author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY J. LEE, Defendant-Appellant.
    Third District
    No. 3—91—0789
    Opinion filed April 22, 1993.

      Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Following a jury trial, the defendant, Terry J. Lee, was convicted of attempted murder, armed violence, and unlawful use of weapons (720 ILCS 5/8 — 4(a), 9-1, 33A-2, 24-l(a)(7) (West 1992)). He was subsequently sentenced to concurrent terms of 23 years for attempted murder, 23 years for armed violence, and 4 years for unlawful use of weapons. The defendant appeals, and we affirm.

The following evidence relevant to the issue raised by the defendant was adduced at trial. Dwayne Matchem testified that early in the morning of May 2, 1991, he drove the defendant, the defendant’s brother, and a third man to Anthony Powell’s home. With a stick in hand, the defendant went inside and was thrown out. The defendant then returned to the car, took a sawed-off shotgun from under a blanket, went back toward the house, and yelled “Anky,” which was Powell’s nickname. Matchem then heard a shot. The defendant returned to the car and Matchem drove away.

Teresa Jape, who lived with Powell and was the mother of their child, testified that Powell answered a knock on the door. She then heard noise. After someone left and came back, it sounded like a rocket hit the house. She later observed that the living room door and storm door had been shot.

The State called Anthony Powell as a witness. Outside the presence of the jury he told the court that he did not want to testify. At the prosecution’s request, he was declared a hostile witness. Before the jury, Powell testified to his name and said he had no nicknames that he could remember. He stated that on the night in question, he was at home with Teresa Jape and their baby. He recalled getting ready to retire for the evening. He said he could not recall a knock on the door or his asking who was there. He then said he did not go to the door. Powell also said he did not recall seeing anyone with a stick in his hand. Powell then stated that he did not want to testify and would not answer a series of questions posed by the prosecutor.

Galesburg police officer David Clague testified concerning a written statement he took from the defendant on the afternoon following the instant offense. The defendant told Clague that he had given Powell $100 for the purchase of stereo speakers, but Powell never gave him the speakers. The defendant told his friend, Dwayne Walker, of how Powell had cheated him. He also told Walker that he was hoping to scare Powell into returning the money. Walker and the defendant then picked up a sawed-off shotgun from an unknown black male and drove to Powell’s residence.

The defendant further said that he approached the front door carrying a stick. He knocked, identified himself as “T,” and asked to speak with “Anky.” Powell opened the door and invited him in. After a brief discussion, the defendant dropped the stick and entered the house. Once he stepped inside, Powell grabbed his arm. The defendant felt something brush against his leg and saw that it was wrapped in a blanket or towel. He believed it may have been a gun. He then jerked away from Powell’s grasp, which caused him to fall on his back outside the door. He then got up, ran back to the car, grabbed the shotgun, and walked back to the house. He said he saw Powell standing with the door opened. As the defendant began to squat down on his knees, Powell started to shut the door. The defendant then fired the shotgun at the door. After firing one shot, the defendant ran back to the car, got in, and returned to the Walker residence, where he picked up his brother and another friend.

Clague testified that he again interviewed the defendant on the following day. After being informed that no one believed his story about the stereo speakers, the defendant immediately stated that Powell had been selling him crack cocaine for about three weeks prior to the incident. He said that on the night in question Powell had told him that if he wanted to make some money, Powell knew of a white man that was willing to buy five rocks of cocaine for $100. The defendant then accompanied Powell to an unknown residence. Powell exited the car with the cocaine and failed to return after about 10 or 15 minutes. The defendant told Clague that the rest of his story concerning the shooting was the truth.

Clague further testified that as a result of the search of Powell’s residence, he found only a long stick behind the front door.

Powell was again recalled by the prosecution. Outside the presence of the jury, he again refused to answer questions. He gave no reasons for refusing to answer. Even after the court informed him that he could be held in contempt, Powell refused to answer a series of questions put to him by the prosecutor. The court then inquired of Powell whether there was a reason he refused to testify. Powell responded that there was, but that he would not give it. Powell said that he would tell the judge alone. The judge responded that Powell must state his reasons on the record. Powell refused to do so. Thereafter, the judge found Powell in contempt of court and set sentencing for a later time.

Powell’s written statement was admitted into evidence over the defendant’s objection. In relevant part, Powell’s statement indicated that he was at his girlfriend’s home, almost asleep, when a man known to him as “Lazy T” came to the door with a stick, asking where Powell’s friend was. When Powell went to the door and told him that he had nothing to do with his, “[Lazy T’s] business,” “Lazy T” raised his stick. Powell then reached for a walking stick he kept behind the door. “Lazy T” ran to the car, returned about five minutes later, knocked on the door, and said he wanted his money. Powell told him that he had nothing to do with it. “Lazy T” then “took off running and fell to his knees and up come this gun and I closed the door and pow, he let it go. He shot it once.” According to Powell’s statement, “Lazy T” then ran back to the car and took off.

The defendant testified on his own behalf. His testimony was very similar to the first statement he gave Officer Clague. However, at trial the defendant stated that Powell had held what the defendant had thought was a shotgun wrapped in a blanket against his side. The defendant also testified that he got the shotgun because he was angry and only wanted to scare Powell. According to the defendant, as he ran towards Powell’s house with the shotgun, Powell tried to slam the door but it came open. The defendant slipped on the grass, fell to his knees with his finger on the trigger, and the gun fired. The defendant denied telling Clague about the sale of rock cocaine.

On appeal, the defendant argues that the trial court committed reversible error in permitting the substantive use of Powell’s prior statement pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (725ILCS 5/115-10.1 (West 1992)).

Section 115 — 10.1 permits the use of a prior inconsistent statement as substantive evidence if the prior statement is inconsistent with the witness’ testimony at trial, the witness is subject to cross-examination concerning the statement, and the statement is proved to have been signed by the witness. The defendant argues that Powell’s refusal to testify was not inconsistent with his prior statement and that his refusal to testify was “virtually an assertion of his fifth amendment privilege.”

It is well settled that a determination of whether a witness’ prior testimony is inconsistent with his present testimony is left to the sound discretion of the trial court. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) Furthermore, the definition of inconsistency does not require a direct contradiction, but only a tendency to contradict the witness’ present testimony. People v. Hastings (1987), 161 Ill. App. 3d 714, 515 N.E.2d 260.

Here, Powell did not refuse to answer all the questions the prosecutor asked him. Rather, he gave his name, his girlfriend’s name, his address, and testified that he was living with his girlfriend and their baby at that address on the night in question. He also said that he was getting ready to go to bed in the early morning hours of May 2, 1991. However, he further testified that he did not recall hearing a knock on his door and did not recall going to the door and asking who was there. He then testified that he did not go to the door. We find that this testimony was directly contradictory to his previous written statement that there was a knock on the door, that he answered the door, and that the defendant was at the door and subsequently shot a gun. Accordingly, the trial judge did not abuse his discretion in determining that Powell’s prior written statement was inconsistent with his testimony at trial and his professed memory loss. The court therefore properly admitted the entire statement. See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481 (wherein the court held that the trial judge’s decision that a witness’ professed memory loss was inconsistent with his previous statement was found not to be an abuse of discretion).

We also find unconvincing the defendant’s argument that Powell’s alleged memory loss and refusal to answer questions were essentially an assertion of his fifth amendment privilege.

Initially, we note that this case is distinguishable from People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316, which is relied on by the defendant. In Redd, a witness testified only to his name and thereafter explicitly refused to answer any other questions on fifth amendment grounds. Such was not the case here, where Powell never mentioned the fifth amendment and never suggested that any answers to the questions asked would somehow incriminate him.

The defendant also argues that Powell’s answers could have possibly incriminated him by showing that Powell had stolen money from the defendant, or that he had taken cocaine from the defendant without paying for it, or that Powell may have had a gun at the time he threw the defendant out of his house. The problem with the defendant’s argument is that the alleged criminal conduct on Powell’s part is based on the defendant’s statements, not Powell’s.

In his statement to police, Powell made no self-incriminating statements. Furthermore, after hearing the questions the prosecution posed to Powell, the trial judge determined that none of the questions which Powell refused to answer tended to incriminate him. We note that none of the questions dealt with the alleged failure to deliver a stereo, with the alleged possession of cocaine without paying the defendant, or with the alleged possession of a gun at the time that Powell threw the defendant out of his house. We therefore agree with the trial judge’s assessment and decline to assume that Powell’s claimed memory loss and refusal to answer amounted to his claiming a fifth amendment privilege.

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

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    BARBARA A. McGAUGHY, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Third District
    No. 3—92—0571
    Opinion filed April 23, 1993.
    Shawn M. Collins, of Chicago, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and John P. Schmidt, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Barbara McGaughy, filed racial discrimination charges with the Department of Human Rights (the Department). Those charges were dismissed after an investigation determined that there was a lack of substantial evidence supporting the charges. The petitioner requested review by the Human Rights Commission (the Commission), which affirmed the dismissal. The petitioner filed a petition for rehearing before the entire Commission. Following a denial of that petition, the petitioner sought review of the Commission’s order pursuant to section 8 — 111 of the Illinois Human Rights Act (the Act) (775 ILCS 5/8 — Ill (West 1992)). On appeal, the petitioner argues that the decision of the Commission is legally erroneous and against the manifest weight of the evidence in that the Illinois State Police disciplined her more harshly than a similarly situated white male and that the State Police premised their discipline of her upon past criminal conduct which was isolated, remote in time, and unrelated to her present or future ability to perform her duties. The respondents, the Commission and the Illinois State Police, challenge this court’s subject-matter jurisdiction, citing the petitioner’s failure to name the Department as a respondent within 35 days of the Commission’s final order.

The petitioner filed an employment discrimination claim with the Department on October 5, 1988. The petitioner alleged racial discrimination on the part of the State Police. The State Police hired the petitioner as a temporary data input operator in March 1986. She was scheduled to begin on a permanent basis on August 8, 1988. The petitioner stated that the reason given for her discharge was that she had falsified information in her employment application. The petitioner believed that she had been discriminated against because of her race for the following reasons: (1) white female employees who were also hired as data input operators were given supervisory positions over the black female employees and black employees were sometimes discharged to keep white employees in their positions; (2) the State Police did a background check of the petitioner in 1986 and found no criminal history, but then did a more thorough background check after a white employee asked the petitioner if she was related to someone who had been arrested on drug charges; (3) the background check turned up a municipal charge of battery in the City of Joliet in 1982 that, to the best of the petitioner’s knowledge, did not result in a conviction for a felony or a misdemeanor; and (4) that any employment policy based on arrest records would have a disparate impact upon minorities because minorities are arrested at a higher rate than non-minorities.

The Department investigated the petitioner’s claims and found a lack of substantial evidence to support the charges of discharge based on race and failure to hire based on race. The Department’s investigation confirmed the petitioner’s statement that she had been scheduled to begin work as a permanent employee on August 8, 1988, but was discharged when a subsequent background check revealed that the petitioner had been charged with municipal battery in Joliet in 1982. A previous background check of the petitioner revealed no convictions. On the petitioner’s employment application, she marked “no” to the question “Have you ever been convicted for other than minor traffic violations?” The State Police have a written policy of not hiring anyone who is convicted of, or pleads guilty to, a felony or a Class A or B misdemeanor. The petitioner claimed that she was not aware that her fine for a municipal ordinance violation constituted a “conviction.” The State Police stated that her discharge was based on the false information on her employment application and her conviction of battery in 1982.

The petitioner provided the Department with the name of a white male co-worker, Ronald Babecki, whom the petitioner claimed was convicted of DUI and was still hired. The petitioner alleged that Babecki also marked “no” on his employment application to the question of whether he had been convicted of other than minor traffic violations. Steve Emberton, the legal advisor for the State Police, stated that the initial background check of Babecki revealed no convictions. Emberton stated that he was not sure if a municipal background check, similar to the one conducted on the petitioner, had been conducted on Babecki at his time of hire. Emberton further stated that the State Police did not consider DUI to be a “reportable offense.”

Gary McAlvey, the chief of the State Police Bureau of Identification, stated that applicants with conviction records are not hired because the job entails securing criminal records and inputting criminal information into the computer system. McAlvey stated that the initial background check of the petitioner was an internal check and also an FBI fingerprint check. The subsequent background check included a search for municipal convictions.

The Department’s investigation report concluded with a finding that there was a lack of substantial evidence to support the charges. The Department concluded that the petitioner was discharged because she falsified her employment application. The Department did not consider the information about Babecki to be particularly relevant because the only conviction Babecki had for DUI was when he was a minor. The record reflects that the DUI charge to which the petitioner referred ended in Babecki’s being fined $500 and placed on court supervision. It is unclear from the record whether or not Babecki successfully completed his supervision. This violation occurred when Babecki was an adult.

On September 16, 1991, the petitioner filed a request to have the Commission review the Department’s dismissal of her charges against the State Police. On May 4, 1992, the Commission issued an order upholding the Department’s dismissal of the petitioner’s claims. The petitioner filed a petition for rehearing with the Commission, which was denied on June 29,1992. This appeal followed.

The respondents argue that we lack jurisdiction over this appeal because the petition for review failed to name the Department as a respondent. This argument is based on section 8 — Ill(A)(1) of the Act, which provides that petitions for review from final orders of the Commission are to be governed by Supreme Court Rule 335 (134 Ill. 2d R. 335). Rule 335(a) states in part that, in a petition for review, “[t]he agency and all other parties of record shall be named respondents.” (134 Ill. 2d R. 335(a).) Under section 8 — 103 of the Act, when the Commission reviews a Department decision to dismiss a charge, “the Department shall be the respondent.” (775 ILCS 5/8 — 103(A) (West 1992).) The respondents claim that the supreme court’s decision in Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, wherein the court stated that the language of section 3 — 107 of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107) is clear in mandating that all parties of record be named as defendants in an administrative review action, is controlling on the facts of this case. The Lockett court found that the requirement that all parties of record be named defendants is “mandatory and specific, and admits of no modification.” Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.

Recently, the Fourth District Appellate Court in Parham v. Ma-comb Unit School District No. 185 (1992), 231 Ill. App. 3d 764, 596 N.E.2d 1192, considered the question of whether the failure to name both the Commission and the Department in a petition for review deprives the appellate court of subject-matter jurisdiction. The Parham court reached the following conclusion:

“In construing provisions of Rule 335, the supreme court has determined the express incorporation of only sections 3 — 101, 3 — 108(c), 3 — 109, 3 — 110, and 3 — Ill of the Administrative Review Law [citation] excludes applicability of other provisions of that act. [Citation.] Therefore, the omission of sections 3 — 107 and 3 — 102 of the Administrative Review Law from the purview of Rule 335 precludes an application of the decisional analysis in Lockett to proceedings governed by provisions of Rule 335 on the facts of this case. Moreover, section 3 — 102 of the Administrative Review Law is specific in barring judicial review except as provided therein. Rule 335, by contrast, contains no such specific bar and this court declines to give it such a construction on the facts of this case.” Parham, 231 Ill. App. 3d at 768-69, 596 N.E.2d at 1195.

The court in that case did not have to reach the question of whether the failure to name the agency in the petition for review is a jurisdictional defect barring review because the petitioner filed an amended petition naming the Department and the Commission as respondents. On the facts of this case, we hold that the failure to name the Department as a respondent did not deprive this court of jurisdiction. Statutes giving the right to appeal are to be liberally construed, and an interpretation that will result in a forfeiture is not favored. (Moenning v. Commonwealth Edison (1985), 134 Ill. App. 3d 468, 481 N.E.2d 36.) The petitioner in this case, unlike the petitioner in Parham, named the Commission as a respondent in the petition for review; only the Department was omitted. The petition in all other respects complied with the requirements of Rule 335. Further, the Commission itself did not name the Department as a respondent in this matter. Both of the Commission’s orders named only the Illinois State Police as the respondent, even though section 8 — 103 of the Act states that the Department should be the respondent. We believe that it would be inequitable to dismiss the petitioner’s case for failure to name the Department as a respondent when the Commission itself did not name the Department as a respondent. The appeal was from an order of the Commission, named the Commission and the State Police as respondents, and complied with the requirements of Rule 335. We conclude that we have jurisdiction over this appeal.

On the merits, the petitioner argues that the decision of the Commission was legally erroneous and against the manifest weight of the evidence in that she was disciplined more harshly than a similarly situated white male and that the State Police premised her dismissal upon past criminal conduct unrelated to her present or future ability to perform her duties.

When reviewing a decision of the Human Rights Commission, a court should sustain the Commission’s findings of fact as prima facie true and correct unless they are contrary to the manifest weight of the evidence. (Freeman United Coal Mining Co. v. Human Rights Comm’n (1988), 173 Ill. App. 3d 965, 527 N.E.2d 1289.) When the Commission affirms a dismissal of the charges based on the Department’s investigative report, the standard of review is whether the dismissal was arbitrary, capricious, or an abuse of discretion. (Parham, 231 Ill. App. 3d 764, 596 N.E.2d 1192.) We have reviewed the record under this limited standard of review and have determined that the Commission’s affirmance of the Department’s decision was an abuse of discretion. Both the Department and the Commission reached erroneous conclusions on the evidence presented. Under section 7A— 102(D) of the Act (775 ILCS 5/7A-102(D) (West 1992)), the Department is required to determine if there is substantial evidence to support the charge that a civil rights violation has occurred. If the Department Director concludes there is not substantial evidence, the charges are dismissed. (775 ILCS 5/7A — 102(D)(2)(a) (West 1992).) If it is determined there is substantial evidence to support the charge, a Department employee is designated “to endeavor to eliminate the effect of the alleged civil rights violation and to prevent its repetition by means of conference and conciliation.” (775 ILCS 5/7A— 102(D)(2)(b) (West 1992).) Because there was substantial evidence to support the petitioner’s charges, those charges were erroneously dismissed and the Department should have followed the procedure set forth in section 7A — 102(D)(2)(b).

A complainant in a proceeding under the Act has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. In order to do so, the complainant must show the following: (1) she is a member of a group protected by the law; (2) she was treated in a certain manner by the employer; and (3) she was treated differently than similarly situated employees who are not members of the protected group. (Warren Achievement Center, Inc. v. Human Rights Comm’n (1991), 216 Ill. App. 3d 604, 575 N.E.2d 929.) The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the complainant’s discharge. If the employer does so, the burden shifts back to the complainant to show that the reasons offered by the employer were merely pretexts for discrimination. Freeman, 173 Ill. App. 3d 965, 527 N.E.2d 1289.

The Department, in its investigative report, apparently reached the conclusion that the petitioner failed to establish a prima facie case of discrimination. The Department did not consider Babecki and the petitioner to be similarly situated because Babecki’s only conviction for DUI occurred when he was a minor. The Department did not realize that Babecki had pled guilty to another charge of DUI when he was an adult, was fined $500 and placed on supervision. The Commission did have this information but, regardless, chose to affirm the Department’s conclusions.

We have analyzed the situation considering all of the relevant evidence in the record and have determined that the petitioner and Babecki were similarly situated. The charges against both the petitioner and Babecki were municipal charges. The petitioner was charged with battery by the City of Joliet, while Babecki was charged with DUI by the Village of Channahon. Nevertheless, Babecki’s offense was more serious because a municipal conviction of DUI constitutes a conviction of a Class A misdemeanor. (See section 11 — 501(c) of the Illinois Vehicle Code (625 ILCS 5/11 — 501(c) (West 1992)): “every person convicted of violating this Section or a similar provision of a local ordinance, shall be guilty of a Class A misdemeanor.”) The charge against the petitioner, however, was merely a charge of violating a local ordinance and did not rise to the level of a Class A misdemeanor. The distinction is important because the written policy of the State Police Bureau of Identification is to refuse to hire, or to discharge, any applicant or employee who is “convicted, pleads guilty, stipulates to the facts supporting the charge, or is found guilty of an offense, as defined in Chapter 38, Section 206 — 5, Illinois Revised Statutes.” That section defines “offenses” as felonies and Class A and B misdemeanors. (See Ill. Rev. Stat. 1991, ch. 38, par. 206 — 5.) Conspicuously absent from this definition are municipal ordinance violations. We are now faced with a white male who pled guilty to a Class A misdemeanor and was still hired, and a black female who committed no offense as defined by the State Police policy and was discharged.

The respondents’ ineffectual reply to this anomaly is that the petitioner committed a “reportable offense,” while Babecki committed a “non-reportable offense.” They rely on the same statute for this argument as was previously referred to for the definition of “offense.” Section 5(a) of the Criminal Identification Act (Ill. Rev. Stat. 1991, ch. 38, par. 206 — 5) provides that all policing bodies of the State must furnish the State Police with information of persons arrested for various offenses. An exception is made for most moving or nonmoving violations of the Illinois Vehicle Code. Therefore, under this section, Babecki indeed did not commit a reportable offense. More importantly, neither did the petitioner. As previously mentioned, the reportable offenses are felonies and Class A or B misdemeanors. The respondents conclude that the petitioner committed a reportable offense because battery is a Class A misdemeanor. This would be true if the charge were a State charge of battery (see 720 ILCS 5/12 — 3 (West 1992)), but the petitioner was only charged with violating a provision of the code of ordinances of the City of Joliet. That the petitioner did not commit a reportable offense is further obviated by the fact that the background check of the records of the State Police uncovered no convictions. The petitioner established a prima facie case of race discrimination in that she was discharged while a similarly situated white male was not.

The State Police’s attempt to articulate a nondiscriminatory reason for the discharge was the assertion that the petitioner falsified her employment applications when she marked “no” to the question “Have you been convicted for other than minor traffic violation?” The petitioner explained that she did not understand that paying a fine for a municipal ordinance violation constituted a conviction. This testimony was considered irrelevant by the Department and the Commission. However, it seems apparent to us that the petitioner was not lying when she answered the question in the negative-. Proceedings for violations of municipal ordinances are treated as civil matters governed by the Illinois Code of Civil Procedure, as long as the range of penalties for such violations does not include a term of imprisonment. (City of Park Ridge v. Larsen (1988), 166 Ill. App. 3d 545, 519 N.E.2d 1177.) A violation of the battery provision of Joliet’s ordinance carries a maximum penalty of a fine of $500. (See Joliet, Ill., Code of Ordinances, §§1 — 8, 21 — 2, 21 — 9 (1988).) Although the term “conviction” is sometimes given a broad meaning, it is really a misnomer when applied to civil proceedings. The popularly understood meaning of “conviction” relates to criminal proceedings. (See Black’s Law Dictionary 301 (5th ed. 1979) (“In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged”).) There was no evidence that the petitioner was lying when she answered the inquiry in the negative. It was perfectly reasonable for her to believe that paying a fine in a civil proceeding did not amount to a conviction.

Further, as already demonstrated above, the petitioner did not even commit what the State Police Bureau of Identification considered to be a reportable offense. The type of “conviction” received by the petitioner was not of the type that would prevent her from being employed by the State Police. The policy was only to discharge those who were convicted of or pled guilty to felonies or Class A or B misdemeanors. The petitioner was not convicted of an offense as defined by the Bureau’s own policy. The respondents would have us believe that the petitioner should be discharged for saying that she was not convicted of an offense, when their own policy did not consider her behavior to be an offense. The State Police failed to articulate a legitimate, nondiscriminatory reason for the petitioner’s discharge.

For the reasons stated, we find that the Department erroneously concluded that there was not substantial evidence to support the petitioner’s charges. Therefore, the Commission’s decision to affirm the Department’s findings was an abuse of discretion. The Commission’s order is vacated and the cause is remanded to the Commission for further proceedings consistent with the views expressed in this opinion.

Vacated and remanded.

McCUSKEY, P.J., and BRESLIN, J., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STERLING FLANERY, Defendant-Appellant.
    Third District
    No. 3—92—0754
    Opinion filed April 19, 1993.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Sterling Flanery, appeals his conviction for armed robbery. The sole issue on appeal is whether his sentence was an abuse of discretion. We find no abuse of discretion. Therefore, we affirm.

The evidence at trial established that on October 22, 1990, Flanery robbed a gas station. The facts of his trial were stated in People v. Flanery (1992), 229 Ill. App. 3d 497, 594 N.E.2d 401, and we incorporate them by reference into this opinion.

The presentence report indicated Flanery was 56 years old at the time of the offense. He had been employed by Anchor Glass in Streator for 34 years. During that time, he helped raise seven children. He had prior convictions for suspended license and speeding in 1968, for criminal damage to property in 1971, and for driving while license revoked and driving under the influence in 1990. At the time Flanery committed the instant offense, he was on probation. Also, testimony was presented at the sentencing hearing which indicated Flanery committed a burglary about two weeks after the instant offense.

Additionally, the presentence report indicated Flanery has a drinking problem. During his trial, several witnesses testified Flanery was drinking near the time of the offense.

The trial judge sentenced Flanery to 12 years’ imprisonment. On appeal, we found the trial judge had improperly considered a sentencing factor that was implicit in the crime and remanded for resentencing. People v. Flanery (1992), 229 Ill. App. 3d 497, 594 N.E.2d 401.

Upon remand, Flanery testified he had a job in the “carpenter maintaining shop” at the Galesburg Correctional Center. Flanery said he had outside clearance, meaning that he worked outside the prison. Flanery still maintained he was innocent of the crime.

The trial judge expressed displeasure that Flanery continued to deny his commission of the offense. The judge also stated he had placed no weight on the improper sentencing factor. Accordingly, the judge resentenced Flanery to 12 years’ imprisonment.

On appeal, Flanery argues his sentence was an abuse of discretion. In support of his argument, Flanery claims the judge failed to give adequate weight to the circumstances of the crime, his age, his employment record, his criminal history, and his behavior in prison. Flanery also contends the judge erred in considering his denial of the offense to be an aggravating factor.

Sentencing is a matter of judicial discretion, and, absent an abuse of discretion, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Among the factors a trial judge may consider when imposing sentence are a defendant’s prior criminal history and the fact he was on probation when he committed the instant offense. (People v. Mitchell (1991), 213 Ill. App. 3d 1078, 572 N.E.2d 1229.) A judge may also consider a defendant’s history of alcoholism as evidence his conduct is likely to recur. People v. Scott (1992), 225 Ill. App. 3d 938, 588 N.E.2d 343.

We begin our analysis by noting the trial judge did not err in imposing the same sentence on remand. As we noted in People v. Morton (1981), 102 Ill. App. 3d 280, 430 N.E.2d 383, when a sentence is vacated on appeal and the cause is remanded for a new sentencing hearing, that action should not be construed as a mandate to the trial judge to impose a lesser sentence on remand. On remand for re-sentencing, the trial judge should simply reconsider the matter without relying upon the factor we initially found to be improper. If, as here, the trial judge states that he did not place any weight on the improper factor, then he is free to reimpose the same sentence.

Here, the instant sentence was well supported by the proper sentencing factors. Flanery had a number of prior convictions, and the trial judge correctly observed that his criminal history had escalated to more serious crimes. Flanery’s drinking problem was also evidence his conduct might recur, particularly since he committed the instant offense after abusing alcohol. Finally, we note the trial judge properly disapproved of Flanery’s claim of innocence in the face of strong evidence to the contrary. We have previously found such testimony may be considered as evidence that a defendant is less likely to be rehabilitated. People v. Anderson (1992), 225 Ill. App. 3d 636, 587 N.E.2d 1050.

For the reasons indicated, we affirm the judgment of the circuit court of La Salle County.

Affirmed.

SLATER and LYTTON, JJ., concur.


author: JUSTICE BRESLIN

text:
    LARRY D. ATKINS, Plaintiff-Appellant, v. DEERE AND COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—92—0621
    Opinion filed March 22,1993.
    . Modified on denial of rehearing May 5, 1993.
    Marc A. Taxman, of Anesi, Ozman & Rodin, Ltd., of Chicago (Curt N. Rodin, of counsel), for appellant.
    Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island, (Samuel S. McHard, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Larry D. Atkins, brought an action under the Structural Work Act (the Act) (Ill. Rev. Stat. 1991, ch. 48, par. 60 et seq.) against the defendants, Deere & Company (Deere) and Western Structural Company (Western). The trial court granted defendants’ motion for summary judgment, and the plaintiff appeals, arguing that a genuine issue of material fact exists as to whether Deere and Western violated the Structural Work Act by failing to equip a 9-foot scaffold with guardrails. We reverse and remand.

The record shows that on the day he was injured the plaintiff was working at Deere’s plant in East Moline, Illinois, as a result of an agreement between his employer and Western, the contractor on the job. The plaintiff was assigned to cut holes in a sheet metal wall using a scaffold from which the guardrails had been removed. The plaintiff fell from the scaffold into a pit and suffered serious injury. The plaintiff filed suit against Deere and Western, alleging that they had violated the Structural Work Act by failing to provide a safe, suitable and proper scaffold.

During his deposition, the plaintiff’s expert opined that the scaffold provided to the plaintiff was not safe, suitable and proper because it lacked guardrails. The expert based his opinion on various industry standards, including regulation 1926.451(4) (29 C.F.R. §1926.451(4) (1992)) promulgated pursuant to the Occupational Safety and Health Act of 1970 (OSHA) (29 U.S.C. §651 et seq. (1988)). He chose the applicable standards based upon the plaintiff’s deposition testimony that the scaffold had been approximately 12 feet from the floor of the pit.

On March 4, 1992, the defendants filed a motion for summary judgment to which they attached the affidavit of Deere’s engineer. The engineer stated that he had measured the height of the scaffold at issue in this case and that the scaffold was nine feet above the floor of the pit. The defendants argued that the Structural Work Act only requires guardrails for scaffolds 20 feet or higher and because the standards cited by the plaintiff’s expert pertained to scaffolds over 10 feet high, the plaintiff had failed to produce evidence that lack of guardrails on scaffolds nine feet in height violated the Act. They further argued that the plaintiff’s expert should not be allowed to amend his opinion regarding the safety of the scaffold because such a change would violate Illinois Supreme Court Rule 220 (134 Ill. 2d R. 220).

Nine days after filing their motion for summary judgment, the defendants filed a motion to continue the trial from its scheduled date of April 1992. This motion was granted, and the trial was rescheduled to August 1992.

On April 27, 1992, the plaintiff amended his answers to defendants’ Rule 220 interrogatories based on the fact that the scaffold was 9 feet, and not 12 feet, high. He cited a different OSHA regulation (see 29 C.F.R. §1926.500(d)(1) (1992)) as a substituted basis for the expert’s opinion that the scaffold was not safe, suitable and proper.

Following a hearing on the defendants’ motions for summary-judgment and to strike the amended Rule 220 answers of the plaintiff’s expert, the trial court granted summary judgment for the defendants. The court found that the scaffold was only nine feet high and ruled that failure to provide a guardrail is not a violation of the Structural Work Act for scaffolds under 20 feet in height. It did not address the issue of striking the amended Rule 220 answers.

The plaintiff first argues on appeal that the trial court erred in relying on the second paragraph of section 1 of the Structural Work Act when it determined that there was no genuine issue as to whether the defendants violated the Act because the scaffold in question was not more than 20 feet from the floor.

The purpose of the Structural Work Act is to protect persons engaged in extrahazardous work. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 236 N.E.2d 724.) The Act should be liberally construed to effectuate this purpose. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 552 N.E.2d 719.) However, in order to recover, the plaintiff must prove that his injuries were caused by a violation of the Act. (Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 487 N.E.2d 1124.) Summary judgment should be granted only when there is no genuine issue as to any material fact. Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c).

Section 1 of the Structural Work Act contains two paragraphs. (See Ill. Rev. Stat. 1991, ch. 48, par. 60.) The first paragraph provides that all scaffolds erected or constructed by any person, firm or corporation for use in the repairing of any building or other structure, shall be erected and constructed, in a safe, suitable and proper manner. (Ill. Rev. Stat. 1991, ch. 48, par. 60.) The second paragraph requires that scaffolds swung or suspended from an overhead support more than 20 feet from the ground or floor must have a safety rail. Ill. Rev. Stat. 1991, ch. 48, par. 60.

What constitutes a safe scaffold depends on the circumstances of the case. (Grant v. Joseph J. Duffy Co. (1974), 20 Ill. App. 3d 669, 314 N.E.2d 478.) In Grant, the scaffold was seven feet high. The trial court instructed the jury on both the first paragraph requirement that the scaffold be safe, suitable and proper and the second paragraph requirement of guardrails on scaffolds over 20 feet high. The appellate court held that the jury was properly instructed on the requirements of the first paragraph but that instructing the jury on the requirements of the second paragraph was error inasmuch as there was no question that the second paragraph did not apply to the scaffold involved.

Similarly, we find that the second paragraph is inapplicable to the present case. While it is true that the Act does not specifically require guardrails for scaffolds under 20 feet in height, the Act does require that all scaffolds be safe, suitable and proper. That may or may not mean that scaffolds 7 feet or 9 feet or 12 feet in height also need guardrails to comply with the Act. It does mean, however, that summary judgment cannot be granted unless there is no evidence that the scaffold in question was unsafe, unsuitable or improper. The plaintiffs expert has testified that the scaffold was unsafe, unsuitable and improper, and he has cited several safety guidelines and manuals on industry standards to bolster his opinion. Therefore, the plaintiff has produced evidence which creates a genuine issue of material fact and summary judgment was improper.

The plaintiff next argues that he should be allowed to amend his answers to the Rule 220 interrogatories in accordance with subsection (c)(3) of the Rule. We agree. Again, we note that the trial court did not strike the amended Rule 220 answers filed by the plaintiff but, had it done so, it would have been in error.

Supreme Court Rule 220 governs the use of expert witnesses. (134 Ill. 2d R. 220.) The purpose of Rule 220 is to promote timely and good-faith pretrial disclosure of expert witnesses to prevent surprise and to facilitate pretrial investigation of the expert’s credentials and preparation of cross-examination as well as the substance of the testimony of the opposing party’s own expert. Baird v. Adeli (1991), 214 Ill. App. 3d 47, 573 N.E.2d 279; see also Zajac v. St. Mary of Nazareth Hospital Center (1991), 212 Ill. App. 3d 779, 571 N.E.2d 840.

The defendants claim that the plaintiff’s expert should be barred from testifying regarding standards for scaffolds under 10 feet high because such testimony would violate subsection (d) of Rule 220 inasmuch as he would be testifying beyond the scope of what he testified to in his deposition. They further claim that information from which the plaintiff’s expert could have discovered that the scaffold was only nine feet high had been provided to the plaintiff’s counsel almost a year before the deposition of the expert.

We find that the date the plaintiff’s expert first learned of the correct height of the scaffold is irrelevant given the circumstances of this case. Under the defendants’ interpretation of Supreme Court Rule 220(d), every expert would be bound by his interrogatory answers or his deposition testimony and could not change his or her opinion from that time on, regardless of any new information which might come to light. However, by providing that interrogatory answers must be supplemented “as additional information becomes known to the party or his counsel” (134 Ill. 2d R. 220(c)(3)), Rule 220 clearly anticipates that additional information may become available after the expert has submitted interrogatory answers or given a deposition. In this situation the rule not only allows, but requires, that the interrogatory answers be changed.

The defendants argue further that if the plaintiff’s expert is allowed to amend his interrogatory answers it will lead to “guerilla warfare” between parties, with each side trying to be the last to amend its Rule 220 answers in an effort to sabotage the case of the other. This argument ignores subsection (b) of Rule 220, which requires that all discovery be completed no later than 60 days before trial.

Considering all these circumstances, we find that the plaintiff complied with Supreme Court Rule 220 and his amended answers to defendants’ Rule 220 interrogatories should stand.

Accordingly, the judgment of the circuit court of Rock Island County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

McCUSKEY, P.J., and SLATER, J., concur.


text:
    THE DEPARTMENT OF PUBLIC AID ex rel. MARY TEMPLE, Plaintiff-Appellee, v. JOHN VAN KAMPEN, Defendant-Appellant.
    Third District
    No. 3—92—0455
    Opinion filed April 14, 1993.
    Ruud, Scovil, Neppl & Marsh, of Rock Island (Douglas C. Scovil, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Kimberly W. White, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The defendant, John Van Kampen, appeals an order of the circuit court requiring him to pay child support in an amount equal to 20% of his net monthly income beginning with the date of service of summons. We affirm.

On May 17, 1991, the Illinois Department of Public Aid (the Department) filed a paternity action against the defendant. In its petition, the Department requested an order for support of the child born in 1984. The defendant was served with summons on May 22, 1991. Thereafter, an order was entered finding that the defendant was the child’s father.

At a hearing on the issue of child support, the parties stipulated that defendant’s net monthly income was $2,647.88. The child’s mother testified that her net income was between $700 and $1,000 per month. Along with the child in question, she supported another child and a boyfriend. A sworn financial disclosure statement showed that the mother’s monthly expenditures, which included the amounts needed to support herself, the child in question, her other child and her boyfriend, amounted to $1,146. The boyfriend contributed, at most, $180 per month to the household.

The trial court entered an order on January 9, 1992, finding that the defendant had no demands on his income other than for his own support and requiring the defendant to begin paying $529.58 per month as of January 22, 1992, and to pay $4,236.64 in child support accrued from May 22, 1991 (the date summons was served), through December 22, 1991.

The defendant argues that 20% of his net monthly income is greater than what is reasonably necessary to meet the physical, mental and emotional needs of the child. He further argues that the award requires him to pay almost half of the household’s monthly expenses when he is legally obligated to support only one of the household’s four members.

Section 14 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1991, ch. 40, par. 2514) provides that in determining the amount of an award of child support, the court should use the guidelines provided in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)). Section 505(a) provides that the minimum amount of support for one child is 20% of the supporting party’s net income. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) It further provides that this guideline must be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from it. (Ill. Rev. Stat. 1991, ch. 40, par. 505(aX2).) The relevant factors include the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not be dissolved, the physical and emotional condition of the child and his/her educational needs and the financial resources and needs of the noncustodial parent. Ill. Rev. Stat. 1991, ch. 40, par. 505(aX2).

Child support is not limited to the “shown needs” of the child. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) The trial court may award support in excess of the needs of the child. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 561 N.E.2d 402.) It is only equitable that the party with the relatively greater income bear the greater cost of supporting the child, particularly if that party is the noncustodial parent. In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 555 N.E.2d 1114.

The party wishing to deviate from the guidelines provided by section 505(a) must carry the burden of presenting evidence to support his claim. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622.) The determination of the proper amount of child support is within the discretion of the trial court and will not be disturbed unless it is contrary to the manifest weight of the evidence. In re Parentage of J.S. (1990), 193 Ill. App. 3d 563, 550 N.E.2d 257.

The defendant claims that the trial court should have deviated from the guidelines provided in the statute because following the guidelines requires the defendant to pay a sum greater than is needed by the child. However, in In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229, the Illinois Supreme Court refused to accept the argument that a child is entitled to receive support for only his “shown needs” while the noncustodial parent enjoys a standard of living far above that. Further, in In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 492 N.E.2d 622, the court rejected an argument that a parent has the right not to support his children beyond basic necessities. Although these decisions were made in the context of a dissolution of marriage, they apply equally to cases in which the parents have never been married. (See Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 527 N.E.2d 680.) Thus, it is clear that the trial court was not limited to providing for the child’s needs when it determined the amount of support owed by the defendant.

A review of the cases in which a deviation from the guidelines has been upheld reveals that in each such case the noncustodial parent’s net monthly income was very high. The courts in these cases were justified in deviating from the guidelines because following the guidelines in those cases would have resulted in the children being awarded amounts far in excess of that needed for even a luxurious lifestyle. (See, e.g., In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 555 N.E.2d 1114; In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229; In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 461 N.E.2d 402.) Such is not the case before us. Here the mother’s income is at times $300 short of her monthly obligations. Defendant’s contribution may allow her to more easily meet those obligations, but it will not allow either the child or the household to live in luxury.

The defendant urges us to adopt the reasoning set forth by the fourth district, in People ex rel. Graham v. Adams (1993), 239 Ill. App. 3d 643. We decline.

In Adams, the child’s parents had never married. The mother was supporting two children in addition to the child in question and was pregnant with her fourth child. The defendant was responsible for supporting only one of these children. The mother was supporting the family on $1,600 per month with public assistance. If employed, she could earn approximately $1,600 per month. Following the statutory guidelines, the defendant’s child support payment would have been $1,600 per month. This would result in the household no longer being eligible for public assistance and would essentially have required the defendant to support three children who were not his. The court ruled that in addition to the relevant factors listed in section 505(a)(2), the needs of the child should be considered in determining the amount of child support to be awarded. Adams, 239 Ill. App. 3d 643.

We believe that it was unnecessary to add the needs of the child to the list of factors to be considered in determining the amount of child support to be awarded when the custodial parent is supporting other children besides the child supported by the noncustodial parent. If the legislature had meant to include the needs of the child as a factor to be considered, it would have done so. Section 505(a)(2) contains the word “needs” twice, but neither occasion refers to the needs of the child. (See Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2).) Further, the case law on the subject clearly allows a deviation from the statutory minimum when the noncustodial parent’s net monthly income is very high. (See, e.g., In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 555 N.E.2d 1114; In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229; In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 461 N.E.2d 402.) Thus we find that the statute and relevant case law give enough guidance without the court creating a new “balancing test” which includes a consideration of the child’s needs.

Here, we find that to allow a reduction in child support below the statutory minimum based solely on the fact that the custodial parent supports other persons not entitled to support by the noncustodial parent would penalize the child for living arrangements over which the child has no control. We will not so penalize this child. Accordingly, we hold that the statutory guidelines should be applied unless the trial court finds reason for deviating therefrom based on its consideration of the applicable statutory factors and pertinent case law.

The defendant’s second argument is that the trial court abused its discretion in calculating the amount of support due from the date the summons was served upon him.

We find that the defendant’s contention is without merit. The Illinois Parentage Act of 1984 clearly states that all child support payments ordered pursuant to the Act are to commence from the date summons is served. (Ill. Rev. Stat. 1991, ch. 40, par. 2514(b).) Therefore, we hold that the trial court properly awarded support from the date the summons was served.

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

Affirmed.

McCUSKEY, P.J., and BARRY, J., concur.


author: JUSTICE McLAREN

text:
    NICOLE T. STRACKA, as Mother and Next Friend of Jacob D. Stracka, Plaintiff-Appellee, v. PHIL BRADLEY, Director of Public Aid, et al., Defendants-Appellants.
    Second District
    No. 2—92—1045
    Opinion filed April 28, 1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Karen Konieczny, Special Assistant Attorney General, of Chicago, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants Phil Bradley, Director of Public Aid, Roberta Hardy, Chief of Comprehensive Health Services, and the Department of Public Aid (Department) appeal the circuit court’s order requiring them to provide 24-hour-a-day in-home nursing services to Jacob Stracka pending a final administrative decision by the Department. Defendants contend that the circuit court lacked jurisdiction to enter the order because plaintiff failed to exhaust her administrative remedies. We reverse and remand.

Jacob Stracka was 21/z years old at the time of trial. He suffers from severe static encephalopathy, a severe form of epilepsy. He suffers frequent seizures and requires various medications which by law can only be administered by a licensed practical nurse (LPN) or registered nurse (RN).

His parents applied to the Department for medical assistance through its Model Waiver Program. The Department initially approved Jacob for 84 hours of in-home care per week, or 12 hours per day, subject to submission of a plan for gradual reduction at the end of a six-month review period ending June 30,1992.

The Strackas sought to appeal this decision to the Department, seeking 24-hour-a-day care. Apparently the Department never received their request for a hearing.

On May 13, 1992, Nicole Stracka, as mother and next friend of Jacob Stracka, filed a complaint in the circuit court of Winnebago County. The complaint alleged that the Department had “denied” plaintiff’s request for a hearing and that the initial notice of determination therefore represented a final administrative decision. The complaint further alleged that since the Department approved Jacob for 84 hours per week of nursing care, his condition had deteriorated. A letter from Jacob’s neurologist, Dr. Marabella A. Alhambra, was attached to the complaint.

Plaintiff alleged that Jacob would suffer irreparable harm if he did not receive 24-hour-a-day assistance and that the action was brought pursuant to the Administrative Review Law (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.). The complaint sought reversal of the Department’s determination.

The Department moved to dismiss the complaint on the basis that plaintiff had failed to exhaust her administrative remedies. Plaintiff filed a motion for a temporary restraining order requiring the Department to provide nursing care 24 hours a day pending resolution of the controversy on the merits.

On June 15, 1992, the court issued the temporary restraining order and took the Department’s motion to dismiss under advisement.

On June 10, plaintiff filed with the Department a request for 16-hour-a-day care. On June 29, the Department decided to continue the current plan, providing nursing care for 12 hours a day, in effect for another six months. The Department’s notice of decision stated that a request for additional services had been denied as not being cost-effective.

At a hearing on July 13, plaintiff’s counsel informed the court that he had just received the new decision and stated that plaintiff intended to file immediately a request for hearing with the Department. The court granted plaintiff leave to file an amended complaint and continued the cause to July 20.

On July 17, plaintiff filed her amended complaint. This pleading alleged that plaintiff received the Department’s new decision on July 11 and on July 17 she filed a notice of appeal. Plaintiff further alleged that Jacob suffered from severe seizures and required 24-hour-a-day nursing care to administer the medication necessary to control the seizures and that he would suffer irreparable harm if he did not receive such care. Plaintiff prayed for a stay of the Department’s order pending a final administrative decision on her appeal or outright reversal of the Department’s order denying plaintiff’s request for 24-hour-a-day care.

Plaintiff also filed a motion for a preliminary injunction requiring the Department to provide 24-hour-a-day care until the Department reached a final decision following the hearing.

The court conducted a hearing on the motion for preliminary injunction at which plaintiff was the only witness. Following the hearing, the court granted plaintiff’s motion, enjoining the Department to continue providing 24-hour-a-day care until the Department resolved plaintiff’s appeal. The court denied the Department’s motion to dismiss. The Department filed a timely notice of appeal.

On appeal, the Department contends that the circuit court lacked jurisdiction to enter a preliminary injunction since plaintiff had failed to exhaust her administrative remedies. Defendant points out that plaintiff’s request for hearing is still pending and that she may well succeed on appeal, thus obviating the necessity for judicial action. Defendant further contends that, even if the circuit court had jurisdiction, it abused its discretion in granting an injunction where plaintiff failed to establish the requisites of equitable relief.

Plaintiff has not filed a brief in this court. We will review the merits of this appeal pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Generally, an aggrieved party cannot seek judicial review of an agency decision without exhausting all available administrative remedies, unless they can establish a recognized exception to the exhaustion doctrine. The purposes of the exhaustion doctrine are to allow full development of the facts before the agency prior to its final decision, to allow the agency to utilize its expertise and to permit the aggrieved party to succeed before the agency, thus rendering judicial review unnecessary. (Castaneda v. Human Rights Comm’n (1988), 175 Ill. App. 3d 1085, 1087, aff’d (1989), 132 Ill. 2d 304.) Judicial review of administrative decisions can only be undertaken where there is a final agency determination. (Taylor v. State Universities Retirement System (1987), 159 Ill. App. 3d 372.) Such a determination contemplates an adversarial proceeding involving the parties affected where a hearing on controverted facts is held and ultimately a disposition is rendered by an impartial fact finder. (Jagielnik v. Board of Trustees of the Police Pension Fund (1991), 211 Ill. App. 3d 26, 32; Taylor, 159 Ill. App. 3d at 376.) In the absence of a final agency determination, the circuit court lacks jurisdiction to consider the matter. Jagielnik, 211 Ill. App. 3d at 32.

In the instant case, it is clear that there has been no final agency determination. Plaintiff admitted at the hearing that her notice of appeal to the Department remains pending and that she may well succeed before the Department. Nothing in the record demonstrates that the hearing has in fact been conducted. Thus plaintiff has failed to exhaust her administrative remedies.

Furthermore, we do not believe that any of the recognized exceptions to the exhaustion requirement are applicable in this case. Courts have held that the exhaustion of administrative remedies is not required where the agency cannot provide an adequate remedy, where it is patently futile to seek relief from the agency, where no issues of fact are involved or agency expertise is not required, where irreparable harm will result from further pursuit of administrative remedies, or where the agency’s jurisdiction is attacked on the ground that it is not authorized by statute. Board of Trustees of Addison Fire Protection District No. 1 Pension Fund v. Stamp (1993), 241 Ill. App. 3d 873, 884.

The only exception to exhaustion arguably implicated in this case is that plaintiff will suffer irreparable harm while the administrative proceedings are pending. There is, in fact, a line of cases stating that a circuit court may enter a preliminary injunction to preserve the status quo while an administrative action is pending. Knott v. Illinois Racing Board (1990), 198 Ill. App. 3d 364; Morgan v. Illinois Racing Board (1987), 155 Ill. App. 3d 611; Kurtzworth v. Illinois Racing Board (1981), 92 Ill. App. 3d 564.

Those cases established that injunctive relief is appropriate only where the plaintiff can establish that irreparable harm will occur without the injunction or that he will be deprived of a constitutional right without due process of law. (Kurtzworth, 92 Ill. App. 3d at 585.) Kurtzworth involved racetrack workers whose occupational licenses had been suspended by track stewards. Each had filed an appeal with the Racing Board, but alleged that the suspensions would not be stayed during the pendency of the hearing. Thus, each would be irreparably harmed through loss of income resulting from the suspensions. Moreover, each was threatened with the loss of property without due process of law.

Kurtzworth upheld the issuance of injunctions which prevented the Board from enforcing the suspensions until the hearings had been completed. Since the court found that no constitutional violation occurred, it apparently concluded that the plaintiffs suffered irreparable harm from the loss of income while the administrative proceedings continued.

Subsequent cases, however, held that injunctive relief is appropriate only after the Board conducts a hearing. (Knott, 198 Ill. App. 3d at 367-68; Morgan, 155 Ill. App. 3d at 615.) The courts noted that the Horse Racing Act provided for a hearing within 12 days of the initial decision. They held that a loss of income for a brief period pending administrative hearings does not constitute irreparable harm. Thus, a court was justified in interfering in the administrative process only if the hearing was held and the Board unreasonably delayed issuing a decision. Knott, 198 Ill. App. 3d at 368; Morgan, 155 Ill. App. 3d at 615.

The instant case is distinguishable from Kurtzworth in several respects. First, the court’s order did not merely preserve the status quo pending the outcome of plaintiff’s appeal. Prior to the court proceedings, the Department was providing 12 hours of nursing service per day. The court’s order requires the Department to provide 24 hours of service per day. Thus, the court’s order is a mandatory preliminary injunction which altered the status quo.

Second, there is no evidence that the Department has held a hearing and has unreasonably delayed reaching a decision. Nothing in the record demonstrates whether the hearing has been held or the ultimate outcome of the proceeding has been unreasonably delayed. Moreover, plaintiff did not contend in the trial court that the hearing process would require an unreasonable amount of time.

Finally, plaintiff simply failed to establish irreparable harm. There is no evidence regarding how long the agency appeal process will take. This omission alone makes the question of irreparable harm nearly impossible to determine. Additionally, there was no medical testimony regarding Jacob’s medical condition.

Plaintiff testified that when Jacob was receiving 12-hour-a-day care he had to be hospitalized 12 times in a six-month period. These hospitalizations lasted between 3 and 10 days. Jacob had to be kept in the intensive care ward each time because he requires individual attention and is prone to infection. While Jacob was receiving 24-hour care pursuant to the temporary restraining order, he was hospitalized only once, for less than 24 hours. While at home, Jacob requires numerous medications, which by law can only be administered by a LPN or RN. When Jacob goes into a seizure, additional medication is required. If a nurse is not present in the home, Jacob has to be taken to the hospital so that a nurse can administer the drug. Plaintiff’s testimony related primarily to the cost of repeated hospitalizations compared to the cost of in-home nursing service. There is no evidence concerning who is obligated to pay for these hospitalizations. Thus, payment of medical care as a burden upon plaintiff, let alone irreparable harm, has not been established.

Jacob’s neurologist did not testify at the hearing. Plaintiff’s counsel stated that the neurologist was unable to appear at the hearing for medical reasons. He tendered a letter from the neurologist, but the court refused to admit it into evidence. Thus, there is no expert testimony that Jacob will suffer irreparable harm if he continues to receive nursing services for 12 hours a day pending determination of plaintiff’s appeal. There is simply insufficient evidence in the record to establish that either Jacob or his parents will suffer irreparable harm if he does not receive 24-hour-a-day care pending the outcome of plaintiff’s appeal.

For the foregoing reasons, the circuit court’s order granting plaintiff a preliminary injunction is reversed.

Reversed.

BOWMAN and COLWELL, JJ., concur.


author: JUSTICE UNVERZAGT QUETSCH, J., JUSTICE WOODWARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES D. LASPISA, Defendant-Appellee.
    Second District
    No. 2—91—1034
    Opinion filed April 28, 1993.

      WOODWARD, J., dissenting.
    James E. Ryan, State’s Attorney, of Wheaton (Phillip Dolci, Assistant State’s Attorney, and William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Michael Fleming, of Elmhurst, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

In a prosecution for the illegal possession of less than 30 grams of a substance containing cocaine, a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(a)(2)(A)), the State appeals an order suppressing statements made by defendant, James D. Laspisa, before and after he and three other individuals were arrested by officers of the Elmhurst police department. The trial court held that the arrest of the defendant and the search of the car in which he and the other three people were riding were proper. However, the court granted defendant’s motion to suppress his statements on the ground that they were obtained without preliminary warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.

On interlocutory appeal (134 Ill. 2d R. 604(a)) the State argues that the decision to suppress defendant’s statements was manifestly erroneous. The State argues that (1) the police did not need to issue Miranda warnings for the general, on-the-scene questioning that led to the first set of statements; and (2) even if the statements defendant made after his car was stopped but before he was placed under arrest were improperly obtained, the statements defendant made at the police station were preceded by Miranda warnings and were admissible. We agree with the State that the trial court’s suppression order was legally erroneous. We therefore reverse and remand the cause.

Julie Casiello, Jodi Scott, Robert Kalteux, and defendant were charged with the unlawful possession of a controlled substance. They filed motions to quash their arrests and to suppress evidence and statements. The motions were consolidated.

At the hearing on the motions, Elmhurst police officer Robert Nicholas testified that, on the evening of November 21, 1990, he and partner Dominic Pánico were on patrol in an unmarked car. The officers were in plain clothes. At about 10:40 p.m., they drove down Emery Lane, a quiet residential street, where they observed a light tan, four-door Cadillac that was parked northbound along the curb. Four people were in the Cadillac. The officers parked about two houses down from the Cadillac. The area was well illuminated by streetlights, and the dome light was on inside the Cadillac.

Officer Nicholas exited his car, crossed the street, and observed the Cadillac from about 20 feet away. Nicholas’ observations from across the street took about one minute. His view was unobstructed and he faced the driver’s side of the car. Julie Casiello was the driver. James Laspisa, defendant, was in the front passenger seat. Robert Kalteux was behind Julie Casiello. Jodi Scott was behind defendant.

Officer Nicholas saw defendant looking around and ahead a few times, though never directly at Nicholas. Defendant was sitting erect with his head down toward his lap. After a few seconds, defendant pulled his head back and tilted it up. Defendant then reached over to Scott and handed her a book. She took the book, lowered it to her lap, put her head down, and moved her head back up again. Scott handed the book to Kalteux, who underwent similar motions several times, inhaling repeatedly. Officer Nicholas concluded that the three passengers were ingesting cocaine.

Officer Nicholas signaled Officer Pánico to approach the Cadillac. As the officers did so, the dome light shut off, the exterior lights were activated, and the Cadillac went north on Emery Lane. The officers reentered their car and followed the Cadillac, which drove into a parking lot at Hurricanes, a lounge and night spot. The officers parked in a lot just east of Hurricanes.

After the two cars had parked, Officer Nicholas exited his car and approached the Cadillac. Defendant and Kalteux were exiting the car; the two women stayed inside. Officer Nicholas knew of no arrest warrant for any of the occupants of the Cadillac, and he did not seek consent to search the car. He went to Robert Kalteux, displayed his badge, and identified himself as a police officer. The officer did not display any weapon. Officer Nicholas told Kalteux that it looked as though the occupants of the car had been snorting cocaine; he asked if they had cocaine. Kalteux said that they did and that he had ingested some. When Officer Nicholas asked where the cocaine was, Kalteux said that defendant had had it in a brown folder and that defendant may have put the folder into the glove compartment.

Officer Nicholas walked around to the passenger side of the car; Pánico stood near Kalteux and defendant on the driver’s side. While partly in the vehicle, Nicholas talked to Julie Casiello and Jodi Scott. At this time, Officer Nicholas had not displayed any weapon. None of the car’s occupants had been handcuffed or told that they were under arrest. Officer Nicholas asked the women about the cocaine. They replied that they thought that either defendant Laspisa or Kalteux had had it and that it was in a black folder in the vehicle. Officer Nicholas looked into the glove compartment, then under the front passenger seat, from where he retrieved a black leather folder.

Officer Nicholas exited the Cadillac, stood outside the passenger door, and asked Robert Kalteux where the cocaine was. Kalteux’s response was unintelligible; his words were slurred and he had a bulge in his cheek. Officer Pánico then talked to Kalteux. A short time later, Officer Pánico showed Officer Nicholas a clear plastic bag that Pánico said he had removed from Robert Kalteux’s mouth. Officer Nicholas concluded that the substance in the bag was cocaine. After he examined the bag, Officer Nicholas placed the four suspects under arrest. They were transported to the Elmhurst police station.

Officer Pánico testified that, after the Cadillac parked at Hurricanes, he exited the police car shortly after Officer Nicholas and approached defendant Laspisa, who was standing outside the front passenger door. Officer Pánico identified himself and showed defendant his badge, but he did not display any weapon. As Officer Pánico spoke to defendant Laspisa, Robert Kalteux, at Officer Nicholas’ request, exited the car. Officer Pánico asked defendant why the four people had been parked in a residential area. As best the officer could recall, defendant replied that they “were just parked there.”

Officer Pánico never obtained consent to search the car. He never recovered any cocaine or drug paraphernalia from defendant. However, as he watched Officer Nicholas speak to Kalteux from the other side of the car, Officer Pánico noticed that Kalteux’s speech was impaired and “mush-mouthed” and that something was pro-trading from Kalteux’s cheek. When Officer Nicholas asked Kalteux if the latter had anything in his mouth, Kalteux began chewing. Officer Pánico told Kalteux to spit out whatever Kalteux was chewing; when Kalteux refused, the officer took hold of him, Kalteux struggled to break free, Officer Pánico attempted to handcuff Kalteux, and, as the two fell to the ground, Kalteux spat out the bag of cocaine. Officer Pánico recovered the bag and handcuffed Kalteux.

Robert Kalteux testified that Officer Nicholas never sought or received permission to search the car. He admitted that, in response to Officer Nicholas’ questioning, he told the officer that the group had cocaine and that, while the four had been parked on Emery Lane, Kalteux used some cocaine himself.

Jodi Scott testified that, on the evening of November 21, 1990, she and the other defendants decided to use cocaine. They chose Emery Lane because it was a secluded residential area where they were likely to escape notice. Because the four were trying to avoid detection, the dome light of the Cadillac was on very briefly if at all, and the headlights were turned off. However, the streetlighting in the area was bright enough to illuminate the cocaine. Scott could not recall whether the light from the driver’s visor was on during that time.

Jodi Scott snorted cocaine twice while the car was parked; she got the cocaine from defendant. The group was parked at Emery Lane for two or three minutes at the most. They became nervous when they saw the headlights of the car that pulled up in back of them. They sat quietly while the other car was parked behind them. When the other car drove past and turned around in a driveway, Julie Casiello drove off to the parking lot at Hurricanes.

As the Cadillac entered the lot, Officer Nicholas, without identifying himself, tapped on a window and asked the occupants for identification. Jodi Scott showed him identification. Officer Nicholas told the women to stay seated as he searched the car. Officer Nicholas repeatedly asked, “ ‘where is it’?”

Julie Casiello testified that she and her three codefendants went to Emery Lane on the evening of November 21, 1990, because they wanted to avoid detection while using cocaine. She turned on a light inside the car for only a moment as one of the passengers pulled out the cocaine. Also, a reading light was on very briefly in the back of the car. As they were ingesting cocaine, they noticed the unmarked police car pull up in back of them. The four sat there nervously; when the other car pulled ahead of them and entered a driveway, Casiello drove the Cadillac away and eventually stopped at the Hurricanes parking lot.

The court held that the stop and search of the Cadillac were proper, as the officers had probable cause to believe that the occupants possessed and had used cocaine. The court denied the motions to quash the arrests and to suppress the evidence.

However, the court granted the motions to suppress statements made to the police by defendant and the other occupants of the Cadillac. The court explained that, once the car had been stopped and the occupants had been told the reason for the stop, the police were required to admonish the four of their Miranda rights. As the officers had not done so, the court granted the motion to suppress any statements defendant or his three friends made before they were taken to the police station.

The court held a separate hearing on whether to suppress statements that the four defendants made at the police station. Officer Pánico testified that, at about 1:50 a.m. on November 22, 1990, roughly three hours after the arrests, he talked to defendant in the interview room of the police station. No one else was present. Reading from a card, Officer Pánico advised defendant of defendant’s Miranda rights. He asked defendant if the latter understood; defendant said yes. Defendant appeared calm and collected, and Officer Pánico made no threats or promises. Although defendant had been drinking, he was not intoxicated, and he answered the officer’s questions clearly and concisely. Officer Pánico and defendant were in the interview room for about 30 minutes. Pánico asked defendant about the events that led to the arrests, including whether defendant had used any cocaine.

The trial court granted the motion to suppress the statements that defendant made to Pánico at the station. The court held there was nothing to attenuate the taint that required suppression of the prearrest statements. The court denied the State’s motion to reconsider, and the State timely appealed.

On appeal, the State argues that the suppression of both the prearrest and post-arrest statements was manifestly erroneous. The State asserts first that the trial court erred as a matter of law in holding that the police were required to give Miranda warnings before questioning defendant and his friends at the Hurricanes parking lot, as such warnings are necessary only before custodial interrogation and not before general, on-the-scene questioning. The State argues second that the suppression of defendant’s post-arrest statements was erroneous because (1) there being no primary illegality, the statements could not be tainted by previous illegality; and (2) even if the prearrest statements must be suppressed, defendant’s post-arrest statements were voluntary and free of taint.

We will reverse a trial court’s decision on a motion to dismiss only if that decision is manifestly erroneous. (People v. Harper (1992), 237 Ill. App. 3d 202, 205.) Here, we agree with the State that the trial court’s suppression of defendant’s statements was manifestly erroneous.

Although Miranda warnings are required for custodial interrogation, police need not give the warnings before asking questions in the course of general, on-the-scene investigation of a possible crime. (Miranda, 384 U.S. at 477-78, 16 L. Ed. 2d at 725, 86 S. Ct. at 1629-30; People v. Parks (1971), 48 Ill. 2d 232, 237, cert, denied (1972), 404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 692; People v. Schuld (1988), 175 Ill. App. 3d 272, 283.) Even viewing the evidence most favorably to defendant, we conclude that the questioning that led to his (and the other passengers’) prearrest statements was on-the-scene investigation pursuant to which Miranda warnings are not required. Therefore, these statements should not have been suppressed.

The trial court upheld the search of the vehicle in which defendant was riding. The court found that, at the time of the stop and search, the police had probable cause to believe that defendant had recently committed a crime. The court also concluded that the police had probable cause to search the vehicle and the vicinity for evidence of that crime. It is undisputed that, when Officer Nicholas began to question the occupants of the car, he did not arrest them and did not display any weapon. Although he was accompanied by another officer and identified his office to the occupants of the car, the cases makes it clear that these factors in themselves did not turn the questioning in the parking lot into custodial interrogation.

In Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138, a police officer, noticing that the respondent was driving erratically, stopped the respondent’s car and ordered him out of the vehicle. The officer forced the respondent to perform field sobriety tests and asked the respondent if the latter had been drinking. When the respondent admitted to having consumed beer and marijuana shortly before the stop, the officer placed him under arrest. The Supreme Court held that the prearrest roadside questioning pursuant to a routine traffic stop did not require Miranda warnings. Acknowledging that “the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions” (Berkemer, 468 U.S. at 438, 82 L. Ed. 2d at 333-34, 104 S. Ct. at 3149), the Court held nonetheless that such circumstances did not amount to “custodial interrogation.” The Court stressed that the typical traffic stop is relatively brief and subject to public view and that the detained motorist is confronted by only one or two officers. Berkemer, 468 U.S. at 438-39, 82 L. Ed. 2d at 334, 104 S. Ct. at 3149-50.

In Parks, a pharmacist called the police because he suspected that someone was attempting to obtain drugs by a fraudulent prescription. The police arrived, stopped the defendant as he was walking out the door, and asked him if he had made a purchase and for whom he made the purchase. The defendant answered the questions and then, upon being asked, told the police his name. Later, the police arrested the defendant. The supreme court held that the statements the defendant made outside the drugstore were admissible, as they were the product of on-the-scene investigatory questioning, for which no Miranda warnings were needed. Parks, 48 Ill. 2d at 237.

In People v. Pullum (1974), 57 Ill. 2d 15, the defendant was stopped by two police officers at 2 a.m. for running a red light. He made several statements later used to help convict him of armed robbery. Although it reversed and remanded on other grounds, the supreme court held that these prearrest statements did not require Miranda warnings. Pullum, 57 Ill. 2d at 18.

In People v. Acebo (1989), 182 Ill. App. 3d 403, 405, a police officer frisked the defendant pursuant to a valid Terry stop. (See Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The appellate court held that „ the defendant’s statement, in response to on-the-scene questioning, that he was the driver of a truck involved in a nearby accident was admissible even though the officer gave no Miranda warnings until after the arrest. The facts in these cases were no more favorable to the prosecution than are the facts here.

We conclude that the trial court manifestly erred in suppressing defendant’s prearrest statements. Also, the trial court erred in suppressing defendant’s post-arrest statements. This ruling rested entirely on the premise that the post-arrest statements were the product of improper prearrest questioning. However, we have held that the prearrest questioning was proper. As there was no primary illegality, there can be no derivative illegality. Therefore, we need not decide whether any taint was sufficiently attenuated by the warnings that defendant received once he was in custody.

The trial court’s order suppressing defendant’s statements is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

QUETSCH, J.,

concurs.

JUSTICE WOODWARD,

dissenting:

I respectfully dissent. As the majority states, the trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous (People v. Galvin (1989), 127 Ill. 2d 153). Officer Nicholas testified that he was standing about 20 feet away from the Cadillac as it was parked on Emery Lane. From his unobstructed vantage point, he was able to see the defendants within the car. The vehicle’s dome light was on. Nicholas described in detail the physical actions of defendants Laspisa, Scott and Kalteux. Each of them engaged in typical cocaine-taking behavior. For example, defendant sat with his head down toward his lap. Within seconds, he pulled his head up and then tilted his head backward. When the officers approached the Cadillac, the dome light was turned off, and defendants drove off to a local nightclub. The officers reentered their unmarked vehicle and followed the Cadillac, having determined, based on their experience, that the vehicle’s occupants had been ingesting cocaine. While following the Cadillac, Nicholas and Pánico attempted to get a squad car in the area to make a traffic stop.

After the Cadillac pulled into the Hurricane’s lot, the officers turned into the parking lot directly east. They approached the car as defendant and Kalteux were getting out of it. Officer Nicholas displayed his badge and identified himself to Kalteux, and Officer Pánico approached defendant and showed him his badge. Nicholas pointedly asked Kalteux if the car’s occupants had been snorting cocaine. Pánico asked defendant what they had been doing on Emery Lane.

At the initial hearing on defendant’s motion to quash arrest and suppress evidence, the trial court stated:

“[T]he motor vehicle was properly stopped and a search of the motor vehicle was permissible under the circumstances. There was a sufficient basis in fact for probable cause that there was a controlled substance in the motor vehicle. Therefore, the motion to suppress the arrest and evidence seized is denied.
As to statements made, there being an admonishment that was required and not given, the statements are suppressed.”

There is little question that the trial court surmised from the facts that defendants were going to be arrested for cocaine possession in the Hurricane’s parking lot. This was not an investigatory situation in which the police had a suspicion that the defendants had committed a crime. From close range, Officer Nicholas had watched defendants ingest a substance which, based upon his extensive experience, he believed was cocaine. Nicholas unsuccessfully attempted to have a squad car pull the Cadillac over prior to its stopping in Hurricane’s parking lot.

When the subject questions were posed to defendants, there is little doubt that their arrest was either imminent or had already commenced. Defendants were obviously not free to leave. The fact that the police had not drawn their weapons and had not told the four people they were under arrest is of little import here. A reasonable person in these circumstances would not have believed he was free to leave. It is disingenuous of the State to argue that the subject questions were merely a part of an on-the-scene investigation. Upon approaching the vehicle, the officers should have given the Miranda warnings to defendant.

The cases cited by the majority are factually distinguishable. The police officer in Berkemer v. McCarty (1984), 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138, had merely observed defendant driving erratically. Upon making a routine traffic stop, his questions to defendant were part of an on-the-scene investigation. The instant appeal does not involve a routine traffic stop; it resulted from police officers observing probable criminal acts. In People v. Parks (1971), 48 Ill. 2d 232, unlike this case, the police did not observe the alleged criminal behavior. People v. Pullum (1974), 57 Ill. 2d 15, is similar to Berkemer in that it dealt with a routine traffic stop. Finally, People v. Acebo (1989), 182 Ill. App. 3d 403, dealt with a valid Terry stop, which involved some on-the-scene questioning. The appeal at bar did not involve a Terry stop, as the circumstances here had progressed far beyond those meriting a Terry stop.

The facts support the trial court’s conclusion that Miranda warnings should have been given to defendant prior to his questioning in the Hurricane’s parking lot. Moreover, as the trial court found, because there is primary illegality, there is derivative illegality regarding defendant’s statements in the police station. Accordingly, this court should affirm the trial court’s order suppressing defendant’s statements.