author: JUSTICE STOUDER

text:
    THE PEOPLE ex rel. EDWARD A. BURMILA, JR., State’s Attorney of Will County, Plaintiff-Appellant, v. ONE 1987 CADILLAC, VIN 1G6CD118XH4317299, et al., Defendants-Appellees.
    Third District
    No. 3—89—0805
    Opinion filed October 5, 1990.

      Edward Burmila, State’s Attorney, of Joliet (John X. Breslin and Gary . E Gnidovee, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Patrick T. Rogers, of John T. O’Connell, Ltd., of Willow Springs, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The State filed a forfeiture petition against a 1987 Cadillac owned by the defendant, Larry West. The trial court granted the defendant’s motion to exclude certain evidence and denied the forfeiture petition. The State appeals both rulings.

The record shows that the State filed a forfeiture petition alleging that the defendant had used his 1987 Cadillac to facilitate the unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401). The defendant filed a motion in limine seeking to bar admission of both a baggie containing a white powdery substance and a test tube containing a white powdery residue. The trial court reserved ruling on the motion until the conclusion of the forfeiture hearing.

At the forfeiture hearing, Romeoville police officer Larry Vinson testified that on August 27, 1989, he responded to a report of a disturbance at the residence of Walter Gustave. When he arrived on the scene, Gustave was attacking the defendant, who was lying on the floor, covered with blood. Vinson arrested Gustave and summoned an ambulance for the defendant.

Vinson further testified that Officer Scott Dubbs then arrived on the scene. Since the defendant’s Cadillac was parked in the driveway, Dubbs asked the defendant if he wanted it removed for safekeeping. The defendant replied that he did. Dubbs then arranged for a tow truck to pick up the car. Pursuant to departmental policy, Vinson conducted an inventory search of the passenger compartment.

Officer Dubbs testified that he assisted Vinson in the inventory search. After they finished, he indicated on the tow report that the vehicle was eligible for release. The Cadillac was then towed by Steve’s Towing Service, which was not affiliated with the police department.

Officer Eugene Sullivan testified that later that day, he searched the Gustave residence and found a set of car keys. The keys were turned over to Officer Michael Ramaglia, who went to Steve’s Towing Service to search the trunk.

Officer Ramaglia testified that the car was stored in a fenced-in parking lot. Inside the trunk, he found a baggy containing a white powdery substance.

Officer Sullivan testified that after he learned of the possible narcotics, he altered the tow report to indicate that the vehicle was not eligible for release. On August 29, 1989, he searched the trunk and found a test tube containing a white powdery residue.

A forensic scientist testified that the substance in the baggie weighed 1.6 grams and contained cocaine.

The trial court found that the automobile was not in police custody at the time of the first two inventory searches. Consequently, it denied admission of the cocaine into evidence. It further ruled that the vehicle was not subject to forfeiture.

On appeal, the State argues that the court erred in its rulings. The State contends that the police had custody of the vehicle because the owner allowed the police to arrange for its towing. It therefore contends that the police had the authority to make an inventory search of the entire vehicle. Since the cocaine was admissible, the State asks this court to reverse the denial of the forfeiture petition.

The police may inventory the contents of a motor vehicle that has been lawfully taken into custody. (People v. Clark (1976), 65 Ill. 2d 169, 357 N.E.2d 798.) The reasons justifying the search are as follows: (1) to protect the owner’s property; (2) to protect the police against claims concerning lost or stolen property; and (3) to protect the police from potential danger. (Clark, 65 Ill. 2d at 174, 357 N.E.2d at 800.) The justification for the search arises from impoundment (People v. Schultz (1981), 93 Ill. App. 3d 1071, 418 N.E.2d 6); consequently, the police may only make an inventory search if they have responsibility for the vehicle’s contents (People v. Von Hatten (1977), 52 Ill. App. 3d 338, 367 N.E.2d 556).

The record shows that the police complied with the defendant’s request to have the vehicle removed for safekeeping. A private company then towed and stored the vehicle. According to the tow report, the vehicle was initially eligible for release. Under these circumstances, we find that the police did not have a sufficient custodial interest to justify the search which uncovered the cocaine. We therefore affirm the trial court’s exclusion of the cocaine and its denial of the petition for forfeiture.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TINA BAEZ, Defendant-Appellant.
    Third District
    No. 3—90—0182
    Opinion filed December 19, 1990.

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Following a bench trial, the court convicted the defendant, Tina Baez, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(b)(2)). The court thereafter sentenced her to serve four years in prison and ordered her to pay a $920 street-value fine. The defendant appeals.

The record shows that several Will County sheriff’s department officers executed a search warrant at the defendant’s residence at 10:54 p.m. on October 18, 1989. During their search, they found a gray bank bag on top of the kitchen counter. Inside the bag were two plastic baggies containing cocaine. Also inside the bag were a hand scale, a NATO military switchblade knife, a piece of paper with telephone numbers on it, $103 in cash, and the defendant’s cash station bank card.

Officer Dennis Carey testified that on the counter near the gray bag he found a woman’s purse containing $1,050 in cash, some utility bills, and a checkbook. The defendant’s name was on the bills and checkbook. Carey also testified that an electronic scale was found underneath the gray bag.

Officer Daniel Tapper testified that the defendant’s bank card was inside the scale in the gray bag. He noted that the card had a white powdery substance on the bottom of it. Tapper also noted that a “Dial-A-Pager” was found on the kitchen counter and that a third scale was found in another room.

Expert testimony established that one of the plastic baggies found inside the gray bag contained 5.8 grams of cocaine and the other contained 3.4 grams of cocaine. It was further established that the street value of the cocaine was $920.

Tracy Stover testified on behalf of the defendant that on October 18, 1989, she had repaid $200 the defendant had loaned her. She further noted that the defendant was a good friend of hers.

Laurie Reese and Brenda Austin also testified on behalf of the defendant. They stated that at 8:30 p.m. on October 18, 1989, they had gone to the defendant’s house with Laura Chambers. Thereafter, the four women sat in the living room and talked. During the course of the evening, Austin repaid $400 the defendant had loaned her. Around 10 p.m., Tommy Carter knocked on the front door. After the defendant opened the door and let him in, the two of them argued. At that time, Carter had a gray bag under his arm. According to Austin, the defendant told Carter that he could leave something in the kitchen. Reese and Austin testified that Carter then went into the kitchen alone. After a couple of minutes, he came out of the kitchen, without the gray bag. He then left the house. About a half hour later, Reese, Austin, and Chambers also left.

On appeal, the defendant argues that the State failed to prove beyond a reasonable doubt that she possessed the cocaine with the intent to deliver.

Intent to deliver drugs can be proven by circumstantial evidence. (People v. Cruz (1984), 129 Ill. App. 3d 278, 472 N.E.2d 175.) The existence of a particular mental state is a question for the trier of fact. (People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125.) Upon judicial review, a reviewing court will preserve the trier of fact’s role as weigher of the evidence by viewing the evidence in the light most favorable to the prosecution; the relevant question is whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Proof beyond a reasonable doubt does not require the exclusion of every possible doubt; as long as the entire chain of circumstances leads to a reasonable certainty that the accused committed the crime, the judgment must be upheld. People v. Stepteau (1986), 142 Ill. App. 3d 400, 491 N.E.2d 821.

Here, the defendant possessed 9.2 grams of cocaine, which had a street value of $920. A weapon, two scales, the defendant’s bank card, and over $1,150 in cash were found in close proximity to the cocaine. These are factors the trial court could consider as evidence of the defendant’s intent to deliver. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428.) Although the defendant presented testimony offering various explanations for some of those items, the trial court was ultimately responsible for judging the credibility of the witnesses and the weight to be accorded their testimony. (See People v. Brown (1986), 150 Ill. App. 3d 535, 501 N.E.2d 1347.) We note that no explanation was offered for the cash in the defendant’s purse not attributable to loan repayments. Moreover, the defendant did not explain why she possessed an electronic scale or how her bank card came to be inside the scale in the gray bag supposedly belonging to Carter. Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found that the State proved the intent to deliver element beyond a reasonable doubt.

The defendant lastly argues that pursuant to section 110 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 110 — 14), her street-value fine of $920 should be reduced by $5 to reflect one day of credit for her preconviction jail time. The State concedes that the defendant’s fine should be reduced by $5 to reflect credit for her preconviction jail time. We agree and, pursuant to our authority under Supreme Court Rule 615 (107 Ill. 2d R. 615), hereby reduce the defendant’s $920 street-value fine by $5.

The judgment of the circuit court of Will County is affirmed with the modification of the $920 fine to $915.

Affirmed as modified.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRISTOPHER D. KEITH, Defendant-Appellee.
    Third District
    No. 3—90—0110
    Opinion filed December 17, 1990.

      Erik I. Blanc, State’s Attorney, of Pekin (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On April 22, 1989, the defendant was arrested for driving under the influence of alcohol (DUI) and taken to the Pekin police department, where Sergeant Eddie Thomas administered a breathalyzer test. Thomas’ license to administer such tests had expired April 21, 1989. Thomas renewed his license on May 2, 1989, but died later that month.

A Tazewell County grand jury indicted the defendant on May 18, 1989, for reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a)), DUI (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(2)), and driving with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(d)(3)). The defendant filed a motion in limine on November 6, 1989, to bar the State from introducing the breathalyzer test results at trial. Following a hearing on the in limine motion, the trial court issued an order granting it. “It is ordered that the People are barred from introducing into evidence at trial breathalyzer test results performed by Sgt. Eddie Thomas, an uncertified breathalyzer operator who is now deceased.”

The State filed a motion for reconsideration and clarification. The court denied the motion to reconsider but clarified its previous order. The State then filed a certification of substantial impairment with the trial court, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), and a timely notice of appeal.

Defendant contends this court should dismiss the State’s appeal, because the order granting the motion in limine involved an evidentiary matter, not the suppression of evidence. Supreme Court Rule 604(a)(1) permits the State to appeal from an order the substantive effect of which results in, among other things, suppressing evidence. The trial court stated the following, in the clarification of its order granting the in limine motion:

“So that the record is clear *** that the Motion In Limine does by my ruling exclude that evidence. And you could have filed a motion to suppress without question.
And the fact that you didn’t and the fact that this evidence is suppressed doesn’t depend on the label attached to the motion. * * *
But I do think that the Motion to Suppress is the more proper of the, or is at least as proper a characterization of the effect of the motion, is [sic] a Motion in Limine as it excludes the evidence.”

The State’s appeal will not be dismissed. The substantive effect of the court's order, not the label of the motion, controls appealability under Rule 604(a) (People v. Phipps (1980), 83 Ill. 2d 87, 90-91, 413 N.E.2d 1277, 1278; People v. Duensing (1985); 138 Ill. App. 3d 587, 590, 486 N.E.2d 938, 940), although in limine motions usually involve evidentiary matters. People v. Flatt (1980), 82 Ill. 2d 250, 266, 412 N.E.2d 509, 517.

The Illinois Supreme Court in People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507, held “Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” Three years later, in People v. Carlton (1983), 98 Ill. 2d 187, 455 N.E.2d 1385, the supreme court held a certification of impairment must be filed in every case in which the State seeks to appeal from a pretrial order suppressing evidence. (Carlton, 98 Ill. 2d at 192, 455 N.E.2d at 1387.) In commenting on its decision in Young, the Carlton court stated “the focus of Young is on the effect of the suppression order and not on the nature of the evidence involved.” Carlton, 98 Ill. 2d at 193, 455 N.E.2d at 1388.

The Second District Appellate Court interpreted Carlton as holding “the State has the authority under Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) to take an interlocutory appeal before the trial has begun (People v. Dorsey (1984), 129 Ill. App. 3d 128, 472 N.E.2d 101) of an order denying admissibility of any evidence, without regard to its nature.” (People v. Hatfield (1987), 161 Ill. App. 3d 401, 406, 514 N.E.2d 572, 575.) The court concluded “any evidence” included evidence allegedly inadmissible under the rules of evidence, such as hearsay or evidence lacking materiality or relevance. (Hatfield, 161 Ill. App. 3d at 406, 514 N.E.2d at 575.) Thus, the distinction between suppression of evidence and exclusion of evidence is no longer relevant in cases involving pretrial motions and rulings, where the substantive effect of the trial court’s order is to suppress evidence.

The defendant’s pretrial motion in limine in this case sought to suppress the results of the breathalyzer test administered by Thomas. The trial court’s statements during the clarification of its order granting the motion clearly indicate it treated the motion in limine as a motion to suppress evidence, though the court unfortunately used the term “exclude” when it stated, “[It] is clear *** that the Motion In Limine does by my ruling exclude that evidence.” Because the court’s ruling suppresses the breathalyzer evidence, People v. McCollins (1984), 126 Ill. App. 3d 1083, 468 N.E.2d 196, relied on by the defendant, is inapplicable.

We now turn to the first issue raised by the State, whether substantial compliance with Department of Public Health regulations for administering a breathalyzer test is sufficient to allow results of the test to be admitted into evidence at trial. This is a question of first impression.

The Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 100 et seq.) sets forth various requirements for alcohol testing, stating, in pertinent part:

“(a) Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11 — 501 *** evidence of the concentration of alcohol, other drug or combination thereof in a person’s blood or breath at the time alleged, as determined by analysis of the person’s blood, urine, breath or other bodily substance, shall be admissible. Where such test is made the following provisions shall apply:
1. Chemical analyses of the person’s blood, urine, breath or other bodily substance to be considered valid under the provisions of this Section shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police by an individual possessing a valid permit issued by that Department for this purpose. The Director of the Department of Public Health in consultation with the Department of State Police is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of that Department and to certify the accuracy of breath testing equipment. The Illinois Department of Public Health shall prescribe regulations as necessary to implement this Section.” Ill. Rev. Stat. 1987, ch. 95V2, par. ll-501.2(a)(l).

The State contends People v. Murphy (1985), 108 111. 2d 228, 483 N.E.2d 1288, is applicable to this case and permits admission of the breathalyzer test results even though Thomas was not licensed when he administered the test to the defendant. The defendant in Murphy was charged with reckless homicide. He filed a motion in limine to preclude admission of blood-analysis test results. The blood test was ■ performed by a medical technician at a hospital. Neither the medical technician nor the hospital’s laboratory was licensed by the Department of Public Health to perform blood tests pursuant to section 11— 501.2 of the Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2). The trial court granted the motion.-

. The supreme court concluded the statute made the Department of Public Health license requirements applicable only to DUI cases (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2). “We hold that the [Department of Public Health] Standards are applicable only to the offense of driving while under the influence, and that the test results should have been received in evidence under the usual standards governing the admission of evidence.” (Murphy, 108 Ill. 2d at 236, 483 N.E.2d at 1291.) The court concluded the certification requirements were not “a sine qua non of admissibility.” (Murphy, 108 Ill. 2d at 234, 483 N.E.2d at 1290.) Instead, the requirements function to protect the accused by insuring the test results are reliable and, in situations such as Murphy, ordinary standards of admissibility are applicable. Murphy, 108 Ill. 2d at 234, 483 N.E.2d at 1290.

The State in this case argues the Murphy decision should be extended to apply to breath tests, particularly because section 11 — 501.2 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.2) includes breath' tests. We do not believe the Murphy decision should be extended. We need not reach this question, however, because the State cannot meet the foundation requirements for admission of the breathalyzer test results set forth in People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.

The issue in Orth was whether a driver whose license was summarily suspended pursuant to section 2 — 118.1 of the Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 2 — 118.1) had the burden of proving the suspension should be rescinded. The Illinois Supreme Court held a motorist in such a case bears the burden of making a prima facie case for rescission by showing the breathalyzer test results were unreliable. If the motorist meets this burden of proof:

“[T]he State can only avoid rescission by moving for the admission of the test into evidence and laying the required foundation. Such a foundation will include: (1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the ‘printout’ sheet can be identified as the tests given to the motorist.” Orth, 124 Ill. 2d at 340, 530 N.E.2d at 216-17.

The Second District Appellate Court adopted the Orth foundation requirements in People v. Clark (1989), 178 Ill. App. 3d 848, 533 N.E.2d 974. There the defendant was convicted for driving while his license was suspended (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(a)) and DTJI with a blood-alcohol concentration of 0.10 or more (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)). The defendant claimed the trial court abused its discretion when it allowed breathalyzer test results in evidence, because the proper foundation was lacking. At trial, defendant objected on the basis there was no showing the test was performed according to the Department of Public Health’s approved procedure and based on the manufacturer’s recommendations.

Officer McCarthy, who administered the test, testified a checklist must be followed when giving the test. He said the State sets standards for training personnel to operate the machines. McCarthy was licensed to administer breathalyzer tests. The appellate court concluded the evidence was sufficient to show the test was administered in accord with Department of Public Health standards. The Clark court stated:

“[Wjhere *** there is competent testimony or other evidence indicating that the steps in the Department’s standards were followed and there is no evidence to the contrary, it is unnecessary to show the provenance of the checklist that the officer may have used. Indeed, there is nothing in the standards to indicate that a ‘checklist’ is even necessary so long as the correct procedure was followed.” (Emphasis in original.) (Clark, 178 Ill. App. 3d at 856, 533 N.E.2d at 980.)

The court emphasized the Department of Public Health’s standards were met, specifically noting McCarthy was certified to operate the machine.

The Second District Appellate Court refined its interpretation of Orth in People v. Caruso (1990), 201 Ill. App. 3d 930, 559 N.E.2d 545. The defendant was convicted of driving with a blood-alcohol concentration of 0.10 or more. One issue he raised on appeal was whether the State laid a proper foundation for ádmission of the breath-test result. Evidence indicated the officer who administered the test was certified by the Department of Public Health, as was the machine used to perform the test. The officer testified he followed a checklist in compliance with Department of Public Health standards.

The Caruso court stated:

“We believe Orth sets out all the elements required to lay a proper foundation, and we do not find that Orth requires proof of all the regulations on breath testing in the Administrative Code. In stating what was required to lay a proper foundation, Orth could have, if that was the court’s intent, specifically required proof of all the regulations set out in the Administrative Code; however, it did not. Instead, Orth listed five factors. As we shall explain, proof of these five factors does not require proof of all the regulations regarding breath testing.” Caruso, 201 Ill. App. 3d at 939, 559 N.E.2d at 551.

Among the factors the court discussed was the license requirement for the breathalyzer operator. The court concluded the State was not required to prove all the Department of Public Health’s regulations involving licensing, found in section 510.70 of the Administrative Code (77 Ill. Adm. Code §510.70 (1985)). “Proof of certification, unless there is evidence to show that the certification is not valid, is sufficient. *** The officer’s testimony is sufficient proof of his certification.” Caruso, 201 Ill. App. 3d at 940-41, 559 N.E.2d at 552.

We conclude the Second District Appellate Court properly applied the foundation requirements of Orth to cases not involving rescission of the summary suspension of a driver’s license. The standards developed by the Department of Public Health are the only standards available for the trial court to use in determining whether to admit breathalyzer test results. Thus, it is proper to require the State to show the standards were met, by laying the foundation set forth in Orth, before admitting the test results. One component of the Department’s standards requires the officer administering the test be licensed to perform it. The State can make this showing by introducing the officer’s license into evidence or, as in Caruso, the officer can testify he was licensed on the day he administered the test.

The State in this case cannot lay the proper foundation for admitting the defendant’s breathalyzer test into evidence, because Officer Thomas was not licensed on the day he administered the test. The trial court did not abuse its discretion in granting the defendant’s motion in limine.

The second issue the State raises is whether Officer Thomas’ death should bar admission of the breathalyzer test results. The trial court concluded the test results were hearsay, inadmissible under the business records and unavailability-of-the-witness exceptions to the hearsay rule. On appeal, the State argues the test results were not hearsay.

We need not reach this issue given our resolution of the previous issue. Even were we to address the issue, the State would lose. The breathalyzer test results cannot be admitted because the State cannot lay the proper foundation. Thomas was not licensed when he administered the test to the defendant. His subsequent death does not alter this fact. Irrespective of whether the test results are hearsay, they are inadmissible in this case.

We also decline to take judicial notice of the accuracy and reliability of the breathalyzer machine as urged by the State. The problem in this case was not the machine but Thomas’ lack of certification to administer the test.

The circuit court of Tazewell County is affirmed.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author:
JUSTICE WOODWARD
      JUSTICE REINUA.RTt

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD MOONY, Defendant-Appellee.
    Second District
    No. 2—89—1328
    Opinion filed November 27, 1990.
    REINHARD, J., specially concurring.
    Thomas F. Baker, State’s Attorney, of Woodstock (Williams L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Richard C. Kelly, of Crystal Lake, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The State appeals from an order of the circuit court of McHenry County rescinding the statutory summary suspension of the driver’s license of the defendant, Richard Moony.

On October 23, 1989, the defendant was arrested and charged with driving under the influence of .alcohol. At that time, the defendant was given a warning to motorist with respect to the implied-consent law and, according to the officer’s sworn report, submitted to chemical testing which disclosed an alcohol concentration above the legal limit of .10.

On November 1, 1989, the defendant filed a petition to rescind the statutory summary suspension of his driver’s license which would take place on the 46th day following his arrest. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1(g).) A hearing on the petition to rescind was scheduled for November 22, 1989. The defendant also caused a subpoena to issue to the arresting officer for the hearing.

On November 22, 1989, over the objection of the defendant, the State was given leave to amend the arresting officer’s sworn report on its face; the hearing and the subpoena were continued on the motion of the defendant until December 6,1989.

On December 6, 1989, the defendant answered ready for the hearing. The State also answered ready. Defense counsel then informed the trial court that the arresting officer was not present. The prosecutor informed the court that he spoke to the officer, who was ill. The officer also told him that he did not realize that the subpoena had been continued. In any event, due to his illness, he could not be present in court.

The trial court interpreted the prosecutor’s comments as a request for the continuance. In response, the defense counsel indicated that defendant had been ready to proceed at the earlier hearing date until the State’s motion to amend was granted and that the defendant was ready to proceed to hearing on the petition to rescind. The prosecutor offered to be placed under oath or file an affidavit from the officer or the officer’s doctor. The trial court then stated as follows:

“The statute on this section does state that if the officer is subpoenaed and fails to appear, it shall be dismissed.
We try to be realistic about this and cover emergencies. However, a motion to continue is within the discretion of the court.
The statute does further provide how a motion to continue shall be presented, namely, in writing, supported by affidavit.
This is the second time the case has been before the court. The file does reflect the prior continuance was on defendant’s motion. It was occasioned by the State’s eleventh-hour amendment of the petition.
And there is a prevailing philosophy in the Motor Vehicle Code to avoid multiple court appearances.
So, on the failure of the officer to obey the subpoena and without an adequate motion for continuance, I am going to grant the petition to rescind.”

This appeal followed.

On appeal, the State contends that the trial court erred in granting the petition to rescind the summary suspension on the basis of the failure of the subpoenaed officer to appear at the hearing on the petition.

The relevant statutory language reads in pertinent part as follows:

“(b) Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, or a similar provision of a local ordinance, the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.
The hearing may be conducted upon a review of the law enforcement officer’s own official reports; provided however, that the person may subpoena the officer. Failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).

In granting the petition to rescind, the trial court relied on section 2 — 118.1(b). The trial court believed that the language, “[failure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding,” required the court to grant the petition in the absence of the subpoenaed officer.

We are of the opinion that section 2 — 118.1(b) does not require that the trial court grant the petition to rescind under such circumstances. Our supreme court case law states that the burden of proceeding with proof in statutory summary suspension proceedings is on the motorist and not on the State. (People v. Orth (1988), 124 Ill. 2d 326.) By filing his petition to rescind, the defendant assumed the burden of gaining rescission of his statutory suspension. He also subpoenaed the arresting officer. Consistent with his petition, the defendant sought a hearing on his summary suspension, but he did nothing further to assume the burden of proceeding in the case. The defendant did answer “ready” for hearing, but did not present any evidence he had in addition to the officer’s testimony, nor did he indicate that the officer’s testimony was the only evidence he intended to present at the hearing. If the arresting officer failed to appear in answer to the subpoena, defendant could have sought a continuance or sought to have the officer held in contempt for failure to appear. Under these circumstances, the defendant was not entitled to a rescission of the summary suspension.

*2 Nonetheless, we must comment that given the language of section 2 — 118.1(b), we understand the trial court’s dilemma in this case. In one section, the statute requires that the proceeding on the petition to rescind be conducted “in the same manner as the other civil proceedings.” Thus, the burden to proceed is placed upon the party seeking the relief, namely, the defendant. Yet, later in the statute, the language provided that the trial court shall consider the failure of the officer to answer a subpoena to be “the same as the failure of a complaining witness to appear in any criminal proceeding.” The failure of a subpoenaed officer to appear at a summary suspension hearing would have the same effect as the failure of the complaining witness to appear in a criminal prosecution proceeding, i.e., the State would “nolpros” the case.

Thus, the two concepts, the defendant having the burden of going forward and the effect of the complaining witness not being present, are at odds with each other. The decision of this cause is dictated by the case law set forth by our supreme court. However, we urge the legislature to correct this conflict in the statute.

Since the defendant was not entitled to rescission of the summary suspension of his license at the time the court below granted the relief sought by the petition, the defendant remains entitled to a hearing and is entitled to such further steps as may be available to present his evidence. The cause is accordingly remanded to the trial court for further proceedings consistent with this opinion.

Remanded.

UNVERZAGT, P.J., concurs.

JUSTICE REINUA.RTt

snpHalW - — --"líT

defendant to appear at the hearing does not affect his obligation to go forward with his evidence. The majority’s rationale effectively makes that portion of section 2 — 118.1(b) of the Illinois Vehicle Code at issue here meaningless, contrary to the rule of statutory interpretation that statutes should be construed so that no term is rendered meaningless. Niven v. Siqueira (1985), 109 Ill. 2d 357, 365.

The statute provides that “[fjailure of the officer to answer the subpoena shall be considered by the court to be the same as the failure of a complaining witness to appear in any criminal proceeding.” (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) This language does not make it clear that if a subpoenaed officer is not present rescission will automatically be granted, nor does it make it clear whether the trial court has discretion to continue the hearing in such circumstances. Accordingly, this language is ambiguous.

When the language of a statute is susceptible to different interpretations, courts must ascertain and give effect to the legislature’s intent (People v. Goins (1988), 119 Ill. 2d 259, 265; Mack v. Seaman (1983), 113 Ill. App. 3d 151, 154), and, where the language is ambiguous, it is proper to consider the legislative history (People v. Boykin (1983), 94 Ill. 2d 138, 141), including the debates on the floor of the General Assembly (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24).

A review of the legislative debate shows that the legislative intent was to give the trial court discretion under these circumstances. When addressing the concern about the possible consequences of a subpoenaed arresting officer not appearing, Senator David Barkhausen, the senate sponsor, stated, “it is not the legislative intent of Section 2— 118.1 of the bill to limit the circuit court’s authority under those circumstances to grant a continuance.” (84th Ill. Gen. Assem., Senate Proceedings, June 26, 1985, at 184.) Therefore, it appears that the legislative intent was to give the trial court discretion in these circumstances. While the legislature’s choice of wording in the statute was ^wPwtunatelv imurecise and should be clarified by the legislature as

a continuance or nolle prosequi. Notwithstanding this line of cases, the legislation at issue appears designed to refer to a situation in a criminal case where the complaining witness’ failure to appear results in a dismissal by the court and where the State does not move for a continuance or nolle prosequi and fails to present evidence. In a hearing on a petition for rescission of a statutory summary suspension, however, the burden is on the defendant, as the majority correctly states, and the witness defendant subpoenaed is a police officer over whom a defendant has no control. The options of nolle prosequi and continuance are not available or are unfavorable to the defendant under the circumstances. The failure of the subpoenaed police officer to appear actually prevents the defendant from using the procedures granted by the statute to meet his burden. Thus, the State’s argument is without merit.

I believe the trial court has the discretion to grant a continuance when the subpoenaed officer fails to appear, rather than only to order a mandatory rescission of the statutory summary suspension. Thus, it must be determined here whether the trial court abused its discretion in denying the State’s oral motion for a continuance, as argued alternatively by the State.

As the rescission proceedings are civil in nature, Illinois Supreme Court Rule 231(a) applies, and states, in pertinent part, as follows:

“If either party applies for a continuance of a cause on account of the absence of material evidence, the motion shall be supported by the affidavit of the party so applying or his authorized agent. The affidavit shall show (1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence consists; (3) if the evidence consists of the testimony of a witness, his place of residence ***; and (4) that if further time is given the evidence can be procured.” (107 Ill. 2d R. 231(a).)

Although the assistant State’s Attorney orally moved for a continuance and failed to provide an affidavit, denial of an oral motion lacking an affidavit can still be an abuse of discretion. Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 76; Rutzen v. Pertile (1988), 172 Ill. App. 3d 968, 974. But see Mann v. People (1981), 98 Ill. App. 3d 448, 451 (holding that a trial court’s denial of a motion for a continuance not accompanied by an affidavit cannot be regarded as an abuse of discretion).

In this case, the assistant State’s Attorney informed the trial court that the officer, who was not the State’s witness, was unaware that the subpoena had been continued and, in any case, was ill with a bronchial infection and would be unable to appear in court. Further, the assistant State’s Attorney offered to be placed under oath or file an affidavit from the officer or the officer’s doctor. It also appears from the record that the assistant State’s Attorney only learned of the officer’s illness when he called the officer during an earlier recess on the December 6 proceedings. Under these circumstances, the assistant State’s Attorney’s oral statements substantially complied with Rule 231(a). Thus, the trial court abused its discretion by not granting a continuance. For these reasons, I would reverse the judgment of the circuit court and remand the cause for proceedings on defendant’s petition for rescission of his statutory summary suspension.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SEAN A. JEROME, Defendant-Appellant.
    Second District
    No. 2—89—0002
    Opinion filed December 6, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Sean A. Jerome, was charged by indictment with first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)). Following a jury trial, he was convicted of the offense and sentenced to 22 years’ imprisonment. On appeal, the defendant contends that (1) the trial court erred in refusing to instruct the jury on self-defense and second-degree murder, and (2) the second-degree murder statute is unconstitutional.

The evidence adduced at trial showed that in the early morning hours of June 18, 1988, the victim, Eugene Budnik, was on duty as desk clerk at the Grand Hotel in Rockford. At about 3:30 a.m., a hotel resident, James Orehowsky, entered the building in which the hotel is located. In the lobby, he met another resident, Clarence Suggs, and the defendant, a former resident. He had seen the two men earlier in the evening at an outdoor gathering near the hotel. At the gathering, Orehowsky noticed that the defendant wore a “buck knife” in a sheath at his side. Orehowsky had asked about the knife, and the defendant had shown it to him. The knife had a 4-inch blade and a ribbon design on the handle. In the lobby, Suggs asked Orehowsky if he would keep the desk clerk busy, but Orehowsky refused. Orehowsky proceeded up the stairs-to the second floor where the hotel desk is located. At the desk he asked for his room key; Suggs was right behind him, and he also got his key.

While the men were getting their keys, Budnik was yelling at someone who was going up the stairs. Budnik then ran up the stairs after the person. The hotel has a policy that residents- must leave their keys at the desk and that no visitors are allowed after 10 p.m. Orehowsky followed Budnik up the stairs to the third floor, where Orehowsky’s room was located. He saw Budnik standing in the door of the bathroom holding the door open and yelling at someone to get out. The defendant came out of the bathroom and walked toward the stairs with Budnik close behind. Orehowsky did not hear the two say anything as they went down the hall, and he did not see Budnik touch the defendant. Orehowsky got his coat from his room and went down the hall toward the stairs. As he neared the stairs, he heard yelling. He heard the defendant say that he did not like being called a “bitch fag.” Budnik responded, “Do something about it.” Orehowsky proceeded down the stairs. When he got to the second-floor landing, he saw Budnik. There was a slice in Budnik’s shirt and a big bloodstain on his back. Orehowsky administered first aid, and hotel personnel and the police were summoned.

Budnik told another desk clerk that the defendant had stabbed him. Budnik was still alive when the police arrived, and he also told them that the defendant had stabbed him. Budnik later died of the stab wound in his back.

Later that morning, the defendant was found asleep in his car. At the police station, the defendant admitted having stabbed Budnik and told the police where his knife could be found. He told the police that as he and Budnik walked down the stairs, Budnik pushed him on the shoulder to speed him up. When they got to the second-floor landing, the defendant confronted Budnik about rumors that Budnik had been telling people that the defendant was a homosexual. Budnik again ordered the defendant out, pushed him on the shoulder, and turned around to walk back to the desk. The defendant pulled out his knife and stabbed Budnik once in the back. He said that he intended to pull the knife , out so he could cut Budnik, but he pulled the knife out wrong and was holding it “in a stabbing manner,” so he stabbed Budnik.

The defendant testified that after Budnik ordered him out of the bathroom and they were walking down the hall toward the stairs, Budnik was holding on to his shirt and leading him down the hall. Approximately one week before, the defendant had injured his ankle at a swimming pool, and his ankle was still painful. Budnik let the defendant walk down the first flight of stairs on his own. At the top of the second flight, Budnik shoved the defendant, and the defendant skipped a few steps; the defendant told him to stop it. At the second-floor landing, the defendant confronted Budnik about the rumors he had heard. Budnik turned the defendant around by the shoulder and started shoving again. As the defendant went down the stairs, Budnik was pushing him from behind. The defendant told him to stop. The defendant skipped a couple of stairs and drew his knife to “come around” and fend off Budnik. When he was turning around, Budnik pushed him again, and “the knife just stuck him” in the back. The defendant said that he was not trying to kill or to hurt Budnik; he was just trying to keep him away, to scare him and to make him stop pushing. When Budnik was pushing him, he was afraid that “his knee was going to give out or his ankle or something and [he] was going to fall down the stairs.”

At the jury-instruction conference, the defendant tendered self-defense instructions and second-degree murder instructions, which were refused by the trial court. The defendant was convicted of first-degree murder and sentenced to 22 years’ imprisonment.

The defendant contends that the trial court erred in refusing the instructions on self-defense and on second-degree murder based on the defendant’s having unreasonably believed that he had acted in self-defense. He argues that his testimony concerning the argument between him and Budnik and his testimony that Budnik was pushing him placing him in fear of falling down the stairs were sufficient to support the instructions.

To support an instruction for either self-defense or second-degree murder based upon an unreasonable belief, a defendant must present some evidence from which a jury could conclude that unlawful force was threatened against him and that he was not the aggressor. (People v. Timberson (1989), 188 Ill. App. 3d 172, 176-77; see also Ill. Rev. Stat. 1989, ch. 38, pars. 7 — 1, 9 — 2(a)(2).) He also must show, in the case of self-defense, that he reasonably believed: (1) that the danger of harm was imminent; (2) that the use of force was necessary to avert the danger; and (3) that the kind and amount of force used were necessary; in the case of second-degree murder based upon an unreasonable belief that force was necessary, he must show that he unreasonably believed that he acted in self-defense. (Timberson, 188 Ill. App. 3d at 176-77; see also Ill. Rev. Stat. 1989, eh. 38, pars. 7 — 1, 9— 2(a)(2); People v. Lockett (1980), 82 Ill. 2d 546, 553 (discussing instruction on voluntary manslaughter statute, predecessor of second-degree murder statute).) Even a slight amount of evidence will raise the issues and justify an instruction; however, where the defenses are not supported by the evidence, an instruction may be properly refused. See People v. Everette (1990), 141 Ill. 2d 147, 157.

In this case, the defendant’s evidence to support his subjective belief for the need to use force included that, while the defendant was walking down the stairs, Budnik was pushing him from behind. There was no evidence that the defendant touched Budnik or threatened him before the pushing started. Also, there was evidence that he had suffered a recent ankle injury, and he testified he was afraid that if Budnik continued to push him, his ankle might give out and he might fall down the stairs.

It is not dispositive, contrary to the State’s argument in the trial court, that the defendant’s testimony also suggested an accident theory. While it is true that the defendant testified that he did not intend to hurt or to kill Budnik, a homicide defendant is entitled to an instruction on self-defense where there is some evidence in the record to support the defense, even where the defendant testifies that he accidentally killed the victim. People v. Everette, 141 Ill. 2d at 157.

Nevertheless, we have considered the evidence and find it is insufficient to support a jury finding either that the defendant acted in self-defense or that the defendant had the unreasonable belief that his action was in self-defense. Given the defendant’s apparent trespass, the evidence is only very slight that Budnik, who apparently considered it his job to enforce the hotel’s no-visitor rule, threatened unlawful force against him. (Cf People v. Austin (1989), 133 Ill. 2d 118, 126.) However, that is of course not decisive. Our conclusion is based instead upon the fact that the defendant did not testify or otherwise present evidence that he believed he was in imminent danger of death or great bodily harm. His claimed fear of a fall down the stairs does not, under these circumstances, support a finding that the defendant even unreasonably believed that his resort to use of his knife was necessary. That failing is critical, and we find that the court could properly deny the two instructions at issue.

This is not the end of the inquiry, however, because the defendant has challenged the constitutionality of the second-degree murder statute. The defendant alleges that the statute violates due process because it impermissibly shifts the burden of proof onto the defendant. The second-degree murder statute has been challenged on due process grounds, and it withstood the challenge. (People v. Buckner (1990), 203 Ill. App. 3d 525.) We agree with the result reached in Buckner; however, the defendant here has presented certain arguments not directly addressed in Buckner.

The Criminal Code of 1961 was amended in 1987, and the offense of voluntary manslaughter was eliminated and replaced by that of second-degree murder. (Pub. Act 84 — 1450, §2, eff. July 1, 1987.) Under the new statute, a person commits second-degree murder when he commits first-degree murder and either of the mitigating factors (provocation or unreasonable belief) is present. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) When a defendant is on trial for first-degree murder and evidence of either mitigating factor is presented, the burden of proof is on the defendant to prove the mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second-degree murder; the State still has the burden of proving all of the elements of first-degree murder, however. Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(c); see also People v. Shumpert (1989), 126 Ill. 2d 344, 351-52 (discussing differences between voluntary manslaughter and second-degree murder statutes).

Defendant contends that this scheme violates due process by shifting the burden to the defendant to prove second-degree murder. He contends that this scheme is analogous to that struck down by the Supreme Court in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881. We disagree.

In Mullaney, Maine’s felonious homicide statute was at issue. Maine’s law recognized two kinds of homicide: murder and manslaughter. Murder was the unlawful killing of a human being with malice aforethought. Malice aforethought, an essential element of the offense, could be conclusively implied, however, unless the defendant could prove by a preponderance of the evidence that the killing occurred in the heat of passion; if the defendant could prove that, then the offense would be voluntary manslaughter. (421 U.S. at 686, 44 L. Ed. 2d at 512, 95 S. Ct. at 1883.) The Supreme Court found that this scheme impermissibly shifted the burden of proof on the question of malice onto the defendant; malice was an element of murder, and the statute allowed that element to be presumed unless defendant could disprove it. (421 U.S. at 701, 703, 44 L. Ed. 2d at 520, 522, 95 S. Ct. at 1890, 1892.) The due process clause protects the accused from conviction except upon proof beyond a reasonable doubt of every element of the crime with which he is charged (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073), and the Maine homicide scheme deprived the accused of that protection (Mullaney, 421 U.S. at 704, 44 L. Ed. 2d at 522, 95 S. Ct. at 1892; see also Patterson v. New York (1977), 432 U.S. 197, 212-16, 53 L. Ed. 2d 281, 293-95, 97 S. Ct. 2319, 2328-30 (discussing Mullaney holding).

Defendant contends that, malice is a part of the offense of first-degree murder in Illinois and that the new homicide scheme presumes malice unless defendant disproves it by proving a mitigating factor, just as the Maine statute did. We disagree. Initially, we note that when the Criminal Code of 1961 was amended in 1987, the elements of murder were not changed, although the offense was renamed first-degree murder. (Compare Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a), with Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) A person commits first-degree murder when he kills another without lawful justification if, in performing the acts which caused death, he intends to kill or do great bodily harm, or he knows that such acts will cause death, or he knows that such acts will create a strong probability of death or great bodily

harm, or he is attempting or committing a forcible felony. Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a).

In drafting the murder (now first-degree murder) statute, the legislature intended to retain the common-law concepts of express and implied malice but to replace those terms with the more modern and less ambiguous terms of intent and knowledge respectively. (Ill. Ann. Stat., ch. 38, par. 9 — 1, Committee Comments, at 17 (Smith-Hurd 1979); People v. Guest (1986), 115 Ill. 2d 72, 96-97.) Therefore, while the concept of malice is still part of the murder statute, it is embodied in the element of intent or knowledge. In Illinois, a person acts with intent to kill (express malice) when his conscious objective or purpose is to cause death or great bodily harm to another person. (See Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4; Guest, 115 Ill. 2d at 95.) A person acts with knowledge (implied malice) in Illinois when he is consciously aware that his conduct is practically certain to cause death or when he knows that his conduct creates a strong probability of death or great bodily harm. (See Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 5(b), 9— 1(a); Guest, 115 Ill. 2d at 96.) In order to prove murder (now first-degree murder), the State must prove intent or knowledge beyond a reasonable doubt.

In Maine, however, a killing became murder when it resulted from a deliberate, cruel act committed by one person against another, suddenly without any or without a considerable provocation. (Patterson, 432 U.S. at 215, 53 L. Ed. 2d at 295, 97 S. Ct. at 2330.) In other words, in Maine, absence of provocation was a part of the definition of malice; therefore, lack of provocation was an element of the crime, and the State had to prove that element beyond a reasonable doubt; it could not be presumed. (432 U.S. at 215-16, 53 L. Ed. 2d at 295, 97 S. Ct. at 2330.) Malice is defined differently in Illinois, and lack of provocation is not an element of the offense of first-degree murder in Illinois. The Illinois statute does not suffer the constitutional infirmity present in the Maine statute. Requiring the defendant to prove a mitigating factor in order to reduce the offense to second-degree murder does not violate due process. 432 U.S. at 210, 53 L. Ed. 2d at 292, 97 S. Ct. at 2327.

Defendant also contends that the mental states for first- and second-degree murder are inconsistent and that a defendant cannot, constitutionally, be required to prove an affirmative defense or mitigating factor which is inconsistent with or would negate an element of first-degree murder.

The defendant’s argument relies heavily on the case of People v. Hoffer (1985), 106 Ill. 2d 186. He contends that Hojfer stands for the proposition that the mental states involved in murder and in voluntary manslaughter are inconsistent, and he concludes, therefore, that the mental states in first and second-degree murder are inconsistent. The defendant’s reliance on Hoffer is misplaced.

The inconsistency identified in Hoffer was in the guilty verdicts. The jury had been instructed that, in order to find the defendant guilty of murder, they had to find that he had not had an unreasonable belief in justification at the time of the killing; they were also instructed that, in order to find defendant guilty of voluntary manslaughter, they had to find that he had had that unreasonable belief; the jury returned guilty verdicts on both offenses. Under the instructions given in that case, the jury had found that the defendant both did and did not have an unreasonable belief in justification; the findings were logically inconsistent. Under those instructions, the mental states for murder and involuntary manslaughter were inconsistent. (106 Ill. 2d at 195.) There is, however, no inherent inconsistency between the mental states for first- and second-degree murder.

When a defendant is charged with first-degree murder, the State is required to prove death, causation and intent (or knowledge). (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a).) The defendant then has the opportunity to prove provocation or unreasonable belief in justification to reduce the offense to second-degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a).) The existence of provocation or an unreasonable belief in justification, however, will not diminish or negate any of the proved elements of first-degree murder. The mitigating factor is a separate issue the existence of which the State is willing to recognize as a circumstance affecting the degree of culpability or the severity of punishment. See Patterson, 432 U.S. at 206-07, 53 L. Ed. 2d at 289-90, 97 S. Ct. at 2325.

We conclude that the second-degree murder statute does not violate due process.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE INGLIS

text:
    BETTY HOUSE, Plaintiff-Appellant, v. SWEDISHAMERICAN HOSPITAL, Defendant-Appellee.
    Second District
    No. 2—90—0185
    Opinion filed December 19, 1990.
    Rehearing denied January 22, 1991.

      James G. Madden, of Madden & Sisler, of Freeport, for appellant.
    Lisa A. Jensen, Hugh C. Griffin, and Diane I. Jennings, all of Lord, Bissell & Brook, of Rockford, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Betty House, appeals from an order of the circuit court of Winnebago County directing a verdict in favor of defendant, SwedishAmerican Hospital. On appeal, plaintiff contends that the trial court erred in: (1) refusing to release medical records in defendant’s possession to plaintiff; (2) prohibiting plaintiff from deposing, contacting, or disclosing the identity of a patient at the hospital; and (3) improperly excluding certain exhibits from evidence at trial. We affirm in part, reverse in part, and remand.

On June 14, 1985, plaintiff filed a complaint alleging that defendant carelessly and negligently permitted a patient in the hospital to inflict injuries upon her in a hospital lounge on November 30, 1983. On July 15, 1985, defendant filed a motion to dismiss the complaint, which was subsequently granted. On October 25, 1985, plaintiff filed an amended complaint which alleged that defendant “knew or should have known” that the patient was dangerous based upon the patient’s “prior conduct.”

During the discovery process, plaintiff filed a motion to compel the production of documents, including reports concerning the incident in question and “[a]ny and all documents or writings relating to the condition of the patient” who allegedly injured plaintiff. Defendant filed a response opposing plaintiff’s motion, arguing that the requested information was privileged and confidential for several reasons. On November 10, 1988, the trial court ordered defendant to produce the documents for an in camera inspection. After inspecting the documents, the court determined that plaintiff was entitled to discovery of the records because the records were “relevant, probative, not unduly prejudicial or inflammatory and that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established.” The court further found that disclosure was important to further the interests of justice. However, all references identifying the nonparty patient would be eliminated before plaintiff received the documents.

Defendant filed a motion to reconsider the court’s decision, again arguing that the records were confidential. Defendant further argued that deleting identifying information would not assure protection of the patient’s identity. On December 30, 1988, the trial court denied defendant’s motion to reconsider, but modified its previous order to state that defendant was only required to produce the patient’s hospital records for the admission during the time in question. The court removed seven pages of these records because the information was confidential and not relevant to the lawsuit. The court further ordered that plaintiff was not entitled to discover records of the patient’s prior admissions at the hospital.

On January 6, 1989, the trial court granted plaintiff leave to depose Dr. David Stinson, the patient’s psychiatrist. Thereafter, defendant filed a motion to prohibit plaintiff from deposing Dr. Stinson. Dr. Stinson also filed a petition to quash the subpoena for his deposition. On June 30, 1989, the trial court denied defendant’s motion and Dr. Stinson’s petition, but ruled that plaintiff could not elicit testimony concerning the patient’s identity.

Following Dr. Stinson’s deposition, plaintiff became aware of the patient’s identity, apparently due to Dr. Stinson’s inadvertent disclosure. Defendant then moved for a protective order. On August 1, 1989, the trial court issued a protective order which prevented plaintiff from contacting, deposing or disclosing the identity of the patient. A trial date of November 7, 1989, was then set. On November 8, 1989, defendant made an oral motion in limine seeking to exclude any testimony relating to the patient’s medical records. The court asked plaintiff to make an offer of proof before it ruled on defendant’s motion. Plaintiff informed the court that exhibit Nos. 11 through 19 contained the notes of the nurses who treated the nonparty patient. These exhibits contained part of the hospital records released to plaintiff pursuant to the trial court’s December 30,1988, order.

Plaintiff's offer of proof pointed out several instances of the patient’s conduct while at the hospital. Included among these instances were situations in which the patient drank cups of hot water, drank water from faucets and toilets, snuck coffee from the dietary cart, removed the IV needle, and was found in the lounge smoking a cigarette. The patient was also restless, was walking in the hallways, and refused to put on her hospital gown. In addition, the patient was agitated and had some “behavioral problems,” for which Xanax was prescribed. Based on these events, plaintiff contended that defendant should have known of what the patient “could perhaps do.”

The court then ruled that exhibit No. 11 would be admitted, but that Nos. 12 through 19 were inadmissible because they contained confidential information protected under the Mental Health and Developmental Disabilities Confidentiality Act (Mental Health Act) (Ill. Rev. Stat. 1987, ch. 91½, par. 801 et seq.). Plaintiff continued with a summary of the testimony for purposes of the offer of proof, after which defendant orally moved for a directed verdict. Defendant argued that plaintiff could not prove that the patient’s alleged assault of plaintiff was in any way foreseeable by defendant. Thus, defendant argued that it in no way acted negligently in failing to prevent the alleged assault. The trial court granted defendant’s motion, and this appeal followed.

Plaintiff first contends that the trial court erred in refusing to release the patient’s medical records for previous admissions at SwedishAmerican Hospital. Plaintiff argues that the records of the patient’s two previous hospital admissions were relevant on the issue of whether defendant had any prior knowledge of the patient’s violent tendencies.

Plaintiff points out that the trial court originally determined that she was entitled to all of the patient’s records while the patient was at SwedishAmerican Hospital. However, the court modified this decision following defendant’s motion to reconsider and ruled that only the records of the November 1983 admission, excluding seven pages, were discoverable.

Plaintiff’s production request was premised on section 8— 402 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 402) and Supreme Court Rule 201 (107 Ill. 2d R. 201). Section 8 — 402 of the Code provides, in pertinent part:

“The circuit courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown *** to require the parties, or either of them, to produce books or writings in their possession of power which contain evidence pertinent to the issue.” (Ill. Rev. Stat. 1987, ch. 110, par. 8— 402.)

In addition, Supreme Court Rule 201 provides that “discovery or inspection of documents or property” is obtainable. (107 Ill. 2d R. 201(a).) The rule goes on to state:

“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” (107 Ill. 2d R. 201(b)(1).)

Plaintiff asserts that the records at issue in this case were discoverable because she had the burden of establishing that defendant had knowledge of the potential conduct of the patient; thus,- any information concerning defendant’s knowledge contained in the medical records would be relevant to the issue in the case.

Defendant disagrees, arguing instead that the information in the records was confidential pursuant to the Mental Health Act (Ill. Rev. Stat. 1987, ch. 911/2, par. 803) and was protected under the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802). We will address each of defendant’s arguments in turn.

Section 3(a) of the Mental Health Act provides: “All records and communications shall be confidential and shall not be disclosed except as provided in this Act.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 803(a).) A “record” encompasses “any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 802(7).) A “communication” includes information which “indicates that a person is a recipient.” (Ill. Rev. Stat. 1987, ch. 911/2, par. 802(1).) The purpose of the Mental Health Act is to protect the confidentiality of the records and communications of those persons receiving mental health services. (Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 216.) This general prohibition.against disclosure of this information was enacted, to protect the patient’s privacy rights, along with providing an inducement to seek such treatment. Laurent, 74 Ill. App. 3d at 217.

Defendant argues that Pritchard v. SwedishAmerican Hospital (1989), 191 Ill. App. 3d 388, controls this issue. In Pritchard, we ruled that a hospital did not have to answer an interrogatory which asked whether the hospital required a physician to undergo psychiatric testing as a condition of employment. (191 Ill. App. 3d at 403.) We pointed out that the requested information would require the hospital to disclose whether the physician was a recipient of mental health services, information which was clearly protected under the Mental Health Act. 191 Ill. App. 3d at 403.

A review of the record in the present case indicates that the patient’s medical records would reveal that the patient had a “long history of chronic undifferentiated schizophrenia” • and had been institutionalized in the past. The records also indicated the particular drugs which were prescribed to the patient to treat the illness. We find that this information, if disclosed, would reveal that the patient was a recipient of mental health services and would result in a violation of the Mental Health Act. (See Ill. Rev. Stat. 1987, ch. 91½, par. 802(1); Pritchard, 191 Ill. App. 3d at 402-03.) Consequently, the patient’s hospital records concerning previous psychiatric admissions and treatment were not discoverable in this case.

In making this determination, we note that none of the statutory exceptions allowing disclosure by court order are applicable here. (See Ill. Rev. Stat. 1987, ch. 911/2, pars. 810(a)(1) through (a)(9).) We are also mindful of plaintiff’s argument in her reply brief indicating that the patient was not in the hospital in November 1983 for a psychiatric problem, but instead was admitted for medical reasons. Our holding on this issue applies to the records associated with the patient’s previous hospital admissions for psychiatric treatment and is based on the Mental Health Act. This act only, prohibits the disclosure of the patient’s hospital records concerning psychiatric treatment.

In addition, we agree with defendant that the physician-patient privilege (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802) protected the' patient’s medical records from being disclosed in this case. The physician-patient privilege provides, in pertinent part:

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802.)

This privilege was enacted to encourage free disclosure between the patient and physician and to protect the patient’s privacy rights. (Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 602-03, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232.) However, the privilege is not absolute, and the statute contains several exceptions whereby the privilege does not apply. (See Ill. Rev. Stat. 1987, ch. 110, pars. 8 — 802(1) through (9).) Defendant correctly points out that none of these exceptions apply in this case.

We have recently decided the rights of nonparty patients with respect to the physician-patient privilege vis-a-vis a medical malpractice action in Ekstrom v. Temple (1990), 197 Ill. App. 3d 120. In Ekstrom, we held that the medical records of nonparty patients were privileged and not subject to disclosure, even though a different result would have been reached had the patients been parties to the malpractice action, based upon an exception to the privilege. Ekstrom, 197 Ill. App. 3d at 130; see also Parkson v. Central Du Page Hospital (1982), 105 Ill. App. 3d 850, 854-55.

We agree with the trial court’s decision that the medical records of the nonparty patient were protected based on the physician-patient privilege. These records contained information on history, diagnosis, and treatment, all of which the privilege protects. Thus, the nonparty patient’s medical records, including the records concerning the November 1983 admission, contained confidential information which the physician-patient privilege protected from disclosure.

In making our determination, we are aware that much of the information contained in the nonparty patient’s medical records would be relevant to the issue involved in this case. Unfortunately for plaintiff, the privilege involved in this case will often act to bar what is clearly relevant and material information. See Laurent, 74 Ill. App. 3d at 217 (“[ijmplicit in every testimonial privilege is the assumption that the privileged matter may indeed be highly probative of the issues in dispute”).

Furthermore, we agree with defendant that simply deleting the patient’s name from the medical records will not protect the confidentiality to which the patient is entitled. See Ekstrom, 197 Ill. App. 3d at 130; Parkson, 105 Ill. App. 3d at 855 (patients’ medical records contain information which in the cumulative can make the possibility of recognition of the patients very high).

Plaintiff next argues that the trial court erred in prohibiting her from contacting, deposing, or disclosing the identity of the patient who allegedly assaulted her. Plaintiff contends that it was necessary for her to depose the patient in order to present evidence to show that defendant had knowledge of the patient’s psychiatric problems.

A review of the record reveals that the trial court’s order on June 30, 1989, prohibited plaintiff from eliciting testimony from Dr. Stinson concerning the patient’s identity. However, plaintiff inadvertently discovered the patient’s identity following Dr. Stinson’s deposition. On August 1, 1989, the trial court granted defendant’s motion for a protective order, thereby prohibiting plaintiff from contacting, deposing, or disclosing the identity of the patient.

Plaintiff argues that the trial court erred in entering the protective order in this case. Defendant contends that the protective order was appropriate to prevent the disclosure of confidential information (the patient’s identity). Supreme Court Rule 201(c)(1) (107 Ill. 2d R. 201(c)(1)) provides:

“The court may at any time on its own initiative, or on motion of any party or witness, make a protective order as justice requires, denying, limiting, conditioning, or regulating discovery to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.”

Defendant argues that justice required the protective order to prevent “embarrassment” to the patient.

We disagree with defendant on this issue and hold that plaintiff was entitled to know the identity of the patient who allegedly attacked her and may contact and depose the patient if plaintiff so desires. Simply revealing the patient’s identity, in and of itself, will not result in the disclosure of confidential communications. It is evident that disclosure of the patient’s name does not violate the physician-patient privilege. (See Davis v. Hinde (1986), 141 Ill. App. 3d 664, 666; Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, 438.) As Geisberger pointed out, the name of the patient generally has no relation to the ailment or treatment and therefore is not privileged information. Geisberger, 72 Ill. App. 3d at 437.

Plaintiff was entitled to contact and depose the patient who allegedly attacked her in order to obtain information from the patient concerning the alleged assault. While plaintiff still would not be able to discover information concerning the patient’s medical history and records, unless the patient waived any privileges and consented to releasing this information, plaintiff would be able to attempt to establish what defendant knew about the patient’s activities on the days preceding the alleged assault. The patient’s physical activities at the hospital during the November 1983 admission were certainly relevant and material in showing just what the hospital knew or had reason to know concerning this issue.

Our finding on this issue is also consistent with section 10(b) of the Mental Health Act (Ill. Rev. Stat. 1987, ch. 911/2, par. 810(b)), which allows a court to issue a protective order to “protect the confidentiality, privacy, and safety of the recipient or of other persons.” The patient was not a recipient of mental health services during the November 1983 admission, and furthermore, the deposition of the patient would not necessarily reveal confidential information. Under these circumstances, we believe that the trial court erred in issuing a protective order preventing plaintiff from contacting, deposing or revealing the name of the patient who allegedly assaulted plaintiff.

Plaintiffs last contention on appeal is that the trial court erred in refusing to admit exhibits Nos. 12 through 19 at trial. Although plaintiff has not included copies of these exhibits in the record on appeal, they apparently contained the nurses’ notes relating to the patient’s conduct during the November 1983 hospital admission. Plaintiff asserts that neither the Mental Health Act nor the physician-patient privilege prohibits the use of these exhibits at trial. Defendant disagrees, arguing instead that the exhibits were barred under either of these theories.

Our review of this issue leads us to conclude that the physician-patient privilege, but not the Mental Health Act, bars the use of the nurses’ notes at trial. With respect to the Mental Health Act, it is evident that this act only applies to situations in which the patient is seeking treatment for a mental health condition. (See Ill. Rev. Stat. 1987, ch. 911/2, pars. 802(1), (7).) In the present case, the nonparty patient was in the hospital for medical reasons, apparently to seek treatment for a digestive disorder. Thus, the Mental Health Act does not apply in this instance.

However, we reach a different result when we analyze this issue under the physician-patient privilege. As we previously stated, this privilege pertains to any information which a physician obtains “in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient.” (Ill. Rev. Stat. 1987, ch. 110, par. 8 — 802.) The nurses’ notes present in this case were placed in the patient’s medical record and were intended to be used by the physicians in rendering medical treatment to the patient. Thus, these notes were necessary to enable the physician to render professional services to the patient and were thus protected under the physician-patient privilege. See generally Roberson v. Liu (1990), 198 Ill. App. 3d 332, 338 (ex parte communications between an attorney and a party’s treating nurse, outside of the authorized discovery process, are prohibited in order to strengthen the public policy of confidentiality in the physician-patient privilege).

In summary, we conclude that the trial court properly held that the patient’s medical records, along with the nurses’ notes (exhibit Nos. 12 through 19), contained confidential information which plaintiff was not entitled to discover. However, the trial court erred in denying plaintiff the opportunity to contact, depose or disclose the identity of the patient who allegedly assaulted her. On remand, plaintiff should be given the chance to contact the patient in order to obtain information relating to the patient’s activities at the hospital.

For these reasons, the judgment of the circuit court of Winnebago County is affirmed in part and reversed in part. The cause is remanded for further proceedings consistent with this decision.

Affirmed in part; reversed in part and remanded.

BOWMAN and NICKELS, JJ., concur.