author: JUSTICE EGAN JUSTICE RAKOWSKI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—2183
    Opinion filed August 24, 1990.

      RAKOWSKI, J., dissenting.
    Kenneth L. Jones, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Mercedes Luque-Rosales, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Richard Johnson, and Charles Turner were indicted for residential burglary of the home of Carlo Farino at 1827 North Fairfield in Chicago. Turner pleaded guilty to the reduced charge of burglary and testified for the State in the jury trial of the defendant. The defendant was convicted of residential burglary and sentenced to 10 years’ imprisonment.

Before trial the defendant moved to dismiss the indictment based on allegedly improper comments made by the assistant State’s Attorney before the grand jury. Apparently, the defendant had been discharged after a preliminary hearing. Before the grand jury the following occurred:

“THE FOREPERSON: Why was there a finding of no probable cause at the preliminary hearing?
THE WITNESS [Police Officer]: The Judge felt that the State’s Attorney didn’t produce enough questioning to prove that there was an actual burglary. The State’s Attorney didn’t ask enough questions, he felt.
[STATE’S ATTORNEY]: It was established through your testimony that something was taken from there identified by [the complaining witness] and recovered by you, is that correct?
THE WITNESS: Yes.
[STATE’S ATTORNEY]: The Judge wanted more?
THE WITNESS: More.
[STATE’S ATTORNEY]: Presumably a motion picture of the crime, I presume.”

The defendant cites no authority to support his claim that the indictment should be dismissed. The applicable rule is expressed in People v. Stanley (1981), 95 Ill. App. 3d 910, 913, 420 N.E.2d 727, 730:

“Where a defendant charges an irregularity or impropriety in the conduct of a prosecutor in a grand jury proceeding, the burden is on the defendant to show that the prosecutorial conduct complained of resulted in actual and substantial prejudice to him. [Citations.]”

The trial judge determined that the defendant had failed to show any prejudice and denied the motion to dismiss. We agree that the offhand remark by the prosecutor was innocuous and, therefore, did not constitute actual and substantial prejudice.

The defendant next contends that reversible error occurred when the judge permitted the introduction of prejudicial hearsay evidence. The residence of Carlo Farino at 1827 North Fairfield was burglarized on August 28, 1984, and two radios were stolen. Farino was not home at the time of the burglary.

Officer Raymond Stampnick and his partner, Officer Ustaszewski, responded to a call of a burglary in progress at 1827 North Fairfield in Chicago. They both testified that when they arrived at the scene, several Hispanic men came up to them and told them that they had seen four individuals running from the scene and gave the officers descriptions of the individuals. The officer said that the men did not want to give their names because they did not want to become involved in the case. They then toured the area and saw a man who fit one of the descriptions that had been given to them. When they approached the. man, he ran and hid in some bushes. They placed that man, who was the defendant, under arrest and returned to 1827 North Fairfield where the defendant was identified by the Hispanic men.

Stampnick testified that, after the defendant was read his Miranda rights, he told the officers that he did not go into the house; he only stood on the back porch and acted as a lookout. He took them to an apartment building at 2606 West Homer where he said the other participants in the burglary could be found. The officers went into one of the apartments and arrested two juveniles and Chester Turner. The officers found two radios lying on the kitchen floor. Those radios were later identified by Carlo Farino as his property.

After Turner pleaded guilty to the reduced charge of burglary, the State recommended a sentence of 30 months’ probation and drug rehabilitation treatment conditioned upon Turner disclosing “the full truth” in the defendant’s trial. Turner testified that on August 28, 1984, he, along with two juveniles, James Mines and Michael Walker, and the defendant, tried twice to enter the house at 1827 North Fair-field. The first time they tried to get into the house Mines was not with them, and they tried entering through a window which the defendant broke, but they were too big to enter.

As they were walking back home, they met James Mines, who was of small build, and Mines agreed to return with them to Farino’s house. They were trying to enter Farino’s house because the defendant had told them that there was a large amount of money inside. Mines was able to enter the house through a back porch window which Turner said the defendant had opened. Once Mines was inside the house, he opened the back porch door and the defendant, Walker and Turner entered. They searched the bedroom for money, but when they could not find any, the defendant left. Turner, Mines and Walker took two radios and a tire pump from the house and left. As they were leaving the house they met up with the defendant and showed him what they had taken; the defendant told them that “he could pretty positively sell the stuff.” The defendant left, and they went into the back apartment at 2606 Homer. About 10 minutes later the police arrived with the defendant and took Turner, Mines and Walker into custody.

Turner gave the police a statement in which he said, “I watched on the porch while the other two individuals went in.” He admitted that that statement was not true and that he said it because he assumed that if he said he watched on the porch the charges might be accessory to residential burglary instead of residential burglary. He told the police that he was with two individuals rather than three because Mines and Walker were juveniles.

The prosecutors promised that they would recommend that part of his probation be placement in a live-in residential drug treatment center for treatment of drug addiction. He was addicted to cocaine and had been using cocaine for about two years. He used cocaine in various ways, snorting, smoking or shooting it with a hypodermic needle.

He testified that he was aware that the sentence for residential burglary was 4 to 15 years. When he was asked what sentences were possible for burglary, the State’s objection was sustained. (No error is assigned to this ruling.) He testified over objection by the State that the prosecutors had told him he could not get probation after a conviction for residential burglary. He said that he used cocaine “as much as pie] can get it.” The cost of his cocaine habit ranged between $25 a day and $200 a day.

The defendant contends that reversible error occurred when the State was permitted to show that the unidentified Hispanic men first told the police officers that four individuals, whom the Hispanic men described, had fled from the scene and that those individuals later identified the defendant as one of the four men.

In its brief, the State does not attempt to justify the admission of the statements made to the police by the unknown Hispanic men. In oral argument in this court, for the first time, the State maintained that the evidence was admissible to explain police procedure. At our invitation, the State submitted certain authority to us. Although the State has waived the argument by not including it in its brief, we deem it appropriate to answer it.

There is appellate court authority which would support the introduction of the testimony of the police officers in this case on the ground that it explained police procedures. (See e.g., People v. Leverston (1985), 132 Ill. App. 3d 16, 476 N.E.2d 1344.) Two of the cases cited by the State in response to our invitation are People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293, and People v. Bryant (1984), 123 Ill. App. 3d 266, 462 N.E.2d 780. Those cases illustrate the misunderstanding that his arisen in the appellate courts over the difference between a police officer testifying that he had a conversation with a witness without disclosing the contents of the conversation and testifying to the contents of the conversation. In Loggins, police officers testified that two unidentified witnesses reported a license number to them and that a computer license check of the number revealed that the car was registered to the defendant. The appellate court rejected the claim of error and cited People v. Bryant. In Bryant, however, the officer testified only that he spoke to a “witness” who did not give his name. The contents of the conversation between the police officer and the witness were not introduced. Consequently, Loggins’ reliance on Bryant is misplaced. The distinction between an officer testifying to the fact that he spoke to a witness without disclosing the contents of that conversation and an officer testifying to the contents of the conversation is explained in People v. Johnson (1979), 68 Ill. App. 3d 836, 842, 386 N.E.2d 642, 646. If there be any doubt in the matter as a result of conflicting appellate court opinions, the supreme court in People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146, has resolved it. In Gacho, the police officer testified that he had a conversation with the deceased in the hospital and that after that conversation he and his partner went to look for the defendant. The supreme court rejected the claim of error and pointedly added this observation:

“Had the substance of the conversation that [the officer] had with [the deceased] been testified to, it would have been objectionable as hearsay. The testimony of [the officer], however, was not of the conversation with [the deceased] but to what he did and to investigatory procedure. [Citations.]” (122 Ill. 2d at 248.)

It is clear to us, therefore, that the testimony of the police officers that other parties had identified the defendant was error.

The State does argue in its brief that the defendant waived any objection and that any error in admitting the identification evidence was harmless. We reject the State’s argument that any objection was waived. Although the defendant did not object to the testimony of the police officer concerning the identification made by the unidentified persons, four days before the trial began the defendant made a written pretrial motion in limine to exclude all identification testimony by the police. A copy of that motion is in the record. The motion in limine was referred to during the argument on the defendant’s post-trial motion; the judge remembered that he had denied the motion in limine but not the reasons for denying it. It is obvious to us, therefore, that the defendant did raise the matter properly in the trial court and that there is no waiver. With respect to the second part of the State’s answer — that admission of the identification by unknown persons was harmless error — we will defer our discussion on this question until we consider the defendant’s next argument that reversible error occurred during the State’s closing argument.

During the opening portion of the State’s final argument the following occurred:

“[STATE’S ATTORNEY]: [The police officers] spoke with four or five Hispanic people who were in the alley behind Mr. Farino’s house, ladies and gentlemen. They did not get names. They asked for names, they asked for addresses. Those people did not want to be involved. Those people did not want to come into a court and testify against Richard Johnson or anybody else. Yes, they called in a burglary. Yes, they identified the defendants. Yes, they gave a complete description of the four people that ran. They don’t want to come in. That does not take away from your duty, ladies and gentlemen. You wanted to come in. You wanted to serve and you are here to serve the People of the State of Illinois. You cannot take the same attitude as those four or five people that didn’t want to come in and didn’t want to do their duties and say what they saw about Richard Johnson. You are here and you have heard the evidence. Just because other people don’t want to get involved, does not mean that criminals in this State go free. Enough people—
[DEFENSE ATTORNEY]: Objection.
THE COURT: Overruled.” (Emphasis added.)

Later, the prosecutor said that the police brought the defendant back and “[the defendant] was identified.”

During the closing portion of the final argument the following occurred:

“[STATE’S ATTORNEY]: You live in the community. We’re lucky that people are good enough to pick up the phone and call. There are — a lot of them are scared. They have to live in that community. They don’t want to give their names and their addresses.
[DEFENSE ATTORNEY]: Objection, Judge. I object to this whole line of argument. There is no evidence of that.
THE COURT: Overruled.
[STATE’S ATTORNEY]: You live in the community and you know this.
[DEFENSE ATTORNEY]: Objection, again.
THE COURT: The jury is to remember the testimony that was given at the trial. Proceed.
[STATE’S ATTORNEY]:. But we are fortunate that they do at least call up. They do cooperate to some exten[t]. That’s good.
* * *
[STATE’S ATTORNEY]: Ladies and gentlemen, you will also, I believe[,] be instructed that you are not to concern yourself with possible punishment. Now, this is not a mandatory prison case, there is a certain exception which counsel knows about and need apply.
[DEFENSE ATTORNEY]: Objection.
THE COURT: Overruled.
[DEFENSE ATTORNEY]: There is no basis-
THE COURT: Overruled.
[STATE’S ATTORNEY]: And it is for the judge to decide what the sentence should be. It is not your province.” (Emphasis added.)

The prosecution’s argument was improper for a number of reasons: first, it emphasized the improper hearsay evidence that the defendant had been identified by other persons (see People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642); second, it improperly suggested that the other persons who identified the defendant to the police did not testify because of fear, implicitly of the defendant (People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862); and third, it improperly suggested that the defendant could receive probation or, at least, could avoid imprisonment. People v. Neeley (1974), 18 Ill. App. 3d 287, 309 N.E.2d 725.

The State maintains that the defendant waived any assignment of error in the State’s argument because, once again, the defendant did not raise it in his post-trial motion; that the defendant invited the State’s argument that the witnesses were afraid to testify; and also invited the argument concerning punishment. The State contends further that any error in the final argument was also harmless.

On the question of waiver, the State is incorrect. The defendant did raise the State’s improper argument in the post-trial motion. In addition, we do not agree that the defendant invited the argument that the witnesses were afraid or that the defendant might not be sentenced to the penitentiary.

In the defendant’s closing argument, the defendant’s attorney argued that the police did not use sufficient effort to have the unknown Hispanic men come to court. He repeated the police officer’s testimony that the witnesses told him that they did not want to get involved. He argued that it was reasonable to infer that the Hispanic men told the police that the defendant was not the man. The State now contends that that argument invited the State’s argument that the witnesses were afraid to testify. We do not agree that the defendant’s argument that the witnesses might have said something else at the scene invited the argument that they did not come into court because of fear of the defendant.

The State also contends that the defendant invited the reference to possible punishment “when [the defendant’s attorney] argued that this case involved a mandatory prison term of 4-15 years.” The State’s brief does not refer to any part of the record to support its statement. We have reviewed the defense’s closing argument, and the only reference to a sentence for residential burglary came when the defendant’s attorney correctly recited the testimony of Turner that his attorney told him that the sentence for residential burglary was 4 to 15 years in the penitentiary and that there was no probation. This was a proper argument addressed to the motive of an accomplice in testifying. The greater the possible penalty, the greater inducement to testify in return for an avoidance of that penalty. That proper argument and correct statement of the law did not invite the incorrect and misleading statement by the prosecutor that, “this is not a mandatory prison case” and that “there is a certain exception which counsel knows about and need apply.” (Emphasis added.) The State tells us that its response was justified to point out the availability of treatment for the defendant under the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111½, pars. 6301 et seq.). Under section 21 of the Act (Ill. Rev. Stat. 1985, ch. HV-k, par. 6321) the treatment was available only to addicts, and there is nothing in the record suggesting that the defendant was an addict. Moreover, the defendant was on probation at the time he was arrested for this offense, and the Act provided that one on probation or parole could not receive treatment unless the appropriate parole or probation authority consented to it. Therefore, we conclude that the defendant was not eligible for treatment under the Act and the argument was not only an incorrect statement of the law, which contradicted the statement of the defendant’s attorney, but it suggested that the defendant’s attorney made the statement knowing it to be untrue. To make the matter worse, the defendant’s objections to this argument were overruled.

Another improper argument was made when the prosecutor sought to explain what prompted the State to make an agreement with Turner:

“[STATE’S ATTORNEY]: On deciding in a situation where there is [sic] two or more co-defendants, whether we want to make an offer to somebody to get them to testify, we don’t just flip a coin, say, well, we do Mr. A, heads, and Mr. B, tails.
[DEFENSE ATTORNEY]: Objection, this is not based on the evidence.
THE COURT: Overruled.
[STATE’S ATTORNEY]: There’s [sic] a lot of considerations that go into it. Mr. Turner, admitted to you, that he did wrong. He got up there and he admitted it. He’s also admitted to you that he knows, he needs help. He has a drug problem. He does want to do something about it. But don’t be misled, he’s not going to go to any—
[DEFENSE ATTORNEY]: Objection.
THE COURT: Overruled.
[STATE’S ATTORNEY]: — go to any country club and get some treatment and walk out. It is an in-house treatment. He’ll be in there. He can’t walk out. You can’t break a drug habit by being allowed to walk in and out.
[DEFENSE ATTORNEY]: Objection.
THE COURT: That part will be sustained.
[STATE’S ATTORNEY]: He will be inside, he won’t just be walking out.
[DEFENSE ATTORNEY]: Objection, Your Honor.
THE COURT: Sustained.”

That argument amounted to testimony concerning the security of the rehabilitation service which does not appear in the record. Despite the court’s sustaining an objection, the prosecutor persisted in the argument. Once again, we disagree with the State’s contention that the defendant’s argument invited that response. However, we do not believe that this argument had the same prejudicial impact of the other arguments to which we have referred.

We thus conclude that error occurred in the admission of hearsay evidence and in the prosecution’s closing argument. The issue is reduced to whether the errors were harmless. We agree that the evidence is sufficient to establish the defendant’s guilt beyond a reasonable doubt, but we believe that the errors were not harmless and their cumulative effect deprived the defendant of a fair trial.

The State has cited four cases in support of its contention that the admission of the hearsay identification was harmless: People v. Sias (1980), 91 Ill. App. 3d 1095, 415 N.E.2d 618; People v. Anthony (1980), 90 Ill. App. 3d 859, 418 N.E.2d 757; People v. Smith (1978), 59 Ill. App. 3d 480, 375 N.E.2d 941; and People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364.

Those cases, in varying forms, have expressed a general rule: hearsay identification is reversible error only when it serves as a substitute for courtroom identification or when it is used to strengthen or corroborate a weak identification. If, however, the testimony is merely cumulative or is supported by a positive identification and by other corroborative circumstances it constitutes harmless error. The State tells us that the testimony of Chester Turner provides the positive testimony of identification that supports the identifications made by the unknown persons. We are not prepared to characterize the testimony of Turner as "positive.” Turner, the principal witness against the defendant, was an accomplice and a narcotics addict. The testimony of accomplices and narcotics addicts is suspect as a matter of law. He made a false statement to the police as to his own participation and in that statement he made no mention of the defendant. His explanation that he inculpated only the juveniles, but not the defendant, because the defendant was an adult does not make sense. He knew that the defendant had brought the police to him and the juveniles. Under the circumstances, if the defendant had participated in the burglary, there was no reason for Turner not to say so.

The police officer testified that the unidentified witnesses said that they saw “four individuals running from the scene.” The statement of the unidentified witnesses, if made and if true, contradicted Turner’s testimony that the defendant left the premises five minutes before Turner and the two juveniles. Turner never testified that anyone fled from the scene; he said that he and the two juveniles walked back to Homer Street where they “met up with” the defendant.

Of' course, we cannot ignore the most damaging evidence against the defendant which was the fact that he led the police to the place where the stolen radios were recovered. But even that evidence would not be enough unless the State had introduced the testimony of Officer Stampnick that the defendant told him that he had acted as a lookout. That testimony, it is true, was undenied, but Stampnick’s testimony was not without its infirmities. First of all, the statement was oral, and it was at odds with the testimony of Turner. Stampnick testified that he arrested the defendant approximately one block from the scene of the burglary. The defendant contended in oral argument that the proof showed that the defendant was arrested four or five blocks from the scene. In response to that argument, the prosecutor told the jury that the distance was really immaterial but conceded that the defendant was “a few blocks away” when he was arrested. Stampnick made no mention in his police report that the defendant was running, that he jumped on the railroad tracks or that he hid in bushes. Last, the argument made by the defense attorney that the police made less than a diligent effort to learn the identity of the identifying witnesses was a reasonable one. By these observations we do not mean to indicate that the testimony of the police officers was inherently unbelievable, but we do believe that respectable arguments may be made against accepting it.

In three of the four cases cited by the State, Sias, Smith and Coleman, the issue centered on testimony by a police officer that the victim, who testified and was subject to cross-examination, made an identification. In People v. Rogers (1980), 81 Ill. 2d 559, 411 N.E.2d 223, the supreme court held that where a victim identifies a defendant in court, he may testify that he previously identified the defendant before trial and, therefore, a third person may also testify that the victim identified the defendant. (81 Ill. 2d at 579.) Consequently, under Rogers, the testimony of the police officers in Sias, Smith and Coleman was proper.

In Anthony, the other case cited by the State, two witnesses identified the defendant. A third identifying witness testified on a motion to suppress evidence but not at the trial. The appellate court held that the police testimony that the third witness identified the defendant was harmless error in view of the fact that two other witnesses positively identified the defendant. Apart from the fact that there are not two positive identifications in this case, we note that the holding of Anthony is at odds with People v. Johnson (1979), 68 Ill. App. 3d 836, 386 N.E.2d 642. In Johnson, the charge was robbery and the complaining witness testified that the robber took four $5 bills and a stack of $1 bills. He estimated the total amount to be about $40. When the defendant was arrested shortly thereafter, the police recovered $46 from under a pile of clothing which was next to the defendant. The money recovered consisted of four $5 bills and twenty-six $1 bills. One witness positively identified the defendant, but the State also introduced testimony that another person, not called to testify, identified the defendant also. The State argued that the error was harmless because of the positive identification by one witness and the other corroborative evidence of the money recovered. The appellate court refused to accept the State’s argument while noting that the positive identification alone might have been sufficient to convince the jury of the defendant’s guilt. The court also held that the corroborative circumstance was not so overwhelming as to ameliorate the effect of the error in the introduction of the hearsay identification and the accentuation of the error when the prosecutor referred to the hearsay identification in his closing argument. 68 Ill. App. 3d at 842-43.

We believe that a case cited by the defendant, People v. Lopez (1987), 152 Ill. App. 3d 667, 504 N.E.2d 862, is much in point. In Lopez, the defendant was convicted of murder. A tavern owner, who knew the defendant, testified to an altercation between the deceased and the defendant in the witness’ tavern. Another person, a woman, witnessed the altercation and identified the defendant as a participant. She testified that several hours later she saw the defendant shoot the victim to death in the tavern and then flee. She said that the defendant was wearing a sleeveless yellow tee-shirt and blue pants. A third witness, another customer, saw a man, wearing a yellow colored tee-shirt and blue pants, leave the tavern after the shooting. A fourth witness, a 14-year-old boy, testified that he saw the defendant enter a tavern with a gun, that he heard gunshots one minute later and that he saw the defendant leave with a gun in his hand and get into a brown Chevrolet Monte Carlo with a two-tone roof.

Police officers responding to a call of a tavern shooting stopped a brown Chevrolet Monte Carlo with a two-tone roof whieh the defendant was driving. He was wearing a sleeveless yellow tee-shirt and blue pants. Sometime later the defendant was brought back to the tavern by the police in a squadrol. One officer asked an unidentified woman to look inside the squadrol. After looking inside, the woman screamed, “That’s him, that’s him there.” Later a number of people ran out of the tavern and also started screaming, “That’s him, that’s him.” This court held that the evidence that the defendant was identified by unknown persons outside the tavern was prejudicial error. The court also held that prejudicial error also occurred during the State’s closing argument when the prosecution referred to the hearsay identification outside the tavern. The appellate court reversed the conviction and remanded for a new trial. In response to the State’s argument that the error was harmless, the court made this observation pertinent in this case:

“Regardless of a defendant’s guilt or innocence, he is constitutionally entitled to a fair and impartial trial [citation]; here, defendant did not receive one.” 152 Ill. App. 3d at 682.

In our judgment, the evidence of guilt was even stronger in Lopez than is the evidence of guilt in this case; it is also our judgment that the defendant in this case did not receive a fair and impartial trial.

The defendant has made other assignments of error including the claim that the court erred in denying him the right to file a motion to quash the arrest and suppress evidence or, alternatively, that his counsel provided ineffective assistance in failing to make a timely motion to quash the arrest and suppress the evidence. The defendant also contends that the State failed to prove beyond a reasonable doubt the factors required for Class X sentencing. Since this case is being remanded for a new trial, we need not consider these assignments of error.

For these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

LaPORTA, P.J., concurs.

JUSTICE RAKOWSKI,

dissenting:

I do not agree that the State committed reversible error when it introduced hearsay identification evidence and referred to that evidence in closing argument. Neither the cases cited by the majority nor the circumstances of this case support overturning an otherwise proper conviction because of the introduction of improper hearsay identification when the defendant confessed to the crime and his identification was not an issue at trial.

At trial, the State presented four witnesses: Johnson’s adult accomplice, Chester Turner; the victim, Carlo Farino; and arresting officers Stampnick and Ustaszewski. Turner testified about the burglary committed with Johnson and two juveniles. Farino identified items taken from his home.

Officers Stampnick and Ustaszewski testified that they arrested Johnson after they responded to a call about a break-in at the victim’s home. According to Stampnick, several male Hispanics came up to the police car and described four individuals whom they had observed running from the scene. According to Ustaszewski these witnesses had seen the four individuals break into a building. Both officers stated that the witnesses described the four alleged perpetrators. Shortly afterwards, when the officers observed Johnson jumping from nearby railroad tracks and hiding in some bushes, they arrested him.

The officers then took Johnson back to the crime scene, where the witnesses identified him. According to Ustaszewski, there were five to seven of these witnesses, but none of them would give his name to the police.

The officers testified further that Stampnick gave Johnson his Miranda rights. Afterwards, Johnson admitted acting as a lookout for the break-in. He then led the police to the house where Turner and the juveniles were waiting.

In its closing argument, the State referred once again to the unknown witnesses, their identification of Johnson, and their refusal to testify.

On appeal Johnson contends that the police testimony about the identifications made by unknown witnesses at the crime scene was hearsay and reversible error and this error was compounded when the State referred to the identifications in closing argument.

When police testify about conversations with witnesses during an investigation, the State may introduce the fact of the conversation to show police investigative procedures but may not introduce the substance of the conversation. (Gacho, 122 Ill. 2d at 247-49.) I agree with the majority that the testimony here went beyond this permissible limit and thus constitutes error.

Unlike the majority, however, I believe the error was a harmless one, that is, a “technical violation of a rule of evidence not considered a sufficient basis for reversal because the admission or exclusion did not affect a substantial right of a party.” (People v. Demeron (1987), 153 Ill. App. 3d 440, 446, 505 N.E.2d 1222.) This kind of error may be disregarded. (107 Ill. 2d R. 615(a).) One test for harmless error is “whether the evidence is cumulative or merely duplicates properly admitted evidence.” (People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526.) When the hearsay involves identification, the error is harmless unless “it was a substitute for courtroom identification or used to strengthen or corroborate a weak identification.” Lopez (1987), 152 Ill. App. 3d at 676.

The majority cites Lopez as a case on point. While I agree that Lopez is a correct statement of the law, it can easily be distinguished on its facts.

First, in Lopez identification was an issue. While the defendant did not testify, his opening argument suggested a “modified alibi defense” that he was in another tavern at the time of the shooting. Lopez, 152 Ill. App. 3d at 672.

Second, the hearsay identification in Lopez was used to “strengthen or corroborate a weak identification.” (Lopez, 152 Ill. App. 3d at 676.) The court reasoned:

“[W]e are not convinced that the jury would have found [the court witnesses’] identification of defendant to be as strong, as the State contends [sic], in the absence of the State’s introduction and repeated exploitation of the [hearsay] squadrol identifications. At trial, it was disputed whether [one court witness] had told the police she was ‘pretty sure’ but not positive about her identification of defendant, and that she was hysterical after the shooting. The record also discloses that [another court witness] only saw defendant for approximately 10 seconds when he allegedly entered and left the tavern. In closing and rebuttal arguments, the State specifically stated that the [hearsay] identifications corroborated [these court witnesses’] identifications of defendant as the shooter.” Lopez, 152 Ill. App. 3d at 676-77.

In this case, by contrast, identification is simply not at issue. The hearsay witnesses merely indicated that Johnson had fled from the scene with three others. Even if these witnesses had appeared in court, they could do no more than place Johnson at the vicinity of the crime. The most important evidence against Johnson was his own confession to the police and his action in leading the police to a place where the three other burglars were waiting. Johnson’s specific role in the burglary was at issue; his identity as a person on the scene was not.

Since the hearsay “merely duplicated] properly admitted evidence” (Wilkerson, 87 Ill. 2d at 157) and did not “substitute for courtroom identification” or “strengthen or corroborate a weak identification” (Lopez, 152 Ill. App. 3d at 676), it was harmless. The State’s reintroduction of the hearsay identification in closing was also harmless unless the result of the trial “might have been otherwise had the remarks not been made.” (People v. Love (1985), 139 Ill. App. 3d 104, 115, 486 N.E.2d 1337.) Again, since identification was not the issue, this brief closing reference to identification evidence which should have been excluded at trial was not reversible error.

I would affirm.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM CRENSHAW, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1802
    Opinion filed August 24, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mark Floyd Pasterski and James Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Sharon Jefferson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was convicted of possession of a controlled substance with intent to deliver in violation of section 401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 1401(b)(2)). He was then sentenced to a term of six years. The issues presented on appeal are: (1) whether the trial court erred in refusing to instruct the jury on the lesser included offense of possession of a controlled substance; (2) whether the evidence was sufficient to convict defendant of possession of a controlled substance with intent to deliver beyond a reasonable doubt; and (3) whether defendant established a prima facie case that the State’s use of peremptory challenges was discriminatory.

Defendant was driving near the vicinity of 71st Street and Halsted Avenue in Chicago at 1:30 in the morning on February 14, 1987. He stopped at the intersection, and a man entered his vehicle. When the traffic light at the intersection turned green, several cars which were behind defendant began to sound their horns. Defendant turned left and began to drive down 71st Street when two police officers who were on routine patrol directed him to pull his vehicle to the side of the curb and stop. Defendant then exited his vehicle and started walking toward the patrol car. Both officers testified at the trial that they saw defendant remove a packet of white powder from his jacket pocket and throw it to the ground. The packet was retrieved, and defendant was placed under arrest. He was then placed in the patrol car while the officers searched his vehicle. As a result of the search, a loaded revolver was found under the seat of the driver’s side of the vehicle. Defendant was then searched, and an undisclosed amount of currency was found in one of his pockets. The passenger in defendant’s vehicle was also searched, but he was not arrested. Defendant was charged with possession of a controlled substance with intent to deliver and unlawful use of a firearm by a felon. During the selection of jurors, the State used peremptory challenges to exclude four black women from the jury. Defendant moved that the venire be stricken, but the court denied defendant’s motion.

Following the trial, the parties stipulated that the packet discarded by defendant contained 11.2 grams of cocaine which was divided into 22 smaller packets. During the jury instruction conference, defendant’s request for an instruction on the lesser included offense of possession of a controlled substance was denied. The jury found defendant guilty of possession of a controlled substance with intent to deliver but acquitted him on the unlawful use of a firearm charge.

Defendant first contends that the trial court erred in refusing to instruct the jury on the offense of possession of a controlled substance because the evidence could have supported a verdict on the lesser offense. A trial court’s refusal to give an instruction defining the lesser included offense of possession of a controlled substance is not error where the evidence only concerns delivery or intent to deliver, and the jury would only be justified in issuing a verdict of guilty or not guilty on the greater offense. However, if the evidence in the record could support a verdict on the lesser offense, an instruction defining this offense should be given. People v. Fonville (1987), 158 Ill. App. 3d 676, 685, 511 N.E.2d 1255; People v. Mitchell (1984), 129 Ill. App. 3d 189, 199, 472 N.E.2d 114; People v. Dunn (1977), 49 Ill. App. 3d 1002, 1010, 365 N.E.2d 164.

In this case, the evidence presented by the State was the officer’s testimony that a male passenger entered defendant’s vehicle shortly before they directed him to stop, and that defendant discarded a packet containing a white substance when he exited his vehicle. The State presented additional evidence that the content of the packet was determined to be 11.2 grams of cocaine which was divided into 22 smaller packets. Although defendant, his passenger and the vehicle were searched, the only other items retrieved were a loaded revolver located under the driver’s seat and an unidentified amount of money in defendant’s possession. The ownership of the weapon as well as the vehicle were also unknown.

The State argues that the trial court’s refusal to give an instruction on the lesser offense was proper because the evidence was sufficient to convict defendant of the greater offense of possession with intent to deliver. However, even if there was evidence of intent to deliver, the controlling issue is whether the evidence could have also supported a verdict on the lesser included offense. (Mitchell, 129 Ill. App. 3d at 199.) The State cites three cases in support of its argument, and while we agree with the holding in these cases, they contain fact patterns where the amount of the controlled substance was much greater than the amount in the instant case, or the sale and/or delivery of the controlled substance was directly observed by the police. (See People v. Zipprich (1986), 141 Ill. App. 3d 123, 490 N.E.2d 8; People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082; People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) None of these cases hold that 11.2 grams of cocaine are greater than an amount intended for personal use, and there was no direct evidence of any sale or delivery of the controlled substance in defendant’s possession.

We also do not find that the presence of a loaded weapon in the vehicle or the division of the cocaine into 22 smaller packets was conclusive evidence of an intended delivery. The ownership of the weapon and the vehicle was never established, and the jury acquitted defendant of the unlawful use of a weapon charge. In addition, the division of 11.2 grams of cocaine into 22 packets could just as well have been the form in which the substance was purchased by defendant rather than the form in which it was to be sold.

For the reasons set forth above, we conclude that the evidence would have supported a verdict for the lesser offense. Therefore, it was improper for the trial court to refuse defendant’s request for an instruction to the jury on the lesser offense of possession of a controlled substance.

Defendant also contends that the evidence was not sufficient to support his conviction for possession of a controlled substance with intent to deliver, and that his conviction should be reduced to the lesser included offense. When an appellate court reviews the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, quoting Jackson v. Virginia (1979), 443 U.S. 307. 318-19. 61 L. Ed. 2d 560. 573. 99 S. Ct. 2781, 2788-89.

The State argues that, although the intent to deliver is not always subject to direct proof, an inference of intent to deliver is permitted based on the existence of other factors. The State claims that the factors supporting an inference of intent to deliver in this case were defendant’s possession of 11.2 grams of cocaine, which was allegedly an amount greater than that intended for personal use, and the division of the cocaine into 22 smaller packets. Although the State cites Knight (133 Ill. App. 3d 248) and People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428, in support of its argument, the controlled substances confiscated in Knight were 103 grams of cocaine, 364 grams of cannabis and 638 grams of PCP, and in Schaefer the controlled substances confiscated were 21.9 grams of cocaine and 578.8 of cannabis. (Knight, 133 Ill. App. 3d at 252; Schaefer, 133 Ill. App. 3d at 702.) In the instant case, the police found less than a half of an ounce of cocaine in defendant’s possession. Furthermore, the defendant in Knight and Schaefer were found with scales and other drug paraphernalia in their possession, unlike defendant in this case who only had possession of the controlled substance. Thus, we conclude that the State’s argument that 11.2 grams of cocaine were more than a person would have for personal use is without merit and unsupported by the authorities cited, particularly where there were no other items in defendant’s possession that could support an inference of intent to deliver.

Contrary to the State’s argument, the division of the 11.2 grams of cocaine into 22 smaller packets was also insufficient to support an inference of intent to deliver. There was no evidence that defendant had placed the substance in the packets, and the packets could have been the form in which the substance was purchased by defendant rather than the form in which it was to be sold. Additional factors such as the passenger in the vehicle with defendant, the weapon under the driver’s seat and the currency in defendant’s possession were also not sufficient evidence to support an inference of intent to deliver. Although the police saw the passenger enter defendant’s vehicle, they observed no transaction between them during the time he was in the vehicle with defendant that would be indicative of a drug delivery or sale. In addition, the police found no contraband when they searched the passenger. The currency in defendant’s possession was of no significance because the amount was never determined. Lastly, the weapon found in the vehicle could not serve as evidence of intent to deliver for several reasons. The ownership of the weapon and the vehicle in which it was found was unknown, and the jury acquitted defendant on the unlawful use of a weapon charge.

Because there was no direct evidence of delivery, and the evidence was not sufficient to support an inference of intent to deliver, we conclude that there was reasonable doubt that defendant was guilty of possession of a controlled substance with intent to deliver.

Accordingly, defendant’s conviction for the greater offense is reversed. Pursuant to Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)), defendant’s conviction is reduced to the lesser included offense of possession of a controlled substance, and the cause is remanded for a new sentencing hearing. Based on our conclusions regarding this issue, we omit discussion of defendant’s third issue.

Judgment reversed and remanded.

LAPORTA, P.J., and EGAN, J., concur.


author: JUSTICE McNAMARA

text:
    BRIAN DEXHEIMER, Appellant, v. THE INDUSTRIAL COMMISSION et al., Appellees.
    First District (Industrial Commission Division)
    No. 1—89—2255WC
    Opinion filed August 24, 1990.

      Steck & Spataro, of Chicago (George S. Spataro, of counsel), for appellant.
    Law Offices of Roderick J. Bergin, of Chicago (Neal K. Wishnick, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Bruce Dexheimer, brought an emergency petition pursuant to section 19(b — 1) of the Worker’s Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), seeking a continuation of temporary total disability benefits for injuries sustained while working for respondent, Flying Tigers. The arbitrator found that petitioner was not entitled to temporary total disability benefits after June 1, 1988. The Industrial Commission (Commission) affirmed the decision of the arbitrator, and the circuit court of Cook County confirmed the decision of the Commission. Petitioner appeals, citing as error the admission into evidence of the deposition testimony of an evaluating physician and the failure to admit into evidence the deposition testimony of one of his treating physicians. Petitioner additionally contends that the findings of the Commission are against the manifest weight of the evidence.

Petitioner was employer by respondent on June 5, 1985. On that date, he sustained work-related injuries to his cervical spine, neck and shoulders, sacral spine and torso, lower extremities, and left arm and elbow. Petitioner received treatment for his injuries from the Franklin Park Medical Clinic, Dr. Wayne Patrosky, Dr. Mark Lorenz, Dr. Ronald Sage, and Dr. Michael Gonzales.

During the period from June 5, 1985, through June 1, 1988, petitioner underwent a course of treatment involving a discectomy at the L5-S level of his lumbro-sacral spine and a program of rehabilitative physical therapy. Dr. Gonzales was petitioner’s treating physician during a large portion of this period. During therapy, petitioner developed an acute sesamoiditis of the right foot and was referred to Dr. Sage for additional treatment.

Petitioner returned to work on September 5, 1986, but was unable to continue full-time employment due to pain in his cervical area, lumbro-sacral area and right foot. He began to limp and experience tightness and spasms in his back, with pain radiating down his. legs. He indicated that he had trouble bending, twisting, walking, lifting and squatting. Dr. Gonzales took him off work again. Petitioner has not returned to work with respondent and remains under the care of Drs. Gonzales and Sage.

Petitioner, however, continues to operate Dex Contracting, Inc., a company which he organized on July 2, 1987. The company operates from April to October installing swimming pools.

Donald Musil, a private investigator, testified for respondent that he conducted a surveillance of petitioner. On May 12, 1988, Musil observed petitioner driving a truck loaded with topsoil. After the topsoil was dumped onto a driveway, Musil saw petitioner with a shovel in his hand, taking the shovel with dirt to a flower bed in front of a nearby house. Petitioner and his wife removed one-half of the soil from the truck, which was 15 to 16 feet long. Musil observed nothing unusual about petitioner’s gait while he was shoveling and raking.

Dr. George Cooper examined petitioner for respondent. Dr. Cooper testified in a deposition that in his opinion, petitioner had no impairment to motion or function and that he could return to work and do all his ordinary activities. Dr. Cooper concluded that petitioner had been overtreated and that any further treatment was an iatrogenic reinforcement.

On appeal, petitioner contends that the admission of Dr. Cooper’s •testimony into evidence was improper and prejudicial. Petitipner maintains that Dr. Cooper read his report into the record without the proper foundation having first been laid. Petitioner argues that the evidence qualifies neither as present recollection refreshed nor past recollection recorded.

Initially we note that in a proceeding before the Commission, the Illinois rules of evidence govern. (50 Ill. Adm. Code §7030.70 (1985).) In Illinois, when a witness has no independent recollection of facts within his knowledge, the witness may be permitted to refresh his memory by the use of a writing, provided, however, the witness can, after inspecting the writing, speak to the facts from his own recollection. (United States Steel v. Industrial Comm’n (1966), 35 Ill. 2d 506, 221 N.E.2d 258; People v. Griswold (1950), 405 Ill. 533, 92 N.E.2d 91.) If, after inspecting the writing, the witness cannot speak to the facts from his own recollection, the documents may be admitted into evidence as past recollections recorded. (Diamond Glue Co. v. Wietzychowski (1907), 227 Ill. 338, 81 N.E. 392; Noumoff v. Rotkvich (1967), 88 Ill. App. 2d 116, 232 N.E.2d 107.) In order for documents to be admitted as past recollections recorded, the following requirements first must be met: the genuineness of the writing and the accuracy of its contents must be established through foundation testimony; the writing must have been made contemporaneously within or shortly after the event or happening that it alleges to record; and the writing must have been made by the witness or someone under his direction with certain guarantees of correctness. Noumoff v. Rotkvich, 88 Ill. App. 2d 116, 232 N.E.2d 107.

Dr. Cooper’s testimony was taken by deposition, partially conducted at his office and partially at the Commission in the presence of the arbitrator. Throughout Dr. Cooper’s testimony, attorneys for petitioner and respondent disputed whether the doctor was reading directly from his report or was using his report to refresh his recollection. During one of the colloquies, Dr. Cooper stated that he was not reading directly from his report. Respondent’s counsel noted that the doctor was not reading word for word from the report, but rather, was referring to the report on occasion. Petitioner’s counsel stated that the doctor was reading directly from the report. The arbitrator found that Dr. Cooper’s manner of testimony was not contrary to the law and permitted the deposition to go into the record in its entirety. The Commission confirmed this finding.

The trial court, or here, the Commission, has considerable discretion to determine whether the writing does in fact revive the witness’ recollection. (See People v. Black (1980), 84 Ill. App. 3d 1050, 406 N.E.2d 23; City of Crystal Lake v. Nelson (1972), 5 Ill. App. 3d 358, 283 N.E.2d 239.) Thus, the issue of whether the doctor read directly from his report or referred occasionally to his report is one which properly belongs to the Commission. Moreover, it is the function of the Commission to decide questions of fact. (Johns v. Industrial Comm’n (1980), 81 IH. 2d 145, 407 N.E.2d 61.) The decision of the Commission will be disturbed only if it is against the manifest weight of the evidence. Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236, 461 N.E.2d 954; Roberts v. Industrial Comm’n (1983), 93 Ill. 2d 532, 445 N.E.2d 316.

We believe the Commission properly resolved the conflicting positions of petitioner and respondent with respect to Dr. Cooper’s manner of testimony. The arbitrator heard the arguments of counsel, reviewed applicable case law, and personally observed a portion of Dr. Cooper’s testimony. The Commission determined that the testimony was properly admitted, and our review of the record reveals no basis for disturbing that determination.

Petitioner next contends that the deposition testimony of Dr. Gonzales, petitioner’s treating physician, was improperly barred. Petitioner maintains that although Dr. Gonzales’ deposition was taken outside the presence of opposing counsel in contravention of the rules of the Commission (50 Ill. Adm. Code §7030.60 (1985)), it nonetheless should be admitted because of the emergency nature of a section 19(b — 1) hearing.

Petitioner essentially urges this court to find that the rules of the Commission do not apply with full force when a section 19(b — l) petition is involved. However, we need not reach this issue. A review of the record reveals that the medical records of Dr. Gonzales were admitted into evidence in their entirety and provided ample grounds for the Commission’s decision. Specifically, the record contains the medical records of Dr. Gonzales beginning in April 1986 and continuing through August 1988. Those records include patient intake forms, prescriptions, responses to insurer’s requests, physician’s notes and various reports. All of these records were available to the Commission, including the reports upon which petitioner bases his claim for additional temporary total disability benefits. The Commission reviewed these reports and concluded that there were no objective medical findings, related to the June 5, 1985, accident, which would serve as a basis for awarding additional benefits. In view of the extensive and detailed reports available to the Commission, we find that petitioner was not prejudiced in any way by the Commission’s refusal to admit the deposition testimony of Dr. Gonzales and, in fact, admission of that testimony would have been cumulative.

Petitioner finally contends that the Commission’s determination' that he was not entitled to temporary total disability benefits after June 1, 1988, was contrary to the manifest weight of the evidence. Petitioner maintains that the records of his treating physician together with other testimony presented at the hearing establish that as of June 1,1988, he continued to have a work-related disability.

It is the province of the Commission to weigh and resolve conflicts in testimony, including medical testimony, and to choose among conflicting inferences therefrom. (Pazara v. Industrial Comm’n (1980), 81 Ill. 2d 76, 405 N.E.2d 767; Shockley v. Industrial Comm’n (1979), 75 Ill. 2d 189, 387 N.E.2d 674; Fletcher v. Industrial Comm’n (1970), 44 Ill. 2d 359, 255 N.E.2d 403.) It is only when the decision of the Commission is without substantial foundation in the evidence or its finding is manifestly against the weight of the evidence that the findings of the Commission should be set aside. (Olympic Commissary Co. v. Industrial Comm’n (1939), 371 Ill. 164, 20 N.E.2d 86.) That is, a reviewing court will not discard the findings of the Commission, even though it might have decided differently on the same facts, unless such findings are contrary to the manifest weight of the evidence. Shockley v. Industrial Comm’n, 75 Ill. 2d 189, 387 N.E.2d 674; Riteway Plumbing v. Industrial Comm’n (1977), 67 Ill. 2d 404, 367 N.E.2d 1294.

The Commission reviewed the records and reports of petitioner’s treating physician as well as the evidence from Dr. Cooper. Dr. Cooper concluded that petitioner was not currently suffering from a work-related injury and had, in fact, been overtreated. It is true that Dr. Cooper’s conclusions are not compatible with those of Dr. Gonzales. However, when confronted with conflicting medical opinions, it is the function of the Commission to decide which evidence is more worthy of belief. (Fletcher v. Industrial Comm’n, 44 Ill. 2d 359, 255 N.E.2d 403.) The Commission chose to credit Dr. Cooper’s findings, and we find no basis to disturb the Commission’s decision, particularly in view of the fact that those findings were corroborated by the private investigator, who observed petitioner raking and shoveling topsoil with no visible movement impairment. We find that the Commission’s determination with regard to the extent of petitioner’s disability was not manifestly erroneous.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


text:
    ERNEST J. HOZIAN, Plaintiff-Appellant, v. MARY G. SWEENEY et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—2323
    Opinion filed August 24, 1990.
    John J. Milano, of Chicago, for appellant.
    James J. Des Veaux, of Chicago (Jeff Goldberg and Daniel C. Shapiro, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff brought an action against the defendants, Mary G. Sweeney and John H. Sweeney, demanding judgment against them for their alleged negligence which resulted in a car collision and injuries to the plaintiff. The defendants moved pursuant to Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) for a dismissal of the complaint with prejudice. The trial court granted the defendants’ motion, and the plaintiff appeals, contending that the trial court erred in dismissing the complaint.

The plaintiff initially filed a lawsuit on October 17, 1986. The plaintiff’s complaint sought damages for personal injuries arising out of an automobile accident which occurred on October 19, 1984. The applicable statute of limitations expired on October 19, 1986. On October 20, 1988, the plaintiff’s lawsuit was dismissed for want of prosecution. The defendants were never served with process during the pendency of that lawsuit. Thereafter, the plaintiff filed a second lawsuit on December 23, 1988, pursuant to section 13—217 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 13—217.) The defendants were served with process on January 12, 1989. After being served in the second lawsuit, the defendants filed a motion to dismiss the plaintiff’s complaint with prejudice pursuant to Supreme Court Rule 103(b) which the trial court granted.

The plaintiff now argues that the dismissal was error and asserts that his right to refile under section 13 — 217 of the Code of Civil Procedure is absolute and that a trial court, when ruling upon a motion pursuant to Rule 103(b), should consider the due diligence in effecting service of process on the refiled action only. The defendants assert that a trial court should examine the plaintiff’s diligence in the original action as well as in the refiled action when considering a Rule 103(b) motion and that a Rule 103(b) motion can properly be granted even where the lawsuit was filed pursuant to section 13 — 217 of the Code of Civil Procedure following a dismissal for want of prosecution. The defendants are correct.

Although previous cases had held that the right to file a complaint under section 24 of the Limitations Act (now section 13—217 of the Illinois Code of Civil Procedure) was absolute (Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796), several recent supreme court cases have discussed the interplay of Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) and section 13 —217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13—217).

Section 13—217 of the Code of Civil Procedure provides, in pertinent part:

“[I]f *** the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, *** then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater, *** after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution ***.” Ill. Rev. Stat. 1985, ch. 110, par. 13-217.

Supreme Court Rule 103(b) provides:

“If the plaintiff fails to exercise [due] diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” 107 Ill. 2d R. 103(b).

A motion to dismiss pursuant to Rule 103(b) is addressed to the sound discretion of the trial court, and absent an abuse of that discretion, the trial court’s ruling will not be disturbed. (Wallace v. Smith (1979), 75 Ill. App. 3d 739, 743, 394 N.E.2d 665.) Rule 103(b) puts the burden upon the plaintiff to show that he has exercised reasonable diligence in obtaining service. (Wallace, 75 Ill. App. 3d at 743.) It is not incumbent upon defendant to show prejudice by the delay. (Wallace, 75 Ill. App. 3d at 744.) Although courts have been warned against using Rule 103(b) as a vehicle to dispose of litigation, dismissals of actions are nevertheless clearly appropriate when the statute of limitations has expired and reasonable diligence to obtain service has not been exercised. Wallace, 75 Ill. App. 3d at 743.

In O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, the Illinois Supreme Court examined the interrelationship between the diligence requirement of Supreme Court Rule 103(b) and section 13 — 217 of the Code of Civil Procedure, which permits the refiling of suits beyond the expiration of the applicable statute of limitations. The plaintiff in O’Connell filed suit on the last day under the applicable statute of limitations and failed to serve the defendants for nine months thereafter. The defendants moved for dismissal under Supreme Court Rule 103(b), and in response, the plaintiff voluntarily dismissed his action under section 2—1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1009). The trial judge allowed the plaintiff’s dismissal without taking any action on the defendant’s pending Rule 103(b) motion. The plaintiff then refiled his action pursuant to section 13 — 217 and served the defendants within 10 days. The defendants again moved for dismissal under Rule 103(b), and the trial judge denied the motion.

The O’Connell court held that sections 2 — 1009 and 13 — 217 of the Code of Civil Procedure unduly infringed on the authority of the judiciary to discharge its duties fairly and expeditiously. A plaintiff’s right to voluntarily dismiss and refile his complaint was thus subject to the requirement of reasonable diligence enunciated in Rule 103(b). Furthermore, the court held that in assessing reasonable diligence, a trial judge may consider the circumstances surrounding the plaintiff’s service of process of both the original complaint and the refiled complaint.

The plaintiff in the present case contends that O’Connell is not applicable because in O’Connell the defendants filed a motion to dismiss pursuant to Rule 103(b) after they were served and that, after the motion to dismiss was filed, the plaintiff filed a motion to voluntarily dismiss his complaint. In this case, plaintiff asserts that the motion to voluntarily dismiss was filed prior to the service on the defendants and, therefore, the O’Connell case is not applicable. However, there is no requirement that a defendant must have been served in the original action and must have moved for a Rule 103(b) dismissal before the original action was dismissed in order for O’Connell to be applicable. (Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586.) Also, there is no indication in the record on appeal that there was a voluntary dismissal taken in this case. The record discloses that the original lawsuit was dismissed for want of prosecution. O’Connell applies to a situation where the original lawsuit is dismissed for want of prosecution and a later lawsuit is sought to be dismissed under Ride 103(b), notwithstanding the fact that the defendant was never served with process in the original action and thus never had an opportunity to move for dismissal pursuant to Rule 103(b) before the dismissal for want of prosecution. (See Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932.) That is exactly what occurred in this case.

The plaintiff relies on Martinez v. Erickson (1989), 127 Ill. 2d 112, 535 N.E.2d 853, and refers us to the journal article: Newman, The Plaintiff’s Right To Dismiss and Refile — A Modern Odyssey, 12 Ill. Trial Law. J. 23 (1989). The author opines that the thrust of Martinez is to overrule O’Connell and resurrect that language from Aranda which states: “ ‘the period of time within which plaintiff must obtain service following the refiling of his suit under section 24 [i. e., the statutory predecessor to section 13—217] cannot be so abbreviated as to make the right granted by that action meaningless.’ ” (12 Ill. Trial Law. J. at 48, quoting Aranda v. Hobart Manufacturing Corp. (1977), 66 Ill. 2d 616, 363 N.E.2d 796.) Here, plaintiff obtained service over the defendants 19 days after his section 13—217 refiling. He argues that the trial court’s ruling has rendered his section 13—217 right meaningless.

Although Martinez does contain the above-quoted language, we do not construe it to signal a departure from O’Connell. To the contrary, Martinez expressly relies on O’Connell, Catlett and Muskat and goes on to state: “According to the O’Connell standard, as developed, the circuit judge is to consider service after refiling in light of the entire history of the case. He cannot disregard obvious diligence on the part of the plaintiff after refiling. The determination of diligence must be made in light of the totality of the circumstances.” (Martinez, 127 Ill. 2d at 121-22. See also Riopelle v. Northwest Community Hospital (1990), 195 Ill. App. 3d 750, 754-55, 552 N.E.2d 1220.) We interpret this language to mean what it says and nothing more. While a trial judge cannot disregard obvious diligence after refiling, he also cannot disregard a lack of diligence in the first action.

In this case the accident occurred on October 19, 1984. The plaintiff filed suit on October 17, 1986, two days before the expiration of the applicable statute of limitations. On October 20, 1988, two years after the filing of the action, the suit was dismissed for want of prosecution. There is no evidence in the record that the plaintiff attempted service of process during that time. In response to the dismissal, the plaintiff filed a second lawsuit on December 23, 1988. The defendants were served on January 12, 1989, over four years after the subject collision and over two years after the running of the applicable statute of limitations. Despite the fact that the defendants were served within 20 days of the filing of the second complaint, the unexplained two-year period in the first action in which no service was attempted displayed a lack of diligence. Therefore, although the plaintiff was diligent in obtaining service after the filing of the second complaint, the determination of diligence must be made in light of the totality of the circumstances. (Riopelle, 195 Ill. App. 3d at 755.) There is no evidence in this case that the trial court did not consider the circumstances in both actions and render the proper decision. Therefore the trial court did not abuse its discretion, and its decision should not be disturbed on review.

The plaintiff also asserts that since the trial court’s order granting the defendants’ Rule 103(b) motion did not specify that the order was with prejudice, the order was without prejudice. However, defendants’ motion specifically asked that the dismissal be granted with prejudice, and the trial court’s order stated that the defendants’ motion was granted. There is no indication that the trial court did not intend to grant the defendants full relief. Furthermore, Rule 103(b) mandates that if the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. (107 Ill. 2d R. 103(b).) We thus find that the dismissal was with prejudice.

Accordingly the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.


author: JUSTICE WOODWARD

text:
    ADVANCE TRANSPORTATION COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Robert Livingston et al., Appellees).
    First District (Industrial Commission Division)
    Nos. 1—89—3017WC, 1—89—3018WC cons.
    Opinion filed August 24, 1990.

      Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.
    Vito D. DeCarlo, P.C., of Chicago, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Advance Transportation Co., appeals from an order of the circuit court of Cook County granting Robert Livingston’s and Nicholas Beres’ (claimants), motions to dismiss for lack of subject matter jurisdiction. Claimants’ cases, though filed separately, involve the same issue and the identical respondent; the cases were consolidated on appeal. The only issue before us is whether the court below erred in granting claimants’ motions to dismiss for lack of subject matter jurisdiction.

On February 7, 1988, Robert Livingston (Livingston), an employee of respondent, fell down at work, tearing ligaments and tendons in his right arm. On May 26, 1988, Livingston filed an application for adjustment of his claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.). The amount of Livingston’s wages was in dispute. An arbitration hearing resulted in an award to Livingston of $350.04 per week for a period of 35 weeks and 5 days. Livingston then filed a petition for review of the arbitrator’s decision on December 30, 1988. The arbitrator’s decision was modified by the Industrial Commission (Commission), which increased his award to $595.20 per week.

On May 5, 1989, respondent filed a written request for summons and notice of commencement of suit with the circuit court of Cook County for review of the Commission’s decision. The written request for summons did not designate the return day. The summons to the Commission did not have a designated return day. The summons to Livingston and his attorney, Vito DeCarlo, also did not have a designated return day, but its form indicated that the return day should be 10 to 60 days after the date of issuance of the summons. The clerk’s certificate of mailing is dated May 5, 1989.

Even though its summons had no return day, the Commission certified a transcript of proceedings on June 22, 1989, and filed it on June 28, 1989. Despite the lack of designated return date on the summons, Livingston and his attorney filed a special and limited appearance on July 6,1989.

On August 2, 1989, Livingston filed a motion to dismiss based on lack of subject matter jurisdiction. Claimant argued that because the summonses were not returnable “on a designated return day” as required by section 19(f)(1) of the Act, the court did not have subject matter jurisdiction. After hearing argument on said motion, the court below dismissed the case for lack of subject matter jurisdiction, due to respondent’s failure to designate a return day on the written request for summons.

As to the Beres case, we have no record on appeal other than documents which show the following. Respondent filed for review of an adverse decision by the Commission on May 5, 1989. The summons issued to the Commission had no designated return day, and the summons to Beres and attorney DeCarlo, who also represents claimant Livingston, had no specific return day but indicated that an appearance was to be filed 10 to 60 days after issuance of the summons. The clerk’s certificate of mailing was dated May 5, 1989. Beres filed a special and limited appearance on July 6, 1989. The order dismissing the Beres case for lack of subject matter jurisdiction does not appear in the record.

Respondent argues that, in both cases on appeal, it substantially complied with the statute, which reads in pertinent part:

“A proceeding for review shall be commenced within 20 days of the receipt of notice of the decision of the Commission. The summons shall be issued by the clerk of such court upon written request returnable on a designated return day, not less than 10 or more than 60 days from the date of issuance thereof, and the written request shall contain the last known address of other parties in interest and their attorneys of record who are to be served by summons ***, and service upon other parties in interest and their attorneys of record shall be by summons, and such service shall be made upon the Commission and other parties in interest by mailing notices of the commencement of the proceedings and the return day of the summons to the office of the Commission and to the last known place of residence of other parties in interest or their attorney or attorneys of record.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)(1).

Respondents’ written request for summons and notice of commencement of suit in the Livingston case reads as follows:

“TO: Clerk of the Circuit Court, Cook County, Illinois Please issue a Summons to the Industrial Commission of Illinois, to certify to this Court on_, 1989, the transcript of all proceedings in the case of Robert Livingston v. Advance Transportation Company Industrial Commission No. 89 IIC 291. The decision of the Industrial Commission was received by this petitioner and/or his attorney on April 17, 1989. Also issue a Summons directed to Petitioner-Respondent Robert Livingston and his attorney Yito DeCarlo returnable on _, 1989. The name and last known addresses of the parties in interest and their respective attorneys of record are:

Respondent then provided the last known addresses of the Commission, Livingston, and his attorney. Respondent’s attorney signed the request and listed his address.

The summons issued by the clerk of the circuit court to the Commission reflects the failure of respondent to establish a date on which to certify the transcript of proceedings. Also, the summons issued to claimant and his attorney reflects the failure of respondent to list a date for return of summons. Said summons does state that Livingston is required to file his appearance 10 to 60 days after the issuance of the summons.

The issue before us is whether respondent’s failure to designate the return date on the request for summons prevents a circuit court from obtaining subject matter jurisdiction over the case.

Respondent maintains that even if the return day provision were jurisdictional, it substantially complied with the statute, claimant was not prejudiced, and the purposes of the Act were fulfilled. Respondent cites Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, in support of its argument. In Chadwick, the claimant’s written request for review included a praecipe for a writ of certiorari and a writ of scire facias, a certificate of mailing, and a writ of certiorari. The praecipe named the respondent as a party in interest but failed to give its address. The praecipe did, however, give the name and address of respondent’s attorney of record. Further, respondent’s name and address were stated on the certificate of mailing. The circuit court allowed respondent’s motion to quash the writs, finding that claimant’s failure to include respondent’s address in the praecipe amounted to a failure to strictly comply with section 19(f)(1) of the Act, thereby depriving the court of subject matter jurisdiction.

The Chadwick court noted that claimant had failed to strictly comply with the statute. But the court found that claimant had given sufficient information in the praecipe for the clerk to have properly notified respondent and its attorney of the appeal. The Chadwick court also found it significant that respondent did not show in any way that it was prejudiced by the missing information. Relying in particular on Republic Steel Corp. v. Industrial Comm’n (1964), 30 Ill. 2d 311, Bethlehem Steel Corp. v. Industrial Comm’n (1968), 41 Ill. 2d 40, and Berry v. Industrial Comm’n (1973), 55 Ill. 2d 274, the Chadwick court found that the praecipe substantially complied with the material provisions of section 19(f)(1).

As respondent argues, it substantially complied with the requirements of section 19(f)(1) in both cases. Its written request for summons and prepared summonses were timely filed with the clerk on May 5, 1989. The written request for summons listed respondent’s last known addresses, and the summonses were served by mail on the same day. Said documents indicated to claimants and their attorney that they should appear in 10 to 60 days after issuance of the summonses.

The Commission certified a transcript (at least in the Livingston case) of the proceedings on June 22, 1989. The transcript was filed on June 28, 1989, 54 days after the issuance of the summons. Claimants responded to their summonses by filing special appearances on July 6, 1989, 62 days after the issuance of the summonses.

Taken in toto, these facts demonstrate that respondent complied sufficiently with section 19(f)(1) so that claimants and their attorney were properly notified of the pending appeal. (Chadwick, 154 Ill. App. 3d at 859.) This conclusion is borne out by the fact that the Commission responded to the summons in timely fashion, and claimants did so in virtually timely fashion. Moreover, claimants do not demonstrate any ways in which they were prejudiced by the missing return.

The principal cases cited by claimants are distinguishable on their facts. In Whitmer v. Industrial Comm’n (1989), 187 Ill. App. 3d 409, plaintiff failed to ever file a written request for summons. The trial court dismissed the case, concluding that the failure to file a written request for summons did not amount to strict compliance with section 19(f)(1). The Whitmer court upheld the lower court’s decision, finding that Chadwick v. Industrial Comm’n (1987), 154 Ill. App. 3d 859, was distinguishable. The court reasoned that the written request in Chadwick was imperfectly completed as opposed to the Whitmer claimant’s failure to file a written request.

Similarly, the instant case is readily distinguishable from Whitmer. Here, as in Chadwick, the party making a written request for summons submitted an incomplete written request rather than no request at all.

Correspondingly, in Fortson v. Industrial Comm’n (1989), 184 Ill. App. 3d 794, summons was issued before the clerk of the circuit court verified that the probable cost of the record had been paid. The Fort-son court concluded that the clerk had no authority to issue a summons, absent compliance with the statute. As in Whitmer, the party appealing the Commission’s decision had failed to meet an essential requirement of section 19(f)(1). Consequently, Fortson is not on point.

We conclude that respondent was in substantial compliance with section 19(f)(1) despite its failure to designate a return date of the summonses. Accordingly, we reverse the order of the circuit court dismissing this cause for lack of subject matter jurisdiction, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, P.J., and McNAMARA, McCULLOUGH, and LEWIS, JJ., concur.