author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN USELDING, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 88—3338
    Opinion filed July 19, 1991.

      Law Offices of Terry Sullivan, Ltd., of Rolling Meadows (Nancy J. Nicol, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth McCurry, and David Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Following a bench trial, the defendant, John Uselding, was convicted of aggravated criminal sexual abuse of his granddaughter (USELDING. Rev. Stat. 1985, ch. 38, par. 12 — 16(b)), and sentenced to three years’ conditional discharge. Defendant appeals, contending that he was not proven guilty beyond a reasonable doubt, that the State failed to disclose information which tended to negate his guilt in violation of Illinois rules of discovery, and that he was deprived of his constitutional right to effective assistance of counsel. For the reasons set forth below, we affirm.

Facts

There is no dispute that at the time in question, February 4, 1987, the complainant, C., was 13 years old and in the eighth grade. C., her sister Debbie and brother John had lived with their grandparents for approximately eight years following the divorce of their parents. C. testified that on February 4 she arrived home from school at approximately 3:20 p.m. The defendant, her grandfather, was the only person home. C. testified that when she arrived home, defendant said it was “showtime,” which she understood from past experience to mean that he was going to “fool around” with her. C. went upstairs to change her clothes, and defendant began to follow her. At that point, her grandmother, Bernice Uselding, and Pastor McMahon arrived at the house. C. continued upstairs to change from the dress she had worn to school into pants, while the defendant joined his wife and the pastor in the kitchen. The pastor left after 5 or 10 minutes. At about 3:35, Bernice Uselding also left to pick up Debbie at school and to pick up dinner at a nearby Arby’s.

According to C., after the grandmother left, defendant told C. to go upstairs to the bathroom, which she did. He followed her, removed her clothes, and fondled her for approximately 10 minutes. The defendant then went to the downstairs bathroom, and C. heard the toilet flush a few seconds later. She got dressed and went downstairs to do her homework. The complainant’s brother John arrived home at about 4 p.m., and sometime after that Bernice Uselding and Debbie returned with food for dinner. The family ate Arby’s sandwiches for dinner that evening.

C. further testified that later that evening her school friend Karen Carlson called her. C. told Karen that “it happened again,” and asked Karen to tell a counsellor at school about what was happening, which Karen did on February 6, 1987. C. testified that other such incidents of sexual abuse by the defendant had occurred in the past, and that several months earlier, she had told Karen of one such incident involving the defendant.

On cross-examination, C. admitted that prior to the time of the alleged incident she had had some disagreements with her grandparents about their strict discipline and rules. She further stated that the day after the incident she told her father that she no longer wanted to live with her grandparents and that she wanted to live with her friend Karen. However, she denied that she made these accusations against her grandfather in order to escape the house. On redirect, C. said that after making the allegations against her grandfather, other family members harassed her and called her a liar.

Karen Carlson, C.’s friend, also testified for the prosecution. She said that when she called C. in the evening on February 4, 1987, she noticed something unusual in C.’s voice. When asked what was wrong, C. responded “it happened again.” Karen said that, based on something C. had told her several months earlier, she believed that C.’s remark related to C.’s grandfather. Karen verified C.’s testimony that C. asked her to tell the counsellor at school what was happening, which Karen did two days later. Following Karen’s testimony, the State rested.

The defendant’s wife, Bernice Uselding, testified for the defense as to her recollection of the events of February 4, 1987. Her testimony with respect to times of arrival and departure and destinations that afternoon differed from that of the complainant. According to Bernice Uselding, she and the pastor arrived at the house at 3:10, and C. returned from school at 3:15. The pastor left a few minutes past 3:30, after making a telephone call to inform his 3:30 appointment that he was running late. Mrs. Uselding then told her husband to warm up some soup, put biscuits in the oven and set the table for dinner. She left the house at 3:40 to pick up Debbie and Debbie’s friend Rosalia Affatigato from high school. The round trip to the high school takes seven to eight minutes.

According to Mrs. Uselding, she and Debbie returned home at approximately 3:50, after dropping off Rosalia at her house IV2 blocks from the Uselding house, and making no other stops. When they arrived, C. was doing her homework, John had returned from school and the table had been set. The family sat down to dinner a few minutes before 4 p.m. She further stated that she did not stop at any Ar-by’s before returning home and that they did not have Arby’s sandwiches for dinner. Mrs. Uselding testified that she noticed nothing unusual in C.’s behavior that evening.

Mrs. Uselding also testified as to the events of February 6, 1987. On that day her husband was contacted by the police, and she accompanied him to the station where they were told of the accusations made by C. When Mrs. Uselding saw C. at the station, C. was laughing with her friend Karen. Mrs. Uselding also testified that when she took C. to the hospital for an examination that evening after the defendant’s arrest, C. said “I knew they wouldn’t find anything wrong with me. Just get Grampy to admit it and I can go live by Karen.” Several weeks after the incident, C. ran away to Karen’s house after a disagreement with Mrs. Uselding about C. going to a party. C. told her grandmother that she no longer wanted to stay in the house. Mrs. Uselding had her admitted to the hospital.

On cross-examination, Bernice Uselding testified that on the day in question her grandson John was due home from school at 3:40. John attended special education classes, and it was necessary that someone be home when the school bus dropped him off. Mrs. Uselding said that she was usually the one who would meet him when the bus arrived. She could not explain why her husband did not go to pick up Debbie from high school that day, which would have permitted her to be home when John arrived.

The next witness was C.’s sister, Debbie. She testified that Mrs. Uselding picked up Rosalia and her at 3:46, and after dropping Rosalia off, she and her grandmother went directly home and arrived there at 3:51. Debbie said that she and her sister had a close relationship in the past, but that it had deteriorated since the occurrence of the events which led to defendant’s arrest. Debbie also testified that in December 1986, C. had said she wanted to live with Karen’s family because they were not as strict as her grandparents. According to Debbie, C. had complained of her grandparent’s rules on many occasions.

On cross-examination Debbie testified as to a conversation she had with C. the night of February 4, 1987. When the girls were in bed in the room they shared, C. told Debbie that “it happened again.” Debbie interpreted this to refer to what C. had told her in November 1986, that their grandfather had been touching C. According to Debbie, she told no one about C.’s November disclosure because of her promised silence to her sister.

C.’s aunt and uncle, Louise and Richard Wacker, the defendant’s daughter and son-in-law, also testified for the defense. They both said that prior to February 4, 1987, C. had told them that she wanted to live with Karen rather than with her grandparents, who, C. felt, were too strict. Louise Wacker also testified that she had been C.’s Girl Scout leader, and that C. had a reputation among the troop members as a liar and a cheat.

Pastor McMahon testified that he had been at the Uselding’s house on the afternoon of February 4, 1987, for a total of about five minutes. He could not remember the exact time he and Mrs. Uselding had arrived. He surmised that he arrived after 3:10, since he remembered making a telephone call to explain that he would be late for his 3:30 appointment, which, considering the short duration of his stay at the Uselding house, would have not been necessary had they arrived by or before 3:10.

John Uselding, the defendant, testified on his own behalf. He acknowledged that his wife had assisted him in reconstructing the events of that day, and his testimony as to the times the various parties arrived and left the Uselding home agreed with her earlier testimony. He further testified as to what had occurred while he and C. were alone in the house. He said that he prepared the dinner and set the table as his wife had instructed him to do. When he heard footsteps upstairs, he took two steps up the stairs and saw C. come out of the bathroom naked. According to the defendant, “I took a swipe at her bare butt and just nipped it with the end of my three fingers, and I told her to get in there and get some clothes on.” The defendant specifically denied touching C. in the way she had testified.

In addition, the defense presented three character witnesses for the defendant, one of whom was Maria Affatigato, Rosalia’s mother.

The State presented three witnesses in rebuttal. Two character witnesses, former teachers of C., testified that they had never heard any negative comments about C.’s character. Judy Carlson, Karen’s mother, testified that at the police station the evening of February 6, Bernice Uselding asked C. why she had not told her what had happened, to which C. replied “you wouldn’t have believed me.” According to Mrs. Carlson, Bernice Uselding responded, “[W]ell, I want him out. I want him out of the house. They can take him from the police station and they can take him to the hospital, right to the hospital. I want him fixed. He can’t come into the house until he’s fixed.”

Following a bench trial, the defendant was convicted of aggravated criminal sexual abuse of his granddaughter. Defendant filed a post-trial motion seeking a new trial or, alternatively, a judgment notwithstanding the verdict, alleging, inter alia, the same grounds he argues on appeal here. With that motion, he submitted the affidavit of Rosalia Affatigato in which she stated that two men from the State’s Attorney’s office had come to her home to interview her concerning the events of February 4, 1987, and outlining the substance of what she told them. Defendant’s post-trial motion was denied, and he was sentenced to three years’ conditional discharge. From the conviction and the denial of his post-trial motion, defendant appeals.

Opinion

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt because his conviction was based solely on the testimony of C., which was neither clear and convincing nor corroborated by other evidence. He also argues that the contradiction between C.’s testimony that she was alone with the defendant for approximately 25 minutes and that of the defendant and his wife that Bernice Uselding was gone for less than 10 minutes raises a reasonable doubt as to guilt. The State counters that, when all testimony is viewed in the light most favorable to the prosecution, there was sufficient evidence to find guilt beyond a reasonable doubt.

As a reviewing court presented with a challenge to the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) It is not our role to ask whether we believe that the evidence presented at trial established guilt beyond a reasonable doubt. “In a bench trial, it is the province of the trial court to determine the credibility of the witnesses and weigh the evidence.” (In re C.P. (1986), 141 Ill. App. 3d 1018, 1023, 491 N.E.2d 44, 48.) If, after giving due consideration to the fact that the trial court saw and heard the witnesses and after viewing the evidence in the light most favorable to the prosecution, we find the evidence to be insufficient to remove all reasonable doubt as to defendant’s guilt, only then may the conviction be reversed. (People v. Young, 128 Ill. 2d at 48, 538 N.E.2d at 472.) Based upon our review of the record before us, we are convinced that there exists sufficient evidence by which a rational fact finder could have found the defendant guilty beyond a reasonable doubt.

The evidence showed that C. and the defendant were alone in the house while Bernice Uselding went to pick up Debbie and Rosalia from high school. Both sides went to great lengths to reconstruct the exact time each person arrived or left the Uselding home, as a key question in this case was whether the defendant and C. were alone for a sufficient period of time for the alleged abuse to occur. There was conflicting testimony on this point. C. testified that she was alone with the defendant from approximately 3:35 until 4. The defendant and his wife both testified that C. and the defendant were alone only from 3:40 until 3:51. The defense also directs our attention to the discrepancy in testimony as to what the family ate for dinner on the night in question. C. testified that the family ate Arby’s sandwiches, while all other family members said they ate soup and biscuits. The defendant contends that the question of the dinner menu is significant since C. testified that her grandmother was out of the house for 25 minutes because the grandmother went to Arby’s before returning home. The defense, on the other hand, contended that without stopping at Arby’s, Bernice Uselding was gone for less than 10 minutes.

Where evidence is merely conflicting, we will not substitute our judgment for that of the trier of fact. (People v. Puente (1984), 125 Ill. App. 3d 152, 157, 465 N.E.2d 682, 687.) Resolution of this discrepancy necessarily turned on the credibility of the witnesses, and the trial court was free to believe either the testimony of C. or that of the defendant and his wife. While the trial court stated that it did not feel that any of the defense witnesses deliberately lied under oath, its finding of guilt indicates that it gave credence to C.’s testimony, at least insofar as it showed that C. and the defendant were alone for a sufficient period of time. Moreover, we note that the trial judge, in ruling on defendant’s post-trial motion, expressly stated that he had considered all testimony regarding time to be approximations, and that he found there to have been sufficient time for the abuse to have occurred.

While C.’s testimony as to the actual abuse was contradicted by the defendant, who denied that any such abuse occurred, this does not by itself raise reasonable doubt as to guilt. Our supreme court has stated that “[t]he testimony of a single credible witness is sufficient to convict notwithstanding contradictory testimony by the accused, and the trial judge’s determination will not be lightly set aside.” (People v. Sullivan (1970), 46 Ill. 2d 399, 401, 263 N.E.2d 38, 39.) Although there exist discrepancies in the testimony, they do not rise to a level sufficient to justify the substitution of our judgment for that of the trial court. C.’s story was unwavering, and she maintained it even in the face of hostility from members of her own family. She did not contradict herself on cross-examination. In addition, her testimony as to prior and contemporaneous complaints of abuse was corroborated by her sister and friend. Also, the testimony of Pastor McMahon as to the times he arrived and left the Uselding house tended to lend credibility to C.’s recollection of events, while also detracting from the credibility of the defense witnesses. We also note that the credibility of the defendant and his wife may have been adversely affected by the defendant’s admission that together he and his wife reconstructed their accounts of February 4, 1987. Further, Bernice Uselding’s statement at the police station following defendant’s arrest that she wanted him out of the house until he was “fixed” would also seem to indicate that, notwithstanding her testimony that on the day in question she was out of the house for only 10 minutes, she was nevertheless willing to believe her husband’s guilt for the acts complained of that afternoon.

The defendant, however, urges that his conviction may be upheld only if there is corroboration of the testimony of the complaining witness or if the complainant’s testimony is otherwise clear and convincing. We disagree that the clear and convincing standard is the proper one to be utilized upon review. The standard which defendant proposes has been characterized as “a reflection of archaic and sexist views” and a “sexist anachronism” which, as such, should be abandoned. (People v. Roy (1990), 201 Ill. App. 3d 166, 185, 558 N.E.2d 1208, 1221.) Several recent cases have held that, in cases of sexual assault, as in all other criminal cases, the State need only prove the defendant guilty beyond a reasonable doubt. There is no additional requirement that when a sex offense is charged, the State must meet any other burden. See People v. Hart (1991), 214 Ill. App. 3d 512, 520 (and cases cited therein).

However, were clear and convincing the correct standard, we believe it has been met in this case. Although defendant contends that C.’s testimony was not clear and convincing because it was contradicted by other testimony, testimony of the complaining witness need not be uncontradicted in order to be considered clear and convincing. (People v. Priola (1990), 203 Ill. App. 3d 401, 412-13, 561 N.E.2d 82, 91.) Testimony may be considered clear and convincing if it is consistent, unwavering, and unshaken on cross-examination. (People v. Deal (1989), 185 Ill. App. 3d 332, 337, 541 N.E.2d 695, 698.) Contradictions or discrepancies which do exist may affect the credibility of the complainant, but do not preclude the testimony from being considered clear and convincing. (Priola, 203 Ill. App. 3d at 412-13, 561 N.E.2d at 91.) As discussed above, C.’s testimony on direct and cross-examination was consistent and unwavering. The only contradictions to C.’s testimony came from the witnesses for the defendant. Their testimony, however, does not affect the clear and convincing nature of her testimony.

Defendant further asserts that there was no corroboration of C.’s testimony, as there were no eyewitness accounts, no confession by defendant and no medical evidence. We agree with the defendant that the type of corroborative evidence he suggests is lacking here. In a case such as this, there rarely are eyewitnesses. The same holds true for a confession by the defendant. Lack of medical evidence is also not surprising in a case such as this, where the charge against the defendant was that he fondled the victim. Defendant, however, in listing the type of corroboration which is absent here, omits corroboration by prompt complaint by the victim, which is present. (People v. Thompson (1990), 198 Ill. App. 3d 417, 419, 555 N.E.2d 1122, 1124.) C.’s sister Debbie and her friend Karen both testified that on February 4, 1987, C. told them that “it happened again,” which both girls took to mean something involving the defendant. Both Debbie and Karen also testified as to C.’s complaint in November, which although not directly corroborative of the incident in question, does tend to corroborate C.’s veracity. We note that although Karen was a witness for the prosecution, Debbie was called by the defense, and her testimony nevertheless corroborated C.’s testimony. Karen also testified that C. asked her to tell a counsellor at school, which Karen did two days later. Further, Pastor McMahon’s testimony that he and Bernice Uselding arrived at the Uselding house closer to 3:30, as C. contended, than to 3:10, as the defendant and his wife testified, also lends some additional credence to C.’s testimony. However, under the clear and convincing standard which defendant proposes, it is only when the complaining witness’ testimony falls short of being clear and convincing that any corroboration at all is required. (See People v. Findlay (1988), 177 Ill. App. 3d 903, 532 N.E.2d 1035.) Where, as here, we have held that the complaining witness’ testimony was clear and convincing, we need not be further concerned with the sufficiency of the corroborative evidence presented in the record even if we held the clear and convincing standard were applicable.

Defendant also contends that he is entitled to a new trial due to the State’s failure to disclose information which tended to negate his guilt. He alleges that by its actions, the State has violated the rule of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, as well as Illinois Supreme Court Rules 412(c) and 415 (107 Ill. 2d Rules 412(c), 415). He bases this assertion on the fact that he learned, after the trial, that two assistant State’s Attorneys had interviewed Rosalia on July 28, 1987, concerning the events of February 4, 1987. According to Rosalia’s affidavit which was submitted with defendant’s motion for a new trial, she told them that Bernice Uselding picked up Debbie and Rosalia from school at 3:41. Mrs. Uselding drove directly to Rosalia’s house, a trip of approximately four minutes. Rosalia also said that they did not stop at Arby’s or anywhere else on the way. Defendant argues that Rosalia’s statement corroborated the testimony of the defendant, his wife, and Debbie, and also impeached the testimony of C. As a result, he urges that it would tend to negate his guilt and therefore the State’s failure to disclose the information requires the granting of a new trial. The State, however, argues that defense counsel knew from the beginning of Rosalia and what she could testify to at trial and, furthermore, that her testimony would have had no effect on the outcome of the case. We find the State’s position to be more persuasive.

In Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The standard under Illinois Supreme Court Rules 412(c) and 415 (107 Ill. 2d Rules 412(c), 415) is coextensive with that set forth in Brady under considerations of Federal due process. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 255, 564 N.E.2d 850, 866; People v. Lann (1990), 194 Ill. App. 3d 623, 632, 551 N.E.2d 276, 282.) The crucial question under both the Federal constitution and under Illinois Supreme Court Rules 412(c) and 415 is whether the undisclosed information was material in a constitutional sense. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985), 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383. Accord Gutirrez, 205 Ill. App. 3d 231, 564 N.E.2d 850; Lann, 194 Ill. App. 3d 623, 551 N.E.2d 276.) The defendant has failed to demonstrate any probability that had the State revealed the fact and substance of the interview with Rosalia, the result of the proceeding would have been different.

The information in Rosalia’s affidavit was at best cumulative of other testimony by defense witnesses. Both Bernice Uselding and Debbie testified that Mrs. Uselding picked up Debbie and Rosalia from school that afternoon. They also testified that they drove directly from the school to Rosalia’s house, making no stops at Arby’s or anywhere else on the way. Furthermore, Rosalia’s statement conflicted detrimentally in certain respects with the testimony of Bernice Uselding and Debbie. Rosalia stated that Mrs. Uselding picked them up at 3:41, while Debbie stated that they were picked up at 3:46. Also, in order to pick up the girls at 3:41 as Rosalia stated, Mrs. Uselding would have had to leave the Uselding house earlier than 3:40 as she testified she did, since the round trip to the school takes seven or eight minutes. In this respect Rosalia’s testimony would be more consistent with C.’s testimony that her grandmother left the house at 3:35 that afternoon. Moreover, contrary to defendant’s assertion, Rosalia’s statement does not truly discredit that portion of C.’s testimony that the family had Arby’s sandwiches for dinner. While Rosalia said that Mrs. Uselding did not stop at Arby’s before dropping Rosalia off, she had no way of knowing whether Mrs. Uselding and Debbie went to Arby’s after dropping Rosalia at her house.

Our finding that defendant suffered no prejudice by the State’s failure to inform defense counsel of their interview with Rosalia is further supported by remarks made by the trial judge in considering this contention when it was raised in defendant’s post-trial motion. In denying the motion, the trial judge explicitly denied that his determination would have been impacted had Rosalia testified to the contents of her affidavit, stating “I don’t think my decision in any way had anything to do — I frankly believe that Debbie was picked up by the grandmother and that the Affatigato girl was there. I never questioned that. *** But I felt in my rulings that there was sufficient time for the allegations to have occurred because all of the times testified to were approximations and it certainly left enough time.”

Defendant’s final ground of appeal concerns the effectiveness of representation at trial. Here he again contends that had the testimony of Rosalia been presented at trial it would have corroborated other defense witnesses and contradicted C.’s testimony, and that his counsel’s failure to interview or call Rosalia as a witness deprived him of his constitutional right to effective assistance of counsel. The State maintains that counsel’s failure to call Rosalia as a witness was a tactical decision, and further that the defendant suffered no prejudice as a result.

A defendant has been deprived of effective assistance of counsel if his counsel’s representation fell below an objective standard of reasonableness and if the defendant suffered actual prejudice as a result. (People v. Nitz (1991), 143 Ill. 2d 82, 108-09, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) In reviewing counsel’s conduct, great deference must be given to trial counsel’s conduct, and we will not review matters involving the exercise of judgment, discretion, or trial tactics. (People v. Mitch ell (1984), 105 Ill. 2d 1, 12, 473 N.E.2d 1270, 1275.) Here there can be little question that defense counsel knew of Rosalia’s existence as a potential witness. Two defense witnesses, Bernice Uselding and Debbie, testified that Rosalia had been with them during a portion of the times here in issue. However, as discussed above, Rosalia’s testimony would have been largely cumulative and would also have conflicted detrimentally to a certain degree with that of other defense witnesses. Failure to call her, therefore, was a matter of counsel’s judgment as to trial tactics, and we will not second-guess that judgment. We also note that, for the same reasons previously discussed in regard to the contentions arising from the State’s failure to disclose its interview with Rosalia, defendant suffered no prejudice as a result of his counsel’s failure to call Rosalia as a witness. Accordingly, we conclude that this claim must also fail.

Finally, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we grant the People’s request that defendant be assessed $50 as costs for the People for defending this appeal and $25 for oral argument and incorporate it as part of the judgment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

MURRAY and McNULTY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    GERIK RAGLIN, a Minor, by Jasper Raglin, et al., his Parents and Next Friends, et al., Plaintiffs-Appellants, v. HMO ILLINOIS, INC., et al., Defendants-Appellees (Pronger-Smith Medical Association et al., Defendants).
    First District (5th Division)
    No. 1 — 90—0806
    Opinion filed July 19, 1991.

      Hayes & Power, of Chicago (Larry R. Rogers, of counsel), for appellants.
    G. Christian Kronberg, of Kirkland & Ellis, of Chicago, for appellees.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, Gerik Raglin, Jasper Raglin, and Gwendolyn Raglin, appeal from the entry of summary judgment in favor of defendants, HMO Illinois, Inc., Health Assurance Plan, Blue Cross & Blue Shield Association, and Health Care Service Corporation. We consider whether this court has jurisdiction over plaintiffs’ appeal under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) when the order appealed from did not include a finding that there was no just reason to delay enforcement or appeal. For the following reasons, we dismiss the appeal for lack of jurisdiction.

Plaintiffs filed a medical malpractice complaint, as amended, against two groups of defendants: (1) the doctors who provided medical care, Pronger-Smith Medical Association, Alfonso Mejia, M.D., Mario Irigoyen, M.D., and Jose I. Manglano, M.D. (defendant doctors); and (2) the health care maintenance organization plaintiffs belonged to and its related entities, HMO Illinois, Inc., Health Assurance Plan, Blue Cross & Blue Shield Association, and Health Care Service Corporation (defendant HMOs). All of the defendants filed appearances and answered the complaint.

The defendant HMOs moved for summary judgment which was granted on February 22, 1990. Although the defendant doctors were still parties in the action, plaintiffs did not move for a Rule 304(a) finding and none was entered. Plaintiffs filed a timely notice of appeal from the February 22 order.

Opinion

Although the parties did not raise the issue, this court must consider whether it has jurisdiction over plaintiffs’ appeal. (Servio v. Paul Roberts Auto Sales, Inc. (1991), 211 Ill. App. 3d 751, 570 N.E.2d 662.) Plaintiffs assert in their appellate brief that jurisdiction is proper under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Rule 304(a) provides that in cases involving multiple parties or claims, an appeal may be taken from a final judgment which disposes of fewer than all of the parties or claims if the judge makes an express finding that there is no just reason to delay enforcement or appeal. Without a Rule 304(a) finding, a final judgment that disposes of fewer than all of the parties or claims is not enforceable or appeal-able until a judgment is entered disposing of all of the parties and claims. (134 Ill. 2d R. 304(a).) An order granting summary judgment in favor of fewer than all of the parties in a case requires a Rule 304(a) finding before it can be appealed. (See Diggs v. Suburban Medical Center (1989), 191 Ill. App. 3d 828, 548 N.E.2d 373.) An appeal from an order without a required Rule 304(a) finding must be dismissed for lack of jurisdiction. Saltzman Printers, Inc. v. Gunthorp Warren Printing Co. (1989), 192 Ill. App. 3d 130, 548 N.E.2d 585.

In this case, plaintiffs appealed from an order entered February 22, 1990, granting the defendant HMOs summary judgment in their favor. At that time, the defendant doctors were still parties in the action. The February 22 order disposed of fewer than all of the parties in the case and, as a result, a Rule 304(a) finding was necessary before plaintiffs could appeal from that order. Because a Rule 304(a) finding was not made, the February 22 order was not yet appealable and this court does not have jurisdiction over plaintiffs’ appeal.

Appeal dismissed.

GORDON and McNULTY, JJ., concur.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARY D. COLES, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 89—1122
    Opinion filed July 19, 1991.

      Carl M. Walsh and David Eckberg, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and David S. Meyerson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

After a stipulated bench trial, the defendant, Gary Coles, was convicted of delivery of a controlled substance and possession of cannabis with intent to deliver; he was sentenced to six years on the delivery charge and two years on the possession charge, the sentences to be served concurrently.

The defendant first maintains that reversible error occurred when the judge denied the defendant’s motion to suppress his statement and his motion to suppress evidence seized from his residence.

At the hearing on his motions to suppress, the defendant testified that on Friday, July 17, 1987, at approximately 3 p.m. he was arrested by Wilmette police officer John Provost and taken to the Wilmette police department. He was advised of his rights and asked Provost for an attorney and to make a phone call. Provost responded, “You haven’t been booked yet, and you cannot make a call until you have been booked and we can keep you here for hours.” The defendant signed a waiver of Miranda rights, but put “No” next to the question, “Having these rights in mind, do you wish to talk to me/ us?” Provost continued to talk to the defendant. He said the defendant was going to be incarcerated for a long time and if the defendant did not talk to him and submit to an apartment search, he would be put in jail that evening and would not be allowed to leave custody. The defendant was also told he would not get a bond hearing until the following Monday because the courts were closed over the weekend and that the bond set would be very high. Provost continued talking for approximately 1 hour and 45 minutes.

The defendant testified that “at that point, after being told that I would be going to Cook County Jail for the weekend, I told Officer Provost anything he wanted to hear to get out of there. Officer Provost agreed to get me a very inexpensive bail to get me out of there.” Provost told the defendant that if he did not sign a consent-to-search form, a search warrant would be obtained anyway, and the authorities would go to his apartment, which was located at 600 South Dearborn in Chicago, arrest anyone there and tear the apartment apart. Provost asked the defendant if he had ever seen what happens to an apartment or what a home could look like after it has been searched by the police. The defendant again asked Provost if he could speak with his attorney, and Provost said he could not until he signed the consent to search his apartment. Provost also said that once the search was conducted, the defendant could make a phone call. The defendant then signed the consent-to-search form.

On cross-examination, the defendant said he knew he was under arrest for delivery of almost 29 grams of cocaine. After he had been arrested, an agent of the Metropolitan Enforcement Group (MEG) named Martinez came up to the police car, “smacked” the defendant and said, “You have met MEG.” While he was in a room at the Wilmette police station, officers were coming in and out of the room. He admitted that he told Provost that he would speak with Provost because he was from the Wilmette police and he knew Provost would not treat him like the officers from the MEG unit. The defendant said he did not feel comfortable talking with Provost, but he did not have much of a choice at that point after having been denied a phone call or an attorney. He told another police officer where he lived and whether he was a registered voter. He further testified that he was not surprised when told that he could be held over the weekend in Cook County jail and that bond could be rather high.

Officer Provost testified that he arrested the defendant at 525 Pinecrest in Wilmette at approximately 1:55 p.m. Present at the scene were other officers from the Wilmette police department and officers from MEG. MEG Agent Martinez read the defendant his Miranda rights from a preprinted card. The defendant was transported to the Wilmette police department in handcuffs. Provost next saw the defendant shortly after 2 p.m. in the Wilmette police station booking room. Provost entered the room and uncuffed the defendant. Provost, who was alone in the room "with the defendant, read the defendant his Miranda rights from a poster on the wall. The defendant asked Provost what agency he belonged to, and Provost answered that he was with the Wilmette police department. The defendant then stated, “That’s fine. I’ll talk to you but I’m not going to talk to the MEG guys. I know they will try to fuck me over, and you won’t.” The defendant volunteered to cooperate and do anything to assist Provost, but repeated that he would not speak with the MEG people.

MEG Agent Selecki entered the room and told the defendant that he needed to get some information from him to fill out a personal history form. The defendant asked Selecki who he was, and Selecki answered that he was a MEG agent. The defendant said that he did not want to speak to any MEG agents. Selecki read the defendant his Miranda rights from a preprinted form. At approximately 2:10 p.m., the defendant signed a waiver of Miranda rights form but put “No” after the question that asked whether he wished to talk to them. Selecki told the defendant that he needed to fill out the form even if the defendant was unwilling to speak with him. Among other things, Selecki asked the defendant his name, address, phone number and acquaintances. The defendant also told Selecki the name of his attorney, but never requested permission to call him.

Provost then booked the defendant for the Wilmette police department and for MEG by taking fingerprints and photographs. The booking procedure took approximately one half hour. Selecki left the room between 2:30 to 3 p.m. The defendant again stated that he wanted to talk to the Wilmette police department, but not MEG. Provost told the defendant that he was not required to talk to Provost or MEG. The defendant related information to Provost about how he could be helpful to the Wilmette police department in return for reduction of his charges.

Provost informed the defendant that he had other information regarding the defendant, his narcotics ventures, and his apartment. He also told the defendant that it was possible that the authorities would be seeking to go to his apartment. He told the defendant that the information was derived from a confidential informant, who told the authorities that he had been in the defendant’s apartment and had seen quantities of cocaine and cannabis there. The informant, according to Provost, also informed authorities that in phone conversations on July 17 the defendant indicated that he had large quantities of drugs and offered to bring more than what he had actually brought. Provost told the defendant that the authorities were going to contact the State’s Attorney’s office, make an application to search his apartment, and that he and fellow officers would go down to his apartment. The defendant told Provost that he wished that he would not do that because there was an employee working in his apartment and he did not want the police to break down the door and rip the place up. The defendant also stated his concern for his furniture and that he did not want his employee to get arrested.

At approximately 3 p.m., Provost asked the defendant to sign a permission-to-search form. The defendant asked Provost when he could leave the station, and Provost responded that nothing could occur until the investigation was complete and that he could not leave if they were in the process of getting a search warrant for his apartment; that might take several hours. Provost also told the defendant that, since it was past 3 p.m., they would have to get a bond judge when they were finished with the investigation. At that point, the defendant signed the permission-to-search form. He later accompanied the police to the apartment and was present during the search.

On cross-examination Provost testified that, before the defendant signed the consent-to-search form, Provost told the defendant that the investigation could take hours. Provost testified that the form the defendant signed was a “MEG” form because the form usually used by the Wilmette police was being redrafted at that time; no Wilmette police forms were available.

In his ruling denying the motions to suppress, the judge said that it was “a question of credibility,” that the court had had an opportunity “both to hear the evidence and to observe the demeanor” of both the defendant and the police officers. He concluded that the State had “by clear and convincing evidence” shown that it was a “totally voluntary type of cooperation on the part of the defendant and that any problem that he had in discussing the matter with MEG did not exist in discussing the matter with the Wilmette police department.”

Contrary to the defendant’s argument, we agree with the judge’s determination that this case depends on the credibility of the witnesses. That being so, the question is reduced to this: Accepting the testimony of Officer Provost as true, was the defendant’s subsequent statement to Provost inadmissible, as a matter of law, as the defendant contends?

The defendant’s entire argument is based on the supposition that once he indicated on the waiver-of-rights form that he did not wish to answer any questions, all questioning by all law enforcement officials was barred, as a matter of law. We do not accept that supposition. In Edwards v. Arizona (1981), 451 U.S. 477, 486 n.9, 68 L. Ed. 2d 378, 387 n.9, 101 S. Ct. 1880, 1885 n.9, the Supreme Court held as follows:

“If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be ‘interrogation.’ In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.” (Emphasis added.)

Officer Provost’s testimony established the “necessary fact” that the defendant “reopened the dialogue with the authorities.” By his own admission, both before and after the defendant refused to talk to the MEG agent, he told Provost he would talk to him. In fact, he even volunteered to cooperate with Provost. After the MEG agent left the room, the defendant again stated that he wished to speak with the Wilmette police department and not MEG. Subsequently, he, to use his own words, “told Officer Provost anything he wanted to hear.” Under the circumstances, we find no error in the judge’s denial of the motion to suppress the defendant’s oral statement.

The defendant has cited the additional authority of Minnick v. Mississippi (1990), 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486, which we find to be inapposite. In Minnick, the defendant was arrested by California police for murders committed in Mississippi. The next day he answered some questions asked by two FBI agents. He refused to answer all their questions but told them to return two days later after he had talked to his attorney. He said he would have a more complete statement then with his lawyer present. After the defendant conferred with his appointed lawyer, who told him to answer no questions and to sign nothing, he was questioned by a deputy sheriff from Mississippi, who advised him of his rights. The defendant refused to sign a rights waiver form but told the deputy about the facts of the murders. The Mississippi Supreme Court upheld admission of the deputy’s testimony reasoning that the requirements of Edwards had been satisfied because the subsequent questioning initiated by the authorities occurred after the defendant had consulted with an attorney. The United States Supreme Court disagreed, stating, “We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.” (Emphasis added.) (498 U.S. at 154, 112 L. Ed. 2d at 498, 111 S. Ct. at 491.) However, the court added this decisive observation:

“Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversations or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible.” (Emphasis added.) 498 U.S. at 156, 112 L. Ed. 2d at 499, 111 S. Ct. at 492.

The overriding difference between the case before us and Minnick (and Edwards) is that the resumption of the dialogue between the defendant and the police was initiated by the defendant, not the police. Both Edwards and Minnick centered on the right to counsel, but their reasoning is applicable to the right to remain silent.

Turning now to the question of his signing of the consent-to-search form, it is appropriate to identify the precise issue as posited by the defendant. In both this court and the trial court his argument is and was that he gave his consent only because of deception on the part of Provost. In his motion to suppress the evidence seized from his residence, he expressly maintained the following:

“2. Said officers thereafter deliberately lied to and deceived defendant by telling him they would be able to obtain a search warrant for his apartment in Chicago and would break in said apartment, search and destroy items, and arrest anyone there. At said time said officers well knew they had no probable cause for a search warrant.
3. Based upon said deceit, defendant signed a consent to search. Defendant’s action on signing said consent was involuntary and based upon the police officer’s deception.”

We could sustain the judge’s ruling on the ground that the defendant has failed to establish any “deception,” even if we accepted the defendant’s testimony. He testified that Provost said he would get a search warrant; that is not a misrepresentation of an existing fact; nor is the alleged statement of Provost that the police would tear up his apartment. Further, the evidence does not establish that the police could not have obtained a search warrant and there is no showing that the police knew that “they had no probable cause for a search warrant.” Lest there be any doubt in the matter, however, we find that the evidence establishes that the signing of the consent form was but evidence of the overall conduct of the defendant indicating a desire to cooperate with the police in the hope of receiving a low bond, an earlier release and mitigation of the charges against him. Consequently, we find no error in the judge’s determination that the defendant voluntarily consented to the search of his apartment.

The defendant’s other contention is that the State’s evidence violated the due process clause for reasons we will discuss after a recitation of the evidence.

Before July 17, Provost met with a confidential informant, Park Chambers, who told Provost he could arrange a delivery of an ounce of cocaine for $1,400. He and MEG agents interviewed Chambers and made arrangements for the delivery of cocaine on July 17.

Pursuant to those arrangements, on July 17, Provost and MEG Agents Martinez and Livas were present at 525 Pinecrest in Wilmette. It was a single-family residence owned by Chambers. At approximately 1:30 p.m., Martinez entered the residence with Chambers and, after searching the residence to make sure no one else was present, “secured it.” Martinez had fourteen $100 bills on his person. The defendant arrived on a motorcycle between 1:52 and 1:55 p.m. and entered the residence. The defendant asked Martinez and Chambers, who were standing together in the living room, whether they had the money. Martinez said yes and pulled the $1,400 from his pocket and tried to hand it to the defendant. The defendant pointed to Chambers, and Martinez handed the money to Chambers, who in turn handed the money to the defendant. At that point, the defendant removed a white envelope from his pocket which contained a ziplock baggy holding approximately 27.34 grams of cocaine. The defendant put the cocaine in the hands of Chambers, who in turn put it in the hands of Martinez. Chambers and the defendant went into the kitchen while Martinez inspected the envelope.

At approximately 1:56 p.m., Martinez signaled to the police outside by means of an electronic device. At that point, Provost and Livas entered the dwelling and went into the kitchen area, where Livas patted down the defendant. Martinez recovered the $1,400 from a bulge in defendant’s pocket and read the defendant Miranda warnings. The defendant was transported to the Wilmette police station. Martinez gave the bag of cocaine to Provost, who performed a field test and determined that it was cocaine.

At the station the defendant was questioned as to what was in his apartment, and he responded that there was marijuana, a small amount of cocaine and a pistol. He said that he was not a user but sold cocaine to make money. He also said that he entered Chambers’ house, placed the cocaine on the table and was handed the money by Chambers. He discussed his many drug contacts, and offered to lead police to drug dealers with great quantities; he would be able to set up a deal for a “kilo” of cocaine; he had many other sources most of which were in the City of Chicago. Provost told the defendant that if he wanted to help the police in furthering drug investigations, they would seek the approval of the State’s Attorney’s office.

The defendant accompanied the police to his apartment at 600 South Dearborn Street in Chicago. During the trip he volunteered statements to the police in which he said he knew a lot of people in the Wilmette area who were dealing drugs; he offered to take the officers to bars in the Rush Street area because many of his contacts were located there.

During the search of the defendant’s apartment, the police found a sieving device with .49 grams of cocaine, two ziplock bags containing cocaine residue and a bag containing 325.2 grams of cannabis.

The defendant testified by stipulation that he was 21 years of age; that he is in the printing business; that on July 17, he went to the residence of Chambers, and encountered Chambers and another man whom he did not know at that time; that he asked Chambers for some money; the other man produced the money and gave it to Chambers; and then he and Chambers went into the kitchen, where he received the money from Chambers. The defendant had never been convicted of a crime.

The defendant also established that in 1987 Chambers had been convicted of possession of a controlled substance which was reduced from delivery of a controlled substance and of theft.

The defendant contends that his due process rights were violated because: (1) a search of the premises where a “controlled buy” is to take place must be made to ascertain the presence or absence of a controlled substance; (2) a search must be made of the informant to ascertain whether or not the informant is in possession of a “controlled substance”; and (3) the State must produce an affidavit or testimony by the officer that he did not have in his possession any controlled substance before the “controlled buy.” He argues that none of those requirements is present in this case.

Many cases have discussed the question of sufficiency of evidence where the sale of a controlled substance was made to an addict-informer; and reviewing courts have not hesitated to reverse convictions where the testimony of the addict-informer was deemed inadequate. (See e.g., People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649; People v. Dade (1969), 109 Ill. App. 2d 337, 248 N.E.2d 844; People v. Jackson (1968), 103 Ill. App. 2d 123, 243 N.E.2d 414.) All cases, whether affirmances or reversals, have been decided on the basis of whether the proof was sufficient to establish guilt beyond a reasonable doubt. No case purports to enunciate bright-line rules as to what procedures must be followed to pass constitutional muster. Consequently, we reject the defendant’s argument that the procedures followed violated the defendant’s right to constitutional due process.

Moreover, the evidence did not establish a “controlled buy” as that term is ordinarily understood in the context of transactions involving narcotics. In a “controlled buy” the party making the purchase is an addict-informer. (See People v. Frank (1964), 51 Ill. App. 2d 251, 256, 201 N.E.2d 197.) The police do not actively participate in the purchase. However, a reading of all the cases analyzing evidence of controlled buys teaches that courts are concerned with the credibility of the informer-purchaser. That concern is not relevant here because Chambers’ credibility is not involved.

The case before us is subject to the same test applicable in all criminal cases: Does the record establish guilt beyond a reasonable doubt? The State’s case was overwhelming. In addition to Martinez’ testimony of the transaction itself and the recovery of the marked money, there are the defendant’s confession and corroborating physical evidence of other cocaine found in his apartment.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.


text:
    HIGHLAND PARK CONVALESCENT CENTER, INC., Plaintiff-Appellant, v. THE HEALTH FACILITIES PLANNING BOARD et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 89—3223
    Opinion filed July 19, 1991.

      Terrence J. Benshoof and Ronald Scott Mangum, both of Mangum, Smietanka & Johnson, and James E. Dahl, both of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Highland Park Convalescent Center (HPCC), appeals from an order entered in the circuit court which affirmed the decision of the Illinois Health Facilities Planning Board (Board) to deny the plaintiffs application for a permit to construct a nursing home facility. The plaintiff contends that the Board’s decision was against the manifest weight of the evidence; the plaintiff also argues that the Board relied on an unpublished rule in denying its application and thereby deprived the plaintiff of due process.

On May 23, 1984, the plaintiff applied to the Board for a permit to construct a long-term care nursing home facility in Highland Park, Illinois. The application was reviewed by the Health Systems Agency for Kane, Lake and McHenry Counties (Agency), which is a federally funded regional health care planning body that works in conjunction with the Board.

After a public hearing, the Agency governing board voted 13 to 0 to recommend denial of the plaintiff’s application. The Agency provided its recommendation to the Board on October 1, 1984, and again on March 14, 1986. The Illinois Department of Public Health also reviewed the application and recommended to the Board that the application be denied.

The plaintiff submitted additional information to the Board in support of its application. Nevertheless, the Agency and the Illinois Department of Public Health again recommended to the Board that the application be denied.

On April 11, 1985, the Board issued a statement of intent to deny the application. The plaintiff once again submitted additional information in support of its application; however, on February 6, 1986, the Board issued an order denying the application.

On February 27, 1986, the plaintiff requested an evidentiary hearing, which was held beginning on January 20, 1987. On February 24, 1987, the hearing officer recommended to the Board that it reverse its decision to deny the application.

The Board reviewed the hearing officer’s recommendation and the evidence presented, and on May 6, 1988, the Board affirmed its earlier decision to deny the application. On August 4, 1988, the Board issued its final order denying the application for a permit to construct a nursing home facility in Highland Park.

Before addressing the plaintiff’s argument that the evidence was insufficient to support the Board’s decision, it is appropriate to set forth the guidelines imposed on the Board in determining whether to grant a permit to a health care facility.

The applicable statute grants the Board the power to prescribe rules, standards, criteria, procedures or reviews “for recognition for areawide health planning organizations, including, but not limited to, standards for evaluating the scientific bases for judgments on need and procedure for making these determinations.” The act also provides that, in developing health care facility plans, the Board should consider a number of factors, including the size, composition and growth of the population of the area to be served; and the number of existing and planned facilities offering similar programs. Ill. Rev. Stat. 1987, ch. HV-k, pars. 1162(1), (3), (4).

Pursuant to the legislative grant, the Board determined, based upon “an analysis of socio-economic data, patient origin studies, and planning guidelines,” that “planning areas were to be coterminous with county boundaries for health services outside of Cook and DuPage Counties.” (Illinois Health Care Facilities Plan, ch. 3, §1, R. 304P(l)(c) (5th ed.).) The proposed health care facility involved in this case is in Lake County.

The Board adopted the following pertinent review criteria:

“(c) Any proposed project *** must demonstrate that its primary purpose and intent is to serve the population of the planning area (as defined in 92 Ill. Adm. Code 1100.220 ‘Planning Area’) in which it will be physically located *** and that its location will not result in a maldistribution of facilities or services. In assessing whether or not a maldistribution of facilities exists, the State Board will evaluate such factors as (but not necessarily limited to) accessibility, patient flow patterns, travel time and distance to existing facilities or services and occupancy rates of existing facilities or services.
* * *
(1) ‘Scope and Size of Project’ — Review Criteria The applicant must document that the population served or to be served by a proposed project is in need of the services to be provided. Such documentation must establish the need for the services and also the need for the proposed project (scope, size) in relation to the stated needs of the population served.” 77 Ill. Adm. Code §§1110.230(c), (1) (1985).

The Board’s principal reason for denying the application was that the proposed facility would be in an area of Lake County that already had a significant number of nursing homes, still leaving other areas of the county inadequately served. The proposed nursing home, therefore, would constitute “maldistribution” as that term is used in the Board’s review criteria.

The plaintiff does not analyze the evidence and point out the weakness of the Board’s case and the strength of its own. Instead, the plaintiff hinges its entire argument on the fact that the hearing officer, who heard the witnesses, recommended that the application be granted. This argument often recurs, and the courts uniformly reject it. (See Starkey v. Civil Service Comm’n (1983), 97 Ill. 2d 91, 100-01, 454 N.E.2d 265, 269.) The Board, not the hearing officer, is the ultimate fact finder and decision maker. (77 Ill. Adm. Code §1160.630 (1985).) Where an administrative agency is responsible for the decision, the agency is required to consider the findings of the hearing officer, but it is not bound to accept them. Rather, the agency must make its own decision based upon the evidence in the record. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 465 N.E.2d 1052.) The rule applies even when findings of fact depend on the credibility of witnesses, and it is the hearing officer who observes the witnesses. Caracci v. Edgar (1987), 160 Ill. App. 3d 892, 513 N.E.2d 932.

Although the plaintiff, we repeat, did not expressly question the sufficiency of the evidence to support the Board’s decision, to put the matter to rest, we hold that the Board’s decision was not against the manifest weight of the evidence. The Board heard witnesses testify for and against the plaintiff’s application for the creation of a nursing home in the southeast part of the county, which already contains 11 nursing homes; there were nine in the northeast part, but only three in the southwest part and two in the northwest part. The Board chose to accept the testimony against the plaintiff. There is no basis for the substitution of our judgment for that of the Board.

The plaintiff next maintains that the Board used an unpublished rule as a basis for denying its application, thus denying the plaintiff due process.

Mark Mayo was a consultant in health care facilities management, and he formerly worked as Director of Project Review for the Agency. He prepared the Agency’s staff report on the plaintiff’s application.

The Agency focused primarily on the location criterion. There were no guidelines or rules regarding the interpretation and review in order to determine whether maldistribution of facilities within a planning area existed. In order to determine whether the proposed facility would result in a maldistribution of facilities or services, the Agency used a methodology whereby they divided the planning area into four “quadrants.” Within the quadrants they used population and rate data to determine the need for new health care facilities. The Agency used data from the United States Census Bureau and addressed two age groups: 65 through 74, and 75 and over. The Agency looked at the number of beds in each facility and the service and skill being offered, and they also considered the geographic need in any particular area. The Agency plotted the various facilities on the county map and noted the location of the facilities with regard to the aged population. They determined that there was already a maldistribution of facilities within the planning area, and they determined that the proposed location for HPCC would further that maldistribution.

Raymond Passeri was the Chief of the Division of Facilities Development of the Department of Public Health, and the Executive Secretary of the Board. He also served as the Chief Executive Administrative Officer for the Board in reviewing certificate of need applications and in processing standards and criteria and plans of need.

Passeri testified that the location criterion was a critical issue in the review of the plaintiff’s application. The determination with respect to location would be based in part on whether the establishment of the facility would result in maldistribution in the planning area. He explained that maldistribution is a combination of several factors, and that it involves accessibility of the proposed services to the general population, whether there is a concentration of facilities and services in one geographic portion of the planning area, and the availability of support staff for projects and services. He noted that other tools were also used to review maldistribution, including natural barriers such as highway patterns and other types of geographical dividing lines. He testified that the Board’s rules do not contain standards for defining maldistribution, and that it is the applicant’s duty to show why the proposed location is appropriate.

George Hinton was the Comprehensive Health Planner for the Illinois Department of Public Health. He worked in the certificate of need program and determined whether applicants complied with the Illinois Health Facilities Planning Act. He reviewed the plaintiff’s application and prepared a report; he concluded that four review criteria were not met. The unsatisfied criteria were location, alternatives to the proposed project, scope and size, and allocation of additional beds.

Hinton explained that the location criterion is a two-part test: first, he must determine whether the facility would serve the needs of the planning area, and second, he must determine whether the proposed location would result in a maldistribution of facilities or services within the planning area. He stated that “maldistribution” is not defined in the Act; however, the Act lists the following factors to be considered: accessibility, patient flow patterns, time/distance factors, and occupancy rates of existing facilities. Hinton noted that none of these four factors is defined in the Act, and the Act states that the Board is not limited to these four factors.

Hinton discussed the steps he took in reviewing the HPCC application. First, he obtained a map of the planning area and familiarized himself with the map and the location of the various communities and the layout of the townships. Next, he plotted the location of the various long-term care facilities, to determine the concentration of particular services. He was then able to determine what community would be served by the project, and determine whether there was a concentration of services in the planning area. He identified exhibits which are attached to this opinion as appendices A and B. Appendix A is a map divided into quadrants and showing the location of existing nursing homes. Appendix B has a breakdown of population of Lake County and long-term care bed distribution and the population broken down by township and age. Using the exhibits, Hinton determined that there were four townships in the northwest region of the planning area that had 20% of the planning area’s elderly population, but had only 6% of the area’s long-term care beds. He noted that the region east of the TriState tollway, which served as a natural barrier, had 56% of the elderly population and 75% of the long-term care beds. It was his opinion that the plaintiff’s proposed location would further the existing maldistribution of facilities in Lake County.

Hinton testified that the Department of Public Health addresses geographical factors in all cases; however, they do not always divide a planning area into four regions. He divided the planning area into four regions in this case because he believed that dividing the area in this manner would aid in analyzing the distribution of facilities. In addition to dividing the planning area into quadrants, he also assessed the distribution of facilities using the Tri-State tollway and Route 45 as dividing lines. Using these alternative analyses, he found that a maldistribution still existed, as each of these methods still left four townships in the northwest area with a disproportionate lack of long-term care beds.

Hinton found that the plaintiff failed to meet the requirement of showing no alternative projects at a lower cost. He determined that it would be less costly for the plaintiff to locate in the northwest portion of the planning area, where a need existed; building the facility in Highland Park would merely foster greater concentration of long-term care beds in an area where substantial concentration already existed.

He also found that the plaintiff failed to meet the scope and size criteria, which require that the applicant demonstrate that the project’s scope and size fit in with the identifiable needs of the planning area population. He determined that the plaintiff could not meet the identifiable needs of the planning area because the need for long-term care facilities was in the northwest portion of the planning area, which the plaintiff’s proposed location would not serve.

Hinton stated that he would have a problem with the construction of any Lake County health care facility if it was not in one of the four unserved townships in the northwest quadrant. He testified that there was some sort of public transportation in the northwest region.

The plaintiff maintains that the Board’s “Quadrant Theory” was a rule which was required to be promulgated in accordance with the Dlinois Administrative Procedure Act (IAPA) (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.). Because it was not so promulgated, the plaintiff contends that it is invalid. The IAPA defines a rule as an agency statement of general applicability that implements, interprets or prescribes law or policy. (Ill. Rev. Stat. 1987, ch. 127, par. 1003.09.) Rules are the administrative process analogous to legislation, contrasted with orders, which are the product of adjudication, the administrative process analogous to the judicial process. In short, adjudication resembles what courts do in deciding cases, and rulemaking resembles what legislatures do in enacting statutes. 1 K. Davis, Administrative Law Treatise §5.01, at 285-86 (1958).

The plaintiff relies principally on Senn Park Nursing Center v. Miller (1983), 118 Ill. App. 3d 504, 455 N.E.2d 153, aff’d (1984), 104 Ill. 2d 169, 470 N.E.2d 1029, in which the Dlinois Department of Public Aid (IDPA) amended its procedure for calculating the “inflation update” factor for the Illinois State Medicaid plan. In determining rates of reimbursement for nursing homes before January 1, 1980, the IDPA calculated the inflation update factor by comparing the two most recent cost reports of all nursing homes with the Consumer Price Index experience over the same period, and multiplying that factor by the projected price changes for the upcoming year. In December 1979, the IDPA amended this procedure by announcing that it would compare all available nursing home cost reports, rather than just the two most recent cost reports. This amended procedure was not promulgated as a rule in accordance with the IAPA. (118 Ill. App. 3d at 507.) Senn Park Nursing Center challenged the validity of the amendment, and both the appellate court and the supreme court held that the amendment was invalid because it was a rule required to be promulgated under the IAPA. (118 Ill. App. 3d at 514; 104 Ill. 2d at 178.) Both courts noted that the inflation update procedure was clearly an agency statement of general applicability that implemented policy. Therefore, because the procedure did not fit within any of the exceptions to the definition of “rule” set forth in the IAPA, it was invalid because it was not promulgated in accordance with the IAPA.

In Moriearty v. Civil Service Comm’n (1985), 131 Ill. App. 3d 198, 474 N.E.2d 1291, the plaintiff filed suit challenging the Civil Service Commission’s denial of her appeal of her layoff. The plaintiff argued that the statistical methodologies used in assessing the disproportionate impact of layoffs were rules which were required to be promulgated in accordance with the IAPA.

In investigating the propriety of the plaintiff’s layoff, the Civil Service Commission used three statistical methodologies which compared the number of white females affected by the layoff to the number of white males affected. (131 Ill. App. 3d at 200.) The appellate court compared the case to Senn Park and held that the methodologies were not agency statements of general applicability. They were used to determine the impact of achieving equal opportunity goals for women at that particular facility; they were not generally applicable in all cases. The methodologies were simply reasoning by which the agency reached its decision; therefore, the court held that they were not rules. 131 Ill. App. 3d at 204-05.

Similarly, in this case, the quadrant theory was merely the reasoning by which the agency determined that maldistribution existed; and it was not the only methodology used. George Hinton testified that he also examined the distribution of facilities using the TriState tollway as a dividing line and, at the insistence of HPCC, using Route 45 as a dividing line.

Moreover, the quadrant theory used by the Board relates only to this particular nursing home. At the time the Board reviewed the application, it looked at a map of the county’s long-term care distribution, and four “quadrants” became apparent. At another time, when the distribution is different, a different methodology may be more appropriate. The methodology does not purport to treat generally all nursing homes, or even all nursing homes in Lake County. In addition, we independently note that from an examination of the Lake County map, ignoring the division into quadrants, it is apparent that there is a heavy concentration of nursing homes along the eastern quarter of Lake County and a relatively small number of nursing homes on the western three-fourths of Lake County.

The appellate court has noted that “not all statements of agency policy must be announced by means of published rules. When an administrative agency interprets statutory language as it applies to a particular set of facts, adjudicated cases are a proper alternative method of announcing agency policies.” (Kaufman Grain Co. v. Director of the Department of Agriculture (1989), 179 Ill. App. 3d 1040, 1047, 534 N.E.2d 1259.) In this case, the Board used the quadrant theory to interpret the term “maldistribution” as it applied to the plaintiffs proposed location. Therefore, in accordance with Kaufman Grain Co., an adjudicated case was a proper method for the agency to use. See also Manor Healthcare Corp. v. Northwest Community Hospital (1984), 129 Ill. App. 3d 291, 472 N.E.2d 492.

'yVe judge, therefore, that the so-called “Quadrant Theory” used by the Board in this case was not a rule that required promulgation.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK AGUILAR, Defendant-Appellant.
    First District (1st Division)
    No. 1-89-0800
    Opinion filed July 22, 1991.

      Elliot Samuels, of Chicago (Dennis VanDerGinsdt, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant Frank Aguilar appeals from a bench trial finding of guilt and seven-year sentence for delivery of controlled substances (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401). Defendant contends on appeal: (1) the circuit court erred in finding as a matter of law that defendant could not be entrapped by a confidential police informant who also happened to be defendant’s longtime friend; (2) the State failed to rebut defendant’s entrapment defense by proof beyond a reasonable doubt; and (3) he was denied a fair trial when the circuit court granted a seven-week continuance rather than a new trial as a sanction against the State for its failure to disclose favorable evidence which defendant had specifically sought in his pretrial discovery request. Because we believe the State’s discovery violation operated to prejudice defendant’s defense, we reverse and remand for a new trial.

The State called Sergeant Thomas West and Officer Richard Handley of the Chicago police department. They testified that in the spring and summer of 1987, they were working on Operation Bridgeport, a long-range narcotics investigation in the Bridgeport area of Chicago. As part of this investigation, West worked undercover and with informants to make purchases of narcotics.

West’s testimony related that in April, May and June 1987, he worked undercover with Ted Stiltner, a paid informant and lifelong Bridgeport resident, to make three drug purchases from defendant. In total, Stiltner arranged 30 transactions during the course of the investigation resulting in 45 indictments.

Prior to the April transaction, West and Stiltner discussed the possibility of arranging a narcotics transaction with defendant. Although West knew that defendant frequented the Bridgeport area, West knew nothing of defendant prior to this time. West also advised Stiltner concerning safety issues, “street lingo,” the prices West would pay, and on how the drug transaction should be performed.

West testified that on April 25, 1987, Stiltner introduced West to defendant as Stiltner’s co-worker at a garage near 43rd and Union in Chicago. West explained to defendant that he already had a cocaine supplier but asked defendant if he could supply phencyclidine or PCP. Defendant told West that he could supply West with that drug and the two discussed the sale of a sample amount to test the quality of defendant’s source. According to West, he and defendant “haggled” over the price until they agreed on $150 for an “eight-ball” or an eighth of an ounce of PCP.

Defendant told West to wait while he went and obtained the PCP. Defendant returned shortly thereafter with the drugs and West paid the $150. West told defendant that he would get back to him on the drug’s quality. Defendant assured West that he could supply anything West needed, that he would be in the area and that West could use Stiltner to reach him.

On May 15, 1987, defendant met again with West and Stiltner. Using the same procedure, defendant sold West an ounce of PCP for $1,200.

On June 3, 1987, at 8 p.m., at 43rd Street and Union, West and Stiltner again met with defendant and discussed the purchase of IV2 ounces of PCP. Defendant and West agreed on a price of $1,800. Defendant told West that he would return with the drugs at 9:30 p.m.

West arranged surveillance while defendant was away. Defendant returned at the agreed time and pulled his car alongside West’s vehicle. Defendant told West to follow him. Defendant drove through the neighborhood for 10 minutes. While driving, defendant repeatedly changed directions and looked in his rear-view mirror. Eventually, defendant led West to 12th Street Beach, where they parked and exited their cars. West testified that after defendant looked around the area, West exchanged $1,800 for the PCP. West later met with Officer Handley, the surveillance officer, at a prearranged spot. Officer Handley later testified and corroborated West’s testimony regarding the June 3 transaction.

On cross-examination, West testified that Stiltner was paid $110 for the June 3 delivery and $50 for the April 25 delivery. Stiltner and West had no express pay agreement; West’s payments to Stiltner were within West’s discretion and varied according to the type and amount of drugs involved.

West testified he was aware that the seriousness of a narcotics offense was based on the weight of the drugs. He noted that one of Operation Bridgeport’s purposes was to get Class X felonies against individuals. As of May 15, West testified he needed one more case on defendant in order to get a Class X felony. He was aware that it would take beyond 30 grams of PCP to meet the statutory minimum for a Class X amount of PCP.

West admitted that he never attempted to arrange any narcotics transactions with defendant without Stiltner being present. West was never present when defendant and Stiltner had discussions prior to each drag transaction. West denied ever going to defendant’s residence.

Mildred Diaz, defendant’s mother, Mario Aguilar, defendant’s brother, and defendant testified for the defense. Diaz and Mario Aguilar testified that during the spring and summer months of 1987, Stiltner came to the house several times looking for defendant. Mario Aguilar added that on one occasion, Stiltner waited for defendant in his car along with an unidentified passenger.

Defendant testified that he had known Stiltner since childhood. At the times in question, he was working for the Coca-Cola Company. He had never been arrested before for any narcotics-related offenses.

Defendant testified that prior to the April 1987 transaction, Stiltner approached him and requested that defendant supply him with drags. Defendant declined to assist Stiltner but Stiltner persisted, saying he needed money to get a lawyer. Defendant declined again, but eventually, he agreed to help Stiltner.

Defendant testified that Stiltner gave defendant money to purchase drags as well as instructions on how and where to purchase them. For the April transaction, defendant went to a local bar and asked to buy an “eight-ball.” A man named Jose sold him the drags. Afterwards, defendant drove to where Stiltner instructed defendant to meet him. There, defendant gave Stiltner the drags. Defendant noticed that someone was in Stiltner’s car but could not recognize who it was.

After this transaction, Stiltner asked defendant to do more transactions on four or five other occasions. Defendant related that Stiltner even started crying, asking for help for his family’s sake. Defendant eventually agreed to help Stiltner. On May 15, defendant made a purchase of one ounce of PCP for Stiltner. Defendant again purchased it from Jose and delivered it to Stiltner at an agreed upon location. Again, defendant could see an individual in Stiltner’s car but could not identify that person.

Prior to the June 3 transaction, Stiltner again approached defendant on numerous occasions. Defendant declined to assist Stiltner and told him to find someone else. Eventually, after persistent begging, defendant agreed to help Stiltner.

Regarding the June 3 transaction, defendant met Stiltner at a gas station at 43rd and Union. Defendant again noticed that Stiltner had someone in the car. Stiltner gave defendant instructions and $1,200 to buy V-k ounces of PCP. Defendant then went to purchase the drags and returned to the gas station. Defendant flashed his lights as instructed and then proceeded to the 12th Street Beach. There, defendant gave Stiltner the drugs; the two men then parted.

Defendant testified that he never made any money from the transactions. He was arrested on July 7, 1987, at his house. No drugs, paraphernalia or money was found in his house or on his person at the time of his arrest.

After defense rested, the State rested without presenting a rebuttal case. Based on the evidence, the court found defendant guilty. In its ruling, the court believed that defendant’s testimony was incredible and that the transactions occurred as West related them and not as defendant testified. Accordingly, the court found that the State rebutted defendant’s entrapment defense by proof beyond a reasonable doubt.

Defendant’s first and second contentions on appeal relate to his defense of entrapment. Defendant first contends that the circuit court found “in effect” that “as a matter of law there could be no entrapment.” Defendant contends next that the State failed to rebut his entrapment defense by proof beyond a reasonable doubt. We reject defendant’s contentions.

Defendant’s first contention is based upon the following statement made by the circuit court during its finding of guilt:

“And thirdly, the issue you were doing something for someone who’s a good friend does not fall within the realm of the entrapment cases that I found. If Mr. Aguilar decided to go out and help a friend by committing an illegal act, that is his choice. He wasn’t required to do it, forced to do it. He didn’t have any pressure on him to do it other than what he claims is friendship and his friend continued to act. For all those reasons I don’t believe it’s necessary to call Mr. Stiltner in here to rebut because there is nothing to rebut.
The defendant’s own testimony in terms of what he testified to doesn’t raise any issue to me as to whether or not this is entrapment.”

The above statement, taken together with the court’s prior statements, makes clear the court believed that the State had overcome defendant’s entrapment defense by proof beyond a reasonable doubt, and not, as defendant asserts, that the court believed that no entrapment existed as a matter of law. The court gave three reasons to support its finding; the third reason is set forth above. It was for all these three reasons that defendant was convicted. In other words, the court rejected defendant’s entrapment defense because it was not supported by the evidence. It follows, therefore, that defendant’s reli-anee on People v. Estrada (1980), 91 Ill. App. 3d 228, 414 N.E.2d 512, People v. Housby (1975), 33 Ill. App. 3d 762, 338 N.E.2d 461, and People v. Carpentier (1974), 20 Ill. App. 3d 1024, 314 N.E.2d 647, is misplaced. In Estrada and Carpentier, the appellate court found error in the circuit court’s implicit finding that no entrapment existed as a matter of law as a result of its refusal to give an entrapment instruction where the evidence supported such instruction. In Housby, the appellate court found that under the evidence presented, the State failed to rebut defendant’s entrapment defense. Here, no instruction error has been alleged and, as discussed below, we believe that the State rebutted defendant’s entrapment defense by the necessary proof.

Defendant next contends that the State failed to rebut his entrapment defense by proof beyond a reasonable doubt. Defendant’s entrapment defense is predicated upon section 7 — 12 of the Criminal Code of 1961:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 12.)

Once a defendant raises entrapment as an affirmative defense and presents some evidence thereon, the State is required to prove, in addition to each of the statutory elements of the offense, the absence of entrapment beyond a reasonable doubt. Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2; People v. Tipton (1980), 78 Ill. 2d 477, 401 N.E.2d 528; People v. Raess (1986), 146 Ill. App. 3d 384, 496 N.E.2d 1186.

In its findings supporting its conclusion of guilt, the circuit court specifically stated that it believed the transactions occurred as West testified, not as defendant related the events. Under West’s testimony, West and defendant dealt directly with one another. West negotiated with defendant over the price for the PCP, and defendant then went to purchase the PCP from his source. Defendant thereafter returned and West exchanged the money for the drugs. Under defendant’s version, defendant never had any contact with West. Rather, Stiltner gave money and instructions to defendant on where and from whom to purchase the drugs. Defendant would then purchase the drugs and deliver them to Stiltner. As indicated, the court rejected defendant’s testimony.

The case before the court is similar to People v. Marshall (1981), 101 Ill. App. 3d 244, 427 N.E.2d 1333. In Marshall, defendant sold cocaine to undercover police officers on three separate occasions. The cocaine was supplied to defendant by his longtime and trusted friend, who was also working as a confidential informant for the police. The informant told defendant that he could not sell the cocaine directly because he owed these purchasers money and, thus, they would not pay him for the cocaine. Defendant declined to assist his friend, but after persistent begging and pleading, defendant agreed to make the sale. The jury rejected defendant’s entrapment defense. On appeal, in finding the evidence was sufficient to rebut defendant’s entrapment defense, the court stated:

“The likelihood that Cleave’s [the informant] coaxing was the predominant cause of defendant’s conduct was lessened a great deal by the undisputed evidence that defendant made deliveries on three separate occasions several days apart. While a single delivery could well have resulted from coaxing, the multiple acts would indicate a desire to become involved in the trade and a deliberate intent to do so. Further evidence of defendant’s predisposition to do so came from [Officer] Spicer’s testimony that: (1) after the first delivery ***, defendant told Spicer if he were interested in more cocaine, to contact Cleave, and (2) after the [second] delivery], defendant told Spicer defendant would have more cocaine for him later. Although defendant denied making at least one of the statements, the jury could have believed Spicer.” Marshall, 101 Ill. App. 3d at 247, 427 N.E.2d at 1335.

Defendant in this case, as in Marshall, entered the drug trades only after initially resisting then succumbing to persistent pleading and begging by a longtime friend. In both cases, the State’s testimony was accepted over defendant’s conflicting testimony. On review, this court must, as did the Marshall court, uphold defendant’s conviction since it is supported by the evidence. Where inconsistencies and conflicts exist in the evidence, the trier of fact has the responsibility of weighing the credibility of the witnesses and resolving the conflicts and inconsistencies. (People v. Green (1988), 179 Ill. App. 3d 1, 535 N.E.2d 413.) In a bench trial, this responsibility rests with the trial court, and the reviewing court will not substitute its judgment for that of the trier of fact when the evidence is merely conflicting. People v. Daniels (1984), 129 Ill. App. 3d 894, 473 N.E.2d 517.

Here, the evidence showed defendant sold POP, a less common drug, three times; haggled over the price with West; was familiar with drug terminology and drug transactions; had a steady and regular supply of drugs; told West that he could meet West’s needs; and encouraged West to contact Stiltner if he needed more drugs. We believe the circuit court correctly found that this evidence sufficiently rebutted defendant’s entrapment defense. Accordingly, we reject defendant’s sufficiency argument.

Defendant’s final contention on appeal is that the State’s failure to disclose favorable evidence prior to trial operated to deny him a fair trial. During defense cross-examination of Officer West, and to the surprise of all concerned, West disclosed for the first time that Stiltner was paid cash for his assistance in arranging the drug transactions. Defendant moved to dismiss the indictment with prejudice, citing his pretrial discovery request which specifically asked the State to disclose: “whether any State’s witness has received consideration of any kind *** in exchange for, or in relation to, their [sic] testimony, which would tend to show interest, bias or motive of such witness.” The court denied defendant’s motion but granted defendant a six-week continuance to prepare his defense in light of the new evidence. In the interim, the court required the State to tender to the defense the reports and documents relevant to the payments Stiltner received. When the trial reconvened, defendant was able to use this information in his cross-examination of Officer West to establish the nature and extent of Stiltner’s compensation.

Defendant contends that this court must remand for a new trial because the State’s discovery violation substantially prejudiced his defense. Defendant particularized this prejudice at oral argument by informing the court that had the State disclosed the requested information, he may not have waived a jury trial. The State responds with numerous arguments which we address below. Because we believe that the State’s failure to disclose the requested information irrevocably prejudiced defendant’s defense in this case, we hold that defendant is entitled to a new trial.

Defendant’s discovery request was made pursuant to Supreme Court Rule 412(c), which provides: “[T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused *** or would tend to reduce his punishment therefor.” (73 Ill. 2d R. 412(c).) In implementing this rule, once a trial court determines that a discovery violation has occurred, the court may order further discovery, grant a continuance, exclude the evidence, or impose any sanction which, in its discretion, it deems just under the circumstances. (73 Ill. 2d R. 415(g).) The preferred sanction is a recess or continuance if the granting thereof would be effective to protect the defendant from surprise or prejudice. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029.) A reviewing court will not reverse the trial court’s exercise of its discretion in granting a particular sanction in the absence of a showing of surprise or prejudice to the defendant. People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.

In partial response to defendant’s argument that a new trial is warranted, the State contends that the continuance alleviated any prejudice defendant suffered as a result of the nondisclosure. The State claims that defendant was able to use the undisclosed evidence to the same extent as if it had been disclosed as requested.

Admittedly, defendant was able to establish Stiltner’s monetary bias. If defendant received the requested information prior to trial, his use of it at trial would probably have been no different. Either way, defendant would obtain the same mileage from it. (See People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970; People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335, cert. denied sub nom. Wilson v. Illinois (1988), 488 U.S. 902, 102 L. Ed. 2d 240, 109 S. Ct. 251 (new trial denied where defense otherwise able to effectively impeach State’s witness).) Where defendant’s prejudice arises, however, and where the State’s argument ultimately fails is that defendant was denied the full opportunity to prepare his defense and make tactical decisions with the aid of this information. While this court need not speculate, as we have repeatedly refused to do in numerous cases (see People v. Weaver (1980), 90 Ill. App. 3d 299, 412 N.E.2d 1353, aff’d (1982), 92 Ill. 2d 545, 442 N.E.2d 255; People v. Trolia (1979), 69 Ill. App. 3d 439, 388 N.E.2d 35, cert. denied (1979), 444 U.S. 911, 62 L. Ed. 2d 145, 100 S. Ct. 222; People v. Parton (1976), 40 Ill. App. 3d 753, 354 N.E.2d 12), to the use a defendant would put undisclosed, favorable information he has requested, we know here that had defendant timely received this information, he may have elected a jury trial over a bench trial. A jury in this case may have come to an altogether different verdict from the one reached by the circuit court. The extreme nature of this prejudice cannot be remedied by a mere continuance. This extreme prejudice also forecloses any suggestion that the discovery violation here was harmless beyond a reasonable doubt.

We also disagree with the State’s response that its good faith supports the continuance as the appropriate remedy in light of the circumstances of this case. Defendant here specifically requested information regarding whether Stiltner was a paid informant. It is undisputed that the police had information which was relevant to this request. As stated in Supreme Court Rule 412(f), the State has an affirmative duty to ensure the free flow of information between the various government branches:

“The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.” (73 Ill. 2d R. 412(f).)

The State’s breach of its duty is particularly egregious here because Stiltner’s cooperation resulted in 30 indictments. The State had to know, or at least should have known through appropriate inquiry, of Stiltner’s compensation based on the number of cases which moved through the prosecutor’s office. Thus, while the State’s willfulness in failing to disclose is an appropriate factor in fashioning the proper remedy (Harris, 123 Ill. 2d 113, 526 N.E.2d 335), we believe the State’s good faith in this case does not require a sanction less than the most severe.

The affirmative duty noted above also renders unpersuasive the State’s argument that, because Stiltner was available for the defense to interview, the State’s duty to disclose was lessened. The State has an affirmative duty to disclose regardless of Stiltner’s availability to the defense.

Finally, we reject the State’s argument that defendant’s decision to only request the extreme remedy of dismissal somehow operates as a waiver of other remedies. Although defendant never requested a new trial, a new trial is clearly within the remedies the circuit court can prescribe for discovery violations. (73 Ill. 2d R. 415(g).) As we have explained, the appropriate remedy was a new trial and not a continuance; only a new trial could eliminate the prejudice to defendant. Our supreme court has sanctioned reversal and the award of a new trial where, as here, the defendant is prejudiced by the discovery violation and the trial court failed to eliminate the prejudice. Harris, 123 Ill. 2d 113, 526 N.E.2d 335.

Accordingly, we conclude that the circuit court of Cook County abused its discretion in not granting defendant a new trial, and we therefore reverse and remand.

Reversed and remanded.

MANNING, P.J., and CAMPBELL, J., concur.