text:
    ZARITA SEVERSON, Mother and Next Friend of Bryan Villarreal, a Minor, Plaintiff-Appellant, v. DONNA RING, Defendant-Appellee (David Her-born, Defendant).
    Third District
    No. 3—92—0789
    Opinion filed May 14,1993.
    Modified on denial of rehearing June 18,1993.
    Robert L. Silberstein, of Peoria, for appellant.

      Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria (Nicholas J. Bertschy, of counsel), for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Zarita Severson, mother and next friend of Bryan Villarreal, filed an amended complaint against the defendant, Donna Ring. The complaint alleged that the defendant was liable for dog bite injuries to Bryan Villareal (Bryan) based upon common law and also based upon section 16 of the Animal Control Act (Ill. Rev. Stat. 1991, ch. 8, par. 366). The plaintiff appeals from an order which granted summary judgment in favor of the defendant on both claims.

The plaintiff raises two issues on appeal: (1) whether summary judgment was properly granted under the facts of this case; and (2) whether the trial court erred in dismissing the plaintiff’s original complaint, which was based upon general negligence.

We conclude that summary judgment was properly granted on the plaintiff’s statutory cause of action. However, we also conclude that a genuine issue of material fact exists regarding the plaintiff’s common law cause of action. The trial court’s grant of summary judgment is therefore affirmed in part and reversed in part.

Furthermore, we find that the plaintiff waived any objection to the trial court’s dismissal of her original complaint based upon general negligence when she filed her second amended complaint without incorporating therein the allegations of her original complaint. Accordingly, we affirm on this issue.

The plaintiff filed a four-count second amended complaint against the defendant and David Herborn. The amended complaint alleged that Bryan suffered painful and severe injuries to his face when he was bitten by a dog. The incident occurred on May 22, 1990. The dog that bit Bryan was a Siberian husky named Samson.

Counts I and III of plaintiff’s second amended complaint were directed against David Herborn, the owner of Samson. In count II, the plaintiff alleged Samson was on the defendant’s property and under the defendant’s control when Samson injured Bryan. The plaintiff alleged the defendant was liable pursuant to section 16 of the Animal Control Act (Ill. Rev. Stat. 1991, ch. 8, par. 366). In count IV, the plaintiff alleged the defendant was liable under common law because she knew or should have known that Samson had previously attacked a young child “or otherwise had a vicious propensity.”

The depositions filed with the trial court show the following took place on May 22, 1990, the day 27-month-old Bryan was bitten by Samson. Herborn brought Samson to the defendant’s house and chained the dog to a tree in the defendant’s yard. Samson had been on the defendant’s property on only one prior occasion, approximately one week before the incident. On May 22, 1990, the defendant allowed Herborn to leave Samson at her property while Herborn left to mow the defendant’s mother’s lawn. The defendant did not care for Samson or give him food or water. The attack occurred about one-half hour later. The defendant testified she never had any problems with Samson. She said that when Samson was on a chain, she had approached him without any problems. The defendant said that she had never seen Samson growl at, chase or bite anyone. Also, she was not aware that Samson had recently bitten a child on May 2, 1990. The defendant knew that the plaintiff and three young children lived next door. The defendant never restricted the children from coming into her yard. The record shows there was no fence between the adjoining yards.

Herborn testified that Samson was leery of children coming up to him when he was on a chain. One week prior to the incident, Samson had been on a chain at the defendant’s house. At that time, Herborn was sitting at a picnic table talking to the defendant. Herborn said he told the plaintiff that he did not give Samson human food and he “wouldn’t go near him ***, not when he is chained up.” Herborn said that he took care of giving Samson food and water on May 22, 1990. Also, Herborn stated that the defendant did not have to give Samson either food or water on the day of the incident and did not have control over Samson.

The plaintiff was baby-sitting three children and was also taking care of her own three children on May 22, 1990. Amy Elliott, age seven, was one of the children the plaintiff was baby-sitting. Amy said that on the day of the attack, she and four of the other children went outside. Amy saw Bryan petting Samson on its back. She then went over to get her brother. When Amy looked back at Bryan, he was on the ground and Samson was on top of him.

In addition to the deposition excerpts, the plaintiff also filed copies of Tazewell County animal control reports which stated that Samson had previously bitten a two-year-old child on May 2,1990.

Based upon this evidence, the trial court granted the defendant’s motion for summary judgment. The court found the defendant was entitled to summary judgment on count II of the complaint since the defendant was not the “owner” of Samson and because the plaintiff did not prove peaceable conduct and the absence of provocation. The court found that summary judgment was proper on count IV of the complaint since the defendant did not have notice that Samson was vicious. The plaintiff subsequently voluntarily dismissed the counts of her complaint directed against Herborn. This timely appeal followed.

The plaintiff first contends that the defendant’s motion for summary judgment should not have been granted. Plaintiff argues that genuine issues of material fact exist regarding her cause of action. We agree that a genuine issue of material fact exists, but only as to the plaintiff’s common law cause of action.

Summary judgment is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Mitchell v. Jewel Food Stores, Division of Jewel Food Cos. (1990), 142 Ill. 2d 152, 165, 568 N.E.2d 827, 832; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact. If a genuine issue of material fact exists, the party opposing the motion has the right to a jury trial. (Mitchell, 142 Ill. 2d at 165, 568 N.E.2d at 832.) In ruling on a motion for summary judgment, the evidence must be strictly construed against the moving party and liberally construed in favor of the opponent. Tersavich v. First National Bank & Trust (1991), 143 Ill. 2d 74, 80-81, 571 N.E.2d 733, 735-36.

We agree with the trial court that summary judgment was proper regarding count II of the complaint, which alleged a statutory cause of action. A cause of action based upon the statute does not require proof of the defendant’s knowledge of the dog’s vicious nature. (Steinberg v. Petta (1986), 114 Ill. 2d 496, 500, 501 N.E.2d 1263, 1265.) To establish a cause of action under section 16 of the Animal Control Act (Ill. Rev. Stat. 1991, ch. 8, par. 366), a plaintiff must prove four elements: (1) injury caused by an animal owned by the defendant; (2) the lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place where he has a legal right to be. Smith v. Pitchford (1991), 219 Ill. App. 3d 152, 154, 579 N.E.2d 24, 26.

The defendant has not argued that Bryan did not have a right to be on her property. However, the defendant successfully argued before the trial court: (1) that she was not the “owner” of Samson; (2) that the plaintiff did not establish peaceable conduct; and (3) that the plaintiff did not establish the lack of provocation.

The Animal Control Act defines “owner” as “any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him.” (Ill. Rev. Stat. 1991, ch. 8, par. 352.16.) The defendant had Samson on her premises, which would seem to fit the statutory definition of “owner.” However, the term “owner” has been consistently construed to involve some measure of care, custody or control. Steinberg, 114 Ill. 2d at 501-02, 501 N.E.2d at 1265-66; Papesh v. Matesevac (1991), 223 Ill. App. 3d 189, 191, 584 N.E.2d 549, 550-51; Thompson v. Dawson (1985), 136 Ill. App. 3d 695, 699, 483 N.E.2d 1072,1075.

Thus, in Steinberg, the court found that a landlord was not the “owner” of a dog which he permitted his tenants to keep on his property. (Steinberg, 114 Ill. 2d at 502-03, 501 N.E.2d at 1266-67.) Also, in Thompson, the court held that the trier of fact could properly find that the defendants were not the “owners” of a stray dog just because they had given the dog food and water. (Thompson, 136 Ill. App. 3d at 698-700, 483 N.E.2d at 1074-75.) The question of ownership is usually one for the trier of fact. (Steinberg, 114 Ill. 2d at 502, 501 N.E.2d at 1266; Papesh, 223 Ill. App. 3d at 191, 584 N.E.2d at 550.) However, summary judgment has been found to be proper in appropriate cases. Papesh, 223 Ill. App. 3d at 191, 584 N.E.2d at 550.

We determined in Papesh that summary judgment was properly granted because there was no evidence that the defendant exercised any level of care, custody or control over the offending dog. (Papesh, 223 Ill. App. 3d at 191-92, 584 N.E.2d at 551.) We conclude that the same result is warranted here. In the case at hand, no evidence was presented that the defendant exercised any level of care, custody or control over Samson. It was Herborn who chained Samson to a tree at the defendant’s house. Both the defendant and Herborn testified that Herborn gave Samson food and water on the day of the attack. Also, they both testified that the defendant did not take care of Samson.

The plaintiff relies on a rather vague statement in Herborn’s deposition that the defendant and her boyfriend would “check” Samson’s food and water. However, Herborn clearly stated he took care of Samson’s food and water and that the defendant did not need to take care of those matters. Based upon the applicable case law, we conclude there was no question of material fact regarding whether the defendant was the “owner” of Samson. Therefore, summary judgment was properly granted as to count II of the plaintiff’s complaint.

Because of this conclusion, we do not need to review the issue of the lack of provocation. However, we note that greeting or petting a dog does not generally constitute provocation. (See Smith v. Pitchford (1991), 219 Ill. App. 3d 152, 154, 579 N.E.2d 24, 26.) Here, the defendant argued that the plaintiff failed to establish the lack of provocation because Amy Elliott testified she did not see what happened immediately before Samson attacked Bryan. We do not agree with the defendant’s argument. Amy’s deposition testimony was clearly sufficient to raise a question of fact regarding the lack of provocation.

Regarding the plaintiff’s common law cause of action, we find that summary judgment should not have been granted. The court in Lucas v. Kriska (1988), 168 Ill. App. 3d 317, 522 N.E.2d 736, dealt with a situation factually similar to the circumstances before us in the instant appeal. In Lucas, a dog owned by someone else was also on the property of the defendant landowner. Following a trial, the jury found that the landowner was liable for the injuries caused by the dog. However, the jury answered a special interrogatory and found that the landowner was not the “owner, keeper, or harborer” of the dog. The court in Lucas noted that since the jury found the landowner was not the “owner” of the dog, the landowner could not have been found liable under the Animal Control Act. The Lucas court determined, however, that the landowner could be found liable under common law, but only if the plaintiff could show that the landowner had “prior knowledge of the dog’s viciousness.” (Lucas, 168 Ill. App. 3d at 320, 522 N.E.2d at 737.) Here, it has been similarly determined that the defendant was not the “owner” of Samson. However, based upon Lucas, the defendant could nevertheless be found liable under the common law if she was aware of Samson’s viciousness.

In Lucas, the court reversed the judgment against the landowner. The court found there was no evidence presented that the landowner knew that the dog “posed a special danger to children or to people generally.” (Lucas, 168 Ill. App. 3d at 320, 522 N.E.2d at 738.) Here, the plaintiff contends that enough evidence was presented to create a genuine issue of material fact regarding whether the defendant knew that Samson posed a danger to children or to people generally. We agree with the plaintiff’s argument. We find that a genuine issue of material fact exists concerning the question of whether the defendant had prior knowledge of Samson’s viciousness.

Here, evidence was presented that Samson was leery of children coming up to him when he was on a chain. Samson had, in fact, bitten a small child just 20 days prior to this incident. The defendant testified during her deposition that she was not aware of the previous dog bite. The defendant also stated that she never had any problems with Samson and never saw Samson behave in an aggressive manner. However, according to Herborn’s testimony, the defendant was present when he told the plaintiff that he “wouldn’t go near [Samson] ***, not when he is chained up.” We find that Herborn’s statement, which was made in the defendant’s presence, may have put the defendant on notice that Samson posed a danger when he was on a chain. Based upon these facts, we conclude that it is for the trier of fact to decide whether the defendant had sufficient notice to be held liable in this case. Therefore, summary judgment should not have been granted on count IV of the plaintiff’s complaint.

The plaintiff next argues that the trial court erred in dismissing her original complaint which was based upon general negligence. However, v/e note that the plaintiff filed her second amended complaint without incorporating therein the allegations of her original complaint. It is well established that allegations in a former complaint which are not incorporated into the final amended complaint are deemed waived. (Pfaff v. Chrysler Corp. (1992), 155 Ill. 2d 35, 61.) By filing an amended complaint without incorporating the former allegations, a party waives any objection to the trial court’s dismissal of the former complaint. (Pfaff, 155 Ill. 2d at 61; Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 153-55, 449 N.E.2d 125, 126-27.) Accordingly, the plaintiff has waived this issue, and we will not consider it on appeal.

For the reasons indicated, the judgment of the circuit court of Tazewell County is affirmed in part and reversed in part. This cause is remanded to the circuit court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

BRESLIN and LYTTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY TAYLOR, Defendant-Appellant.
    Second District
    No. 2 — 90—0809
    Opinion filed April 30,1993.

      G. Joseph Weller, Steven E. Wiltgen, and Francine Harrison, all of State Appellate Defender’s Office, of Elgin, for appellant.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Tracy Taylor, was charged by indictment in the circuit court of Kane County with the offenses of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(a)(2)) and attempted robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 18—1(a)). The State nol-prossed the attempted robbery charge at the close of its case in chief. A jury found defendant guilty of aggravated criminal sexual assault, and the court sentenced him to 30 years’ imprisonment in the Illinois Department of Corrections.

The sole issue on appeal is whether the trial court denied defendant his constitutional right to a public trial by excluding members of his family from the courtroom during the jury selection process.

Prior to voir dire, the defendant moved to exclude witnesses. The State did not object, and defendant’s exclusion motion was granted by the court with the proviso that each side control its own witnesses. As part of the voir dire process, the court announced to the assembled venire the names of Joe Green and Martha Mae Green, defendant’s stepfather and mother, as potential witnesses. Subsequently, the following exchange took place between counsel and the court outside the presence of the prospective jurors:

“MR. McCULLOCH: Judge, is there any particular reason why my client’s family can’t be in the courtroom during jury selection?
THE COURT: I don’t want them here during jury selection.
MR. McCULLOCH: I know. I think he’s entitled to have them here.
THE COURT: He is during the course of the trial.
MR. McCULLOCH: Since two of them are witnesses, they will be excluded during trial. I think they should be able to at least sit in and see people selected. For the record they haven’t been interfering with anybody.
THE COURT: I already made a decision, Tom. I do it for every trial. I don’t want any witnesses or family members or anything else in there while we’re picking the jury. I don’t want any comments back there that can be overheard to influence any of the jurors.
MR. McCULLOCH: No comments have been made.
THE COURT: I don’t know that and I’m not going to take the chance.
MR. McCULLOCH: I want the record to show that we object.
THE COURT: That’s fine.”

Defendant’s presentence investigation indicated his family included a stepfather, mother, and six siblings. Defendant explains in a footnote in his brief: “Presumably, the court had previously excluded members of the defendant’s family from jury selection and this apparently took place outside the record.” The State does not dispute defendant’s statement.

As a preliminary matter, the State requests that we limit the scope of our review to the extent of defendant’s post-trial motion claim of error which stated:

“That the court erred in denying the defendant his right to a public trial in that, during voir dire, the court excluded the defendant’s parents.” (Emphasis added.)

Relying on the legal principle of waiver, the State urges that defendant is not entitled to review of the exclusion of anyone other than his parents.

Section 116—1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 116—1) requires the filing of written motions for a new trial containing assignment of errors and specifying the grounds therefore. Issues not properly preserved in this manner will be deemed waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) There are three exceptions to the waiver rule where a defendant fails to comply with the requirements of section 116—1. A reviewing court may consider (1) constitutional issues which have been properly raised at trial and which can be raised later in a post-conviction hearing petition (see Ill. Rev. Stat. 1989, ch. 38, par. 122—1), (2) issues concerning the sufficiency of the evidence, and (3) plain error (see 134 Ill. 2d R. 615(a)). Enoch, 122 Ill. 2d at 190-91.

For purposes of the case before us, we deem the waiver rule inapplicable because, as will be shown, the defendant has properly raised constitutional issues at trial which can be later raised in a post-conviction hearing petition. Consequently, the scope of our review will extend to the consequences of the trial judge’s exclusion during jury selection of not only Joe and Martha Mae Green but also other members of defendant’s family.

Defendant contends that the exclusion of his family constituted a violation of his sixth amendment right to a public trial. We first examine the relationship between the process of selecting a jury and the sixth amendment right to a public trial. The sixth amendment guarantees that a defendant shall enjoy “the right to a speedy and public trial.” (U.S. Const., amend. VI.) The fourteenth amendment guarantees defendants in State prosecutions a public trial. (Re Oliver (1948), 333 U.S. 257, 266-73, 92 L. Ed. 682, 690-94, 68 S. Ct. 499, 504-07; see also Waller v. Georgia (1984), 467 U.S. 39, 46, 81 L. Ed. 2d 31, 38, 104 S. Ct. 2210, 2215.) The public trial guarantee was created for the benefit of the defendants. (Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215.) It discourages perjury and ensures that judges, lawyers and witnesses carry out their respective functions responsibly. (Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215.) “Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” Gannett Co. v. DePasquale (1979), 443 U.S. 368, 383, 61 L. Ed. 2d 608, 623, 99 S. Ct. 2898, 2907.

Recent judicial expression on the scope of a defendant’s right to a public trial had its genesis in cases interpreting the right to a public trial under the first amendment to the United States Constitution. In one of these cases, Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819, the court decided that constitutional guarantees of public proceedings in criminal trials cover proceedings for a voir dire examination of potential jurors. Press-Enterprise was subsequently relied on in Waller v. Georgia (1984), 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210, where the court held that the sixth amendment right to a public trial applies to hearings on motions to suppress evidence. The court noted that Press-Enterprise was premised on the first amendment right of the public and the press to attend voir dire proceedings but added, “Nevertheless, there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” (Waller, 467 U.S. at 46, 81 L. Ed. 2d at 38, 104 S. Ct. at 2215; see also United States v. Kobli (3d Cir. 1949), 172 F.2d 919 (holding that the selection of the jury constitutes part of a public trial).) Accordingly, it is clear that the public trial aspect of the sixth amendment applies to the voir dire and the individual jury selection process.

We next address defendant’s request that we interpret the trial judge’s statement that “I don’t want any witnesses or family members or anything else in there while we’re picking the jury” (emphasis added) to constitute a total exclusion of the public from the courtroom during jury selection. The State maintains that what occurred was, at best, only a partial closure of defendant’s trial. We refuse to give the broad interpretation sought by defendant to the words “or anything else,” in or out of context. Defendant’s request to the court was to have his family present during jury selection. The judge’s specific reason for exclusion was to avoid comments which could be overheard by and influence the jury. We interpret “anything else” to be the equivalent of family members, i.e., those persons so closely associated to the defendant by blood or special interest as to have the potential to display openly feelings inappropriate for a criminal trial setting and thus affect the impartiality of the jury. The defendant’s brush sweeps too broadly. We decline to encompass the entire general public within the phrase “or anything else” in the context of the factual presentation confronting us. Thus, we view the trial court’s ruling on public attendance during the jury selection not as a total closure to the public but as a partial closure limited to defendant’s parents and other family members.

The defendant and State next disagree on which legal standard should be applied in situations involving partial, in contrast to total, closures of public trials. The State acknowledges that some older Illinois case law held that the right to a public trial is violated only by a general indiscriminate exclusion of the public. (See People v. Dronso (1967), 83 Ill. App. 2d 59; People v. Brumfield (1979), 72 Ill. App. 3d 107.) Since Dronso and Brumfield, however, the United States Supreme Court decided Press-Enterprise (464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819) and Waller (467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210).

In Waller, the court adhered to the test for closing a trial proceeding enunciated in Press-Enterprise: “[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” (Waller, 467 U.S. at 48, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216.) The Press-EnterpriselWaller test makes no explicit distinction between a total and a partial closure. Waller, however, addressed total closure of an entire suppression hearing (the suppression hearing was conducted after the trial had commenced and was therefore considered a part of the trial) and does not necessarily govern partial closures. (United States v. Sherlock (9th Cir. 1989), 865 F.2d 1069, 1076.) Defendant asks that we adopt the Press-EnterpriselWaller “overriding interest” test. On the other hand, for purposes of the partial closure which occurred here, the State asks us to eschew the overriding interest test and adopt the lesser “substantial reason” test espoused in Douglas v. Wainwright (11th Cir. 1983), 714 F.2d 1532, vacated & remanded (1984), 468 U.S. 1212, 82 L. Ed. 2d 879, 104 S. Ct. 3580, aff’d on remand (11th Cir. 1984), 739 F.2d 531. See also Nieto v. Sullivan (10th Cir. 1989), 879 F.2d 743; United States v. Sherlock (9th Cir. 1989), 865 F.2d 1069.

Starting with the premise that the Press-EnterpriselWaller or “overriding interest” test applies to total closure cases, the Douglas, Nieto, and Sherlock courts believed a less stringent test should apply to cases involving partial closures of criminal trials, i.e., trials where the public is not totally excluded or where in certain cases the press alone is allowed to remain. Under the “substantial reason” test, the reviewing court must determine, in light of the defendant’s right to a public trial, whether the trial judge had a substantial reason for the closure, and whether the closure was narrowly tailored to exclude spectators and to the extent necessary to satisfy the purpose for which it was ordered. (United States v. Sherlock, 865 F.2d at 1077; see also Nieto, 879 F.2d at 753.) In Sherlock, the exclusion of the defendant’s family only during the testimony of the alleged victim because she was frightened and apprehensive of speaking before defendant’s family was held to constitute a narrowly tailored substantial reason which did not violate defendant’s right to a public trial. In Nieto, the exclusion of defendant’s family during the testimony of a State’s witness who feared reprisal from the family was held to meet the substantial reason test requirements and not violate defendant’s right to a public trial.

We find no Illinois cases which adopt, or even mention, the “substantial reason” test. On the contrary, People v. Holveck (1990), 141 Ill. 2d 84, recognizes and adopts the Press-EnterpriselWaller “overriding interest” test. Although not distinguishing between partial and total closures, Holveck applied the “overriding interest” test to a partial closure setting. Holveck was a trial for incidents of sexual assault against several five-year-old girls. On motion of the State and over defendant’s objection, pursuant to section 115 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—11) the trial court closed the courtroom when the victims testified. All spectators were excluded except members of the press, the victims’ fathers, and a psychologist of one victim. The sole reason cited by the court for the closure was the “unnerving effect” on the children if the courtroom were crowded and the court’s desire to make the unpleasant experience of testifying as pleasant as possible for them. Section 115 — 1 provided: “[Wjhere the alleged victim of the offense is a minor under 13 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” (Emphasis omitted.) Ill. Rev. Stat. 1985, ch. 38, par. 115—11, quoted in Holveck, 141 I. 2d at 102.

The Holveck court found that excluding persons, other than the press, who had no direct interest in the case, only during the testimony of a minor victim of a sexual crime, did not violate defendant’s sixth amendment right to a public trial. Another Illinois case adopting the “overriding interest” test is People v. Ramey (1992), 237 Ill. App. 3d 1001, which appears to be a total closure case wherein the trial judge, by shutting down a public address system during the closing argument part of a trial, made a de facto closure of a public trial, by effectively excluding from the courtroom a jury venire assembled to hear another criminal case and members of defendant’s family. The judge, sua sponte, ordered the loudspeaker system shut down to avoid contamination of the venire assembled in the courtroom for jury selection in another case. For security reasons, there was a glass barrier between the working part of the courtroom and that part where spectators sit. Sound emanating from the working part was available to the spectator part only via the public address system. The court held such closure violated defendant’s sixth amendment right to a public trial because the judge abused his discretion in failing to meet the elements set forth in Press-Enterprise, for assuming, without deciding, that an overriding interest existed, namely, the tainting of a venire, and by creating a closure broader (defendant’s family was also excluded from the courtroom) than necessary to protect this interest. See also People v. Priola (1990), 203 Ill. App. 3d 401; People v. Mor gan (1987), 152 Ill. App. 3d 97 (both partial closure cases utilizing section 115—11 to exclude persons not having a direct interest in the case during the testimony of certain witnesses where the court found no violation of defendant’s sixth amendment right to a public trial).

In light of Holveck’s application of the Press-EnterpriselWaller “overriding interest” test to a partial closure scenario, we shall apply the same test to the case before us. The public aspect of the exclusion during defendant’s trial falls into two distinct classifications. One is defendant’s mother and stepfather as potential witnesses and the other is defendant’s siblings. There is no indication the court intended to exclude members of the press or the public in general.

Prior to the selection of the jury, defendant’s attorney made a motion to exclude witnesses from the courtroom during the proceedings. The State, by its presence and failure to object, implicitly joined in such motion. In response to defendant’s motion, the court excluded all witnesses. Because defendant’s mother and stepfather were listed in discovery as potential witnesses, we tend to look upon this issue not as an action by the State which is directed at defendant’s sixth amendment right to a public trial, but rather as an act of the parties to exercise a long-standing trial right in criminal cases to request the exclusion of witnesses from the courtroom as part of the usual trial process. It was only after the judge granted defendant’s motion to exclude witnesses that defendant requested the court to make an exception to his ruling by allowing defendant’s mother and stepfather to remain in the courtroom during the jury selection process. It is within the sound discretion of the trial court to grant motions to exclude witnesses from the courtroom. (People v. Scott (1967), 38 Ill. 2d 302, 306; In re C.P. (1986), 141 Ill. App. 3d 1018, 1022.) The exercise of that discretion will not be disturbed unless a clear abuse of it or prejudice to the defendant is shown. (People v. Chennault (1962), 24 Ill. 2d 185, 187; In re Yates (1976), 35 Ill. App. 3d 829, 831-32.) We find no abuse of discretion in the exclusion of defendant’s mother and stepfather.

In contrast, we view the exclusion of defendant’s siblings from the courtroom during voir dire as a partial exclusion (neither the press nor all members of the general public were excluded) which impacted on defendant’s sixth amendment right to a public trial. We find that the trial court failed to apply properly the Press-Enterprise! Waller “overriding interest” test. The first requirement of that test is that the party seeking to close the hearing must “advance an overriding interest that is likely to be prejudiced.” The closure of a trial to the public to prevent contamination of potential jurors facially meets the requirement of an overriding interest. However, the record here fails to reveal a scintilla of evidence reasonably necessary to meet the “likely to be prejudiced” requirement. The record discloses only that it was the judge’s policy (“I do it for every trial”) to exclude family members from the jury selection part of trial to avoid the possibility of their comments or actions influencing the jurors. The record is devoid of any evidence of a reasonable likelihood that defendant’s siblings would attempt to influence the jurors.

There is a presumption that all trials are open to the public. (Press-Enterprise, 464 U.S. at 508, 78 L. Ed. 2d at 637, 104 S. Ct. at 823; Holveek, 141 Ill. 2d at 100.) While the presumption is not absolute, it must yield only to an overriding interest that is specifically articulated (Holveek, 141 Ill. 2d at 100). Under the facts before us, the presumption of openness has not been overcome, and defendant was denied his constitutional right to a public trial.

We also hold that the proper remedy in this instance is the granting of a new trial. “[T]he defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” (Waller, 467 U.S. at 49, 81 L. Ed. 2d at 40, 104 S. Ct. at 2217.) The remedy under Waller is required to be one which is “appropriate to the violation.” (Waller, 467 U.S. at 50, 81 L. Ed. 2d at 41, 104 S. Ct. at 2217.) We find that even though the violation came during the jury selection process, it is impossible to separate that part from the rest of the trial. The sixth amendment protects all of the trial component parts, and not simply the right publicly to present evidence and witnesses. (See Waller, 467 U.S. at 46-47, 81 L. Ed. 2d at 38-39, 104 S. Ct. at 2215-16; Press-Enterprise, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (closure during voir dire).) If the sixth amendment right is to have any vitality, we may not selectively ordain which portions of a trial are insignificant and therefore eligible for closure. Ramey, 237 Ill. App. 3d at 1006.

For the reasons stated, the judgment of the circuit court of Kane County is reversed, and the cause is remanded for a new trial. Because defendant’s appeal raises no questions as to the sufficiency of the evidence finding him guilty beyond a reasonable doubt, we make no findings as to the sufficiency of the evidence pursuant to the mandate of People v. Taylor (1979), 76 Ill. 2d 289.

Reversed and remanded.

INGLIS, P.J., and QUETSCH, J., concur.


author: JUSTICE QUETSCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH ARTALE, Defendant-Appellant.
    Second District
    No. 2 — 92—0073
    Opinion filed April 20,1993.
    Peter B. Nolte, of Rockford, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, and Penelope Gainer, Assistant Attorney General, of counsel), for the People.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Joseph Artale, appeals the circuit court’s denial of his motion to vacate his guilty plea, arguing that his plea was involuntary where it was based on his belief that a six- to eight-year sentence of imprisonment would be imposed rather than the 20-year term he received. We affirm.

In March 1990, defendant was charged in a four-count indictment for violating the provisions of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56V2, pars. 1401(a)(2), 1401(b)(2)). On June 24, 1991, defendant entered an open plea of guilty to count IV of the indictment charging him with knowing possession with intent to deliver more than 15 but less than 100 grams of a substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2)), a Class X felony. In exchange for this partially negotiated plea, the State agreed to dismiss the other three counts and to allow defendant to remain free on bond pending the sentencing hearing. There is no statement on the record at the time of the entry of his plea regarding an agreement to a specific sentence.

At the June 24 hearing, before accepting defendant’s guilty plea, the trial court examined the defendant, who stated he was 47 years old and could “read some” but could not write. When asked if he were on medication, drugs or alcohol, defendant stated he was taking some pills. When specifically asked if he understood everything that was going on, defendant replied “Yes.” He also stated that he heard the agreement that was presented and that he agreed to it. The court read the charge and stated the possible penalties and fines, including the possibility of an extended sentence of 60 years’ imprisonment because of a prior conviction in 1981, to which crime defendant had pleaded guilty. Defendant affirmatively stated he understood the range of penalties.

The court heard the factual basis for the plea. Pursuant to a six-month investigation, Rockford police officers and others executed a search warrant at a residence where defendant was staying. The officers found 84 grams of a substance containing cocaine, a triple-beam scale, baggies, razor blades and grinders. They also found nine packets of cocaine. The State crime laboratory tested the material and conclusively determined the presence of cocaine.

The trial court thoroughly admonished defendant of his rights. Defendant stated that he understood his rights and wished to persist in his plea. He affirmatively acknowledged that he was satisfied with his attorney; that no other promises had been made to him other than what was stated in open court; that no promises had been broken and no one had forced or threatened him to plead guilty; and that he was pleading guilty of his own free will. The jury waiver was read to him, and he acknowledged in signing it that he was giving up the rights that the trial court had explained to him. Finding that defendant had been advised of his rights, that he understood the consequences of his plea, that it was made voluntarily without any threats or promises other than the plea agreement, and that defendant persisted in his plea, the court accepted defendant’s plea and entered a judgment of conviction on the charge.

On October 23, 1991, there was a sentencing hearing in which the State adduced evidence that the street value of the cocaine seized from defendant was $16,000. Defendant testified that he received probation after he was arrested for cocaine delivery. When asked whether he went back to cocaine after so many years, he said he believed he was addicted; however, he had not ever sought any form of treatment.

Defendant said he had been dealing in cocaine for about six months prior to the current arrest. He claimed that he never made a profit from his transactions with his friend, Rose Summers. He testified that his source was a Mexican he met in a bar, but he knew nothing else about him. He paid $1,600 for three ounces of cocaine. When he was asked about the story he told the police about his source of cocaine when he was arrested, he conceded he had not been telling the truth and that the officers laughed. In that version, defendant said he was following a car that was being chased by a police car and the person being chased threw the cocaine out the window and defendant picked it up. Defendant then told the police about an unidentified Mexican he met in a bar who provided him with several ounces of cocaine. Defendant did not receive treatment for drug addiction following his first arrest, but he stopped taking the cocaine in 1981. Defendant then said that he did not have an addiction to cocaine.

On re-cross-examination, defendant stated he used a half-gram of cocaine every two or three days. Defendant said that he used most of the cocaine himself or with friends.

Defendant further testified that he was deaf in the left ear.

Anthony Artale, defendant’s younger brother, testified regarding defendant’s limited education, his close relationship with his family, his assistance to his mother, and his medical and business problems.

The prosecution argued that defendant was eligible for an extended sentence and that defendant was a drug dealer with a significant history of dealing who was also lacking in credibility. In asking for leniency, defense counsel argued in mitigation that defendant was not a violent offender and that he held a job; he was addicted, he had medical problems and limited assets; and he assisted his elderly mother.

The trial court found that defendant sold cocaine for a profit; that the large amount of cocaine indicated he was not only a user but a seller; that defendant had already received lenient treatment; and that a sentence sufficient as a deterrent to others and for the protection of the public was necessary. The court sentenced defendant to 20 years’ imprisonment and a street-value fine of $16,000. When defendant was asked if he understood, he said, “No, I don’t.” The court repeated the sentence and asked defendant to step closer to advise him of his right of appeal and then admonished him of the requisites to exercise that right.

Defendant filed motions to vacate his plea, to reopen his sentencing hearing and to reconsider his sentence; these motions were denied. The present appeal concerns only the denial of his motion to vacate his plea on the ground of involuntariness which plea resulted in the 20-year sentence.

At the hearing on January 7, 1992, defendant’s younger brother Anthony testified regarding his dominant role in the legal decision-making in behalf of defendant because defendant was not as astute as he. Anthony testified that he was a longtime friend of Ron White, a deputy State’s Attorney in Winnebago County. Anthony believed White was the superior of Assistant State’s Attorney Earner, who was prosecuting the case. Anthony said he spoke -with White by telephone or in person on numerous unspecified occasions and asked advice concerning his brother. His last conversation was sometime before defendant entered his open plea on June 24, 1991. Anthony stated that defendant was being offered an eight-year term prior to his plea and Anthony sought White’s advice. According to Anthony, White said he “would talk to people and he would take care of it and my brother would end up getting six years.” No one else was privy to these conversations, except for one which Anthony’s sister heard on an extension line. Anthony said that, on the date of the plea, White stated he talked to the judge. Based on his conversation with White, Anthony told his brother not to take the eight-year term because he was only going to receive six years. Anthony did not want defendant’s attorney to know about this arrangement and only spoke to his brother. Defense counsel was not informed until after the 20-year sentence was imposed.

Anthony also testified that, between June 20 and June 22, defendant was in the hospital. Defendant was taking medication, including “Halceon [sic]” and codeine. Anthony opined that defendant appeared confused and scared and had a blank look on his face on June 24, the date of the plea. Anthony did not know for certain what medication defendant was taking on June 24.

On cross-examination, Anthony either denied or said he did not remember hearing the trial court’s questions of defendant to ascertain whether any other promises had been made to him or had been broken. He did not believe he could inform the court of any other promise that had been made. Anthony admitted that White never spoke to defendant and that he (Anthony) had never informed defense counsel of the agreement for a six-year term. He surmised that White would talk to the defense counsel if he wanted him to know.

When asked if he heard his brother say that he understood the plea proceedings, Anthony replied that he had told his brother to say “yes” because everything was taken care of. Anthony could not say for certain when the six-year agreement was made, but he thought it was in May or June. Anthony admitted that when he talked to White on the day of the plea he did not specifically ask if the six-year offer was still good.

At the conclusion of Anthony’s testimony, the court stated on the record that no one in the State’s Attorney’s office or from the defense ever spoke to the court about the sentence.

Defendant testified regarding his physical condition including deafness in his left ear and diminished capacity in his right ear as well as a prior unspecified heart condition. He could not specify what medication he was taking when he was released from the hospital prior to the date of the plea, but recalled there was codeine in the medication. He said he felt sleepy and had difficulty hearing. On June 24, he understood the State’s offer to be an eight-year term in exchange for a guilty plea, but then he stated it was an open plea. He knew his brother was talking to White, and his brother had said everything would be alright. After Anthony talked to White on June 24, defendant believed that the sentence was going to be only six years. Defendant then testified that, if he entered an open plea, he believed he would get either six or eight years. Although the judge told him he could get 60 years, he was under the impression that “everything was all set” and that he would get six years.

On cross-examination, defendant said he did not have trouble hearing the judge ask whether he was under the influence of any medication. He acknowledged that he stated he understood the proceedings. He heard the State describe the plea agreement to the court. He admitted that he knew he could be sentenced up to 60 years in the penitentiary and that no one made him any promises. However, he said his brother told him he was only going to get six years. He admitted that he answered “no” when the trial court asked him if any promises were made to him, and he did not object that he had a promise made to him other than the one stated in court. White did not directly promise defendant anything.

On redirect examination, when asked if defendant knew what an open plea was, he said, “Not necessarily, no.” Defendant further testified that White never spoke directly to him, and he got his information from his brother. When asked specifically why on June 24 he continued to tell the court he understood even if he did not, he said, “I don’t know.”

The transcript of the earlier proceeding was admitted into evidence. In making its ruling, the court stated it had reexamined the transcript and also recalled defendant’s entering his plea. The court stated, “Based upon all of it I agree he made the plea of guilty knowingly and understood everything that was going on.” The court further commented: “Court further recalls Mr. Artale standing in front of him and I was able to converse with him. There’s no question in my mind that he did understand. Report reflects he did as well. That being the situation, the Motion is denied.”

In additional discussions with the court concerning the motion to reconsider sentence (which was denied), defense counsel stated: “I never did put Mr. White on the stand for the reason it was my belief that if he did not come to the courtroom, he was probably not going to be a witness I should present to the Court.” Based on what he learned after the sentencing hearing, defense counsel also commented: “[I]t’s obvious Ron White would not be a person who would be an appropriate witness for the defense.”

Defendant argues that his guilty plea, which resulted in the 20-year sentence, was involuntary where it was based on the belief that the minimum six-year sentence of imprisonment would be imposed. Defendant bases his belief on his limited understanding, his reliance on his brother’s advice and direction, and his brother’s conversations with Deputy State’s Attorney White in which the brother was allegedly assured that a minimum term would be imposed. Defendant maintains that the testimony he presented concerning the purported out-of-court agreement is unrefuted and undiscredited. Based on our careful scrutiny of the record and our application of the appropriate standards of review in this type of case, we cannot agree with defendant’s position.

A defendant has no absolute right to withdraw his guilty plea and bears the burden of demonstrating to the trial court the necessity of withdrawing his plea. (People v. Smithey (1983), 120 Ill. App. 3d 26, 31.) It is within the sound discretion of the trial court to determine whether a guilty plea may be withdrawn, and, on appeal, this decision will not be disturbed unless it is an abuse of that discretion. People v. Davis (1991), 145 Ill. 2d 240, 244.

Where it appears that the guilty plea was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, or the case is one where there is doubt of the guilt of the accused, or where the accused has a defense worthy of consideration by a jury, or where the ends of justice will be better served by submitting the case to a jury, the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty. Davis, 145 Ill. 2d at 244, citing People v. Morreale (1952), 412 Ill. 528, 531-32.

In the absence of substantial objective proof showing that a defendant’s mistaken impressions were reasonably justified, subjective impressions alone are not sufficient grounds on which to vacate a guilty plea. (Davis, 145 Ill. 2d at 244.) Rather, the burden is on the defendant to establish that the circumstances existing at the time of the plea, judged by objective standards, justified the mistaken impression. (People v. Hale (1980), 82 Ill. 2d 172, 176.) Additionally, the trial court is not required to believe or accept the defendant’s testimony regarding an out-of-court agreement, but may instead regard it as at best improbable and at worst false. (See People v. Christensen (1990), 197 Ill. App. 3d 807, 812-13; see also Davis, 145 Ill. 2d at 246.) The credibility of the testimony offered by a defendant and the trial court’s recollection and observation of the defendant’s demeanor may be taken into account in assessing whether the plea was knowing and voluntary. See, e.g., People v. Moore (1991), 214 Ill. App. 3d 938, 941.

Where the trial record refutes a defendant’s assertions that his plea was not knowingly and voluntarily made, courts may properly dismiss or deny a defendant’s petition (People v. Fern (1993), 240 Ill. App. 3d 1031, 1041), and a proper and meticulous admonition of the defendant according to Supreme Court Rule 402(b) (134 Ill. R. 402(b)) cannot simply be ignored (People v. Jones (1991), 144 Ill. 2d 242, 263; Fern, 240 Ill. App. 3d at 1041; People v. Radunz (1989), 180 Ill. App. 3d 734, 742; Smithey, 120 Ill. App. 3d at 31).

Defendant has failed in his burden to show by substantive, objective proof that his subjective impression that he would get the minimum sentence was reasonably justified for several reasons. First, defendant presented testimony that was frequently vague, equivocal, inconsistent, and lacking in credibility. Defendant was represented by counsel whose competence he has not challenged, yet counsel was never informed of any out-of-court offer. Under the facts presented, we find it improbable, as the trial court apparently did, that defendant would have relied exclusively on the legal advice of his brother, a layperson who never communicated the State’s alleged out-of-court offer to defendant’s counsel and stood mute at the plea proceeding notwithstanding the trial court’s meticulous examination and admonishments.

Anthony stated that he had numerous but unspecified and uncorroborated conversations with White concerning the minimum term. Although he claimed White had spoken to the judge, the judge stated on the record no one had ever spoken to him regarding the sentence. Anthony specifically did not ask White on the date of the plea whether the offer was still good. Anthony had selective memory when asked if he heard the admonishments of the trial court regarding any promises made. Anthony said he told defendant to say “yes” when asked if he understood the plea proceeding, yet defendant himself stated that he did not know why he said he understood the proceeding of June 24.

Defendant’s own lack of credibility was brought out at the sentencing hearing when he conceded he was less than truthful in telling conflicting and implausible stories regarding his cocaine source. When asked about his understanding of the out-of-court offer, defendant’s testimony was unclear regarding whether he would get a six- or an eight-year term, yet he tendered an “open” plea whose meaning he said he did not “necessarily” understand. He acknowledged that White never made an offer directly to him. He conceded that he understood the judge when the judge explained that he could receive up to 60 years’ imprisonment. He too failed to object immediately when sentence was pronounced. We cannot say that defendant presented substantial objective proof to support his claim.

Next, the record shows that the trial court meticulously and thoroughly examined and admonished defendant before accepting his plea. Defendant’s affirmative acknowledgements in response to the trial court’s questions contradict his claim that the plea was not knowing and voluntary. The court observed the demeanor of the defendant, recalled conversing with him, and specifically found that defendant understood the proceeding and entered his plea knowingly and voluntarily. Rule 402(b) requires that when a guilty plea is entered as a result of a plea agreement, the agreement shall be stated in open court. One major objective of this requirement is to give visibility to the plea agreement process to provide the reviewing court with a record containing an accurate and complete account of all the relevant circumstances surrounding the guilty plea. Smithey, 120 1ll. App. 3d at 31-32.

We believe the clear intent of the rule is to avoid precisely the type of problem presented by secretive and questionable out-of-court dealings such as have been alleged in the present case. Although we place little credence in defendant’s version of the events leading to the guilty plea, we find it very disturbing that the State did not call Deputy State’s Attorney White to refute defendant’s allegations.

Trust in one’s attorney is of the utmost importance, and a defendant’s failure to confide in his attorney and his failure to heed the specific admonishments of the court cannot be condoned. (Radunz, 180 Ill. App. 3d at 742.) The admonishments of the court cannot be considered a meaningless ritual. (Fern, 240 Ill. App. 3d at 1042.) It appears that brother Anthony’s advice was not any better than defense counsel’s and could have resulted in defendant’s unjustified, subjective and mistaken impression that he would receive the minimum sentence. We do not view defendant’s brother as a person on whose authority defendant should have justifiably relied. Defendant’s evidence was insufficient to show that he himself was so lacking in competence that his plea was involuntary. We also note that even a guilty plea made in reliance on the incorrect advice of counsel as to the anticipated term of a sentence would nevertheless be a voluntary plea. (Radunz, 180 Ill. App. 3d at 742.) Certainly, the rule applies to the incorrect advice of a layperson.

For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying defendant’s motion to vacate his guilty plea. The conviction and sentence are affirmed.

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. V.S., Defendant-Appellee.
    Second District
    No. 2 — 91—0040
    Opinion filed April 16,1993.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Stephen M. Komie and Michael T. Van Der Veen, both of Komie & Associates, of Chicago, for appellee.
   JUSTICE QUETSCH

delivered the opinion of the court:

The State indicted defendant, V.S., for criminal sexual assault and aggravated criminal sexual abuse (111. Rev. Stat. 1989, ch. 38, pars. 12 — 13(a)(3), 12 — 16(b)). Defendant brought a motion to suppress his statements, alleging that the investigators had not read him the Miranda warnings prior to their interview with him. The trial court granted defendant’s motion to suppress, and the State appeals. The issue on appeal is whether the investigators were obliged to read the Miranda warnings because defendant was the focus of their investigation.

Joyce Rizzo testified that she was a criminal investigator with the Du Page County State’s Attorney’s office and worked in the sexual abuse center. She had worked there for 2Vz years and had eight years’ prior experience as a municipal police officer. On April 4, 1990, she and Charles Munson, her partner, went to defendant’s home at 2 p.m. Nobody answered the door, and Munson telephoned defendant’s wife from the car and asked to meet with her to discuss a Department of Children and Family Services (DCFS) report. At 2:25 p.m. they noticed a woman cross the street and enter the house using a key. She then left as defendant’s two daughters arrived on the school bus. The neighbor met the girls and walked them to her house. Defendant walked out of the house and walked down the driveway to the mailbox.

Rizzo exited her unmarked car and approached defendant, who identified himself. Rizzo showed him her badge and identification card and asked to speak with him about a report made to DCFS. She introduced Munson, who showed his badge and identification card. Neither of the officers carried weapons, and they were not in uniform. Defendant agreed to talk with them, and they all went into his house. Rizzo asked if they could sit at the dining room table, and he agreed. The dining room was connected to the kitchen without a door, and there was a phone in the kitchen. They sat opposite him at the table.

Rizzo advised defendant of the report of abuse and her conversation with D.S., his daughter. Defendant asked her what was going to happen. She told him her job was to investigate and collect information, not to determine whether charges would be brought. About 15 minutes later, defendant’s wife came home, and she sat at the table. She suggested that defendant call a family friend who was an attorney, but defendant said he did not want to talk with him. D.S. arrived home and talked with her mother, who told her to go to the neighbor’s house with her sisters.

Defendant’s wife wanted to talk with defendant alone, and the officers left and sat outside in the car. After about four minutes, defendant’s wife returned and said defendant wanted to talk with them. The officers sat at the table, and defendant’s wife left on his request. The officers never told defendant he was under arrest. They did not restrain him. Two or three times, defendant stood up from the table and left the room to drink juice or to walk. He never told them that he did not understand what was happening. The officers first asked him about his age and employment. They then talked with him for another 30 minutes. They did not arrest him; he surrendered himself on May 18, 1990, after he was indicted.

Although Rizzo carried a Miranda card, neither she nor Munson read it to defendant. She had received a report that defendant had sexually abused his daughter. Rizzo had also talked to D.S. the day before at school, and D.S. named defendant as the perpetrator. Defendant was the only suspect of the investigation. Rizzo talked to one daughter, and Munson talked with the other daughter. The officers wanted to talk with the parents and with D.S.’s friends. Rizzo asked questions regarding whether a sexual assault occurred. Rizzo knew that sexual assault was a criminal offense. Rizzo did, however, encourage defendant to take his wife’s advice to call an attorney, but Rizzo had not previously intended to suggest legal counsel. Rizzo did not try to contact defendant at his place of employment but drove to his house instead. She preferred to interview suspects in their own homes. They sat at a table so Munson could take notes. During the conversation, Rizzo told defendant several times that it was her intention to present the notes to the State’s Attorney for a determination of whether to prosecute. She did not suggest to him that he cooperate or tell defendant that they would take his children away if he did not cooperate. She never asked defendant to write a statement in his own words.

The first conversation took 40 minutes from about 2:45 to 3:30, during which time Rizzo and Munson were alone with defendant for 15 minutes (without the presence of defendant’s wife). The second conversation occurred when they returned from the car. This conversation took about 30 to 40 minutes, and they were alone with defendant except for 10 minutes when his wife was present. Prior to this incident, Rizzo had taken about 150 statements for prosecutions of criminal sexual assault cases and over a thousand statements overall.

Charles Munson testified that he had been an investigator with DCFS for 16 years. His statement of the facts was similar to Rizzo’s, but he gave more details of the conversations. When Munson and Rizzo obtained the first report of abuse, they formed a plan to talk with D.S. before talking with defendant. They did not telephone defendant before driving to his house. Once there, they did not give him Miranda, warnings or tell him he could be charged with a crime although they knew he could be charged based on the statements they adduced. Munson considered himself engaged in a “protective service investigation.” He testified that Rizzo started the questioning at about 2:45 p.m. by stating she had interviewed D.S.; Rizzo advised him he was under no obligation to talk to the officers; and she said she wanted to hear defendant’s side of the story. Defendant asked several times what would happen to him, but she said that she could not tell until she heard his side of the story. While Munson knew defendant could be charged with a felony, he did not read the Miranda warnings.

After defendant’s wife arrived about 3 p.m., she encouraged him to tell the officers what happened. Munson did not tell them DCFS could take the children away from their custody. Defendant’s wife said she was aware that a sexual incident had occurred once and she believed they needed some help. She asked defendant if it had occurred only once, and he said only once. She then said everyone was entitled to one mistake. Defendant did not make any admissions or denials until D.S. arrived at about 3:30 p.m. Defendant’s wife talked with her and then asked her to come to the table. Defendant’s wife asked her if the sex had occurred more than once. When D.S. affirmed that it had, her mother argued with her, and defendant put his head to the table and wept for several minutes. Defendant was highly emotional, and his wife took D.S. to another room and argued with her. Defendant’s wife sent D.S. to the neighbor’s house. Defendant’s wife then told the officers she wanted to talk to defendant alone, and the officers walked to the car. In the car, Munson made a telephone call to arrange for a possible placement of a youth.

Several minutes later, defendant’s wife told the officers defendant wished to talk with them, and then she went to the neighbor’s house. The officers went inside and talked with defendant for about 40 minutes. Sometimes defendant’s voice was so soft they had to ask him to repeat his words louder, and sometimes he was crying. They were alone with defendant for 15 or 20 minutes before defendant’s wife returned. The officers then discussed with her where D.S. would stay. Although they had a preprinted notification form to inform people of an investigation, they did not give the form to defendant until 4:30 p.m. when they were leaving and after they decided to take D.S. into protective custody. Munson also gave defendant a pamphlet which explained a parent’s rights. Munson went with D.S. and her mother to pack some clothing. Munson left with D.S. Munson recollected that defendant made a telephone call during the conversation and walked around, too.

The trial court ruled that any statements made after the return of Rizzo and Munson into the house were inadmissible. The court found that the investigation had gone to the focal point and the Miranda warnings were required. The court stated, “At that time, the so-called Rubicon line had been crossed.” The trial court granted defendant’s motion concerning all statements made after the officers’ reentry into the house. When the trial court denied the motion to reconsider, it stated that the officers had been confronting defendant. The court stated that the fact defendant was the focus of the investigation was only one factor in the court’s analysis.

The issue on appeal is whether defendant was deemed to be in custody such that the failure of the detectives to warn defendant of his Miranda rights requires that defendant’s oral statements be suppressed. The Supreme Court held in Miranda that an accused has the privilege against self-incrimination during a custodial interrogation and to be warned of his rights prior to the interrogation. (Miranda v. Arizona (1966), 384 U.S. 436, 444, 468-69, 16 L. Ed. 2d 694, 706, 720, 86 S. Ct. 1602, 1612, 1625; People v. Melock (1992), 149 Ill. 2d 423, 439.)

“Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. (384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.) The ultimate inquiry is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. (California v. Beheler (1983), 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279, 103 S. Ct. 3517, 3520.) Although what constitutes police custody is not always self-evident, the Court in Miranda was concerned with interrogations that take place in a police-dominated environment containing ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Miranda, 384 U.S. at 467, 16 L. Ed. 2d at 719, 86 S. Ct. at 1624; see also Berkemer v. McCarty (1984), 468 U.S. 420, 437-38, 82 L. Ed. 2d 317, 333, 104 S. Ct. 3138, 3149.
The determination of whether an interrogation is custodial should focus on all of the circumstances surrounding the questioning, such as: the location, length, mood and mode of the interrogation; the number of police officers present; any indicia of formal arrest or evidence of restraint; the intentions of the officers; and the extent of knowledge of the officers and the focus of their investigation. (See People v. Lucas (1989), 132 Ill. 2d 399, 417.) The trial court must examine and weigh these factors, along with the credibility of the witnesses. It then must make an objective determination as to what a reasonable man, innocent of any crime, would perceive if he were in defendant’s position.” (People v. Brown (1990), 136 Ill. 2d 116, 124-25.)

(See People v. Mclock, 149 Ill. 2d at 437, 440; People v. Finklea (1983), 119 Ill. App. 3d 448, 452.) We accept the trial courts’ assessments of the credibility of the witnesses, and we will not disturb the trial court’s finding unless it is manifestly erroneous. People v. Ramey (1992), 152 Ill. 2d 41, 58; Brown, 136 Ill. 2d at 125.

The State argues on appeal that defendant was not in custody and therefore the Miranda doctrine does not apply to suppress the statements. (People v. Acebo (1989), 182 Ill. App. 3d 403, 405.) Only statements made in a custodial atmosphere need be suppressed under Miranda. The State maintains that the detectives did not assert authority over defendant. The State argues that the trial court erred by applying the focus of the investigation test. Defendant describes the interrogation as emotional, a planned surprise, and an ambush on the only suspect of the complaint.

A court should consider an officer’s knowledge and the focus of his investigation when determining what a reasonable person would think during an investigation; however, these inquiries alone will not likely control the conclusion whether the interrogation is custodial. (Brown, 136 Ill. 2d at 129.) The court may consider that the suspect was subjected to questioning which in large part was meant to elicit incriminating remarks to the charge. (136 Ill. 2d at 129. But see Melock, 149 Ill. 2d at 450 (accusatory interrogation not enough to determine confession involuntary).) While a suspect may be a target of an investigation, the Miranda warnings are required only if the suspect is subjected to a custodial interrogation. (Beckwith v. United States (1976), 425 U.S. 341, 347, 48 L. Ed. 2d 1, 8, 96 S. Ct. 1612, 1616; Finklea, 119 Ill. App. 3d at 453.) “In determining whether a statement was made in a custodial setting, the court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed he was free to leave or was expressly or impliedly bound to remain in the presence of police.” People v. Savory (1982), 105 Ill. App. 3d 1023, 1028.

Ostensibly, the trial court applied the correct test. While it did mention that defendant was the focus of the investigation, the court stated that the focus was only one factor it considered to determine the atmosphere of the interview. The Miranda rule applies to DCFS investigators (People v. Hagar (1987), 160 Ill. App. 3d 370, 375), and the intent and focus of the interrogators are relevant factors to consider (160 Ill. App. 3d at 373).

Nevertheless, we believe that the trial court erred in suppressing the statements. The fundamental issue was whether the interview was custodial. While a custodial situation can occur in the home (Orozco v. Texas (1969), 394 U.S. 324, 22 L. Ed. 2d 311, 89 S. Ct. 1095), the relevant inquiry is whether a reasonable man would believe he was expressly or impliedly bound to remain in the presence of the officials (Savory, 105 Ill. App. 3d at 1028). The record does not support such a belief. Defendant was not deprived of his freedom of action in any significant way. (Orozco, 394 U.S. at 327, 22 L. Ed. 2d at 315, 89 S. Ct. at 1097.) The officers left when asked, defendant was free to walk in his kitchen or to call for advice, and they told him he was not obliged to talk with them. Unlike Hagar, defendant was not interrogated in a windowless room at the DCFS office with the doors closed. In Hagar, other investigators were waiting to begin their own interrogation, and one investigator testified the defendant was in a custodial setting. (Hagar, 160 Ill. App. 3d at 374-75.) By contrast, the record does not establish that the setting in the cause before the court was custodial. Thus, the finding of the trial court, at this stage of the hearing, was manifestly erroneous, and we must reverse.

Because the order arose from a motion for a directed finding (see Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55), we must remand the cause for a continued hearing. Supreme Court Rule 366(b)(3)(iii) (134 Ill. 2d R. 366(b)(3)(iii)) requires this court to remand the cause with directions to proceed as though the motion for a directed finding had been denied by the trial court.

For the above reasons, the order of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE LYTTON

text:
    AUTOMATED PROFESSIONAL TAX SERVICES, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants.
    Third District
    No. 3—92—0718
    Opinion filed April 29,1993.
    Rehearing denied May 24,1993.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Mal ato, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Frank A. Ward II, of Galesburg, for appellee.
   JUSTICE LYTTON

delivered the opinion of the court:

Julie Cook (Cook) worked for the plaintiff, Automated Professional Tax Services, Inc. (Automated), for more than one year before she was fired. After her dismissal, she filed for unemployment compensation benefits with the defendant Department of Employment Security (Department). The Department approved her claim and Automated appealed. The referee found for Cook. Forty-six days later, Automated wrote a letter to the Department requesting a “reevaluation” of the claim. The Department considered the request an appeal of the referee’s decision and dismissed it as not timely filed within 30 days. Automated prevailed on an appeal to the circuit court and defendants appealed to this court. The central issue in this case is whether the circuit court had subject matter jurisdiction. We find that it did not and reverse.

Automated employed Julie Cook as a secretary from late April 1990, until her discharge on July 14, 1991. She then filed a claim for unemployment compensation benefits with the Department, and a claims adjudicator found her eligible. Automated appealed that decision seeking an administrative hearing before a referee.

The hearing was held on September 26, 1992. Automated’s vice-president, Frank Ward, testified that Cook was discharged for several reasons. First, Automated had agreed to guarantee a loan for Cook to purchase a car, as long as her husband, who did not have a valid driver’s license, would not drive the car. Ward learned that her husband had driven the car. Ward also testified that Cook had not managed the computer records properly, made certain false statements of sexual involvement with Automated’s president, and falsely alleged sexual harassment against her by an attorney whose office is in the same building as Automated.

John Clay, the president of Automated, generally supported Ward’s testimony. When asked by the referee if Cook was discharged for theft, he responded “that she did steal, that is true, but that was not the reason for discharge.”

Letha Reynolds, a secretary for Automated, testified that Cook said she wanted to “go to bed” with Mr. Clay. She also testified that Cook complained about the alleged sexual harassment by the attorney.

Cook then testified and denied the allegations against her. She said that she had never been given any reason for her discharge.

The referee issued his decision on September 27, 1991, affirming the claims adjudicator’s determination that Cook qualified for benefits. He found insufficient evidence of misconduct and further found that she was not discharged for theft.

Automated did not appeal the referee’s decision, but on November 12, 1991, it sent a letter to the local Department office asking for a “reevaluation” of the decision of the referee.

In the interim, Automated had filed a small claims action against Cook and subsequently obtained judgment for $425.57. It was on the basis of this money judgment that the letter requesting a reevaluation was sent.

The Department construed the letter to be an appeal of the referee’s decision. The Board dismissed the appeal, finding it had no jurisdiction to decide the matter because Automated did not file its appeal within 30 days.

Automated filed a complaint for administrative review in the circuit court of Knox County. The circuit court directed the parties to submit written briefs. Although Automated filed a brief, the defendants did not. The court then entered an order which reversed the decision of the Board of Review (Board), finding that the Board should have treated Automated’s letter as a request for reconsideration. The court then denied benefits to Cook and, further, ordered the Board to recoup benefits paid to Cook and to restore Automated’s previous unemployment insurance tax rate. The State defendants appealed and Cook later joined in the appeal.

Our first inquiry is whether the Board had jurisdiction to review Automated’s request for reevaluation. The Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 1992)) delineates the parameters of the administrative procedures that must be followed by both claimants and employers. After a claim is filed, a claims adjudicator makes an initial “finding,” and if the claim is found valid, “promptly notifies] the claimant” and the most recent employing unit. (820 ILCS 405/701 (West 1992).) If the employer objects to the finding, it can file allegations that the claimant is ineligible. The claims adjudicator then makes a “determination” of eligibility after considering the objections. (820 ILCS 405/702 (West 1992).) The claims adjudicator can reconsider a determination for up to a year after the last day of the week for which the determination was made. Unless a case has been remanded to the claims adjudicator by a referee, the Director or the Board of Review, no case can be reconsidered at any time after an appeal has been taken. 820 ILCS 405/703 (West 1992).

A finding or determination can be appealed to a referee within 30 days. (820 ILCS 405/800 (West 1992).) The referee holds a hearing and issues a decision. That decision is final unless, within 30 days, an appeal is taken to the Board of Review. 820 ILCS 405/801 (West 1992).

Under the Act, the time for filing an appeal from the referee’s decision is strictly jurisdictional. (Huggins v. Board of Review, Department of Labor (1973), 10 Ill. App. 3d 140, 143, 294 N.E.2d 32, 34; Neilly v. Department of Employment Security (1989), 180 Ill. App. 3d 138, 141, 535 N.E.2d 11.) Except for a timely appeal, no other avenues exist for an aggrieved party.

“It is our considered opinion that the requirements of the Illinois statute are clear and unambiguous; hence unavoidably mandatory. The decision of the Deputy or of the Referee, as the case may be, becomes final if appeal is not timely filed within the plain language of the statute. There is no provision in this statute for late filing of notice of appeal. [Citation.] The timely filing of the notice of appeal is thus jurisdictional.” Huggins, 10 Ill. App. 3d at 143.

Automated admits its request for “reevaluation” was not timely as an appeal, but argues that it should have been interpreted as a request for reconsideration under section 703 of the Act. Since the claims adjudicator has a year to reconsider a determination, Automated believes the Department should have acted on his request. However, the language of section 703 specifically and unambiguously states that, “No finding or determination shall be reconsidered at any time after appeal therefrom has been taken pursuant to the provisions of Section 800, except where a case has been remanded to the claims adjudicator by a Referee ***.” (820 ILCS 405/703 (West 1992).) Because Automated appealed the claims adjudicator’s determination, the claims adjudicator lost any jurisdiction over the claim. He had no power to reconsider once the appeal to the referee was taken. “If the language [of a statute] is clear, the court must give it effect ***.” Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 7, 521 N.E.2d 913.

The Board of Review correctly decided that it had no jurisdiction to hear Automated’s request for reevaluation. It properly construed that request as an appeal and had no choice but to dismiss the appeal as not timely filed.

Automated argues that because the State defendants did not file their written brief in the trial court, they “lost their right to present any arguments and authorities in the appellate court.” In fact, the general rule is that in order to preserve an issue on appeal, it must first be raised in the trial court. “It is fundamental that a party may not urge for the first time on appeal, and for the purposes of overturning the decision below, an argument or theory, which was not presented to the trial court.” First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131, 137, 361 N.E.2d 832.

Nevertheless, Automated’s contention must fail. The issue argued by the Department is one of subject matter jurisdiction. The issue of whether a court has subject matter jurisdiction can be raised at any time, including on appeal. (Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 215, 486 N.E.2d 593; Swope v. Northern Illinois Gas Co. (1991), 221 Ill. App. 3d 241, 243, 581 N.E.2d 819.) Indeed, the court must act if lack of jurisdiction is brought to its attention or appears on the record. Liberty National Bank v. Vance (1954), 3 Ill. App. 2d 1, 8, 120 N.E.2d 349.

In light of our decision in this case, we need not address the other issues presented by the Department in its appeal or the motions filed by Automated. We do note in passing, however, that the circuit court decided the issues before it on the merits. The court found Cook ineligible for benefits, ordered the Department to recoup the money already paid to her and restore Automated’s previous tax rate. Section 3 — 102 of the Administrative Review Law (735 ILCS 5/3—102 (West 1992)) carefully defines the jurisdiction of the courts in administrative appeals. When the Board dismissed Automated’s appeal on the grounds that it had no jurisdiction, its decision became final. The court’s power to review was then limited solely to the issue of whether the agency had jurisdiction. (735 ILCS 5/3—102 (West 1992); Rosecky v. Department of Public Aid (1987), 157 Ill. App. 3d 608, 615, 511 N.E.2d 167.) Under the Administrative Review Law, the court can only consider the correctness of the agency’s jurisdictional ruling. (Rosecky, 157 Ill. App. 3d at 614.) The trial court in this case exceeded its authority by granting substantive relief to Automated. If the court felt it had subject matter jurisdiction, it could only have remanded to the Board to examine the substantive issues.

Accordingly, the decision of the Board of Review dismissing Automated’s appeal is affirmed and the judgment order of the trial court is reversed.

Reversed.

BRESLIN and STOUDER, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    SHIRLEY BELTZ, Plaintiff-Appellant, v. WILLIAM E. GRIFFIN, Defendant-Appellee.
    Fifth District
    No. 5 — 91—0828
    Opinion filed May 5,1993.

      Randall J. Rodewald, of Womick & Associates, Chartered, of Carbon-dale, for appellant.
    William Kent Brandon and Christy W. Solverson, both of Brandon, Schmidt & Palmer, of Carbondale, for appellee.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

On February 27, 1987, Shirley Beltz was a backseat passenger in a car owned by William Griffin and driven by Cindy Abel. The three were leaving the Shriner’s Club in Marion, Illinois, when Cindy Abel backed the vehicle into a concrete light post. Shirley Beltz filed a complaint against William Griffin for personal injuries she allegedly sustained in the accident. The jury returned a verdict in favor of William Griffin. Plaintiff appeals. We affirm.

Following the accident, plaintiff was treated by Dr. William Patterson, who referred her to Dr. Robert Gardner. After he treated the plaintiff, Dr. Gardner referred her back to Dr. Patterson for further treatment. During the course of discovery, plaintiff indicated that she had sought treatment from Dr. William Patterson. However, the fact that plaintiff had been treated by Dr. Gardner was never mentioned by plaintiff in her answers to defendant’s interrogatories and requests for production or during plaintiff’s deposition. It was not until Dr. Patterson was deposed two weeks prior to trial that defendant learned of the existence of Dr. Gardner.

During Dr. Patterson’s evidence deposition, plaintiff’s counsel asked about his referral of plaintiff to Dr. Gardner. Plaintiff’s counsel questioned him about Dr. Gardner’s bill and offered that bill into evidence. This was the first time defendant was made aware that plaintiff had treated with Dr. Gardner. It was also the first time defense counsel saw a physician’s report generated by Dr. Gardner. Defense counsel used Dr. Gardner’s report, including the plaintiff’s medical history outlined therein, to cross-examine Dr. Patterson. The report stated that plaintiff was involved in an automobile accident on January 31, 1987, less than 30 days before the accident at bar. The report also noted that plaintiff sustained injuries in the prior accident that were identical to those sustained in the accident at issue. At plaintiff’s deposition she had specifically denied involvement in a prior automobile accident.

Prior to trial, plaintiff filed a motion in limine which sought to limit or strike those portions of the evidence deposition which referred to Dr. Gardner’s report. Plaintiff argued that because Dr. Patterson testified that he did not rely on the report in his treatment of the plaintiff, the report was not admissible as an exception to the hearsay rule. The court denied plaintiff’s motion in limine and found (1) that Gardner’s report was not hearsay, and (2) that the report was properly admissible as a basis of Dr. Patterson’s opinions.

The report was hearsay. It was an out-of-court statement offered to prove the truth of the assertions in the statement. (C. McCormick, Handbook of the Law of Evidence §225, at 460 (1954).) Defendant now contends that, while the statement may be hearsay, it was admissible as an exception and cites three cases in support of his contention: Levenson v. Lake-to-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359, Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679, and Smith v. Williams (1975), 34 Ill. App. 3d 677, 339 N.E.2d 10.

Levenson v. Lake-to-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 394 N.E.2d 1359, held that a treating physician may testify regarding a medical history taken by another physician. The medical history in that case referred to a conversation between plaintiff and the other doctor regarding plaintiff’s prior chest pains. Plaintiff argued that the reference to the conversation was inadmissible hearsay, while defendant contended that he merely sought to question the treating doctor as to the significance of the information contained in the report. The court ruled that the testimony was admissible as an exception to the hearsay rule.

In Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679, plaintiff’s surgeon was permitted to read into evidence a written consultation note of a psychiatrist. The note itself was not admitted into evidence. The surgeon’s diagnosis and treatment of the plaintiff was based, in part, on this note. The court ruled that the evidence was properly admitted as an exception to the hearsay rule. In a similar case, Smith v. Williams (1975), 34 Ill. App. 3d 677, 339 N.E.2d 10, a treating physician read a report of a psychiatrist. The treating physician had relied in part on this consultation report in prescribing medicine for the plaintiff. The report was not offered into evidence, and the psychiatrist was not a witness at trial. The court found that the physician’s testimony was admissible as an exception to the hearsay rule.

Levenson relied upon Clemons and Smith, and the latter two rely upon People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, for holding that portions of a doctor’s report may be admitted through the testimony of another doctor as an exception to the hearsay rule. Unfortunately for the continued viability of Clemons and Smith, Ward does not create such an exception.

People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, involved a claim of insanity in an appeal from a murder conviction. In a bench trial, the State’s expert, Dr. Kelleher, related a conclusion on defendant’s sanity made by another expert, Dr. Reifman. The supreme court first noted that any claimed error was vitiated because defendant’s medical records, including Dr. Reifman’s report, were admitted on defendant’s motion. However, the court went beyond this possible basis of affirming the conviction:

“But even if these reports had not been admitted into evidence, there would not have been error in the propriety of Dr. Kelleher expressing his opinion as to defendant’s sanity predicated, in part, upon these reports.” Ward, 61 Ill. 2d at 566, 338 N.E.2d at 176.

The court then turned to and quoted from Federal Rule of Evidence 703:

“ ‘The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.’ (Emphasis added by supreme court.)” (Ward, 61 Ill. 2d at 567, 338 N.E.2d at 176.)

Finally, the court stated:

“If such reports are of a type customarily utilized by the medical profession, then these reports may be used as factors by an expert in the determination of his opinion as to an accused’s sanity even though the reports are not admitted into evidence.” (Emphasis added.) Ward, 61 Ill. 2d at 568, 338 N.E.2d at 177.

The emphasized portion of the final quotation makes it clear that Ward did not create an exception to the hearsay rule. Instead, Ward allowed hearsay statements to be used “as factors by an expert in the determination of his opinion.” The court’s limitation of the use of the hearsay report is further suggested by the concluding clause of the quotation, “even though the reports are not admitted into evidence.” If an exception to the hearsay rule had been created by Ward, the Reifman report could and would have been admitted as such an exception instead of being limited to its use as a factor in the determination of Dr. Kelleher’s opinion.

This interpretation of the limited extent of Ward’s holding is supported by the supreme court’s discussion of Ward in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322:

“This court, in People v. Ward (1975), 61 Ill. 2d 559, 566-67, held that medical records may be used by an expert witness in forming an opinion as to an accused’s sanity even though the reports are not admitted into evidence.” (Emphasis added.) (Wilson, 84 Ill. 2d at 192, 417 N.E.2d at 1326.)

Wilson v. Clark, of course, went one step further than Ward and formally adopted Federal Rules of Evidence 703 and 705. Even Wilson, however, did not create a hearsay exception. (See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §703.1, at 521-22 (5th ed. 1990) (hereinafter M. Graham), and cases cited therein.) Although the increasingly frequent use of Wilson’s holding to facilitate expert testimony may at times make it appear as if a new exception exists, there can be real differences between admission of evidence as a hearsay exception and utilization of information as a basis for an expert’s opinion. As Professor Graham points out:

“While for most practical purposes admissibility to form the basis of an expert’s opinion is equivalent to having the evidence admitted for its truth under a hearsay exception, differences remain. First, what constitutes proper argument to the trier of fact as to the existence of the fact relied upon by the expert differs. More important, evidence admitted solely under Federal Rule 70S will not support a prima facie case. See Smith v. United States, 353 F.2d 838 (D.C. Cir. 1965) cert, denied, 382 U.S. 974 (1966); People v. Anderson, 113 Ill. 2d 1, 99 Ill. Dec. 104, 495 N.E.2d 485 (1986); Mayer v. Baisier, 147 Ill. App. 3d 150, 100 Ill. Dec. 649, 497 N.E.2d 827 (1986).” M. Graham §703.1, at 521.

The differences noted by Professor Graham are the reason for this discussion. Based on the foregoing analysis, we decline to follow Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679, and Smith v. Williams (1975), 34 Ill. App. 3d 677, 339 N.E.2d 10, insofar as they hold that contents of medical reports in the possession of another doctor may be related as an exception to the hearsay rule. Of course, our ruling on this point has no effect on the continued use of such information as the basis of an expert’s opinion under Wilson and its progeny.

As noted earlier, the trial court in this case also felt that Dr. Gardner’s report could have been utilized as a means of inquiry into the basis of Dr. Patterson’s conclusions. This theory presents an additional problem; if that were the only way in which the statement could have been elicited, then it would not have been substantive evidence and should not have been argued as such in defendant’s closing argument. We need not examine this problem in any detail, because we conclude that plaintiff waived any error in the admission of the statement contained in Dr. Patterson’s testimony by failing to object to the elicitation of the same statement during plaintiff’s cross-examination.

Plaintiff’s motion in limine sought to limit or exclude references to Dr. Gardner’s report in Dr. Patterson’s deposition. Plaintiff’s motion did not request the exclusion of all references to Dr. Gardner’s report during the trial. Plaintiff complains that defendant continually mentioned the report during trial. However, plaintiff did not object to defendant’s cross-examination of Shirley Beltz regarding Dr. Gardner’s report and the alleged prior accident. In addition, plaintiff did not object to defendant’s closing argument in which defendant repeatedly referred to Dr. Gardner’s report and the prior accident. Even if a party objects to certain evidence, if he fails to object to similar evidence that the trial court admitted without objection, he waives any claim that the evidence to which he did object was admitted erroneously. (Gillespie v. Chrysler Motors Corp. (1990), 135 Ill. 2d 363, 374, 553 N.E.2d 291, 296.) We hold that plaintiff has waived any claim of prejudicial error regarding the references to Dr. Gardner’s report.

Plaintiff’s second argument is that the jury’s verdict was against the manifest weight of the evidence. Plaintiff contends that it was against the manifest weight of the evidence for the jury to conclude that plaintiff was not injured in this accident. We disagree.

According to Dr. Gardner’s report, plaintiff had been in an automobile accident one month prior to the one at bar. While Dr. Patterson testified that he did not rely on Dr. Gardner’s report, he also testified that he could not state which injuries the plaintiff sustained in each of the two accidents. It is true that Dr. Gardner was not called as a witness and that plaintiff denied having been involved in a previous automobile accident. However, the fact that the jury may have chosen to believe either the defense theory that plaintiff’s injuries were the result of the prior accident or the defense theory that the minimal impact caused no injury does not mean the verdict was against the manifest weight of the evidence. A jury verdict may not be set aside merely because the jury could have drawn different conelusions from the evidence. (Robertson v. General Tire & Rubber Co. (1984), 123 Ill. App. 3d 11, 462 N.E.2d 706.) The conflicting evidence presented a question for the jury to determine, and we will not second-guess its decision.

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

Affirmed.

WELCH and RARICK, JJ., concur.