author: JUSTICE HAASE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS WILBUR, Defendant-Appellant.
    Third District
    No. 3—90—0310
    Opinion filed March 27, 1992.
    STOUDER, J., dissenting.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Raymond Kimbell III, State’s Attorney, of Galesburg (Nancy Rink Carter and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant is a 14-year-old tried as an adult for the murder of a neighbor woman in 1988. He made a full confession to killing her by cutting her throat and stabbing her 15 to 20 times. The defendant showed no remorse, and according to his parents, did not appear upset after the killing. The defendant suffers from learning disabilities. There is conflicting evidence as to whether he suffers from periodic violent outbursts. The defendant raised the defense of insanity, and his expert testified that the defendant was, in fact, insane at the time of the murder and was suffering from schizophrenia. The State’s expert testified that the defendant was sane at the time of the commission of the crime. The State asked for a guilty but mentally ill instruction, and the court instructed the jury on verdicts of guilty, not guilty, not guilty by reason of insanity, and guilty but mentally ill (GBMI). The jury returned a verdict finding the defendant guilty but mentally ill, and the court sentenced the defendant to 60 years. The defendant appeals, raising issues of the questioning of the jury in voir dire, the court’s giving of the guilty but mentally ill instruction on the evidence presented in this case, the impropriety of the prosecutor’s closing argument, and the court’s abuse of discretion in imposing a sentence of 60 years. We affirm.

First, the defendant contends the trial court erred in conducting voir dire. The defendant made a motion prior to trial requesting the court to question prospective jurors about their beliefs as to (1) the State’s burden of proof; (2) that the defendant is presumed innocent; (3) that the defendant does not have to present any evidence on his behalf; (4) that the defendant’s failure to testify may not be held against him; and (5) that the defendant assumes the burden of proving insanity. The court held a conference with the attorneys in chambers and agreed to explore these topics with prospective jurors. The court also agreed to allow the attorneys to ask prospective jurors any follow-up questions they felt might be necessary. The defendant made no objection during voir dire to the sufficiency of the questions posed by the judge, but did allege the questions were insufficient in his post-trial motion.

In particular, the defendant alleges that the court did not adequately explore the question of whether the possible veniremen would hold the defendant’s failure to testify against him. The judge admonished the veniremen as follows:

“I am going to instruct you at the end of this case about the law, and I will be asking you if you can follow the law, if you will follow the law as I give it to you, and apply the law to the facts as you find the facts to be ***. First of all, you should know the defendant is presumed innocent until he is proven guilty beyond a reasonable doubt by the State. The Defense need not produce any evidence, whatsoever, rather it is up to the State to produce evidence to convince you of the Defendant’s guilt.”

In People v. Zehr (1984), 103 Ill. 2d 472, the defendant tendered voir dire questions to the court dealing with the right of the defendant not to testify and the burden of proof. The court refused to ask the submitted questions. The court ruled that the proposed question violated the dictates of Supreme Court Rule 234; “Questions shall not directly or indirectly concern matters of law or instructions.” (87 Ill. 2d R. 234.) The Illinois Supreme Court reversed the defendant’s conviction. The court ruled that the defendant had the right to probe the undisclosed prejudices of prospective jurors. By failing to broach these questions to the veniremen, the defendant was denied his right to a fair and impartial jury.

The court also went on to note that the questions need not be asked in the manner requested by the defendant. Inquiries made of potential jurors are sufficient if they reasonably explore any prejudices prospective jurors might possess which would deprive the defendant of his basic constitutional right to a fair trial. (Zehr, 103 Ill. 2d at 477.) The court specifically rejected the notion that any one set of “patterned” questions is required.

In the case at bar, the court did broach to potential jurors questions concerning (1) the State’s burden of proof; (2) the presumption of innocence; and (3) that the defense need not present any evidence whatsoever. In addition, the court allowed counsel to ask follow-up questions during voir dire. It is true the court did not ask the questions as tendered by the defendant, but a thorough review of the record before us reveals that the trial court’s inquiries were sufficient.

Next, the defendant asserts that there was insufficient evidence to support a verdict of GBMI. The defendant’s expert, T.W. Mathews, opined that the defendant was unable to conform his behavior to the law. Mathews based his opinion on the fact that defendant heard “voices” and suffered from schizophrenia (a mental disease). The State’s expert, Robert Chapman, testified that he was not “floored” by Mathews’ - opinion, but he felt the defendant was not legally insane {i.e., he opined the defendant was able to conform his acts to the law). The question becomes whether the jury was free to accept Mathews’ opinion that the defendant suffered from a mental disease and simultaneously reject his conclusion that the defendant was insane.

The testimony of experts is judged by the same rules of weight and credibility which are applied to other witnesses. (Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 912, 323 N.E.2d 418, 422.) Discrepancies in testimony in evidence are matters for the jury’s consideration, and the jury is free to disregard an expert’s conclusions of fact. (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 685, 418 N.E.2d 1079, 1085.) The weight to be accorded an expert’s opinion is measured in part on the factual details supporting his conclusions (People v. Kuhn (1979), 68 Ill. App. 3d 59, 64, 385 N.E.2d 388, 391), and the jury is not required to accept the opinions of experts concerning the defendant’s sanity. People v. Martin (1980), 87 Ill. App. 3d 77, 81, 409 N.E.2d 114, 118.

In People v. Hood (1990), 203 Ill. App. 3d 289, 560 N.E.2d 1187, for example, the defendant presented four expert witnesses who all opined the defendant was legally insane at the time of the offense. The State presented one expert who opined the defendant was not legally insane at the time of the offense. The trial court instructed the jury as to GBMI. The jury found the defendant “guilty but mentally ill.” The first district affirmed. The court ruled that a GBMI verdict may be predicated upon evidence presented by the defendant. The court held that the jury was free to accept the defense experts’ opinion that the defendant was mentally ill and simultaneously reject their conclusion that she was legally insane. We agree.

The State’s Attorney, during his closing argument, argued that the defendant had the burden of proving his insanity. That is clearly a correct statement of the law as it applies to the insanity defense to the charge of murder. The problem lies in this case with the fact that the legislature had not yet amended the guilty but mentally ill statute to place the proving of mental illness on the defendant by a preponderance of the evidence so that it was in total accord with the raising of the insanity defense. The burden of the State at the time this case was tried was to prove all the elements of the crime beyond a reasonable doubt. The supreme court has commented on the statutory scheme in People v. Fierer (1988), 124 Ill. 2d 176, as follows:

“Under the new enactment, the defendant now bears the burden of proof of insanity by a preponderance for purposes of a not guilty by reason of insanity verdict, while at the same time the State bears the burden of proof of noninsanity beyond a reasonable doubt for purposes of the GBMI verdict.” 124 Ill. 2d at 185.

The defendant appears to argue that the State cannot separately and independently comment on the insanity defense he raises and the State’s burden of proving noninsanity for the purposes of guilty but mentally ill without in some way prejudicing him. The State’s argument to the jury that the defendant bore the burden of proving his insanity was clearly legally correct for purposes of his assertion of the defense of insanity, and the defendant concedes that if insanity was the only issue, the argument was acceptable. The jury instructions tendered by the court to the jury correctly stated the burden of proof on insanity and guilty but mentally ill. The defendant would require that the State argue the defendant’s total defense of insanity and the guilty but mentally ill requirements simultaneously. There is no such requirement.

There was no objection to the State’s argument, so in order for it to be reviewable now, it would have to be determined to be plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) We do not believe the State’s argument represents plain error. We further point out that in order for the complaint regarding the argument to be the basis of a reversal it must have resulted in substantial prejudice so that the verdict would have been different had it not been made. (People v. Morgan (1986), 112 Ill. 2d 111, 132.) We decline to take an unobjected-to correct statement of the law as it applies to the insanity defense out of context and apply it to the guilty but mentally ill requirements to find error.

Lastly, the defendant contends that the trial judge abused his discretion in imposing the maximum nonextended-term sentence of 60 years on him. Defendant claims that the trial court discounted mitigating factors regarding the 14-year-old defendant and found aggravation in a situation that, due to the verdict of guilty but mentally ill, was questionable as a deterrent. The trial court is entitled to great deference in sentencing under our scheme provided that the sentence is based on the particular circumstances of each case. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In this case, the record reflects that the court properly considered all the statutory factors, and based on the attack on the victim of this crime, which the court characterized as brutal and heinous, given the defendant’s admitted attack on a woman with a knife in 1988 and evidence of his deterioration since he was in custody, it cannot be said that the 60-year sentence imposed is a clear abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 281, 412 N.E.2d 541, 548.

For the foregoing reasons, this court affirms the defendant’s conviction and sentence.

Affirmed.

GORMAN, J., concurs.

JUSTICE STOUDER,

dissenting:

On appeal, the defendant contends the trial court erred in allowing the jury to be instructed on the verdict of guilty but mentally ill. He contends the instruction prejudiced the presentation of the insanity defense, and that there was no evidence to support such an instruction.

In the instant case, Mr. Theodore Mathews, a clinical psychologist, testified that in his opinion the defendant suffered from a schizophrenic condition which rendered the defendant incapable of conforming his conduct to the requirements of the law. Dr. Robert Chapman, a psychiatrist, on the other hand, found no evidence the defendant was suffering from a mental disease or defect. He found the defendant was able to appreciate the criminality of his conduct. Chapman testified he had no reason to believe the defendant could not control his behavior.

Following the close of evidence, the trial court allowed, over the defendant’s objection, the State’s request that the jury be given the instruction on guilty but mentally ill (GBMI). In closing arguments the prosecutor advised the jury numerous times to reject the “popular myth” that someone who would commit this type of brutal murder must be “sick.” Relying on Dr. Chapman’s testimony, the prosecutor argued the defendant was not mentally ill, let alone insane. He repeatedly argued that the burden was on the defendant to prove he “couldn’t help himself.”

In light of the foregoing facts, I believe the judgment should be reversed. The applicable law at the time of trial required the defendant to prove by a preponderance of the evidence that he was not guilty by reason of insanity. (Ill. Rev. Stat. 1989, ch. 38, par. 6—2(e).) In order to obtain a verdict of guilty but mentally ill, the State was required to prove beyond a reasonable doubt (1) the defendant committed the acts charged, (2) the defendant was not legally insane at the time of the commission of those acts, but (3) the defendant was mentally ill. Ill. Rev. Stat. 1987, ch. 38, par. 115—4(j); People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.

In the instant case, the only way the jury could have found the defendant guilty but mentally ill on the evidence presented was to accept the testimony of Mr. Mathews that the defendant suffered from a schizophrenic condition, but reject Matthews’ opinion that the condition rendered the defendant incapable of conforming his conduct to the requirements of the law. At the same time the jury had to accept Dr. Chapman’s opinion that the defendant could conform his conduct, but reject the underlying opinion that the defendant suffered no mental disease or defect.

Considering the nature of this testimony, I believe it is error to allow the jury to pick and choose what portions of expert psychological testimony to accept or reject. Especially in this case, where the only testimony concerning mental illness was tied inextricably to the opinion of insanity. There was no evidence presented that the defendant was mentally ill and yet sane. The testimony did not meet the definition of mental illness as defined in section 6 — 2(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 6—2(d)) as “a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.”

Under the GBMI statute, the State bore the burden to prove beyond a reasonable doubt that the defendant was mentally ill, and yet the State completely failed to present any evidence of mental illness. The only evidence presented by the State was that the defendant was not mentally ill. The State therefore failed to carry its burden under the GBMI statute, as the statute read at the time of this trial.

In closing arguments the prosecutor argued the defendant was not mentally ill and that he was sane. The defense argued the defendant had a mental illness which rendered him insane. There was no mention of the guilty but mentally ill option during closing arguments. With no basis in evidence, the jury was allowed to reach a compromise verdict.

The majority’s conclusion on this issue leads to the result that anytime the insanity defense is raised, a guilty but mentally ill instruction is in order. The insanity defense then becomes a trap for the unwary and leads to compromise verdicts as in the case before us. The insanity defense will for all intents and purposes be rendered meaningless.

In addition, I find the prosecutor’s closing arguments misleading vis-a-vis the burden of proof. Though the defendant concedes the issue is waived, I would reach the issue on plain error grounds. Having injected the GBMI matter into the proceedings, it was erroneous for the prosecutor to argue in ambiguous terms that the burden was on the defendant, when under the instructions given the burdens of proof were conflicting and flipped back and forth. The prosecutor’s argument failed to distinguish between the defendant’s burden to prove his insanity, and the State’s burden to prove the defendant’s sanity and mental illness. The majority is wrong when it states that the defendant would have the State argue the defendant’s “total defense.” First the defendant denies this supposition in his reply brief. Second, the GBMI theory of the case was not advanced by the defendant but by the State over the defendant’s objection. Given the State was advancing this theory, it was incumbent upon the prosecutor not to muddy the waters, but to clearly set forth the State’s two arguments: either the jury was to find the defendant guilty or guilty but mentally ill.

I also believe the issues instruction in the instant case was erroneous because it provided for contradictory burdens of proof which were totally irreconcilable. First the jury was to determine whether or not the defendant was guilty of the offense of murder beyond a reasonable doubt. To find this, the jury was to determine if the State had proven the defendant (1) committed the acts alleged and (2) had the requisite intent. If and only if the jury found both of these elements beyond a reasonable doubt was the jury to determine if the defendant had proven his insanity by a preponderance of the evidence. That is, did the defendant’s mental state prevent him from forming the necessary intent.

If the jury found that the defendant had failed to carry his burden, then it was instructed to continue its deliberations to determine whether the defendant was guilty but mentally ill. In line with the GBMI statute, the jury was instructed that to find the defendant guilty but mentally ill, the State had to prove beyond a reasonable doubt that the defendant was guilty of first degree murder, that the defendant was not legally insane at the time of the murder and that the defendant was mentally ill at the time of the murder.

Section 4 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 4—3(a)) states that before an individual can be found guilty of an offense (other than absolute liability offenses), as to each element of the offense he must act with the necessary mental state. Section 6 — 2(a) of the Code defines insanity thus: “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 6—2(a).

The instruction in the instant case required the jury to first find the defendant committed the acts and had the requisite intent beyond a reasonable doubt. Only then could the jury deliberate on whether the defendant had proven his insanity by a preponderance of the evidence. This however would be impossible because the jury had already found beyond a reasonable doubt that he had the necessary intent, in other words he was sane. How could the defendant prove his insanity (that he lacked the requisite intent) by a preponderance of the evidence, when the intent element has already been found beyond a reasonable doubt? In sum, how in the instant case the defendant could be found to have the necessary intent to commit murder, and then be found not to have the ability to form that intent because he is insane, is beyond me.

Secondly, there is the same problem under the GBMI instruction given. Under the instructions, the defendant had the burden of proving his insanity by a preponderance of the evidence while the State had the burden to prove beyond a reasonable doubt the defendant was not insane. The burden under GBMI statute when considered in relation to the burden under the insanity defense is relatively inseparable. In sum, the instructions were so confusing they constituted reversible error.

For the foregoing reasons, I would reverse.

      Effective January 1, 1990, the legislature has amended the guilty but mentally ill statute to place the burden of proving mental illness on the defendant by a preponderance of the evidence. Ill. Rev. Stat. 1989, ch. 38, par. 115—4(j).


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE LANGLEY, a/k/a Lance Langley, Defendant-Appellant.
    Fourth District
    No. 4—91—0495
    Opinion filed February 28, 1992.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A Champaign County jury convicted defendant Lawrence Langley of aggravated battery of a child. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4.3(a).) After a sentencing hearing at which defendant appeared pro se, he was sentenced to 15 years’ imprisonment. He appeals, arguing he was denied his sixth amendment right to discharge his privately retained counsel during trial. He also contends his waiver of counsel at the sentencing hearing violated the sixth amendment because the trial judge did not properly admonish him. The court was not bound to permit defendant to discharge his counsel during the trial. It was, however, bound to sufficiently admonish defendant before accepting his waiver of counsel at the sentencing hearing. We agree with defendant’s contention the court failed to do so.

Defendant was charged by information with cruelty to children (Ill. Rev. Stat. 1989, ch. 23, par. 2368) and aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12—4.3(a)). An 18-month-old daughter of the woman with whom defendant resided had been severely scalded over 40% of her body. The State alleged defendant was responsible for the burns. At defendant’s arraignment in November 1990, he was informed of his right to counsel and to have counsel appointed. He was also given a copy of the information and informed of the charges lodged against him and the possible penalties. Defendant appeared in person and with an assistant public defender. Defendant was arraigned again in mid-December 1990, after a grand jury returned indictments for the original offenses and the additional offense of heinous battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—4.1(a)). Defendant was provided a copy of the indictments. He was again informed of his right to counsel or court-appointed counsel, the nature of the charges against him and of the potential penalties he faced. Defendant and his public defender were present at this arraignment.

A privately retained attorney entered his appearance for defendant on January 8, 1991. Defendant argues he should have been permitted to discharge this attorney midway through his trial. The attorney represented defendant throughout the proceedings until a June 18, 1991, proceeding when the court learned defendant had discharged him. The attorney had filed numerous motions on behalf of defendant and participated in the jury trial held on April 15 through 17,1991.

On April 17, the third day of the trial, before defense counsel began presenting defendant’s case, defendant indicated to the court that he wanted to seek other counsel. Defendant explained he was not satisfied with how the trial was progressing. He stated he was led to believe “certain things were going to occur in the proceedings, and they haven’t yet at all, not one way, credible witnesses, things of that nature, nothing.” After further inquiry by the judge, defendant explained he thought doctors were going to testify. The judge explained defense counsel intended to call a doctor to testify on defendant’s behalf.

The judge also indicated to defendant that defense counsel had not yet had an opportunity to present a case and call witnesses because the State was not finished presenting its case. The judge noted the trial was half over, and ruled substitute counsel could not be permitted based on defendant’s reasons for this request.

At his sentencing hearing on June 3, 1991, defendant appeared with the counsel who had represented him throughout his trial. Upon inquiry by the court, defense counsel stated he had no additions or corrections to make to defendant’s presentence report. While testimony was in progress, defendant interrupted and informed the court he had filed a motion to continue the sentencing hearing and for a new trial. Defendant also explained he wanted time to obtain new counsel for his sentencing hearing. The court continued the sentencing hearing until July 5.

At a status hearing on June 18, 1991, defendant appeared pro se and the court learned defendant had discharged previously retained counsel. The court admonished defendant he could proceed to argue his motions as long as he understood the court could appoint counsel to represent him. Defendant responded he wanted to represent himself “until further notice.” Defendant presented a motion which requested permission to go to the clerk’s office to file motions. He explained that he and his father thought the records would make it easier for him to obtain new counsel. The judge explained to defendant the procedure for filing motions with the clerk’s office. He also told defendant a hearing on his motions could take place before his sentencing hearing and he could represent himself at this hearing.

Defendant appeared in court on June 25, 1991, for a hearing on a motion filed by the State to revoke defendant’s bond because he could not receive probation as a sentence due to the nature of his previous criminal record and the offense for which he had been convicted. Defendant, appearing pro se, did not object. Defendant asked the court to postpone his sentencing hearing for 30 days to enable him to obtain counsel. He explained his father was speaking with a few lawyers. The trial judge stated he would not change the July 5 sentencing date because he was unconvinced defendant was progressing toward obtaining counsel. The judge revoked defendant’s bond and told defendant when he obtained new counsel, his counsel should contact the court and the State so they could discuss scheduling.

On July 2, 1991, defendant filed a letter with the clerk’s office in which he stated as of July 1 he wanted to represent himself. On July 3 he filed a motion for a mistrial. In his motion, he alleged his constitutional rights were violated during his trial because the court denied his request during trial that his counsel be dismissed. He also contended the State failed to prove his guilt beyond a reasonable doubt because it produced no eyewitnesses to the alleged offense. In addition, defendant’s motion contended he was prejudiced by inflammatory photos of the victim which were introduced into evidence. Defendant noted at the end of the motion that he was currently representing himself. Defendant also filed a letter in which he asked the court to be lenient in its sentencing because he had learned from his present incarceration.

On July 5, he filed another motion for a mistrial and a motion to postpone sentencing. Defendant argued the same constitutional violation regarding trial counsel as had been alleged in his July 3 motion. He also alleged his defense was hindered when the court granted the State’s motion in limine to prevent the introduction of the opinion of staff of the Department of Children and Family Services about the alleged offense. At the sentencing hearing July 5, the judge stated, “You have indicated to me you want to represent yourself, and you’re permitted to do that, but I’m not going to continue this matter any further. So we’re here today to hear your motions, first of all.” Defendant responded “Okay.” The judge also observed that although he continued this hearing from June 3 to July 5 to enable defendant to obtain counsel, defendant had not done so.

The judge initially heard defendant’s motions and denied them. When asked by the trial judge, defendant had no corrections or additions to make to his presentence report. Defendant read a statement about his hope for leniency by the court in sentencing him because he had already learned from his incarceration and very much wanted to care for his wife and her child, the victim of defendant’s alleged offenses. When the injury occurred to the child, defendant only lived with the child’s mother. They had since married. The statement which defendant read was the same written statement he had filed July 3. Defendant neither called witnesses nor presented additional testimony in mitigation at this hearing. When asked by the prosecution whether he knowingly and intentionally burned the victim, defendant responded he did not commit the offense.

The prosecutor informed the court the sentencing range for defendant’s offense was from 5 years to 15 years, and possibly 30 years if the extended term applied. The State recommended defendant be sentenced to not less than 15 years because of the brutality of his offense. The court imposed a 15-year term. Defendant filed a notice of appeal on July 5. On July 11, defendant filed a letter with a notice of appeal enclosed. In the letter, defendant stated the issues appealed from were similar to those raised in his post-trial motions before his sentencing hearing.

Defendant first argues he has a right to a new trial because the court violated his sixth amendment right to discharge his privately retained counsel during his trial. The State argues defendant had no absolute right to substitute counsel in the middle of his trial. It further contends because defendant provided no reasonable grounds to substitute counsel, the trial court did not err by denying his request to seek new counsel.

Defendant cites Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 87 L. Ed. 268, 63 S. Ct. 236, and Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, as support for his argument he had an absolute right to discharge his privately retained counsel. These cases, however, are distinct from the argument which he now raises. In Adams, the Court recognized a defendant’s right to self-representation. (Adams, 317 U.S. at 279, 87 L. Ed. at 274-75, 63 S. Ct. at 241-42.) In Faretta, the Court ruled defendant had a constitutional right to proceed without counsel when he voluntarily and intelligently chose to do so. (Faretta, 422 U.S. at 835, 45 L. Ed. 2d at 581, 95 S. Ct. at 2541.) Defendant did not inform the court he wished to proceed pro se. Rather, midway into his trial, he wanted to seek new counsel. The cases relied on by defendant do not address the issue raised in this case.

The State and Federal constitutions guarantee a criminal defendant the right to representation by counsel of his choice. (People v. Green (1969), 42 Ill. 2d 555, 557, 248 N.E.2d 116, 117; People v. Terry (1988), 177 Ill. App. 3d 185, 190, 532 N.E.2d 568, 572.) This right is not absolute. A defendant cannot assert this right in order to thwart the administration of justice or to otherwise impede the effective prosecution of crime. (People v. Solomon (1962), 24 Ill. 2d 586, 590, 182 N.E.2d 736, 739; People v. Capers (1989), 186 Ill. App. 3d 367, 369, 542 N.E.2d 528, 530.) We have ruled a defendant cannot assert this right if he does so even to temporarily thwart the administration of justice. People v. Free (1983), 112 Ill. App. 3d 449, 454, 445 N.E.2d 529, 532.

Whether defendant’s right to select counsel unreasonably interferes with the administration of the judicial process depends on the facts and circumstances of each case. A trial court’s denial of a defendant’s request to substitute counsel will not be overturned absent an abuse of discretion. (Capers, 186 Ill. App. 3d at 369, 542 N.E.2d at 530; Terry, 177 Ill. App. 3d at 190, 532 N.E.2d at 572.) A court does not abuse its discretion in denying a defendant a continuance to obtain substitute counsel when he has not retained new counsel who is ready, willing, and able to make an unconditional entry of appearance on his behalf. Free, 112 Ill. App. 3d at 454, 445 N.E.2d at 532.

Defendant had not obtained substitute counsel and his request would have unnecessarily thwarted the judicial process. His trial proceeded for lx/2 days before the request. The only reason defendant articulated to the trial judge to explain why he wanted substitute counsel was that the trial was not proceeding as he had anticipated. Defense counsel had not yet begun to present defendant’s case.

Defendant’s counsel began representing defendant on January 8, 1991. He continued this representation for nearly four months without defendant expressing any discontent with his performance. Counsel filed several motions on behalf of defendant during his representation. He filed a motion for release on recognizance bond or reduction of bail, several motions for continuances, a motion in limine, a motion for mistrial, and a motion for directed verdict. Counsel represented defendant at these hearings, during jury selection, and throughout the first V-k days of defendant’s trial. There is no evidence counsel did not vigorously represent his client throughout the proceedings. On appeal, defendant does not note any deficiency in his attorney’s representation. Defendant has not established he was prejudiced by defense counsel’s continued representation of him throughout the trial. The court did not abuse its discretion in denying defendant’s request for substitute counsel.

Defendant next argues before he was permitted to represent himself at his sentencing hearing, the court was obliged, pursuant to Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), to inform him of the potential sentence he faced. Failure to do so, according to defendant, makes his waiver of counsel ineffective.

Supreme Court Rule 401(a) provides:

“(a) Waiver of counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” 134 Ill. 2d R. 401(a).

The State initially argues defendant waived his right to raise this issue because he did not raise it in his post-trial motion. The State also contends the court substantially complied with Supreme Court Rule 401.

The State equates defendant’s notice of appeal, which contained the four grounds for appeal, with a post-sentencing motion. Because defendant failed to raise this issue in this motion, the State argues it is waived. Defendant did not raise this issue in a post-trial motion. His failure to do so could constitute waiver. People v. Johnson (1987), 119 Ill. 2d 119, 131, 518 N.E.2d 100, 105; People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 744.

The right to counsel is so fundamental it should not be “lightly deemed waived.” (People v. Robertson (1989), 181 Ill. App. 3d 760, 763, 537 N.E.2d 1036, 1039.) Errors affecting substantial rights may be addressed on review although the issues were not raised in the trial court. (134 Ill. 2d R. 615(a); People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 231; People v. McClendon (1990), 197 Ill. App. 3d 472, 479, 554 N.E.2d 791, 797.) During the sentencing stage, defendant’s substantial rights are affected and the defendant has a constitutional right to counsel at that stage. (People v. Baker (1982), 92 Ill. 2d 85, 90, 440 N.E.2d 856, 858.) We will therefore evaluate whether the court properly admonished defendant pursuant to Rule 401(a).

The State correctly notes substantial compliance with Rule 401(a) is sufficient to effectuate a valid waiver of counsel if the record indicates waiver was made knowingly and intelligently. (People v. Coleman (1989), 129 Ill. 2d 321, 334, 544 N.E.2d 330, 336, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.) We first determine whether the trial court substantially complied with Rule 401(a). If the trial judge did not substantially comply with the rule, we need not determine whether defendant’s waiver was made knowingly and intelligently. There can be no effective waiver of counsel without proper admonitions. People v. Baker (1983), 94 Ill. 2d 129, 137, 445 N.E.2d 769, 773.

Defendant argues the record supports his argument that no effective waiver occurred because the court failed to comply at all with the required admonishments. The State correctly notes a defendant’s competent waiver of counsel at arraignment continues throughout the proceedings. (Baker, 92 Ill. 2d at 94-95, 440 N.E.2d at 860-61.) Defendant, however, did not waive counsel at his arraignments. Because he was represented by counsel at both arraignments, the State cannot rely on admonishments provided to defendant during this stage of the proceedings. We also note defendant’s arraignments occurred in November and December 1990, and his sentencing hearing in July 1991. Seven months expired between the arraignments and defendant’s sentencing. A defendant cannot be expected to rely only on the admonishments given to him several months earlier — at a point when defendant was not requesting to waive counsel. The admonishments pursuant to Rule 401(a) must be provided when the court learns defendant chooses to waive counsel so that defendant can consider the ramifications of such a decision. Prior admonishments and defendant’s decision to discharge counsel do not somehow cause defendant to forgo the right to be fully informed of the ramifications of acting on his own behalf.

Defendant concedes a proper waiver carries forward to all subsequent proceedings. He argues, however, this principle does not apply where the circumstances suggest the waiver was limited to a particular phase of the proceedings. (Baker, 92 Ill. 2d at 91-92, 440 N.E.2d at 859.) Defendant argues he meant only to represent himself at the June 18 and June 25 status hearings and to retain counsel before his sentencing hearing. The record supports defendant’s contention.

At the June 18 hearing, defendant sought permission to obtain a transcript of his proceedings. He informed the judge he thought this would improve his chances of obtaining new counsel. At the June 25 hearing, defendant requested a continuance of his sentencing hearing, which was scheduled for July 5. He informed the judge he needed more time to obtain counsel. It is clear from defendant’s actions at both hearings, at which he had appeared pro se, that he intended to obtain counsel for his sentencing hearing. In addition, defendant was not properly admonished at the June 18 proceeding, which was the first time he informed the court he was representing himself, at least until further notice. The judge informed him only of his right to counsel.

The judge was not informed of defendant’s intent to represent himself at the sentencing hearing until defendant’s July 1 letter. After July 1, the trial judge failed to admonish defendant pursuant to Rule 401(a). Unlike the facts in Coleman (129 Ill. 2d 321, 544 N.E.2d 330), the judge in this case did not substantially comply with Rule 401(a).

In Coleman, defendant argued the court violated Rule 401(a) because the trial judge misinformed him about the minimum sentence which could have been imposed on him. The judge told defendant 20 years could be imposed. The minimum which could have been imposed against defendant was natural life. (Coleman, 129 Ill. 2d at 331-32, 544 N.E.2d at 335.) The Illinois Supreme Court concluded the trial judge had substantially complied with Rule 401(a). When Coleman sought to proceed pro se at his sentencing hearing, the trial judge admonished the defendant of his right to counsel, informed him of the nature of the charges against him, and explained that the death penalty was the maximum sentence prescribed by the law. These admonishments had also been provided to defendant at the guilt stage of his proceeding. Coleman, 129 Ill. 2d at 332-33, 544 N.E.2d at 335-36.

The reviewing court reasoned it was most important defendant be informed about the maximum sentence before he decided to waive counsel. (Coleman, 129 Ill. 2d at 333-34, 544 N.E.2d at 336.) The record revealed that from the arraignment through the sentencing hearing, defendant knew the minimum sentence which could be imposed against him was natural life. The record also indicated that because defendant provided specific reasons about why he wanted to waive counsel, defendant would have waived counsel even if he were properly admonished about the minimum sentence. Coleman, 129 Ill. 2d at 340, 544 N.E.2d at 339.

Similarly the Illinois Supreme Court found the trial judge substantially complied with Rule 401 in Johnson. In Johnson, the court found the trial judge substantially complied with Rule 401(a) at defendant’s guilt phase. He had been properly informed the death penalty could be imposed against him, but defendant argued the court misled him by stating the minimum sentence he faced was “a ‘number of years.’ ” (Johnson, 119 Ill. 2d at 137, 518 N.E.2d at 108.) The minimum penalty defendant faced was actually natural life. The record also revealed defendant knew a life sentence was the minimum penalty which could be imposed and that defendant was appointed standby counsel. Johnson, 119 Ill. 2d at 129-30, 132, 135-36, 518 N.E.2d at 104-05, 108.

Unlike the trial judge’s admonishments in Coleman and Johnson, the trial judge in this case provided no admonishments before proceeding with defendant’s sentencing hearing. At the sentencing hearing, the first opportunity to admonish defendant in open court since he stated he wanted to represent himself at the sentencing hearing, the judge did not provide any of the admonishments outlined in Rule 401(a). The judge did not substantially comply with Rule 401(a). His failure to substantially comply with the rule denied defendant his fundamental right to counsel at his sentencing hearing.

An additional consideration is whether defendant was prejudiced by the judge’s failure to properly admonish him before proceeding with the sentencing hearing. (Johnson, 119 Ill. 2d at 133-34, 518 N.E.2d at 107.) The State argues the evidence presented at sentencing establishes that representation by counsel at the sentencing hearing would have made little, if any, difference in the outcome. We do not agree. Defendant presented no witnesses on his own behalf. He made no comments about the presentence report. Although he did not receive an extended term, the judge imposed the maximum 15-year term. The minimum sentence which could have been imposed was five years. We do not suggest the sentence imposed was excessive, but representation by counsel at this proceeding may well have made a difference in the sentence imposed.

The State contends a careful review of the record reveals that defendant knew and understood the potential penalties he faced for the crime for which he. was convicted. It also argues defendant’s legal sophistication establishes he understood the ramifications of his waiver of counsel at sentencing. Although we need not address these arguments because the court failed to substantially comply with Rule 401(a), the record does not support the State’s contentions.

A review of the record indicates only that defendant was admonished at his arraignment, which occurred while he was represented by counsel. It is likely defendant’s attention was not directed to the potential penalties during this stage of his proceedings. In addition, although this court has recognized legal sophistication as an additional exception to a trial judge’s strict compliance with Rule 401(a), in that case, defendant was trained as a paralegal and the court substantially complied with Rule 401(a). (People v. Houston (1988), 174 Ill. App. 3d 584, 589, 529 N.E.2d 292, 296.) Defendant’s filing motions on his own behalf during trial and reading a letter to the court before sentence was imposed did not establish he was legally sophisticated. At the June 18 hearing, defendant demonstrated he was unfamiliar with the legal system. Not knowing he could request his transcripts directly from the clerk’s office, he filed a motion requesting permission to do so. The record does not show defendant knew the potential penalties he faced immediately before he informed the court on July 1 that he wanted to proceed pro se. The record also does not show that on July 5 defendant knew he could once again request the appointment of counsel instead of representing himself. In addition, defendant did not appear legally sophisticated.

The court’s failure to substantially comply with Rule 401(a) denied defendant his fundamental right to be represented by counsel at his sentencing hearing. Defendant did not knowingly and intelligently waive this right. The trial judge was patient and courteous to defendant. He provided defendant additional time to obtain new counsel. His efforts to accommodate defendant, however, did not include the admonitions the Illinois Supreme Court has determined are essential to waive counsel or be fully informed.

We affirm defendant’s conviction. However, because the judge did not sufficiently admonish defendant pursuant to Rule 401(a), we remand the case and order defendant receive a new sentencing hearing with the assistance of counsel or after proper admonishment and waiver.

Affirmed in part and remanded in part.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GARY DON MARTIN, Defendant-Appellee.
    Fourth District
    No. 4—91—0432
    Opinion filed February 28, 1992.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Robert E. Mclntire, Public Defender, of Danville (Jeffrey N. Aldag, Assistant Public Defender, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal presents the issue of whether the State may call a defendant to testify at a probation revocation hearing to elicit testimony which would show that defendant had violated conditions of his probation but which would not incriminate him in any other proceedings. We hold that the State may do so.

I. Facts

In January 1989, defendant, Gary Martin, pleaded guilty to driving while under the influence of alcohol and driving while his driver’s license was suspended (Ill. Rev. Stat. 1989, ch. 95½, pars. 11—501(a)(2), 6—303(a)). In July 1989, the trial court sentenced defendant to one year’s probation on each charge, subject to various conditions, including that he support his two children.

In May 1990, with the agreement of the parties, the trial court extended both of defendant’s probationary sentences through January 12, 1991. The court again imposed as a condition of his probation that he support his two dependent children.

In November 1990, the State filed a petition to revoke defendant’s probation which alleged in part that he had violated the terms of his probation by failing to support his two children. In April 1991, the trial court conducted a hearing on this petition, and the State called defendant to testify, apparently to show through his testimony that he had failed to support his children. Defendant objected, claiming that his fifth amendment privilege against self-incrimination prohibited the State from calling him as a witness. (See U.S. Const., amend. V.) The trial court continued the hearing and received written arguments from the parties. The court ultimately sustained defendant’s objection. The State filed a certificate of impairment and brings this appeal.

II. APPEALABILITY OF TRIAL COURT’S RULING

This court first must determine whether we have jurisdiction of this appeal under Supreme Court Rule 604(a)(1), which reads as follows:

“When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 134 Ill. 2d R. 604(a)(1).

An unusual feature of this appeal is that the trial court’s action which the State here challenges occurred midtrial, not as the result of some pretrial ruling. In People v. Davidson (1983), 116 Ill. App. 3d 164, 165, 451 N.E.2d 978, 979, the court also dealt with the State’s appeal of a midtrial order; in that case, the order barred the State from using handwriting exemplars the State obtained from the defendant. In Davidson the trial court had granted defendant’s motion to bar use of the exemplars on the ground that excerpts from some of the letters defendant was compelled to write violated his fifth amendment rights. (Davidson, 116 Ill. App. 3d at 165, 451 N.E.2d at 979.) The State appealed that ruling, and defendant challenged the State’s right to do so. The court in Davidson rejected defendant’s challenge, citing People v. Flatt (1980), 82 Ill. 2d 250, 264, 412 N.E.2d 509, 516 (State must be permitted a review of authority of trial court to enter midtrial suppression order which substantially impairs State’s ability to prosecute the case), among other authorities. The Davidson court provided the following analysis:

“The rule which thus emerges from the cases is that a motion based on criteria relating to the perceived truthfulness, reliability, or relevance of the proffered evidence ‘excludes’ evidence ***; a motion which is based on public policies forbidding the use of certain evidence despite its relevance and apparent trustworthiness ‘suppresses’ evidence ***.” (Emphasis added.) Davidson, 116 Ill. App. 3d at 170, 451 N.E.2d at 983.

In People v. Smith (1987), 151 Ill. App. 3d 922, 925, 503 N.E.2d 584, 586, the court cited the above quotation from Davidson approvingly and held that the State could appeal a midtrial order barring it from eliciting testimony about how the defendant in that case, a truck driver, had assisted a State Police officer with a tape measure as the officer measured the axle length of defendant’s truck. The apparent basis of the trial court’s ruling was that defendant’s participation in measuring the axle violated his right not to be forced to participate in the gathering of physical evidence against him. Smith, 151 Ill. App. 3d at 925, 503 N.E.2d at 585.

We agree with the foregoing authority and conclude that the trial court’s sustaining defendant’s objection to the State’s attempt to call him to the witness stand was based upon defendant’s claimed exercise of a constitutional right, as opposed to a mere evidentiary ruling. In other words, the trial court’s action barring the State from calling defendant to the witness stand had nothing to do with the “perceived truthfulness, reliability, or relevance” of his testimony; instead, that action was “based on public policies forbidding the use of certain evidence despite its relevance and apparent trustworthiness.” (Davidson, 116 Ill. App. 3d at 170, 451 N.E.2d at 983.) Accordingly, we hold that the State may bring this appeal under Supreme Court Rule 604(a)(1).

III. APPLICABILITY OF FIFTH AMENDMENT TO PROBATION REVOCATION PROCEEDINGS

In its written ruling, the trial court explained the issue before it as whether defendant’s fifth amendment privilege applies at probation revocation hearings,

“as to questions which would not incriminate the Defendant as to non-criminal acts. There is no question posed that the Defendant would be entitled to raise the privilege if he were asked questions that might tend to incriminate him on a subsequent offense or other offenses. The issue here is whether statements can be elicited from the Defendant which would tend to cause a revocation of his *** probation but not cause him to be prosecuted in other proceedings.”

In People v. Yantis (1984), 125 Ill. App. 3d 767, 769, 466 N.E.2d 603, 604, the State called the defendant as its only witness at the hearing on the State’s petition to revoke defendant’s probation. The State’s petition alleged that he had failed to comply with the conditions of his probation that he pay restitution, costs, and a fine. On the basis of defendant’s testimony, the trial court ruled that he had violated the terms of his probation and resentenced defendant accordingly. Yantis, 125 Ill. App. 3d at 768, 466 N.E.2d at 604.

On appeal, the defendant in Yantis contended that he was denied effective assistance of counsel because his attorney did not object when the State called him to testify as its sole witness. In order to resolve that claim, this court in Yantis wrote that “[a] preliminary inquiry must be made as to whether the fifth amendment privilege exists at a probation revocation hearing.” (Yantis, 125 Ill. App. 3d at 769, 466 N.E.2d at 604.) Ultimately, this court concluded that such a privilege does exist at probation revocation hearings. Yantis, 125 Ill. App. 3d at 769, 466 N.E.2d at 605.

Contemporaneously with the decision of this court in Yantis, the United States Supreme Court, in Minnesota v. Murphy (1984), 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136, addressed the issue of whether the fifth amendment applied to prohibit the introduction into evidence in a subsequent criminal prosecution of admissions made by defendant to his probation officer. The Court held that if questions put to the probationer, however relevant they might be to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution, then a fifth amendment right against self-incrimination would likely attach. (Murphy, 465 U.S. at 435, 79 L. Ed. 2d at 424-25, 104 S. Ct. at 1146.) In footnote 7, however, the Court noted the following:

“The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. *** Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of [a probationary] requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding.” Murphy, 465 U.S. at 435 n.7, 79 L. Ed. 2d at 425 n.7, 104 S. Ct. at 1146 n.7.

Two years after its decision in Murphy, the Supreme Court, in Allen v. Illinois (1986), 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988, dealt with the question of whether proceedings under the Illinois Sexually Dangerous Persons Act (Ill. Rev. Stat. 1985, ch. 38, par. 105—1.01 et seq.) were “criminal” within the meaning of the fifth amendment’s guarantee against compulsory self-incrimination. In the course of resolving that issue, the Court referred to its decision in Murphy and wrote the following:

“Only two Terms ago, in Minnesota v. Murphy, 465 U.S. at 435, n. 7, this Court stated that a person may not claim the privilege merely because his answer might result in revocation of his probationary status. ***
* * *
*** We therefore cannot say that the conditions of petitioner’s confinement themselves amount to ‘punishment’ and thus render ‘criminal’ the proceedings which led to confinement.” Allen, 478 U.S. at 372-74, 92 L. Ed. 2d at 307, 106 S. Ct. at 2994.

In People v. Davis (1991), 216 Ill. App. 3d 884, 576 N.E.2d 510, the court addressed defendant’s argument that the trial court erred in revoking her probation based on its finding that she wilfully failed to pay restitution. In the course of discussing the evidence presented regarding that charge, the court wrote the following:

“We note that the State did not call defendant as a witness to elicit [defendant’s explanation of her failure to pay restitution]. See Minnesota v. Murphy (1984), 465 U.S. 420, 435-36 n.7, 79 L. Ed. 2d 409, 424-25 n.7, 104 S. Ct. 1136, 1146-47 n.7 (compelling probationer to appear to discuss noncriminal violations of probation does not offend the privilege against self-incrimination); 3 W. LaFave & J. Israel, Criminal Procedure §25.4, at 164 (1984). Contra People v. Yantis (1984), 125 Ill. App. 3d 767, 466 N.E.2d 603 (effectively overruled by Murphy).” Davis, 216 Ill. App. 3d at 889-90, 576 N.E.2d at 514.

As noted by Davis, Professor LaFave has written on the issue before this court, as follows:

“The Supreme Court has interpreted the Fifth Amendment privilege against self-incrimination to mean that a defendant in a criminal case may decline to take the stand at all, while a witness in other proceedings must take the stand but may decline to answer particular questions which would tend to incriminate him in a future criminal prosecution. This means that the probationer may be called by the government as a witness in a revocation proceeding because it is not a criminal prosecution, and also that the defendant may be required to testify regarding his noncriminal conduct even if it amounts to a probation violation or else have his refusal considered against him.” 3 W. LaFave & J. Israel, Criminal Procedure §25.4, at 164 (1984).

We agree with the above authority and hold, as did Davis, that Murphy overruled Yantis. Accordingly, we hold that consistent with the fifth amendment to the United States Constitution, the State may call a defendant to testify at a probation revocation hearing to elicit testimony which would show that the defendant had violated conditions of his probation but which would not incriminate him in any other proceedings.

IV. APPLICABILITY OF SECTION 155-1

Defendant last argues that the State is barred from calling him as a witness in a proceeding to revoke his probation by the provisions of section 6 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1989, ch. 38, par. 155—1). That section reads as follows:

“No person shall be disqualified as a witness in any criminal case or proceeding by reason of his or her interest in the event of the same, as a party or otherwise, or by reason of his or her having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting the credibility of the witness: Provided, however, that a defendant in any criminal case or proceeding shall only at his or her own request be deemed a competent witness, and the person’s neglect to testify shall not create any presumption against the person, nor shall the court permit any reference or comment to be made to or upon such neglect.” Ill. Rev. Stat. 1989, ch. 38, par. 155—1.

This statute, which was part of Illinois’ original 1874 criminal code, has its roots in the 1600’s and was designed to ameliorate the common law rule prohibiting parties as witnesses in criminal cases. (See Ferguson v. Georgia (1961), 365 U.S. 570, 597, 5 L. Ed. 2d 783, 799, 81 S. Ct. 756, 770-71 (appendix).) We note that the recent addition of section 115 — 14 to the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—14) renders totally obsolete the previously archaic provisions contained in section 6. In any event, we hold that no construction of section 6 permits the result that defendant here asks us to reach, namely, that section 6 bars the State from calling a defendant to testify at a proceeding to revoke his probation. If the General Assembly, as the policy-making body for the State of Illinois, deems the result in this case too harsh and wishes to bar the State from calling a defendant to testify at a proceeding to revoke his probation, it may so legislate.

For the reasons stated, we reverse the trial court’s order barring the State from calling defendant to the witness stand at his probation revocation proceeding, and we remand this matter for further proceedings consistent with the views expressed herein.

Reversed and remanded.

GREEN, P.J., and KNECHT, J., concur.


author: JUSTICE LUND

text:
    MARY TIMM, Plaintiff-Appellant, v. INDIAN SPRINGS RECREATION ASSOCIATION et al., Defendants-Appellees.
    Fourth District
    No. 4—91—0328
    Opinion filed March 19, 1992.

      William R. Scott, of Rantoul (G. Michael Prall, of counsel), for appellant.
    Costigan & Wollrab, P.C., of Bloomington (Robert W. Neirynck, of counsel), for appellee Ruth Cochran.
    Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (John P. Fleming and Charles W. Gunnarson, of counsel), for appellee Indian Springs Recreation Association.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Mary Timm appeals from a judgment entered upon a jury verdict that found defendants Ruth Cochran and Indian Springs Recreation Association (Indian Springs) not guilty of negligence for injuries to plaintiff proximately caused by defendants’ failure to provide handrails or adequate warning of the lack of handrails on a golf cart owned and operated by Cochran. Plaintiff sustained a fracture to her right ankle resulting in permanent disability. Plaintiff also appeals the denial of a pretrial motion to amend the complaint with the addition of a separate count against Indian Springs. We affirm.

We first address plaintiff’s argument that the jury’s verdict was against the manifest weight of the evidence. Evidence at trial established the following facts surrounding plaintiff’s injury. Plaintiff was golfing with Cochran and two others in a women’s golf league on the premises of Indian Springs. Plaintiff was an experienced golfer, having played regularly since 1971, and had ridden in golf carts as many as 100 times before. Plaintiff stepped in and out of the cart several times just prior to the accident. At one point, as Cochran was turning the cart on a slight incline, plaintiff fell out of the cart and injured her ankle. While the other two golfers observed nothing unusual about the way Cochran moved the cart, no one actually saw plaintiff fall. When asked at her deposition whether she had hopped out of the cart while it was moving, she replied that she probably had done so as part of a normal reaction to falling out of the cart. At trial, she compared the reaction to putting up one’s hands to keep from hitting something.

Indian Springs is a semiprivate golf course open to members and the public. In 1980, it obtained five golf carts under a lease-purchase agreement from Jack Johnson and, in 1982, it exercised its purchase option. Johnson is a current member of Indian Springs and sat on its board of directors in 1979 and 1980. Johnson testified that during the lease period golfers complained to him that handrails were missing and they did not wish to rent golf carts in that condition. Under the terms of the lease agreement, Indian Springs was required to maintain the carts in a safe working condition. To this end, Johnson notified the greenskeeper of the problem, as it was his responsibility for repairs. When Johnson was asked if he knew the purpose of a handrail, he responded that it is a safety device and, in his opinion, if it was not there, it would definitely contribute to an accident.

A former manager of Indian Springs offered additional testimony, indicating that golf carts missing handrails continued to be rented out to golfers. Attempts were made to repair the carts, but the handrails continued to fall off. He vacillated when asked if he felt the carts were unsafe, saying they were not unsafe and, yet, under certain conditions they might be.

In 1985, Indian Springs sold one of the golf carts to Cochran and her husband Harold. Cochran’s husband was on the board of directors of Indian Springs at the time of purchase. The cart was sold “as is” and was missing a handrail for the passenger side. No operator manuals were furnished, and no warnings were given regarding the missing handrail. Indian Springs agreed to store the golf cart on the course for a fee which included a monthly charge for the privilege of using the cart on the course.

Plaintiff’s expert witness William Baldwin, president of the Illinois chapter of the Professional Golfers Association, testified to the fact that the handrails act as a form of body restraint to keep the occupant from sliding out of the cart during its operation. He testified that a golf cart without a handrail is not safe for use. As support, he offered standards for golf carts published by the American National Standards Institute (ANSI), which require that handrails be attached to all golf carts at the time of manufacture. Under cross-examination, he revealed that the standards themselves do not in any respect preclude anyone from purchasing or using products not conforming to the standard. He further stated that no Professional Golfers’ Association (PGA) or United States Golfers’ Association (USGA) standards rule out using carts without handrails. He had worked at four golf courses in his career, but had never seen these ANSI standards prior to being hired to testify in this case. Plaintiff’s expert also testified that he had seen people fall out of golf carts that were equipped with handrails, and that he could not specifically state whether a handrail would have kept the plaintiff in the cart in this accident. He qualified this testimony by stating that he was not testifying as an accident re-constructionist. He declared in his discovery deposition that a passenger has a duty not to ride in a golf cart without handrails. During trial he qualified this statement, adding that a passenger has a duty not to ride without handrails when he/she knows of the absence of handrails. Finally, he stated that passengers must keep their feet inside the cart and never attempt to get out while it is in motion.

In separate counts, plaintiff claimed that both Indian Springs and Cochran failed to warn her of a condition which they knew, or should have known, to be dangerous. An additional count was directed to Cochran for negligently operating a vehicle which she knew, or should have known, was dangerous. The jury returned a verdict in favor of defendants and against plaintiff on all counts. The court entered judgment in accordance with the jury’s verdict and denied plaintiff’s post-trial motions.

Plaintiff argues that she is entitled to judgment n.o.v. or, in the alternative, a new trial. Judgments n.o.v. are entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) A new trial may be granted if the verdict is against the manifest weight of the evidence. A verdict is contrary to the manifest weight of the evidence only when the opposite conclusion is clearly apparent or the findings appear to be unreasonable, arbitrary, and not based upon the evidence. Duffek v. Vanderhei (1980), 81 Ill. App. 3d 1078, 1087, 401 N.E.2d 1145, 1153.

If there is evidence which if believed supports the verdict in favor of defendant, we will not interfere -with the result. (Nowakowski v. Hoppe Tire Co. (1976), 39 Ill. App. 3d 155, 349 N.E.2d 578.) It is for the jury alone to determine the credibility of the witness and the weight of the evidence in disputed questions of fact. (O’Reilly v. Fencel (1976), 38 Ill. App. 3d 499, 348 N.E.2d 251.) A verdict should not be disturbed on review merely because the jury could have drawn different inferences from the evidence. O’Reilly, 38 Ill. App. 3d at 501, 348 N.E.2d at 253.

A complaint for negligence must set out the existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307, 308.) The occurrence involved must not have been merely foreseeable, it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. Cunis v. Brennan (1974), 56 Ill. 2d 372, 376, 308 N.E.2d 617, 619.

Count VII of the plaintiff’s complaint against Cochran alleges that Cochran operated a golf cart which she knew, or should have known, was likely to be dangerous for a passenger. The initial question is whether the cart was actually dangerous without a handrail. On this point, the jury heard conflicting testimony. The original leaseholder of the carts (Johnson) said that a lack of handrails would definitely contribute to an accident. In contrast, the former manager of Indian Springs agreed that under certain conditions a cart without handrails could be dangerous. However, when asked if he felt the carts were unsafe, he replied that they were not.

As to the issue of defendant Cochran’s knowledge of a dangerous condition, the fact that she had ridden in the cart as a passenger on several occasions is relevant. A jury could reasonably ask whether she would have subjected herself to this dangerous condition if the cart was, in fact, dangerous. A jury would be free to assume that Cochran did not sense that the cart was dangerous. Another factor is that plaintiff had been golfing for over 15 years and ridden in golf carts on many occasions. Her own familiarity with riding in golf carts could easily cause a jury to question whether she would willingly subject herself to riding in a dangerous golf cart unless, in fact, the cart was not seen to be dangerous.

Plaintiff’s expert explained that the ANSI requires handrails as a safety device on all carts, but then admitted that of all the golf courses where he had worked, he had never employed these standards. In fact, he had no knowledge of these standards prior to trial. Under these facts, a jury could reasonably have concluded that a golf cart was not likely to be dangerous without handrails.

Another major element of count VII is whether the dangerous condition of the golf cart was a proximate cause of the injury to plaintiff. It is uncontested that the purpose of a handrail is to assist the passenger in staying in his/her seat. However, plaintiff’s expert witness testified that he had seen people fall out of golf carts that were equipped with handrails, and furthermore, he could not state specifically that a handrail would have prevented this accident. Negligent conduct cannot be the proximate cause of an injury unless there is evidence that, but for the conduct, the injury would probably not have resulted. Kincl v. Hycel, Inc. (1977), 56 Ill. App. 3d 772, 787, 372 N.E.2d 385, 396.

The jury was free to believe that even had the handrail been in place, plaintiff might still have fallen out of the cart. Where a defendant’s negligence creates merely a passive condition that makes an injury possible but is not necessarily the cause of the injury, defendant cannot be held liable for plaintiff’s injury. (Briske v. Village of Burnham (1942), 379 Ill. 193, 39 N.E.2d 976; Fultz v. Myers (1972), 5 Ill. App. 3d 230, 234, 282 N.E.2d 488, 490.) The testimony of plaintiff’s expert confirms that a jury’s determination of a lack of proximate cause would not be arbitrary.

A second element of plaintiff’s case against both defendants is the failure to warn plaintiff of a dangerous condition. A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given. (Kirby v. General Paving Co. (1967), 86 Ill. App. 2d 453, 457, 229 N.E.2d 777, 779.) Plaintiff presented testimony that the former leaseholder on the carts, Jack Johnson, had notified the Indian Springs greenskeeper of the unsafe condition of the carts. Also, the fact that Indian Springs had made repeated attempts to repair the handrails indicates a constructive knowledge of the dangerousness of the carts. This evidence is balanced against the testimony of the former course manager, who testified that he had no knowledge of anyone falling out of a cart, no knowledge of any prior injuries involving the lack of handrails, nor any injury of any kind with respect to golf carts. Cochran herself had used the cart in this condition several times, sitting as a passenger while her husband drove. There is no evidence that anyone at any time advised the Cochrans that their cart was unsafe, nor is there any evidence that they themselves considered the cart dangerous.

The purpose of a warning is to apprise the party of a danger of which she has no knowledge and thereby enable her to take appropriate measures to protect herself. (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 526 N.E.2d 607.) Where the danger is obvious and generally appreciated, nothing is gained by a warning and none is required. (Kokoyachuk, 172 Ill. App. 3d at 439, 526 N.E.2d at 610.) Injuries are not compensable if they are caused by inherent propensities of a product which are obvious to all who come into contact with it. Lara v. Thoro-Matic Vacuum Systems, Inc. (1990), 194 Ill. App. 3d 781, 551 N.E.2d 390.

Defendants both claim that the lack of handrails on the golf cart was an open and obvious condition that obviates the need to warn of danger. Testimony reveals that on the day of the accident, no one on the golf outing was consciously aware of the lack of handrails on the cart. This supports Cochran’s contention that she had no prior knowledge of the dangerousness of the cart. The plaintiff naturally inquires how Cochran can at one time say that she had no knowledge of the lack of handrails and, at another time, contend that this condition is open and obvious. Both parties cite the same doctrine in support of their position, “[T]he law does not countenance the anomaly of one professing to look and not seeing that which is clearly visible.” (Warren v. Patton (1954), 2 Ill. App. 2d 173, 180, 119 N.E.2d 465, 469; see also Dee v. City of Peru (1931), 343 Ill. 36, 42, 174 N.E. 901, 904.) Plaintiff contends that the lack of handrails was simply not obvious and confirms this with Cochran’s testimony of her own lack of knowledge of the missing handrails. Cochran counters that plaintiff was an experienced golfer who had ridden in carts as many as 100 times before and had stepped in and out of the cart in question several times just prior to the accident. As further support, Cochran also points to plaintiff’s testimony where she looked at a picture of Cochran’s golf cart and affirmed that she could see no handrails in the picture.

The citation to Warren is inappropriate because it deals with a situation where the open and obvious condition is one which is present, e.g., a stoplight or a ravine, unlike the case at hand where the particular condition is essentially one of absence, i.e., something is missing. Generally, a person will notice that something is missing only when he or she has his or her attention directed toward it or when the condition is so blatantly obvious that no one could possibly avoid recognizing it, e.g., the golf cart had no wheels. We agree with plaintiff that the missing handrails, though visible, were not obvious. Still, the jury could reasonably find that Cochran, having received no warning from Indian Springs, no operator’s manual, nor any other reason to suspect that the condition was dangerous, was equally oblivious to any danger as was the plaintiff. The reasonableness of that conclusion is reinforced by evidence that plaintiff had subjected herself to the same condition and the fact that Cochran was an equally experienced golfer with years of experience riding in golf carts. A duty to warn arises only where there is unequal knowledge with respect to the risk of harm. Clark v. Penn Versatile Van (1990), 197 Ill. App. 3d 1, 554 N.E.2d 643.

Unlike Cochran, Indian Springs can be presumed to have had at least some notice of the dangerous condition of the golf carts through the former leaseholder and his complaints to the greenskeeper. Still, it is a question for the jury as to whether the cart was in itself likely to be dangerous. In light of conflicting evidence regarding the safety of the golf cart, the jury was entitled to find it not likely to be dangerous so that no duty to warn attached.

The second part of plaintiff’s appeal concerns the denial of a pretrial motion to amend the complaint with an additional count against Indian Springs. The count was based upon section 388 of the Restatement (Second) of Torts, which imposes a duty on the supplier of chattels to warn those who are expected to use the chattel of any danger of physical harm if the supplier: (a) knows or has reason to know that the chattel is or is likely to be dangerous for its intended use, (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or the facts which make it likely to be dangerous. Restatement (Second) of Torts §388, at 300-01 (1965).

The motion to amend was filed in a timely manner, and Indian Springs made no claim of surprise or prejudice. Defendants opposed the motion on grounds that it was a duplication of count I against Indian Springs, and the trial court agreed. Count I against Indian Springs was based on section 344 of the Restatement (Second) of Torts, which imposes a duty on landowners to protect invitees from the physical harm caused by the accidental, negligent, or intentionally harmful acts of third parties and by the failure to exercise reasonable care to (a) discover that such acts are being done or likely to be done; or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. Restatement (Second) of Torts §344, at 223-24 (1965).

A comparison between count I and proposed count VIII indicates only three paragraphs which are not verbatim duplications. The first, paragraph six, in both counts states that defendant knew or should have known that without a safety handrail, a golf cart could pose a danger of injury to passengers, especially during turns. Proposed count VIII adds to this final clause that the cart was therefore likely to be dangerous for its intended use. This is a clear reference to section 388(a) of the Restatement (Second) of Torts and, applied to these pleadings and reduced to its simplest form, merely states that a golf cart -without handrails is dangerous and therefore likely to be dangerous. The addition of the term of art “intended use,” while referencing section 388(a) of the Restatement (Second) of Torts, does not alter the tautological character of this paragraph, and the trial court was amply justified in finding it duplicative.

Another difference between count I and proposed count VIII is in paragraph seven of the proposed amendment where an entirely new paragraph is added, stating “[tjhat the Defendant had no reason to believe that passengers, including the Plaintiff, would realize its dangerous conditions.” This paragraph references section 388(b) of the Restatement (Second) of Torts, but does not significantly alter the character of the pleadings. Paragraph 12 of the original count I refers to defendant’s failure to warn plaintiff of the dangerous condition of the golf cart. Certainly, under this paragraph, the plaintiff is required to prove not only that there was a failure to warn, but also that a warning was necessary. This seventh paragraph, while different from any in count I, calls for litigation of precisely the same issues as those raised in paragraph 12 of count I.

The final difference between the two counts is between paragraph 12 of count I and paragraph 13 of proposed count VIII. Paragraph 13 mimics section 388(c) of the Restatement (Second) of Torts, which deals with the failure to exercise reasonable care to inform of a dangerous condition or of the facts which make it likely to be dangerous. Both paragraphs are concerned with the failure to warn of a dangerous condition, but count VIII specifically mentions failure to warn plaintiff or Ruth Cochran. The essence of the paragraph is a simple failure to warn of a dangerous condition, but by including Cochran in this duty to warn, a subtle transformation is accomplished. The jury instructions for count I state that Indian Springs knew, or should have known, that the actions of Cochran in operating her golf cart without a handrail on the passenger side could cause injury to plaintiff. These instructions imply that culpable behavior on the part of Cochran is essential before Indian Springs can be charged with negligence. The proposed count VIII, on the other hand, portrays both the owner of the golf cart and the subsequently injured passenger as victims of Indian Springs’ negligence in failing to warn of a dangerous condition. By holding out both Cochran and plaintiff as victims of Indian Springs’ negligence, Cochran’s role in the chain of events becomes meaningless and Indian Springs is seen to stand alone in its sale of a defective golf cart.

Whatever benefit plaintiff may have attained had the proposed amendment been allowed was lost in the drafting of the jury instructions for count I. As discussed earlier, count I is based upon section 344 of the Restatement, which provides that landowners owe a duty to protect invitees from the actions of third parties. This section covers not only the negligent and intentionally harmful acts of third parties, but also accidental actions. Despite the implication that the actions of both defendants are intertwined, no negligent or culpable behavior on the part of Cochran is required under section 344 of the Restatement because the essence of the action is the defendant’s failure to warn. Page one of plaintiff’s tendered jury instruction No. 12 reflects this doctrine when it states that the defendant’s failure to warn the plaintiff was a proximate cause of her injuries. And yet, on plaintiff’s instruction No. 13(a), the final checklist for the jury, plaintiff states that in order to find a verdict against Indian Springs under count I, the jury must find that the actions of Cochran in operating her cart without a handrail were a proximate cause of plaintiff’s injury. Plaintiff cannot be allowed to complain of confusion in the relationship between defendants, when this confusion is at least partially authorized by the plaintiff herself.

Other than the one additional phrase in paragraph 13 of proposed count VIII, where the failure to warn is directed to both Cochran and plaintiff, the two counts are substantially identical. Paragraph 13 yields a subtle, yet significant, separation of the parties, forcing Indian Springs to stand on its own in its failure to warn of a dangerous condition. If the trial court committed a subtle error in missing the potential significance of that one small phrase in count VIII, then the plaintiff has committed a gargantuan error by demolishing in her jury instructions that which count VIII was intended to create — the independence of the claims between the two defendants.

Plaintiff claims count VIII was premised on section 388 of the Restatement (Second) of Torts, which deals with the liability of suppliers of chattels, and yet the words “supplier of chattels” do not appear anywhere in the proposed count. The fact that Indian Springs sold the golf cart to Cochran is alleged in paragraph three, but this paragraph is an exact duplicate of paragraph three in the existing count I. One must ask how anyone would know that this proposed count had any relationship to section 388 of the Restatement (Second) of Torts. No briefs were submitted with the proposed amendment, and plaintiff did not respond on the record when Indian Springs opposed the motion to amend. No mention of section 388 of the Restatement (Second) of Torts is preserved in the record. As discussed earlier, the slight alterations to the three paragraphs in count I were designed to reference sections 388(a), (b), and (c) of the Restatement (Second) of Torts, which deal with the duty to warn. Yet, nowhere in proposed count VIII does it reference the substance of section 388 of the Restatement (Second) of Torts as a rule applicable to suppliers of chattels. The trial court was amply justified in ruling that the count was a mere duplication of count I.

Amendments of plaintiff’s complaint should be allowed where justice will not be served by denial thereof. (Seibring v. Parcell’s Inc. (1987), 159 Ill. App. 3d 676, 681, 512 N.E.2d 394, 398.) The decision of a trial court as to whether to permit an amendment is a matter of judicial discretion and will not be disturbed on appeal absent an abuse of such discretion. (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 591, 491 N.E.2d 803, 808.) Where the movant does not raise anything new in her proposed amendment, a trial court does not abuse its discretion in denying leave to amend. (Taylor, 142 Ill. App. 3d at 594-95, 491 N.E.2d at 810.) Plaintiff’s failure to draft the proposed count in a manner that clearly referenced section 388 of the Restatement (Second) of Torts clearly vindicates the court’s inability to perceive its subtle significance. Any confusion in the relationship of the defendants which the proposed count VIII was designed to clarify was itself created by the plaintiff’s own instructions to the jury. Plaintiff cannot be allowed to submit jury instructions which draw an erroneous relationship between the two defendants and then claim that the relationship would never have existed had the court allowed the complaint to be amended with an additional count.

Affirmed.

GREEN, P.J., and STEIGMANN, J., concur.