and “Shannon” that they were lesbian lovers and still convicted defendant from the balance of evidence against him. Thus, we reject defendant’s request to file a supplemental brief on this issue and do not believe that our decision in Kemblowski requires a new trial.

In his appeal defendant contends that he was denied the right to confront his accuser regarding her two prior pregnancies because the trial court erroneously prohibited cross-examination of complainant.

We agree that one element of the State’s case was the assertion that complainant’s sexual orientation precluded consensual sexual relationships with men at the time of the encounter in question, but defendant was afforded ample latitude to impeach this contention. Complainant herself admitted to prior dating relationships with men. Defendant elicited from her the admission that she had “messed around” with men in 1983 and 1984. Complainant’s sister testified that complainant was involved with a man just two weeks before the incident. She also testified that shortly after the incident complainant admitted to having long desired sex with the defendant. In the light of all this testimony, further cross-examination or impeachment of complainant regarding the 1986 abortion and miscarriage was cumulative and collateral. (People v. Sandoval (1990), 135 Ill. 2d 159, 181, 552 N.E.2d 726.) Thus the decision of the trial court limiting defendant’s cross-examination of complainant was not error and did not interfere or infringe upon defendant’s right to confront complainant. Sandoval, 135 Ill. 2d at 181.

Accordingly, defendant’s motion for leave to file a supplemental brief is denied, and the judgment of the circuit court is affirmed. As part of our judgment, we assess defendant $50 as costs for this appeal.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


text:
    WILLIAM GRIGGS, Plaintiff-Appellant, v. NORTH MAINE FIRE PROTECTION BOARD OF FIRE COMMISSIONERS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1 — 90—0589
    Opinion filed June 28,1991.

      Noel T. Wroblewski, of Combined Counties Police Association, of Barrington, for appellant.
    DiLeonardi & Broihier, Ltd., of Des Plaines, and Thomas F. McGuire & Associates, Ltd., of Long Grove (John C. Broihier, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiff William Griggs (hereinafter Griggs), a former fire lieutenant, appeals the order of the circuit court which affirmed the administrative decision of defendant, North Maine Fire Protection Board of Fire Commissioners (hereinafter Board or North Maine Board), that found Griggs to be guilty of several acts of misconduct that occurred on the evening of February 20, 1989, and terminated him for cause.

Based on the complaint and evidence presented during the administrative hearing, the facts reveal that Griggs was employed with the North Maine Fire Department (hereinafter Department), for 14 years. On February 20, 1989, at approximately 9:30 p.m., the Department was called upon to assist a nearby community on a fire call. As part of its regular procedure, off-duty firefighters were called back to man the fire station, and Griggs was one of the persons who responded to the call-back. The call-back employees were released from duty at about 10:07 or 10:08 that evening. However, Griggs remained at the station and proceeded to engage in the acts of misconduct that resulted in his discharge. According to Griggs, he had worked a 24-hour shift on February 19 and 20 until 8 in the morning. Thus, he was tired and weak; moreover, he was sick as the result of a cold but had not been drinking that evening. Griggs contended that any remarks he made against fellow firefighters were prompted by their language and actions toward him. The testimony given by other members of the fire department greatly contradicted Griggs’ account of what occurred and will be referred to within the text of this opinion.

North Maine Board discharged Griggs, finding that he was guilty of misconduct, to wit: (1) of being under the influence of an alcoholic beverage while on duty; (2) of making and directing anti-semitic remarks toward a fellow member and lieutenant; (3) of making false and vexatious comments about the abilities of a subordinate firefighter; and (4) of insubordination in that he used abusive language toward a superior officer and that Griggs was guilty of filing a false injury report. The trial court affirmed the Board’s findings of misconduct and its decision to discharge Griggs but reversed the Board’s finding with regard to the filing of the injury report. The trial court also held that Griggs’ due process and first amendment constitutional rights were not violated, he was afforded a fair and impartial hearing and that the North Maine Board rules complained of were not unconstitutionally vague.

On this appeal, Griggs raises the same issues urged before the trial court regarding the Board’s administrative decisions. The standard to be applied when reviewing the decision of an administrative agency was reaffirmed in Jakubec v. Bloomingdale Fire Protection District No. 1 (1986), 144 Ill. App. 3d 49, 493 N.E.2d 717. The court there stated:

“The findings and conclusions of an administrative agency on questions of fact are to be considered prima facie true and correct. [Citation.] Consequently, a reviewing court should not reweigh the evidence and determine what is the preponderance of the evidence. [Citation.] On administrative review, the court’s function is to determine whether the findings and decisions of the administrative agency are supported by substantial evidence in the record, and it may not disturb the judgment unless it is against the manifest weight of the evidence. [Citations.] In order to conclude that a finding is against the manifest weight of the evidence, the court must be satisfied that an opposite conclusion is clearly evident. [Citations.]” (Emphasis added.) Jakubec, 144 Ill. App. 3d at 50-51.

See also Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845.

Once it has determined that the findings of fact of the administrative agency are supported by the evidence adduced in the proceedings, the reviewing court then must proceed to determine whether the conclusion that the particular conduct warranted discharge is arbitrary. (Martin v. Matthys (1986), 149 Ill. App. 3d 800, 501 N.E.2d 286.) Specifically, with respect to judicial review of an administrative decision involving discipline of public employees, it is well settled that a reviewing court can not substitute its judgment for that of an administrative agency if the charges are not arbitrary or unreasonable, the evidence sustains the charges and the decision of the agency is related to the requirements of service. (DeGrazio v. Civil Service Comm’n (1964), 31 Ill. 2d 482, 489, 202 N.E.2d 522.) Moreover, an administrative agency is accorded discretion in determining cause for discipline (Westby v. Board of Fire & Police Commissioners (1977), 48 Ill. App. 3d 388, 362 N.E.2d 1098), and substantial deference must be given to the commissioner’s decision. Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 426 N.E.2d 885.

In applying the foregoing principles to the case at bar, we affirm the circuit court’s order and likewise decline to reverse the North Maine Board’s decision to discharge Griggs for misconduct. However, prior to discussing our reasons and rationale in reaching the conclusion that there is substantial evidentiary support for the Board’s decision, we will dispose of the other questions raised by Griggs.

First, Griggs contends that the Board erred when it refused to dismiss the charges against him that he made “anti-semitic” remarks toward a fellow lieutenant and “false and vexatious complaints” to a subordinate since these allegations did not reasonably apprise him of the charges so as to allow him to prepare a defense. However, the record shows that these charges apprised Griggs of the date, time, place, individuals involved and present, and the nature of the alleged acts of misconduct (Quinlan v. Board of Fire & Police Commissioners (1975), 27 Ill. App. 3d 286, 327 N.E.2d 203 (abstract of opinion)) “with reasonable certainty [citation] so as to enable him to intelligently prepare his defense.” Hall v. Lyons (1979), 71 Ill. App. 3d 1023,1029, 389 N.E.2d 1309.

Furthermore, Griggs’ attorney requested production of certain documents and was furnished discovery, including all witness statements and a report of the fire chief. It is established that charges filed in an administrative proceeding need not be drawn with the same precision required of pleadings in a judicial action. Sudduth v. Board of Fire & Police Commissioners (1964), 48 Ill. App. 2d 194, 198 N.E.2d 705; see also Nelmark v. Board of Fire & Police Commissioners (1987), 159 Ill. App. 3d 751, 756, 512 N.E.2d 1021.

Accordingly, we find that the charges here were sufficiently clear and specific to advise Griggs of the misconduct alleged; moreover, as the charges in question also set forth the rules and regulations violated, Griggs was able to intelligently prepare a defense.

Griggs next asserts that the charges that he used profane language against a superior, vexatious complaints toward a subordinate and derogatory, “anti-semitic” remarks against another lieutenant are protected remarks under the first amendment either as utterances done in a private conversation or as a series of comments about “official union” matters and “health and safety” matters of concern to the public.

The controlling precedent is found in Connick v. Myers (1983), 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684. The Court there limited the extent to which an employee could use the first amendment as a shield from discipline and held that only statements concerning matters of legitimate public concern were entitled to any constitutional protection. The Court stated that a public employee who speaks “as an employee upon matters only of personal interest” has no greater protection than would a private employee. (Connick, 461 U.S. at 147, 75 L. Ed. 2d at 720, 103 S. Ct. at 1689-90.) Whether a particular statement implicates community or public concern can be determined only after an examination of the statement’s content, form and context. See Kadzielawski v. Board of Fire & Police Commissioners (1990), 194 Ill. App. 3d 676, 681, 552 N.E.2d 331. Accord Norton v. Nicholson (1989), 187 Ill. App. 3d 1046, 543 N.E.2d 1053.

In the instant case, there were no members of the “general public” present when Griggs made the statements. To the contrary, the statements were made while Griggs, who was off duty because the call-backs had been released, was in an inebriated state and interrupting a shift meeting of firefighters. Our review of the record found no evidence to support Griggs’ position that matters of union business were on the agenda of the shift meeting or that it was imperative at that time and place that Griggs discuss the ability or lack thereof of Eisner to fight fires. The only evidence in the record that he was prompted to make the remarks and was provoked by the men is Griggs’ own testimony. However, the Board as the trier of fact was in the best position to listen to the testimony of the witnesses, assess the credibility of those witnesses and weigh the evidence.

Accordingly, we conclude that Griggs’ reference to Captain Short as an “asshole,” Lieutenant Goode as a “Jew cocksucker” and his repetitive and belittling comments about firefighter Eisner’s firefighting abilities do not reach matters of public concern. Furthermore, Griggs’ reliance on Brawka v. Board of Fire & Police Commissioners (1973), 9 Ill. App. 3d 879, 293 N.E.2d 348 (abstract of opinion), and Rogenski v. Board of Fire & Police Commissioners (1972), 6 Ill. App. 3d 604, 285 N.E.2d 230, for the proposition that profane language can be protected speech is misplaced. In Brawka, a private conversation between a police officer and a citizen was accidentally broadcast over the police radio. Similarly, in Rogenski, the words “damn” and “hell” were heard over an open microphone. Here, we believe that the language involved is not of the nature which is intended to be protected; rather, it is language which can be said to impair the administration of the Department. (Batley v. Kendall County Sheriff’s Department Merit Comm’n (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201.) The test of whether a public employee can be disciplined for his speech is whether or not the speech impairs the administration of public service. Schafer v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 677, 387 N.E.2d 976.

Griggs also challenges certain of the Board’s rules as constitutionally vague on their face and violative of his due process rights. Essentially, he contends that: (1) failure to work diligently or with a bearing consistent with the image of a professional firefighter; (2) making a vexatious or unnecessary complaint; and (3) engaging in conduct on or off duty unbecoming a member or which adversely affects the morale or efficiency of the Department are rules that fail to provide him with a constitutionally required definition of the charges against him. North Maine responds that each of the rules is set forth in full in the charges, the text of the rules provide an explanation of the meaning of the charge, and that Griggs was provided with sufficient facts to define the alleged acts of misconduct. As previously discussed in this opinion, in Quinlan, the court determined that the use of “conduct unbecoming” charges against a police chief which stated the date and place of the alleged misconduct, the nature of the conduct being investigated and alleged that such conduct constituted conduct unbecoming a police officer were sufficient to inform the chief of his alleged acts of misconduct. Quinlan, 27 Ill. App. 3d at 286.

We now address the issue as to whether North Maine’s findings of fact and decision to discharge Griggs are contrary to the manifest weight of the evidence. Bearing in mind that the assessment of the credibility of witnesses and the weighing of evidence are matters exclusively within the province of the trier of fact (Nicole Motors, Inc. v. Edgar (1989), 181 Ill. App. 3d 37, 40; Schoenbeck v. Board of Fire & Police Commissioners (1979), 69 Ill. App. 3d 366, 387 N.E.2d 738), we believe that North Maine’s conclusions and findings are supported by the facts in the record below.

With respect to the Board’s findings that Griggs was guilty of intoxication while on duty at the fire station on February 20, 1989, in violation of the rule which prohibits such conduct, the record reveals that two supervisors and several firefighters testified, inter alia, that Griggs had an “odor of alcohol on his breath”; that Griggs’ speech was slurred, slower, and louder than usual; that Griggs was unable to complete a full sentence; that Griggs was unable to control his physical movements, fell against a refrigerator and had to lean on a counter to keep his balance, and “couldn’t walk straight”; and that Griggs made several derogatory comments directed at several firefighters and yelled profanity at one firefighter. Griggs testified that he had consumed no alcohol that day but had taken some Nyquill for a cold. Two witnesses testified on behalf of Griggs that they never saw him stumble or slur his speech, that they did not smell alcohol on his breath and that they did not believe that he was intoxicated. However, as noted by the Board, on cross-examination, these witnesses conceded that they were not close enough to Griggs to smell his breath.

With respect to the Board’s decision that the anti-semitic remarks directed against Lt. Goode in the presence of other members of the Department were violative of Department rules inasmuch as such conduct constitutes a failure to work with a bearing consistent with the image of a professional firefighter and that said off-duty conduct adversely affects the morale or efficiency of the Department, we believe that such finding is supported by the manifest weight of the evidence. Several firefighters testified that they were present in the dayroom when Griggs made the remarks and that, contrary to Griggs’ testimony, Goode neither directed any bad language toward Griggs nor made any remarks, least of all derogatory remarks, about the union.

With respect to the Board’s decision that Griggs’ comments directed against Eisner were vexatious, belittling, demeaning and mean-spirited and in violation of Department rules, we believe that the manifest weight of the evidence supports the findings. The evidence reveals that on February 20, 1989, while in the dayroom at the fire station and while in the presence of other members of the department, Griggs repeatedly accused Eisner of being incompetent as a firefighter and afraid to participate in fighting fires. According to Eisner, Griggs appeared to be intoxicated and Eisner suggested that he remain at the station that evening. Eisner testified that Griggs got angry and repeatedly began to question Eisner as to why he was afraid to go into a fire. Other firefighters also testified that Griggs questioned Eisner about the last time he had entered or fought a fire and that Griggs stated that he knew of 10 people who would say that Eisner was afraid to fight fires. Additionally, contrary to Griggs’ testimony, the witnesses stated that Eisner did nothing to provoke Griggs.

Griggs testified that he questioned Eisner about his reluctance to participate in fighting fires because he was thinking about his duties as a lieutenant and felt an obligation to question Eisner about this issue. As stated previously, if the evidence tends to fairly sustain the charges and if the agency’s decision is related to the requirements of the service, this court will not substitute its judgment for that of the administrative agency unless the charges are so trivial as to be arbitrary or unreasonable. See DeGrazio, 31 Ill. 2d 482, 202 N.E.2d 522.

With respect to the Board’s decision that Griggs’ remark against Capt. Short constitutes insubordination as disrespectful and abusive language against a person and constitutes conduct which adversely affects the morale or efficiency of the Department, we likewise believe that the manifest weight of the evidence supports the Board’s findings. The Illinois Municipal Code governs the dismissal of members of the fire and police department of any municipality within its purview and mandates such a sanction be supported by cause. (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—17.) A cause for discharge has been found to mean some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and actions which the law and good public policy recognize as good cause for his no longer holding the position. Nation v. Board of Fire & Police Commissioners (1976), 40 Ill. App. 3d 384, 386-87, 352 N.E.2d 464.

It is the Board’s position here that to continue the employment of Griggs, after the contemptible behavior demonstrated against his Department and his fellow officers, would seriously impair the operations and efficiency of the Department and the ability of the fire chief to maintain discipline. In Albert v. Board of Fire & Police Commissioners (1981), 99 Ill. App. 3d 688, 425 N.E.2d 1158, the court concluded that an officer’s misconduct, viewing the “sum total” of all the incidents, may have a substantial, detrimental impact on the morale and efficiency of a department as to constitute cause for discharge. North Maine has made a similar conclusion here that the acts of misconduct engaged in by Griggs sufficiently constituted cause to terminate him. Based on our review of the evidence, we are not satisfied that an opposite conclusion is clearly evident (Battle v. Illinois Civil Service Comm’n (1979), 78 Ill. App. 3d 828, 831, 396 N.E.2d 1321), and accordingly, we find no error with regard to the order of the trial court and the Board’s decisions.

Last, Griggs contends that he was denied a fair hearing because he was not allowed to present evidence of union animus by the Department and certain firefighter personnel and evidence that Capt. Short used profanity in referring to another member of the fire department. We believe North Maine’s arguments concerning this issue are persuasive and supported by the record. The record does not bear out Griggs’ contention of a conspiracy to get him fired because of his union activities. The facts relevant to this case show that Griggs reported to the station for call-back duty in an intoxicated state. Although he was not scheduled to work at the time in question and was released from call-back duty, he remained at the station, went to the dayroom and by his own misconduct proceeded to interrupt a scheduled shift meeting. The record contains the testimony of union as well as nonunion firefighters who stated that Griggs engaged in specific acts of misconduct and that if any reference to the union was made on the evening in question, it was raised by Griggs. Moreover, the record is replete with assertions by Griggs that the cause for the allegations against him was union-related. With regard to the alleged derogatory remark made by Capt. Goode, the record demonstrates that during an offer of proof, a witness, Lisle Edwards, stated that he had heard Capt. Goode use profanity in reference to a deputy chief; however, such remark was made in the presence of the deputy chief, who did not object, it was done in a humorous manner, and the deputy chief did not appear to be offended by the language.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERBERT PERKINS, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 88—1245
    Opinion filed June 28,1991.

      Randolph N. Stone, Public Defender, of Chicago (Henry L. Hams and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Herbert Perkins, Jr., appeals after a bench trial from his convictions on two counts of aggravated criminal sexual assault (causing bodily harm), two counts of aggravated criminal sexual assault (endangering life), two counts of aggravated criminal sexual assault (during commission of a felony) and three counts of aggravated criminal sexual assault (victim at least 60 years of age) against Margaret Webster (Margaret), claiming that the indictments did not allege the charges against him with sufficient specificity and that he was denied a fair trial by the improper admittance of hearsay testimony. He seeks reversal of his convictions or reversal with a remand for a new trial.

Tanya Webster (Tanya), Margaret’s daughter, testified at trial that she lived with Margaret at the time of the incident; Perkins was Tanya’s boyfriend at the time. On September 12, 1985, Tanya and a friend went to Missouri for the weekend, and she told Perkins over the phone on September 13 that she was going out of town. Later that day, Tanya received a phone call in Missouri from Annette Jones (Jones), who lived below her and Margaret’s apartment. Tanya immediately returned home. She saw Perkins’ car in front of the house, and found the apartment to be in great disorder, with blood in the dining room, living room, bedroom and kitchen, a chandelier pulled out of the ceiling, an air conditioner pulled out of the window, a broken lamp, a fist-sized hole in a wall, and substantial damage to the kitchen. Upon visiting her mother in the hospital, Tanya found her to have patches over her eyes, scars on, and swelling in, her face, and bandages and pads on her thigh and buttocks. Margaret died in the hospital.

Jones testified that she knew Perkins because of his relationship with Tanya. She saw Margaret on the morning of September 13, 1985, and she appeared to be in good health. Late that night, however, Jones awakened to the sound of fighting in the upstairs apartment, mostly from the kitchen. She recognized Perkins’ voice saying, “Where’s the bitch at?” She also heard him yell the names of several men, and heard him say, “I am going to take you to Jackson Park [a local hospital] bitch, you’re going to Jackson Park tonight.” Jones heard Margaret yell for help. She phoned Margaret’s apartment and asked her whether everything was alright. She replied, “No.” Jones called the police, ran upstairs and knocked at Margaret’s door. Her knock went unacknowledged, but she again heard Perkins yell that he was “going to take you to Jackson Park,” and heard Margaret shouting for help.

Jones entered Margaret’s apartment after the police arrived. She first saw Margaret standing in the dining room and leaning over a table, naked, with her hair full of shampoo and with blood emanating from her rectum. She saw that Perkins was naked and had blood on his penis, that there was a puddle of blood in the dining room, and later, when she saw Margaret get up from her bed, there was blood on the bed. She saw no open wounds on Margaret’s body, however.

Chicago police officer James Kennelay arrived with his partner, Susan Urbon, at Margaret’s apartment at about 12:45 on the morning of September 14, 1985, in response to a call. When he and Urbon reached the building, he heard loud voices coming from the second floor and could hear objects being thrown about. About a minute after the officers knocked on the door, which, because it opened outward, could not easily be broken into, Margaret answered the door, naked, with soap in her hair, blood running down her legs, apparently from her vagina and rectum, and moaning for the officers to help her.

Perkins was standing approximately 10 feet behind Margaret. He was naked, had soap in his hair, blood on his genitalia, and was yelling incomprehensibly, although he did not appear to be injured. When Kennelay attempted to subdue him, Perkins initially eluded his grasp and threw an air conditioning unit out the window, before finally being handcuffed. The apartment was in complete disarray, with clothes, garbage and broken items strewn throughout and a window (other than the one through which the air conditioner had been ejected) was knocked out.

Urbon testified that when she and Kennelay entered Margaret’s apartment, Margaret ran from the living room into her bedroom. While in the bedroom with the victim, Urbon noticed that blood was coming from her rectum, that she was shaking and appeared frightened, and that she had a bite mark on her right thigh, which was bleeding. Urbon asked Margaret whether she had been raped, and although Margaret responded, that response does not appear in the record.

About 10 minutes after they arrived, the officers took Margaret from the apartment and put her in a squad car. When they asked her what had happened, Margaret replied that Perkins had called and was looking for her daughter, that he had come by the apartment and had asked whether he could use the bathroom to take a bath, that he had ripped her clothes off and had raped her. Urbon testified that Margaret’s statements were prompted solely by her and Kennelay’s questions.

John Kenney, an expert in the field of bite mark identification, testified that after Margaret’s death on October 6, 1985, he examined three bite marks on her body. He compared the marks, which were on her thigh and breast, with models taken of Perkins’ teeth, and concluded that Perkins had made the marks and that the bite on Margaret’s thigh would have to have been made with a great deal of force.

Albert Sheetz, an expert in the field of general surgery, testified that he treated Margaret when she arrived at the hospital following the incident. During his initial conversation with her on the morning of September 14, 1985, she told him that “she had been sexually assaulted by her daughter’s boyfriend.” Margaret’s rectum was badly traumatized, lacerated, bleeding and swollen. While Sheetz could not identify with any certainty the cause of the injury, he testified that it could have been caused by multiple violent intrusions. In addition, Margaret’s vagina was lacerated, swollen and bruised, with some minor bleeding, and the doctor stated that the injury could have been caused by the forceful insertion of a penis or other object.

On cross-examination, Sheetz stated that he had related Margaret’s own words when he testified that she said she had been sexually assaulted, but then stated that she may have said that she had been raped.

Peter Dignan, a Chicago police officer, testified that he interviewed Perkins immediately after his arrest. Perkins told him that he had called Margaret’s home at around 8 p.m. on September 13, 1985, in order to speak to Tanya, but was told that she was not there. He then told Margaret that he was coming over, and purchased some beer and wine before going to the apartment. He and Margaret conversed, after which he told her that he had to leave in order to be somewhere by 4 in the morning. Margaret told him that he could stay if he wanted to, take a bath, and leave from the apartment.

As Perkins was bathing, however, Margaret entered the bathroom, threw her cat into the tub with him, starting yelling something about the “Holy Ghost” and threw soap into his eyes. They began to fight. Perkins told Dignan that he threw objects about in order to stop Margaret and that he also bit her on the thigh during the fracas, but denied having sexual intercourse with her.

Dignan also testified that he spent between 40 and 45 minutes at Margaret’s apartment early in the morning of September 14, 1985, and observed no empty alcohol containers; he admitted, however, that his failure to observe them did not mean they weren’t there.

Perkins did not present a defense. Following conviction (and acquittal on several counts not at issue in this appeal), the court sentenced him to nine concurrent sentences of 20 years in the custody of the Illinois Department of Corrections.

Perkins first contends that his indictments for aggravated criminal sexual assault failed to “set[ ] forth the nature and elements of the offense charged,” as required by section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111— 3(a)(3)). Specifically, Perkins claims that the indictments, which accused him of committing “an act of sexual penetration, to wit: sexual [in some counts, ‘anal’] intercourse upon Margaret Webster by the use of force and by the threat of force,” failed to sufficiently describe “sexual penetration.” He points out that “sexual penetration” is defined by section 12 — 12(f) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f)) as:

“any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration.”

Because, Perkins argues, a variety of acts can constitute “sexual penetration,” the indictments should have listed the type of act which was allegedly committed with more specificity than “sexual intercourse” or “anal intercourse.” Accordingly, Perkins maintains, the circuit court should have granted his motion to dismiss the charges.

In order to be sufficiently specific, an indictment must

“apprise the defendant with reasonable certainty of the offense with which he is charged, so that he will be able to prepare a defense and plead any acquittal or conviction which results as a bar to future prosecutions.” (People v. Hall (1982), 96 Ill. 2d 315, 320.)

When an illegal act may be committed in more than one way, Perkins avers, the indictment should specify the manner in which the crime was allegedly committed. Criminal sexual assault, which is a crime predicate to a conviction for aggravated criminal sexual assault (see section 12 — 14(a) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)), is committed if one:

“(1) commits an act of sexual penetration by the use of force or threat of force; or
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or
(3) commits an act of sexual penetration with a victim who was under 18 years of age when the act was committed and the accused was a family member.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13(a).)

Perkins’ indictments all accused him of committing “an act of sexual penetration *** by the use of force and by the threat of force,” consistent with the manner by which criminal sexual assault can be committed according to section 12 — 14(a)(1) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(1)).

The cases Perkins cites to buttress his argument that the indictments should have been more specific than to merely allege one of the three methods of criminal sexual assault do not support his claim. In People v. Lutz (1978), 73 Ill. 2d 204, the court held that an indictment for aggravated battery (use of deadly weapon) (section 12 — 4(b)(1) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(b)(1))) must allege which of the two methods by which the predicate act of battery (section 12 — 3(a) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 3(a))) can be committed were used by the defendant. (73 Ill. 2d at 212.) Because, unlike “sexual penetration,” neither of the two battery methods was more specifically defined by statute, Lutz is not helpful in determining the level of specificity required in the instant case.

The court in People v. Heard (1970), 47 Ill. 2d 501, held a complaint to be deficient which charged two defendants with gambling (policy game) (section 28 — 1(a)(8) of the Code (Ill. Rev. Stat. 1967, ch. 38, par. 28 — 1(a)(8))) by alleging that each

“set up or promoted a Policy Game or (Sold) or (Offered to Sell) or (transferred) a ticket or (share) for a lottery or (sold) or (offered to sell) or (transferred) or (knowingly possessed) a policy ticket or other similar device: To Wit: Policy results tickets, Policy bet writings and other related gambling policy paraphernalia.” (47 Ill. 2d at 504.)

Although the indictment tracked the statute’s language, the court held that it was too general because:

“the statute names disparate and alternative acts, any one of which will constitute the offense. *** The promoting of a policy game is not the same act as transferring a policy ticket, for example. The use of the disjunctive under these circumstances causes uncertainty and conjecture as to which of the alternatives the accused is charged with committing.” 47 Ill. 2d at 504.

The court, however, required only that the State choose which elements of the crime it was going to charge the defendant with. Even though “policy game,” one of those elements, was itself defined in alternative ways in section 28 — 2(c) of the Code (Ill. Rev. Stat. 1967, ch. 38, par. 28 — 2(c)), the court did not discuss whether the State needed to select a definition from among those mentioned in the statute. As with Lutz, the decision in Heard does not show that the State, when charging a crime, has to provide more specificity than that provided by the statute allegedly violated, even if terms within that statute are more specifically defined elsewhere.

In Hall, however, the court held that an indictment charging the defendant with violating the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56V2, par. 701 et seq.) was sufficiently specific when it charged that he “knowingly and unlawfully possessed, with intent to deliver *** cannabis” (96 Ill. 2d at 317), although the terms “manufacture,” “deliver” and “Cannabis” were defined in alternative and disparate ways in section 3 of that Act. (Ill. Rev. Stat. 1977, ch. 56x/2, pars. 703(a), (d), (h).) Similarly, although several different acts constitute “sexual penetration” according to section 12 — 12(f) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f)), the State was not required to allege which part of the definition addressed Perkins’ actions; the identification of “sexual penetration” as an element the State was required to prove, combined with the indictments’ description of the penetration as being “sexual intercourse” and “anal intercourse,” properly “protected] the defendant against being forced to speculate as to the nature or elements of the *** offense, thus spreading his resources thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses on the most promising alternative and builds his case around that.” Hall, 96 Ill. 2d at 320.

Perkins next argues that the trial court abused its discretion in admitting Susan Urbon’s testimony that after she and Kennelay put Margaret in a squad car to take her to the hospital, they asked her what had happened, which elicited her reply that Perkins had raped her. He argues that this testimony was inadmissible hearsay, violative of his right “to be confronted with the witnesses against him” (U.S. Const., amend. VI) and of his right “to meet the witnesses face to face” (Ill. Const. 1970, art. I, §8), and was further inadmissible as a “spontaneous declaration” because Urbon had, while in the apartment with Margaret, already asked her whether she had been raped; Margaret had therefore had time to reflect on the “suggestion” raised by Urbon’s question, thus negating any spontaneity to her statement in the squad car.

In order to qualify as a “spontaneous declaration,” and thus to except it from the hearsay rule, there must, in addition to other factors not relevant to this case, be an “absence of time to fabricate” the statement. (People v. House (1990), 141 Ill. 2d 323, 381.) In considering the impact of this requirement on a statement, courts consider not just the amount of time involved, but also “the nature of the event, the mental and physical condition of the declarant, and the presence or absence of self-interest.” House, 141 Ill. 2d at 382.

Ten minutes elapsed from the time the police officers interrupted the events at Margaret’s residence by their arrival until she made her statement. There was evidence, as previously noted, that when the police officers reached her apartment, Margaret was shaking and frightened, and was bleeding both from her rectum and from the bite mark on her thigh. The only event which Perkins alleges affected the spontaneity of Margaret’s statements was Urbon’s question to her as to whether she had been raped, the answer to which does not appear in the record, but which, according to Perkins, “was an unduly suggestive and conclusory question,” and which caused the admitted statement to lack spontaneity “because the circumstances under which it was made showed that [Margaret] Webster had time to reflect on events that had occurred, think about the question Officer Urbon asked her in the apartment and organize her anticipated response in her mind before speaking to Urbon and Kennelay.”

We first note that the spontaneity of a declaration is not destroyed by the declarant’s having spoken to someone on a topic before making the admitted statement on the same subject; the earlier statement “is merely a factor to consider in determining admissibility.” (House, 141 Ill. 2d at 386.) In addition, other cases have held statements to be spontaneous even when they were made several minutes after the startling occurrence, provided that the other requirements for spontaneity were met. (See, e.g., People v. Sanchez (1982), 105 Ill. App. 3d 488, 491-92 (statement made 45 minutes after declarant was shot, after having twice previously identified the perpetrator to others, and in response to a question about who the perpetrator was); People v. Washington (1984), 127 Ill. App. 3d 365, 385 (time between incident and statement was 10 minutes, during which period the declarant made a telephone call and ascended a flight of stairs); People v. Wilson (1980), 87 Ill. App. 3d 693, 701-02 (witness was first person to whom declarant spoke, 15 to 20 minutes after being beaten and raped; declarant was injured, was crying and had walked about half a block before making statement).) Considering Margaret’s physical and emotional condition at the time she made the statement, the apparent violence occurring in the apartment before the arrival of the police, and the absence of evidence of any self-interest on Margaret’s part in accusing Perkins of rape, we hold that the passage of 10 minutes after the event and Officer Urbon’s prior question to Margaret did not destroy the spontaneity of her statement in the squad car. Accordingly, the admission of that statement was not an abuse of the trial court’s discretion.

Finally, Perkins contends that the trial court abused its discretion in admitting Doctor Sheetz’s testimony that Margaret had told him that she had been “sexually assaulted by her daughter’s boyfriend,” arguing that the statement was hearsay not made admissible as a statement made to a physician for the purposes of treatment, since Sheetz had no need to know the identity of the person who sexually assaulted Margaret in order to treat her properly. The State responds by avoiding the question of the admissibility of Margaret’s identification of Perkins as the perpetrator, defending, instead, the admissibility of her statement that she had been sexually assaulted.

While there is no question that Margaret’s statement that she had been sexually assaulted was admissible as a “statement[ ] pertinent to medical diagnosis and treatment” (People v. Sommerville (1990), 193 Ill. App. 3d 161, 175-76; People v. Taylor (1987), 153 Ill. App. 3d 710, 720), that part of her statement identifying Perkins as the perpetrator was not admissible under this exception to the hearsay rule. (Sommerville, 193 Ill. App. 3d at 175-76; Taylor, 153 Ill. App. 3d at 721.) Nevertheless, since identification of the perpetrator was clearly not an issue in the instant case, the improper admission of that part of Margaret’s testimony so identifying Perkins was clearly harmless error.

For all of the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and DiVITO, JJ., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC FIGURES, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 89—1225
    Opinion filed June 28,1991.

      Randolph N. Stone, Public Defender, of Chicago (Joseph M. Gump and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was convicted at a bench trial of aggravated battery, armed violence, and attempted murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4, 33A — 2, 8 — 4(a), 9 — 1(a).) On appeal, he argues that (1) aggravated battery, which served as the predicate felony for armed violence, was not proved because the State failed to show that he caused “great bodily harm”; (2) his aggravated battery conviction based on use of a deadly weapon and his armed violence conviction were both premised upon the same act and the former must be vacated; (3) his conviction of attempted murder based on an accountability theory was improper; and (4) the circuit court abused its discretion in sentencing him. We affirm defendant’s convictions for aggravated battery and attempted murder, vacate his conviction and sentence for armed violence, and remand for resentencing, for reasons which follow.

The State’s evidence established that on July 19, 1988, David Tayloer, Fred Thornton, and several others were playing basketball in an outdoor lot. Many of those present, including Tayloer and Thornton, were members of a “social club” called the Gigolos. Defendant, who was a member of a rival club, approached the area with 8 to 10 other men, including Kenyatte Freeman, and members of the two groups began shouting at each other. Defendant had been involved in a fight earlier in the day -with one of the Gigolos. Tayloer and Thornton both testified that no one among their group had any weapons. Defendant and two of the men who were with him, however, drew handguns and attempted to fire them. According to Thornton, defendant yelled “these ain’t no ‘blank-blank’ blanks.” The guns only clicked at first, and Tayloer, along with several others, began advancing toward defendant’s group. Defendant and Freeman continued to pull the triggers as they retreated. Defendant aimed at Tayloer and the gun discharged; the bullet hit Tayloer’s shoe but did not pierce his skin. Thornton was shot in the abdomen by Freeman and consequently was hospitalized for 10 days. After several shots were fired, defendant and his companions fled.

Ladonna Shaw testified for defendant. She lived adjacent to the lot in which the shooting occurred and watched the incident from her front porch. Defendant was present at the scene but did not have a gun; two other men were responsible for the shooting. She also said that the men who had been playing basketball did not have any weapons.

Defendant testified in his own defense. He had been involved in a fight earlier in the day with Carson Ross, a member of the Gigolos. Ross and another had attacked defendant with a baseball bat and chased him to his house, where more fighting occurred. Later, defendant and several others confronted his assailants. After a bottle had been thrown at defendant’s group, Freeman and another of defendant’s friends fired their handguns into the crowd. Defendant drew his gun, which he had brought from his house, and fired it once into the air. He said that he was afraid and was only trying to scare the rival group, although he admitted that none of them was armed.

The court found defendant guilty of aggravated battery, armed violence, and attempted murder. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4, 33A — 2, 8 — 4(a), 9 — 1(a).) He was sentenced to concurrent prison terms of 12 years for armed violence, 12 years for attempted murder, and 5 years for aggravated battery.

I

Defendant’s armed violence conviction was based upon the predicate felony of aggravated battery. (See Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 2, 12 — 4.) Defendant, however, argues that he was not proved guilty beyond a reasonable doubt of aggravated battery because the State failed to establish that he inflicted “great bodily harm” upon Tayloer.

Infliction of great bodily harm is an essential element of the offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12— 4(a).) It has been held repeatedly that the term is not susceptible of a precise legal definition; it requires, however, an injury of a greater and more serious character than an ordinary battery. (People v. Costello (1981), 95 Ill. App. 3d 680, 684, 420 N.E.2d 592; People v. Carmack (1977), 50 Ill. App. 3d 983, 986, 366 N.E.2d 103; People v. Lyons (1974), 26 Ill. App. 3d 193, 199, 324 N.E.2d 677.) The question of whether the victim’s injuries rise to the level of great bodily harm is a question for the trier of fact (People v. Cochran (1989), 178 Ill. App. 3d 728, 738, 533 N.E.2d 558), which is neither dependent upon hospitalization of the victim, nor the permanency of his disability or disfigurement (People v. Jordan (1981), 102 Ill. App. 3d 1136, 1140, 430 N.E.2d 389). Instead, the determination centers upon the injuries which the victim did, in fact, receive. Costello, 95 Ill. App. 3d at 684.

The Illinois Supreme Court has provided some guidance in defining the term “bodily harm” as it relates to simple battery:

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required.” (People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633.)

Because great bodily harm requires an injury of a graver and more serious character than an ordinary battery, simple logic dictates that the injury must be more severe than that set out in the Mays definition. The word “great” must be given effect in construing the aggravated battery statute; statutes should be interpreted so that no word or phrase is rendered superfluous or meaningless. People v. Parvin (1988), 125 Ill. 2d 519, 525, 533 N.E.2d 813.

The State relies on People v. Matthews (1984), 126 Ill. App. 3d 710, 467 N.E.2d 996, in which the victim was struck on the head with a gun and received several full-force blows on the head and arms with a baseball bat. Despite the victim’s statement that “I only had a bruise on my head,” the jury determined that she had suffered great bodily harm and convicted defendant of aggravated battery. That finding was affirmed on appeal. 126 Ill. App. 3d at 714-15.

In this case, Tayloer’s injury is not as severe as those suffered by the victim in Matthews. Defendant fired a shot at Tayloer which pierced his shoe but did not penetrate his skin. One witness saw Tayloer limping after the shot, but no one saw any blood on his shoe. Tayloer himself admitted that his foot did not bleed as a result of the shot. Although he was treated at the hospital, Tayloer’s testimony indicates that his injury required very little attention:

“They put a little iodine on my foot. At first they cut the little blood clot open, and then they put iodine on there and patched it up.”

The injury clearly rises to the level of “bodily harm” as defined in Mays. We find, however, that Tayloer did not suffer great bodily harm. The circuit court’s finding in that regard is not supported by the evidence.

Defendant’s armed violence conviction, therefore, must be vacated. Because the State failed to prove beyond a reasonable doubt that defendant committed aggravated battery based on great bodily harm, that offense cannot serve as the predicate felony for armed violence.

II

Defendant was convicted of aggravated battery for intentionally or knowingly causing bodily harm through the use of a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1).) Although the State conceded in its brief that this conviction should be vacated, it did so based on the assumption that defendant’s armed violence conviction would stand; both convictions cannot be predicated on the same act. (People v. Payne (1983), 98 Ill. 2d 45, 54-55, 456 N.E.2d 44.) Because we have vacated defendant’s conviction for armed violence, aggravated battery is the only offense predicated upon defendant’s shooting of Tayloer.

The evidence established that defendant pointed his handgun at Tayloer and pulled the trigger several times. The gun misfired at first, but eventually discharged, sending a shot toward Tayloer. The bullet penetrated his shoe and grazed his foot, causing a small blood clot. This evidence, when viewed in the light most favorable to the State, supports the circuit court’s finding that defendant committed aggravated battery. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

This felony, however, cannot serve as the basis for armed violence, as that would constitute an improper double enhancement. The use of a dangerous weapon which serves to enhance a charge of battery to aggravated battery cannot also serve to further enhance the latter charge to armed violence. People v. Van Winkle (1981), 88 Ill. 2d 220, 222, 430 N.E.2d 987; People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627.

Based on the preceding reasoning, defendant’s conviction for aggravated battery predicated upon the use of a deadly weapon is affirmed.

Ill

Defendant contends that his conviction for attempted murder, which was based on an accountability theory, must be reversed because the State failed to prove beyond a reasonable doubt that Kenyatte Freeman had intent to kill.

An accused commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a).) In order to sustain a conviction for attempted murder, the State must prove that the accused had specific intent to kill the victim. (People v. Mitchell (1984), 105 Ill. 2d 1, 9, 473 N.E.2d 1270.) Because it can rarely be proved by direct evidence, specific intent to kill may be inferred from the circumstances, such as the character of the assault or use of a deadly weapon. (People v. Tyler (1989), 188 Ill. App. 3d 547, 553, 544 N.E.2d 1077.) Further, a person who fires a gun at or towards another, with either malice or total disregard for human life, may be convicted of attempted murder. People v. Starks (1989), 190 Ill. App. 3d 503, 510, 546 N.E.2d 71, appeal denied (1990), 129 Ill. 2d 571.

Defendant relies on three cases in which the reviewing court reversed the finding of specific intent to kill. All three cases, however, can be distinguished. In Mitchell (105 Ill. 2d 1, 473 N.E.2d 1270), defendant beat her 16-month-old baby with her hand, fist, and a belt until the child was comatose. In People v. Jones (1989), 184 Ill. App. 3d 412, 541 N.E.2d 132, defendant and two others entered a family’s apartment and beat the man, his wife, and their child. One assailant was armed with a knife and another had a handgun, although no shots were fired. In People v. Thomas (1970), 127 Ill. App. 2d 444, 262 N.E.2d 495, defendant entered a woman’s apartment, stabbed her in the shoulder, beat her, and raped her. In each of those cases, the defendants were all within the confines of a private residence and had the opportunity to commit murder, if they had so intended. Further, no gun was discharged in any of the three cases.

Here, the evidence established that Freeman, along with defendant, approached several unarmed men and drew his handgun. When he attempted to fire, the gun only clicked, and the unarmed men began to advance. Freeman continued to pull the trigger, and his gun discharged, striking Thornton in the abdomen. Immediately after shooting Thornton, Freeman and the others fled. The circuit court held that Freeman pointed his gun and fired at an unarmed man with total disregard for human life. Viewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have convicted defendant of attempted murder on an accountability theory, in that he facilitated the commission of this offense. See Pintos, 133 Ill. 2d at 291; Collins, 106 Ill. 2d at 261; Ill. Rev. Stat. 1987, eh. 38, par. 5 — 2(c).

IV

Defendant was sentenced to concurrent prison terms of 12 years for attempted murder, 12 years for armed violence, and 5 years for aggravated battery. As we cannot determine with any degree of certainty whether or not the conviction vacated herein may have influenced the circuit court in imposing sentences for the remaining convictions of attempted murder and aggravated battery, the sentence should be considered in a new hearing. (Mitchell, 105 Ill. 2d at 16; People v. Olsen (1987), 161 Ill. App. 3d 945, 951, 514 N.E.2d 233.) In light of this determination, it is unnecessary to address defendant’s argument that the circuit court abused its discretion in sentencing him.

Accordingly, the judgments of conviction for attempted murder and aggravated battery based on the use of a deadly weapon are affirmed, the sentences vacated, and the cause remanded for a new sentencing hearing as to those offenses. The conviction and sentence for armed violence are vacated.

Affirmed in part; vacated in part and remanded.

DiVITO and COCCIA, JJ., concur.