author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES COLLINS, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1669
    Opinion filed April 25, 1991.

      Randolph N. Stone, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Daniel Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Charles Collins, was convicted of first degree murder and sentenced to 26 years of imprisonment. He appeals from his conviction on two grounds: (1) evidence of the drunken struggle between him and his roommate supports only a finding of second degree murder; and (2) the Illinois homicide statute, which sets out first and second degrees of murder, violates Federal and State constitutional provisions that guarantee due process of law, equal protection of law, and the separation of powers doctrine.

For the reasons that follow, we reduce the murder conviction from first to second degree and remand for resentencing.

Background

On February 4, 1988, Collins was arguing with his roommate of several years, James Langston. At some point Langston was fatally shot. Collins telephoned police and told them, “My friend was wrestling with a gun. He got shot. We were wrestling with the gun and the gun went off.” He also asked for paramedics to be sent to the apartment where he lived with the shooting victim.

Percy McCline testified for the prosecution that he had been present during the fight and watched the shooting as he stood in the living room of the apartment. He had been good friends and drinking buddies with Langston for 23 years and would meet him twice a week for drinks. McCline had known Collins for 12 to 15 years, but he was closer to Langston.

McCline and a friend of his named Joe arrived at the apartment at 7:15 in the evening. Langston and Collins were there. Collins left and returned with Garland Burton. Then McCline and Collins went to a liquor store. Collins left McCline off at the apartment and went on to get a haircut.

While Collins was gone, McCline, Burton, and Langston had three or four shots of liquor. Joe fell asleep. According to McCline, Collins returned from getting his hair cut at 9:30 or 10. Collins and Langston went into the kitchen and talked for awhile and when they came out they were arguing about a gun. McCline testified that after awhile Collins pulled a gun out of the right side of his pants. Langston ran from the living room down the hall into the dining room. According to McCline’s direct testimony, Collins held the gun straight out in front of him and fired. McCline then contradicted or clarified that description by stating that Collins had pointed the gun up toward the ceiling before firing. A police officer later testified that his inspection of the apartment revealed no bullet holes in the ceiling or walls.

McCline further testified that Collins and Langston “approached each other in the hallway *** started tussling; [and] fell on the floor in the dining room.” The two men continued to wrestle on the floor, with Langston on top at first and then Collins on top. McCline testified that he watched this altercation from the living room, looking down the hallway, and could not see the gun. When Langston was on top of defendant, however, he heard a gunshot and saw Langston fall off. According to McCline, Collins picked up a nearby ironing board and hit Langston two or three times in the area of his back or head. Langston was lying on his stomach with his face to the side.

McCline suggested pouring water on Langston to revive him, which Collins did. When Langston failed to respond, Collins poured more water on him, then turned him over on his back. That is when they saw the blood and realized that he had been shot. McCline then left because he was frightened. About two weeks later the police found him and questioned him.

According to McCline, Collins is not a violent man. Langston, however, had a temper and could be violent. McCline said that Langston cut him with a knife once and owned a gun. Usually, Langston had a gun somewhere.

Next to testify for the State was a crime lab technician for the police department, Joseph Moran. When he arrived at the scene after the shooting, he noticed that the body and surrounding floor were soaking wet. Another officer handed Moran a gun that was found in the apartment. It had four cartridges inside the chamber and two casings inside the cylinder. Moran administered gunshot residue tests at the crime scene, one on defendant and the other on Langston. The results of both tests were inconclusive.

The parties stipulated that the testimony of another witness would have shown that Langston died as a result of a gunshot wound to the chest that passed through his heart and that there were two lacerations on the back of the victim’s head. Photographs in the record indicate that the bullet entered Langston’s chest near the left armpit.

Next to testify for the State was a firearms expert with the police department, Robert Smith. He examined the gun used in the shooting and noted that the .32 caliber revolver had a bent trigger guard, which prevented the trigger from moving forward. He said this meant that the weapon was in a “single-action” mode, and for a second shot to be fired, it would be necessary to open the cylinder, manually rotate it to put another live cartridge in the chamber, and then pull the hammer back.

Kevin O’Brien testified for the State that he went to the crime scene, where he was met at the door by Collins. Collins told him that he and Langston had been arguing and struggling and the gun just went off. The gun was submerged in dishwater in the sink. Collins did not resist arrest and was cooperative.

For the defense, a stipulation was entered that Detective John McKenna would testify that McCline had told him that he (McCline) had stayed in the living room and did not see the fight when the shot was fired.

Collins testified that Langston had a violent temper and liked to fight when he drank. When he returned to the apartment on the night of February 4, he called Langston to the back and said he wanted to talk to him. According to Collins, Langston came in when Collins was checking his hair in the bathroom. Collins said Langston grabbed for his penis and Collins hit him in the head. Then Langston went back as if nothing was wrong and called out to ask Collins where the gun was. Collins said it was under the ottoman. According to Collins, Langston walked toward him with the gun and Collins grabbed his hand. They struggled for it and fell in the dining room. Collins heard a shot and both got to their knees. The gun fell, they dived for it and continued to struggle while standing until Langston staggered and fell. Collins went into the living room but did not see anyone else in the apartment. He called police and went upstairs to get a neighbor.

Collins denied hitting Langston with the ironing board. The gun was Langston’s, not his. He also said the gun was fired only once that night.

The trial court noted conflicts in Collins’ testimony and found no reason to disbelieve McCline. The court found Collins guilty beyond a reasonable doubt of first degree murder and imposed a prison term of 26 years.

Opinion

I

Before reaching the constitutional challenges, Collins asserts that the evidence does not support the first degree murder conviction because of mitigating factors that should have reduced the degree of the offense to what was formerly called voluntary manslaughter and now is second degree murder. Ill. Rev. Stat. 1989, ch. 38, par. 9—2.

According to Collins, the salient facts establish that he and Langston were long-time roommates who had been drinking heavily on the night of the shooting and in the course of an argument and struggle the gun went off, killing Langston. McCline testified regarding Langston’s propensity for violence and the fact that Langston had cut McCline on one occasion. Both Collins and McCline testified that Langston kept a gun.

Collins contends that the evidence fails to show that he acted with a murderous intent but at most shows that his mental state was that required for a reduction of the offense to voluntary manslaughter, or in this case, murder in the second degree. He relies primarily on People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409, a case in which the defendant’s conviction of murder was reduced on appeal to voluntary manslaughter.

In Ellis, the defendant had picked up a hitchhiker and let him share defendant’s apartment for a week. When the defendant told him to leave, he would not. After a day of drinking, the defendant got out a revolver and ordered the other man to leave. The defendant fired a warning shot to intimidate him. As the other man began to leave, he lunged at the defendant and the two struggled over the gun. The gun went off, and the other man was shot in the head. The defendant went to get a neighbor for help and when police arrived, told them he “didn’t mean to shoot him.”

After reviewing the facts, the appellate court concluded that the defendant’s acts had exceeded those justified by self-defense. The court also found that defendant had initiated the use of deadly force. Nevertheless, the court found the evidence insufficient to establish the requisite intent for murder. Noting that conviction for voluntary manslaughter is a “legal compromise” between murder and acquittal, the court held that the fact defendant had gotten the gun and fired a preliminary shot did not bar a finding of voluntary manslaughter; instead, it barred exoneration. People v. Ellis, 107 Ill. App. 3d at 611, 437 N.E.2d at 416.

In People v. Dare (1986), 140 Ill. App. 3d 413, 488 N.E.2d 1304, this court upheld the trial court’s finding that the defendant’s killing of his common-law wife constituted voluntary manslaughter instead of murder. The facts established that the defendant and his common-law wife were alcoholics who fought frequently and came to blows on numerous occasions. Defendant stabbed the victim four times after an argument in which he accused her of failing to buy him liquor. On appeal from his conviction of voluntary manslaughter, the defendant argued that the facts could not be reconciled with voluntary manslaughter; therefore, he only could be convicted of murder or acquitted. The reviewing court disagreed and affirmed the voluntary manslaughter conviction. See also People v. Hamilton (1977), 48 Ill. App. 3d 456, 363 N.E.2d 193 (reducing voluntary manslaughter conviction to involuntary manslaughter in a case in which victim’s fingerprints were found on the gun that the parties struggled over).

The State counters with the argument that even if the evidence fell short of proving a deliberate intent to kill Langston, Collins’ actions demonstrated his knowledge that struggling while holding a loaded gun created a strong probability of causing death or great bodily harm to another, which is one of the alternative definitions of first degree murder. (Ill. Rev. Stat. 1989, ch. 38, par. 9—l(a)(2).) The State argues that the facts of this case are analogous to those of People v. Gross (1988), 166 Ill. App. 3d 413, 519 N.E.2d 377, appeal denied (1988), 121 Ill. 2d 576, 526 N.E.2d 835. In Gross, the court affirmed a murder conviction, commenting that the defendant took a loaded gun with him to an area where an argument had just occurred and, with his finger on the trigger, he struggled with the victim. Therefore, the court reasoned, the defendant’s story that the gun was fired accidentally or that the gun went off in a struggle was not binding and the defendant could be found to have voluntarily and willfully committed an act that was bound to destroy another’s life or inflict great bodily harm. Murderous intent could be inferred from the defendant’s actions, and there was no evidence that would give rise to a finding of manslaughter.

We note that the circumstances surrounding the shooting in the pending case are not free from doubt. We agree with the State that the court is not required to believe the defendant’s story and that the trial court’s findings are accorded great weight in the reviewing court. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) The problem with the State’s case, however, centers on the “two shot” theory that the State employs to support the finding that Collins had the requisite mental state for first degree murder. The evidence surrounding the “first shot” is problematical for two reasons. First, McCline waffled in his description of this shot. Initially he seemed to imply that Collins aimed the gun directly at the fleeing Langston’s back, an act certainly indicative of an intent to kill. Quickly, however, he retracted that implication by clarifying in his direct examination and again in cross-examination that, in fact, Collins had fired the gun up toward the ceiling. This demonstrates a radically different mental state, one similar to that of the defendant who fired a warning shot in Ellis. The ensuing struggle that McCline described cannot, in our opinion, justify the finding of first degree murder because the two men were rolling around and McCline admitted he did not observe the gun or actual shooting.

The second problem with the “first shot” evidence is a conflict in the record regarding whether, in fact, there were two shots fired instead of one. While McCline testified that two shots were fired (and there were two empty cartridges found in the gun), Officer Moran testified that his visual inspection of the crime scene revealed no bullet holes in the ceiling or walls. As a trained police officer, Moran presumably knows how to conduct a thorough observation of a crime scene and would be able to recognize holes that might have been made by bullets. Collins denied firing the gun more than once. Significantly, no second bullet that might have been fired was recovered from the scene. We believe the lack of physical evidence supporting McCline’s statement that there was a first shot — coupled with his inconsistent descriptions of that shot and his admitted drinking at the time — greatly undermines the credibility of the first shot evidence.

The theory that Collins fired two shots is critical to the State’s ability to establish that Collins acted with the mental state necessary for first degree murder. This is so because the firearms expert testified that in his opinion a shooter could not fire the gun a second time without taking the deliberate step of opening the gun, manually rotating the cylinder to chamber another live round, and pulling back the hammer after closing the gun. Such calculation implies premeditation. But here again, there is no supporting evidence that might justify such an inference. Indeed, McCline would have been the logical witness to notice Collins fiddling with the gun after the so-called first shot. McCline said he watched the entire struggle, which from that point lasted 30 or 40 seconds. If that is true, it is reasonable to assume he would have noticed Collins breaking open the gun to rotate the cylinder and then snap it back in place before he followed Langston. But McCline did not so testify; instead, he saw the two men “approach each other” and begin “tussling” on the floor locked together with first one then the other on top. It is improbable that Collins could have opened the gun and spun the cylinder while struggling with Langston. McCline testified that when the gun went off Langston was on top of Collins. He fell off, onto his stomach, and lay still. It was not until Collins poured water on Langston to revive him and then rolled him over on his back that they saw the blood and realized he was dead. We believe that such facts are consistent with second degree murder rather than first.

McCline admitted that he and the others had been drinking. He did not come forward or call the police. He told them at first he had seen nothing. On the whole, his trial testimony seems to support the defense claim to the mitigating mental state of second degree murder. Except for him and Collins, none of the others present at the shooting testified. It was stipulated that Collins called 911 to alert the police and to get an ambulance. He gave his name and address to the person on the emergency line and admitted that he and his friend were wrestling with the gun when it discharged. That his trial testimony describing the struggle contained weaknesses and contradictions did not relieve the State from proving that his mental state was sufficient to sustain a conviction for first degree murder under all of the facts.

The volatile mixture of guns and tempers too often explodes into death, even among close friends and family members. The argument could be made in every resulting homicide prosecution that the defendants knowingly created a strong probability of causing death or great bodily harm because such harm is implicit in the use of loaded weapons. Hence, it could be argued that no defendant who carries or reaches for a deadly weapon while arguing with another could ever prove the mitigating mental state of second degree murder. The court in Ellis found otherwise, however, even while noting that the defendant in that case had initiated the unjustified use of deadly force. In Dare, the defendant clearly was the aggressor and had a history of abusing the victim as well as alcohol. The knife he stabbed her with four times was no less deadly than the gun that Ellis or Collins grabbed. And in Hamilton, the struggle over a loaded weapon ended with the death of one person and the defendant’s conviction of voluntary manslaughter. The reviewing court reduced the conviction to involuntary manslaughter because of fingerprint evidence tending to show that the victim held the gun part of the time. The court declined to reverse the conviction outright, however, noting that the defendant had “acted recklessly in drawing a loaded weapon during the course of a quarrel.” (Emphasis added.) 48 Ill. App. 3d at 458, 363 N.E.2d at 195.

The reasoning of these cases suggests that reviewing courts must examine the facts of specific cases before concluding that the use of a gun in an argument, without more, satisfies the inference of murder in the first degree as opposed to lesser included offenses.

The pending case, in our opinion, more closely resembles Ellis, Dare, and Hamilton than Gross. As in Ellis and Dare, here the defendant and victim were living together, had been drinking just before the fatal argument, and, most tragically, had a deadly weapon close at hand. In Hamilton, the facts indicated that the gun was discharged during a struggle over its possession. In Gross, the facts are noticeably different. There, the defendant argued with the victim and left to obtain a gun. He admitted that his finger was on the trigger when he went back to confront the victim, but testified that the shooting was accidental because the victim came up from behind and grabbed him, causing the gun to fire when defendant reached back to hit at the victim with the gun. The defendant’s testimony of how he shot the deceased contradicted the medical evidence regarding the path that the bullet took, however. We believe the facts of Gross make its holding inapplicable to the case before us.

We conclude that the evidence of record is too inconclusive, vague, and contradictory to sustain Collins’ conviction of murder in the first degree. There is sufficient evidence, however, to support a conviction of second degree murder. We do not wish to understate the gravity of Collins’ actions, nor exonerate him from the consequences of his criminal conduct. We nevertheless find that the degree of mur-

der should be reduced under the specific circumstances of this case. Pursuant to Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), we reduce the grade of offense from first to second degree murder and affirm it as modified. The cause must be remanded for resentencing also.

II

Collins also raises constitutional challenges to the homicide statute. We decline to reach these issues, however, because of our holding that the evidence in this case failed to establish the requisite elements of first degree murder. We note that another court has upheld the statute against a due process challenge quite similar to the one made here. (People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335, appeal denied (1991), 136 Ill. 2d 547, 567 N.E.2d 335 (rejecting the contention that the Illinois homicide statute violates due process by requiring defendants to prove the mental state necessary to reduce first degree murder to second degree murder).) Collins’ equal protection argument depends for its success on the notion that it is unfair for one class of defendants (accused murderers) to be required to prove a mitigating mental state when other classes of criminals have no such requirement. We do not find the argument well-taken but need not decide the issue because it is not necessary to the disposition of the case before us. Finally, the record indicates that Collins has raised the separation of powers argument for the first time on appeal and accordingly has waived it.

For the foregoing reasons, we affirm Collins’ murder conviction as reduced to second degree murder and remand for resentencing.

Affirmed as modified and remanded.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HAASE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AVON L. ARBO, Defendant-Appellant.
    Third District
    Nos. 3—90—0292, 3—90—0293 cons.
    Opinion filed May 17, 1991.

      Brian R. Keeley, of H. Kent Heller & Associates, P.C., of Naperville (H. Kent Heller, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, Avon Arbo, of six counts of felony theft and four counts of official misconduct (Ill. Rev. Stat. 1987, ch. 38, pars. 16—1(a)(1), (b)(1), 33—3(b), (c)). The trial court thereafter sentenced him to two years’ conditional discharge. The defendant appeals.

An 11-count indictment charged the defendant with seven counts of felony theft and four counts of official misconduct. Specifically, counts I, II, TV, and V charged the defendant with the theft of large quantities of weed killer and fertilizer. Count VI charged him with the theft of chimney supports, parts, and supplies. Count VII alleged that between October 1, 1988, and February 21, 1989, the defendant exerted unauthorized control over more than $300 in United States currency, belonging to the Plainfield School District. Counts VIII and IX alleged that he bought property for his own personal use using the school district’s tax registration number. Counts X and XI alleged that he ordered property from Tri-County Stockdale Co. and Excelsior Supply Division for his own personal use and then caused the school to pay for the items.

It was established at trial that the defendant ordered large quantities of weed killer and fertilizer from Tri-County Stockdale Co. even though the school’s supervisor of operations and transportation was in charge of ordering such supplies. According to the school board’s attorney, the defendant admitted ordering the supplies for his own personal use. Regarding the chimney parts and supplies, the defendant admitted that he ordered the items from Excelsior Supply Division for his own use and charged the costs to the school.

Much of the testimony presented at trial involved count VII, which charged the defendant with taking more than $300 from the school’s petty cash fund between October 1, 1988, and February 21, 1989. In that regard, Cindy Clausens, a bookkeeper at the high school, testified that $200 in $20 bills were always missing on Fridays at about the same time that the defendant left for the day. Richard Eldred, the school’s supervisor of operations and transportation, testified that in late February or early March of 1989, he noticed that envelopes marked “receipts” were in a garbage can near the shop area of the school. He reported his discovery to Clausens ¿nd Vicki Marshall, the school’s payroll clerk.

Vicki Marshall testified that on the day the envelopes were found in the garbage, the defendant was in the vault area of the office more often than usual. She noted that the petty cash receipts were stored in the vault. She further testified that she had told her husband about the receipts. Later in the day, her husband retrieved them from the dumpster and eventually stored them underneath his bed. Sometime thereafter, the Marshalls gave the receipts to an auditor.

Cindy Clausens testified that in March of 1989 she discovered envelopes containing petty cash receipts inside of a box that was on top of a garbage dumpster. She further testified that at the end of each year, she placed the petty cash receipts for the year in a manilla envelope. She identified her own handwriting on the petty cash envelopes offered at trial.

According to the school board’s attorney, the defendant admitted that he used the petty cash fund as a reserve on weekends and returned the money on Mondays. The defendant denied that he used the fund for anything other than school-related business.

CPA Terry Pillatsch audited the school’s petty cash receipts. After she was given envelopes containing the receipts, she removed the receipts and organized them by fiscal year. She then prepared a report comparing the difference between the amount in the petty cash account and the available receipts.

The State introduced into evidence an exhibit summarizing the accountant’s findings and showing that money was missing from the account. Defense counsel objected to the introduction of the exhibit into evidence, arguing that the State should simply show that receipts were missing and not money. He further argued that the accountant’s testimony on cross-examination would not tend to show that money was actually missing and, therefore, a mistrial should be declared because the State’s exhibit was not probative of theft.

The trial court allowed the State to display the exhibit. The accountant thereafter testified that $30,856 in funds were unaccounted for from 1982 through 1989. On cross-examination, she noted that the receipts she added up were not necessarily the total of the receipts that were once in the drawer. She further noted that the $30,856 she described as “unaccounted for” was merely the difference between the amount deposited in the petty cash fund and the receipts that ultimately ended up at her firm. She also stated that she could not tell whether there were any funds missing from the petty cash account.

Following the presentation of the accountant’s testimony, the court granted the State’s motion to amend count VII of the indictment. Count VII had alleged the theft of more than $300 of United States currency. The amendment added that the defendant’s “acts [were] in furtherance of a single intention and design to obtain the property of the Plainfield School District No. 202.”

The defendant first contends that the trial court erred in allowing the State to amend the indictment on the second day of trial.

We agree. Count VII of the indictment had originally alleged the theft of more than $300 in currency. The court allowed the State to amend that count on the second day of trial by adding that the defendant’s “acts [were] in furtherance of a single intention and design to obtain the property of the Plainfield School District No. 202.”

We note that People v. Brenizer (1986), 111 Ill. 2d 220, 489 N.E.2d 862, provides that a series of acts committed by a defendant, each of which might otherwise constitute a misdemeanor theft, may be charged as a single felony theft only if it is alleged that the acts were in furtherance of a single intention and design to obtain the property. Thus, the amendment in the instant case related to the mental state of the offense and was an essential element of felony theft as it was charged here. Moreover, the amendment occurred after the start of trial. Under these circumstances, we find that the defendant was not apprised of the precise offense charged with sufficient time to prepare a defense. (See People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214.) Accordingly, the defendant’s conviction for felony theft based on count VII must be vacated.

The State nonetheless argues that the element missing from the indictment was supplied by other counts of the indictment.

We disagree. The indictment reveals that none of the other counts of which the defendant was convicted related to the theft of currency. Accordingly, we find that the State’s argument is without merit.

Defendant alleges a number of other errors arising out of the testimony related to count VII. While we have vacated count VII, we feel that a discussion of these other errors is necessary as the thrust of defendant’s argument is that these other errors have impermissibly tainted his conviction on counts other than count VII. We disagree with that contention.

The defendant next argues that the trial court erred in allowing the State to introduce into evidence the petty cash receipts and testimony about those receipts. Specifically, he contends that the State failed to establish a chain of custody for the receipts.

Chain of custody evidence is not required when an item is readily identifiable. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Real evidence is admissible when an adequate foundation is laid to establish that the evidence is connected with the crime and it remains substantially unchanged since its seizure. (People v. Slaughter (1986), 149 Ill. App. 3d 183, 500 N.E.2d 662.) A proper foundation is laid for an object through its identification by a witness. (People v. Holman (1987), 157 Ill. App. 3d 764, 510 N.E.2d 1139.) A reviewing court will not disturb the trial court’s decision to admit evidence absent an abuse of discretion and a showing of prejudice to the defendant. People v. Hermann (1988), 180 Ill. App. 3d 939, 536 N.E.2d 706.

In the present case the school’s bookkeeper identified the petty cash envelopes. The school’s payroll clerk testified that the defendant entered the vault where the receipts were kept more often than usual on the day that they were found in the garbage dumpster. She also testified that after her husband seized the receipts from the dumpster, they stored them underneath their bed until they handed them over for auditing. Under these circumstances, we find that the receipts were adequately connected with the crime, and it was unlikely that they were substantially changed since the time of seizure. Accordingly, we find that the trial court did not abuse its discretion in admitting the evidence.

The defendant next argues that the accountant’s testimony was inadmissible hearsay. He contends that it was improper for the accountant to testify about inferences that could be drawn from the missing receipts. He further contends that the State was required to offer the testimony pursuant to the business records exception to the hearsay rule.

Testimony about an out-of-court writing, which is used for a purpose other than to prove the truth of the matter asserted in the writing, is not hearsay. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Here, the testimony about the receipts in question was offered to prove that they were missing from the envelopes and not to prove the truth of the matters asserted in the receipts. Accordingly, the testimony about the missing receipts was not hearsay and, therefore, was properly allowed.

The defendant also argues that the accountant’s testimony was inadmissible because it was unsubstantiated, prejudicial, and implied prior misconduct.

Other crime evidence is admissible if relevant for any purpose other than to show the defendant’s propensity to commit crime. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) However, the State must show that the crime or misconduct occurred and that the defendant participated in it. The decision to admit or exclude such evidence is within the sound discretion of the trial court, and its decision will not be overturned on review unless it was against the manifest weight of the evidence. People v. Dunn (1987), 160 Ill. App. 3d 11, 513 N.E.2d 113.

In the instant case, we find that the accountant’s testimony about the unaccounted-for funds did not imply prior misconduct on the part of the defendant. She merely testified that receipts were missing and that she could not account for all the funds placed in petty cash. Furthermore, she testified on cross-examination that she could not tell if there were actually any funds missing. Accordingly, we find that the trial court did not abuse its discretion in finding the testimony admissible.

The defendant next argues that the trial court erred in allowing into evidence testimony about receipts for the period prior to the dates covered by the indictment.

It is well settled that evidence that is relevant is admissible. Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) Evidence may be admissible as relevant background information. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) Admissibility may also depend upon whether the probative value of the evidence outweighs its prejudicial effect. People v. DeHoyos (1976), 64 Ill. 2d 128, 355 N.E.2d 19.

Applying the above principles, we find that the testimony about the receipts for years prior to the dates listed in the indictment was admissible as relevant background information. Moreover, the evidence tended to show a pattern of missing receipts over the years. Accordingly, the trial court did not err in admitting the evidence.

The defendant next argues that the trial court erred in questioning the defendant’s character witness about whether the witness paid sales tax on an item he purchased for his personal use through the school district.

We note that it is well settled that a trial judge may ask questions of a witness in order to clarify the evidence. (People v. Enoch (1989), 189 Ill. App. 3d 535, 545 N.E.2d 429.) In the case at bar, the defendant’s character witness testified that he purchased an item through the school district and that he considered it a fringe benefit. We find that the complained-of questioning was merely an attempt to clarify the witness’ definition of a fringe benefit and whether he paid tax on the item. Accordingly, the judge’s questioning was proper.

The defendant next contends that his official misconduct convictions, counts VIII through XI, should be vacated because they arose out of the same physical act as his felony theft convictions, counts I, II, IV, V, VI, and VII.

Multiple convictions are improper when more than one offense is carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Prosecutorial intent, as reflected in the charging instrument, is a factor to be considered in determining whether a defendant’s conduct constituted a single act or separate acts. People v. Varela (1990), 194 Ill. App. 3d 357, 551 N.E.2d 318.

Here, counts X and XI charged that the defendant committed a theft when he ordered property from Tri-County Stockdale Co. and Excelsior Supply Division. Counts II, IV, V and VI charged the defendant with the theft of weed killer, fertilizer, and chimney parts. The evidence at trial indicates that the defendant purchased those items from Tri-County Stockdale Co. and Excelsior Supply Division. Moreover, the record indicates that counts X and XI were based on the same physical acts as the defendant’s theft convictions, counts II, IV, V and VI. Accordingly, we find that the lesser official misconduct convictions charged in counts X and XI must be vacated.

We further note, however, that the defendant’s argument that counts Will and IX should also be vacated is without merit. Official misconduct, as charged in these counts, is not a lesser included offense of theft as it was charged here. Counts VIII and IX were based on the use of the school’s tax number, which was a separate act from the thefts.

Lastly, the defendant contends that reversible error occurred when the State elicited hearsay testimony from the defendant’s character witness on cross-examination.

Emmett Fleming, a defense character witness, testified that he had not heard anything detrimental about the defendant’s reputation in the community. On cross-examination, the prosecutor asked Fleming whether the superintendent of the school, Roland Smith, had told Fleming that he believed that the defendant did not have an honest character. Fleming replied that Smith had told him that he believed the defendant was guilty of some of the charges.

Under the circumstances, we find that even though the testimony was hearsay, any error in its introduction into evidence was harmless and did not prejudice the defendant. In so finding, we note that the hearsay statement was elicited by the prosecutor on cross-examination in an attempt to rebut the witness’ claims about the defendant’s reputation. We also note that it was the defendant’s own witness who responded with the hearsay statement.

Based on the foregoing, the defendant’s convictions for theft count VII and official misconduct counts X and XI are vacated. The remainder of the judgment of the circuit court of Will County is affirmed.

Affirmed in part; vacated in part.

McCUSKEY and SLATER, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    WAYNE ROGERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (OMC-Galesburg, Appellee).
    Third District (Industrial Commission Division)
    No. 3—90—0211WC
    Opinion filed May 14, 1991.

      Ronald Henson, of Barash, Stoerzbaeh & Henson, of Galesburg, for appellant.
    Thomas W. Gifford, of Gifford, Detuno & Gifford, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant appeals from an order of the Industrial Commission (Commission) which found it lacked jurisdiction to adjudicate claimant’s application for adjustment of claim because of the existence of a prior approved lump-sum settlement agreement. Claimant contends the prior settlement does not bar his current application because he seeks benefits for a different injury than that covered by the settlement agreement. We disagree and affirm.

On June 24, 1982, claimant suffered a crushing injury to the ring and little fingers of his left hand in a drill press accident. Reconstructive surgery was performed in January 1983. At its conclusion, the circulation did not return to claimant’s fingers. To relieve this condition, a stellate ganglion block was administered on claimant’s left side in his neck. This procedure restarted the circulation in claimant’s fingers which, over the course of time, healed well considering the injuries they sustained. However, within a short day following the administration of the nerve block, claimant began experiencing pain and tightness in his left shoulder and upper arm. He remained under medical treatment through July 1983 exclusively for problems with his left shoulder and arm. By July 1983 his hand injuries had resolved themselves. In October 1983, claimant traveled to Iowa City, Iowa, for treatment by a neurologist for his shoulder. Claimant’s shoulder problems did not, however, improve.

Claimant began discussing settlement with respondent in July 1984. A tentative agreement was signed by claimant and a representative from respondent in August 1984. Claimant agreed to accept $23,144.50 in one lump sum for 35% permanent partial disability to his left arm. In return, claimant waived all other rights under sections 8(a) and 19(h) of the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.8(a), 138.19(h)). Specifically, claimant waived the right to submit the case to arbitration and to have that decision submitted to the Commission for review, the right to any further medical treatment for the results of this incident at his employer’s expense, and the right to additional benefits if his condition worsened as a result of the incident.

The settlement contract which was approved by the Commission on September 5, 1984, however, was altered by an unknown party by interlineation. Instead of an award for claimant’s left arm, the word “arm” was scratched out and the word “hand” was handwritten in its place. The percentage of disability was modified as well from “35%” to a handwritten “25%.” The total dollar amount of the award was not changed.

In February 1986, claimant filed the present application for adjustment of claim for injuries to his left shoulder arising from the 1982 drill press accident. Before the arbitrator, over objection, claimant testified, in an offer of proof, that prior to the Commission’s approval of the 1984 settlement agreement he received a telephone call from an individual identifying himself as Commissioner Black. Black asked claimant if he was satisfied with the agreement and claimant told Black his hand had “healed up fine” although he was still having problems with his left shoulder. Black allegedly told claimant that he had seen cases like this before and claimant would have trouble in the future. Claimant testified, “[h]e [Black] says we better settle just for the hand by itself. And I said fine, whatever you say.” Hearsay objections to this testimony were sustained.

After hearing, the arbitrator concluded the Commission lacked jurisdiction to adjudicate the claim because of the existence of the prior settlement agreement and lump-sum payment. The Commission affirmed the arbitrator, and the circuit court confirmed the Commission.

On appeal, claimant contends neither res judicata nor collateral estoppel bars him from seeking benefits for his shoulder condition. Claimant argues that because one can recover for multiple injuries to different portions of the body arising out of a single incident, and because the settlement agreement, as approved, only refers to injuries to claimant’s hand, the settlement does not operate to bar his current claim for a shoulder injury.

Respondent counters that it is obvious the parties were negotiating over all of claimant’s disability arising out of the drill press injury at the time the 1984 agreement was reached. Claimant’s shoulder condition at that time was clearly related to his hand injury and, but for the shoulder injury, claimant would have returned to work much sooner than he did because his hand healed rapidly following surgery. In support, respondent points to the fact that, as negotiated, the settlement agreement referred to an injury to claimant’s arm. Had the injury been limited to claimant’s fingers, there would have been no reason to describe the injured member as an “arm.” In addition, for the better part of a year following surgery, claimant was being treated exclusively for his shoulder condition, which arose as a result of the nerve block and which continued to prevent him from returning to work even after his hand had healed.

Respondent concedes that the agreement, as approved, was altered to reflect that the injured member was the claimant’s left “hand” rather than his “arm” and that the percentage of disability was reduced although the dollar amount of the award remained constant. However, respondent argues that this modification of the agreement is not controlling in view of the facts known at the time of settlement and the specific rights which claimant waived. Claimant contends that because the settlement agreement refers only to an injury to claimant’s hand (which, he argues, cannot rationally be thought to include his shoulder), he can now maintain a separate action for his shoulder condition.

Claimant does not dispute that he was aware of his shoulder problem and its direct relationship to his finger injuries at the time of the settlement negotiations. The fact that the. parties originally agreed to settle for a 35% loss of the use of an “arm” supports respondent’s claim that the parties were including, rather than excluding, claimant’s shoulder in the agreement. In addition, the settlement agreement specifically states in boldface type that claimant was giving up the right to any future medical treatment for the results of this incident. This, coupled with the explicit waiver of rights under section 19(h), which concerns the right to establish an increase or diminution in disability, supports the conclusion that the settlement agreement was intended to cover all disability of whatever sort which arose out of the drill press injury irrespective of the enumerated injury described in the settlement.

Under a theory of collateral estoppel, parties are precluded from relitigating an issue in a subsequent proceeding that was actually or necessarily decided in an earlier proceeding involving the same parties and a different cause of action. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 421 N.E.2d 278.) Under res judicata, a second adjudication is barred where there is a previous decision on the merits and identity of the parties, subject matter, and cause of action. (Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 444 N.E.2d 205.) Even if different theories of recovery are sought, where the same facts are essential to the maintenance of either proceeding, and the same evidence is needed to sustain both, identity between the causes of action exists and res judicata bars the later action. Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 454 N.E.2d 684.

In the present case, res judicata clearly applies. Even if one accepts claimant’s argument that his hand and shoulder injuries are separate “claims” for which recovery could be sought, it is just as clear that both related injuries existed at the time of the settlement negotiations and the same facts and evidence were necessary to sustain an award for either injury. Finally, the settlement agreement specifically speaks of waiving additional benefits for any future disability flowing from this incident rather than particular injuries.

Claimant’s argument that it is significant that the agreement, as negotiated, was altered before it was accepted by the Commission is without substance. In the first instance, the alteration was made by someone other than the parties to the contract and, thus, it can have no bearing on the parties’ intent at the time the contract was executed. Second, claimant’s argument leads to an anomalous interpretation of the statute. If his shoulder problem had first surfaced after settlement, the agreement and section 19(h) would clearly bar any attempt by claimant to seek an increase in the amount of the award for this subsequent manifestation of injury. It is illogical to permit an additional award for a condition which arose before settlement, which the parties were aware of, and which they negotiated over prior to settlement, simply because the settlement agreement is not as explicit as it might have been.

Claimant’s final argument is that the arbitrator improperly rejected claimant’s testimony as to what Commissioner Black allegedly told him over the telephone prior to approving the settlement. Claimant contends what Black told claimant was not hearsay because it corroborated the written settlement contract to show that the award was limited only to the disabilities to claimant’s left hand. This argument is without merit. To the extent that it corroborates the argument that the settlement was so limited, it would be necessary to believe the contents of the statement and, therefore, the truth of what purportedly was being told to claimant by Black. The testimony was hearsay and properly refused.

We do not reach the question of under what circumstances, if any, parties may join in a lump-sum settlement agreement and yet reserve for a later date consideration of additional related matters or injuries. We conclude, on this record, that the prior settlement agreement clearly was intended to cover all of claimant’s disability arising from the drill press accident and, as such, it precluded claimant from subsequently pursuing an additional claim for his continuing shoulder condition.

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

Affirmed.

McNAMARA, WOODWARD, STOUDER, and LEWIS, JJ., concur.


text:
    CAROLE L. FOSCO, Plaintiff-Appellant, v. ILLINOIS MUNICIPAL RETIREMENT FUND et al., Defendants-Appellees.
    Third District
    No. 3—90—0604
    Opinion filed May 13, 1991.

      Chester C. Fuller, of Peoria, for appellant.
    Kathleen O’Brien, of Illinois Municipal Retirement Fund, of Chicago, for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiff, Carole L. Fosco, brought this action seeking review of the Illinois Municipal Retirement Fund (IMRF) Board of Trustee’s (Board’s) decision which denied her application for an IMRF survivor annuity. The trial court affirmed the defendant Board’s decision. The plaintiff appeals.

The facts are not in dispute. The decedent, Lewis J. Fosco, married Norma Irene Fosco on April 4, 1970. On March 31, 1982, the decedent terminated his service with his IMRF employer. On April 1, 1982, his retirement annuity began. On June 6, 1983, the decedent and Norma divorced.

Thereafter, the decedent married the plaintiff. Following the decedent’s death on November 21, 1987, both Norma and the plaintiff applied for an IMRF survivor annuity payable on account of the decedent’s death.

The Board granted Norma’s application and denied the plaintiff’s application. The Board’s decisions were made pursuant to section 7— 154 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1989, ch. 108½, par. 7—154), which provides the eligibility requirements for an IMRF surviving spouse annuity. Additionally, the Board found that the plaintiff was entitled to a $1,000 lump-sum death benefit payment.

The plaintiff subsequently filed a complaint for administrative review of the Board’s decision. The circuit court of Peoria County affirmed the Board’s decision. The plaintiff appeals.

On appeal, the plaintiff first contends that she had a vested contractual right to receive a surviving spouse annuity.

We note that if the language of a statute is plain and unambiguous, there is no occasion for construction to ascertain the meaning of the statute. (Illinois Racing Board v. Hammond (1977), 56 Ill. App. 3d 609, 371 N.E.2d 1189.) In such a case, the plain meaning of the statute should be given effect. Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.

Section 7 — 154(l)(a) of the Code, relied on by the Board, lists the eligibility requirements for receiving a surviving spouse annuity. It plainly provides:

“(1) Surviving spouse annuities shall be payable to the surviving spouse of a participating employee or employee annuitant or person, who on the date of death would have been entitled to a retirement annuity, had he applied for such annuity, and who dies at any time when a surviving spouse annuity equals at least $5 per month, provided:
a. The spouse was married to the participating employee for at least 1 year on the date of death, or was married to the annuitant or person entitled to a retirement annuity for at least 1 year prior to the date of termination of service ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 108½, par. 7—154(1).

The statute is clear and unambiguous. To qualify for a surviving spouse annuity, the spouse must have been married to a “participating” employee for at least one year on the date of death or the spouse must have been married to the “annuitant” for at least one year prior to the date of termination of service.

In the instant case, the plaintiff was not married to the decedent until after he became an annuitant. Also, she was not married to the decedent while he was a “participating” employee. Therefore, she was ineligible to receive an annuity under the clear language of the statute.

The plaintiff contends that the term “present spouse” in paragraph 2 of the decedent’s certificate of benefits refers to the decedent’s spouse on the date of his death.

We disagree. The certificate states that “This is a joint and survivor annuity with your present spouse.” It also states that “if your present spouse does not survive you, your beneficiary will be paid.”

We find that the plain meaning of the term “present spouse” refers to the spouse on the effective date of the certificate, which is April 1, 1982. The certificate also refers to a present spouse who does not survive the annuitant. It would defy logic to state what happens if a present spouse predeceases the annuitant and yet define “present spouse” as the spouse on the date of death of the annuitant. That would create an impossible situation in which the language about a spouse predeceasing an annuitant is a nullity. We are not going to presume such an intent on the drafters of the instrument.

The plaintiff next argues that the Board’s decision denying her a survivor’s annuity violated her equal protection rights. She claims that section 7 — 154(l)(a) of the Code creates an arbitrary distinction between the surviving spouse of a “participating” employee and the surviving spouse of an “annuitant” employee.

The statute does create a distinction between the spouse of a deceased participating employee and the spouse of a deceased annuitant employee. The surviving spouse of an employee who dies while still actively participating in the IMRF must have been married to the employee for one year prior to the employee’s death to receive the surviving annuity. The surviving spouse of a deceased IMRF annuitant must have been married to the annuitant for at least one year prior to the date the annuitant terminated service.

We note, however, that the legislature is not prohibited from enacting legislation which affects one class of people differently from others. (Fishman v. Teachers’ Retirement System (1980), 86 Ill. App. 3d 649, 408 N.E.2d 113.) The legislature may differentiate between persons similarly situated as long as the classification bears a reasonable relationship to a legitimate State purpose. (In re Marriage of Thornqvist (1979), 79 Ill. App. 3d 791, 399 N.E.2d 176.) We further note that there is a strong presumption in favor of the constitutionality of a statute, even where some inequities result. People v. Palkes (1972), 52 Ill. 2d 472, 288 N.E.2d 469.

Although section 7 — 154(l)(a) of the Code creates a distinction between the spouse of a deceased participating employee and the spouse of a deceased annuitant employee, the distinction is not unreasonable. A reasonable basis for the classification is to provide for a spouse married to a participating employee who dies during the latter years of the couple’s working lives while they are planning for retirement. On the other hand, the spouse of a deceased annuitant who marries the annuitant after retirement has not contributed to the planning for retirement as did the spouse of a participating employee. Therefore, the two classes involved are not similarly situated and the classifications created are not arbitrary or unreasonable. Accordingly, we find that the plaintiff’s equal protection rights were not violated.

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

Affirmed.

McCUSKEY and STOUDER, JJ., concur.


text:
    ESTATE OF JEFFREY RITCHIE, by and through his Ex’r and Adm’r, Frank Ritchie, Petitioner and Plaintiff-Appellant, v. GARY FARRELL et al., Respondents and Defendants-Appellees.
    Third District
    Nos. 3—90—0389, 3—90—0404 cons.
    Opinion filed May 13, 1991.

      William R Danna, of Peter E Ferracuti & Associates, of Ottawa (Mark A. Schindler, of counsel), for appellant.
    Mark J. Vogg, Craig A. Tomassi, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

Jeffrey Ritchie, by and through the executor of his estate, brought suit against the defendant, Daniel Huntington, claiming Huntington breached a duty to render him aid and assistance while he was a passenger in Huntington’s auto. In addition, Ritchie brought suit against several other parties, none of whom are before us on appeal.

In response, the defendant filed a motion to dismiss for failure to state a cause of action. The complaint was dismissed and judgment rendered on the pleadings in favor of Huntington pursuant to section 2 — 615 of the Civil Practice Act (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). The trial court ruled the plaintiff failed to state a cause of action under applicable Illinois law. The plaintiff/appellant appeals the order of dismissal.

Plaintiffs complaint alleged the following facts.

On January 14, 1989, Jeffrey Ritchie, along with three other minors, were passengers in an 1978 four-door station wagon driven by Huntington. An adult, Gary Farrell, purchased two 12 packs of beer, a bottle of Jack Daniels Bourbon Whiskey, and two bottles of Nitrane Wine for the minors. These young men then consumed the alcoholic beverages while driving about the City of Ottawa, Illinois. Jeffrey Ritchie consumed a large quantity of Jack Daniels Bourbon Whiskey and became unconscious. The defendant and the other youths continued their jaunt about the city, stopping for a period of time to eat at a local McDonald’s. During the time the youths ate, Ritchie remained unconscious in the back of the defendant’s station wagon. Some two hours after Jeffrey Ritchie lost consciousness, he died of acute alcohol intoxication.

The issue presented on appeal is whether the defendant owed the plaintiff a duty to assess the gravity of the plaintiff’s physical condition and to render him proper aid and assistance.

Illinois has never imposed liability upon social hosts whose guests become intoxicated and injure themselves or others. (Heldt v. Brei (1983), 118 Ill. App. 3d 798, 801, 455 N.E.2d 842.) In Heldt, the defendants allowed their teenage son to have a party where intoxicating liquor was served. After consuming a large quantity of liquor, one of the teenage partygoers, Gil Domer, left the party and drove his auto over the plaintiff. As a result, the plaintiff sustained serious head injuries which ultimately caused his death. The plaintiff, executor of decedent’s estate, brought suit against the defendants claiming they had a duty to control and supervise the alcohol consumption of their teenage guests so as to minimize the risk of personal injury to others, including the decedent. The trial court dismissed the suit, ruling the plaintiff failed to state a cause of action.

In affirming the trial court’s ruling, the court noted that Illinois has never recognized a common law cause of action for either selling or giving intoxicating liquor to another. The reason Illinois courts have adhered to this policy of nonliability for social hosts is that the proximate cause of the intoxication is the act of drinking, not the supplying of alcohol. (Cunningham v. Broum (1961), 22 Ill. 2d 23, 174 N.E.2d 153.) The sole remedy available to a plaintiff seeking damages resulting from intoxication is provided by the Dramshop Act (Ill. Rev. Stat. 1987, ch. 43, par. 135), under which the uncompensated social host is clearly not liable. Richardson v. Ansco (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1050, 334 N.E.2d 205.

The plaintiff, however, asserts his action is not based on the supplying of alcohol to the plaintiff, but the defendant’s failure to properly assess the gravity of the plaintiff’s physical condition and render him proper aid and assistance. Absent some special relationship between the parties, however, no such duty exists. (Zamiar v. Linderman (1985), 132 Ill. App. 3d 886, 478 N.E.2d 534.) In Zamiar, the minor plaintiff became intoxicated and injured himself while a guest in the defendant’s home. The trial judge dismissed the suit for failure to state a cause of action. The plaintiff appealed, urging the court to recognize a common law cause of action for failing to “supervise” and “assist” the “obviously intoxicated” minor while the minor was a guest in the defendant’s home. Citing the long and unwavering rule in Illinois that social hosts are not responsible for the conduct or supervision of their intoxicated guests, absent some special relationship between the parties, the court affirmed the dismissal.

In the case at bar, the plaintiff has failed to allege a special relationship existed between Jeffrey Ritchie and Dan Huntington which would have required Huntington to take affirmative action to restrain Ritchie’s drinking or come to his aid. The fact the plaintiff was located in the defendant’s auto instead of his home as in Zamiar is of little consequence. The plaintiff was free to drink as little or as much as he chose. Tragically, the plaintiff chose to drink an inordinate amount of alcohol. Having placed himself in peril, he cannot now claim the defendant had a duty to come to his rescue. Darby v. Checker Co. (1972), 6 Ill. App. 3d 188, 285 N.E.2d 217.

The plaintiff has invited this court to expand the current state of Illinois law. A similar request was made of the Wisconsin Supreme Court in Olsen v. Copeland (1979), 90 Wis. 2d 483, 280 N.W.2d 178. In Olsen, the court was asked to create a common law cause of action for alcohol-related injuries in the absence of a dramshop act. The court declined to create a new cause of action and noted:

“A change in the law which has the power to so deeply affect social and business relationships should only be made after a thorough analysis of all the relevant considerations. *** The type of analysis required is best conducted by the legislature using all of the methods it has available to it to invite public participation.” 90 Wis. 2d at 491, 280 N.W.2d at 181.

Much like the court in Olsen, we too decline the plaintiff’s invitation to expand the present state of the law. We agree with the plaintiff that the increasing loss of life and property due to intoxicated persons may well warrant a reexamination of the liabilities and immunities embodied in our laws. However, the determination to expand Illinois liability to include social hosts who supply liquor to their guests requires an analysis of competing interests and factors more appropriate for the legislature. Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 910; Thompson v. Trickle (1983), 114 Ill. App. 3d 930, 449 N.E.2d 910.

In determining the propriety of a dismissal of an action, a reviewing court is concerned only with questions of law presented in the pleadings. (Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.) In Illinois the question of duty, the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 539.) The reason the law allows pleadings to be attacked by motions is to give the complainant an opportunity to respond to the objection and cure any defect in the pleadings prior to trial. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

Because the common law rule of nonliability for social hosts remains intact, it would be impossible for the plaintiff to cure his pleadings prior to trial. This being the case, the ruling of the trial court was not in error. The judgment of the circuit court of La Salle County is hereby affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT G. ATTEBERRY, Defendant-Appellant.
    Third District
    No. 3—89—0574
    Opinion filed May 17, 1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Gary E Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Robert G. Atteberry, was convicted of reckless homicide by a jury in Will County. The defendant was charged with driving an automobile in a manner which caused the unintentional death of a passenger, Jason Tudor. The State alleged the defendant drove in excess of the speed limit and with an illegal blood-alcohol content when the vehicle hit a tree. The defendant was sentenced to 30 months’ probation with six months’ incarceration in the county jail and involuntary admission to a residential alcohol treatment program.

The defendant appeals his conviction and sentence. The defendant raises several issues on appeal. First, the defendant claims the trial court denied the defendant his sixth amendment right of confrontation. The trial court barred defense counsel from cross-examining the State’s only eyewitness about her refusal to discuss her testimony in any way with either defense counsel or his investigator.

A defendant is constitutionally permitted to cross-examine a hostile or opposing witness regarding her bias or partiality. (People v. Hobson (1979), 77 Ill. App. 3d 22, 396 N.E.2d 53; Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Evidence of a witness’ refusal to speak or cooperate prior to trial is proper grounds upon which to cross-examine that witness. (People v. Timmons (1983), 114 Ill. App. 3d 861, 449 N.E.2d 1366.) A witness has a right to refuse to be interviewed or cooperate with the other side. However, that refusal can be cross-examined in court by opposing counsel in order to demonstrate bias, hostility, prejudice, or interest. Timmons, 114 Ill. App. 3d at 868.

The trial court’s ruling was highly prejudicial to the defendant since the witness to be cross-examined was the only eyewitness to the accident. The trial court, in this factual situation, committed reversible error by its ruling.

At the instruction conference, the trial court admitted over defendant’s objection a non-Illinois Pattern Jury Instruction (IPI), which read as follows:

“If you find from consideration of the evidence that the defendant was actually under the influence of alcohol at the time of the alleged violation, such evidence shall be prima facie evidence of a reckless act.”

The trial court also admitted over defendant’s objection the following IPI instruction, which provided:

“If you find that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of [alcohol].
However, this presumption is not binding on you and you may take into consideration any other evidence in determining whether or not the defendant was under the influence of [alcohol].” Illinois Pattern Jury Instructions, Criminal, No. 23.06 (2d ed. 1981).

The defendant contends the trial court’s non-IPI instruction containing a mandatory presumption of recklessness should not have been admitted for two reasons: it created an unrebuttable presumption not understood or misunderstood by the jury, and it conflicted with an admitted IPI instruction. We agree with the first ground upon which the defendant bases this contention.

In attempting to establish the accused’s guilt, the State is entitled to present and rely on certain presumptions. However, a presumption, in order to be admissible and reliable, cannot shift the burden of persuasion from the State to the defendant. The shifting of the burden of persuasion to the defendant violates the defendant’s due process rights. Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.

The instruction did not explain or define the term “prima facie.” A juror could have misconstrued the term to mean that if the defendant was under the influence of alcohol, he was conclusively presumed to be acting recklessly. A juror would not necessarily realize the defendant could have rebutted or contradicted that presumption. A juror could have reasoned the term “prima facie” was a conclusive presumption shifting the burden of persuasion to the defendant. A similar situation occurred in the case of People v. Gray (1981), 99 Ill. App. 3d 851, 426 N.E.2d 290, where the term “prima facie” was used within an instruction. The court determined that term shifted the burden of persuasion to the defendant to establish that he did not know he had insufficient funds upon which to issue personal checks. The court in Gray held the term “prima facie” was also inherently ambiguous so as to cloud a juror’s understanding of that term to mean it was a conclusive presumption.

Even though we are unaware of the jury’s interpretation of the term, the potential prejudice created by the ambiguous and easily misunderstood term denied the defendant his due process rights, including his right to a fair and impartial trial. In addition, the term “prima facie” could have inferred a sufficiently strong presumption that could not have been overcome by any degree of excuse, denial, or defense presented by the defendant. The use of a non-IPI instruction such as this is not per se improper or misleading provided that a clear and comprehendible explanation accompanies such term. When using the term “prima facie” within an instruction, the instruction should contain an explanation of its meaning. Gray, 99 Ill. App. 3d at 854.

The term “prima facie” is defined in Black’s Law Dictionary as “a fact presumed to be true unless disproved by some evidence to the ■contrary.” (Black’s Law Dictionary 1071 (5th ed. 1979).) That brief explanation or one equivalent, which is found throughout many IPI instructions, should be provided so that the jury is properly and sufficiently advised the term is rebuttable and/or can be disproved. Therefore, based upon the above-stated reasoning, this matter should be remanded for a new trial.

The defendant also contends that the use of the IPI Criminal 2d No. 23.06 denied the defendant a fair trial because it conflicted with the non-IPI instruction and it contained a mandatory presumption effectively shifting the burden of persuasion to the defendant. We disagree. In its entirety, the language of the IPI Criminal 2d instruction contained a sufficient explanation that the presumption was rebuttable.

According to People v. Haas (1990), 203 Ill. App. 3d 779, IPI Criminal 2d No. 23.06 did not create a constitutionally impermissible presumption. The language of the first paragraph of the instruction would create an impermissible presumption. However, the language of the second paragraph should have sufficiently advised the jury that the presumption contained within the first paragraph was rebuttable. Jury instructions must be evaluated as a whole, not by sentence or paragraph, or otherwise in isolation. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) In Haas, the court held the jury was not bound by any presumptions contained within the instruction and the burden of persuasion was not shifted to the defendant by the use of this instruction.

The defendant raised other issues; however, since we are remanding this case for a new trial based upon the foregoing analysis, it is not necessary to address those issues since they are moot.

For the reasons indicated, the circuit court of Will County is hereby reversed, and this cause is remanded for a new trial.

Reversed and remanded for a new trial.

GORMAN and BARRY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PEARL D. REED, Defendant-Appellant.
    Third District
    No. 3—90—0721
    Opinion filed May 17, 1991.

      Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Pearl D. Reed, pled guilty to escape (Ill. Rev. Stat. 1989, ch. 38, par. 31—6(a)) and was sentenced to serve four years in prison. She subsequently filed a motion to vacate the judgment and withdraw her guilty plea. Following a hearing, the trial court denied her motion. She appeals.

One of the defendant’s arguments on appeal is that the cause should be remanded for further post-plea proceedings because her attorney failed to comply with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The State has now filed a motion to amend the record on appeal by adding the defense attorney’s Rule 604(d) certificate. The State acknowledges that no Rule 604(d) certificate was filed with the trial court.

In the past, this court has allowed the State to file Rule 604(d) certificates on appeal. (People v. Chesnut (1977), 47 Ill. App. 3d 324, 361 N.E.2d 1185.) In those days, however, we followed a general rule that substantial compliance with Rule 604(d) was sufficient. We recently decided People v. Vickery (1991), 207 Ill. App. 3d 574, 566 N.E.2d 495, in which defense counsel failed to file a Rule 604(d) certificate in the trial court. There we held that in light of the supreme court’s decision in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, a relaxed standard of compliance with the strictures of Rule 604(d) was no longer acceptable. We therefore reversed the trial court’s judgment denying the defendant’s motion to withdraw his guilty plea and remanded the cause for further post-plea proceedings.

Vickery did not deal with the instant question of whether a defense attorney may file a Rule 604(d) certificate after the case has been brought up on appeal. The fifth district has addressed this issue, however. In People v. Hayes (1990), 195 Ill. App. 3d 957, 553 N.E.2d 30, the court denied the State’s motion to file a Rule 604(d) certificate during the appeal. Though it entered that order prior to deciding the merits of the appeal, it addressed the issue in its opinion. The court noted that it no longer approached these cases in terms of whether the error in failing to comply with Rule 604(d) was harmless or prejudicial, but instead followed a rule of strict compliance. The court then relied on defense counsel’s failure to file a Rule 604(d) certificate as one of its reasons for reversing the trial court and remanding the cause for a new hearing.

The fourth district has taken a similar position. In People v. Hancock (1991), 208 Ill. App. 3d 1092, 567 N.E.2d 633, defense counsel failed to file a Rule 604(d) certificate and also failed to review the report of proceedings of the guilty plea hearing. The appellate court held that failure to comply with Rule 604(d) in this fashion constituted reversible error. Although the court appears to have been more concerned with counsel’s failure to examine the report of proceedings, the opinion indicates that failure to file the certificate alone would have constituted reversible error.

We agree with the fourth and fifth districts that in light of Wilk, all of the requirements of Rule 604(d), including the filing of a certificate, must now be strictly met. One purpose of the Rule 604(d) certificate is to allow the trial court to determine whether the rule has been complied with and correct any problems which might be revealed by the certificate. As such, the certificate is a condition precedent to a hearing on the motion to withdraw. See People v. Hancock (1991), 208 Ill. App. 3d 1092, 567 N.E.2d 633.

Due to our findings, it is unnecessary to further address the issues raised by the defendant. We hereby reverse the judgment of the circuit court of Peoria County denying the defendant’s motion to withdraw her guilty plea. The cause is remanded for further post-plea proceedings consistent with this opinion, including a new hearing on the motion to withdraw the guilty plea.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAWN DANTZLER, Defendant-Appellant.
    Third District
    No. 3—90—0507
    Opinion filed May 17, 1991.

      Mark D. Fisher, State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Rurmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Shawn Dantzler, was charged with unlawful possession with intent to deliver more than 5 grams but less than 15 grams of a substance containing cocaine in violation of section 401(bX2) of the Illinois Controlled Substance Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(b)(2)). Following a jury trial, the defendant was convicted and was sentenced to a term of five years’ imprisonment. The defendant appeals his conviction. We affirm.

At trial, Joliet police officer Thomas Stein testified that, about 2 p.m. on September 22, 1989, he received a dispatch that gang members were selling drugs at the intersection of 3rd and Union. Officer Stein went to that location and observed five or six people, including defendant, standing on the street corner. As Officer Stein approached the group, everyone except the defendant started walking away. Defendant asked the officer why he was there, and Officer Stein indicated that he was investigating a complaint of gang members selling drugs. Noticing that the two front pockets of the defendant’s sweatshirt were bulging, Officer Stein felt the pockets for weapons. As he did so, United States currency began to fall out. The officer then advised defendant that he intended to pat search him, and as he began that procedure, the defendant dropped to his knees holding his head while yelling “He hit me, man, he hit me.” With that the other individuals who had begun moving away from Officer Stein as he arrived moved toward him and cursed him. The defendant then pushed Officer Stein and attempted to run from the scene. Officer Stein testified that he grabbed the defendant and, together with Joliet police officer Daniel Stobbe, subdued him. A further search of the defendant’s person revealed 20 plastic bags containing a white substance in the defendant’s left pants pocket.

On redirect examination, Stein testified that the neighborhood where the incident took place was a predominately black neighborhood which had been the target of a number of “deterrent patrols.” The trial court agreed with defense counsel’s objection that this testimony was beyond the scope of the cross-examination, but he allowed the witness’ statement to stand. Officer Stein further testified that he felt the need to pat search the defendant for safety reasons due to his previous contacts with the defendant.

Officer Stobbe testified that he also was dispatched to the intersection of 3rd and Union on the afternoon of September 22, 1989, due to a report that drugs were being sold. He then proceeded to give testimony which was substantially similar to Officer Stein’s. Officer Stobbe further testified that he gave the 20 bags found on the defendant’s person, plus four bags found on the ground underneath the defendant, to an evidence technician at the scene. According to Officer Stobbe, the defendant was in possession of $113.60 at the time of his arrest. Joliet police officer John Panizzo found an additional $109 in the front seat of the defendant’s car, which was parked at 3rd and Union.

A crime lab technician testified that he tested all four of the found packages. Each tested positive for cocaine and the total weight of the four packages was 1.7 grams. Of the 20 packages found on the defendant’s person, the technician randomly selected and tested 10 of the packages. Each tested positive for cocaine, and the total weight of the 10 packages was 4.8 grams. The technician testified that he only tested 10 of the packages because it was lab policy to test only enough of a substance believed to be a controlled substance to reach the maximum penalty limit possible. Thus, while there were 24 packages, only 14 of those were actually tested and were shown to contain cocaine.

Joliet police officer Phil Valera testified that he formerly purchased drugs from drug dealers when he was a member of the Metropolitan Area Narcotics Squad. According to Officer Valera, a half-gram package of cocaine (the size packages found in defendant’s possession) generally sells for $40 to $50. In response to a hypothetical question posed by the prosecutor, Valera opined that a person in possession of 24 of these packages would be a seller, not a mere user. Officer Valera also testified that the area of 3rd and Union is a street dealer area.

Following Officer Valera’s testimony, the prosecution rested. The defense rested without putting on any evidence. Following closing arguments, the jury was instructed and retired to deliberate. The jury returned a guilty verdict. Following a sentencing hearing, the trial court sentenced the defendant to five years’ imprisonment with credit .for six days in pretrial custody. The court also assessed a street value fine and ordered that the sentence run consecutively to a previously imposed three-year sentence from which defendant was on furlough at the time of the instant offense.

The defendant raises three issues on appeal. The first issue raised is whether he was denied his right to a fair trial due to prejudicial evidence introduced by the prosecution.

The defendant contends that on three occasions during his trial the prosecution introduced evidence which was irrelevant and highly prejudicial. This evidence, defendant maintains, denied him his right to a fair trial.

First, the defendant complains about testimony elicited from Officers Stein and Stobbe concerning the radio dispatch they received directing them to the incident. Both officers testified that they were dispatched to the area because drugs were being sold. Additionally, Officer Stein also revealed that he had been advised during the dispatch that it was gang members who were selling the drugs.

Second, the defendant complains about testimony elicited from Officer Stein as to why he “pat-searched” the defendant. Officer Stein indicated that he pat-searched defendant because he feared for his safety due to his “prior contacts” with the defendant.

Third, the defendant complains about evidence elicited concerning the neighborhood in which he was arrested. Officer Stein characterized the neighborhood as “a predominantly black area” which had “been the target of many extra deterrent patrols.” Officer Valera testified that “street dealers” predominantly operate in certain neighborhoods in Joliet and that 3rd and Union is a street dealer area.

However, as defendant concedes, none of this evidence was challenged in his post-trial motions. Thus, the State argues, the issue has been waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The defendant argues that these errors rise to the level of plain error and requests this court to consider the issue pursuant to Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)).

In People v. Herrett (1990), 137 Ill. 2d 195, 561 N.E.2d 1, our supreme court stated:

“The plain error rule permits a reviewing court to consider a trial error not properly preserved for review in two circumstances. First, where the evidence in a criminal case is closely balanced, a reviewing court may consider a claimed error not properly preserved so as to preclude argument of the possibility that an innocent man may have been wrongly convicted. [Citation.] A court will examine the record only to see if the evidence is ‘closely balanced.’ If it is not, there is no need to consider an error which was not properly preserved for review. [Citation.]
* * *
The plain error rule also may be invoked where the error is so fundamental and of such magnitude that the accused was denied a fair trial. The rule is invoked where it is necessary to preserve the integrity of the judicial process and provide a fair trial.” 137 Ill. 2d at 209-10, 561 N.E.2d at 7-8.

The defendant has failed to convince this court that we should consider the alleged errors under the first circumstance of the plain-error rule. We do not find this to be a case where the evidence is “closely balanced.” As we have made that determination, we need not consider the alleged errors.

The defendant has also failed to convince this court that we should consider the alleged errors under the second circumstance of the plain-error rule. In examining these alleged errors, it is apparent that they are not the fundamental types of errors that deny a defendant a fair, trial. Accordingly, the integrity of the judicial process is not called into question, and we decline to. address the alleged errors.

The defendant next contends that he was denied his right to a fair trial because testimony elicited from Officer Valera invaded the province of the jury. The defendant points to the following testimony in making this complaint:

“Q. [Prosecutor]: Now, Officer Valera, hypothetically, if a person is in possession of 24 little packages, just as we have here, of cocaine, do you have an opinion as to whether he would be a user of cocaine?
DEFENSE COUNSEL: Objection, your Honor.
THE COURT: May ask.
Q. [Prosecutor]: Or a seller of cocaine?
A. [Officer Valera]: My opinion is he would be a seller.”

During the State’s rebuttal closing argument, the prosecutor made the following statement:

“He [Officer Valera] has seen drug dealers working before, and he testified that his .opinion, when you have 24 little packets of this nature on one individual, in an area known for drugs, that the person had an intent to deliver, and based upon that, based upon your common sense, I’m going to ask that you find the defendant guilty of an unlawful possession of a controlled substance in this case, cocaine, with the intent to deliver.”

Once again, the defendant did not object to Officer Valera’s testimony or the prosecutor’s comments in his post-trial motion. The issue is thus waived unless the plain-error rule is applied.

While we do not condone the actions of the prosecutor in eliciting this testimony or her comments during closing argument, they do not rise to the level of plain error. As we indicated earlier, this was not a close case. The defendant was arrested while in possession of 24 one-half-gram bags containing a white powder. Of 14 bags tested, 14 tested positive for cocaine. Officer Valera, qualified as an expert in narcotics packaging and distribution, testified that the small packages of cocaine were the type used by drug dealers, and that he had never observed a cocaine user purchase or possess more than four one-quarter-gram bags of cocaine from a street dealer.

Additionally, this was not an error so fundamental that it calls into question the integrity of the judicial process. The court advised the jury that the opening and closing arguments were not evidence and that they should consider only the evidence presented. This cured any ambiguity over intent raised by the prosecutor’s actions.

The last issue defendant raises involves what he claims is an exaggeration of the quantity of cocaine found in his possession. Defendant had 20 one-half-gram packages containing a white powdery substance on his person when arrested. Four more such packages were found underneath the defendant on the sidewalk after he was subdued. However, as noted before, only 14 of these packages were tested and shown to contain cocaine. The defendant contends that the prosecutor misled the jury by referring to 24 packages of cocaine. We note, however, that the record reveals that during both the initial and rebuttal closing arguments the prosecutors reminded the jury that not all of the packets taken from the defendant had been tested.

The defendant did not object to these statements, nor did he raise the issue in a post-trial petition. We conclude that this does not rise to the level of plain error. For the reasons listed above, the decision of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and SLATER, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    CITIZENS UTILITIES COMPANY OF ILLINOIS, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    Third District
    No. 3—90—0585
    Opinion filed May 13, 1991.
    Chapman & Cutler, of Chicago (Daniel J. Kucera, of counsel), for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Elizabeth Wallace and Matthew J. Dunn, Assistant Attorneys General, of Chicago, of counsel), for respondents Pollution Control Board and Environmental Protection Agency.
    Barry L. Moss and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, for respondent Village of Bolingbrook.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Petitioner, Citizens Utilities Company of Illinois (Citizens), appeals from a ruling by the Illinois Pollution Control Board (Board). This is the third appeal of the instant matter. Because the underlying facts are not disputed, we will present only a short procedural history of the instant appeal.

The instant appeal arises out of the Board’s failure to comply with our mandate in Citizens Utilities Co. v. Pollution Control Board (1987), 152 Ill. App. 3d 122, 504 N.E.2d 224 (Citizens II). A thorough summary of the pertinent facts of this case can be found in the first appeal. (Citizens Utilities Co. v. Pollution Control Board (1985), 134 Ill. App. 3d 111, 479 N.E.2d 1213 (Citizens I).) Also, a synopsis of the procedural history of the instant matter can be found in our Citizens II opinion.

Citizens’ variance request resulted from our decision in Citizens I. In Citizens I, we reversed the Board’s order which had dismissed Citizens’ petition for site-specific water quality and effluent rules for one of Citizens’ sewage treatment plants. We held that the Board failed to make the required determination of the costs and benefits of Citizens’ proposal as required by section 27(b) of the Illinois Environmental Protection Act. (Ill. Rev. Stat. 1989, ch. 111½, par. 1027(b).) We remanded the case for the required findings.

In 1981, the Board granted Citizens’ petition for a variance in PCB 78 — 313 in order to enable Citizens to prosecute its site-specific rule change proposed in R81 — 19. That variance was due to expire July 2, 1985, about two weeks after our decision in Citizens I, which reversed the Board’s order in R81 — 19.

The purpose of Citizens’ petition in the instant case is to extend and modify the variance granted in PCB 78 — 313 until the site-specific rule change proceeding in R81 — 19 is resolved and adjudicated. The variance extension would avoid the construction now of $4.15 million of additional facilities which will become unnecessary if the relief sought in R81 — 19 is granted.

In Citizens II, we reversed the Board’s denial of the variance, because of the adverse economic impact that would result if Citizens were required to upgrade its wastewater treatment plant before the rule change case, R81 — 19, is finally adjudicated. We concluded there:

“In view of the substantial economic impact which the community would incur, the possibility that the improvements to the waste-water treatment plant would be a needless expenditure justifies the grant of the variance extension.” (Citizens, 152 Ill. App. 3d at 125, 504 N.E.2d at 226.)

Furthermore, our instructions to the Board on remand were clear and unequivocal. We ruled:

“Consequently, an extension of the variance involved is necessitated until such time as either the current, more stringent standards are deemed applicable or until the results of the present study become final and applicable.
For the foregoing reasons, we vacate the order of the Illinois Pollution Control Board and remand this action with instructions to grant the variance consistent with the views expressed in this opinion.” Citizens, 152 Ill. App. 3d at 125-26, 504 N.E.2d at 226.

Thereafter, the Board did not file a petition for rehearing with this court and made no rulings on remand for over three years. The Board also held no hearings after Citizens II, nor did it request briefs or comments on interpreting our decision before making its ruling on remand. In its August 9, 1990, order, the Board acknowledged that it refused to follow our decision in Citizens II and granted only a portion of the relief requested by Citizens.

The Board in the instant matter simply refused to abide by our earlier decision. In its order, the Board commented that “the Board will specify that the variance extension will terminate on either July 2, 1990, or on one of the dates specified by the appellate court, whichever comes first.” With this action, the Board essentially made a unilateral modification of our earlier decision.

The mandate of a reviewing court is the transmittal of that court’s judgment to the trial court, which revests the latter with jurisdiction. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 427 N.E.2d 563.) When a judgment is reversed by a reviewing court, that judgment is final upon all questions decided, and if the cause is remanded, the trial court can take only such action as conforms to the reviewing court’s judgment. (PSL Realty, 86 Ill. 2d at 305, 427 N.E.2d at 570.) That is, the trial court may only do those things directed in the mandate; it has no authority to act beyond the mandate’s dictates. PSL Realty, 86 Ill. 2d at 308-09, 427 N.E.2d at 571.

On appeal, the Board argues that it properly modified our prior decision. Moreover, the Board admitted in its May 24, 1990, order that it was not willing to grant the variance for the time period specified by this court. We also find it significant and telling that after our decision in Citizens II, the Board never asserted that our decision was erroneous, nor did the Board ever petition for rehearing. Rather, the Board in the Environmental Register acknowledged that the case was remanded for the Board to grant Citizens’ variance extension.

The Board cannot pick and choose what it likes in an opinion. Furthermore, it is perplexing that the Board acted as though it felt empowered to take our earlier opinion in Citizens II, refuse to abide by its dictates, and still argue before this very court what we actually meant. We therefore find the Board’s recalcitrant actions to be erroneous and arbitrary.

For these reasons, we vacate the order of the Pollution Control Board and direct it to abide by the dictates of Citizens II and grant the requested variance.

Reversed and remanded with directions.

GORMAN and McCUSKEY, JJ., concur.