text:
    JAVIER MARIN, Plaintiff-Appellee, v. AMERICAN MEAT PACKING COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 89—1908
    Opinion filed September 28, 1990.

      McDermott, Will & Emery, of Chicago (Stephen Erf, Nancy Ross and Jennifer Walz, of counsel), for appellant.
    Robert H. Hanaford, Ltd., of Chicago (Robert Hanaford and Ken Del Valle, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Javier Marin, brought an action for retaliatory discharge against his employer, American Meat Packing Company (AMPAC), claiming he was fired for filing a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) (Act). A jury found AMPAC liable to Marin in the amount of $74,626.40 in compensatory and $75,000 in punitive damages.

On appeal, AMPAC argues, inter alia, that the circuit court erred in denying its motions for judgment notwithstanding the verdict and for a new trial, and in refusing to instruct the jury properly. We reverse and remand for a new trial.

Marin started working at AMPAC, a hog slaughterhouse, in 1975, and was employed there continuously until September 3, 1981, except for a company layoff in 1976 and a work-related injury resulting in a two-week absence in 1978. His duties included butchering.

On September 3, 1981, Marin sprained his back while attempting to pick up some entrails that had fallen to the floor. The next day, his supervisor referred him to the Yards Industrial Clinic for treatment, which he visited five times during the next month. He was hospitalized by his doctor until November 2, 1981. On November 13, 1981, Marin filed a claim with the Industrial Commission and returned to work on December 3, 1981, with a doctor’s certificate. He continued to work until December 8, 1981, when he reinjured his back, returned to the Yards Clinic, and was again hospitalized. Marin was discharged on January 16, 1982, and he returned to AMPAC two to three days later to pick up his compensation check from Cathleen Heffeman, AMPAC’s industrial nurse. According to Marin, Heffernan stated, “Oh, Mr. Marin, you are at the hospital. Don’t you think that the firm is spending enough money with you at the hospital[?]” She then “threw” the check at him in “anger.”

On January 21, 1982, Marin saw Dr. S.P. Kaushal, who had him admitted to Edgewater Hospital the next day. Marin was discharged on February 2, 1982. Dr. Kaushal later recommended physical therapy treatment, to be commenced February 16.

On February 26, 1982, Marin received a certified letter from AMPAC, which he took to his attorney to read. The letter stated that his doctor had released him for return to work on February 16 and that he had not yet reported to work. Marin was informed that if he did not return by February 26, AMPAC would assume that he had voluntarily quit. Marin understood the letter. He averred that he was still under Dr. Kaushal’s treatment on February 16 and was not released to work on that date nor was he given a return to work certificate, as required by company policy.

Dr. Kaushal gave Marin his return to work permit at Marin’s office visit of March 1, 1982. Marin arrived at work the next day at 7:30 a.m. and gave the permit to Richard Bachert, the plant superintendent. Marin overheard Bachert tell the nurse, “P]ook at this paper. This stupid doctor gives him light work.” The nurse and superintendent then went into the nurse’s office. When Bachert came out, he instructed Marin to wait in the cafeteria. Bachert then went into Clark’s office, the company “president.” When Bachert came out of that office, he told Marin that Mr. Clark said that he no longer had a job. At the close of Marin’s testimony, plaintiff rested. The court denied AMPAC’s motion for a directed verdict.

Richard Bachert was AMPAC’s plant superintendent from August 1979 through May 1982. His responsibilities included the hiring and firing of personnel, as well as employee discipline. His superior was vice-president Larry Clark. Bachert spoke often with Marin, and the conversation was always in English. Bachert asked AMPAC’s nurse to follow up on Marin’s accident and health status on February 16. Marin’s doctor told her that he had released Marin and he was supposed to be at work. The nurse also telephoned Marin’s home and spoke with his wife, who told her that she would inform Marin of the situation. Bachert then sent Marin a certified letter stating that he was to report to work by February 26 or AMPAC would assume that he had voluntarily quit. The return receipt indicated that Marin received the letter on February 26.

On March 2, 1982, Marin reported for work with a doctor’s permit and asked Bachert, “Do I still have a job?” Bachert said no, because Marin didn’t do what *** [he was] supposed to do by the date *** [he was] supposed to do it.” Clark’s name was not mentioned during this conversation. Marin was not dressed in his normal work attire.

Cathleen Heffernan worked at AMPAC from November 1981 through January 1985. She corroborated Bachert’s account of their February conversation. Heffernan phoned Dr. Kaushal’s office and reported to Bachert that the doctor told her Marin’s physical therapy had been scheduled for Wednesday evening so as not to interfere with work.

On March 2, 1982, Marin came into her office, presenting Dr. Kaushal’s return to work permit. One of her duties at AMPAC was to distribute compensation checks. She had never seen Marin prior to March 2, 1982, and was unaware that he had filed a claim for workers’ compensation with the Illinois Industrial Commission. She could not explain the discrepancy between the unrestricted work release that Dr. Kaushal told her about over the phone and the “light work” restriction on the pass Marin presented to her upon his return on March 2, 1982.

Frank Dlugopolski, AMPAC’s maintenance supervisor at the time of the incident, was in the lunchroom and overheard the exchange between Marin and Bachert. His testimony mirrored that of Bachert.

Following closing arguments, the jury returned the verdict for Marin as noted above, finding that Marin did not abandon his employment. AMPAC filed post-trial motions for judgment n.o.v., for a new trial, and for remittitur on damages. On June 15, 1989, the circuit court denied AMPAC’s motions for judgment n.o.v. and for a new trial, but granted its motion for remittitur, reducing the compensatory damages to $66,898.48, based on evidence that Marin would not have worked during a nine-month strike.

I

AMPAC initially argues that the circuit court erred in denying its motions for judgment n.o.v. and for a new trial because the evidence showed that AMPAC discharged Marin for nonretaliatory reasons and that all Marin’s rights under the Act were observed.

The tort of retaliatory discharge recognized in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353 (Kelsay), is an exception to the general rule that “at will” employment is terminable at any time for any or no reason. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876.) A strong public policy exists to insure the protection of workers covered by the Act; an employee may bring a civil tort action against an employer for discharging the employee for filing a claim under the Act. Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353.

To establish a claim of retaliatory discharge, a plaintiff must show that (1) he was an employee of defendant before the injury; (2) he exercised a right granted by the Act; and (3) his discharge was causally related to the filing of a claim under the Act. (Slover v. Brown (1986), 140 Ill. App. 3d 618, 620, 488 N.E.2d 1103.) Causality does not exist if the reason for the discharge is valid and nonpretextual. (Slover v. Brown, 140 Ill. App. 3d at 621.) A pretext had been defined as “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Wayne v. Exxon Coal USA, Inc. (1987), 157 Ill. App. 3d 514, 518, 510 N.E.2d 468.

A judgment n.o.v. should only be entered in those cases where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

In the case sub judice, in considering all the circumstances, it cannot be said that when all the evidence is viewed most favorably to Marin, it so overwhelmingly favors AMPAC that no verdict in Marin’s favor could ever stand.

The record supports AMPAC’s motion for a new trial, however. The standards relating to a judgment n.o.v. and to a motion for a new trial are different. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury’s findings are unreasonable, arbitrary and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.) On a motion for a new trial, the circuit court must determine whether the jury’s verdict was against the manifest weight of the evidence. Mizowek v. De Franco, 64 Ill. 2d at 310.

At bar, Marin testified that he filed a workers’ compensation claim in November 1981 and received benefits. He returned to work in December without incident. After reinjuring his back, and upon claiming a benefits check, AMPAC’s nurse made a disparaging remark about his hospital bills and “threw” his check at him-. Bachert then made the remark about Marin’s light work restriction upon Marin’s return. Marin, however, offered no evidence that AMPAC hired employees who had light work restrictions or treated those employees differently from other employees without such restriction. The minimal facts presented by Marin do not evince a retaliatory motive for discharge when viewed against the evidence presented by AMPAC.

AMPAC’s evidence revealed that the company attempted to restore Marin to active employment February 16. Upon learning from his doctor that Marin should have been back to work, AMPAC phoned Marin’s home and told his wife that Marin was to report back to work. When he did not, the company then sent Marin a certified letter, giving him an extra 10 days to return. AMPAC’s behavior does not suggest a discharge motivated by retaliation, but rather reflects just the opposite: the company’s desire to bring Marin back to work. All AMPAC’s witnesses corroborated Bachert’s account of the events on February 16 and March 2, 1982. Bachert denied knowing about Marin’s compensation claim, and Marin introduced no evidence to the contrary. Evidence that those responsible for plaintiff’s termination knew he intended to file a workers’ compensation claim is “essential” to a retaliatory discharge action. Mercil v. Federal Express Corp. (N.D. Ill. 1987), 664 F. Supp. 315, 318.

Heffernan’s alleged statements prove nothing as to this issue, since she was not a decision maker with respect to Marin’s termination. (See Cannella v. Nationwide Carriers, Inc. (N.D. Ill. 1988), 687 F. Supp. 362, 365.) Nor can the statement be used to infer a retaliatory motive on the part of Bachert. Bachert’s statement itself does not mention workers’ compensation, nor does it reveal any form of threat or coercion against Marin for filing a claim. (Cf. Kelsay, 74 Ill. 2d at 179.) That an employer may discharge an employee at will for any reason or for no reason “is still the law in Illinois, except when the discharge violates a clearly mandated public policy.” (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525, 478 N.E.2d 1354.) The causality element, therefore, requires more than a discharge in connection with filing a claim. Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1.

AMPAC here controverted Marin’s evidence by presenting its own, which demonstrated a valid, nonpretextual reason for discharging Marin. Marin’s argument, that AMPAC’s reason was pretextual and that the letter was a ploy, is unsupported by any evidence to that effect. Rather, Marin admitted that he received the letter on February 26, understood its implications, yet did nothing in response to it until March 2. The evidence showed that Marin was fired for not reporting to work on time as directed by his superiors. Under Illinois law, an employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by an injury which is compensable under the Act. (Slover v. Brown, 140 Ill. App. 3d at 621.) The probative value of Marin’s scant evidence is diminished when viewed in light of the testimony of AMPAC’s employees and the letter it sent to Marin, which tended to show that the company was attempting to restore Marin to employment. Nothing in the record reveals that defendant interfered with, restrained, or coerced Marin in any manner regarding his exercise of the rights and remedies provided to him by the Act.

The record does reflect that Marin and AMPAC were at odds over his return to work date. The exchanges between AMPAC’s employees and Marin, however, fall short of the causality needed for retaliatory discharge actions. The jury’s verdict, therefore, was against the manifest weight of the evidence required to support a claim of retaliatory discharge. (See Bryce v. Johnson & Johnson (1983), 115 Ill. App. 3d 913, 921-23, 450 N.E.2d 1235.) Accordingly, reversal and a new trial is mandated.

II

A review of the instructions given reinforces the need for a new trial. AMPAC contends that the circuit court erred by refusing to instruct the jury not to substitute its judgment for AMPAC’s business judgment regarding its leave of absence policies. The court refused to give AMPAC’s non-Illinois Pattern Instructions (IPI) instruction 14 because Marin’s “issues instruction tells them what the issue is.” Marin asserts that the court correctly refused the proffered instruction because it was argumentative and based on an abstract theory.

Supreme Court Rule 239 (107 Ill. 2d R. 239) governs the giving of non-IPI instructions. The IPI instructions, which were devised for a court to instruct a jury on the law in an impartial and non-argumentative manner, shall be used unless the court determines that they do not accurately state the law. (107 Ill. 2d R. 239; Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill. 2d 375, 438 N.E.2d 152.) Non-IPI instructions should not be used if the IPI instructions correctly and adequately state the law. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.) Each party, however, has the right to have the jury instructed on its theory of the case, and the circuit court, in the exercise of. its discretion, must instruct the jury on all issues which it finds have been raised by the evidence presented. (Lounsbury v. Yorro (1984), 124 Ill. App. 3d 745, 751, 464 N. E.2d 866.) A new trial should be granted where a party shows that its right to a fair trial has been seriously prejudiced by the denial of an instruction. Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 202, 549 N.E.2d 1295.

In light of these principles, the circuit court erred by not instructing the jury with AMPAC’s proposed non-IPI instruction. AM-PAC’s theory of the case was that Marin was discharged upon returning to work four days past the date he was told to report by his superior; its reason for the discharge was not retaliation, but Marin’s disregard of its return to work policy.

AMPAC’s instruction is very similar to an instruction cited with approval in Thompson v. Abbott Laboratories (193 Ill. App. 3d at 203). There, plaintiff tendered a “mixed motive” for discharge instruction, which was refused. In affirming the refusal, the appellate court noted that defendant’s instructions applied the appropriate legal standard in Illinois for retaliatory discharge cases. (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 203.) One of defendant’s instructions stated that if the jury found the discharge was not motivated by plaintiff’s pursuit of rights under the Act, the element of causality was not satisfied “even if the discharge was unfair, unwise, or otherwise improper.” (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 208 (Reinhard, J., concurring).) This instruction, when coupled with the issues instruction given, “require[d] the jury to determine the true reason for the discharge, either plaintiff’s absenteeism or her filing of a worker’s compensation claim, [and is] consistent with Illinois law requiring her to establish causality. Such an approach allows the jury, as the trier of fact, to decide what the true reason was for plaintiff’s discharge.” Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 209 (Reinhard, J., concurring).

As previously noted, an employer may discharge an employee at will for any or no reason except when the discharge violates a clearly mandated public policy, and causality does not exist “if the basis for discharge is valid and nonpretextual.” (Slover v. Brown, 140 Ill. App. 3d at 621.) Since the employer’s motive in firing the employee is the ultimate issue to be decided (Austin v. St. Joseph Hospital (1989), 187 Ill. App. 3d 891, 897, 543 N.E.2d 932), AMPAC’s instruction would have allowed the jury to decide whether plaintiff disobeyed reasonable orders and was terminated for good cause. See Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348, appeal denied (1989), 127 Ill. 2d 620, 545 N.E.2d 114.

Although an employee may be discharged without good cause, that in itself cannot justify relief under the tort of retaliatory discharge (Horton v. Miller Chemical Co. (7th Cir. 1985), 776 F.2d 1351, 1359 (applying Illinois law)), since the employer must also impede a public policy when discharging the employee. (Kelsay, 74 Ill. 2d at 181; Palmateer v. International Harvester Co., 85 Ill. 2d at 131; Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 667-68, 384 N.E.2d 91; see also Note, Good Faith & Fair Dealing in Illinois: An Application in the Employment Context, 1987 U. Ill. L. Rev. 183, 205-06.) AMPAC presented evidence in support of its theory that, at most, it was guilty of harshly discharging Marin, who returned to work four days late. Its proffered instruction “strikes the appropriate balance between an employee’s right not to be fired in contravention of a clearly mandated public policy and an employer’s right to discharge an employee at will for any reason or no reason.” (Thompson v. Abbott Laboratories, 193 Ill. App. 3d at 209 (Reinhard, J., concurring).) AMPAC, therefore, should have been allowed to instruct the jury not to determine whether AMPAC acted fairly, but rather, to determine whether the decision to terminate Marin was in retaliation for filing a workers’ compensation claim.

AMPAC further argues that the circuit court erred in refusing to give the jury its instruction 16, which advised the jury not to award Marin damages for any injury received during his employment. In Kelsay, the supreme court noted that the Act was meant to limit recovery by employees to the extent provided by the Act in regard to work-related injuries, but was not intended to insulate the employer from independent tort actions. (Kelsay, 74 Ill. 2d at 184.) The extent and permanency of an employee’s medical disability are to be decided by the Industrial Commission. (Garrison v. Industrial Comm’n (1980), 83 Ill. 2d 375, 415 N.E.2d 352.) An allegation of retaliatory discharge is an independent proceeding which cannot be combined in a workers’ compensation action. (Garrison v. Industrial Comm’n, 83 Ill. 2d 375, 415 N.E.2d 352.) “[T]he Act [itself] provides that the statutory remedies under it shall serve as the employee’s exclusive remedy if he sustains a compensable injury.” (Emphasis added.) Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326, 447 N.E.2d 786.

Marin argues that the given damage instruction, which fixed the dates for damages as March 2, 1982, up until the date of trial, adequately instructed the jury not to award damages for the work-related injury. The jury, however, heard testimony from Marin regarding his injury — including the fact that he was hospitalized three times for fairly long periods of time, saw several doctors and needed physical therapy three times a week. Given the nature of Marin’s testimony and the circumstances surrounding his separation from AMPAC, such an instruction is warranted because it clearly informs the jury to reward only for damages incurred as a result of the alleged retaliatory discharge. AMPAC’s instruction, therefore, was supported by Illinois law and would have allowed AMPAC to present its theory of the case to the jury. The circuit court erred in refusing this instruction as well.

For the aforesaid reasons, the judgment of the circuit court must be reversed and the cause remanded for further proceedings consistent with this opinion. Other issues raised need not be considered in light of our disposition of this appeal.

Reversed and remanded.

DiVITO, P.J., and BILANDIC, J., concur.

      Defendant’s instruction 14 states:
      “It is not your role to determine whether Defendant acted wisely or fairly with respect to Plaintiff’s separation from employment. Put another way, the jury is not to determine whether Defendant exercised good business j'udgment or whether its methods were sound. You are only to determine whether Plaintiff was discharged and whether the discharge was in retaliation for exercising rights or remedies granted to him by the Workers’ Compensation Act.”


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    EASTER HOUSE, Plaintiff-Appellant, v. THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 87—2200
    Opinion filed September 28, 1990.

      Samuel K. Skinner, Gerald L. Angst, and Maripat Flood, all of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn Denney, Assistant Attorney General, of Springfield, and Robert H. McFarland, William K. Kane, and Patti Marshall, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant Easter House appeals from an order of the circuit court of Cook County which affirmed in part the decision of the Illinois Department of Children and Family Services (DCFS) to deny Easter House’s license to operate as an adoption agency.

On appeal, Easter House contends that (1) DCFS’s bias denied its right to a fair hearing and decision; (2) the hearing officer erred in denying Easter House the right to introduce certain evidence in support of its defense of bias; (3) DCFS deprived Easter House of due process of law when it changed its interpretation of regulations without notice and applied the new interpretations retroactively; (4) DCFS improperly refused to renew Easter House’s license based on an interpretation of the regulations not applied to other child welfare agencies; (5) DCFS erred in refusing to renew Easter House’s license on the basis of alleged infractions which it failed to bring to Easter House’s attention; (6) DCFS erred in refusing to renew Easter House’s license on the basis that Easter House conducted home studies and post-placement visits with residents of certain other States in connection with Illinois adoptions; (7) DCFS failed to sustain its burden of proving any of the charges; and (8) DCFS’s sanction of nonrenewal of Easter House’s license is arbitrary and capricious. We reverse and remand.

Easter House is a Chicago-based adoption agency. From 1962 until 1981, Easter House was a licensed Illinois child welfare agency. In September 1980, DCFS began a license review in connection with Easter House’s scheduled December 8, 1980, two-year license renewal. After the license review was concluded in January 1981, DCFS refused to renew Easter House’s license. DCFS notified Easter House of its refusal to renew its license by letter on January 29, 1981. Thereafter, Easter House requested a written explanation of the charges and a hearing. On March 27, 1981, Easter House received a written complaint prepared by the Attorney General’s office on behalf of DCFS and a hearing was scheduled for April 15,1981.

Easter House answered DCFS’s complaint, denied all of the charges and asserted, inter alia, that DCFS and its officials were biased against Easter House and therefore they could not obtain a fair hearing from them. After a hearing officer was appointed by DCFS, Easter House moved for a change of venue, asserting that it could not receive either a fair hearing or a fair administrative decision from DCFS. Easter House submitted an affidavit from its executive director, Seymour Kurtz, in support of its motion. In his affidavit, Kurtz related that the DCFS officials involved in the Easter House licensing' review were defendants in a pending Federal court action brought by Easter House. (That lawsuit subsequently resulted in a judgment against DCFS which was later vacated on appeal. Easter House v. Felder (7th Cir. 1990), 910 F.2d 1387.)

The hearing officer denied the motion for change of venue, ruled that DCFS was not biased, and prohibited Easter House from introducing additional evidence in support of its affirmative defense that DCFS and its officials were biased and prejudiced against Easter House. Thereafter, the hearing officer received evidence from DCFS for approximately two years. At the close of DCFS’s case, Easter House moved for a directed finding and the hearing officer dismissed 11 of the 14 charges. The DCFS Director at that time, Gregory Coler, reversed the hearing officer and reinstated all of the charges. Easter House then presented its evidence, and on November 29, 1984, the hearing officer rendered his recommended decision. The hearing officer found that DCFS had failed to sustain its burden of proof on the previously dismissed charges and ruled against DCFS and in favor of Easter House on all of the charges except one. However, the hearing officer found that Easter House’s executive director gave a false and misleading response to a question posed by DCFS. On that basis alone, the hearing officer recommended that Easter House’s license not be renewed. Thereafter, the DCFS Director reversed the hearing officer and found against Easter House on 12 of the 14 charges. The Director found that Easter House’s violation of those charges constituted sufficient basis for nonrenewal of its license to operate as an Illinois child welfare agency.

Easter House sought administrative review in the circuit court. Following briefing and oral argument, the court issued a memorandum opinion on January 7, 1987. In its opinion, the court affirmed DCFS’s decision on eight of the charges, affirmed but remanded for imposition of a lesser penalty on two charges and reversed DCFS on two charges. The trial court’s ruling affirmed the decision of DCFS to deny Easter House a license to operate as a child welfare agency. This appeal followed.

On appeal, Easter House initially argues that it was denied a fair hearing and decision because of the bias of DCFS. We agree. Due process of law presupposes a fair and impartial hearing before a fair and impartial tribunal. (Smith v. Department of Registration & Edu cation (1952), 412 Ill. 332, 341, 106 N.E.2d 722, 726.) It is thus a classic principle of jurisprudence that no man who has a personal interest in the subject matter of decision in a case may sit in judgment on that case. (In re Heirich (1956), 10 Ill. 2d 357, 384, 140 N.E.2d 825, 838.) Such a personal interest need not be pecuniary; it need only be an interest which can be viewed as having a potentially debilitating effect on the impartiality of the decision maker. Board of Education of Niles Township High School District No. 219, Cook County v. Regional Board of School Trustees (1984), 127 Ill. App. 3d 210, 213, 468 N.E.2d 1247, 1249.

Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. (Board of Education, 127 Ill. App. 3d at 214.) Further, the principle is as applicable to administrative agents, commissioners, referees, masters in chancery, or other arbiters of questions of law or fact not holding judicial office as it is to those who are technically judges in the full sense of the word. (Heirich, 10 Ill. 2d at 384.) In addition, if one member of an administrative body is not disinterested, his or her participation infects the action of the whole body and makes it voidable. Board of Education, 127 Ill. App. 3d at 213.

In the present case, when DCFS’s decision to deny Easter House’s license was administratively appealed, Easter House’s lawsuits against DCFS and its Director, as well as Easter House’s former executive director, were pending in Federal court. In those lawsuits, Easter House alleged that DCFS and its employees conspired with Easter House’s former executive director to deprive it of its operating license by delaying action upon Easter House’s application for a license while simultaneously granting a license to Easter House’s former executive director in an expeditious manner. The lawsuits further alleged that DCFS conspired to harass Easter House through an intensive investigation designed to dismantle its operation. In its motion for change of venue, Easter House informed the hearing officer of the pending lawsuits. The hearing officer denied Easter House’s motion for a change of venue.

In our view, the hearing officer erred in ruling that DCFS was not biased against Easter House and that it was capable of rendering an impartial decision in this matter. DCFS had a personal interest in the Easter House licensing proceedings. DCFS and Easter House were adverse parties in a Federal lawsuit. Further, DCFS’s ability to substantiate, through its licensing proceedings, the improper conduct or procedures of Easter House would help its defense in the Federal matter. DCFS contends that Easter House failed to demonstrate that the Director was biased. However, it is undisputed that Easter House and DCFS were adverse parties in a lawsuit and that therefore DCFS had an interest in the licensing proceedings. It is also relevant that the Director chose to disregard the findings of its own hearing officer whom it reversed on two occasions. The hearing officer clearly, however, exercised independence from DCFS in its conduct of the hearings. We therefore find Easter House’s contention that the hearing officer was biased to be without merit. Nonetheless, we conclude that the fact that even one DCFS staff member who participated in the decision was not disinterested infects the action of the whole body and makes the decision of DCFS void.

Under these circumstances, we conclude that DCFS and its officials were not disinterested and that their participation in the licensing decision rendered the procedure void. The existence of their personal interest was sufficient, in itself, to invalidate the decision of DCFS. Since there is someone else who could have acted in the interested official’s place, the rule of necessity is not applicable. (See International Harvester Co. v. Bowling (1979), 72 Ill. App. 3d 910, 915, 391 N.E.2d 168, 172.) Further, during the absence or inability to act, of the director of any department, the Governor may designate some person as acting director, to execute the powers and discharge the duties vested by law in such director. (Ill. Rev. Stat. 1987, ch. 127, par. 12.) The decision of DCFS therefore cannot stand.

Our conclusion makes it unnecessary to address the other issues raised on appeal. Accordingly, the order of the circuit court which affirmed in part the decision of the Department of Children and Family Services to deny Easter House’s license to operate as an adoption agency is reversed, and the final administrative decision of DCFS is reversed. In addition, this cause is remanded to the circuit court for the entry of an order directing the Director of DCFS to request the Governor of Illinois to proceed under the applicable statute to appoint some impartial and qualified person to exercise the functions of the Director of DCFS to review the recommended decision of the hearing officer and render a decision, and for further proceedings consistent with this opinion.

Reversed and remanded.

McNAMARA and WHITE, JJ, concur.

       Justice McNamara participated in this case prior to his assignment to the sixth division.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISRAEL VELEZ, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 89—1489
    Opinion filed September 28, 1990.

      Allan A. Ackerman and Joelle Hollander, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Mary Morris, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Israel Velez, was convicted of possession of more than 15 grams of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(a)(2)), and sentenced to nine years’ imprisonment in the Illinois Department of Corrections. Defendant appeals, contending that the trial court erred in denying his motions to quash his arrest and suppress evidence.

The record reveals that on October 15, 1987, Officer John Neumann, a Chicago policeman, appeared before Judge John Morrissey to obtain a search warrant to search the person of “Israel, a white male Hispanic, 5’7”, 145 lbs., with black hair,” and a second-floor apartment at 3354 West Montrose in Chicago. The complaint in support of the warrant stated that Officer Neumann had obtained information from a reliable, confidential informant who had provided reliable information in the past which resulted in three arrests and two convictions in drug possession cases.

Further, the complaint stated that the informant had told Neumann that on October 15, 1987, he (the informant) had gone to Israel’s apartment at 3354 West Montrose, and was admitted inside by Israel. Once inside, the informant purchased one-half gram of what he believed to be cocaine from Israel. The informant observed as Israel removed the substance from a large package, weighed and packaged it. He then gave Israel $50 in exchange for the one-half gram of the substance. The informant used the substance, which gave him the same effect and feeling that he had received from past cocaine use. Based upon this information Judge Morrissey issued a search warrant to locate cocaine, narcotics paraphernalia, proof of residency and United States currency.

Officer Neumann testified at defendant’s joint bench trial and suppression hearing. According to him, on October 17, 1987, at about 7 p.m., he and several other police officers went to the area of 3354 W. Montrose to execute the search warrant. While parked at the corner of Kimball and Montrose with the informant and another police officer, a car driven by defendant drove by. The informant stated, “[Tjhere goes Israel.”

Neumann ordered the informant out of the car. The officers then watched as defendant parked his car, got out and-walked into the alley behind 3354 West Montrose. The officers drove up to defendant and called out the name “Israel.” Defendant turned in response, and Neumann informed him that he had a search warrant.

As a result of the search of defendant, the officers recovered a bag containing white powder from his left front coat pocket. Defendant was arrested. The substance was later analyzed by the Chicago police department crime lab and determined to be 249.5 grams of cocaine.

On cross-examination Neumann testified that he had written the report of the October 17 search and seizure. He admitted that the facts that the informant was present at the scene and identified defendant on the evening of the search were not included in the report. Neumann stated, however, that what was included in the report was a generalization of what occurred.

Defendant testified, with the aid of an interpreter, in his own defense. Defendant characterized himself as 5 feet 11 inches and weighing 195 lbs; According to him, he and his family live at 3354 West Montrose. In addition to his family, Salvatore Zuniga used to live in the home. Defendant described Zuniga as being about 5 feet 7 inches, 145 pounds, with black hair.

On the evening of October 17, defendant parked his car on Kim-ball and was walking in the alley which leads to the back of his house. Two men in plain clothes approached him, asked him if he had any guns and pushed him against the car. The men then searched him. According to defendant the officers neither called to him by the name of Israel, identified their office, nor told him that they had a search warrant. After the search and seizure of the drugs, the men pushed defendant inside the car and handcuffed him. Defendant remained inside the car for about 45 minutes. Defendant also testified that, prior to October 17, he had not been home since October 15.

On cross-examination defendant stated that he has lived in the United States for about 18 years. When asked whether he spoke English, he responded that he did not understand too much.

Following the joint suppression hearing and bench trial the court denied defendant’s motions to quash the search warrant and arrest and to suppress evidence. Defendant was found guilty of possession of a controlled substance with intent to deliver and he now appeals. We affirm.

Defendant’s sole contention is that the trial court erred in denying his motions to quash the search warrant and arrest and to suppress evidence. He raises two arguments in support thereof. Defendant first argues that the State violated rales of pretrial discovery by not revealing, prior to trial, the presence of the confidential informant on the night of his arrest. He maintains that he was prejudiced by the State’s failure to disclose, and further, he argues that the court erred in denying his motion to compel the State to produce the informant.

Disclosures to the defendant in criminal cases are governed by Supreme Court Rule 412. (107 Ill. 2d R. 412.) The appropriate sanction for failure to comply with discovery rules may be an order of compliance, a continuance, exclusion of the evidence, or other order which the trial court deems just under the circumstances. (107 Ill. 2d 415(g)(i).) The imposition of an appropriate remedy for failure to disclose evidence during discovery is left to the sound discretion of the trial court (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329), and will not be reversed unless prejudice or surprise is demonstrated. (People v. Sakalas (1980), 85 Ill. App. 3d 59, 72, 405 N.E.2d 1121.) Even though trial courts are given wide latitude in imposing sanctions for discovery violations, the preferred sanctions are recess or continuance, if the granting thereof would be effective to protect the defendant from prejudice or surprise. People v. Carrasquillo (1988), 174 Ill. App. 3d 1023, 1032, 529 N.E.2d 603; People v. Flores (1988), 168 Ill. App. 3d 284, 522 N.E.2d 708.

In considering whether an alleged trial error violated the defendant’s right to disclosure guaranteed by Rule 412 (107 Ill. 2d R. 412), it is necessary to first consider the nature of the defendant’s request. If the request was specific, failure to respond is seldom if ever excusable, but if the request was general then there is a constitutional error only if the omitted evidence creates a reasonable doubt of guilt that did not otherwise exist. (People v. Bouska (1983), 118 Ill. App. 3d 595, 599, 455 N.E.2d 257.) Further, where the request for disclosure of information does not notify the prosecution of the defendant’s theory of defense, nondisclosure of allegedly material evidence would be cause for reversal only if, when evaluated in the context of the entire record, the omitted evidence would create a reasonable doubt that did not otherwise exist.

Defendant has not included his motion for discovery in the record. Thus, we are unable to determine, with any certainty, specifically what information he requested from the State concerning the informant, or whether the motion even notified the State of defendant’s theory of defense. A response included in the State’s answer to defendant’s motion for discovery states that “[n]o informant that the People intend to call as a witness in the trial of the cause exists.” This answer leads us to believe that defendant was aware of the existence of an informant, and requested information concerning the State’s plan to present the informant as a witness. However, in the absence of more, we cannot conclude that the State failed to comply with defendant’s motion for discovery.

Even were we to conclude that such a violation did occur, we believe that defendant, first, by his failure to assert that claim at trial, and second, by Ms failure to seek either a recess or a continuance, has waived any claim of a discovery error. Moreover, at the time the testimony concerning the informant’s presence was elicited, defendant voiced no objection to it. Instead, prior to proceeding with cross-examination, defense counsel motioned the court for production of the informant. Defendant’s pursual of this inappropriate, more extreme remedy waived any allegation of discovery violation and error. See People v. Visgar (1983), 120 Ill. App. 3d 584, 457 N.E.2d 1343; People v. Nelson (1980), 92 Ill. App. 3d 35, 415 N.E.2d 688, cert. denied (1981), 454 U.S. 900, 70 L. Ed. 2d 217, 102 S. Ct. 404.

However, the failure of a defendant to request information is not dispositive of the State’s duty to disclose. Where the defendant is unaware of evidence and therefore does not specifically request its production, the prosecution is not thereby relieved of its constitutional obligation to furnish it to the defendant. (People v. Jones (1977), 66 Ill. 2d 152, 159, 361 N.E.2d 1104.) Information may be so significant that the State’s duty to disclose is not dependent upon the defendant’s request. (See United States v. Agurs (1976), 427 U.S. 97, 110, 49 L. Ed. 2d 342, 353, 96 S. Ct. 2392, 2400.) Unquestionably, information that is favorable to an accused must be disclosed by the State. (People v. Veal (1978), 58 Ill. App. 3d 938, 962, 374 N.E.2d 963, cert. denied (1979), 441 U.S. 908, 60 L. Ed. 2d 378, 99 S. Ct. 2001.) The standard to be applied is the materiality of the information, which requires a review of the entire record. (Jones, 66 Ill. 2d at 160-61.) When there has been no specific request, absent a finding that the omitted evidence creates a reasonable doubt of the defendant’s guilt, constitutional error has not been committed. Jones, 66 Ill. 2d at 160, citing Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 354-55, 96 S. Ct. at 2401-02.

After review of the record, we conclude that the information concerning the informant’s presence and on-the-scene identification was not sufficient to create a reasonable doubt of defendant’s guilt. Additionally, we note that the omissions in the police report, however significant, bore upon the issue of Neumann’s credibility, which was a matter for the trial judge to determine. Apparently, the judge found the officer’s testimony credible and we cannot disagree.

Further, we conclude that defendant was not entitled to production of the informant. The circumstances whereby disclosure of an unidentified informant is required are noted in Supreme Court Rule 412(j)(ii), which provides, in pertinent part:

“Informants. Disclosure of an informant’s identify shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall, not be denied hereunder of the identity of witnesses to be produced at a hearing or trial.” (107 Ill. 2d R. 412 (j)(ii).)

The prosecution is required to disclose the existence of an informant even though the informant’s identity can be withheld. Ill. Ann. Stat., ch. 110A, par. 412(j)(ii), Historical and Practice Notes, at 615-16 (Smith-Hurd 1985); People v. Forsythe (1980), 84 Ill. App. 3d 643, 645, 406 N.E.2d 58.

Our supreme court, in People v. Lewis (1974), 57 Ill. 2d 232, 235, 311 N.E.2d 685, has adopted the Roviaro standard, holding that disclosure would be required when an informant acted in the dual role of informant-participant. (Roviaro v. United States (1957), 353 U.S. 53, 64-65, 1 L. Ed. 2d 639, 647, 77 S. Ct. 623, 630.) Where an informant’s knowledge is potentially significant on the issue of the defendant’s guilt or innocence, the defendant is prejudiced by the State’s denial of production. (See People v. Perez (1974), 25 Ill. App. 3d 371, 377, 323 N.E.2d 399.) Contrarily, where the unnamed informant was neither a participant nor material witness to the essential elements of the offense, the informant is not a crucial witness and his identity can be withheld. (See People v. Chaney (1976), 63 Ill. 2d 216, 347 N.E.2d 138; People v. Hill (1978), 58 Ill. App. 3d 494, 500, 374 N.E.2d 827.) Finally, where the informant could not have testified to any facts bearing on the charged offense, but merely provided information to law enforcement officials, his disclosure is not required. See People v. Molsby (1978), 66 Ill. App. 3d 647, 654, 383 N.E.2d 1336.

Defendant argues that the court summarily denied his motion to compel production of the informant without any prior balancing of interests. The balancing of rights test, as enunciated in Roviaro, calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. (Roviaro, 353 U.S. at 60-62, 1 L. Ed. 2d at 645-46, 77 S. Ct. at 627-29.) In Illinois the factors considered by the courts under this test are whether the request for disclosure related to the fundamental question of guilt or innocence rather than to the preliminary issue of probable cause, whether the informant played an active role in the criminal occurrence, as opposed to being a mere tipster, and whether it has been shown that the informant’s life or safety would likely be jeopardized by disclosure of his identity. See People v. Raess (1986), 146 Ill. App. 3d 384, 390-91, 496 N.E.2d 1186 (and cases cited therein).

People v. Hampton (1973), 14 Ill. App. 3d 427, 302 N.E.2d 691, is a case which is factually similar to the present case. There, police officers testified that a reliable informant supplied them with information concerning the defendant’s description and location. The police report stated that the arresting officer met with a reliable informant and that the informant had told him that he bought a package of heroin from the defendant about 20 minutes prior to the informant meeting with the police. The report did not mention, but the officer testified, that the informant.had pointed out the defendant to the officer several days before, had telephoned the officer before meeting with him, and had described the defendant to the officer.

At the suppression hearing the defendant argued, inter alia, that the informant was not reliable and motioned the court to suppress the evidence or, in the alternative, to order the informant to appear at an in camera preliminary hearing for cross-examination. The defendant’s motion was denied. On appeal, the reviewing court held that since the issue was not one of guilt or innocence, but rather, one of probable cause for the arrest, the police need not disclose the informant’s identity where the police relied in good faith upon credible information supplied by a reliable informant.

Here, police relied on a search warrant and on the informant’s on-the-scene identification to search defendant. The informant played no material role as a participant in defendant’s possession of the controlled substance, nor could he have provided any testimony concerning the charged offense. He was not present with the police officers at the time of the search and arrest. This case, like Hampton and Molsby, is one where the informant simply provided information to the police officers. The informant’s testimony would have had no significant value on the issue of defendant’s guilt or innocence. The issue presented at defendant’s joint suppression hearing and trial was probable cause, not defendant’s guilt or innocence. The trial judge correctly decided that the informant was not “transactional” and, therefore, disclosure of his identity was not required.

Finally, we note that defendant’s reliance on Raess and People v. Woods (1989), 186 Ill. App. 3d 488, 542 N.E.2d 1247, is misplaced. In both cases production of the informant was determined to be essential to the issue of the defendants’ entrapment defenses at trial. Defendant here presented no defense upon which the informant’s testimony would be relevant or material at trial.

Defendant’s second argument is that the search of his person was totally lacking in probable cause. He first maintains that while the complaint for the issuance of the search warrant expressly alleged that there was probable cause to believe that drugs would be found in the second-floor apartment, no such claim was made as it related to his person. Thus, he argues, absent any claim that Neumann believed that contraband would be found on his person, no warrant should have issued.

Defendant’s rather simplistic argument makes for easy disposition. We have reviewed the preprinted complaint for search warrant form. In the first paragraph of the form, Neumann requested the issuance of a search warrant to search the person of defendant and the premises at 3354 W. Montrose, and to seize “all cocaine used to commit the Offense of Possession of a Controlled Substance, Narcotic Paraphernalia, along with proof of residency including but not limited to bills and correspondence, and US Currency” which have been used in the commission of, or which constitute evidence of the offense. The second paragraph of the form, preprinted, states “Complainant says that he has probable cause to believe, based upon the following facts, that the above things to be seized are located upon the (person and) premises set forth above.” Neumann then set out the facts which formed the basis for his belief and signed the complaint. Clearly, the allegation of probable cause as to the person of defendant is expressly stated in the complaint.

Defendant next maintains that the search of his person was illegal because the complaint, upon which the warrant was based, contained a misdescription of him. A complaint for a search warrant must describe with particularity the place or person, or both, to be searched and things to be seized. (Ill. Rev. Stat. 1987, ch. 38, par. 108 — 3(a).) The test for the sufficiency of the description is whether the place or person is so described as to leave the officers no doubt and no discretion as to the premises or person to be searched. (People v. Curry (1981), 100 Ill. App. 3d 405, 410, 426 N.E.2d 1118; People v. Staes (1968), 92 Ill. App. 2d 156, 235 N.E.2d 882.) The purpose of this requirement is to prevent the issuance of general warrants. (People v. Wolski (1980), 83 Ill. App. 3d 17, 23, 403 N.E.2d 528, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 339, 101 S. Ct. 1356; People v. Hicks (1977), 49 Ill. App. 3d 421, 429, 364 N.E.2d 440.) Finally, partial invalidity of a search warrant is not fatal to the validity of the whole warrant. People v. McCoy (1985), 135 Ill. App. 3d 1059, 1067, 482 N.E.2d 200.

We would agree with defendant that with such a variance in defendant’s physical characteristics and the description given of him in the complaint, the officers would not have had any cause to approach him. However, the description of defendant in the complaint was received from the same informant who subsequently identified defendant to the police. Even though his description was grossly incorrect, he nonetheless recognized defendant on sight. Additionally, defendant responded to the call of the name “Israel.” We believe that the informant’s on-the-scene identification was sufficient to cure the defect of the misdescription. There could be no doubt as to who was meant by the warrant to be searched.

Defendant’s more substantive argument is that because there was probable cause to search his home does not necessarily mean that there was also probable cause to search his person. He claims that the warrant failed for a lack of any facts establishing probable cause to believe contraband would be found on him. Therefore, he concludes, the search of his person was illegal. We disagree.

Preliminarily, we note, as does the State, that defendant, below, made no allegation of insufficiency of facts in attacking the validity of the warrant to search his person. Instead, defendant, to no avail, claimed no probable cause due to the variance in the physical description. In considering the validity of a search warrant, a reviewing court may consider only information brought to the attention of the magistrate or the trial court. (People v. Garcia (1982), 109 Ill. App. 3d 142, 150, 440 N.E.2d 269, cert. denied (1983), 460 U.S. 1040, 75 L. Ed. 2d 792, 103 S. Ct. 1433; People v. Edwards (1976), 35 Ill. App. 3d 807, 342 N.E.2d 800.) Thus, defendant has not preserved this claimed error for review. That notwithstanding, we will consider the argument.

The existence of probable cause for the issuance of a search warrant is a judicial question to be decided in the first instance by a magistrate before whom the complaint for a search warrant is made. (People v. Fiorito (1960), 19 Ill. 2d 246, 258, 166 N.E.2d 606, cert. denied (1960), 364 U.S. 870, 5 L. Ed. 2d 93, 81 S. Ct. 113.) “Probable cause means simply that the facts and circumstances within the knowledge of the affiant, and of which he had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises or vehicle or on the person to be searched.” (People v. Francisco (1970), 44 Ill. 2d 373, 376, 255 N.E.2d 413, citing Fiorito, 19 Ill. 2d at 257; People v. Gates (1983), 118 Ill. App. 3d 70, 454 N.E.2d 1018.) Absent direct evidence that the items to be seized are in the place to be searched, reasonable inferences may be entertained to create a sufficient nexus. McCoy, 135 Ill. App. 3d 1059.

Defendant cites to People v. Harshbarger (1974), 24 Ill. App. 3d 335, 321 N.E.2d 138, for the proposition that just as probable cause for one’s person does not create probable cause for one’s car, probable cause for one’s home cannot, on its face, imply probable cause for the one who lives there. Defendant misunderstands Harshbarger.

In Harshbarger, the police received information that Robert Leads had a large quantity of marijuana in his possession. The police knew Leads, and they went to his house, asked and received his consent to search his car. Finding nothing of consequence, they then asked and were permitted to check the house. When they entered the house they observed three other young men, one of whom was the defendant Harshbarger. Additionally, the officers noticed what they believed to be a strong smell of burning marijuana, but they found none in the home. Nonetheless, all four men in the house were arrested for possession, taken to the police station and searched. The police had neither a search nor an arrest warrant, they had never seen defendant before, and they had not seen defendant in possession of any marijuana.

As a result of the search of defendant, the police recovered a quantity of amphetamines. Defendant was then asked and refused permission to search his car. The police subsequently obtained a search warrant. The affidavit in support of the complaint stated that the officers had arrested defendant and found him to have in his possession controlled substances and it was believed that there may be more controlled substances in his automobile. The affidavit also stated that the defendant had just left his automobile immediately prior to his arrest.

In reversing the trial court’s denial of the defendant’s motion to suppress, the court stated that the affidavit contained little more than a statement of the affiant’s belief that because controlled substances were found on defendant’s person, there might be more substances in his car. No other background facts were presented to the judge. The judge had not been informed of the circumstances of the defendant’s arrest and consequently he had no opportunity to judge the lawfulness of either his arrest or the search of his person. The court concluded that the warrant should not have been issued because the affidavit did not provide a sufficient basis for finding of probable cause.

Unlike the present case, the warrant in Harshbarger was premised on an initial illegal search and arrest. We also note that the inference that defendant Harshbarger might have drugs in his car was drawn from a fabricated statement and premised on insufficient background facts. Other than the fact that drugs were recovered as a result of the illegal search, there were no particular facts to support that inference. Further, nothing in Harshbarger suggests that had there been sufficient background facts that the inference that drugs could be in the car would not have been reasonable.

Here, the officer gave particular facts, gained from a reliable informant, concerning the details of an illegal drug transaction between himself and defendant. The information provided indicated that “Israel,” who invited the informant inside, lived on the premises to be searched or was in control of the same, and sold the informant the illegal drugs. Thus, there was a connection between defendant, the premises to be searched and the items to be seized. The inference that drugs could be on defendant’s person was properly based on this background information.

In light of the information known to the officers as well as the nature of the offense here charged, we do not find it an unreasonable inference that defendant might carry drugs or the money gained from the sale thereof on his person. Thus, we believe that the facts presented in support of the warrant were sufficient to permit Judge Morrissey to issue the warrant. Further, we conclude that the warrant, which authorized the search of defendant’s person, was sufficiently supported by probable cause.

For the foregoing reasons, we affirm the order of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

      Defendant was tried jointly with two codefendants.

      Pursuant to the search warrant, the officers searched the second-floor apartment at 3354 West Montrose. Additional drugs, money, proof of defendant’s occupancy at that address and a firearm were seized. Additionally, two other people, Steve Strong and Eugene Johnson, were present in the apartment and were arrested.

      In Hampton, since the arrest was made without a warrant, the officer was required to show, at the suppression hearing, the reliability of the informant. Here, the reliability of the informant had previously been demonstrated in the complaint for issuance of the search warrant.


text:
    SUSAN JEANINE McDUNN, Petitioner-Appellant, v. JAMES WILLIAMS et al., Respondents-Appellees.
    First District (3rd Division)
    No. 1 — 90—2166
    Opinion filed September 28, 1990.
    Michael E. Lavelle, of Oak Park, for appellant.
    Richard Flowers and James E. Caldwell, both of Chicago, for appellee James Williams.
   JUSTICE RIZZI

delivered the opinion of the court;

Susan Jeanine McDunn, petitioner-appellant, appeals from the order of the trial court dismissing her election contest petition as untimely filed. On appeal, McDunn contends that the trial court erred as a matter of law in finding that the petition was not timely filed.

As a result of the March 20, 1990, Democratic Party primary election in the City of Chicago for the office of judge of the circuit court of Cook County to fill the vacancy of the Honorable Roger Kiley, Jr., on April 9, 1990, the State Board of Elections declared James H. Williams, respondent-appellee, to be the elected Democratic nominee and certified him as having received 106,229 votes, the highest number of votes cast. The State Board of Elections certified that McDunn received 106,049 votes, the second highest number of votes cast.

Since McDunn received only 180 votes less than Williams, on April 2, 1990, she filed a petition pursuant to the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 22 — 9.1), for discovery recount of 25% of the precincts involved. The Board of Election Commissioners for the City of Chicago conducted a discovery recount.

On April 19, 1990, the tenth day following the canvass of the primary results by the State Board of Elections, McDunn filed a petition for election contest with the circuit court of Cook County, alleging that the evidence acquired from the discovery recount showed that (1) votes were incorrectly counted for respondent; (2) votes were not correctly counted for her; and (3) when the errors are corrected, she is shown to have received at least 1,500 more votes than respondent.

The only issue for review is whether the trial court properly dismissed the petition as untimely filed. We find that the petition was timely filed and therefore improperly dismissed.

The Election Code provides in pertinent part:

“Any candidate whose name appears upon the primary ballot of any political party may contest the election of the candidate or candidates nominated for the office for which he or she was a candidate by his or her political party, upon the face of the returns, by filing with the clerk of the circuit court a petition in writing, setting forth the grounds of contest, which petition shall be verified by the affidavit of the petitioner or other person, and which petition shall be filed within 10 days after the completion of the canvass of the returns by the canvassing board making the final canvass of returns.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 46, par. 7 — 63.

Here, on March 27, 1990, the Board of Election Commissioners for the City of Chicago completed its canvass, tabulated the election results and forwarded the results to the Cook County clerk. The Cook County clerk forwarded the results to the State Board of Elections. On April 9, 1990, the State Board of Elections certified the election totals.

According to the Illinois Supreme Court, it is the function of the State Board of Elections to examine or canvass the tabulated statement of returns before proclaiming the results of the election; the State Board of Elections is the canvassing board which makes the final canvass of the return. (Pullen v. Mulligan (1990), 138 Ill. 2d 21, 45; Ill. Rev. Stat. 1989, ch. 46, par. 7 — 56(6).) Therefore, we find that McDunn’s-petition was timely filed on April 19, 1990, 10 days after the State Board of Elections canvassed the election results.

Accordingly, we reverse the trial court’s order dismissing the petition and remand for further proceedings.

Reversed and remanded.

WHITE and JOHNSON, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRY WHITERS, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—2644
    Opinion filed September 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Kenneth W. Goff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Sherry Whiters was charged with murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2)) and convicted of voluntary manslaughter for the stabbing death of Cecil Barker. Whiters and Barker sporadically lived together for nine months. However, they apparently dated others during this period.

At trial, Shirley Hargrove testified that she had lived with Barker for approximately six to seven years. Specifically, she testified that on February 13, 1987, one day before his death, Barker visited her to discuss that she was seeing another man. During Barker’s visit, an argument ensued and Barker slapped her in the face, hurting her mildly. Subsequently, Barker was arrested and charged with battery.

Whiters testified that she went to the police station the next day, February 14, to help get Barker released. But as she was entering the station, Barker was leaving. They rode a bus together to Whiters’ apartment. While on the bus, Barker allegedly told Whiters what had occurred the night before. When the defense attorney asked what Barker said on the bus, the assistant State’s Attorney objected, and the court sustained the objection on the grounds that it was hearsay. The defense attorney made an offer of proof outside the jury’s presence, and Whiters testified that Barker told her that he “beat that bitch’s [Hargrove’s] ass and that he was hitting her with his fist and kicking her in her stomach and in her pussy.” She also testified that Barker said that he “pistol whipped her [Hargrove] — trying to kick her pussy out.”

It is uncontested that Barker spent that night in Whiters’ apartment and left the morning of February 15. Later, Barker returned to Whiters’ apartment between 2 and 3 p.m. Between 3 and 4 p.m., Whiters’ aunt, Erma Allen, arrived. Sometime after 4 p.m., Barker and Whiters argued and fought intermittently for the next four hours. At one point, Barker approached Whiters and asked her to dance. When Whiters refused, Barker tried to put his arms around her, and she pushed him away. This activity continued for about 20 to 30 minutes. Later, Whiters went to her bedroom to change clothes because she was going to walk Erma Allen home and planned to meet another man.

Subsequently, Barker followed Whiters into her bedroom and they argued about Whiters walking Erma Allen home. During the argument, Barker allegedly forced Whiters onto the bed, held both of her hands over her head with one hand, used his other hand to remove her pants, and forcibly had sexual intercourse with her. However, in Whiters’ post-arrest statement to Assistant State’s Attorney Cuomo, Whiters stated that the intercourse was consensual. While Whiters was in the bedroom, the phone rang. When Whiters attempted to answer the phone, which was located in the kitchen, Barker allegedly pulled the phone off the wall. Then, Barker and Whiters began to argue again, and Barker allegedly pushed Whiters against the washing machine and bent over her as he choked her. Whiters was apparently able to push him off and told him to leave. When Barker reached the front door, he dropped a bag that contained his belongings, approached Whiters in the kitchen, and started arguing with her again. He allegedly grabbed her arm and twisted it behind her back. Whiters then apparently broke loose, and Barker said that “he was going to kick her ass.” Then, Whiters grabbed a knife, pointed it towards Barker, and told him to go home. As Barker moved towards Whiters, she stabbed him in the abdomen. Whiters caught Barker before he fell to the floor, and said, “[0]h, my God, I didn’t mean it.” Then, Whiters ran to call an ambulance. Barker died several hours later. Whiters alleged that she stabbed Barker in self-defense.

Officer Coffman testified that he questioned Whiters at the police station after the stabbing. The officer testified that Whiters said that “Barker pushed her around, grabbed her by the arm and pulled her around the apartment; that [t]hey were in the kitchen; [s]he picked up a kitchen knife, she held it out towards him and he got stabbed.” Additionally, the officer noticed that Whiters’ skin on her arm was discolored and that there were not any other visible marks. At the police station, Whiters also gave Assistant State’s Attorney Cuomo a statement, wherein she stated that the sexual intercourse with Barker was voluntary and that, as Barker came towards her during an argument, she grabbed a knife and stuck it into Barker’s abdomen.

Also at trial, Erma Allen testified that she had been at Whiters’ apartment since about 3 p.m.; that Whiters and Barker argued while she was there; that she saw Barker trying to pull Whiters’ pants off in Whiters’ bedroom; that Barker “snapped” the phone; that when Barker packed his clothes in a bag, he dropped it at the front door, approached Whiters, started arguing with her again, and twisted Whiters’ arm; and that Whiters’ said “she didn’t mean it.”

During the State’s case in chief, Barker’s mother testified that they had a “very good relationship,” and Barker’s stepfather testified that he had an “okay” relationship with Barker. The State continued to question Barker’s stepfather, as stated below:

“Q. Did you ever have any trouble with him [Barker] of an extraordinary nature?
DEFENSE ATTORNEY: Objection.
ASSISTANT STATE’S ATTORNEY: His character has been put into the trial. He can’t testify himself. He’s dead.
THE COURT: Objection overruled based upon issues placed in the trial in opening statements. You may answer, sir.
Q. What kind of son was he? How did you get along with him?
A. We got along okay.
Q. Did you have any extraordinary difficulties with him, anything out of the ordinary?
A. No.
DEFENSE ATTORNEY: Objection.
THE COURT: Overruled.”

When the State cross-examined Hargrove, she testified that Barker was a loving person; and Barker’s employer testified that Barker was a good employee.

In rebuttal, the State’s questions to Barker’s employer were as follows:

“Q. Sir, during that period of two years that Mr. Barker worked for you did you ever see or hear of any complaint whatsoever as to violence on his part?
DEFENSE ATTORNEY: Objection.
THE COURT: Overruled. You may answer.
A. No, none whatsoever.
Q. During that two year period, sir, did you ever hear any complaint about him misusing a weapon that he used in the course of his employment?
DEFENSE ATTORNEY: Objection.
THE COURT: Objection overruled. He may answer.
A. Definitely not.
Q; During that two-year period, sir, did you ever see Mr. Barker drunk?
A. Nope.
Q. During that two-year period, sir, did you ever receive any complaints from anyone that he was intoxicated while working?
A. No, no, I didn’t.
DEFENSE ATTORNEY: Objection.
THE COURT: Overruled.”

The jury found Whiters guilty of voluntary manslaughter. Whiters appeals.

Initially, Whiters argues that the trial court erred in refusing to instruct the jury on involuntary manslaughter because if the jury believed Whiters’ testimony that she grabbed the knife only to fend off Barker, rather than intending to kill him, the jury could have concluded that picking up the knife during a domestic quarrel was reckless within the statutory definition and that her reckless act caused Barker’s death. We agree. In order to warrant an involuntary manslaughter instruction, there must be some evidence of “reckless” conduct. (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3(a); People v. Ford (1987), 163 Ill. App. 3d 497, 504, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249.) Recklessness is defined by section 4 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6) as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.

At issue, then, is whether the record contains any evidence of acts by Whiters which, if believed by the jury, could reasonably be concluded reckless conduct, and those acts which caused Barker’s death. Generally, in a murder trial, it is error to refuse instructions on manslaughter if the record holds any evidence which, if believed, would reduce the crime to a lesser offense. (People v. Gibson (1990), 197 Ill. App. 3d 162, 169, 553 N.E.2d 1128, 1132; People v. Jenkins (1975), 30 Ill. App. 3d 1034, 1037, 333 N.E.2d 497.) The trial court committed reversible error by refusing the involuntary manslaughter instruction when the following evidence existed by Whiters’ testimony as well as Erma Allen’s: that Whiters and Barker were quarreling; that Barker had ripped the telephone off the wall; that Barker physically assaulted Whiters; that Whiters grabbed a kitchen knife and held it at her waist; that Barker approached Whiters; that she screamed, “[0]h my God, I didn’t mean it” after Barker was stabbed and fell to the ground; and that Whiters attempted to summon help immediately. Consequently, if the jury believed Whiters, it could have concluded that she knew or should have known that pointing the knife at Barker in the middle of an obviously heated verbal and physical domestic quarrel created the strong possibility of death or great bodily harm. Whether this evidence establishes recklessness, rather than intent to kill, is ultimately a question of fact for the jury. Accordingly, we conclude that this case must be remanded for a new trial, in which the court below shall instruct the jury on involuntary manslaughter.

Despite the necessity of a new trial, we address other issues because they are likely to come up again upon retrial.

Whiters argues that the trial court improperly instructed the jury because non-IPI instructions were given. We disagree. The trial court did not err in its jury instructions when it determined that the original IPI Criminal 2d No. 26.01 would avoid juror conflict and confusion. (Illinois Pattern Jury Instructions, Criminal, No. 26.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Although IPI Criminal 2d No. 26.01 recommends that separate guilty and not guilty verdict forms be submitted to the jury on both murder and voluntary manslaughter, the trial court is not obligated to give a not guilty verdict form for each charge (People v. Ford (1987), 163 Ill. App. 3d 497, 505, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249), because inconsistent verdicts and juror confusion have resulted from the use of separate forms. (People v. Hoffer (1984), 122 Ill. App. 3d 13, 23-24, 460 N.E.2d 824, aff’d (1985), 106 Ill. 2d 186, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.) Accordingly, this court has held that using the original form of IPI Criminal 2d No. 26.01 is not error. People v. Ford (1987), 163 Ill. App. 3d 497, 505-06, 516 N.E.2d 766, appeal denied (1988), 119 Ill. 2d 563, 522 N.E.2d 1249.

Further, Whiters argues that she was denied a fair trial because the trial court excluded her testimony regarding a conversation she had with Barker on the bus the day before his death. Whiters contends that the testimony was admissible to demonstrate Barker’s state of mind and the effect the conversation had on her state of mind. We disagree. Whiters’ testimony regarding the alleged conversation was not admissible to show Barker’s state of mind because there was no reasonable probability that the testimony was truthful. Extrajudicial statements that demonstrate a declarant’s state of mind are admissible as an exception to the hearsay rule if the declarant is unavailable and there is a reasonable probability the testimony is truthful. (People v. Goodman (1979), 77 Ill. App. 3d 569, 574, 396 N.E.2d 274.) While Barker was unavailable, there was no reasonable probability that Whiters’ testimony was truthful because there was not any evidence or witnesses, other than Whiters, that corroborated that Barker allegedly told her that he “beat that bitch’s [Hargrove’] ass; that he was hitting her with his fist; kicking her in her stomach and in her pussy; and that he pistol whipped her [Hargrove] — trying to kick her pussy out.” Additionally, the alleged conversation was too remote and irrelevant to Whiters’ state of mind because Whiters’ subsequent actions, such as allowing Barker to spend the night at her apartment and allowing him to return the following day, indicated that she did not feel threatened by Barker as a consequence of such statements. Moreover, according to Whiters’ testimony, she did not feel threatened during their prolonged fight on February 15.

“Q. You went back into that kitchen area?
A. Yes.
Q. Why did you go there?
A. I had clothes to hang up, food to turn over, I was cooking, fixing to clean up, washing.
Q. So you were worried about cleaning off the kitchen area and taking care of the clothes?
A. Right.
Q. So would it be fair to say up to that point you weren’t worried about Cecil Barker?
A. I was worried about whether he was doing — you know, because he wasn’t leaving.
Q. When you walked into the kitchen area you weren’t worried about Cecil Barker, were you?
A. I was wondering how I was going to get out.
Q. You weren’t afraid about him killing you, were you?
A. No.
Q. You weren’t afraid about him beating you, were you?
A. I didn’t know what he was going to do.”

Accordingly, the trial court properly excluded Whiters’ testimony about the bus conversation.

Finally, Whiters argues that she was denied a fair trial when testimony regarding Barker’s good character and reputation was admitted into evidence in the State’s case in chief and in rebuttal. We agree. The State may not present evidence of the victim’s character as a quiet and peaceful man unless the defendant has first offered evidence of the victim’s character as a turbulent and quarrelsome man, even where the issue of self-defense has been interposed. (People v. Lester (1981), 102 Ill. App. 3d 761, 768, 430 N.E.2d 358, citing Kelly v. People (1907), 229 Ill. 81, 89, 82 N.E.2d 198, 201.) Although the defense attorney in her opening statement stated that she intended to show Barker’s violent and jealous nature, the opening statement is not evidence. In fact, the jury was instructed that the opening statement is not evidence. Accordingly, the trial court erred in allowing Barker’s mother’s testimony and Barker’s stepfather’s testimony in the State’s case in chief because the defense had not first offered evidence of Barker’s character. Furthermore, the trial court erred in allowing the rebuttal testimony of Barker’s employer. “[EJvidence of character is confined to proof of a person’s general reputation, and it is error to prove character by personal opinion or specific acts.” (People v. Goodwin (1981), 98 Ill. App. 3d 753, 757, 424 N.E.2d 429, citing People v. Willy (1921), 301 Ill. 307, 133 N.E.2d 859.) Consequently, the complained-of testimony was reversible error because Whiters was prejudiced by the improper character evidence that tended to rebut Whiters’ claim of self-defense by the State’s introduction of evidence that Barker had a peaceful character.

For the reasons stated above, the judgment of the circuit court of Cook County is reversed, and the case is remanded for a new trial.

Reversed and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.

       Subsequent to oral argument, Justice Manning recused herself. Justice Buckley read the briefs, listened to the taped oral argument and participated in the decision.


author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH STEVENSON, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 87—3496
    Opinion filed September 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Leeming and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Thomas J. Torcasso, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant, Joseph Stevenson, was charged by indictment with attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)), aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4), and armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A— 2). Following a jury trial, the defendant was convicted of all charges except attempted murder. He was sentenced to 18 years’ imprisonment for armed robbery and an extended term of 10 years for the aggravated battery conviction to be served concurrently. On appeal, defendant contends that: (1) the trial court abused its discretion by allowing the State to introduce evidence of other crimes; (2) the defendant was denied a fair trial; and (3) the trial court abused its discretion in imposing an extended-term sentence. The evidence presented during the trial revealed the following.

On December 30, 1985, at approximately 9:30 p.m., Sabas Gutierrez was walking through his well-lit backyard towards his home in Melrose Park when he was suddenly hit on the head with a baseball bat by an individual who was about two to four feet in front of him and facing him. The assailant took Gutierrez’s gym bag containing athletic equipment and his wallet, containing personal identification papers and $225, and ran away. Later that evening, Mr. Gutierrez’s neighbors recovered the wallet, its contents and a baseball bat near the scene of the crime. These items were subsequently lost by the police and, consequently, not introduced into evidence at defendant’s trial. Mr. Gutierrez was hospitalized for nine days as a result of the sustained attack. In March of 1986, he was shown a photo array by the Melrose Park police department. Out of that array, he selected the photo of defendant, Joseph Stevenson, as his attacker. Several days later, in April of 1986, he attended a lineup and identified defendant, Joseph Stevenson, as his assailant. He later identified the defendant in open court at the trial.

Robert Phillips testified that on October 25, 1985, while walking home from work in the same general area where Gutierrez was attacked, he was accosted by an individual, whom he now knows as Joseph Stevenson. This individual passed him by and then put a hand on Phillips’ shoulder, which caused him to turn around. Facing Phillips, the assailant then proceeded to strike Phillips over the head several times with a club or pipe while on a public sidewalk. Phillips estimates that he was struck 12 to 20 times but that when he began to yell the assailant ran. In March of 1986, Mr. Phillips also selected from a photo array the photograph of defendant, identified him at a lineup and made an in-court identification of defendant at trial. This attack occurred “around the corner of Main Street and 23rd in Melrose Park,” which is in close proximity to the location where the attack on Mr. Gutierrez took place.

On March 20, 1986, in the evening, police officer Vito Scavo was assigned to a surveillance of the area wherein the aforementioned attacks took place. Officer Scavo, dressed in civilian clothes, proceeded down an alley after receiving information that a suspect had been spotted heading toward the alley. Officer Scavo saw the individual on several occasions but lost sight of him as many times. As the officer was walking through the alleyway, the suspect suddenly emerged from a gangway with a bat drawn in a menacing manner. Officer Scavo drew his revolver, identified himself as a police officer by displaying his badge and directed the suspect to drop the bat, which he did. As Officer Scavo began talking to the suspect, the suspect swung on the officer, striking him in the mouth, and then fled. The suspect was arrested by other officers of the Melrose Park police department approximately three blocks away. Officer Sansome retrieved the bat that was previously dropped by the suspect. This bat was subsequently introduced into evidence at defendant’s trial. Officer Scavo went to the scene of the arrest and identified defendant as the person who raised the bat at him in the alley and who struck him in the mouth. He also identified Stevenson in open court at defendant’s trial.

The defendant presented an alibi defense through his father, Joseph Stevenson, Sr., and a 17-year-old brother, Thomas Stevenson, that on the 30th of December 1985, he was visiting his father’s home, was intoxicated or “staggering drunk” and slept the entire night away on the living room couch.

We initially address the defendant’s contention that the trial court abused its discretion by allowing the State to introduce identification testimony of a criminal act (the attack on Phillips) that occurred two months prior to the present incident. Defendant argues that such evidence was irrelevant, prejudicial and was introduced solely to establish the defendant’s propensity to commit the charged offense. We disagree with the defendant’s argument. The admission of evidence of other crimes is within the discretion of the trial court, and its decision will not be reversed absent a clear abuse of that discretion. (People v. Ward (1984), 101 Ill. 2d 443, 456, 463 N.E.2d 696, 702; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 490, 485 N.E.2d 1292.) Although evidence of prior acts may not be introduced to show a defendant’s propensity to commit crime (People v. Richardson (1988), 123 Ill. 2d 322, 339, 528 N.E.2d 612; People v. Bartall (1983), 98 Ill. 2d 294, 309-10, 456 N.E.2d 59), it is well settled that evidence of other crimes is admissible if it has a tendency to prove modus operandi, design, intent, identification, motive or knowledge. People v. Phillips (1989), 127 Ill. 2d 499, 520, 538 N.E.2d 500; Richardson, 123 Ill. 2d at 339; People v. Shum (1987), 117 Ill. 2d 317, 352, 512 N.E.2d 1183.

Our supreme court has frequently held that evidence of other crimes is admissible if the evidence is relevant for any purpose other than to show the defendant’s propensity to commit crime. (Phillips, 127 Ill. 2d at 520; People v. Evans (1988), 125 Ill. 2d 50, 82, 530 N.E.2d 1360; Shum, 117 Ill. 2d at 352.) It is also well established that evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the present action more probable than it would be without such evidence. People v. Lucas (1989), 132 Ill. 2d 399, 427, 548 N.E.2d 1003; People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355; Kimbrough, 138 Ill. App. 3d at 488.

In the present case, evidence of other crimes was relevant and admissible to establish the defendant’s modus operandi and to establish the defendant’s identity as the attacker of Gutierrez, notwithstanding the fact that such evidence may be prejudicial to the defendant. (See Lucas, 132 Ill. 2d at 428.) Robert Phillips testified that on October 25, 1985, while walking home from work after midnight, he was beaten over the head with a club or pipe. He identified the defendant from a photo array, in a lineup and at the defendant’s trial as the person who attacked him. Defendant argues that the Phillips attack did not have the requisite similarity to the incident involving Gutierrez to be properly admitted. Illinois courts have never suggested that other crimes must be identical to the crime charged before the evidence of other crimes is admissible. (Richardson, 123 Ill. 2d at 339; People v. Taylor (1984), 101 Ill. 2d 508, 521, 463 N.E.2d 705.) To the contrary, it has been recognized that “ ‘some dissimilarity will always exist between independent crimes.’ ” Phillips, 127 Ill. 2d at 521, quoting Taylor, 101 Ill. 2d at 521.

In the instant case there is sufficient similarity between the present crime involving Gutierrez and the previous criminal act involving Phillips. Both victims were males of a slight build and were struck on the head with a similar instrument, at night, in the same geographic area and within two months of each other. They were both hit with an over-the-head swing of a weapon while facing the assailant, both attacks were sudden and unexpected and were characterized by silence on the part of defendant.

Defendant has presented supplemental authority since oral argument, citing People v. McMillan (1970), 130 Ill. App. 2d 633, 264 N.E.2d 554. We find McMillan to be distinguishable from the case at bar. The other crimes evidence complained of in that case was that of a codefendant who allegedly had told an undercover agent of his glee in selling narcotics to “teeny hoppers” and had made other incriminating statements regarding the sale of narcotics. The court there held that such evidence was in no way linked to McMillan though the statements admitted into evidence tended to establish the invidious inference that such a connection did exist. (McMillan, 130 Ill. App. 2d at 636.) Our supreme court found that the admission of that evidence deprived the defendant of his constitutional right to a fair trial and reversed and remanded the case for a new trial. The factual matrix in the instant case is very dissimilar to McMillan and was offered to and did prove defendant’s identity and modus operandi. We therefore conclude that the trial court did not abuse its discretion in admitting the evidence of other crimes since such evidence was relevant to establish the defendant’s identity and modus operandi.

The defendant next contends that he was denied a fair trial where the prosecutor during closing arguments misrepresented the evidence presented at trial and encouraged the jury to consider evidence of defendant’s prior criminal act to establish the defendant’s identification as Gutierrez’s attacker. The defendant raises on appeal four remarks made by the prosecutor that he considered as improper. However, defendant failed to object to the alleged improper prosecutorial comments at trial, and he failed to include any specific improper prosecutor’s remarks in his motion for a new trial. The general rule is that both a trial objection and a written post-trial motion are required to preserve alleged trial errors for review. (Lucas, 132 Ill. 2d at 430; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Moreover, a general allegation in a post-trial motion that the prosecutor’s closing argument was improper without stating the specific erroneous statements precludes consideration of that issue for review. (People v. Lann (1990), 194 Ill. App. 3d 623, 628, 551 N.E.2d 276; People v. Doe (1988), 175 Ill. App. 3d 371, 377, 529 N.E.2d 980, 984, appeal denied (1989), 124 Ill. 2d 557; People v. Kirk (1986), 141 Ill. App. 3d 971, 975, 491 N.E.2d 78; People v. Camp (1984), 128 Ill. App. 3d 223, 232, 470 N.E.2d 540.) In the instant case, defendant made the general assertion in his post-trial motion that “[djespite defendant’s objections the assistant State’s Attorney persisted in making prejudicial statements in his closing argument which were designed to prejudice the jury.” Similar to the case at bar, we previously held that a post-trial motion asserting that a prosecutor’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudice of the jury” did not preserve the issue for review since the specific statements complained of were not included in the post-trial motion. Camp, 128 Ill. App. 3d at 232; People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77.

Any error regarding the prosecutor’s closing argument would normally be waived due to the defendant’s failure to object to the alleged error at trial and his failure to set forth the specific prejudicial remarks of the prosecutor in his post-trial motion. The defendant sets forth in his reply brief, with no supporting authority, the contention that the State’s improper comments deprived the defendant of his right to a fair trial, thereby constituting plain error. In order to consider the prosecutor’s comments under our plain error rule (107 Ill. 2d R. 615(a)), the statements must be either “ ‘so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process.’ ” (Phillips, 127 Ill. 2d at 524, quoting People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246; Doe, 175 Ill. App. 3d at 377; People v. Hayes (1988), 173 Ill. App. 3d 1043, 1049, 527 N.E.2d 1342.) However, improper remarks made by a prosecutor during closing argument generally do not constitute reversible error unless the remarks result in substantial prejudice to the accused. (Lucas, 132 Ill. 2d at 437; People v. Caballero (1989), 126 Ill. 2d 248, 273, 533 N.E.2d 1089; Shum, 117 Ill. 2d at 347.) Moreover, the prosecutor is allowed a great deal of latitude during closing arguments, and any statements made by the prosecutor during closing argument that are based upon facts in evidence are not beyond the bounds of proper argument. Shum, 117 Ill. 2d at 341.

The alleged improper statements were:

“Three attacks by Joseph Stevenson, three bats or three clubs. Phillips the 2300 block of Main, Sabas Gutierrez, 148 N. 22nd Avenue, Scavo, the alley about the one hundred plus north block between 21st and 22nd Avenue.
* * *
We feel that the evidence overwhelmingly points in only one direction and that is that Joseph Stevenson was involved with all three crimes that occurred in these areas; involved with Sabas Gutierrez, Robert Phillips and the detective.
* * *
Again, Mr. Phillips, Mr. Gutierrez both beaten, both unarmed, third party equation, Scavo attacked but not with the bat *** why?
* * *
Positive identification, three people, three attacks; the same time of the month, approximately the same hour of the day.”

The remarks of the prosecutor in the case at bar were based upon facts in evidence and were not so inflammatory that they denied the defendant a fair trial. Nor were the statements so flagrant as to threaten the judicial process. Additionally, the evidence was not so closely balanced that the remarks resulted in substantial prejudice to the accused. (See People v. Jones (1987), 161 Ill. App. 3d 688, 695, 515 N.E.2d 166; Lucas, 132 Ill. 2d at 437.) Moreover, the trial court specifically instructed the jury pursuant to Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) that: “Evidence has been received that the defendant has been involved in an offense other than that charged in the indictment. This evidence has been received solely on the issue of defendant’s identification, intent and design.” We, therefore, conclude that the defendant received a fair trial, and the defendant’s assertion of prosecutorial error will not be recognized as plain error.

The defendant finally argues that the trial court erroneously sentenced him to an extended term of 10 years for his aggravated battery conviction since aggravated battery is a related, lesser-class offense to armed robbery. The State argues that the trial court properly sentenced the defendant to an extended term for his aggravated battery conviction since it was the only offense for which the defendant could receive an extendedrterm sentence. The statute pertaining to extended-term sentences provides in relevant part:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a).)

The Illinois Supreme Court has concluded that “the plain language of section 5 — 8—2(a) requires that, when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may only be imposed for the conviction within the most serious class and only if that offense was accompanied by brutal or heinous behavior.” (People v. Jordan (1984), 103 Ill. 2d 192, 206, 469 N.E.2d 569; People v. Evans (1981), 87 Ill. 2d 77, 87, 429 N.E.2d 520.) Moreover, it was the intent of the legislature to impose an extended-term sentence for only the most serious class offense for which an accused is convicted. Jordan, 103 Ill. 2d at 205.

In the present case, defendant was convicted of armed robbery, aggravated battery and armed violence. He was sentenced to 18 years’ imprisonment for armed robbery plus three years mandatory supervision upon his release. He was also sentenced to an extended term of 10 years for the aggravated battery conviction to be served concurrently. Armed robbery is a Class X felony with a sentence of not less than six years and not more than 30 years; whereas, aggravated battery is a Class 3 felony with a sentence of not less than two years and not more than five years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1.) Armed robbery is the most serious class offense. Accordingly, we hold that the trial court abused its discretion in imposing an extended-term sentence for defendant’s aggravated battery conviction since that offense was not within the most serious class of offenses for which the defendant was convicted.

For the reasons stated, we affirm defendant’s convictions and reverse the extended-term sentence imposed on the aggravated battery conviction and reduce it to a term of five years, the maximum sentence of imprisonment authorized by statute for a Class 3 felony. Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1; see Jordan, 103 Ill. 2d at 215; People v. Perruquet (1989), 181 Ill. App. 3d 660, 664, 537 N.E.2d 351; People v. Christy (1989), 188 Ill. App. 3d 330, 333-34, 544 N.E.2d 88; People v. Franzen (1989), 183 Ill. App. 3d 1051, 1058, 540 N.E.2d 548.

Affirmed in part; reversed in part.

BUCKLEY, P.J., and O’CONNOR, J., concur.