text:
    FRANZ RODRIGUEZ-ERDMANN, Plaintiff-Appellant, v. RAVENSWOOD HOSPITAL MEDICAL CENTER et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—1719
    Opinion filed October 11, 1989.

      John J. Lowrey, P.C., of Chicago (John J. Lowrey and Mary Jo Smerz, of counsel), for appellant.
    Katten, Muchin & Zavis, of Chicago (James C. Murray, Jr., Michael R. Callahan, and Laurence H. Lenz, Jr., of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant, Franz Rodriguez-Erdmann, M.D. (RodriguezErdmann), appeals from the circuit court order dismissing his defamation action against defendants-appellees, Ravenswood Hospital Medical Center, Ravenswood Health Care Corporation, and Henry J. Kutsch (Ravenswood). On appeal, Rodriguez-Erdmann asserts that his complaint sufficiently alleges a defamation action because the defendants’ statements constituted libel per se, were not privileged, and even if the statements were privileged, malice was sufficiently alleged to defeat any claim of privilege. We affirm.

The facts as alleged in the complaint are as follows. In 1982, Rodriguez-Erdmann was appointed to Ravenswood’s provisional medical staff, a probationary appointment terminating in two years if he was not promoted to a higher category of staff membership. RodriguezErdmann served as the coordinator of the internal medicine clinic, outpatient department from 1983-1984. As coordinator of the internal medicine clinic, his responsibilities included the supervision of the resident-physicians in training.

Prior to joining the staff at Ravenswood, Rodriguez-Erdmann was a professor of medicine at the University of Illinois from 1971 to 1979 and was an assistant professor of medicine at Harvard University from 1969 to 1971. Rodriguez-Erdmann received teaching awards in 1973, 1974,1975, 1976 and 1977.

Beginning in 1983, Rodriguez-Erdmann offered constructive comments to various administrators at Ravenswood about deficiencies in the internal medicine and family practice residency programs. He and other physicians asked the chief administrative officer, Henry J. Kutsch, to review patients’ charts. Rodriguez-Erdmann’s allegations led to numerous counterallegations by the residents and others that plaintiff had demonstrated a marked inability or unwillingness to adequately communicate with the residents in a professional manner. Ravenswood’s board of trustees appointed an ad hoc committee to review the accusations, including the complaints of inadequacy in the internal medicine and family practice residency programs.

After a four-month investigation, the committee issued a 17-page report, with approximately 100 pages of exhibits. The exhibits included a 52-page case audit prepared under the supervision of Dr. Terry Ostrowski.

According to plaintiff, the ad hoc report documented major compromises in patient care by the residents at Ravenswood, some of which caused serious consequences to the patients. Plaintiff attached nine pages of this audit to his complaint and also referred therein to the withdrawal by the Accreditation Council for Graduate Medical Education of its provisional accreditation of the family practice residency program and the placement of the internal medicine residency program on probation.

However, the ad hoc committee made the following recommendations concerning plaintiff:

“The Committee Recommends that [plaintiff’s] interaction with the residents be limited to classroom as opposed to clinical supervision. The Committee further recommends that his participation on the Ward Service be limited and that the Department Classification and Advisory Committee consider the need for disciplinary action relating to his extraordinary method of communicating criticisms about the medical care provided by residents.”

The classification and advisory committee reviewed the report, discussed Rodriguez-Erdmann’s status, and recommended that he not receive a permanent staff appointment. Plaintiff retained his probationary privileges until a final determination was made. After numerous hearings, several of which were attended by Rodriguez-Erdmann and/or his counsel, the classification committee, the medical board and the department of medicine recommended that plaintiff be denied a permanent staff appointment. The Ravenswood board adopted that recommendation, and on May 1, 1985, Rodriguez-Erdmann’s privileges as a staff member at Ravenswood were terminated. On September 6, 1985, plaintiff filed a lawsuit for retaliatory discharge against Ravenswood. On October 2, 1985, plaintiff and his counsel in conjunction with the Illinois Public Action Council held a press conference announcing the filing of the lawsuit and charging that he “was fired after speaking out about problems of malpractice.” Specifically, Illinois Public Action Council spokesman, Robert Kramer, statéd:

“The lawsuit *** alleges that he was relieved of his medical privileges because he attempted, both, to uncover and to correct instances of malpractice at the hospital and substandard care of various types which caused death and serious injury to certain patients.
*** [T]he experience of [plaintiff] at Ravenswood Hospital, is a case in point of the attempt to cover up malpractice in the medical industry, both, by doctors and hospitals.”

In addition, plaintiff stated that he could cite at least 19 incidents of improper treatment at Ravenswood Hospital. These comments prompted numerous inquiries to Ravenswood from the media.

Ravenswood responded by issuing a three-page press release on October 3,1985, which included the following:

“Dr. Franz Rodriguez-Erdmann’s suit against Ravenswood Hospital Medical Center is based on the action of the Medical Staff and the Board of Directors to not reappoint Dr. Rodriguez-Erdmann to the Medical Staff following his two-year probationary status.
This action was taken after many months of investigation and review of numerous complaints regarding Dr. RodriguezErdmann’s disruptive behavior; inability to communicate and function as a professional in a disciplined environment with residents, faculty and other Medical Staff members; and other issues relating to his performance on the staff of this hospital.
At all levels of this review and investigative process there was full disclosure of all related facts and full minutes of all proceedings and actions taken. On all occasions, the investigating and Medical Staff committees concluded that Dr. Rodriguez-Erdmann’s allegations regarding the quality of care or performance provided by residents or faculty members at this hospital was [sic] unsupported by the facts as determined by his own peers.
We stand by our position that the decision-making process regarding [plaintiff] was exhaustive. We will never and have not compromised our standards of care or the integrity of this institution to accommodate individual disruptive and unprofessional behavior. This hospital conducts, and will always conduct, its affairs in the best interests of our patients and its Medical Staff.”

Ravenswood distributed this press release to television and newspapers. On October 13, 1985, WLS-TV aired another story concerning plaintiff’s lawsuit wherein Kramer charged, “Doctors who insist upon quality should be rewarded for their trouble and their attitude, rather than punished and have their staff privileges revoked. This instance is a question of sheer punishment by this hospital.” In this news story plaintiff and his counsel stated that the hospital’s internal investigation supported his allegations of malpractice. Plaintiff also asserted that “if not making compromise [sic] for the well-being of my patients, is to being [sic] a trouble-maker, I accept the charge.” On October 17, 1985, Ravenswood issued a statement to hospital staff members and employees which stated in pertinent part:

“Please be assured that the recent allegations of malpractice against the Ravenswood Hospital Medical Center is [sic] not true. We believe that the allegations leveled by Dr. RodriguezErdmann reflect his disappointment with the decision of the Medical Staff and Board of Directors not to appoint him to a permanent position on the Medical Staff after a two-year probationary period.”

Plaintiff filed a two-count complaint alleging defamation based upon the press release and hospital staff memo. The circuit court dismissed the complaint with prejudice and this appeal followed.

On appeal, plaintiff argues that Ravenswood’s statements are libelous per se because they prejudice him in his profession, impute the inability to perform and want of integrity in the discharge of his duties. Plaintiff also. asserts that the statements were made with knowledge of their falsity or in reckless disregard of their truth or falsity. We disagree.

On review, we accept as true all well-pled facts in the complaint as well as the reasonable inferences which may be drawn therefrom. (Open Kitchens, Inc. v. Gullo International Development Corp. (1984), 126 Ill. App. 3d 62, 63, 466 N.E.2d 1313, 1314.) Each case alleging defamation must be decided based upon its own facts. Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 266, 371 N.E.2d 874, 879.

Defamatory writing is either libelous per se or per quod. (Bruck v. Cincotta, 56 Ill. App. 3d at 263, 371 N.E.2d at 877.) An action for defamation based upon libel per se requires that the words used by the defendant are in and of themselves so obviously and materially harmful to the plaintiff that a showing of special damages or the injurious character is unnecessary. (Bruck, 56 Ill. App. 3d at 264; Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145, 1147.) To be defamatory per se, words themselves, without the aid of extrinsic facts to explain them, must be so obviously and inevitably hurtful that damage is presumed. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348, 243 N.E.2d 217, 220.) A writing is libelous per se and is actionable without proof of special damages if it contains a false statement which imputes to the plaintiff any of the following: (1) commission of a crime; (2) infection with a loathsome disease; (3) unfitness or want of integrity in performing the duties of an office or employment; or (4) an inability to perform in one’s business, trade or profession. Owen, 113 Ill. 2d at 277; Allen v. Ali (1982), 105 Ill. App. 3d 887, 889, 435 N.E.2d 167, 168-69; Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 548, 428 N.E.2d 650, 652.

With respect to the statement that was published to the hospital employees, defendants argue that it was nonactionable as an expression of opinion. We agree. As previously stated, the hospital statement included the following language:

“Please be assured that the recent allegations of malpractice against the Ravenswood Hospital Medical Center is [sic] not true. We believe that the allegations leveled by Dr. RodriguezErdmann reflect his disappointment with the decision of the Medical Staff and Board of Directors not to appoint him to a permanent position on the Medical Staff after a two-year probationary period.”

In this statement defendants expressed their belief that the allegations were raised due to plaintiff’s disappointment and their opinion that the allegations were untrue. (Renard v. Columbia Broadcasting System, Inc. (1984), 126 Ill. App. 3d 563, 467 N.E.2d 1090.) However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3007.) The law of libel does not provide redress for expression of every opinion touching on a person’s capabilities or qualifications, no matter how much the complained-of statement may injure that person in his or her own conception. (Anderson v. Matz (1978), 67 Ill. App. 3d 175, 178, 384 N.E.2d 759, 761.) Especially in the field of medicine, where equally capable doctors may arrive at conflicting conclusions regarding proper treatment for a patient, allegedly libelous statements must be carefully examined in context.

Defendants argue that the statements in the press release are not libel per se because the plaintiff’s skills as a physician were not questioned and the comments can reasonably be construed as criticizing only his ability to interact with his colleagues and the residents. (Powers v. Delnor Hospital (1986), 148 Ill. App. 3d 844, 847, 499 N.E.2d 666, 668.) We find that the plaintiff’s communication skills are critical to his profession. As previously stated, the committee recommended that Rodriguez-Erdmann’s interaction with residents be restricted to classroom supervision, excluding clinical supervision. As a physician, as well as the coordinator of the internal medicine clinic, clinical supervision constituted a critical aspect of plaintiff’s professional responsibilities. Accordingly, we do not agree that the statements do not reflect upon plaintiff's professional competence. However, the following statements in the press release must be reviewed in context:

“Dr. Franz Rodriguez-Erdmann’s suit against Ravenswood Hospital Medical Center is based on the action of the Medical Staff and the Board of Directors to not reappoint Dr. Rodriguez-Erdmann to the Medical Staff following his two-year probationary status.
This action was taken after many months of investigation and review of numerous complaints regarding Dr. RodriguezErdmann’s disruptive behavior; inability to communicate and function as a professional in a disciplined environment with residents, faculty and other Medical Staff members; and other issues relating to his performance on the staff of this hospital.
At all levels of this review and investigative process there was full disclosure of all related facts and full minutes of all proceedings and actions taken. On all occasions, the investigating and Medical Staff committees concluded that Dr. Rodriguez-Erdmann’s allegations regarding the quality of care or performance provided by residents or faculty members at this hospital was [sic] unsupported by the facts as determined by his own peers.
We stand by our position that the decision-making process regarding [plaintiff] was exhaustive. We will never and have not compromised our standards of care or the integrity of this institution to accommodate individual disruptive and unprofessional behavior. This hospital conducts, and will always conduct, its affairs in the best interests of our patients and its Medical Staff.”

In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199, our supreme court gave the following explanation of how to apply the rule of innocent construction to determine whether language constitutes libel per se:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning ***. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory *** is a question for the jury should the initial determination be resolved in favor of the plaintiff.”

Applying the innocent construction rule to the press statements, we find that they are responsive to plaintiff’s remarks to the press and explain Ravenswood’s position. The following elements are essential in establishing the defense of a qualified privilege: good faith by the defendant, an interest to be upheld, a statement limited in its scope to that purpose, a proper occasion, and publication in a proper manner and to proper parties only. Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 1051, 340 N.E.2d 539, 543.

Ravenswood investigated the matter for many months and concluded that plaintiff’s behavior was disruptive and that he was unable to communicate in a professional manner. Ravenswood also concluded that plaintiff’s allegations regarding the quality of medical care were unsupported by the facts as determined by his own peers. Ravenswood had to uphold its reputation as a health care provider, and its statements were limited to that purpose. Publication by Ravenswood was on a scale comparable to plaintiff’s presentation. We therefore find that Ravenswood’s response constituted a qualified privileged. However, a qualified privilege may lose its character on proof of actual malice. Welch v. Chicago Tribune Co., 34 Ill. App. 3d at 1052, 340 N.E.2d at 543.

Similarly, those who, by the vigor and success with which they seek the public’s attention, are classified as public figures may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. Public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved and have invited attention and comment. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345, 41 L. Ed. 2d 789, 808, 94 S. Ct. 2997, 3009.) Usually public figures enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. The fact that the self-help remedy of rebuttal, standing alone, is inadequate does not mean that it is irrelevant. Gertz, 418 U.S. at 344, 41 L. Ed. 2d at 807-08, 94 S. Ct. at 3009.

We find that the plaintiff is a public figure since he thrust himself to the forefront of the controversial issue of medical malpractice and that he counteracted the defendants’ statements during his second press conference.

The issue remaining is whether defendant exercised actual malice in the publication of the statement. We find as a. matter of law that the facts alleged cannot support a finding of actual malice. (Welch v. Chicago Tribune Co. (1975), 34 Ill. App. 3d 1046, 340 N.E.2d 539.) Actual malice is said to be shown where the defendant made the false, defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not. Reckless disregard for the truth exists when a defendant in fact entertained serious doubts as to the truth of his publication or had a high degree of awareness of probable falsity. (Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 488, 515 N.E.2d 668, 675.) Plaintiff asserts that Ravenswood published the statements with knowledge that the statements were false or with reckless disregard of whether the statements were false. In support thereof, he attaches to his complaint nine pages of the Committee’s 17-page report, which included 100 pages of exhibits. Under these circumstances, we cannot conclude that Ravenswood’s statements were made with knowledge that the statements were false or with reckless disregard of the truth.

Moreover, the granting of a motion to dismiss for failure to state a cause of action should be affirmed on appeal only when no set of facts can be proved under the pleadings which will entitle plaintiff to relief. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 275, 504 N.E.2d 193, 197.) Ravenswood did not disclose any facts supporting its statements due to the medical studies act (Ill. Rev. Stat. 1985, ch. 110, par. 8 — 2101).

The Hlinois medical studies act provides in pertinent part:

“All information, interviews, reports, statements, memoranda or other data of *** committees of [licensed or] accredited hospitals or their medical staffs, including Patient Care Audit Committees, Medical Care Evaluation Committees, Utilization Review Committees, Credential Committees and Executive Committees, (but not the medical records pertaining to the patient), used in the course of internal quality control *** or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician’s staff privileges, or in any judicial review thereof, the claim of confidentiality shall not be invoked to deny such physician access to or use of data upon which such a decision was based.” Ill. Rev. Stat. 1983, ch. 110, par. 8 — 2101.
“Such information, records, reports, statements, notes, memoranda, or other data shall, not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency or person.” Ill. Rev. Stat. 1983, ch. 110, par. 8 — 2102.
“The disclosure *** is unlawful, and any person convicted of violating any of the provisions *** is guilty of a Class A misdemeanor.” Ill. Rev. Stat. 1983, ch. 110, par. 8 — 2105.

The purpose of the legislation is to ensure the effectiveness of professional self-evaluation, by members of the medical profession, in the interest of improving the quality of health care. The act is premised on the belief that, absent the statutory peer-review privilege, physicians would be reluctant to sit on peer-review committees and engage in frank evaluations of their colleagues. Jenkins v. Wu (1984), 102 Ill. 2d 468, 479-80, 468 N.E.2d 1162, 1168.

Accordingly, we conclude that plaintiff has failed to allege facts that would entitle him to relief. Moreover, given the Medical Studies Act, no set of facts could be proven that would entitle the plaintiff to relief. The judgment of the circuit court is therefore affirmed.

Affirmed.

WHITE and CERDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL PRESIDING JUSTICE MANNING,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH D. WEHRWEIN, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1487
    Opinion filed October 16, 1989.

      MANNING, P.J., dissenting.
    Edward M. Genson and Marc W. Martin, both of Genson, Steinback & Gillespie,' of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Catharine M. Forest, and Kent D. Sinson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, the defendant, Joseph Wehrwein, was found guilty of possession of a stolen motor vehicle and sentenced to three years’ imprisonment. Defendant appeals from the conviction and the sentence.

On appeal, defendant contends (1) that he was not proven guilty beyond a reasonable doubt where the State failed to prove the identification of defendant and failed to prove each element of the crime charged; (2) the trial court abused its discretion in allowing the State to recall a witness; (3) the trial court erred in allowing the State to call a certain witness during its case in chief where the name of the witness was not included in the State’s answer to discovery; and (4) that his conviction and sentence must be vacated because the statute under which he was convicted and sentenced is unconstitutional.

At trial, Chicago police officer Leon Toney testified that he was a member of the auto theft unit of the department. On March 7, 1985, at about 7:30 p.m., Toney was stationed in an unmarked car two or three blocks from C & H Transportation Company at 8928 South Holland in Chicago. At that time, he was informed by another officer that a blue tractor-trailer was pulling out of the yard and proceeding northbound on Holland, towards his location. Officer Toney had information that this tractor-trailer had been stolen on March 1, 1985, according to a report from the State of Illinois.

As the tractor-trailer approached Toney at the comer of 87th Street and South Holland Drive, he “could not see much” through the windshield of the vehicle. Defendant then stopped the tractor-trailer at an intersection which was in a well-lit area for a period of from two to four minutes. Officer Toney was parked about 50 feet from the tractor-trailer or approximately the width of the street. Toney testified that he observed the driver of the tractor-trailer, sitting in the cab, six to eight feet in the air, clad in a baseball cap and jacket and having long curly hair. He could not relate the height or weight of the driver. The window of Toney’s automobile was open, and he recognized the defendant as the driver of the tractor-trailer. While the defendant was stopped at the intersection, Officer Toney stated that he used a pair of binoculars he had with him to view the defendant and there was nothing obstructing his line of sight. At trial, Toney identified defendant as the person he had seen driving the tractor-trailer.

Officer Toney further testified that he followed the tractor-trailer as it proceeded down a ramp leading south onto the Dan Ryan Expressway. When the tractor-trailer reached the bottom of the ramp, it slowed up, pulled off the road onto the shoulder and turned off its lights. Officer Toney continued on the ramp approximately a quarter of a block, and he also pulled onto the shoulder of the road and turned off his lights. At that time, a Tinley Park police car pulled up behind Toney. Because Toney was in an unmarked car, the officer from Tinley Park thought it was suspicious that Toney had pulled onto the shoulder of the road and turned out his lights. Officer Toney informed the Tinley Park officer who he was and explained to him that he was suspicious that the truck parked behind them was stolen. When Toney got back to the tractor-trailer, it was abandoned alongside the expressway and the defendant who was driving the vehicle had disappeared. Subsequently, on April 28, 1985, Toney testified that Officer Bernatek of the Chicago police department showed him a compilation of six photographs. Toney identified the photograph of the defendant as being the same person he had seen driving the tractor-trailer at the intersection of 87th Street and South Holland Drive on March 7, 1985.

Chicago police officer LeRoy Starr next testified for the State. While the tractor-trailer was parked on the side of the expressway, he arrived on the scene and viewed the truck. Four of the ten tires on the tractor-trailer were missing. Further, inside the cab of the truck, numerous wires were disconnected, hanging about the vehicle and lying on the floor. The radio, as well as its speakers, were missing. In addition, the bracket for one of the two saddle tanks which would contain diesel fuel was removed and the right saddle tank was missing. Subsequently, Starr participated in the execution of a search warrant at the truck yard that previously was under surveillance. At the yard, the officer found parts which appeared as though they matched the tractor-trailer in question, although the officer did not know whether or not the parts actually came from the tractor-trailer.

The State then recalled Officer Toney over objection of the defendant. Officer Toney further testified that when the tractor-trailer reached the bottom of the ramp on the Dan Ryan Expressway, a maroon car was parked on the shoulder of the ramp, and the maroon car began following the tractor-trailer being driven by defendant. For approximately 15 or 20 minutes the maroon car followed the tractor-trailer as it was driven down the expressway. During this period of time, Toney noted the license plate number of the maroon car. Officer Toney passed the maroon car in traffic and stated that a heavy white woman was driving the car. All three vehicles, the tractor-trailer, the maroon car, and Officer Toney’s unmarked squad car exited the expressway at Harlem Avenue. At that time he was approached by the Tinley Park officer. At trial it was established that the maroon car was registered with the defendant as the owner.

Harold Duke next testified for the State. Duke is a partner in Duke and Riley Trucking Company, a truck leasing business. Duke identified a picture of the tractor-trailer seized on the exit ramp of the expressway as one of the trucks that his company owned. On the date in question, March 7, 1985, Duke believed that the truck could have been leased to a company known as Legion Nationwide.

Finally, Robert Micco, an employee of Legion Nationwide, testified. Although Micco’s name was not on the State’s answer to discovery, and the defendant objected to the introduction of his testimony, the court permitted the State to amend its answer. Micco testified that his company, Legion Nationwide, terminated their permanent lease on the tractor-trailer on March 3, 1985, and that Duke and Riley Trucking had the right to possession of the tractor-trailer on March 7, 1985.

I

Defendant first contends that the State did not prove him guilty beyond a reasonable doubt where the officer’s identification was insufficient and where the defendant was not found to be in possession of a motor vehicle which he knew was stolen. The State maintains that Officer Toney’s identification of defendant as the driver of the tractor-trailer was credible and the evidence proved beyond a reasonable doubt that defendant was in possession of a vehicle which he knew or should have known was stolen.

Certain principles of law are well settled in the area of identification testimony. Although a conviction cannot be sustained if the identification of the accused was vague, doubtful or uncertain (People v. Ash (1984), 102 Ill. 2d 485, 468 N.E.2d 1153), the testimony of one identification witness, if positive and credible, is sufficient for a conviction. (People v. Diaz (1981), 101 Ill. App. 3d 903, 428 N.E.2d 953.) The most important factor is whether the witness had an adequate opportunity to view the offender at the time of the crime. (People v. Moore (1983), 115 Ill. App. 3d 266, 450 N.E.2d 855.) An identification may be positive even though the witness viewed the accused for a short period of time. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915.) The sufficiency of the opportunity to observe is for the trier of fact to determine. People v. Davis (1982), 104 Ill. App. 3d 1027, 433 N.E.2d 1011.

In the case at bar, Officer Toney testified that he observed the defendant when the window of his car was open, that he used a pair of binoculars he had with him, and that there was nothing obstructing his line of sight. In court, Toney testified that he recognized the defendant as being the driver of the tractor-trailer. Further, the area was well-lit, Toney was approximately 50 feet away or the distance of the width of a street, and he observed defendant for a period of from two to four minutes. Defendant notes that some significant items in Toney’s testimony were not in his police report. Specifically, defendant states that Toney’s police report did not give any description of the driver other than to say that it was a white male. Also, the report did not mention that Toney used binoculars. However, discrepancies, inaccuracies or omissions in an officer’s police report simply go to the weight of the identification testimony. (People v. Taylor (1986), 143 Ill. App. 3d 252, 492 N.E.2d 1011; People v. Goodman (1982), 109 Ill. App. 3d 203, 440 N.E.2d 345.) Under the circumstances of this case, we consider Toney’s identification testimony was positive and, standing alone, was persuasive to establish beyond a reasonable doubt that defendant was the driver of the stolen truck.

Defendant further argues that the out-of-court identification testimony given by Officers Toney and Bematek was inadmissible hearsay. Both officers testified at trial that on April 23, 1985, Officer Bernatek showed Officer Toney a compilation of six photographs. Officer Toney identified the photograph of defendant as being the same person he had seen driving the stolen tractor-trailer at the intersection of 87th Street and South Holland Drive on March 7, 1985.

At the outset, we note that this issue was not raised in defendant’s post-trial motion and, therefore, the issue is waived on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In considering the merits of the argument, in People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, our supreme court enlarged the permitted use of consistent out-of-court statements as corroboration evidence. The court stated:

“[I]f A testifies that he previously identified B and his veracity is tested by cross-examination, the reason for excluding the third person’s testimony has been removed. The third person should then be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination concerning the out-of-court identification. Evidence of such out-of-court identification by both A and the third person should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence. Before the third person is permitted to testify as to A’s identification of B, A should first testify as to his out-of-court identification.” (81 Ill. 2d at 579, 411 N.E.2d at 227.)

Subsequently, the holding of Rogers was enacted as a statute. Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12.

In the case at bar, Officer Toney identified the defendant in court as the person he saw driving the tractor-trailer. Officer Toney further testified that on April 23, 1985, he identified defendant’s picture from a photo array. Under the holding of Rogers, because Toney was present in court and underwent cross-examination by defense counsel, the testimony was not hearsay. There was no error in using the out-of-court identification to corroborate his in-court identification of defendant. Likewise, Officer Bernatek’s testimony that he saw Officer Toney identify defendant in a photo array was admissible because both officers were subjected to cross-examination concerning the out-of-court identification and because the testimony was used in corroboration of Officer Toney’s in-court identification. See also People v. Hudson (1985), 137 Ill. App. 3d 606, 484 N.E.2d 1246.

Defendant contends that photo arrays are not proper evidence since the use of photo arrays is an unreliable procedure, citing People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634. We find Holiday inapplicable since the court there held that there is a preference for a lineup rather than a photo array when the suspect is in custody. In the case at bar, a review of the record does not establish that defendant was in custody at the time of the photo array procedure.

Defendant next contends that the evidence failed to prove beyond a reasonable doubt that defendant was in the unauthorized possession of a stolen motor vehicle which he knew or should have known was stolen. It has been held that defendant’s knowledge that the vehicle was stolen or converted may be established by proof of circumstances that would induce a belief in a reasonable mind that the property was stolen. (People v. Mijoskov (1986), 140 Ill. App. 3d 473, 488 N.E.2d 1374.) Direct proof of this element is not necessary, and where possession has been shown, an inference of defendant’s knowledge can be drawn from the surrounding facts and circumstances. People v. Johnson (1978), 64 Ill. App. 3d 1018, 382 N.E.2d 85.

At trial, Officer Toney identified defendant as having exclusive possession of the stolen tractor-trailer as he drove it down the Dan Ryan Expressway while it was being followed by a maroon car which was registered to defendant. Further, there was evidence presented that the tractor-trailer had been substantially tampered with and that numerous parts of the vehicle were missing. In addition, the defendant abandoned the truck on the shoulder of the expressway. From these facts, in our judgment, a sufficient inference was established that defendant had knowledge that the tractor-trailer in his possession was stolen.

Defendant argues that the State failed to prove the truck was stolen where Harold Duke of Duke and Riley, the owner of the vehicle, did not testify that the truck had been stolen. In People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362, this court held that the identification of a stolen vehicle by its vehicle identification number was sufficient to sustain a conviction for possession of a stolen vehicle. At trial here, police officer Starr testified that he ran a check on the vehicle identification number for the truck defendant abandoned along the expressway. The computer check revealed that the tractor-trailer had been stolen on March 1, 1985. We agree with the trial court's determination that this evidence was sufficient to prove the truck was stolen.

II

Defendant's next contention is that the trial court abused its discretion in allowing the State to recall Officer Toney. Again, we note that defendant has failed to raise this issue in his post-trial motion, and, therefore, the issue is waived on review. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) In addressing the merits of the defendant’s argument, where a party makes a request before the close of the party's case in chief to present additional evidence by recalling a previously examined witness, the decision rests in the sound discretion of the trial court, and that discretion should be exercised liberally so as to promote fairness and justice in a trial. (Mesick v. Johnson (1986), 141 Ill. App. 3d 195, 490 N.E.2d 20.) The trial court may allow the recall of a witness to prove matters inadvertently omitted previously or to adduce additional testimony. (People v. Thompson (1978), 57 Ill. App. 3d 134, 372 N.E.2d 1052.) It is not an abuse of discretion to allow the State to reopen its case where the defendant does not allege or otherwise show any unfairness or surprise occasioned by the admission of the additional proof. (People v. Faulkner (1978), 64 Ill. App. 3d 453, 381 N.E.2d 321.) The trial court’s decision to permit a witness to be recalled will not be overturned on review unless the defendant can demonstrate that the ruling was a clear abuse of the court’s discretion. People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950.

In the case at bar, the record reveals that on the first day of trial, the prosecutor told the court that Officer Toney needed to go down to police headquarters to pick up the collection of pictures he used when he identified defendant in a photo array. However, the trial judge was anxious to begin the trial immediately, and Officer Toney was unable to get the photographs. On the second day of trial, the prosecutor asked the trial judge to recall Officer Toney for the purpose of testifying as to the photo array and to testify as to the license plate of the car following the truck he observed defendant in. The court recognized that the prosecutor was in a difficult position because the case had been prosecuted by eight assistant State’s Attorneys prior to trial and perhaps the prosecutor had not had an adequate opportunity to interview Officer Toney prior to trial. The trial court permitted Officer Toney to be recalled.

Defendant contends that he was unfairly prejudiced by this testimony because he based his cross-examination of Officer Starr, the witness who testified for the State after Toney, on the absence of Toney claiming that a maroon car owned by defendant followed the truck on and off the expressway. However, a review of the record shows that the initial time Officer Toney testified, he stated that when the stolen truck reached the bottom of the expressway ramp, the truck slowed down and a maroon car parked on the shoulder started up and followed the truck. Since the defendant was aware of the maroon car from the time Toney first testified, we find defendant’s argument of unfair prejudice without merit.

Although we agree with defendant that redirect examination is generally limited to new matters elicited on cross-examination, it is also true that the trial court, in its discretion, may allow questions on redirect that should have been brought out on direct. (Springfield v. Dalby (1891), 139 Ill. 34, 29 N.E. 860.) In our opinion, there was no abuse of discretion by the trial court in allowing Officer Toney to be recalled. The facts that the prosecutor had discovered that Toney could identify the maroon car he had followed for 20 minutes with greater detail and that the pictures used in the previously testified to photo array were not available to be introduced into evidence were sufficiently valid reasons.

Ill

The defendant further argues that the trial court erred in allowing the State to amend its pretrial answer to discovery to include Robert Micco of Legion Nationwide, the lessee of the stolen truck. Once again, we observe that defendant has not raised this issue in its post-trial motion and, therefore, it is waived for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1120.) In considering the merits of the argument, the State maintains that it did not intend to call Micco until after Harold Duke, the representative of Duke and Riley Trucking, had testified.

It is clear, under Supreme Court Rule 412(a) (107 Ill. 2d R. 412(a)), that the State has an obligation to disclose to the defendant the name of a person it intends to call when the State forms the intent to call the person as a witness. At trial, Harold Duke of Duke and Riley Trucking testified that on March 9, 1985, the tractor-trailer at issue was leased to Legion Nationwide and that on that date the lessee had a right to let whomever they chose to drive the truck. Immediately following this testimony, the State advised the court that it would need to bring in a witness from Legion Nationwide. On the next court date, the State advised the court that Robert Micco, a representative of Legion Nationwide, would be available to testify as to the lease agreement between the parties and the lack of authorization for defendant to drive the vehicle. The trial court allowed the testimony.

While it is clear that under Supreme Court Rule 412(a) (107 Ill. 2d R. 412(a)), the State is required to disclose to the defendant the names of persons whom it intends to call as witnesses, the State’s intent to call the witness is the critical element. (People v. Hanna (1983), 120 Ill. App. 3d 602, 457 N.E.2d 1352.) The State need not inform the defendant of a witness’ name until it forms the intent to call him, even if that occurs during trial. (People v. Shiflet (1984), 125 Ill. App. 3d 161, 465 N.E.2d 942.) From our review of the record before us, it is our judgment that it substantiates the State’s position that it had not formed an intent to call a witness from Legion Nationwide until after a representative of Duke and Riley Trucking testified. Accordingly, the State had no obligation to disclose Micco’s name as a ■witness to defendant until the time that it amended its answer to discovery.

IV

Finally, defendant contends that his conviction and sentence should be vacated because the recently amended statute under which he was convicted and sentenced was unconstitutional. In 1985, the Illinois legislature amended section 4 — 103(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 4 — 103(b)), reclassifying an initial conviction for possession of a stolen motor vehicle as a Class 2 felony. Since the filing of the briefs in this matter, our supreme court has resolved this issue, holding that the statute is constitutional. (People v. Bryant (1989), 128 Ill. 2d 448.) The Bryant court held that this provision of the Illinois Vehicle Code does not violate due process even though the section provides for a greater penalty than the offense of theft, since the offense is a separate and more serious offense than that of theft and the plain language of the section exhibits a clear intent to prohibit all persons, not just organized motor vehicle thieves, from possessing stolen motor vehicles.

Accordingly, for the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

O’CONNOR, J., concurs.

PRESIDING JUSTICE MANNING,

dissenting:

I must respectfully dissent. The State has a heavy burden in a criminal case. It must prove each element of the offense beyond a reasonable doubt by competent evidence. (In re Winship (1970), 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073.) I have searched the record for facts which support the allegation that defendant possessed a stolen motor vehicle. I have yet to find any such facts. Evidence regarding who owned, possessed or had control over the truck, at the time it was allegedly stolen, is likewise lacking.

To warrant a conviction based on a defendant’s recent, exclusive and unexplained possession of a stolen vehicle, the evidence must be of a conclusive nature (People v. Kilgore (1975), 33 Ill. App. 3d 557, 338 N.E.2d 124), and include the presentation of evidence which convincingly establishes ownership of the vehicle (People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795) and that the vehicle was stolen.

In the present case, the purported owner of the tractor, as alleged in the indictment, Howard Duke, never testified to a theft. In fact, he lacked knowledge that a theft had occurred. Mr. Duke testified that, on the date the defendant was allegedly in possession of the truck, it was leased to another entity, Legion, and therefore, neither he nor his company had any right or control over the truck.

Although Mr. Micco, Legion’s representative and a surprise witness, did in fact testify regarding a tractor which he understood had been stolen, including a vehicle identification number, he stated that he had no personal knowledge of a theft of the subject truck. Mr. Micco testified that while a lease had previously existed, on the date of the alleged theft, the lease had been terminated. Further, the record is unclear as to who reported the truck as being stolen.

In addition, Micco’s testimony that defendant was not an authorized driver for Legion was based upon, not personal knowledge, but Micco’s recollection of what was contained in the computerized records of the company. Such testimony was inadmissible. The proper method of proof would have been to introduce Legion’s business records in evidence, which the State failed to do. Instead, the inadmissible testimony that defendant was not entitled to possession of the truck was offered to prove an element of the offense charged. See People v. Clark (1982), 108 Ill. App. 3d 1071, 1081, 440 N.E.2d 387.

Officer Starr’s testimony that he determined the truck to be stolen by checking the State of Illinois computer records was predicated on hearsay, and therefore, its admission likewise was error. The State, in response, argues that defendant has waived this issue on appeal by failing to object at trial and by failing to raise it in his motion for a new trial, citing People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387.

Because the alleged error goes to an element of the offense and detracts from the State’s ability to prove its case beyond a reasonable doubt, I would invoke the plain error doctrine in that this error affects the substantial rights of defendant. “Plain error *** affecting substantial rights” may be considered within the discretion of the reviewing court as a means of alleviating the strict application of the waiver rule. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

I have reviewed the facts and circumstances of this case which precipitated defendant’s conviction under the Illinois Vehicle Code. A person is in violation of the Code if he receives, possesses, conceals, sells or disposes of a motor vehicle, which he is not entitled to the possession of, and knows the vehicle to have been stolen. (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 103(a).) Thus, the State must prove: (1) that the vehicle was stolen, and (2) that defendant’s possession of it was unauthorized. People v. Clark (1982), 108 Ill. App. 3d 1071, 440 N.E.2d 387.

The majority in response to defendant’s contention that the State failed to prove the truck was stolen cites People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362, for the proposition that identification of a stolen vehicle by its vehicle identification number was sufficient to sustain a conviction for possession of a stolen motor vehicle. While I do not quarrel with that holding, it is irrelevant to the issue at hand, and the factual matrix is distinguishable from the case at bar.

In People v. Williams, the victim observed the theft of her car, and she identified the defendant as the man who stole her car. While she testified incorrectly regarding one digit of a 13-digit vehicle identification number, it was a minor discrepancy when coupled with the overwhelming evidence of defendant’s guilt, i.e., defendant was found in possession of the victim’s automobile, checkbook, savings passbook, repair bill and credit cards, and eyewitness testimony of the witnesses.

Conversely, in the case at bar, the State’s witnesses never testified to a theft, neither the “owner” nor the lessee had any personal knowledge of a theft. In fact, Mr. Duke testified that he identified some truck parts on March 13, 1985; but, when he took these parts to the repair shop, they did not match the “Peterbilt” truck, which he had also identified as the truck that “possibly could have been issued to Legion.” The evidence fails to convincingly establish ownership of the truck (People v. Hope (1979), 69 Ill. App. 3d 375, 387 N.E.2d 795), or establish that the truck was stolen, or that the subject truck was the same one reported stolen. See People v. Williams (1962), 24 Ill. 2d 214, 181 N.E.2d 353.

Thus, the State’s failure to prove that the truck was stolen, an essential element of the offense, when coupled with its attempts to offer a conclusion based on hearsay evidence, mandates a reversal.

For the foregoing reasons, I would reverse defendant’s conviction.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN WILER, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0208
    Opinion filed October 16, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Julie A. Hull, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and John G. Mulroe, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial defendant, Warren Wiler, was convicted of pandering and juvenile pimping in violation of sections 11 — 16(a)(2) and 11 — 19.1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 11 — 16(a)(2), 11 — 19.1(a)). Subsequently, the trial court sustained defendant’s motion for a judgment of acquittal for the charge of juvenile pimping, and defendant was sentenced to 24 months’ probation for pandering.

On appeal defendant contends that he was denied due process when the trial court convicted him of pandering, despite the prosecutor’s failure to present any evidence of that crime.

Detective Leonard Bajenski of the Chicago police prostitution unit testified that about 11:15 p.m. on June 3, 1987, he was walking southbound on the east side of Broadway near Irving Park in Chicago when he observed defendant with a young woman, L.B., walking northbound on the west side of Broadway. Defendant whistled at Bajenski and motioned for him to cross the street, but when Bajenski stayed on the east side of the street, defendant and L.B. crossed over to him. Defendant asked Bajenski if he was interested in fellatio with L.B., and Bajenski replied that he was not, but he was interested in sexual intercourse. Defendant then stated that sexual intercourse would cost $50, and Bajenski agreed and asked if defendant had somewhere they could go. Defendant stated that he did not have a place and asked Bajenski if he had any place they could go. Bajenski said that he had a car. Defendant then told Bajenski to get his car and meet the two of them at a tavern located at Belle Plaine and Broadway.

Bajenski walked to Irving Park and waited for his partner, Officer Bunge, to drive by. When Bajenski saw Bunge, he informed him of the deal he had with defendant and instructed Bunge to walk to Belle Plaine and Broadway. Meanwhile, Bajenski drove to the tavern.

When Bajenski arrived at the tavern, he saw defendant and L.B. at a nearby apartment building sitting on a porch. Bajenski parked and got out as defendant approached and asked him if he had the money. Bajenski said that he did, and when he reached into his pocket, defendant told him to “hold it, don’t do anything here.” L.B. then approached Bajenski and defendant and asked what was going on. Bajenski told her that he gave defendant $50 to have intercourse with her. L.B. responded approvingly and returned to her seat on the porch. Defendant asked Bajenski to walk to the tavern so that they could “discuss it in there.” Once inside the tavern, defendant told Bajenski that L.B. did not want to have intercourse in the car because she lived in the area and was afraid someone would see her. When Bajenski replied that he could take her to a motel, defendant agreed and then asked for $50. Bajenski paid defendant $50; then defendant told him “okay she is ready to go.” Bajenski testified that L.B. did not enter the tavern, and that defendant told him that she could not enter the tavern because she was only 15 years old.

When Bajenski exited the tavern, he went to his partner and told him that he had paid defendant $50 to have sexual intercourse with L.B., and instructed Bunge to arrest defendant when he exited the tavern. Bajenski then went over to L.B. and after he told her that he paid defendant and they were going to a motel, L.B. said “fine.” As Bajenski and L.B. walked to the car, Bunge yelled that defendant was running north on Broadway. Bajenski got into his car to pursue defendant, but Bunge caught defendant and arrested him.

Officer Bunge testified that he was in a vehicle when Bajenski approached him and informed him of his arrangement with defendant. He then proceeded by foot northbound on Broadway to Belle Plaine, stopped at a grocery store and observed Bajenski on the opposite side of the street talking with defendant and L.B. After a few minutes Bunge saw Bajenski and defendant go into a tavern, and he walked across the street and stood in front of the tavern. Bajenski then exited the tavern and told Bunge to arrest defendant when he left the tavern. When Bunge saw defendant, he identified himself as a police officer and defendant began running. Bunge pursued defendant on foot for several minutes before he was apprehended. Bunge recovered $50 from defendant’s pants pocket.

The trial court found defendant guilty of pandering and juvenile pimping. The trial court sustained defendant’s post-trial motion for a judgment of acquittal for the charge of juvenile pimping, and denied defendant’s motion for a new trial or alternatively for a judgment of acquittal and motion in arrest of judgment as to the pandering charge. Defendant was sentenced to 24 months’ probation.

On appeal defendant contends that (1) he was denied due process because the prosecution did not present any evidence of any element of the crime of pandering; and (2) he was convicted of soliciting, a crime not included in the indictment.

Sections 11 — 15(a)(1), (a)(2), and (a)(3) of the Criminal Code of 1961 state:

“(a) Any person who performs any of the following acts commits soliciting for a prostitute:
(1) Solicits another for the purpose of prostitution; or
(2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; or
(3) Directs another to a place knowing such direction is for the purpose of prostitution.” Ill. Rev. Stat. 1987, ch. 38, pars. 11 — 15(a)(1), (a)(2), (a)(3).

Section 11 — 16(a)(2) of the Criminal Code of 1961 defines pandering as:

“(a) Any person who performs any of the following acts for money commits pandering:
* * *
(2) Arranges or offers to arrange a situation in which a person may practice prostitution.” Ill. Rev. Stat. 1987, ch. 38, par. 11 — 16(a)(2).

The intent of the legislature is clear in making a distinction between solicitation and pandering. The committee comments to section 11 — 15 of the Criminal Code of 1961 define a “solicitor” as “[0]ne who actively seeks out customers for the prostitute, those who initiate the suggestion to the prospective patron ***. *** [Financial benefit to the solicitor is not an element of the offense. *** [T]he presence of such a financial return is insignificant to the aims of this section.” (Ill. Ann. Stat., ch. 38, par. 11 — 15, Committee Comments, at 341-42 (Smith-Hurd 1979).) The comments on pandering note that the term is used “to denominate the activities of one who recruits prostitutes” into the practice of prostitution and of one who keeps practicing prostitutes in that line of endeavor. This classification “makes a distinction between the ‘recruiter-business manager’ and the runner or contract man” dealt with under section 11 — 15. Ill. Ann. Stat., ch. 38, par. 11 — 16, Committee Comments, at 345 (SmithHurd 1979).

The committee comment which follows section 11 — 16(a)(2) further states that “[s]ection 11 — 16(a)(2) requires only that the accused arrange or offer to arrange for another to become a prostitute. *** It may appear overly stringent now to make a mere verbal solicitation a felony — particularly in view of the [historical] concern of the statute [citation] for the heinousness of the technique used to place the female in the trade. However, once the historical reasons for this concern are dispensed with, the question resolves into one of whether pandering *** should focus on the solicitation or the success of solicitation. Since it is the recruiting and management activity *** which is the evil, the section is aimed at this activity.” (Emphasis in original.) Ill. Ann. Stat., ch. 38, par. 11 — 15, Committee Comments, at 346 (SmithHurd 1979).

It may be true, as defendant suggests, that his conduct should be classified as soliciting, but that does not preclude a violation of the pandering statute. The committee comments clearly indicate that soliciting and pandering are separate crimes which are not mutually exclusive. Pandering arises from relationships and actions between the panderer and prostitute in terms of recruitment or arranging a situation in which a woman practices prostitution. (People v. Sangster (1970), 128 Ill. App. 2d 305, 261 N.E.2d 738.) The Sangster court found that a business arrangement, a claim of right or interest in the cash flow indicating that defendant was a business manager for the prostitute and defendant’s activities as the spokesperson for the prostitute were sufficient to prove that defendant was engaged in pandering.

In People v. Madison (1981), 93 Ill. App. 3d 922, 418 N.E.2d 193, the court found that evidence which showed that defendant (1) was in charge of an escort service that matched women with male customers, (2) handled the money charged for the service, (3) made arrangements with men who sought the service, and (4) introduced women who provided the service to male customers, clearly established the type of managerial activities which constituted the essential elements of the crime of pandering. The Madison court held that defendant’s words and actions left no reasonable doubt that defendant arranged a situation in which women might practice prostitution. The court found that defendant had made the arrangements and it was this type of management activity which was prohibited by section 11 — 16(a)(2) of the Criminal Code of 1961.

In the present case, the record reveals that defendant was the spokesperson for L.B., he initiated contact with Bajenski and introduced him to L.B., he determined the price for L.B.’s services and received the money from Bajenski for these services, he negotiated with Bajenski and made arrangements concerning the time, place and manner in which the service was to be performed, and L.B. affirmatively acknowledged defendant’s decisions.

Based on the facts of this case, it was proper for the trial court to find that defendant’s words and actions left no reasonable doubt but that he arranged a situation in which L.B. might practice prostitution. Defendant made arrangements with Bajenski to this end. This is precisely the type of management activity which section 11 — 16(a)(2) of the Criminal Code of 1961 prohibits.

The judgment of the circuit court is affirmed. As part of our judgment, we grant the State’s request and assess defendant $50 as costs for this appeal. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE CERDA JUSTICE WHITE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY LAMERSON, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0668
    Opinion filed October 18, 1989.

      WHITE, J., dissenting.
    Martin Carlson, of State Appellate Defender’s Office, and Coffient, Ungaretti, Harris & Slavin, both of Chicago (J. Timothy Eaton, Daniel P. Albers, and Robert A. Chapman, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Linda Halpern, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Larry Lamerson, was tried by a jury and convicted of murder for which he was sentenced to an extended term of 60 years’ imprisonment. Defendant argues on appeal that: (1) his trial counsel was ineffective for not raising an insanity defense due to her misapprehension of the law that the defense could not be raised because defendant had not admitted the crime; (2) the trial court improperly admitted defendant’s involuntary confession; (3) testimony that defendant stated before the crime that he was “going to have to hurt someone” was improperly admitted; and (4) at sentencing, the trial court failed to consider in mitigation defendant’s mental illness.

A psychiatrist reported in a letter to the court on February 5, 1985, that defendant was fit for trial. The same psychiatrist later reported that at the time of the offense defendant was legally sane. Another psychiatrist’s letter of July 9, 1985, also concluded that defendant was fit for trial.

At the hearing on defendant’s motions to quash arrest and to suppress, Chicago police officer Sydney L. Hill testified that at about 4:40 a.m. on July 4, 1984, he responded to a radio broadcast of a battery on east 38th Street in Chicago. Defendant met Hill there and told him he wanted to show Hill how he had found his stepdaughter. After entering an apartment, Hill observed a young woman with multiple head and neck wounds lying on a blood-splattered couch. Defendant’s T-shirt had bloodstains in a spray pattern similar to the pattern on the wall behind the couch.

Chicago police officer Robert Utter testified that at the police station defendant was advised of his rights orally and in writing. He responded that he understood his rights, did not appear to have difficulty in understanding his rights, and was responsive to questioning. Chicago police officer Martin Anderson also testified that there was no time at which defendant did not appear to understand his rights.

Dr. Alan K. Rosenwald, a psychologist, was found by the trial court to be a qualified expert in his field. He interviewed and tested defendant on March 2 and 9, 1986, for about two to three hours on each date. Defendant was given an intelligence test, five personality tests including an ink blot test and a picture test, and tests from a mental examiner’s handbook to explore his capacity to think conceptually.

The psychologist asked defendant what he would do if he was the first person at the movies to see smoke and fire. His answer was, “[Y]ou’d sound the fire alarm and you’d assist people in getting out.” It was deemed ambiguous, and upon further questioning, defendant ultimately said that the best action to take was to yell fire, which was not a correct response. Defendant made several statements that appeared to be plausible but, on further examination, turned out to be implausible. When asked in what way a coat and suit were related, defendant’s unacceptable response that part of a suit is a coat and a jacket did not compare the two items. Defendant had great difficulty in inferring relationships between objects that were intrinsically related.

Defendant stated that there were 51 weeks in a year and that William Faulkner wrote Hamlet. The psychologist was unaware of a work by Faulkner entitled The Hamlet but stated that no one had given this answer in the thousands of the tests he had administered. But he would not base his diagnosis on one wrong answer to the Hamlet question. On the other hand, defendant stated correctly that Martin Luther King was a Nobel Peace Prize winner and a civil rights activist. Defendant, who had had two years of college, had learned a number of items of information but did not apply them correctly. There was also an inconsistency in his acquisition of knowledge. The court indicated that it might have answered correctly only one of the three questions.

Defendant had written a confused and illogical 20-page account describing the events leading to his arrest. Defendant struggled to have a good grasp of English but misused words frequently and the meaning he intended would become obscure. However, the psychologist did not have difficulty understanding defendant.

Dr. Rosenwald’s opinion was that defendant had chronic schizophrenia for some years, including at the time of the crime, and that defendant was insane at the time of the examination. The mental disease of schizophrenia is characterized primarily by a disturbance in one’s ability to think conceptually. There are frequent disturbances in logic, and the person draws incorrect conclusions on the basis of putting the wrong things together in terms of seeing relationships where none presumably exist. Often schizophrenia is characterized by delusions and hallucinations. The psychologist was not sure whether defendant was suffering from hallucinations but thought that he probably was suffering from delusions and misinterpretation of events. Defendant demonstrated clinical disturbance in thinking and unusual symbolism, which are illustrative of schizophrenia. Prognosis for defendant’s recovery was poor.

Defendant was of low-average intelligence but did not function at that level because of severe intrusion into his capacity to think clearly. Defendant could understand the words of the Miranda rights, but he could not understand the implication of the rights. The fact that defendant had completed some college would not affect the psychologist’s opinion as to his ability to understand Miranda warnings because he could be sufficiently psychotic to misinterpret the intent of the warnings or misunderstand the symbolism of the particular words.

Defendant’s attorney argued during the motion to suppress that she did not know what tests the two court-appointed psychiatrists had given defendant, nor did she know the basis of their conclusions that defendant was malingering.

The trial court denied the motions to quash arrest and to suppress. The trial court stated that it could not come to the same conclusion that the psychologist did. The trial court indicated that the answers to the questions about the fire and the suit were logical, that it appeared that defendant had answered only one out of three questions incorrectly, and that defendant was only wrong by one week in responding to the question of how many weeks were in the year. The trial court also indicated that defendant understood what was “going on,” and was very intelligent and articulate. The trial court indicated that it was not convinced of defendant’s insanity merely because defendant may have given an unpopular answer. The trial court found that defendant had understood his Miranda warnings and that the statement had been given voluntarily.

Defendant moved to suppress testimony by Lester Johnson that within an hour prior to the alleged murder defendant stated “I am going to jump on somebody.” The State argued that the statement of future intent was a hearsay exception, and the trial court denied the motion.

Ida Mae Anderson testified at trial for the State that on July 4, 1984, she lived with her daughters and defendant. The victim, her daughter Lillie Boyd, was 16 years old. Defendant was the father of one of her children.

Marian Rogers testified for the State that about 4:30 a.m. on July 4, 1984, defendant came to her home and told her that he had gone to buy cigarettes and that when he returned he found the victim “like this.” Two to three minutes later defendant returned and said that the victim was bleeding. He returned a third time and said that she had been “hammered” and he did not think she was going to “make it.”

Lester Johnson testified for the State that about 3 a.m. on July 4, 1984, defendant walked up to him outside and said that he was going to have to hurt someone.

Chicago police officer Robert Utter testified that defendant stated that he had left the apartment several times and when he returned the last time he found the door ajar. Defendant further stated that he went upstairs to the kitchen, then went to the living room, saw Lillie on the couch, and informed one of the neighbors. But he had to pass through the living room within three to five feet of the couch in order to get to the kitchen. His explanation for the blood on his shirt was that he had gotten near the couch or the body.

In a subsequent conversation, Utter told defendant that he did not believe him. Defendant then said that he had returned home angry at the victim’s mother for being out. He had taken a hammer from the kitchen, gone to the living room, and looked at Lillie sleeping on the couch. He had retrieved a knife from the kitchen, smashed her in the face with the hammer, hit her several times, and slashed her throat and head with the knife. He had then washed the knife and his hands, and gone to notify people that Lillie had been “hammered.” He wanted to make it appear as if someone else had killed her.

Assistant State’s Attorney Edward Snow testified for the State that defendant had stated that when he returned to his apartment he was thinking about relieving himself from agony and pain. In response to a question how he was going to do that, he said “[spontaneous thoughts, and Lillie was the only thing I guess that I could release that frustration out on.” When he saw Lillie lying on the couch, he got his hammer and stood over Lillie with the hammer, but “I knew what I got my hammer for, I guess I was kind of frightened but my intentions was [sic] to get out that frustration, I guess, just to hit her, to hit her.” He went back to the kitchen and got a knife. He stood over Lillie again, and after a minute, he felt “that frustration coming on again” and “just raised the hammer” and struck her. He first hit her in the mouth and “wanted to *** make sure that she was unconscious” when he hit her the first time. After he hit her the first time, he saw that she was not unconscious. He did not want to “really inflict any unnecessary pain so *** [he] was able to see that a second and possibly third blow was necessary to get her unconscious.” He struck her three or four times until she looked unconscious. He then slashed her three times across the neck with the knife.

Defendant further stated that he then returned to the kitchen, where he washed the knife and left it in the sink. He ran downstairs to a neighbor’s house and said that it appeared that Lillie had been attacked by somebody because he did not want to be accused. He tried to clean up any incriminating evidence by washing the knife and by running over to the neighbors two times.

Defendant testified on his own behalf that he did not tell Johnson that he was going to hurt somebody that night. He tried to help his daughter and talked to a neighbor to have her call for help. In response to a question why the police claimed he made a statement that he beat Lillie, defendant stated that he was not in the right “frame of mind” at the time because he thought the child was dying, that his concern was to return to his family, and that the police took advantage of his “frame of mind.” He denied telling the police that when he entered the apartment he went into the kitchen to get some coffee and then later saw Lillie in the living room. When asked whether he washed the knife and placed it in the sink, defendant said that that was a fabrication. He said anything he thought would be believed to get away from the police.

Defendant was found guilty of murder, and his motion for a new trial was denied. At the sentencing hearing, the trial court considered Anderson’s victim impact statement and defendant’s stepsister, Avis Downs, testified on his behalf. Defense counsel stated that reexamination of defendant for purposes of sentencing was unnecessary and:

“The defense of insanity was not asserted at trial, due to the fact that Mr. Lamerson has indicated he was not present at the time of the actual killing and he never said he did it, to his lawyers, at any rate. So we couldn’t in fact really put a defense on during the course of the trial, Judge.”

The trial court considered in mitigation that this was defendant’s first offense. But the trial court found the conduct to be exceptionally heinous and brutal and found that the public needed to be protected from defendant. An extended-term sentence of 60 years’ imprisonment was imposed.

Defendant first argues that his trial counsel was ineffective for not raising an insanity defense due to her misapprehension of the law that the defense could not be raised because defendant had not admitted the crime. Defendant cites as controlling People v. Rainey (1986), 149 Ill. App. 3d 327, 500 N.E.2d 602, in which defense counsel was ineffective for not raising the defense of mental illness at trial. In Rainey, there was a clear statement by defense counsel that he believed that it was not possible to raise the defense at trial when defendant denied committing the offense. In addition, the record of ineffectiveness of counsel was clear in People v. Fernandez (1987), 162 Ill. App. 3d 981, 516 N.E.2d 366, because the attorney admitted that it had been her misunderstanding of the law rather than a tactical consideration that prompted her not to file a motion to suppress until the trial had begun.

Defendant must prove that his attorney’s representation fell below an objective standard of reasonableness. (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246.) But trial strategy is not reviewable in considering a claim of ineffectiveness of counsel. (People v. Rockman (1986), 144 Ill. App. 3d 801, 812, 494 N.E.2d 688.) It is not clear whether defense counsel misapprehended the law or felt that practically, as a matter of trial strategy, it was not advisable to present evidence of insanity and to deny commission of the offense. Defense counsel also could have believed that a jury would also reject the psychologist’s testimony that defendant was insane. But, while in hindsight the reviewing court might have acted differently in presenting the defense, such decisions were matters of judgment and do not demonstrate incompetency of counsel. (People v. Johnson (1978), 63 Ill. App. 3d 745, 750, 380 N.E.2d 531.) Even assuming arguendo that defense counsel misapprehended the law and therefore provided ineffective assistance of counsel, there was no reasonable probability that but for her error the result would have been different.

Ineffective assistance of counsel must result in prejudice to the defendant. The defendant must establish that there is a reasonable probability that the outcome of the trial would have been different. (People v. Weir (1986), 111 Ill. 2d 334, 338, 490 N.E.2d 1.) In contrast, the trial court in Rainey stated that had the evidence been placed before it, it would have found defendant guilty but mentally ill instead of guilty.

Defendant next argues that the trial court improperly denied his motion to suppress and admitted defendant’s confession. Defendant argues that the trial court erred in disregarding the psychologist’s conclusions based on its own brief observations of defendant and on its disparagement of the psychologist’s characterization of certain of defendant’s answers to psychological tests as incorrect. Defendant also argues that the trial court did not rely upon any lay testimony and did not question the psychologist’s credibility or the factual bases for his opinion.

An involuntary statement is inadmissible. (People v. Madden (1986), 148 Ill. App. 3d 988, 996, 501 N.E.2d 1297.) A confession of an insane person must be suppressed because he could not know of his constitutional rights. (People v. Lambersky (1951), 410 Ill. 451, 455, 102 N.E.2d 326.) An insane person cannot commit the intentional act of waiving the right against self-incrimination. (People v. Shroyer (1929), 336 Ill. 324, 326, 168 N.E. 336; see also People v. Nau (1988), 167 Ill. App. 3d 338, 521 N.E.2d 177 (defendant’s inculpatory statement suppressed because insane when waived rights).) To determine whether a waiver was knowing and voluntary, the characteristics of defendant which bear upon his ability to make knowledgeable and independent decisions must be considered. (Nau, 167 Ill. App. 3d at 346.) It is the State’s burden to show that a statement was knowingly and voluntarily made. (Madden, 148 Ill. App. 3d at 996.) The trial court’s finding on the issue of voluntariness is not to be disturbed unless it is contrary to the manifest weight of the evidence. Madden, 148 Ill. App. 3d at 996.

The trial court is not obliged to accept the opinion of psychiatrists. (People v. Williams (1980), 87 Ill. App. 3d 860, 864, 409 N.E.2d 439.) The credibility and weight to be given psychiatric testimony is for the trier of fact. (Williams, 87 Ill. App. 3d at 864.) The factual bases for the experts’ opinions are to be analyzed and evaluated. (Williams, 87 Ill. App. 3d at 864.) The fact finder may reject all expert testimony and rely on lay testimony in concluding that defendant was sane, or the fact finder may accept part of each expert’s testimony and reject other parts of the testimony. People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1096, 509 N.E.2d 1361.

In Williams, it was held that the trial court could not reject the uncontradicted conclusions of psychiatrists that defendant was unfit solely on the basis of the trial court’s brief and casual exposure to defendant or from the court’s “common sense” interpretation of the psychiatric opinions. Similarly, in People v. Garcia (1987), 156 Ill. App. 3d 417, 509 N.E.2d 600, the trial court’s rejection of the insanity defense was not upheld where both psychiatrists had testified that defendant was insane and where the trial court had not questioned the experts’ credibility. The court merely drew different conclusions than did the psychiatrists. See also People v. Arndt (1980), 86 Ill. App. 3d 744, 749, 408 N.E.2d 757.

Here there was testimony of two police officers that defendant appeared to understand his rights. The trial court did not explicitly state that it was rejecting the expert testimony in favor of the lay testimony that defendant understood his rights at the time of his confession, but the trial court was bound to consider all the evidence, and its comments indicate that it did not find the psychologist’s testimony credible. In addition we do not know what weight the court gave to the psychiatric reports it had received. Therefore, the trial court properly denied defendant’s motion to suppress.

Defendant next argues that the trial court erred in admitting the testimony that defendant had said he was going to have to hurt someone. Defendant argues that the general statement was inadmissible because it was not linked to the victim. Threats against the victim are admissible to show malice and criminal intent if linked to the victim. (People v. Watkins (1975), 34 Ill. App. 3d 369, 374, 340 N.E.2d 92.) The language used must be broad enough to include the victim within its terms. (People v. Scott (1918), 284 Ill. 465, 474, 120 N.E. 553.) A threat not directed to any particular person is not admissible to show malice towards the deceased. Scott, 284 Ill. at 474.

Lester Johnson testified during direct examination that the defendant stated to him that he was going to have to hurt someone. Defendant’s objection was overruled. The State thereby was given an opportunity by the court to connect the threat with the victim by any additional testimony of Lester Johnson or any other State witness. Neither before nor after the State rested did the defendant renew his motion by moving to strike the testimony or asking that the jury be instructed to disregard it. He may not raise this issue on appeal. People v. Jayne (1977), 52 Ill. App. 3d 990, 1008, 368 N.E.2d 422; Isenhart v. Seibert (1955), 6 Ill. App. 2d 220, 127 N.E.2d 469.

Defendant next argues that the extended-term sentence of 60 years’ imprisonment was improper and excessive because the trial court improperly weighed defendant’s mental status and capacity. Defendant argues that the trial court’s conclusions that he was intelligent, well-spoken, appeared to have good reasoning abilities, and communicated -with people were contrary to the manifest weight of the evidence. Defendant points to his confession as bizarre, inconsistent, and revealing his low intelligence and inability to communicate. However, even if the trial court erred in making these conclusions, defendant’s intelligence and communication skills are irrelevant to the length of his sentence.

Defendant also argues that the trial court imposed punishment based on a misperception that he committed a willful act and that he demonstrated no remorse when the manifest weight of the evidence showed defendant’s actions resulted from a mental illness “beyond his control.” We have already determined that the trial court did not err in rejecting defendant’s claim of insanity.

The judgment of the circuit court is affirmed.

Affirmed.

RIZZI, J., concurs.

JUSTICE WHITE,

dissenting:

I would reverse defendant’s conviction because he was denied the effective assistance of counsel due to counsel’s failure to raise insanity as a defense.

Everything about this case raises serious doubts about defendant’s sanity: the senseless, brutal way he bashed and slashed his stepdaughter, Lillie, to death; defendant’s explanation of the crime given in his confession that he was thinking about relieving himself from “agony, pain” and was having “spontaneous thoughts, and Lillie was the only thing I guess I could release that frustration out on”; the statement defendant gave when, splattered with blood, he was taken by police from the body of his stepdaughter and complained that he did not want to leave his other three children alone; and the expert testimony of Alan K. Rosenwald that defendant was insane and had been so for some years. Yet, defense counsel did not raise insanity as a defense and gave this as the reason:

“The defense of insanity was not asserted at trial, due to the fact that Mr. Lamerson has indicated he was not present at the time of the actual killing, and he never said he did it, to his lawyers, at any rate. So we couldn’t in fact, really put that defense in during the course of the trial, Judge.”

Defense counsel was simply mistaken as to the law. As explained in People v. Ford (1968), 39 Ill. 2d 318, 321, 235 N.E.2d 576, 578, “[t]here is no reason why defendant may not deny commission of the crime and also raise the affirmative defense of insanity.” Trial lawyer’s similar mistake regarding the law was called egregious error in People v. Rainey (1986), 149 Ill. App. 3d 327, 500 N.E.2d 602; it was equally egregious here, and the failure to assert the defense of insanity left defendant virtually with no defense.

The majority’s attempt to distinguish Rainey is ineffective. The majority states:

“In Rainey, there was a clear statement by defense counsel that he believed that it was not possible to raise the defense at trial when defendant denied committing the offense.” (190 Ill. App. 3d at 59.)

The majority ignores the fact that in the case at bar defense counsel made it equally clear that she believed she could not raise the defense of insanity because defendant claimed that he was not present at the time the murder was committed.

The majority concludes that “there was no reasonable probability that but for her [the trial attorney’s] error the result would have been different.” (190 Ill. App. 3d at 59.) I disagree and therefore I dissent.