author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BEVERLY J. KNOP, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EDWARD P. KNOP, Defendant-Appellee.
    Second District
    Nos. 2—89—0243, 2—89—0244 cons.
    Opinion filed July 16, 1990.
    Rehearing denied August 13, 1990.

      Val Gunnarsson, State’s Attorney, of Mt. Carroll (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendants, Edward P. Knop and Beverly J. Knop, were charged by complaint in the circuit court of Carroll County with the unlawful promotion of a pyramid sales scheme in violation of section 17—7 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 17—7). Defendants moved to dismiss the charges against them based on their alleged reliance on a ruling of the circuit court of Cook County that a business enterprise virtually identical to defendants’ was not an illegal pyramid scheme. The trial court granted the motion to dismiss the charges, and the State now appeals.

On appeal, the State advances two arguments: (1) the trial court was without authority to dismiss the charges because defendants’ reliance on the ruling of the Cook County circuit court was, at most, an affirmative defense; and (2) the basis of the trial court’s order of dismissal was erroneous because defendants’ reliance on a circuit court opinion did not constitute a reasonable mistake of law under section 4—8(b) of the Code (Ill. Rev. Stat 1985, ch. 38, par. 4-8(b)). Defendants, on the other hand, argue that the proceedings below constituted a de facto stipulated bench trial and that the trial court’s ruling was, in effect, an acquittal from which the State cannot appeal.

The resolution of these appeals requires us to decipher the unusual procedural posture of this case. The complaints charging defendants with unlawfully promoting a pyramid sales scheme were filed on August 28, 1987. Notations in the docket sheet on November 3, 1987, state that “[b]y agreement, [the causes were] continued generally pending appeal in [a] Cook Co. case.” The appeal of the Cook County case which the docket entry referred to was decided in People ex rel. Hartigan v. Unimax, Inc. (1988), 168 Ill. App. 3d 718.

The appellate opinion in Unimax reveals that the defendant was charged -with operating a pyramid sales scheme in violation of section 2A(2) of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 262A(2)). The parties agree that, although the pyramid scheme statute at issue in Unimax is different from the one at issue here, the provisions of the two statutes are virtually identical. The circuit court of Cook County granted summary judgment in favor of the Unimax defendant on May 7, 1987. (Unimax, 168 Ill. App. 3d at 722.) The appellate court, however, reversed this ruling on March 29, 1988. Unimax, 168 Ill. App. 3d at 725.

On August 2, 1988, the trial court set the instant causes for trial. On December 12, 1988, the trial court granted, over the State’s objection, defendants’ motion to continue the causes for a bench trial on January 13, 1989. The record on appeal has been supplemented with a copy of defendants’ motion to dismiss the charges against them. The motion alleged that defendants’ reliance on the order of the Cook County circuit court in the Unimax case was cause for dismissal pursuant to section 4 — 8 of the Code, because the “Circuit Judge in Cook County, Illinois, [is] a public official legally authorized to interpret the statutes.” Though the parties have stipulated on appeal that the supplement to the record is “a true copy of the original Motion to Dismiss” filed in the circuit court of Carroll County, the parties have not provided this court with an indication of when this motion was filed. In any event, the record makes clear that the trial court heard argument on the motion on January 13,1989.

The report of proceedings at the hearing on defendants’ motion to dismiss reveals the following prefatory discussion:

“MR. SHIRK [Defense Counsel]: Your Honor, I believe we are here to stipulate as to some of the facts in the motion.
THE COURT: Okay.
MR. SHIRK: That in fact the Defendants were aware of *** an order from a Judge in Cook County, declaring that the Unimax was not a Pyramid Sales Scheme. That the Unimax business as set forth in that case is almost identical to the business in this case, and the question would be whether or not they could reasonably — they couldn’t rely upon a Cook County Circuit Judge’s ruling that the business was not a Pyramid Sales Scheme. Would that be accurate?
MR. GUNNARS SON [State’s Attorney]: Your Honor, we can stipulate to those facts. I think the question is exactly whether that would constitute an offense under Section 4 — 8 of the Criminal Code.”

The trial court took the issue under advisement, and it issued a memorandum opinion which was filed on February 6, 1989. The court ruled that section 4—8(b)(4) of the Code provided defendants with an affirmative defense to the charges against them. That section provides:

“(b) A person’s reasonable belief that his conduct does not constitute an offense is a defense if:
* * *
(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or agency legally authorized to interpret such statute.” (Ill. Rev. Stat. 1985, ch. 38, par. 4—8(b)(4).)

The trial court reasoned that the phrase “public officer” in section 4—8(b)(4) was broad enough to include a circuit court judge, and so it dismissed the charges against defendants.

The State now appeals from the trial court’s dismissal of the charges, noting that our jurisdiction over the appeal is proper pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). The State argues that the trial court was without authority to dismiss the charges because an affirmative defense is not ground for a dismissal under section 114—1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114—1(a)). The State further contends that a circuit court judge is not a “public officer” under section 4—8(b)(4) of the Code. Defendants, however, argue that the appeals must be dismissed because any further proceedings would violate their right to be protected against double jeopardy. U.S. Const., amend. V.

We initially address defendants’ argument that the appeals must be dismissed on the basis of double jeopardy. Defendants’ argument is based on the assertion that the proceedings below amounted to a “de facto stipulated bench trial.” Defendants contend that the proceedings in the trial court amounted to a trial on the merits because the parties stipulated to both defendants’ commission of the offenses charged and defendants’ reliance on the ruling of the Cook County circuit court. Thus, defendants argue that the prior proceedings were on the merits, and the order of dismissal amounts to an acquittal from which the State cannot appeal.

The interests which the double jeopardy clause seeks to protect are not implicated unless a defendant is put in jeopardy. (People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 477.) What constitutes an acquittal for purposes of the double jeopardy clause is not necessarily controlled by the form of the judge’s action or what the judge calls it. (People v. Rudi (1984), 103 Ill. 2d 216, 224, cert. denied (1985), 469 U.S. 1228, 84 L. Ed. 2d 365, 105 S. Ct. 1227.) A judgment of acquittal triggers double jeopardy protection if it actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 311, cert. denied (1986), 475 U.S. 1045, 89 L. Ed. 2d 571, 106 S. Ct. 1261.

We do not believe that the trial court’s order of dismissal in the instant causes can be viewed as an acquittal because defendants were never in jeopardy of conviction. Both the State and defendants sought a ruling on the applicability of section 4—8(b) in the instant actions, but there is no indication that the trial court felt it was ruling on the merits of the causes. If, for example, the trial court had ruled that defendants were not protected by section 4—8(b) of the Code, defendants would not suggest that this would be tantamount to a conviction. (See People v. Deems (1980), 81 Ill. 2d 384, 389, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.) Conversely, we believe that a ruling favorable to defendants simply cannot be treated as an outright acquittal. Viewed more appropriately, “the proceedings at issue more closely resemble preliminary proceedings often heard on motions before trials, which do not constitute jeopardy.” See Strayhorn, 121 Ill. 2d at 479.

Jeopardy did not attach at this stage of the proceedings because the parties were not seeking a judgment on the merits, but instead sought a more narrow ruling on a motion to dismiss. The State and defendants entered into what they referred to as a “stipulation” for the limited purpose of eliciting a ruling from the trial court on the applicability of section 4—8(b) of the Code. We do not agree with defendants’ view of the conclusiveness of this “stipulation.” The record does not indicate that the parties were to be bound by the “stipulation” outside of the context in which it was made.

We now address the question of whether the trial court was authorized to dismiss the proceedings before trial. Defendants contend that the State has waived consideration of this issue by failing to raise it before the trial court. Ordinarily, a contention not made in the trial court is waived on review. (People v. Holman (1984), 103 Ill. 2d 133, 176, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204.) The principle of waiver applies to the State as well as to defendants. (People v. Andrews (1989), 132 Ill. 2d 451, 458.) Where circumstances warrant, however, it is within the discretion of the appellate court to review contentions not raised at trial by the State under the doctrine of plain error. (People v. Oswald (1982), 106 Ill. App. 3d 645, 649.) Invocation of the plain error doctrine may be warranted where, as here, the issue is truly one of law concerning the construction of a statute. (Oswald, 106 Ill. App. 3d at 649.) We elect to apply the plain error doctrine here to examine the propriety of the trial court’s dismissal of the charges against defendants. To do otherwise would effectively allow the parties, by proceeding without objection in an unauthorized proceeding, to improperly enlarge the authority of the circuit court.

A trial court has only limited authority to dismiss criminal charges prior to trial. The court may do so on the grounds set forth in section 114 — 1(a) of the Code of Criminal Procedure of 1963 or where there has been a clear denial of due process which prejudiced the defendant. (People v. Lightner (1986), 145 Ill. App. 3d 741, 744.) It is clear that none of the grounds set forth in section 114—1(a) of the Code of Criminal Procedure of 1963 are applicable here. Section 114—1(a)(8) empowers a trial court to dismiss a charge where the charge does not state an offense. (Ill. Rev. Stat. 1985, ch. 38, par. 114—1(a)(8).) Here, however, defendants have not argued that the charges filed against them fail to state an offense; rather, they contend that section 4—8(b)(4) of the Code provides them with an affirmative defense to the charges.

This court addressed a similar situation in People v. Lightner (1986), 145 Ill. App. 3d 741. In Lightner, the defendant moved to dismiss the charge against him on the basis that it did not state a cause of action. In ruling on the motion, the trial court reviewed the transcripts of the grand jury proceedings and determined that the defendant’s conduct was not within the purview of the offense charged. (Lightner, 145 Ill. App. 3d at 742-43.) The court dismissed the charges, and the State appealed. On appeal, we held that the trial court was without authority to dismiss the charges on the basis of what was, in reality, an affirmative defense. (145 Ill. App. 3d at 745.) We noted that the merits of the case are not meant to be decided in the vacuum of a motion to dismiss, and so we remanded the cause for further proceedings. 145 Ill. App. 3d at 745-46.

We believe that our holding in Lightner is applicable to the instant causes. Lightner demonstrates that the trial court here was without authority to dismiss the charges against defendants on the basis of an affirmative defense before the causes had proceeded to trial. (See also People v. Gerdes (1988), 173 Ill. App. 3d 1024, 1031 (trial court erred in dismissing an indictment based upon the defendant’s “exculpatory denial” defense presented during his hearing on a motion to dismiss the charges).) Accordingly, as in Lightner, we must reverse the order dismissing the charges against defendants and remand these causes for further proceedings.

Having determined that the trial court improperly dismissed the charges against both defendants, we must next decide whether the court correctly held that circuit court judges are “public officers” within the meaning of section 4—8(b)(4) of the Code. (Ill. Rev. Stat. 1985, ch. 38, par. 4—8(b)(4).) This section provides:

“A person's reasonable belief that his conduct does not constitute an offense is a defense if:
* * *
(4) He acts in reliance upon an official interpretation of the statute, regulation or order defining the offense, made by a public officer or agency legally authorized to interpret such statute.” (Ill. Rev. Stat. 1985, ch. 38, par. 4—8(b)(4).)

Defendants contend that they relied upon the circuit court’s ruling in Unimax (which found no pyramid sales scheme) to set up the business at issue in the present case. Defendants argue that a circuit court judge is a “public officer” under section 4—8(b)(4) of the Code and, therefore, they were entitled to rely on the judge’s ruling that the type of business enterprise in which they engaged was not illegal.

The State disagrees, arguing instead that the inclusion of circuit court judges as “public officers” would render section 4—8(b)(3) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 4—8(b)(3)) meaningless. This section grants a person a defense to a charge if “[h]e acts in reliance upon an order or opinion of an Illinois Appellate or Supreme Court, or a United States appellate court later overruled or reversed.” (Ill. Rev. Stat. 1985, ch. 38, par. 4—8(b)(3).) The State asserts that section 4—8(b)(3), and not section 4—8(b)(4), was intended to deal with reliance on opinions of the judiciary. We agree.

If we were to agree with defendants’ broad interpretation that “public officer” includes circuit court judges, we would then have to include appellate and supreme court justices within this definition. This construction of the statute would render section 4—8(b)(3) of the Code superfluous because reliance on appellate and supreme court opinions is already protected in that section. In interpreting a statute, a reviewing court should seek a construction which renders no word superfluous or meaningless. (People v. Parvin (1988), 125 Ill. 2d 519, 525; People v. Wisslead (1985), 108 Ill. 2d 389, 394.) We will not interpret the statutory language in a manner which will effectively negate the meaning of section 4—8(b)(3) of the Code. Consequently, we hold that a circuit court judge is not considered to be a “public officer” within the meaning of section 4—8(b)(4) of the Code.

For the above reasons, the order of the circuit court of Carroll County is reversed, and the causes are remanded for further proceedings.

Reversed and remanded.

REINHARD and DUNN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL POWLESS, Defendant-Appellant.
    Second District
    No. 2—89—0994
    Opinion filed July 13, 1990.

      James D. Sparkman, of Vella, Sparkman & Altamore, P.C., of Rockford, for appellant.
    Paul A. Logli, State's Attorney, of Rockford (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Following a bench trial, defendant, Michael Powless, appeals from the trial court’s denial of his motion to suppress evidence. On appeal, defendant contends that the trial court should have granted his motion because the underlying search warrant authorized a search at a nonexistent address and the police improperly obtained telephonic approval from the issuing judge to search an address not included on the warrant. We affirm.

Defendant was arrested at 2845 Tenth Street, Rockford, Illinois, and charged with possession with intent to deliver 15 grams or more of cocaine (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)). Defendant subsequently sought to suppress the evidence seized in the search of his house, claiming that the complaint for the search warrant was defective on its face and the warrant itself was issued without probable cause.

The record of the suppression hearing reveals the following facts. Detective Kenneth Woolbright of the Rochelle police department testified that on June 8, 1988, he obtained a warrant to search a house in Rockford, Illinois, based on information from an anonymous informant. The informant described the residence and its location, and Lieutenant Wilkinson, also of the Rochelle police department, went to Rockford that day and verified the informant’s description. Woolbright testified that an assistant State’s Attorney directed the preparation of the informant’s affidavit. Woolbright stated that he told the assistant State’s Attorney that the location to be searched was a tan house with dark brown trim with an unattached garage, with the number 2845 on the garage. Woolbright also stated that he told the attorney that the house was located at the intersection of Reed and Tenth avenues or streets in Rockford, Illinois. Woolbright testified that Lieutenant Wilkinson had supplied the actual number on the garage and the street names but that the information had been discussed with the informant. The assistant State’s Attorney, along with the informant, appeared before Judge Moore, and the search warrant was issued.

Detective Woolbright and another officer then went to Rockford to execute the warrant. The informant accompanied them to the Rockford Public Safety Building, where Officer Dominic Iasparro of the Rockford police department informed Woolbright of a problem with the address on the warrant. Iasparro stated that he had driven by the location with Wilkinson and discovered that, although the house faced Reed Avenue, not Reed Street, the actual address of the house was 2845 Tenth Street. Iasparro testified that the Rochelle police knew which house they were interested in searching but had some confusion over the actual address of the residence. He indicated that there were no other houses at that specific location fitting the description, stating, “[i]t was clear from the description *** that they had the right house but there was confusion on the exact address of the house.”

Detective Woolbright telephoned Assistant State’s Attorney Doug Floski who, in turn, called Judge Moore. Floski testified that he anticipated that the judge would tell him to instruct the police officers to amend the face of the warrant to reflect the proper address. Instead, Floski stated that the judge believed the description of the premises was sufficient and that no change was necessary. Floski relayed this information to Woolbright and told him to proceed with the warrant’s execution. Floski testified that it was clear to him that Detective Woolbright knew which house the warrant was directed to and that the concern was not over which house to search, but rather over that house’s correct address.

The police officers proceeded with the execution of the warrant, and defendant was arrested at the house and charged as stated above. Following the parties’ presentation of testimony, evidence and lengthy argument, the trial court stated:

“The affidavit described the premises. It’s the residence of Michael Powless, it’s a tan, single family wood frame dwelling with dark brown trim with an unattached garage with the number 2845 on the garage at the address 2845 Reed Street, Rockford, Illinois. The 2845 Reed Street is incorrect but there was only one place that’s described here, and that’s the place that the officers searched.
* * *
It wasn’t four different places. *** There’s only one place, from all the testimony that I heard. The officers were sent to search a certain place and they searched that place.”

The court concluded that the police officers’ indirect communication with the judge who issued this search warrant was not improper because there was no mistake about the premises to be searched; therefore, the trial court denied defendant’s motion to suppress the evidence seized during the search of defendant’s house.

Defendant subsequently filed a motion to reconsider and again presented exhaustive argument. The trial court reiterated the contents of the affidavit which described the house to be searched and again concluded that there was only one house meeting the description contained in the affidavit. The trial court ordered that its prior ruling would stand.

Following a bench trial, the court found defendant guilty of violating section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)). Prior to sentencing defendant, the court considered defendant’s timely post-trial motion in which defendant sought a judgment of acquittal or, alternatively, a new trial. Defendant’s arguments in support of this motion again centered on the alleged inadequacy of the search warrant due to the incorrect address. The trial court denied defendant’s motion and sentenced him to eight years’ imprisonment.

The trial court denied defendant’s motion to reconsider its ruling on defendant’s post-trial motion, and this appeal followed. The issue, which defendant has diligently preserved for appeal, is whether the trial court properly refused to suppress evidence obtained by police officers, who executed a search warrant containing an incorrect address.

It is a statutory requirement and a constitutional mandate that a search warrant must be supported by a sworn statement which describes with particularity the place to be searched and the persons or things to be seized. (Ill. Rev. Stat. 1987, ch. 38, par. 108—3(a); U.S. Const., amend. IV; Ill. Const. 1970, art. I, §6.) As we have previously noted, the particularity requirement prevents the issuance of general warrants “ ‘which would give the police broad discretion as to where they may search and what they may seize.’ ” (People v. Bauer (1981), 102 Ill. App. 3d 31, 34, quoting People v. Fragoso (1979), 68 Ill. App. 3d 428, 432.) Thus, our supreme court has held that a search warrant’s description is sufficient “if it enables the officer, with reasonable effort, to identify the place [to be searched].” People v. Watson (1962), 26 Ill. 2d 203, 206.

The Watson court considered a warrant which authorized a search of an apartment in the building located at 2300 South State Street in Chicago. There was no building with that address. Rather, the building which was the object of the search was located at 2310 South State Street. The court stated:

“If the property is sufficiently recognizable from the description to enable the officer to locate the premises with definiteness and certainty, it is adequate. *** The constitutional safeguard is designed to require a description which particularly points to a definitely ascertainable place so as to exclude all others. Application of these common sense rules to the case at bar clearly demonstrates the adequacy of the warrant which referred to ‘2300 S. State St.’ *** The fact that the building extended southward from the corner, and that the entrance was some distance south of the corner and therefore numbered ‘2310’ is of no consequence in view of the other identifying factors which removed any doubt or ambiguity from the description.” (26 Ill. 2d at 206.)

The Watson court concluded that the search was proper and the evidence seized therein was admissible. 26 Ill. 2d at 206.

Following Watson, the appellate court has held, on several occasions, that errors or omissions in addresses are not per se fatal defects in a search warrant. (People v. Kilfoy (1984), 122 Ill. App. 3d 276, 282; Bauer, 102 Ill. App. 3d at 34; Fragoso, 68 Ill. App. 3d at 432.) Indeed, section 108—14 of the Code of Criminal Procedure of 1963 provides, “[n]o warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 108—14.) Thus, a defendant challenging the sufficiency of a search warrant bears the burden of demonstrating that, under the circumstances of the case, such errors or omissions created or could create confusion or ambiguity for the officers attempting to execute the warrant. Kilfoy, 122 Ill. App. 3d at 283; see also Fragoso, 68 Ill. App. 3d at 433.

In Kilfoy, the search warrant at issue specified that the house to be searched was located at 4008 Cherry Valley Road, Crystal Lake, McHenry County, Illinois. The house was actually located in unincorporated McHenry County and its mailing address was in fact 4008 Cherry Valley Road, Woodstock, Illinois. The appellate court affirmed the denial of the defendants’ motion to suppress the evidence seized in the search, noting that a trial court’s ruling on a motion to suppress is not to be disturbed unless the ruling is clearly erroneous. (Kilfoy, 122 Ill. App. 3d at 283.) The Kilfoy court observed that, based on the facts before it, there was only one Cherry Valley Road in McHenry County and the area where the house to be searched was located used three different mailing addresses, one of which was Crystal Lake. The court also noted the existence of other factors which served to identify the house as the correct location to be searched. 122 Ill. App. 3d at 283; see also Bauer, 102 Ill. App. 3d at 34 (name of the city omitted); Fragoso, 68 Ill. App. 3d at 431-32 (name of city, county and State omitted).

In each of the cases discussed above, the appellate court held that, in view of the circumstances presented, the error or omission in the address constituted no more than a technical deficiency which neither caused confusion nor prevented the officers attempting to execute the search warrant from locating “with particularity and precision the place to be searched.” Fragoso, 68 Ill. App. 3d at 436.

The present case presents a situation nearly identical to that presented in Kilfoy and Watson. Here, as there, the police officers knew which building they intended to search, and there were no other buildings in the area which matched the description given in the search warrant. Defendant has failed to establish that another single-family house and detached garage of the same color and construction with the numbers “2845” on the garage exists anywhere else in Rockford. As Officer Iasparro testified, it was clear that the Rochelle police had located and identified the correct house to be searched. Confusion arose only concerning the exact address of the house. Iasparro’s testimony further demonstrates that the confusion over whether the house’s address was Reed Avenue or Tenth Street was understandable and the mistake was easy to make.

In spite of the mistaken address, there was no evidence that the officers who executed the warrant at issue had any doubt or exercised any discretion concerning the premises they were authorized to search. There was, however, considerable evidence of other factors contained in the warrant which served to identify the house. Under these circumstances, we hold that the incorrect address on the warrant constituted a technical defect which created no reasonable possibility of confusion. Thus, the trial court properly rejected defendant’s motion to suppress in this case.

In holding as we do, we reject defendant’s contention that the police officers improperly attempted to communicate with the judge who issued the warrant and obtained telephonic approval to execute the warrant. Defendant relies on People v. Trantham (1977), 55 Ill. App. 3d 720, and People v. West (1977), 48 Ill. App. 3d 132. Both of these cases dealt with the actual alteration of the face of the search warrant containing an incorrect address in factual situations quite dissimilar from that presented here. In Trantham, the premises to be searched was one of several apartments located in a single building, and the warrant specified an incorrect apartment number. (Trantham, 55 Ill. App. 3d at 722-23.) In West, the defendant and another unrelated person had identical names and lived exactly one block apart on the same street. (West, 48 Ill. App. 3d at 135.) We determine that these decisions have no applicability here.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

REINHARD and DUNN, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    MERCY CENTER FOR HEALTH CARE SERVICES, Plaintiff-Appellant, v. MARVIN LEMKE, Defendant-Appellee (Laura Friebele et al., Defendants).
    Second District
    No. 2—89—0959
    Opinion filed July 13, 1990.

      Robert F. Brouch, of Dreyer, Foote, Streit, Furgason & Slocum, P.A., of Aurora, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Mercy Center for Health Care Services (Center), appeals the trial court’s order dismissing count IV of plaintiff’s complaint against defendant, Marvin Lemke, the trial court having ruled that defendant, a divorced noncustodial father, is not liable for his daughter’s medical expenses under section 15 of “An Act to revise the law in relation to husband and wife” (family expense statute or statute) (Ill. Rev. Stat. 1987, ch. 40, par. 1015). On appeal, plaintiff contends that the trial court relied upon overruled case law and misapplied the statute. We agree with plaintiff’s contention and conclude that the statute is applicable to the facts presented herein; thus, we reverse the judgment and remand the cause.

As a preliminary matter, we note that the appellee, Marvin Lemke, has failed to file a brief in this cause. As provided in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, we believe that the record is simple and the claimed error is such that we can decide it without the appellee’s brief; we shall, therefore, address the merits of the appeal.

The record and the parties’ stipulation reveal the following facts. Nicole Lemke is the daughter of defendant and Laura Friebele. Defendant and Laura were divorced in Will County, Illinois, on July 6, 1979. Laura subsequently married Wayne C. Friebele. At all times relevant to the instant action, Nicole was in Laura’s custody.

On September 8, 1988, Nicole was admitted to the Center for medical evaluation, care and treatment. At the time of Nicole’s hospitalization, defendant had in effect a health insurance policy covering his daughter with the Heritage National Health Plan. Plaintiff is not a “provider” health care facility pursuant to the Heritage policy. Nicole was discharged on October 4, 1988, and the cost for her hospitalization was $13,982.50, which remains unpaid at this time.

Plaintiff filed a four-count complaint against defendant and the Friebeles seeking payment for Nicole’s hospital bills. In count IV, the only count pertaining to defendant, plaintiff alleged that defendant is liable for the balance due pursuant to the family expense statute. Defendant filed a motion to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), seeking dismissal of count IV. Defendant’s motion alleged that, although the statute requires parents to pay for necessary expenses of their minor children, it does not apply where the parents are divorced. The parties argued the motion before the trial court and presented the court with a stipulation of facts. There was no court reporter, and the record does not contain a transcript of this proceeding.

The trial court took the matter under advisement and issued an opinion letter on July 31, 1989, in which the court advised the parties that it would grant defendant’s motion to dismiss. The court stated:

“In reaching a decision here I have reviewed Carle Clinic Association vs. Seten, 176 Ill. App. 3d 590 (4th Dist.); Hess vs. Slutsky, 224 Ill. App. 419 (1st Dist.); Schlesinger and Mayer vs. Keifer, 30 Ill. App. 253 (1st Dist.); Van Winkle vs. Van Winkle, 107 Ill. App. 3d 73 (3rd Dist.). There appears to be no case law on the issue presented from the Second District even in the form of obiter dicta.
On the facts as presented, this Court cannot take the ambiguous dicta of the Carle Clinic 4th Dist. case and use it to overrule a line of appellate cases in other districts uniformly holding that the Family Expense Act is not a basis for recovery from a noncustodial divorced parent of a minor child.
Until the legislature or the Second District addresses the issue, I believe the law is that the Family Expense Act is not applicable if there is no family — e.g., no ‘husband and wife.’ ”

The court subsequently entered an order dismissing count IV of plaintiff’s complaint and granted plaintiff leave to amend its complaint to allege a cause of action against defendant based on a theory other than the family expense statute. Further, the court found that there was no just reason for delaying enforcement or appeal of its order granting defendant’s motion to dismiss count IV of plaintiff’s complaint. Plaintiff’s timely appeal ensued. The Friebeles are not parties to this appeal.

The family expense statute provides in relevant part:

“The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” (Ill. Rev. Stat. 1989, ch. 40, par. 1015(a)(1).)

This portion of the statute has been in existence more or less intact since its adoption in 1874 (Ill. Rev. Stat. 1874, ch. 68, par. 15), and Illinois courts had repeatedly held that pursuant to its terms parents are responsible for the medical expenses of their minor children. Graul v. Adrian (1965), 32 Ill. 2d 345, 347.

As the trial court observed, appellate courts in other districts have held that the statute does not apply to situations where the child’s parents are divorced. (In re Marriage of Van Winkle (3d Dist. 1982), 107 Ill. App. 3d 73, 79; Hess v. Slutsky (1st Dist. 1922), 224 Ill. App. 419, 421.) To date, this court has not addressed the issue.

In Hess, the plaintiff sued the defendant father for the cost of medical services rendered to the defendant’s child pursuant to the statute. The defendant and the child’s mother were divorced at the time the services were performed, and the child was in the mother’s sole custody. The defendant denied ever requesting, authorizing or contracting for the services and claimed that he had never seen the doctor and did not know him. In holding that the father was not liable, the court stated:

“Where a decree of divorce awards the custody of a minor child to one parent, the other parent is not liable for the medical services to the child in the absence of an express promise or facts or circumstances from which a promise can be implied. [Citations.]
It has also been held that before a plaintiff may recover under the family expense statute, there must be a family in fact, and the statute does not apply where the parents are divorced. Schleginger [sic] v. Keifer, 30 Ill. App. 253; Rand v. Bogle, 197 Ill. App. 476.” Hess, 224 Ill. App. at 421.

Plaintiff urges this court to disregard the Hess holding for several reasons. First, plaintiff argues that the family-in-fact requirement is outdated and has been overruled in Carle Clinic Association v. Seten (1988), 176 Ill. App. 3d 590. Secondly, plaintiff contends that recent amendments to the statute now provide for a medical care provider’s cause of action against a noncustodial parent for treatment or services rendered to his or her minor children. (Compare Ill. Rev. Stat. 1987, ch. 40, par. 1015, and Ill. Rev. Stat. 1989, ch. 40, par. 1015.) Lastly, plaintiff asserts that public policy favors the creation of such a cause of action.

We agree that the rigid family-in-fact theory espoused in Hess is no longer the law in Illinois and believe that this holding and the case law upon which it relied have been effectively overruled in subsequent decisions of the Appellate Court for the First District and the Illinois Supreme Court. Thus, we reject this requirement and hold that the family expense statute is applicable to the instant action.

The Hess court based its conclusion that the family expense statute applied only to a “family-in-fact” on the same court’s much earlier decision in Schlesinger v. Keifer (1889), 30 Ill. App. 253. There, the first district court held that a husband was not liable for his wife’s purchases under the statute when the parties had ceased to live together prior to the advent of the wife’s debt. The court stated: “[i]t would seem to be a condition precedent to any family expenses that there should be a family; a family in fact.” (30 Ill. App. at 257.) Thus, the court affirmed the trial court’s judgment ruling the husband not liable under the statute because there was no family.

Ninety-nine years later, the first district addressed this issue again in St. Mary of Nazareth Hospital v. Kuczaj (1988), 174 Ill. App. 3d 268, where the court held a husband liable for the cost of his wife’s hospitalization under the family expense statute although the parties had been living separately and their divorce was pending at the time of the hospitalization. The court considered the statute and concluded that, pursuant to its terms, one spouse may be legally obliged to pay the other spouse’s hospital and medical expenses whether the couple are living together or separately. (174 Ill. App. 3d at 274.) This holding relies in part on Fortner v. Norris (3d Dist. 1958), 19 Ill. App. 2d 212, 215-16, where the court stated:

“It must be conceded that the Family Expense Act imposes a legal liability upon the plaintiff herein, for the hospital, medical and funeral expenses of her husband even though they may be living apart. The Act itself sets out no exceptions, but simply provides that the husband and wife, or either of them, shall be liable for the family expenses ***.” (Emphasis added.)

We now consider a parent’s liability for his or her child’s medical expenses pursuant to the statute in the event the parents are divorced or living separately. It has long been the law in this State that a father’s obligation to support his children is not destroyed by divorce. As the supreme court put it so eloquently years ago:

“While the marriage relation may be dissolved and the marital rights and duties thereby brought to an end, the relation of parent and child cannot be destroyed. The obligation of the father to support his children begins when the child is born and continues during the minority of the child. This obligation of the father to support his minor child is not affected by the decree granting a divorce, nor by a decree granting the care and custody of his child to his wife or some other suitable person. [Citation.] His children are of his blood. It is not their fault that their parents have been divorced. It is their right to be given care by those who brought them into the world until they are old enough to take care of themselves.” Kelley v. Kelley (1925), 317 Ill. 104, 110.

The Appellate Court for the First District observed this principle in Nelson v. Nelson (1950), 340 Ill. App. 463, 468, where it relied at length on Kelley and further stated: “[t]he duty of a parent to support his minor child arises out of a natural relationship. [Citation.] And the claim for support of children is one which transcends any contractual obligation.” See also Blisset v. Blisset (4th Dist. 1986), 144 Ill. App. 3d 1088, 1091, aff’d in part & rev’d in part (1988), 123 Ill. 2d 161, 172; Huckaby v. Huckaby (5th Dist. 1979), 75 Ill. App. 3d 195, 199; People ex rel. Hartshorn v. Hartshorn (2d Dist. 1959), 21 Ill. App. 2d 91, 103.

In view of the well-established rule of law that a parent’s obligation to support his or her child is not abrogated by divorce and the evisceration of the Hess holding and its antecedent, we conclude that the family expense statute does not except divorced parents from its purview. We hold that the statute does impose a legal liability on a noncustodial parent for the hospital and medical expenses of his or her minor child regardless of the parent’s marital status. The statute itself sets out no exception, and to the extent that Hess and Van Winkle hold otherwise, we respectfully decline to follow their rulings.

We hasten to add that we do not presume to overrule either of these decisions as we lack the authority to do so and because we are not bound by their holdings. (Hughes v. Bandy (1949), 336 Ill. App. 472, 478.) In this regard, we reject plaintiff’s contention that Carle Clinic, a decision issued by the Appellate Court for the Fourth District, overruled Hess, a ruling issued by the Appellate Court for the First District. We note further that the plaintiff in Carle Clinic, proceeded solely on a contractual theory rather than under the family expense statute. Although we agree with the policy considerations expressed in Carle Clinic (176 Ill. App. 3d 590, 597) (“[t]he primary responsibility for family expenses of minor children, regardless of the marital status of mom and dad, is mom and dad”), its holding does not provide authority for the interpretation and application of the family expense act. Rather, we believe that Hess has been implicitly overruled by other first district and supreme court decisions as discussed above.

In holding as we do, we find it unnecessary to address plaintiff’s additional appellate contentions.

Accordingly, the judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

DUNN and INGLIS, JJ., concur.

      The appellate court’s judgment was affirmed in Schlesinger v. Keifer (1889), 131 Ill. 104, but the supreme court neither addressed nor ruled upon this issue as it had not been preserved for appeal.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CLIFFORD J. CARRAHER, Defendant-Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRYAN S. LLOYD, Defendant-Appellee.
    Second District
    Nos. 2—89—0748, 2—89—0772 cons.
    Opinion filed July 16, 1990.

      Michael R Coghlan, State’s Attorney, of Sycamore (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    William P. Brady and Barbara J. Slingerland, both of Gallagher, Klein & Brady, of De Kalb, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

The State appeals from judgments of the circuit court which quashed defendants’ arrests for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)) and rescinded the summary suspensions of defendants’ driving privileges (Ill. Rev. Stat. 1987, ch. 95½, par. 2—118.1). The State contends in these consolidated appeals that the circuit court erroneously concluded that the Sycamore police officers involved lacked the authority to arrest defendants since the arrests took place in unincorporated De Kalb County outside Sycamore’s city limits.

In case No. 2—89—0748, defendant Clifford J. Carraher (Carraher) was arrested at 1:46 a.m. on March 10, 1989, by Officer Gary Martha of the Sycamore police department. Officer Martha charged defendant with speeding and drunk driving. Carraher declined to perform field sobriety tests and later refused to submit to a breath test. On the basis of defendant’s refusal, Officer Martha prepared a law enforcement sworn report and served notice upon defendant of the summary suspension of his driving privileges, pursuant to section 11— 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1). Defendant timely requested a summary suspension hearing. We recount only those facts adduced at the hearing which are pertinent to the instant appeal.

Officer Martha was on duty on State Street in Sycamore on March 10, 1989, when he timed Carraher’s vehicle going 50 miles per hour in a 30 miles-per-hour zone. The officer activated his red lights, made a U-turn and followed Carraher’s vehicle approximately lx/2 miles to Evergreen Trailer Park. Carraher turned left into the trailer park, and Officer Martha testified that Carraher attempted to elude him briefly. The officer caught up with Carraher, and, when Carraher’s car came to a stop, Martha approached and asked for Carraher’s driver’s license. Martha told Carraher that he had stopped him for speeding and requested Carraher to take a field sobriety test, which Carraher declined to do. According to the officer, Carraher admitting to having had something to drink, Carraher’s eyes were bloodshot, his speech was slurred and he staggered. Martha advised Carraher that he was under arrest for speeding, fleeing from an officer and DUI.

On redirect examination, Officer Martha admitted that Evergreen Trailer Park, where he arrested Carraher, is outside the city limits of Sycamore, Illinois.

Defendant also presented his own testimony as well as that of Georgia Ridulph. The State called Officer Tom Scott, a Sycamore police officer, who testified that he had assisted Officer Martha at the scene of the arrest and that he processed Carraher’s arrest at the police station.

At the close of the evidence, the defendant’s counsel presented argument on the issue of whether Officer Martha had a reasonable basis for his opinion that Carraher was DUI. The trial court concluded that there was no question that probable cause existed; however, the court raised sua sponte the question of whether Martha, a Sycamore police officer, had the authority to arrest Carraher for DUI outside the city limits of Sycamore. The State offered two case citations and opined that an officer observing a basis for arrest in his jurisdiction may follow the suspect into another jurisdiction and make an arrest. Carraher’s counsel argued that, although the officer may have had probable cause to arrest Carraher for speeding while he was within the city limits, the officer did not have probable cause to make a DUI arrest at that time. The court took the matter under advisement and later issued a letter of opinion.

In its letter, the trial court stated:

“In the instant case, the Defendant [Carraher] was observed speeding within the city limits of Sycamore. He was followed and stopped by the officer [Martha] outside the city limits. I am satisfied that the officer had authority to stop the Defendant for speeding. However, when the officer discovered indicia of DUI in the process of the stop, he should have summoned a county police officer to make the DUI arrest. Accordingly, I will quash the DUI arrest and all evidence flowing therefrom. The speeding stop will stand.”

The State’s timely appeal ensued.

In case No. 2—89—0772, defendant Bryan S. Lloyd (Lloyd) was arrested at 1:50 a.m., on June 4, 1989, by Officer Charles Mayeda of the Sycamore police department. Officer Mayeda charged Lloyd with driving in the wrong lane (Ill. Rev. Stat. 1987, ch. 95½, par. 11—701) and DUI. At the police station, defendant submitted to a breath test in which he registered a result of 0.24. On the basis of this test result, Officer Mayeda prepared a law enforcement sworn report and served notice upon Lloyd of the summary suspension of his driving privileges pursuant to section 11—501.1 of the Code. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.1.) In his sworn report, Officer Mayeda stated that he believed Lloyd was DUI because, “subject drove vehicle in wrong lane, weaved back and forth. Strong oder [sic] of alcohol on breath, eyes bloodshot, face flushed, speech slurred, failed field sobriety test.” Lloyd timely requested a summary suspension hearing.

The record does not include a transcript of the rescission hearing; however, the State has prepared a bystander’s report. We recount the following pertinent facts which were adduced at the hearing.

Officer Mayeda was on duty in Sycamore, Illinois, on June 4, 1989. He was proceeding north on Main Street at approximately 1:50 a.m. when he observed a vehicle approximately 10 car lengths ahead of him, also heading northbound. As he followed this vehicle past Main Street’s intersections with Page Street and North Avenue, he observed the vehicle weave twice within its own lane and then cross approximately two feet into the southbound lane. The vehicle traveled in this manner for a few seconds. Mayeda stated that Main Street at Page Street and North Avenue is a two-lane highway with one lane going in each direction. There were no other vehicles on the road, and the weaving vehicle was not speeding. Mayeda stated that he did not recall any road construction in the area where the vehicle weaved and he did not recall having to deviate his path in order to avoid any construction or warning devices.

Mayeda followed the vehicle out of the city limits and activated his overhead lights. Mayeda followed the vehicle to Mount Hunger Road just outside the city limits, where the vehicle pulled over, and Mayeda found Lloyd to be its driver. Mayeda testified that Mount Hunger Road is outside the city limits of Sycamore but is still within De Kalb County, Illinois, and that, between the city limits and the point where Lloyd’s vehicle stopped, he observed nothing unusual about the vehicle’s travel.

Lloyd testified that he was northbound on Main Street in Sycamore and had to cross into the southbound lane due to road construction warning devices. He did not offer any testimony refuting Officer Mayeda’s statements contained in the law enforcement sworn report.

The trial court quashed Lloyd’s DUI arrest and rescinded his statutory summary suspension, stating, “While probable cause is found to exist, the stop of the defendant’s vehicle was improper as being outside the officer’s jurisdiction.” The State’s timely appeal ensued.

The issue on appeal is whether the extraterritorial arrests of defendants Carraher and Lloyd were valid. More specifically, we consider whether a police officer is authorized to arrest a motorist for drunk driving outside the officer’s jurisdiction, when the officer has previously observed the motorist committing a traffic offense within the jurisdiction. The State initially argues that the officers involved in the instant matter were justified in making the DUI arrests on the basis of their authority as private citizens pursuant to section 107—3 of the Code of Criminal Procedure of 1963 (Criminal Code) (Ill. Rev. Stat. 1987, ch. 38, par. 107—3). Alternatively, the State contends that the extraterritorial arrests were authorized by section 107 — 5(c) of the Criminal Code (111. Rev. Stat. 1987, ch. 38, par. 107 — 5(c)), because the arresting officers had observed defendants committing offenses within the officers’ jurisdiction. We agree with the State’s second contention, and we reverse the trial court’s orders on this basis and remand the causes.

At the outset, we must address defendants’ assertion that the State has waived any argument based on section 107—5(c) for its failure to raise this argument before the trial court. We do not agree. As we noted in our recitation of the facts pertaining to defendant Carraher, the prosecutor argued “that an officer observing the basis for arrest in his jurisdiction may follow a car into another jurisdiction and make an arrest.” Admittedly, the prosecutor failed to offer pertinent case authority and further argument in support of this proposition; nevertheless, his statement of the law was correct. Thus, we hold that the State has not waived the issue of whether the police officers had authority to effect DUI arrests outside their jurisdiction pursuant to section 107—5(c) of the Criminal Code.

The appellate court has held that a police officer may enter another jurisdiction to make an arrest for a crime that has been committed in his own jurisdiction. (People v. Aldridge (1981), 101 Ill. App. 3d 181, 186.) In Aldridge, Evanston police officers arrested the defendant in Chicago after receiving a report from a woman who said she had been abducted in Evanston and then taken to Chicago and raped. The appellate court concluded that since the defendant had allegedly committed a crime within Evanston, the Evanston authorities were justified in arresting him in another jurisdiction for that crime. (101 Ill. App. 3d at 181.) The Aldridge court relied upon an earlier appellate decision, People v. Durham (1979), 71 Ill. App. 3d 725.

In Durham, a Union County sheriff’s sergeant followed the defendant into Alexander County after having received a report of a shooting in Union County. The sergeant arrested the defendant in Alexander County. The defendant argued that the sergeant had exceeded his authority and requested that any evidence seized incident to his arrest be suppressed. The trial court denied his motion.

On appeal, the Durham court observed that at common law municipal and county law enforcement officers generally lacked authority to make warrantless arrests outside the political jurisdictions in which they held office. (71 Ill. App. 3d at 726.) The so-called “fresh pursuit” doctrine provided the single exception to this rule and allowed an officer to arrest offenders who had fled the jurisdiction in which they had committed a crime when the officer was following “in fresh pursuit.” (71 Ill. App. 3d at 726; see also Ill. Rev. Stat. 1987, ch. 38, par. 107— 4(b).) The court determined, however, that the common-law rule has been modified in Illinois by section 107—5(c) of the Criminal Code (Ill. Rev. Stat. 1987, ch. 38, par. 107—5(c)), which provides, “[a]n arrest may be made anywhere in the jurisdiction of this State.” Thus, the Durham court concluded:

“While there is no case law interpreting the scope of this provision, we believe it lays to rest the notion that a police officer is limited by the concept of territorial boundaries or jurisdiction when making an arrest. Therefore, it is proper for a police officer to make a warrantless arrest in an adjoining county when he has probable cause to believe that the accused committed an offense in the county in which the officer holds office. This is true even though the officer had merely entered the adjoining county because of some suspicious activity and was not then in fresh pursuit of the offender.” Durham, 71 Ill. App. 3d at 727.

As noted above, the Durham holding provided authority for the appellate court’s decision in Aldridge (101 Ill. App. 3d at 186). Durham has also been cited with approval more recently in People v. Sims (1987), 166 Ill. App. 3d 289, 315.

In the instant cases, city police officers observed motorists committing traffic violations within the city limits. These violations of the Illinois Vehicle Code rendered defendants subject to arrest. (See People v. Gupton (1985), 139 Ill. App. 3d 530, 533.) In each case, the officer followed the motorist out of town and stopped the motorist for the observed traffic offense. When Officer Martha was successful in stopping defendant Carraher for speeding, he observed many of the indicia of intoxication and arrested Carraher for DUI. Similarly, when Officer Mayeda stopped defendant Lloyd for erratic driving, he also observed indications that Lloyd was intoxicated and arrested Lloyd for DUI. Defendants do not dispute that the officers observed them commit traffic offenses within the city of Sycamore. Also, defendants do not dispute that the officers had probable cause to stop them for these traffic offenses. Under Aldridge and Durham, the officers had the authority, as police officers, to arrest defendants anywhere within Illinois for these offenses.

Defendants do contend, however, that even if the initial stops were proper, the officers did not have the authority to detain and question them about the possible DUI offenses or, in defendant Lloyd’s case, to administer field sobriety tests. Defendants’ reliance upon People v. Fenton (1987), 154 Ill. App. 3d 152, rev’d (1988), 125 Ill. 2d 343, is misplaced. In Fenton, a police officer from an Illinois community located near the Iowa border observed defendant’s car traveling in excess of the speed limit in Illinois and followed the car across the Iowa border. The two cars stopped just inside the border, and the officer told defendant to pick up his speeding citation at the Hamilton, Illinois, city hall. Fenton, 154 Ill. App. 3d at 153.

The court noted in Fenton that under Iowa law, the Illinois officer lacked authority to act as a police officer, and his actions would have to be considered those of a private person. (154 Ill. App. 3d at 154.) The court went on to hold that private citizens do not have the authority to make noncustodial inquiries, or Terry stops, stating that private citizens generally do not have expertise in detecting criminal activity and should not therefore have such authority. (154 Ill. App. 3d at 154.) Our supreme court reversed because the record did not reflect that a seizure had taken place within the meaning of the fourth amendment; therefore, the officer’s identification of defendant as the driver should not have been suppressed. People v. Fenton (1988), 125 Ill. 2d 343, 347.

The concerns raised in Fenton about permitting private citizens to conduct noncustodial inquiries are not present here. In the case at bar, as we have previously indicated, the two officers had the authority as police officers to stop defendants and arrest them for offenses that had occurred within their jurisdiction. While acting within their lawful authority as police officers, they observed indications that defendants were under the influence of alcohol and had therefore likely committed the offense of driving under the influence of alcohol within their jurisdiction. A police officer may temporarily detain an individual for the purpose of a limited investigation if the officer is able to point to specific, articulable facts which, taken together with reasonable inferences drawn from the officer’s experience, would reasonably warrant the extent of the intrusion. (People v. Beil (1982), 110 Ill. App. 3d 291, 293.) Since the officers were not acting as private citizens in this case, Fenton is inapposite. Because the two officers were empowered to act as police officers while stopping and arresting defendants and observed indicia of DUI while carrying out these duties, we believe they were authorized as police officers to detain defendants for investigation, including questioning and field sobriety tests, to determine whether defendants had been driving under' the influence within their jurisdiction.

Defendants also argue that the officers could not have initiated statutory summary suspension proceedings if they were acting as private citizens in arresting defendants for DUI. Because both defendants were observed by the officers driving within the city limits of Sycamore and since both were stopped within a short distance of the city limits in an apparent intoxicated condition, the officers could have readily inferred they were driving under the influence of alcohol while in Sycamore. Thus, the DUI arrests were for offenses that took place within the jurisdiction of the officers and, under Aldridge and Durham, the officers had the authority in their official capacity to arrest defendants for DUI. Accordingly, since defendants’ assertion that the officers could not initiate statutory summary suspension proceedings is premised upon the erroneous assumption that the officers had no authority in their official capacity to arrest defendants and did so as private citizens, we reject that assertion.

The records in both matters establish that the trial court found that the police officers had probable cause for the DUI arrests. Although Lloyd claims that the trial court found only that Officer Mayeda had probable cause to stop him for improper lane usage, the record reflects otherwise. The court’s order simply states, “While probable cause is found to exist, the stop of the defendant’s vehicle was improper as being outside the officer’s jurisdiction.” In view of Officer Mayeda’s sworn report attesting to the officer’s observation of the indicia of Lloyd’s intoxication, and Lloyd’s failure to dispute these allegations, we can only conclude that the court’s order reflects its finding of probable cause for the DUI arrest. (See People v. Morrison (1987), 155 Ill. App. 3d 1088, 1091 (sworn report is equivalent to a pleading).) Carraher does not dispute the probable cause finding in his case but contends that Officer Martha obtained probable cause to arrest him for DUI improperly by following him outside the city limits, an argument we have rejected.

In view of the foregoing, we hold that the trial court improperly quashed defendants’ arrests and, consequently, erroneously rescinded the suspensions of their driving privileges. Accordingly, we reverse the trial court’s order in both cases and remand the causes with the direction that the trial court issue a notice in each matter to the Secretary of State indicating that the summary suspension of each defendant’s driving privileges is sustained.

Reversed and remanded with direction.

REINHARD and GEIGER, JJ., concur.


author: JUSTICE GEIGER

text:
    THE FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellant, v. BROOKWOOD LAND VENTURE et al., Defendants-Appellees.
    Second District
    No. 2—89—0846
    Opinion filed July 16, 1990.

      Helm & Day, of Naperville (Scott M. Day, of counsel), for appellant.
    Katten, Muchin & Zavis and Robert J. Zaideman, of Epstein, Zaideman & Esrig, P.C., both of Chicago, and Katten, Muchin & Zavis, of Oakbrook Terrace (Thomas W. Fawell, of counsel), for appellees.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiff, Forest Preserve District of Du Page County (the District), appeals from the trial court’s order setting just compensation for the taking of property owned by the defendants, Brookwood Land Venture et al. The District asserts numerous errors in the court’s conduct of the trial. We affirm. We issue our amended opinion upon denial of the District’s petition for rehearing.

This eminent domain action concerns 27 acres of vacant property (the property). The property was originally annexed into the City of Wood Dale in 1969. In 1972 the original annexation agreement was amended to permit high-rise development. Under a 1981 annexation agreement, the property was zoned multiple-family classifications R-8 and R-6, R-8 being Wood Dale’s highest density multiple-family classification. The 1981 agreement also provided for a conservation easement to maintain the nearby Brookwood golf course as open space and for restrictive covenants prohibiting development at the golf course’s Brookwood Country Club (the Club).

The major controversy in this action concerned how problems caused by a lack of access to the property affected the property’s value. The sole existing street access to the property is via Dominion Drive, a private road owned by a homeowners’ association (the homeowners’ association). In 1985 the homeowners’ association sought judicially to prohibit the use of Dominion Drive as an access road for the property. That litigation was not completed prior to the valuation date in the instant case.

At the trial the District presented expert testimony of two appraisers. Both agreed that the property’s highest and best use was multiple-family development. They each offered opinions of the cash market value of the property: one placed the value at $1,530,000 and the other at $1,607,500. Both considered it important that access to the property was disputed.

Over the District’s objection, the defendants were allowed to admit testimony of the reasonable probability that if alternative access rights to the property were necessary, they were available through the Club. Assuming the availability of alternative access, the defendants’ four valuation witnesses testified, respectively, that the property had a fair cash market value of $3 million, $2.76 million, $2,660,000, and $2.5 million.

The jury returned a verdict of $2,211,890. The trial court denied post-trial relief, and this appeal followed.

The District’s first argument on appeal is that the trial court committed reversible error by allowing evidence of the reasonable probability of the acquisition of alternative access rights to the property. The District argues that under no circumstances is evidence of the possible future acquisition of access admissible in a condemnation proceeding. According to the District, such evidence is too speculative to present to a jury. Further, according to the District, even if such evidence were proper, under no circumstances should it be presented absent a prior judicial determination that it is sufficient and competent; here, according to the District, the evidence of reasonable probability was insufficient, and the court erred in not holding an in camera hearing to pass on the evidence’s competence.

Under the law of eminent domain, an owner of condemned property is entitled to just compensation determined by the property’s fair-market value at its highest and best use as of the date of the filing of the condemnation petition. (Department of Public Works & Buildings v. Rogers (1968), 39 Ill. 2d 109, 113.) To determine the property’s highest and best use, the court may consider the reasonable probability of changes which would affect the property’s value. See 39 Ill. 2d at 113 (zoning change); Lake County Forest Preserve District v. Reliance Standard Life Insurance Co. (1975), 29 Ill. App. 3d 145, 151 (annexation); Lake County Forest Preserve District v. Frecska (1980), 85 Ill. App. 3d 610, 618-19 (property development).

Evidence of reasonable probability is allowed to enable the jury to consider the capabilities of the property. (85 Ill. App. 3d at 618). The rationale for allowing such evidence is that the jury should have available to it all the facts which private parties would consider in negotiating an open market sale of the property. (Lake County Forest Preserve District v. Petersen (1981), 93 Ill. App. 3d 731, 734.) The competence of such evidence of reasonable probability should be preliminarily reviewed by the trial court, before its presentation to the jury. (93 Ill. App. 3d at 734.) The party wishing to present such evidence bears the burden of establishing the existence of reasonable probability. See Lake County Forest Preserve District v. Reliance Standard Life Insurance Co. (1975), 29 Ill. App. 3d 145, 151.

We find that under the circumstances in this case the court properly accepted the defendants’ evidence of the reasonable probability of securing alternate access to the property. Here, the District invited the challenged evidence when its experts testified that the property’s value was importantly affected by the dispute over access. (See Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 832.) Once the district raised the issue of access and the effect of the dispute as a factor in determining market value, the defendants were entitled to respond. The defendants were entitled to inform the jury, which had been informed of the dispute surrounding the use of Dominion Drive as the means of access to the defined property, of a reasonably probable alternate means of access. The instant evidence merely countered the District’s implication that the property could be landlocked without litigation over the Dominion Drive access route and enabled the jurors to assess the potential of the property.

In rejecting the District’s related argument that the defendants’ evidence of alternative access was mere speculation, we note that the defendants presented evidence that the Club had agreed to allow access over its property and that Wood Dale would release relevant restrictions. We also note the fact that the law will not landlock a piece of property. See Exchange National Bank v. Village of Hoffman Estates (1977), 48 Ill. App. 3d 475, 481.

Lastly, on the issue of alternative access we find that the court violated no procedural requirement when it allowed the instant evidence without holding a formal in camera hearing. Based upon the defendants’ offer of proof, to which the District offered no objection, the court adequately passed upon the competence of the instant evidence; no additional in camera hearing was required. See Department of Transportation v. Janssen (1975), 34 Ill. App. 3d 244, 246-47.

The District next argues that the court committed reversible error in its sua sponte instructions on burden of proof. Twice during the proceedings the court stated to the jury that neither party bore a burden of proof in this case. We find no reversible error.

As the defendants assert, the statements of law which the District challenges were clearly addressed to the issue of fair market value generally, not to the particular issue of reasonable probability upon which the District focuses. In that regard, the court’s statements reflected that in eminent domain proceedings, the condemnor does not bear the burden of proving a specific value of the condemned property; rather, the condemnor’s burden is to introduce evidence of the property’s value. (See Illinois Pattern Jury Instructions, Civil, No. 300.30 (2d ed. 1971).) As we suggested in our analysis above, we find that the defendants adequately satisfied their burden to show the reasonable probability of alternative access. Further, the District may not complain of the court’s failure to instruct on the reasonable probability issue, as it tendered no alternate instruction. See McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1045.

The District next argues that the court committed reversible error (1) by permitting witness Nicholas Ryan to testify to what his attorneys had told him about the restrictive agreements affecting alternative access through the Club and (2) in paraphrasing a portion of that testimony for the jury.

The challenged testimony and the court’s paraphrase of Ryan’s testimony occurred as follows. After Ryan was questioned about the lawyers’ comments, he responded: “They said that there wouldn’t be a problem for access from Addison Road, [the road associated with the alternative access route through the Club].” However, Ryan had failed to give that testimony into the microphone. The court then asked: “Did you all hear that, Folks? The lawyers were telling him there would be no problem with the Dominion access, [the access route under litigation with the homeowners’ association].”

The defendants argue, and we find, that there was no reversible error. The disputed testimony was admitted for the limited purpose of showing Ryan’s state of mind; the court gave proper limiting instructions to the jury. (See Reynolds v. Alton & Southern Ry. Co. (1983), 115 Ill. App. 3d 88, 98.) Furthermore, although the court’s paraphrase was erroneous, the District made no contemporaneous objection to the error, and we agree with the trial court’s finding that the error was harmless. See Von Seggren v. Smith (1987), 151 Ill. App. 3d 813, 815; Gatto v. Curtis (1972), 6 Ill. App. 3d 714, 733-34.

The District’s final argument regarding the reasonable probability of securing alternative access is that the defendants’ closing argument violated the court’s in limine ruling precluding argument that alternative access to the property existed. We find that the improper argument, to which the court sustained an objection, considered in light of the record as a whole, did not rise to reversible error. See Hooper v. Mizyad (1981), 98 Ill. App. 3d 768, 773-74.

The District’s next major argument regards witness Ryan. Ryan, according to the District, was a key valuation witness for the defendants because he was one of the managing partners at Marquette Properties which, in partnership with National Housing Partnership, were former buyers of the property under a contingent sale contract. The District learned after the trial that Ryan sent a letter demanding that Marquette Properties recover from National Housing Partnership its $125,000 investment in the property, “[w]hen the Forest Preserve and the owners pay the agreed contract repayment.”

According to the District, this letter demonstrated Ryan’s huge, unrevealed personal stake in the case and was ground for a new trial. The District claimed that Ryan had stated in his deposition that he was not entitled to any portion of the condemnation proceeds and the District was entitled to a new trial based upon its late discovery of Ryan’s potential to gain from an award in the case.

The granting of a motion for a new trial because of newly discovered evidence lies within the trial court’s discretion; we will not disturb its decision absent an abuse of that discretion. (Interstate Printing Co. v. Callahan (1974), 18 Ill. App. 3d 930, 933.) The motion should be granted where the new evidence was undiscoverable before trial and will probably alter the trial’s result. McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 1047.

We find no abuse of discretion in the court’s refusal to grant a new trial. Ryan’s letter reveals that he had some interest in the condemnation verdict, insofar as the condemnation award would enable National Housing Partnership’s repayment of an alleged debt to Marquette Properties. However, that fact does not directly contradict Ryan’s statements on deposition. Further, the record does not reveal that the size of the verdict would affect Ryan’s legal entitlement. Furthermore, the record does not support a conclusion that Ryan had an interest in inflating the verdict in this case; both of the District’s valuation experts offered opinions that the property was worth more than 10 times the $125,000 amount sought by Ryan. We do not find that the instant evidence would probably have altered the verdict.

The District’s next argument is that the court improperly allowed testimony of an offer by Lexington Homes to purchase the property from Marquette Properties/National Housing Partnership (MP/NHP). The offer was not admitted on the issue of fair cash market value. The defendants were allowed, however, to present testimony that MP/ NHP had rejected a “substantial” offer for the property, as evidence that, even in the face of the access disputes, MP/NHP chose to retain their interest in the property rather than to sell to an unsolicited offerer.

Generally, for the dollar amount of an offer to purchase property to be presented as evidence of the property’s value upon condemnation, the offer must have been made in good faith; it also must have been made by a person of good judgment, acquainted with the real estate’s value, and with the ability to pay. (City of Chicago v. HarrisonHalsted Building Corp. (1957), 11 Ill. 2d 431, 438.) However, this authority upon which the District primarily relies does not directly control the instant issue.

Here, the court closely limited the evidence of the Lexington Homes offer. The evidence was allowed only to rebut the District’s evidence that the access dispute drastically devalued the property in the judgment of MP/NHP; no specific dollar amount was included. Even assuming for the sake of argument that admission of the instant testimony was erroneous without the omitted foundation, we find that in light of the extensive record the error was harmless. See Gillespie v. Chrysler Motors Corp. (1988), 178 Ill. App. 3d 5, 12.

The District also argues that the court permitted improper cross-examination of its valuation experts. Each of the two District experts testified that the existence of the Dominion Drive access dispute was an important factor in his valuation opinion. In the objected cross-examination, each was asked to speculate as to the fair cash market value of the property if the Dominion Drive access dispute did not exist. We find that the District has waived its argument by failing to raise it in its post-trial motion. (See In re Liquidations of Reserve Insurance Co. (1988), 122 Ill. 2d 555, 568.) The District did not address the defendants’ waiver argument until it filed its petition for rehearing. We find that the District has waived its argument before us. See Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 780.

The District next argues that it was denied reasonable voir dire on potential jurors’ professional or personal relationships with the individual partners in Brookwood Land Venture, the beneficiary of the land trust which owned the property. The District was restricted to asking whether the potential jurors knew any of the partners or principals of Brookwood Land Venture.

Once a fair opportunity is afforded to probe an important area of potential bias or prejudice, it is within the court’s discretion to allow or deny further voir dire questioning. (Gasiorowski v. Homer (1977), 47 Ill. App. 3d 989, 992.) We find no abuse of discretion in the court’s determination that the issue of potential bias was adequately addressed by the District’s opportunity for limited inquiry.

The next issue on appeal is whether the court improperly allowed the defendants’ witnesses Nicholas Ryan, Jack Benning, and William McDowell to offer expert opinion despite the fact that they were not disclosed as experts under Supreme Court Rule 220 (107 Ill. 2d R. 220). The court ruled that the three witnesses were analogous to treating physicians so that disclosure of their opinions was not required under Rule 220.

Rule 220 requires pretrial disclosure of witnesses “retained” or “requested” specifically for trial to give opinion testimony within their field of expertise. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 234.) In the health field, Rule 220 is not meant to cover a treating physician’s medical opinions, as they are developed in the course of treatment; rather, it is meant to cover opinions formed in anticipation of a trial. 124 Ill. 2d at 234-44.

We agree with the conclusion of the trial court that the three witnesses were outside the disclosure requirements of Rule 220. Each of the three had participated directly in the property’s history, and each testified as to his personal involvement and knowledge. Despite the fact that one witness, Jack Benning, was compensated for his time lost in participating in the litigation, the analogy to Tzystuck is clear. These expert witnesses were occurrence witnesses who had direct involvement in the subject matter of the litigation, and their opinion testimony was not merely prepared in anticipation of trial and, therefore, did not need to comply with the Rule 220 disclosure requirements. See also Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 383-85.

The District’s final argument is that it was denied a fair trial by the defendants’ closing argument’s appeal to prejudice and sympathy and its focusing away from the evidence of fair cash market value, onto antigovernment action and retribution. They rely upon City of Chicago v. Cunnea (1928), 329 Ill. 288, 297-98, and the following argument made by the defendants: “Now the plaintiff in this case is the Forest Preserve District. They certainly have a substantial amount of power, enough power to come in voluntarily and take our property away.”

In the condemnation case in Cunnea, the supreme court found that the question of the subject property’s fair-market value was obscured by the landowners’ suggestion in closing argument that the State was able to pay the higher valuation, while the owners would be importantly disadvantaged under the lower valuation. The court also disapproved the homeowners’ argument’s suggestion of “automatic sovereign action” in “ ‘taking [the plaintiffs’] homes away.’ ” 329 Ill. at 297-98.

We agree with the District, and the trial court which sustained objection to the argument at issue, that this argument was improper. However, we find no reversible error. Here, unlike in Cunnea, there was no series of prejudicial suggestions emphasized by defense counsel. Further, here the balance of the defense argument, as well as the lengthy trial generally, properly framed the valuation issues before the jury. We find no prejudicial, reversible error. See Buckler v. Sinclair Refining Co. (1966), 68 Ill. App. 2d 283, 294-96.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

McLaren and INGLIS, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAY FERN, Defendant-Appellant.
    Second District
    No. 2—89—0833
    Opinion filed July 26, 1990.
    Rehearing denied August 15, 1990.
    Feldman & Halprin, and Mitchell Caplan, both of Chicago, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Jay Fern, was indicted in the circuit court of McHenry County on two counts of unauthorized delivery of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(2), (b)(2)). Defendant pleaded guilty to both counts, was sentenced to concurrent terms of imprisonment of 10 and 25 years, and was fined a total of $75,000.

Defendant raises the following sentencing issues on appeal: whether the trial court erred in imposing sentence by failing to consider defendant’s rehabilitative potential and that the offense was induced by others; and whether, because the investigation leading to defendant’s prosecution was conducted by Federal law enforcement officers, his sentence should have been imposed pursuant to Federal sentencing guidelines.

At the outset, we note that defendant filed neither a motion to withdraw his guilty plea and vacate the judgment pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) nor a motion for reconsideration of his sentence. While the State has not raised the issue, we initially consider whether defendant’s failure to file either motion waives consideration on appeal of any error in the imposition of sentence.

This question has been a subject of disagreement in this court. In People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386, this court recognized that pursuant to People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, a criminal defendant who has entered a guilty plea need not file a Rule 604(d) motion to withdraw his plea and vacate the judgment as a prerequisite to an appeal if he seeks only to challenge his sentence. (176 Ill. App. 3d at 622, 531 N.E.2d at 389.) Nonetheless, this court stated:

“[W]e read Rule 604(d) to require any defendant who has entered a guilty plea to file a motion to reconsider his sentence as a prerequisite to an appeal of the sentence.” 176 Ill. App. 3d at 623, 531 N.E.2d at 389.

See also People v. Israel (1989), 181 Ill. App. 3d 851, 859, 537 N.E.2d 1124.

Subsequently, in People v. Kennedy (1989), 188 Ill. App. 3d 1, 543 N.E.2d 617, a different panel of this court declined to follow Favelli and held that no motion to reconsider is necessary to preserve review of errors in sentencing under the supreme court rules. (188 Ill. App. 3d at 4-5, 543 N.E.2d at 619-20.) However, most recently, in People v. Carroll (1990), 195 Ill. App. 3d 445, 552 N.E.2d 361, another panel of this court concluded that Favelli more accurately interpreted and applied the supreme court’s ruling in Wilk than did Kennedy and held, contrary to Kennedy, that failure to raise an issue pertaining to sentencing in a motion to reconsider the sentence waives review of the issue. 195 Ill. App. 3d at 446-47, 552 N.E.2d at 362.

Abstaining from any discussion of the merits of the conflicting positions espoused in Kennedy and in Favelli and Carroll, we will follow the most recent decision on the subject, Carroll, in this case and in future cases. Accordingly, as defendant failed to file a motion in the trial court for reconsideration of his sentence, any issue pertaining to his sentence is waived.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

INGLIS and McLAREN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDY LEE COOPER, Defendant-Appellant.
    Second District
    No. 2—88—0774
    Opinion filed March 30, 1990.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and

      Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Andy Lee Cooper, was charged with the offense of indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11—4) and was committed to the Department of Corrections under the Sexually Dangerous Persons Act (Act) (Ill. Rev. Stat. 1975, ch. 38, par. 105—1.01 et seq.). The facts of the case are reported in People v. Cooper (1978), 64 Ill. App. 3d 880, and need not be repeated here. Defendant was later placed on conditional release, which was revoked after he was convicted of sexual assault in Colorado. (People v. Cooper (1988), 177 Ill. App. 3d 942, aff’d (1989), 132 Ill. 2d 347.) On July 14, 1987, defendant filed an “Application Showing Recovery,” which the trial court denied. Defendant appeals, contending that the court improperly considered the testimony of two psychiatrists at the hearing on his application. The State contends that the testimony of the psychiatrists was properly admitted and that defendant waived the issue by not objecting to the testimony during the trial.

Defendant filed a pro se application showing recovery, and an attorney was appointed on his behalf. Dr. Parwatikar, a psychiatrist, Michael J. Dolan, a psychological administrator, John J. Zielinski, the clinical services supervisor, and Mary Flanagan, the administrator, of the Menard Psychiatric Center prepared a sociopsychological report. Defense counsel stated that the report provided too little information to be of guidance in determining whether defendant had recovered and was not helpful to defendant. Defense counsel then moved the court for the appointment of qualified psychiatrists to examine defendant so as to provide current evidence to present to the court. The State joined in the motion, and the court appointed Dr. D’Souza and Dr. Levine to examine defendant. They examined the defendant and each filed a written report, which the court did not read.

At the hearing conducted regarding defendant’s application, the court noted defendant’s objection to the court’s considering any reports, both those made by the “present” psychiatrists and those made previously. The court then overruled defendant’s objection. The defendant then testified, inter alia, that he had corrected and learned to control the desires that led to his commitment and that he had cured his alcohol problem, which he said induced him to commit his previous offenses. The State wished to rest on the written reports to support its contention that defendant had not recovered, but the court, finding Drs. D’Souza and Levine in the courtroom, and hearing no objections, asked the psychiatrists to testify as the court's witnesses. Being questioned by the court, Dr. D’Souza testified that after a full examination, he determined that defendant continued to be sexually dangerous. Dr. Levine testified that, although the term “sexually dangerous person” was a legal determination, not a psychiatric diagnosis, defendant suffered from chronic paranoid schizophrenia. Dr. Levine stated that defendant’s prognosis was not good but might improve with medication and therapy. Dr. Levine further testified that because of defendant’s significant impairment of judgment based on delusional thinking, he would be a risk to the community if he were released. Following the close of testimony and arguments, the court denied defendant’s application showing recovery. The court, relying principally on the testimony of the two psychiatrists, noted that defendant still had psychoses that he refused to recognize or attempt to control. This appeal followed.

Regarding defendant’s argument that the testimony of the two psychiatrists was improperly admitted, the State contends the argument is waived for failure to object before the trial court. (People v. Cooper (1989), 132 Ill. 2d 347, 358; People v. Enoch (1988), 122 Ill. 2d 176, 186.) Although defendant’s objection in the record lacks specificity, we find that defendant did raise an objection to all the psychiatric reports. The court overruled these objections and was going to admit the written reports until it decided to take the psychiatrists’ testimony in lieu of the written reports. A continuing objection by defendant would have been futile. Nor is the fact that defendant’s counsel originally moved the court for the appointment of the psychiatrists a waiver of an objection to admission of their testimony, because defendant could have declined to offer the evidence. Thus we find that defendant has not waived the objection and may argue the matter on appeal.

The nature of defendant’s argument arises from the strict language of section 9 of the Act. (Ill. Rev. Stat. 1987, ch. 38, par. 105—9.) Section 9 provides that when a person committed under the Act files an application showing recovery, the Director of the Department of Corrections shall order a socio-psychiatric report to be prepared by the psychiatrist, sociologist, psychologist and warden of the institution wherein the applicant is confined. Then, the “court shall set a date for the hearing upon such application and shall consider the [socio-psychiatric] report *** and any other relevant information submitted by or on behalf of such applicant.” (Ill. Rev. Stat. 1987, ch. 38, par. 105—9.) Defendant contends that because the psychiatrists’ testimony was not submitted “by or on behalf of” himself, the court was not authorized to consider it. Defendant contends that section 9 restricts the evidence admissible at a hearing on recovery to only the socio-psychiatric report and the defendant’s own evidence.

This question of whether other relevant information must be excluded at a hearing to determine a defendant’s recovery does not appear to have been raised before. Indeed, it appears from the case law that psychiatric testimony has always been admitted at recovery hearings. See, e.g., People v. Beksel (1973), 10 Ill. App. 3d 406, 407 (two psychiatrists were appointed to examine the defendant, of whom one testified for defendant’s recovery and the other against defendant’s recovery, and four inmates testified regarding conversations with the defendant indicating he had not recovered. “[I]n addition to this testimony, pursuant to [section 9], the court properly considered the [socio-psychiatric report]”); People v. Hannan (1989), 184 Ill. App. 3d 937, 940-41; People v. Sweeney (1969), 114 Ill. App. 2d 81, 86 (psychiatrist testified without objection by the defendant); see also People v. DeMont (1986), 146 Ill. App. 3d 437, 443-44.

We cannot agree with defendant that section 9 can be read to limit the evidence admissible at a hearing on recovery. Had the legislature intended to exclude other relevant evidence, the section would have read, for example: “the court shall consider only the report and defendant’s information.” Rather, the section states the court must consider the socio-psychiatric report and must also consider the defendant’s information.

Defendant misconstrues the purpose of the language of the statute. The provisions dealing with the evidence to be included are not intended to be a limitation, but an expansion of the admissible evidence. Without the statutory provision of section 9, the sociopsychiatric report would be inadmissible as hearsay. However, because the findings and opinions of the psychiatrists, sociologist, psychologist and warden are important to a determination of recovery, and these persons are deemed trustworthy, an exception was made to allow their report into evidence. (People v. Sweeney, 114 Ill. App. 2d at 87.) Thus, the mandatory language of the statute must be interpreted to direct a trial court to consider the socio-psychiatric report and the defendant’s relevant information. The statute does not prevent the exclusion of other relevant evidence. An interpretation which directs a court to exclude relevant evidence would create absurd results where the State could not present rebuttal or impeaching evidence against a defendant’s testimony. Furthermore, it would be absurd to contend that, while psychiatric testimony is admissible to determine if a defendant is sexually dangerous at an initial commitment hearing (Ill. Rev. Stat. 1987, ch. 38, par. 105—4; People v. Covey (1966), 34 Ill. 2d 195, 197), it would not be admissible to show a defendant has recovered. Because we reject the argument that the statute excludes the consideration of other relevant information, we need not address the State’s argument that the psychiatrists’ evaluations were in fact made “on behalf of” defendant.

Moreover, even if the psychiatrists’ testimony had been excluded, the trial court’s decision would have to be affirmed. Until a defendant proves to the court that he is no longer sexually dangerous, he retains that status. (People v. Cooper (1989), 132 Ill. 2d 347, 355.) A defendant bears the burden of proof to show by a preponderance of the evidence that he is no longer dangerous to society. (Hannan, 184 Ill. App. 3d at 941; Beksel, 10 Ill. App. 3d at 407; Sweeney, 114 Ill. App. 2d at 88.) In defendant’s cause, the socio-psychiatric report prepared by Drs. Parwatikar and Dolan stated:

“SUMMARY AND TREATMENT PLAN: Mr. Cooper, who has consistently shown paranoid ideation including ideas of grandiosity, has not participated in any group activity and continues to maintain that he is not a Sexually Dangerous Person and that his confinement is illegal. As long as he continues to believe that, no further progress in his Sexually Dangerous Person status can be reported.”

It is clear from the report that defendant had made no progress in recovering from his psychological problems, and defendant, by failing to recognize his condition, could not make any progress. See Hannan, 184 Ill. App. 3d at 940.

Defendant attributed his problems to alcoholism, which he said he had cured. Defendant testified that he had not had an alcoholic drink in over seven years and had attended over 500 Alcoholics Anonymous meetings. Defendant did not respond to his counsel’s question of where the meetings were supposedly conducted, but, instead, stated in his rambling responses that the meetings were not allowed at the institution where he was committed. Defendant also attributed his previous problems to the effects of a secret Federal Bureau of Investigation experiment in which he was administered a drug. Defendant admitted that he refused to participate in therapy groups for sexually dangerous persons. Other than some pointed criticism of certain psychological evidence, defendant’s testimony lacked credibility. Defendant contended that he had preached in 49 States through 1986, during the time in which he was committed, and that his current trial judge had originally sentenced him 26 years ago, which was nine years before the judge took the bench.

In conclusion, neither the socio-psychiatric report nor defendant’s testimony provided sufficient proof that defendant was no longer sexually dangerous. Thus we hold that the court properly admitted the testimony of the two psychiatrists and that section 9 of the Act does not exclude relevant evidence offered by the State, and, even if the testimony had been excluded, defendant failed his burden of proof that he was no longer sexually dangerous.

For the above reasons, the order of the circuit court of Winnebago County denying defendant’s application showing recovery is affirmed.

Affirmed.

GEIGER and WOODWARD, JJ., concur.