author: JUSTICE SCARIANO

text:
    ROBERT IWANSKI, Plaintiff-Appellee, v. STREAMWOOD POLICE PENSION BOARD, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—0081
    Opinion filed June 30, 1992.

      Puchalski, Keenan & Reimer, of Chicago (Richard J. Reimer, of counsel), for appellant.
    James M. McGing, of Chicago (Robert J. Egan and Francis A. Nolan, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

On July 31, 1978, plaintiff Robert Iwanski was hired as a patrol officer by the Village of Streamwood. On June 16, 1989, Iwanski met with Deputy Chief Rudolph Rossmy at which time he informed Rossmy that he had been going to family counseling for the prior year and a half and requested that he be permanently placed on the day shift in order to improve his chances of getting his family life back together. Iwanski told Rossmy that he was being counseled for deep depression, that he had come close to committing suicide in the past, that he was taking 100-milligram capsules of the prescription drug To-franil and that he was under psychiatric care. After consulting with Chief Schmidt, Sergeant Kunz and Iwanski’s psychiatrist, Dr. Mohin-der Chadha, who requested that Iwanski be put on medical leave, Rossmy placed Iwanski on a four-day emergency medical leave and relieved him from the possession of four firearms. Dr. Chadha also requested that a conference be held between herself, Iwanski, and Schmidt to address police department concerns.

At the conference, which was held on June 20, 1989, Iwanski, his wife, Dr. Chadha, social worker Gary Wakefield, Deputy Chief Paul Rauscher and Schmidt met to discuss Iwanski’s condition. At the conference Iwanski complained that the department was insensitive to his needs. He also described his feeling of loss when a friend left the department for another job, which, he explained, left him with no one to confide in at work. Iwanski indicated that the only way he could gain progress in resolving his family problems was to be assigned to the day shift on a permanent basis. Wakefield stated that the department’s insensitivity to Iwanski’s needs resulted in his frustration at work and his problems at home. Dr. Chadha indicated that the day watch would best serve Iwanski’s recovery and his intake of the drug Tofranil. However, Schmidt explained that he could not assign Iwanski to the day shift on a permanent basis because of the small size of the department. At Schmidt’s request Dr. Chadha submitted a certification letter to him recommending that “Iwanski should return to work full time on day shifts and he should continue his treatment as recommended.”

In a letter dated June 23, 1989, Schmidt requested that Eric Os-trov, a psychologist with the Issac Ray Center in Chicago, perform a psychological examination of Iwanski to determine his fitness for duty. Schmidt indicated to Ostrov that he was concerned about Iwanski’s inability to adjust to the political environment of police work and to the 24-hour schedule, his past history of on-the-job injuries, his suicidal thoughts, depression, anger and his perception that the police department was to blame for his problems. He also indicated that he wanted to know whether Iwanski should be allowed to continue his employment as a police officer and, if he were, whether he would be a threat to his family, his colleagues or the community. Schmidt noted in the letter that Iwanski was enrolled in a real estate educational program and would therefore have a career upon which to fall back if he were to be discharged from the department. According to the letter Iwanski had been re-assigned from the field to the communications dispatch center.

On August 10, 1989, Schmidt temporarily suspended Iwanski from duty and placed him on administrative leave pending final adjudication of his fitness to serve as a police officer. On August 21, 1989, Iwanski filed an application for a disability pension with the Stream-wood Police Pension Board (Pension Board or Board). In a letter dated August 23, 1989, Schmidt brought charges against Iwanski before the Board of Police and Fire Commissioners of the Village of Streamwood, and pursuant to the Village’s labor agreement with the union representing the police, informed the Commissioners that he was designating them to conduct Iwanski’s fitness hearing. The purpose of the inquiry, which was based on facts contained in Ostrov’s evaluation of Iwanski, was to determine whether, because of a physical or mental impairment, Iwanski’s continued employment as a police officer was detrimental to the health, safety and welfare of the Village. On October 23, 1989, the Commissioners found that Iwanski was no longer mentally fit for duty and he was discharged the next day. After his discharge, the Pension Board held hearings in February and March of 1990 on Iwanski’s application for a disability pension, which it denied on May 23, 1990. On June 7, 1990, Iwanski filed a complaint in the circuit court for administrative review of the Board’s decision, and on November 15, 1990, the court reversed the Board’s decision. The Board appeals from the circuit court’s determination that Iwanski was entitled to a non-duty disability pension, and Iwanski cross-appeals on the ground that he was entitled to a duty-related pension.

I

Upon administrative review, the function of both the trial court and the appellate court is limited to determining whether the findings and conclusions of the administrative agency are against the manifest weight of the evidence. (Fenton v. Board of Trustees (1990), 203 Ill. App. 3d 714, 716.) In order to make such a finding, a court must conclude that all reasonable and unbiased persons, acting within the limits prescribed by law and drawing all inferences in support of the finding, would agree that the finding is erroneous and that the opposite conclusion is clearly evident. (Batka v. Board of Trustees of the Village of Orland Park Police Pension Fund (1989), 186 Ill. App. 3d 715, 722.) However, when analyzing claims arising from an administrative agency’s determinations, the agency’s findings and conclusions on questions of fact are held to be prima facie true and correct (Batka, 186 Ill. App. 3d at 722), and because the weight of the evidence and the credibility of the witnesses are within the province of the board, there need only be some competent evidence in the record to support its findings. (Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 209.) Similarly, the decision of an administrative agency will also be reversed if it is legally erroneous. (Donnells v. Woodridge Police Pension Board (1987), 159 Ill. App. 3d 735, 739, appeal denied (1988), 118 Ill. 2d 542, cert. denied (1988), 487 U.S. 1219, 101 L. Ed. 2d 908, 108 S. Ct. 2873.) However, the court is not bound to accord the same measure of deference to an administrative agency’s construction of a statute as would be given to an agency’s finding of fact. (Donnells, 159 Ill. App. 3d at 739.) It is to be further noted that a plaintiff to an administrative proceeding has the burden of proof and relief will be denied if he fails to sustain that burden. English v. Village of Northfield (1988), 172 Ill. App. 3d 344, 348, appeal denied (1988), 123 Ill. 2d 557.

In support of its position that Iwanski should be denied disability pension benefits the Board raises two arguments on appeal: (1) that because of his discharge Iwanski was no longer entitled to pension benefits, and (2) that he was not disabled.

Membership in a pension system of any local government unit in the State is an enforceable contractual relationship, the benefits of which shall not be diminished or impaired. (Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, 26, citing Ill. Const. 1970, art. XIII, §5.) Further, the provisions of a police pension plan are to be construed liberally in favor of those to be benefitted. Botica, 186 Ill. App. 3d at 722.

The Illinois Pension Code (Code) (Ill. Rev. Stat. 1977, ch. 108x/2, par. 1 — 101 et seq.) provides for “line of duty” and “not on duty” police disability pensions. Section 3 — 114.1 of the Code provides for line of duty disability pensions under the following circumstances:

“If any policeman, as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his suspension or retirement from the police service, such disabled policeman shall be granted a disability retirement pension of 65% of the salary attached to his rank on the police force at the date of suspension of duty or retirement. A policeman shall be considered ‘on duty’, while he is on any assignment, approved by the chief of the police department, even though such assignment causes him to be away from the municipality in which he serves as a policeman, if such assignment is related to the police protection service of such municipality.” Ill. Rev. Stat. 1977, ch. IO8V2, par. 3-114.1.

Section 3 — 114.2 provides for a non-duty disability pension for:

“Any policeman who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found to be physically or mentally disabled so as to render necessary his suspension or retirement from service in the police department, shall be granted a disability pension of 50% of the salary attached to his rank on the police force at the date of suspension of duty or retirement.” Ill. Rev. Stat. 1977, ch. IO8V2, par. 3-114.2.

A. DISCHARGE

Because Iwanski was discharged from the police force, the Board held that the Pension Code as well as the Illinois Supreme Court’s decision in Di Falco v. Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District No. One (1988), 122 Ill. 2d 22, required it to deny his application for a disability pension. However, the circuit court held on the authority of Stec v. Oak Park Police Pension Board (1990), 204 Ill. App. 3d 556, appeal denied (1991), 136 Ill. 2d 555, that Iwanski’s discharge did not preclude him from receiving a disability pension because, unlike Di Falco, Iwanski was a police officer at the time he applied for it. The Board’s findings indicate that Iwanski was a member of the Streamwood police department from July 31, 1978, until his discharge on October 24, 1989, but that he filed his application for disability on August 21, 1989, and that Schmidt filed charges against him on August 23, 1989. Therefore, it is clear that Iwanski filed his application before he was discharged.

The issue presented for review in Di Falco was “whether a probationary fire fighter is entitled to a disability pension when the fire fighter first applies for the pension a year after his discharge.” (Di Falco, 122 Ill. 2d at 24-25.) There, the plaintiff allegedly suffered a spinal injury, went on disability leave and was eventually discharged. Both the board and the circuit court found, as a matter of law, that the plaintiff was not entitled to a disability pension because, due to his discharge, he was not a fire fighter at the time of his application. (Di Falco, 122 Ill. 2d at 25-26.) “The gist of the holding of the board and trial court, as well as of defendant’s argument,” was that pursuant to section 4 — 110 of the Pension Code (Ill. Rev. Stat. 1981, ch. ÍOS1^, par. 4 — 110), which provides for duty-related disability pension benefits for fire fighters, “an individual must be a ‘fireman,’ as used in that section, at the time of the application.” (Di Falco, 122 Ill. 2d at 25.) Our supreme court reasoned:

“[U]pon reviewing article 4 of the Pension Code as a whole, it becomes apparent that the purpose of a duty-related disability pension is to help provide only for fire fighters *** who, if not for the disability, would still be employed as fire fighters and drawing their regular salary. On the other hand, the scheme of the Pension Code indicates that the purpose of a duty-related disability pension would not be served by granting a disability pension to an applicant who is no longer employed as a fire fighter because he has been discharged.” Di Falco, 122 Ill. 2d at 27.

The court cited several sections of the Pension Code in support of its interpretation of section 4 — 110 that disability pensions were not meant for discharged fire fighters. For example, it noted that section 4 — 101 of the Code (Ill. Rev. Stat. 1981, ch. IO8V2, par. 4 — 101) provided that the firemen’s pension fund was established for the benefit of firemen, who were defined in section 4 — 106 (Ill. Rev. Stat. 1981, ch. IO8V2, par. 4 — 106) as persons employed by a city in its fire service. Accordingly, the court found that “a discharged fire fighter is obviously not ‘employed,’ in any sense of the word, by a city in its fire service and the pension fund was not established for his benefit.” (Di Falco, 122 Ill. 2d at 28.) Next, the court pointed out that section 4— 112 (Ill. Rev. Stat. 1981, ch. ÍOS1^, par. 4 — 112), which governs the determination of disability and restoration to active service, stood “as further evidence of the selective purpose of a duty-related disability pension.” (Di Falco, 122 Ill. 2d at 28.) The court found that the provisions of that same section, which provide that a disabled fire fighter is subject to annual physical examinations and has the right to return to work if he is no longer disabled, “strongly indicate that disability pensions are to be given only to fire fighters who would still be employed as fire fighters if not for their disability.” (Di Falco, 122 Ill. 2d at 29.) Finally, the court found that section 4 — 113 (Ill. Rev. Stat. 1981, ch. lOSbk, par. 4 — 113), which allows disabled fire fighters to elect to retire if certain requirements are met, indicated “that in order to begin receiving a disability pension, fire fighters must not have been discharged” because a discharged fire fighter cannot elect to retire. (Di Falco, 122 Ill. 2d at 29.) Instead, the court explained that pursuant to section 4 — 116 (Ill. Rev. Stat. 1981, ch. IO8V2, par. 4— 116), “the scheme of the Pension Code is to provide a refund for discharged fire fighters who have not received disability before being discharged.” Di Falco, 122 Ill. 2d at 30.

However, the court narrowly defined its holding:

“In summary, upon reviewing article 4 of the Pension Code as a whole, we conclude that the primary purpose of the establishment of a duty-related disability pension under section 4— 110 is to provide for the benefit of fire fighters who would still be employed as fire fighters and receiving a salary if not for the disability. Discharged fire fighters are no longer fire fighters because of the discharge, not the disability. To allow fire fighters who have been discharged to apply for disability pensions under section 4 — 110 would disrupt the pension scheme established by the legislature. Accordingly, the term ‘fireman’ as used in section 4 — 110 is operative both at the time of the impairment and application. To receive a disability pension under section 4 — 110, a fire fighter must not have been discharged prior to application therefor.” Di Falco, 122 Ill. 2d at 30.

Nevertheless, the Board contends that regardless of its narrow holding, the rationale of Di Falco applies in this case. The Board asserts that in order to be eligible for a disability pension, the applicant must be a police officer at the time of the application as well as the receipt of benefits. According to the Board, the crucial factor is not the time of the application, but rather, the effect of the discharge on the right to receive disability benefits. The Board, as did the court in Di Falco, draws upon other provisions of the Code in support of its position. For example, the Board points out that, pursuant to section 3 — 106 of the Pension Code (Ill. Rev. Stat. 1977, ch. 108x/2, par. 3— 106), a police officer is defined as any person who is appointed to a police force and sworn and commissioned to perform police duties. Accordingly, the Board argues Iwanski is no longer a police officer because he has been discharged. The Board also notes that, pursuant to section 3 — 115 (Ill. Rev. Stat. 1977, ch. IO8V2, par. 3 — 115), a “[m]edical examination of a policeman retired for disability shall be made at least once each year prior to the attainment of age 50, as a check of the continuance of the disability for service as a policeman” and that pursuant to section 3 — 116 (Ill. Rev. Stat. 1977, ch. IO8V2, par. 3— 116), the Board shall certify to the chief of police that an officer is able to resume his duties if he is found to have recovered from his disability. On the basis of these provisions the Board argues that because of his discharge, it would have no authority to return Iwanski to active duty if he were found to have recovered. The Board also notes that, pursuant to section 3 — 116.1 (Ill. Rev. Stat. 1977, ch. IO8V2, par. 3 — 116.1), a police officer, under certain circumstances, may elect to convert his disability pension into a retirement pension, and that, therefore, the legislature could not have intended to allow Iwanski the opportunity to elect to receive a retirement pension when he has been discharged from the department.

In further support of its position, the Board relies on the authority of Freberg v. Board of Trustees of the Firemen’s Pension Fund (1970), 128 Ill. App. 2d 369, in which a fire fighter applied for a disability pension after being discharged for indecent exposure to children. In finding that the provision entitling a fireman to non-duty disability pension implied that the applicant must still be a fireman at the time of the application, the court reasoned that the phrase “any fireman” meant “a fireman on active duty, one on inactive duty, one on a leave of absence, one suspended, or one retired, but not an individual who has been discharged.” (Freberg, 128 Ill. App. 2d at 374.) As the Board points out, the court in Freberg recognized that the effect of granting a non-duty disability pension to a discharged fire fighter “would be to place him in a special classification wherein he would receive the benefits of these [Pension Code] sections, without being bound by the obligations. Thus, a person discharged for cause would benefit from a special classification which arose from that discharge, permitting him to profit from his own misconduct.” (Freberg, 128 Ill. App. 2d at 374.) According to the Board, the purpose of the Pension Code is to provide disability benefits to injured officers and not to allow discharged officers to collect severance pay. The Board acknowledges that Iwanski is entitled to a refund of his contributions to the fund under section 3 — 124 of the Pension Code. Ill. Rev. Stat. 1977, ch. 108x/2, par. 3 — 124.

In response, Iwanski relies on the authority of Stec v. Oak Park Police Pension Board (1990), 204 Ill. App. 3d 556, in which the court held that a police officer who applied for a duty-related disability pension after disciplinary charges were filed against him but before tendering his resignation and reserving his right to pursue a disability pension was not precluded from receiving a disability pension since, unlike Di Falco, he was a police officer at the time he applied for the pension. In support of its holding the court in Stec relied on the authority of Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206. (Stec, 204 Ill. App. 3d at 562-63.) There, the police officer, as did the officer in Stec, applied for a disability pension after charges were filed against him but before resigning and reserving his right to a pension. (Hahn, 138 Ill. App. 3d at 207-08.) The court held that the officer did not intend to relinquish his rights to a pension because he applied for the pension before resigning and since he specifically preserved his right to pursue a disability pension in his resignation. In addition, the court construed the phrase “[a]ny policeman” in section 3 — 114.2 of the Code (Ill. Rev. Stat. 1981, ch. 108x/2, par. 3 — 114.2) “to encompass a retired police officer, inasmuch as the statute itself envisions that the officer’s condition will necessitate ‘suspension or retirement.’ ” (Hahn, 138 Ill. App. 3d at 212; Stec, 204 Ill. App. 3d at 562-63.) Despite the defendant’s assertions to the contrary, the court in Stec refused to accept that Di Falco overruled Hahn, because the court in Di Falco, although reversing the Second District Appellate Court, which decided Hahn, failed to mention the Hahn case in its opinion and because it narrowly tailored its holding. Stec, 204 Ill. App. 3d at 563-64.

In connection with the provisions of the Code cited by the Board in support of its position, Iwanski responds on the authority of Hahn that if he refused to submit to annual examinations to verify his disability the Board could discontinue his disability payments. (See Hahn, 138 Ill. App. 3d at 212-13.) In addition, he states that section 3 — 147 of the Code (Ill. Rev. Stat. 1977, ch. ÍOS1^ par. 3 — 147), which bars disability pension payments to persons convicted of felonies, indicates that the legislature has chosen to bar only convicted felons from receiving benefits.

The Board claims that Hahn and Stec are distinguishable since the officers in those cases resigned and because they reserved the right to apply for a pension in their resignations. According to the Board, an “involuntary discharge for misconduct is significantly different than a voluntary resignation.”

Recently, in Greenan v. Board of Trustees of the Police Pension Fund (1991), 213 Ill. App. 3d 179, appeal denied (1991), 141 Ill. 2d 540, the court was faced, as we are here, with the issue of “[wjhether an applicant for a disability pension must remain employed as a police officer beyond the time of application for those benefits.” According to the court, Freberg and Di Falco ruled only on the effect of an applicant’s employment status at the time of the application. Acknowledging that there were no hard and fast rules for resolving this issue, the court found that a disabled police officer’s resignation did not sever his right to a line of duty disability pension where he was a commissioned police officer at the time of his knee injury, at the time of his application for disability pension benefits and at the time of the hearings on his application. Greenan, 213 Ill. App. 3d at 186.

In light of the foregoing authorities and the facts of this case, we find that Iwanski’s discharge does not prevent his being awarded a disability pension. We disagree with the Board’s claim that Hahn and Stec are distinguishable because the plaintiffs in those cases resigned whereas in this case Iwanski was discharged. Furthermore, our holding is not inconsistent with the provisions of the Code cited by the Board. In Greenan the court noted that, unlike fire fighters, “police officers on disability pension are not subject to recall to active duty upon recovery from their disability.” According to the court:

“This is one instance where article 3 of the Code differs from article 4 on fire fighters’ pensions. Section 3 — 116 of the Code does not mandate reinstatement to active service upon recovery of disability, but only requires the Board ‘certify to the chief of police that the member is no longer disabled and is able to resume the duties of his or her position.’ (Ill. Rev. Stat. 1989, ch. 108!/2, par. 3 — 116.) This certification does not require the pensioner be returned to duty, nor does it provide an absolute right to his or her old position. In contrast, section 4 — 112 of the Code states that when a fire fighter recovers from disability, the ‘firefighter shall report to the marshal or chief of the fire department, who shall thereupon order reinstatement into active service.’ (Emphasis added.) (Ill. Rev. Stat. 1989, ch. ÍOS1^, par. 4 — 112.) Thus, the mandatory reinstatement to active duty which Di Falco and Freberg found was prevented by a fire fighter’s discharge does not exist in the instant case.” Greenan, 213 Ill. App. 3d at 185.

Similarly, with respect to section 3 — 116 of the Code, which requires that a pensioner is subject to recall for emergency duty and is required to submit to annual examinations, the court in Greenan stated, on the authority of Hahn, that “[tjhese obligations do not arise from plaintiff’s employment status with the police department but rather from the Board’s jurisdiction over one receiving disability pension benefits.” (Greenan, 213 Ill. App. 3d at 186-87.) Accordingly, the court held that the plaintiff continued to be bound by the obligations of section 3 — 116 and that the Board would be justified in terminating his benefits if he refused to comply with its provisions. (Greenan, 213 Ill. App. 3d at 185-87.) For the reasons and subject to the limitations discussed above, we hold that Iwanski’s discharge does not bar his entitlement to a disability pension.

B. DISABILITY

With respect to the issue of disability, the Board found that the more credible medical evidence led it to conclude that “Iwanski’s alleged emotional, mental and physical states were not a result of something that occurred in connection with service in the police department and that [Iwanski] was not disabled.” The circuit court reversed the Board’s decision that Iwanski was not disabled as being against the manifest weight of the evidence and found that he was entitled to a non-duty disability pension.

Dr. Anthony D’Agostino examined Iwanski at the direction of the Board on September 21, 1989, and October 2, 1989, and on the basis of these examinations and his review of Ostrov’s report, he certified that Iwanski was disabled for service in the police department. He also reported that Iwanski stated that his troubles began sometime in 1985 with the hiring of a new police chief and the subsequent implementation of new policies which resulted in his job dissatisfaction and poor performance. Iwanski also attributed his problems to a back injury he received in 1985, and felt that his superiors were unfairly discriminating against him because of his involvement in bringing a police union to the Village. He said that in 1987, he began having problems at home because of his job stress. He reported having two “out of body experiences” in 1986 and three in 1987, in which he saw himself committing suicide. He began therapy and eventually took the medication Tofranil. His family problems grew worse in 1988 as a result of his daughter’s marriage and his son’s entrance into the Marines. Iwanski reported that he no longer suffered from severe anxiety or depression, that he was not disabled and that he felt he could return to duty. Dr. D’Agostino, who reviewed Ostrov’s report as part of his evaluation, found that Iwanski had a history of psychological problems and that his problems appeared to be “an outgrowth of longstanding personality problems which, under pressure, become accentuated and give rise to the symptoms listed above.” Dr. D’Agos-tino concluded that:

“[T]he day to day expectations of active duty police work, especially with rotating shifts, are beyond Officer Iwanski’s capacity at this time. The evidence further suggests that this has been a problem for a number of years and this situation is not likely to change in the near future, even with therapy. In my opinion he does not have the kind of personality suitable for police work. In my opinion his symptoms are non-specific in nature and not ‘caused’ by his having been a police officer.”

Dr. Michael Rogers, also examined Iwanski at the direction of the Board on December 14, 1989, and as part of his evaluation, he read Dr. Chadha’s letter as well as the reports of Dr. D’Agostino and Os-trov. He, too, certified that Iwanski was disabled. Dr. Rogers agreed with Dr. D’Agostino that Iwanski was “disabled for the day to day swing shift expectations of a police officer.” He felt that Iwanski had been clinically depressed since 1987 and that Iwanski’s disability seemed to have been precipitated by his frustrations at work. He also reported that the anxiety attack which Iwanski suffered in 1970 was “clearly a much more minor episode” than his depressive episodes of the past two years. Dr. Rogers reported that Iwanski felt his problems started in 1984 and progressed in 1985 after he injured his back while making an arrest. He concluded that Iwanski was “disabled for any kind of police work, and apparently any kind of swing shift work.” He felt that Iwanski’s “depressive disorder might well have occurred in any work requiring the flexibility of his police job” and that Iwanski’s family stresses were “not of the order that would be a serious problem to a person with average emotional flexibility.”

Ostrov had conducted a clinical evaluation of Iwanski at Schmidt’s direction shortly after the conference of June 20, 1989, in order to determine Iwanski’s ability to return to full active duty as a police officer. In addition to interviewing Iwanski, Ostrov interviewed Iwanski’s wife and his psychotherapist, Gary Wakefield, conducted two diagnostic tests and reviewed Streamwood police department records on Iwanski, including Dr. Chadha’s letter. He reported that Iwanski showed no “marked depressive symptomatology” and “manifested no psychotic symptomatology.” He stated that Iwanski said his psychiatric symptoms began about four years before. Ostrov stated that although Iwanski focused on problems at work, he indicated a long history of psychiatric difficulty. According to Ostrov, Iwanski said that he had been nervous all his life, and that when he was about seven or eight, he had a problem with upset stomachs especially around holidays. He also said that he had a bleeding ulcer when he was 18 and a breakdown in 1970 for which he was given Valium. Iwanski also reported an angina attack which Ostrov concluded was apparently caused by stress. However, Iwanski testified at the pension hearing that he never told Ostrov that he had a previous history of problems, that Ostrov did not ask him any questions about his ulcers, and that his angina attack was caused by a virus.

In addition, Ostrov reported that Iwanski told him his problems started as the result of a back injury he received in 1985. Iwanski stated that he was off for sixth months because of the injury and was questioned about excessive use of sick time. He stated that he was turned down for a pay raise while he was off and that he became angry. Iwanski speculated that his involvement in the union was one reason for the inquiry. He further stated that he was the subject of many inequities when he returned to work and that his grievances at work had built up over the years. He also reported stress over family problems. He told Ostrov that he became quite depressed in February of 1988 because of a scheduling conflict and it was at this time that he reported having out-of-body experiences. He said his depression began to lift as a result of medication and his being put on the day shift, but that his problems returned when he went back to the 3 to 11 shift.

Ostrov reported that the Millón Clinical Multiaxial Inventory-II (MCMI) indicated “schizoid, avoidant, dependant and passive-aggressive traits” and “marked anxiety and depression.” Similarly, the Minnesota Multiphasic Personality Inventory (MMPI) indicated “a wide variety of psychopathology, marked by depression, anxiety, and cognitive disfunction.” Ostrov concluded that:

“Officer Iwanski evidences a long history of psychiatric problems that predate his employment by the Police Department. There are indications in recent years of intense depression with accompanying suicidal ideation. According to Officer Iwanski, his wife, and his psychotherapist, he has improved with treatment and medication. At the same time, interview and test results point to serious continuing emotional problems. Indications are that he continues to manifest significant anxiety and depression. Of great concern is that under stress he continues to exhibit significant anger almost to the point of loss of control. *** [He] expressed no confidence that he could cope with rotating shifts. *** I recommend that Officer Iwanski not be returned to full active duty as a Streamwood police officer. He has been in treatment for years, apparently with limited success. *** This evaluation raises serious questions about whether Officer Iwanski will have the capacity to function as a police officer at any time in the future.
*** [H]e should not be re-evaluated until sufficient time has passed for him to make further theraputic progress.”

Dr. Clifton Rhead, who examined Iwanski on November 10, 1989, at Iwanski’s request, also certified that Iwanski was disabled. He found that Iwanski “has suffered from severe depressions for four to five years,” but that he “showed no evidence of a major psychiatric disorder.” Although he noted that Iwanski had psychiatric treatment in 1970, he also found that Iwanski subsequently served in the police department "for six years without impairment.” According to Dr. Rhead, “the precise precipitating event(s) for the current impairment is [sic] difficult to determine but appear to have had little effect until approximately 1984 or 1985.” He stated that the issue of whether or not Iwanski’s disability resulted from police service depends on one’s definition of causality. He continued, “one can say with certainty that the predisposing factors were present, but with much less certainty that the precipitating stress was that of his service with the police department.” Dr. Rhead diagnosed Iwanski as having major depression which was in remission due to medication. He concluded that Iwanski was not fit for duty and would not be fit for duty in the forseeable future.

In her letter of June 22, 1989, to Schmidt, Dr. Chadha wrote that Iwanski had been under her care and that he had been in counseling for a year and a half. She noted that she put him on medication after he became more depressed and had suicidal thoughts in February of 1989. She noted that Iwanski had discussed his problems at work with her, including his feeling that he was being discriminated against. He told her that his problems at work resulted in his problems at home. She recommended that he be put on the day shift in order to reduce his stress, to give him time to spend with his family, to better schedule his medication, and to allow him to attend group therapy once a week. She stated that in his last individual session he was not suicidal or homicidal and that he reported he was feeling better with medication. She recommended that “Iwanski should return to work full time on day shifts and he should continue his treatment as recommended.”

In support of its conclusion that Iwanski was not disabled, the Board relied on Dr. Chadha’s letter and noted that she had been treating Iwanski for a year and a half, longer than any other physician who evaluated him. The Board also relied on statements made by Iwanski to Dr. D’Agostino in which he related to the doctor that he was not disabled and could carry out the requirements of his job. The Board further argues on the authority of Wall v. Police Pension Board (1988), 178 Ill. App. 3d 438, that Iwanski’s job stress or job dissatisfaction does not constitute a disability. This argument is based on several statements made by Iwanski to Dr. D’Agostino which indicated that he was disenchanted with his job.

Iwanski responds that the Board has taken Dr. Chadha’s report out of context and that it does not demonstrate that he is not disabled. Iwanski further argues that his statements must be viewed in light of the fact that he was suffering from severe depression. Moreover, he points out that the Board of Police and Fire Commissioners adjudicated him unfit to be a police officer in response to Schmidt’s charges that he was no longer mentally competent. He asserts that the circuit court was correct in finding that Wall was distinguishable and in finding that the Board’s decision was against the manifest weight of the evidence. We agree.

All three of the physicians who examined Iwanski for the purposes of the pension hearing near the time of his application certified that he was disabled. Two of these three doctors were selected by the Board. Whatever the Board wants to make of Iwanski’s statements to Dr. D’Agostino, it is important to note that the doctor to whom those statements were made concluded that Iwanski was disabled. In addition, Ostrov, who examined Iwanski about three months earlier, found that Iwanski was unfit for duty and that clinical tests indicated Iwanski exhibited “schizoid” traits and “a wide variety of psychopathology.” Indeed, it was Ostrov’s findings which formed the basis for the decision of the Board of Police and Fire Commissioners that Iwanski was unfit for duty because of his mental problems. Dr. Chadha’s letter, which was completed about three months before the evaluations made by the other doctors, clearly states that Iwanski was ready to return to the day shift, a shift which was unavailable according to Schmidt. Dr. Rogers, one of the experts who examined Iwanski at the Board’s request, interpreted Dr. Chadha’s letter to mean that Iwanski “was not disabled for work providing he could be assigned to a day shift.” Schmidt also acknowledges this fact in his letter to Os-trov by emphasizing that Dr. Chadha’s letter recommends that “Officer Iwanski return to work full time on day shift.” Further, it is clear from Dr. Chadha’s letter that Iwanski’s problems were being controlled •with the aid of medication and therapy, and that she recommended the day shift to facilitate the scheduling of his medication and therapy.

Moreover, the evidence of mental disability in this case is much greater than in Wall. There, a police officer, who was seeking a duty-related disability pension, told the Board that he “no longer had fun on the job” and “did not feel he could handle the job anymore.” On one occasion he experienced severe chest pains which he attributed to stress, but a doctor diagnosed him with mild pleurisy. He was put on emergency suspension when he told his commander that he was experiencing severe emotional strain and could not continue to work. He did not return to work thereafter. (Wall, 178 Ill. App. 3d at 439-40.) In any event, the issue on appeal in Wall was whether or not the plaintiff’s stress was job related. Although the plaintiff claimed that he suffered from police stress syndrome and was therefore entitled to a job-related disability pension (Wall, 178 Ill. App. 3d at 442), the evidence varied significantly as to whether the plaintiff’s stress was in fact job related (Wall, 178 Ill. App. 3d at 440-41) and the appellate court affirmed the Board’s finding that the plaintiff did not prove that his stress was the result of the performance of an act of duty. Wall, 178 Ill. App. 3d at 444.

We find this case to be similar to the Hahn case, in which the appellate court, in reversing the circuit court’s affirmation of a pension board decision, found that the plaintiff was entitled to a non-duty disability pension where three of the four psychiatrists who examined the plaintiff near the time of his retirement found that he was disabled. (Hahn, 138 Ill. App. 3d at 210.) Likewise, in Batka, the appellate court, in reversing the circuit court, found that a pension board’s decision was against the manifest weight of the evidence where three psychiatrists found that the plaintiff was disabled, one psychiatrist found that although he was fit for duty he needed “fairly intensive psychotherapy,” and two psychologists found that he was fit for duty if he continued his therapy. (Batka, 186 Ill. App. 3d at 723.) “Where [as here] the administrative order is contrary to the manifest weight of the evidence, it is the duty of the reviewing court to affirm the action of the Circuit Court in setting it aside.” (Gloss v. Board of Trustees, Firemen’s Pension Fund (1971), 132 Ill. App. 2d 736, 738.) Accordingly, we find that the circuit court was correct in reversing the Board’s finding that Iwanski was not disabled as being against the manifest weight of the evidence.

II

Iwanski contends on cross-appeal that the circuit court erred in finding that he was entitled to a non-duty rather than a duty-related disability pension. According to Iwanski, the evidence “demonstrates that [his] depression began after a duty[-]related back injury.”

The evidence indicates that on December 5, 1985, Iwanski suffered a back injury while making an arrest, was treated and returned to work one month later. Because of the prolonged periods of sitting required by his job as a patrolman, he reaggravated the injury in February of 1986 and did not return to work until June of that year. He filed a claim with the Illinois Industrial Commission in connection with this injury and received a lump sum payment. Iwanski reag-gravated the injury several times thereafter and filed an injury report in each case. According to Iwanski, he has experienced pain in his lower back, thighs and feet from the time of the initial injury forward. In addition, he claims that he has backed off of potentially confrontational situations because he was afraid of reinjuring his back, that his performance was down and that he became depressed because of the pain.

However, a significant amount of the evidence presented to the Board casts doubt on Iwanski’s claim. For example, Dr. D’Agostino found that Iwanski’s problems appeared to be an outgrowth of long-standing personality problems and that his symptoms were not caused by his having been a police officer. Similarly, although Dr. Rogers found that Iwanski’s problems seemed to have been precipitated by what he perceived as the rejection of his efforts to please his supervisors at work, his frustration over their making his job more difficult than necessary and his return to the swing shift, the doctor concluded that his depressive disorder might well have occurred in any work requiring the flexibility of his police job. Although both of these doctors were aware of Iwanski’s back injury, neither one cited it as the cause of his depression. Further, Dr. Rhead, who examined Iwanski at Iwanski’s request, testified only that there was a “possibility” that Iwanski’s back injury caused his depression. Similarly, in his report he stated that “one can say with certainty that the predisposing factors were present, but with much less certainty that the precipitating stress was that of his service with the police department.”

A review of the evidence makes it clear that Iwanski failed to demonstrate that his mental disability was caused by the back injury he suffered while on duty; therefore, the circuit court did not err in finding that Iwanski was entitled to a non-duty rather than a duty-related disability pension.

For all of the above reasons, we affirm the judgment of the circuit court.

Affirmed.

DiVITO and McCORMICK, JJ., concur.

       We note that this dispute is governed by the terms of the Pension Code at the time Iwanski became a member of the pension system. Kerner v. State Employees’ Retirement System (1978), 72 Ill. 2d 507, 514, cert. denied (1979), 441 U.S. 923, 60 L. Ed. 2d 397, 99 S. Ct. 2032.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HARTFIELD, Defendant-Appellant.
    First District (2nd Division)
    No. 1—91—1261
    Opinion filed June 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Jeffery Wawrzyniak, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

In 1984, defendant John Hartfield was convicted of rape and aggravated battery; he was adjudged a habitual criminal and was sentenced to life imprisonment. After an unsuccessful appeal, defendant filed a post-conviction petition, alleging constitutional error due to the State’s use of peremptory challenges to exclude blacks from the jury and his trial counsel’s refusal to comply with his requests to object to this conduct. The circuit court dismissed the petition without an evi-dentiary hearing. For the reasons that follow, we affirm.

During the court’s voir dire of the potential jurors, one of the prosecutors asked to approach the bench for an unspecified reason. The court then remarked:

“It’s been brought to my attention I forgot two questions.
The first one is — as you can see, Mr. Hartfield is a black man. Some of you are white, but some of you are Oriental. Some of you are black.
The fact that Mr. Hartfield’s race, would that, in anyway [sic], affect any of your ability to be fair and impartial? There’s no — nobody who has given an affirmative response.”

Jury selection took place in the judge’s chambers. There is no record of the process, but the judge commented a short time later that the State exercised seven peremptory challenges.

After defendant’s conviction in February 1984, he appealed on grounds not relevant here. The appellate court affirmed the judgment in October 1985. (People v. Hartfield (1985), 137 Ill. App. 3d 679, 484 N.E.2d 1136.) Defendant then filed a petition for leave to appeal, which the Illinois Supreme Court denied on February 5, 1986. The record contains no indication that defendant filed a petition for rehearing or that he petitioned the United States Supreme Court for a writ of certiorari.

On April 30, 1986, less than three months after the Illinois Supreme Court issued its ruling on defendant’s appeal, the United States Supreme Court rendered its decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. In Batson, the Supreme Court held that a defendant may challenge, on equal protection grounds, a single instance of the State’s use of peremptory challenges to reject venire members of the same race. In doing so, the Court overruled Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, which had required a defendant to establish case-by-case discrimination in order to prevail on an equal protection claim.

Defendant filed a pro se post-conviction petition in 1988. In this petition, he alleged that he was denied effective assistance of counsel in violation of the sixth amendment by his trial counsel’s refusal to comply with his request that she object to the State’s use of peremptory challenges to exclude blacks from the jury, and that he was denied a fair trial and equal protection by the State’s use of its peremptory challenges to exclude black potential jurors. In defendant’s affidavit submitted with his petition, he claims that he “experienced the prosecutor exercise peremptory challenges to exclude black persons from [his] petit jury,” such that “to [his] best recollection, the prosecutor so excluded nearly all the black [potential] jurors present and only one (1) black [potential] juror was allowed to participate in [his] jury trial as an alternate juror.” Defendant also states as follows:

“I became outraged by the prosecutor’s conduct of excluding nearly all the black jurors after my attorney informed me of the same. I then indicated to my attorney that it was apparent that the prosecutor wanted no black people to determine my fate. My attorney informed me that this type of conduct was a practice of the State’s Attorney’s Office of Cook County, Illinois. I stated to my attorney that this was obvious racism, and I asked her to object to the conduct. My attorney said that the law allowed the prosecutor to use his peremptory challenges any way he saw fit, and that there was nothing the defense could do about it.”

Defendant’s petition asked the court to vacate the judgment and to grant him a new trial.

On defendant’s motion, the court appointed a public defender to represent him. The State moved for dismissal of the petition. The motion itself is not in the record, but according to the transcript of the hearing, the State argued that the Batson ruling was inapplicable given the dates of defendant’s conviction and unsuccessful appeals. No argument was had on the sixth amendment claim. At the outset of the hearing on the State’s motion, the court denied defense counsel’s motion for leave to withdraw on the ground of conflict of interest. Without an evidentiary hearing, the court granted the motion to dismiss; it did not articulate its reasons.

I

Section 122 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.) states as follows:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1.)

The purpose of a post-conviction proceeding is to delve into constitutional phases of the original conviction which have not previously been determined. People v. Owens (1989), 129 Ill. 2d 303, 308, 544 N.E.2d 276, 277, cert. denied (1990), 497 U.S. 1032, 111 L. Ed. 2d 802, 110 S. Ct. 3294.

The standard of review for such proceedings is well settled:

“A Post-Conviction Hearing Act proceeding is not an appeal per se, but a collateral attack on a judgment. [Citation.] In order to prevail under the Act, the defendant must establish a substantial deprivation of his rights under the United States Constitution or the Constitution of Illinois. [Citation.] The defendant is not entitled to an evidentiary hearing unless the allegations of his petition, supported where appropriate by the trial record or by accompanying affidavits, make a substantial showing that the defendant’s rights have been so violated. [Citation.] For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and in any accompanying affidavits are to be taken as true. [Citations.]” (People v. Caballero (1989), 126 Ill. 2d 248, 258-59, 533 N.E.2d 1089, 1091.)

The decision to dismiss a petition without an evidentiary hearing is within the court’s discretion (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 6), and it will be reversed only on an abuse of that discretion. People v. Mendez (1991), 221 Ill. App. 3d 868, 871, 582 N.E.2d 1265, 1268, appeal denied (1992), 143 Ill. 2d 644, 587 N.E.2d 1021.

II

The State argues that the voir dire record’s silence as to the race of the jurors and the venire precludes defendant from raising his equal protection claim. Illinois courts, however, have held that such gaps are not fatal in cases tried prior to Batson when deciding whether a defendant can make a prima facie showing of discrimination; instead, the voir dire record may be supplemented with information from other sources such as the trial judge, the attorneys, or the venire members themselves. (People v. Mitchell (1991), 221 Ill. App. 3d 979, 992-93, 582 N.E.2d 1193, 1201, citing People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, and People v. Lann (1990), 194 Ill. App. 3d 623, 551 N.E.2d 276, appeal denied (1990), 132 Ill. 2d 550, 555 N.E.2d 381.) Therefore, we find that this flaw is not dispositive.

The State also contends that defendant waived his claims by not raising them on direct appeal. Although conceding that courts relax the waiver rule for factual questions not apparent from the record during direct appeal, the State contends that defendant had ample opportunity to raise these claims earlier because the court asked the members of the venire whether the defendant’s race would affect their impartiality. It also chastises him for not explaining the delay. In addition, maintains the State, it would be mere speculation to hold that not objecting to the State’s conduct worked to defendant’s disadvantage at trial. Therefore, the State concludes, defendant has not shown either “cause” or “prejudice” such as would take this case out of the embrace of the waiver rule.

Here, as noted above, the jury selection process apparently was not transcribed, so the State’s use of its peremptory challenges, and defendant’s objections, if any, could not have been in the record on direct appeal. Similarly, defense counsel’s alleged refusal to object occurred in an off-the-record conversation between defendant and his attorney. For this very reason, the issues before the circuit court on defendant’s petition could not have been raised on direct appeal, which may review only those claims that are grounded in the trial record. In addition, the circuit court’s query to the venire prior to selection asked only whether they thought that defendant’s race would affect their impartiality; it did not address the State’s and defense counsel’s subsequent conduct. Therefore, we hold that the waiver doctrine is no bar to defendant’s claims. People v. Lee (1989), 185 Ill. App. 3d 420, 427, 541 N.E.2d 747, 751.

Ill

Defendant argues that the dismissal of his equal protection claim was premature without an evidentiary hearing on his ineffective assistance claim.

Defendant’s argument is premised on his belief that the reason the circuit court dismissed the equal protection claim was that defendant had waived it by not mentioning it on direct appeal. Because defendant did not include the State’s motion to dismiss in the record, we do not know if the State urged the circuit court to adopt this view, nor do we know if the circuit court grounded its decision on this basis given that, as noted above, it gave no reasons for dismissing defendant’s petition. Here again, however, even if we determined that defendant did not waive this question, defendant could not prevail on the merits.

According to the transcript from the hearing on the State’s motion to dismiss the petition, the State argued that the United States Supreme Court’s decision in Allen v. Hardy (1986), 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (per curiam), precluded defendant from raising an equal protection claim under Batson in a post-conviction proceeding. In Allen, the Court held that Batson applies retroactively in collateral proceedings such as this only if, on April 30, 1986, a defendant’s case was either on direct appeal or the time to petition for a writ of certiorari had not passed; otherwise, relief under Batson is unavailable. Allen, 478 U.S. at 258 & n.1, 92 L. Ed. 2d at 204 & n.1, 106 S. Ct. at 2879-80 & n.1.

Here, the Illinois Supreme Court denied defendant’s petition for leave to appeal on February 4, 1986. At that time, the rules of the United States Supreme Court required that a criminal defendant file a petition for a writ of certiorari within 60 days of the order challenged, in this case, on or before April 6, 1986. (Sup. Ct. R. 20(.1) (1980), 445 U.S. 1006, 63 L. Ed. 2d xxxviii.) Accordingly, unless defendant filed a petition for rehearing in the Illinois Supreme Court or a petition for certiorari in the United States Supreme Court, facts about which the record is silent, his appeal was not “pending” for Allen’s purposes when Batson was announced. Under these circumstances, defendant cannot bring a Batson claim. Therefore, the circuit court properly dismissed defendant’s equal protection claim without a hearing, if the basis for the claim was Batson or the relief sought was a Batson hearing.

This ruling does not end our inquiry, however, because defendant did not predicate his equal protection claim on Batson and did not ask for a Batson hearing. Indeed, he makes no mention of Batson in his petition, as is proper under the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2). Instead, he merely alleges that the State used its peremptory challenges to exclude blacks from his jury and that his attorney told him that this conduct was both lawful and a practice of the prosecutor’s office. As the State suggests, defendant’s claim is governed by the pre-Batson rule of Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. (People v. Andrews (1992), 146 Ill. 2d 413, 423.) In Swain, the Court held that a defendant who claimed racial discrimination in the State’s use of peremptory challenges was required to overcome the presumption that a prosecutor’s conduct in any particular case was governed by trial-related considerations rather than intent to discriminate. (Swain, 380 U.S. at 220-23, 13 L. Ed. 2d at 772-74, 85 S. Ct. 835-37.) To do so, one had to demonstrate that over time, the prosecutor systematically and purposefully excluded members of a defendant’s racial group from serving as jurors for reasons unconnected to the result of the case at issue. In Swain, the defendant did not meet his burden of proof.

Here, similarly, defendant has not met his burden of proof under Swain. Keeping in mind that we assume that all well-pleaded facts contained in the petition and supporting affidavit are true, we accept defendant’s claim that the State exercised its peremptory challenges to exclude blacks from his jury. His trial counsel’s comment that the State did this routinely, however, cannot be viewed in the same light for the simple reason that as defendant insists elsewhere, the attorney’s statement is offered only to show her state of mind, not for its truth; otherwise, it would be hearsay and therefore inadmissible. Unfortunately for defendant, his attorney’s comment is also the lone indication in his petition that the prosecutor used peremptory challenges over time to deny black venire members the opportunity to serve as jurors, the proof that Swain requires. Although an affidavit from defendant’s trial counsel would have helped defendant to establish the requisite “substantial showing” of systematic discrimination, which in turn would have warranted reversal under Swain, defendant elected not to submit one. Therefore, the circuit court’s dismissal of the equal protection claim without a hearing was proper because defendant’s petition and affidavit alone do not satisfy the statutory prerequisite of a “substantial showing” that the prosecutor’s conduct was unconstitutional under the then-prevailing rule of Swain.

IV

To state a claim for ineffective assistance of counsel, a convicted defendant must satisfy both prongs of the test articulated in Strickland v. Washington (1984), 466 U.S. 668, 687-95, 80 L. Ed. 2d 674, 693-99, 104 S. Ct. 2052, 2064-69: (1) the defendant must show that “counsel’s representation fell below an objective standard of reasonableness” considering all the circumstances, including the law prevailing at the time at issue; and (2) “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

A

Defendant argues that under Strickland, his counsel's performance was objectively unreasonable because even prior to Batson, a prosecutor could not exercise peremptory challenges with impunity. As a result, he reasons, his trial counsel’s statement that “the law allowed the prosecutor to use his peremptory challenges any way he saw fit” was incorrect. The State counters that defendant’s counsel was competent under Strickland in that, as noted above, to prevail on an equal protection claim under the rule prevailing at the time (Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824), defendant was obliged to demonstrate that the State had excluded black venire members from juries systematically and purposefully over a period of time, proof that the petition gives no indication defendant’s trial counsel could have produced at trial.

Trial counsel may be deemed ineffective for misunderstanding the applicable law. (People v. Hayes (1992), 229 Ill. App. 3d 55, 61.) Here, however, defendant’s trial counsel’s refusal to object to the State’s conduct did not reflect a misunderstanding of the law at the time and thus her conduct did not fall below reasonable contemporaneous professional standards. In early 1984, such an objection could have succeeded only if a defendant had been able to demonstrate purposeful discrimination on a case-by-case basis, a daunting task. Indeed, in People v. Gaines (1984), 105 Ill. 2d 79, 473 N.E.2d 868, a post-conviction case decided after defendant’s trial occurred, the Illinois Supreme Court rejected an equal protection claim similar to defendant’s, holding that under Swain and then-controlling Illinois case law, the defendant had not raised a constitutional issue because the defendant did not make a substantial showing of systematic exclusion. (Gaines, 105 Ill. 2d at 88-89, 473 N.E.2d at 873.) In a case decided the same day as Gaines, People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880, the court rejected a due process claim brought for exclusion of black venire members. Citing an informal newspaper survey, the court commented that “there is just no evidence that blacks are systematically and purposefully excluded from serving on juries in Cook County where defendants are black.” (Mack, 105 Ill. 2d at 122, 473 N.E.2d at 890-91.) A sixth amendment claim would have fared no better in 1984. People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202.

From these contemporaneous rulings, we learn that at the time of defendant’s trial, an objection to the State’s use of its peremptory challenges to discriminate against black venire members at a particular trial would have been futile. Accordingly, we cannot say that the refusal to make the objection contravened the professional standards of the day. In this respect, defendant’s citation to Government of the Virgin Islands v. Forte (3d Cir. 1989), 865 F.2d 59 (Forte IT), which concerned a Federal trial conducted approximately two years after the trial at issue here, is not persuasive. In Forte II, the third circuit held that not complying with a similar request to make a similar objection was unreasonable in light of “unique circumstances”: the attorney’s reason for not objecting (embarrassment), prior decisions in the Federal court in that jurisdiction, and the pendency of Batson at the time of the trial. The third circuit held that under these circumstances, the attorney should have foreseen the Batson ruling and made the objection for the record. By contrast, to rule that under the circumstances here defendant’s trial counsel should have known which way the wind would blow two years after the trial, despite longstanding Illinois and Federal precedent to the contrary, would be tantamount to imposing a duty of clairvoyance. (People v. Teague (1992), 228 Ill. App. 3d 855, 859.) We decline to do so.

B

With regard to the other Strickland prong, defendant asserts that but for his trial counsel’s refusal to object to the State’s conduct, the objection would have appeared in the record, thereby preserving the issue for direct appeal. Had this happened, he argues, the timing here was such that the appellate court or the Illinois Supreme Court likely would have waited for the Supreme Court to decide Batson before ruling on his case and then remanded for a Batson hearing. Thus, in defendant’s view, there is a reasonable probability that, but for his trial counsel’s error, the outcome of his direct appeal would have been different. The State counters that defendant has not provided support for a “reasonable probability” that the trial outcome would have been different absent the alleged gaffe and that nothing in the record suggests that defendant did not receive a fair trial or that the jury was biased. Defendant replies that the State’s alleged conduct is per se injury, citing Powers v. Ohio (1991), 499 U.S. 400, 411, 113 L. Ed. 2d 411, 425, 111 S. Ct. 1364, 1371 (“[Rjacial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process’ [citation], and places the fairness of a criminal proceeding in doubt”). In addition, he emphasizes, the question here is not whether only the trial would have turned out differently but for his trial counsel’s inaction, but rather whether the outcome of the direct appeal would have been different.

Even if we held that defendant’s trial counsel had contravened the prevailing professional standard, we could not grant defendant the relief he seeks. We agree that the State wrongly focuses on the outcome of the trial alone, but we do not share defendant’s “dead certain” belief that the outcome of the direct appeal would have been different but for his attorney’s refusal to object and her neglecting to state the race of the venire members, excused and sitting, on the record. It is true that doing so would have preserved the issue for the appellate and supreme courts on direct review, but as demonstrated above, defendant’s direct appeal would not necessarily have been pending when Batson was announced, which is the only circumstance under which the outcome here might have been different.

Despite defendant’s protestations, it is not reasonably probable that the Illinois Appellate Court would have held this case in abeyance for six months in addition to the 18 months that already had passed between sentencing and issuance of the appellate decision, nor can we say with confidence that the Illinois Supreme Court likely would have delayed for three months its denial of defendant’s petition for leave to appeal. Defendant has offered no cases whose procedural history would support this claim, so we would have to resort to speculation to rule in his favor. Unlike the court in Forte II, we cannot say that the proceedings here definitely would have turned out differently if defendant’s counsel had made the objection because in Forte II, the case was pending on direct appeal when Batson was announced. Here, it is possible that had the issue been preserved, defendant’s appellate counsel would have filed a petition for a writ of certiorari and thus this case would have been on direct appeal when Batson was announced. Nevertheless, were we to rule that under the circumstances here this possibility could be deemed a “reasonable probability,” we would be engaging in conjecture.

Based on the above analysis, we hold that defendant did not make the statutorily required showing in his petition and affidavit that his counsel’s refusal to comply with his request to object to the State’s improper use of peremptory challenges was either an act that fell below an objective standard of reasonableness, given the State of Illinois and Federal law at the time of defendant's trial, nor has he satisfied his burden with regard to demonstrating a reasonable probability that but for the refusal, the outcome of his direct appeal would have been different. Accordingly, we hold that the circuit court did not abuse its discretion in dismissing the petition without an evidentiary hearing on this issue.

V

Defendant asks this court to overrule People v. Banks (1987), 121 Ill. 2d 36, 520 N.E.2d 617, and to reverse and remand for appointment of counsel with no connection to the public defender’s office. In the alternative, he asks for reversal and remand for a hearing as to the existence of an actual conflict of interest. The State counters that this court has no authority to overrule a decision of the Illinois Supreme Court. Because defendant made no claim of actual conflict, insists the State, nor does the record reveal any, Banks precludes defendant from raising the question.

In Banks, the court held that assigning a public defender to represent a convicted person in an ineffective assistance of counsel claim against another attorney from the same office does not present a per se conflict of interest. The court held that, instead, the circuit court must examine each case for circumstances that would result in an actual conflict.

Defendant has presented no argument or citation in support of his position. Absent argument and support, this court need not consider an issue. (Holmstrom v. Kunis (1991), 221 Ill. App. 3d 317, 325, 581 N.E.2d 877, 882, citing Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7).) Nevertheless, we note that at the hearing, the public defender said only that it was her office’s policy to ask for leave to withdraw for conflict reasons; she gave no particular reason for her motion nor does the record reveal any. Thus the circuit court properly denied the motion to withdraw.

For the reasons given above, we affirm the judgment of the circuit court.

Affirmed.

HARTMAN, P.J., and McCORMICK, J., concur.

       At the hearing, defendant’s counsel stated that defendant filed an amendment to his petition, but only one version appears in the record. In addition, even though defendant’s counsel stated “we stand on the pro se petition,” the record contains an affidavit she submitted, with this case number but titled “Richard Harris v. People of the State of Illinois,” stating that she had prepared a supplemental petition in accordance with Rule 651(c) (134 Ill. 2d R. 651(c)). No supplemental petition appears in the record. Defendant’s counsel also stated that defendant “allege[d] ineffective assistance of appellate counsel in failing to raise the issue of the ineffective assistance of trial counsel.” This allegation, however, does not appear in the version of his pro se petition in the record before us. Because there is no other mention in the record, or argument in defendant’s briefs here, on the effectiveness of his appellate counsel, we do not address the matter here.

       We recognize, of course, that defense objections to the State’s use of peremptory challenges were not novel at the time of defendant’s trial. (See, e.g., People v. Hope (1992), 147 Ill. 2d 315, 321 (objection made at 1982 trial).) We hold only that her view of the law at the time was not unreasonable.

       This was the alternative holding. In Gaines, defense counsel raised the objection, but he did so after the court had sworn in the jury. The defendant addressed the question on his direct appeal and lost. In the post-conviction proceeding, he was not allowed to raise it a second time because the court said the earlier decision on the merits was res judicata.

         Mack was vacated and remanded by the United States Supreme Court following Batson (Mack v. Illinois (1987), 479 U.S. 1074, 94 L. Ed. 2d 127, 107 S. Ct. 1266), but that fact does not affect our analysis of the law in Illinois in 1984 because Mack, unlike this case, was on direct appeal when Batson was announced.

       Ironically, when the Illinois Supreme Court denied defendant’s petition for leave to appeal, the time period for filing for certiorari in criminal cases was only 60 days, with the possibility of a 30-day extension; had it been 90 days, as it is now, his appeal would have been pending, under Allen’s definition, when Batson was announced, even if he had not filed the petition. Compare Sup. Ct. R. 20(.1) (1980), 445 U.S. 1006, 63 L. Ed. 2d xxxviii, with Sup. Ct. R. 13(.1) (1990), 493 U.S. 1109, 107 L. Ed. 2d xciv, 110 S. Ct. 663.


author: JUSTICE WILLIAM A. LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES J. MANCINELLI, Defendant-Appellant.
    Fifth District
    No. 5—90—0856
    Opinion filed July 21, 1992.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Henry Bergman, State’s Attorney, of Carlyle, and William Tarsa, of Chicago (Norbert Goetten and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Defendant appeals from convictions by a Clinton County jury for reckless homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3) and failure to reduce speed to avoid an accident (Ill. Rev. Stat. 1987, ch. 95V2, par. 11-601).

On September 29, 1989, defendant and his brother, William Man-cinelli, drove their motorcycles from Centralia, Illinois, to Bartelso, Illinois, to attend a computer club meeting. Upon arriving, they purchased a six pack of beer from a tavern across the street. They each drank three beers while working on computer programs over the next three hours. At approximately 10 p.m., they left to go home. They were traveling east on Illinois Route 161, when defendant stopped to light a cigarette at the junction of Illinois Route 127 and Illinois Route 161. The victim continued by himself.

Defendant admitted at trial, which occurred more than a year after the accident, he had “chased after” his brother and he “was probably running 65 miles per hour, 70 miles per hour to catch up with him; but there was nothing else on the road.” Defendant was unsure of his speed because his speedometer was broken.

On the evening of the accident, the night was clear, visibility was good, the pavement was dry and there was some light from an outdoor light near a farmhouse. There was a “slight curve” in the road approximately two miles from where defendant stopped to light a cigarette. The road straightened after the bend, but a traveler could see through the bend and down the straight stretch.

Defendant testified that, after going through the curve and entering the straight stretch, he decided to pass his brother. For some reason, he felt his brother was too close to the center line to pass on the left, so he decided to pass on the right by slowing and swinging his bike to the right in the same lane. No reason was given why the defendant simply did not cross into the westbound lane and pass his brother safely. Defendant stated that his brother must have slowed or hit his brake, so that as he started to swing behind his brother to position himself to come up even with his brother on the right side, he had to jerk his motorcycle to the right to avoid hitting his brother. Defendant then pulled back to avoid hitting the side of the road, which caused him to be “slung back” to the left into his brother’s motorcycle. The motorcycles became locked together and they had slowed “to 40, 45 miles per hour” as they proceeded down the road. Defendant claims that he “hollered” at his brother to break the cycles apart. He then pushed his handlebars, presumably away from the other cycle, and sped up for the purpose of separating the cycles. Defendant lost control because one of his risers, which controls the steering, apparently was broken in the collision. Defendant skidded off the road into a slight drainage ditch and came to rest at the foot of a white, upright tractor tire that was used with another tire to mark the driveway to the farmhouse. Defendant’s brother went into a skid on the highway and later died from the injuries received.

Defendant admitted to telling different stories the night of the incident. He thought that he had told Trooper Patterson that he was doing 200 miles per hour, because his wife told him he had said that to the trooper. He told the people at Barnes Hospital in St. Louis that he had hit a pedestrian. He believed that he had told a woman who lived at the farmhouse at the site of the accident that he was doing 100 miles per hour and that his brother had stopped for him to catch up. Defendant admitted to being agitated at Trooper Patterson and yelling for his brother in the hospital, but he said he did so because he was concerned about his brother, and because he had suffered severe injuries including a broken nose, broken wrist, cracked ribs and a broken foot.

Anita Newkirk, a nurse at the hospital, testified that defendant told her the night of the incident that he was going in excess of 90 to 100 miles per hour. She testified as follows regarding what defendant told her:

“And then when he, he couldn’t see him, he couldn’t see him anywhere. Then he said he just come up right on top of him. He said he saw no taillights, he didn’t see anything. He was just right there and he hit him and then slid into the grass.”

Trooper Patterson recalled the defendant saying that night that he was traveling 90 to 95 miles per hour and that his brother had stopped on the roadway.

State Trooper James Hall was allowed to testify as a reconstruction expert only as to the speed of the motorcycles. He testified that the gouges on the highway in the eastbound lane, which were approximately 885 feet from the curve, were 11 feet and 1 inch along the pavement to the shoulder. Skid and plow marks on the grass continued for another 186 feet 6 inches to the white, upright tractor tire where defendant’s motorcycle came to rest. The victim’s motorcycle skidded 58.42 feet along the highway. The trooper used a minimum drag factor for concrete and assumed 100% efficiency in braking by both motorcycles in determining their speed. He used a minimum drag factor for grass for the slide of defendant’s motorcycle, even though defendant’s motorcycle, after having been hauled for storage, was still caked with dirt and grass. The trooper testified that the defendant was traveling a minimum of 75 miles per hour at the place where the gouge marks started on the highway. The victim, according to the trooper, was traveling 28 to 33 miles per hour from the point where the victim’s motorcycle fell on its side and slid on the highway.

Both Patterson and Newkirk testified that the defendant was extremely intoxicated because he had a strong odor of alcohol, bloodshot eyes, and slurred speech and laughed at times and then cried at times. When asked to give blood for a test, he said, “Let’s just say I am incapacitated.” Defendant testified that his slurred speech was caused by a hole in his mouth, but the State’s Attorney called the jury’s attention to defendant’s testimony and speech ability and asked it to be the judge of whether defendant stored his words due to his prior injury.

Prior to the accident, defendant’s speedometer was broken, and the header was held on by clamps. As a result of the accident, his motorcycle sustained damage starting at the left front wheel and continuing along the side, the fairing, and the handle bar. The victim’s motorcycle was damaged on the right side, starting at the rear wheel and extending along the right side.

Defendant raises three issues on appeal: (1) he was not proven guilty beyond a reasonable doubt, because the State failed to prove that William Mancinelli’s death was due to recklessness, as opposed to accident; (2) Trooper James Hall’s testimony as an accident recon-structionist was inadmissible because defendant’s testimony was clear and did not require additional explanation from an expert witness; and (3) his conviction and sentence for failure to reduce speed to avoid an accident was void because it was based on the same act as the offense of reckless homicide.

We affirm the trial court.

In order to sustain a conviction of reckless homicide, the State must prove beyond a reasonable doubt: “(1) that the individual was operating a motor vehicle; (2) that the individual unintentionally caused a death while operating the vehicle; and (3) that the acts which caused the death were performed recklessly so as to create a likelihood of death or great bodily harm to some person. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a); People v. Bodoh (1990), 200 Ill. App. 3d 415, 429[, 558 N.E.2d 178].)” (People v. Wilson (1991), 143 Ill. 2d 236, 245, 572 N.E. 2d 937, 941.) Additionally, recklessness is defined by statute as follows: “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk ***; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.) Whether recklessness has been proved is an issue for the trier of fact to decide. People v. Hawn (1981), 99 Ill. App. 3d 334, 425 N.E.2d 1024.

“The critical inquiry on a review of the sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49,[ 538 N.E.2d 461, 472,] citing Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) A reviewing court may not reverse a conviction unless the evidence was ‘so unreasonable, improbable, or so unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt.’ Young, 128 Ill. 2d at 52[ ,538 N.E.2d at 474].” Wilson, 143 Ill. 2d at 246-47, 572 N.E.2d at 942.

Defendant argues that his “version of the events is at least as credible, if not more so, as the scenario sketched by the prosecutor.” It is not the function of this court to decide which version is more credible, but rather to view the evidence most favorably for the State and then decide if such “evidence was so unreasonable, improbable, or so unsatisfactory as to justify entertaining a reasonable doubt of the defendant’s guilt.” Wilson, 143 Ill. 2d at 246-47, 572 N.E.2d at 942.

In reviewing defendant’s testimony, we must keep in mind that the jury was aware that defendant had more than a year to rationalize his acts that resulted in the death of his brother. Defendant tried to convince the jury that his motorcycle somehow became locked together with his brother’s motorcycle, and that they were traveling down the road at approximately 40 to 45 miles per hour. He even claimed that he had time to yell at his brother to break the bikes apart and to perform certain leaning acts before the bikes separated. His brother’s bike, however, skidded on its side only 58.42 feet on the pavement, while defendant’s bike skidded on its side 11 feet 1 inch on pavement and plowed 186 feet 6 inches through grass and dirt. (The photograph of defendant’s motorcycle introduced as an exhibit showed the rear wheel, rear axle, rear fender, kick stand and footrest caked with dirt and grass even after it was hauled from the scene and placed in storage.) Even assuming that defendant increased his speed in an effort to break the motorcycles apart and that his brother braked, the jury could easily find that defendant’s version was not possible or true because of the large disparity in the distances that the motorcycles skidded and the greater drag that grass and dirt would have on defendant’s motorcycle as it plowed to where it came to rest at the tractor tire. The jury resolves factual disputes, assesses witness credibility, and determines the weight and sufficiency of the evidence. People v. Batson (1986), 144 Ill. App. 3d 1027, 1035, 495 N.E. 2d 154, 160.

The State did not have to prove the exact way the accident happened as long as the State proved that defendant operated his vehicle recklessly and in a manner likely to cause death or great bodily harm. (People v. Boyle (1979), 78 Ill. App. 3d 791, 396 N.E.2d 1347.) The jury could have believed the various witnesses’ testimony that on the night of the incident defendant said his brother was stopped or going slow, and he was traveling 90 to 100 miles per hour when he hit his brother. The jury could also have reasonably believed part of defendant’s testimony at the trial when he testified that he changed his mind about passing his brother on the left and decided to pass him on the right side in the same lane. However, the jury could have reasonably believed from the evidence of the distances the motorcycles skidded, defendant’s admissions, and the testimony of the reconstruction expert, defendant must have been traveling 75 to 100 miles per hour when he hit his brother and that the motorcycles did not become locked together. This version would explain the damage to the left side of defendant’s motorcycle and the damage to the right side of his brother’s motorcycle. It is after all the function of the trier of fact to determine the inferences to be drawn from the evidence. People v. Bernotas (1991), 215 Ill. App. 3d 371, 574 N.E.2d 1236.

Defendant cites People v. Ziegler (1979), 78 Ill. App. 3d 490, 396 N.E.2d 1160, for the proposition that speed by itself does not establish that he was reckless. The Ziegler court stated, however, that “as a theoretical matter that statement of the law is correct.” (Ziegler, 78 Ill. App. 3d at 496, 396 N.E.2d at 1165.) But it has also been held that “a combination of excessive speed and other circumstances which would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others, and the circumstances are such that a reasonable person would act differently under the same situation” can be sufficient to convict of reckless homicide. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931-32, 382 N.E.2d 1300, 1303.) The case law is instructive as to when “other circumstances” are sufficient when combined with excessive speed to show recklessness. In People v. Boyle (1979), 78 Ill. App. 3d 791, 396 N.E.2d 1347, the court held that excessive speed and the failure to keep a proper lookout were sufficient to prove defendant guilty beyond a reasonable doubt. In People v. Batson (1986), 144 Ill. App. 3d 1027, 495 N.E.2d 154, the fact that the defendant backed her car at a high rate of speed, knowing that the victim was in close proximity to her car, was sufficient to show recklessness. Finally, in People v. Mikyska (1989), 179 Ill. App. 3d 795, 802, 534 N.E.2d 1348, 1352-53, the court held that “considering defendant’s excessive speed, his attempt to avoid the accident by braking within 44 feet of decedent’s car constitutes a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” When there is excessive speed on the part of a defendant in a nonemergency situation that causes the death of another person, it is unlikely there would not be other circumstances sufficient to show that the defendant consciously disregarded a substantial and unjustifiable risk, and that such disregard was a gross deviation from the standard of care which a reasonable person would have exercised in the same situation.

Defendant cites People v. Walljasper (1981), 97 Ill. App. 3d 81, 422 N.E.2d 251, as an example of a bad judgment call as opposed to recklessness. In Walljasper, however, there was no evidence that the defendant was operating his vehicle improperly when he hit an unexpected slick spot on the road that had also caused another car to spin out of control just prior to his accident.

The evidence that defendant was operating a motorcycle, which was not in perfect condition, at night, 75 to 100 miles per hour while trying to smoke a cigarette may be, in and of itself, “a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6.) When considered with the further evidence that defendant tried to pass his brother on the right in the same lane of traffic, we have an even greater deviation from the standard of care a reasonable person would have exercised. The jury could reasonably have inferred from the evidence that defendant was going to “zoom” by his brother’s right side in the same lane.

Defendant stated that he had changed his mind about passing the victim on the left and was trying to pull over to the right of the victim so that he could cruise with the victim, which was how they usually traveled. Any maneuvers in the same lane of traffic, even assuming such to be legal, must be done with extreme caution and with the awareness of both parties. In any event, we do not have to decide if defendant’s version of the facts without the excessive speed would be sufficient to constitute a gross deviation from the standard of care which a reasonable person would have exercised in that situation, because the jury apparently did not believe the defendant as evidenced by the conviction of defendant for failure to reduce speed to avoid an accident.

Defendant argues that the trial court erred in allowing a reconstruction expert to testify, because the defendant’s eyewitness testimony as to his speed and what occurred was clear and required no further explanation from an expert.

The trial judge was confronted with the problem that, if he refused to allow the reconstruction expert’s testimony, then the defendant could elect not to testify. Defense counsel even offered to allow the State to reopen its case to call the reconstruction expert if defendant failed to testify. The trial judge could not know in considering a motion in limine what the testimony of the defendant would be prior to trial, so the trial judge compromised by refusing to allow the expert to give any opinion as to where and how the collision occurred, if defendant testified. The trial judge’s niling further limited Trooper Hall’s testimony so that he was not allowed to testify as to whether the collision slowed the speed of defendant’s motorcycle, whether the victim’s motorcycle was moving when it was hit by defendant, or whether defendant’s motorcycle was moving and, if so, at what speed, when it hit the white, upright tractor tire. The trial judge only allowed the expert to give his opinion concerning the speed of the vehicles based solely on the skid and gouge marks.

Justice Charles Chapman of this court wrote a learned opinion on the history and treatment of reconstruction experts by the courts in Augenstein v. Pulley (1989), 191 Ill. App. 3d 664, 547 N.E.2d 1345. There is no reason why the following rules, enunciated in Augenstein, should not apply to criminal cases.

“We hold, therefore, that the admissibility of reconstruction evidence is to be determined upon the rules announced by the supreme court for opinion evidence. Is the expert qualified in the field, and will his testimony aid the fact finder in the resolution of the dispute? *** The presence or absence of eyewitnesses thus becomes not the sole criterion for the determination of admissibility of reconstruction testimony, but only one of the criteria, and it obviously applies only to the second of the questions dealing with the admissibility of the testimony.” Augenstein, 191 Ill. App. 3d at 681, 547 N.E.2d at 1356.

Defendant did not raise any question as to the qualification of the State’s expert, Trooper James Hall. We are concerned, therefore, solely with the question of whether his testimony would aid the fact finder in deciding whether defendant’s acts were reckless. The expert’s opinions were, however, so severely limited by the trial court’s ruling that it is difficult to describe him as a reconstructionist. We are left with simply an opinion that defendant’s motorcycle had to be traveling at least 75 miles per hour in order to slide on its side 11 feet 1 inch on pavement and 186 feet 6 inches through grass.

The jury heard the testimony of the expert and considered it in conjunction with the photographs of defendant’s motorcycle that showed the dirt and grass that had accumulated on the wheel, kick stand, and chain as a result of the cycle plowing through the grass and dirt. Further, the jury heard both Patterson and Hall testify that Patterson took Hall to the scene two weeks later and that the gouge marks of where defendant’s motorcycle had plowed through the grass were still visible. The jury could reasonably conclude that defendant was traveling at a high rate of speed after the collision, but the expert’s testimony that the minimum speed defendant was traveling was at least 20 miles per hour faster than the speed limit could be of assistance to the fact finder in determining whether defendant’s conduct was reckless.

Defendant's testimony as to his speed was also only his opinion since his speedometer was broken. He also gave contradictory statements as to his speed and the speed of his brother’s motorcycle. Finally, it would be a sad state of affairs if a defendant’s testimony must be accepted without question as to what occurred when the defendant is the only survivor or eyewitness. There was, therefore, no reliable eyewitness as to the speed of the motorcycles. See People v. McDermott (1985), 141 Ill. App. 3d 996, 490 N.E.2d 1293 (defendant gave his opinion of his speed, but the court held that an accident reconstruction expert could testify due to lack of reliable eyewitness testimony).

Defendant next objects to his conviction and sentence for failure to reduce speed to avoid an accident, because it is allegedly based on the same act as the offense of reckless homicide. This court decided in People v. Foster (1988), 176 Ill. App. 3d 406, 531 N.E.2d 93, that failure to reduce speed to avoid an accident was not a lesser-included offense of reckless driving. That same reasoning applies to reckless homicide and failure to reduce speed to avoid an accident. Defendant states that he is not basing his argument on a “lesser-included” offense theory, but rather, he is raising the “one act, one crime” rule espoused in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. The supreme court in King, however, stated:

“We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill. 2d at 566, 363 N.E.2d at 845.

Accordingly, the convictions of defendant by the trial court for reckless homicide and failure to reduce speed to avoid an accident are affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.