author: PRESIDING JUSTICE JIGANTI

text:
    STEVEN LUNDY et al., Plaintiffs-Appellants, v. THE CITY OF CALUMET CITY et al., Defendants-Appellees.
    First District (4th Division)
    No. 1-90-1978
    Opinion filed February 14, 1991.

      Michael N. Bledsoe, of Meyers, Bledsoe & Tuohy, of Chicago, for appellants.
    Stuart D. Gordon, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs appeal from an order of the circuit court dismissing the intentional infliction of emotional distress counts of their complaint.

The plaintiffs’ complaint alleges that the plaintiffs, Steven Lundy and James Rupcich, are police officers in the employ of defendant, the City of Calumet City (the City). On October 4, 1989, the City administered a psychological test to the members of the police force. A few weeks later, after receiving the results of the testing, defendant Police Chief Steven Rhoads sent a memorandum to Officers Lundy and Rupcich. The memorandum was distributed to the plaintiff officers via other police personnel. It was not folded or sealed.

In the memorandum Rhoads informed the plaintiffs that the results of their psychological tests indicated that the tests were indeterminate and likely invalid. He noted that test results such as theirs occurred either when the test taker deliberately manipulated the test or had mental problems. Rhoads also informed Officers Lundy and Rupcich that they were henceforth relieved of uniformed duty and were to refrain from wearing their guns or badges until further notice. Rhoads assigned the officer plaintiffs to positions in the records section of the police department, forbade them from accepting overtime or secondary employment, and instructed them to submit to retesting on November 6, 1989. In addition to generating the above memorandum, Rhoads contacted two members of the Calumet City Council and the mayor of Calumet City. He informed these City officials that Officer Lundy’s test results indicated that he was in “a confused state,” “exhibited a plea for help,” and suffered from either schizophrenia or hysteria. Other officers who received indeterminate evaluations as a result of the psychological testing were not reassigned or relieved of their guns and badges. On November 6, 1989, a week after the memorandum was issued, Officers Lundy and Rupcich were retested and subsequently allowed to return to regular duty. As a result of the actions of Rhoads, Lundy and Rupcich suffered loss of sleep, chest pains, and mental and emotional distress which necessitated medical treatment.

The plaintiffs filed suit against Police Chief Rhoads and the City of Calumet City alleging that the defendants’ conduct gave rise to an action for intentional infliction of emotional distress. In response, the defendants moved to dismiss the plaintiffs’ emotional distress counts for failure to state a cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) The defendants also filed an alternative section 2 — 619 motion to dismiss alleging that the defendants were immune from prosecution under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) The trial court granted the defendants’ section 2 — 615 motion to dismiss for failure to state a cause of action and struck the section 2 — 619 motion as premature. The plaintiffs follow with this appeal.

The plaintiffs agree with the defendants that to successfully state a cause of action for intentional infliction of emotional distress, they must allege conduct which is so extreme and outrageous that it goes beyond all possible bounds of decency. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765.) The plaintiffs’ complaint characterizes the following actions of defendant Rhoads as extreme and outrageous: stripping plaintiffs Lundy and Rupcich of their badges and guns; making public statements asserting the plaintiffs had either manipulated the test or were suffering from mental illness; cloaking the public statements as official findings in an official order; and purposefully sending the order unsealed, uncovered, and publicly through other officers. The plaintiffs also argue that the extreme and outrageous character of the defendants’ conduct arises from an abuse of Rhoads' position of authority over the plaintiffs. Public Finance Corp. v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765.

Interpreting the plaintiffs’ allegations in a light that is most favorable to them (McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806), we do not believe that the plaintiffs have succeeded in pleading a cause of action for intentional infliction of emotional distress. The conduct the plaintiffs allege does not in and of itself amount to conduct that would cause severe emotional distress to a person of ordinary sensibilities. (Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591.) To successfully plead a cause of action for intentional infliction of emotional distress, the plaintiffs must allege conduct that goes beyond mere insults, indignities, threats, annoyances, petty oppressions or trivialities. (Public Finance Corp v. Davis, 66 Ill. 2d 85, 360 N.E.2d 765.) It is not enough that the defendant acts with a tortious or even criminal intent, that he intended to inflict emotional distress, or that his conduct can be characterized by malice. (Restatement (Second) of Torts §46, comment d, at 72-73 (1965).) Further, the emotional distress must be “so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.” Restatement (Second) of Torts §46, comment j, at 77-78 (1965).

In the present case, it is uncontroverted that the psychological test results were indeterminate as to the mental health of the plaintiffs. The defendant Rhoads, acting in his official capacity as chief of police, addressed a situation that clearly called for an administrative response. He relieved the plaintiffs of active duty until they could be retested. He informed them of the reason they were being relieved of duty and indicated the steps necessary to regain active-duty status. This information was conveyed to the plaintiffs by way of official documentation. While it may have been insensitive of Rhoads to deliver the memorandum unsealed through other police personnel, there is no indication that documents of this kind were routinely delivered otherwise. Chief Rhoads also informed City officials of the police department’s concerns and the action that was being taken. The plaintiffs were retested within a week of receiving the memorandum and were allowed to return to active duty upon the City’s receipt of conclusive test results. The incident under scrutiny was an isolated occurrence, the defendants’ response was timely, and the event was brought to an expeditious conclusion. The plaintiffs have not alleged that they were threatened or subjected to a recurring pattern of abusive contact. (Gibson v. Chemical Card Services Corp. (1987), 157 Ill. App. 3d 211, 510 N.E.2d 37.) We do not believe that the conduct alleged by the plaintiffs was extreme and outrageous.

Moreover, Rhoads’ authority over Lundy and Rupcich does not relieve the plaintiffs of the burden of proving the extreme and outrageous nature of the conduct. Conduct which otherwise amounts to no more than insults or indignities is not transformed into extreme and outrageous conduct simply by virtue of an employer-employee relationship. (Cf. Farnor v. Irmco Corp. (1979), 73 Ill. App. 3d 851, 392 N.E.2d 591 (landlord-tenant relationship did not transform insults or indignities into extreme and outrageous conduct).) In the present case, in light of his legitimate interest in assuring the mental stability of his officers before they were allowed to continue active police duty, Rhoads’ actions cannot be considered gratuitous. He did not attempt to coerce the plaintiffs, nor did he threaten them. (See Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829.) While a legitimate interest does not provide an employer with carte blanche to pursue its objective through any means (McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806), the fact that defendant Rhoads may have caused the plaintiffs some embarrassment or distress does not mean that he has abused his position such that conduct that is not extreme and outrageous is raised to the level necessary to sustain a cause of action for intentional infliction of emotional distress. (See Gibson v. Chemical Card Services Corp. (1987), 157 Ill. App. 3d 211, 510 N.E.2d 37.) As for any other officers who were not similarly treated, as the trial judge noted, the fact that the City may have failed to pursue its objectives with respect to the other officers does not detract from the legitimacy of its concerns over the test results of Officers Lundy and Rupcich.

For these reasons we affirm the ruling of the trial court. Because we do not believe that the defendants’ conduct was extreme and outrageous, it is not necessary for us to consider the defendants’ alternative argument that the defendants are immune from suit under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.).

Affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHASTER SMITH, Defendant-Appellant.
    Second District
    No. 2-88-1197
    Opinion filed March 29, 1991.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Stephen R. Frank, of Johnson, Frank, Frederick & Walsh, of Urbana (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Following a bench trial, defendant, Shaster Smith, was convicted of armed robbery, attempt (armed robbery), unlawful use of weapons by a felon, and aggravated assault. He appeals only the attempt (armed robbery) and unlawful use of weapons by a felon convictions, arguing that the evidence as to each charge was legally insufficient. We reverse both the attempt (armed robbery) conviction and the unlawful use of weapons by a felon conviction.

The evidence, generally not in dispute, shows that on July 18, 1988, defendant paid train fare from Chicago to Waukegan. However, he left the train at the Highland Park Metra station, where, at about 12:30 p.m., he entered the taxi cab of Roman Suminski (cab driver). At defendant’s direction, the cab driver drove to Genesee Street in Waukegan. In response to the cab driver’s inquiry, defendant said that he was looking for a jewelry store. The cab driver noticed a jewelry store and pointed it out, but defendant told the cab driver that it was “not the one.” Defendant then directed the cab driver to go to the Waukegan Metra station. On the way there, the cab driver noticed a police car and suggested defendant ask directions, but defendant declined. When the cab driver parked at the train station and asked for the fare, defendant drew a gun, demanded money, and ordered the cab driver out of the cab. After defendant drove the cab away, the cab driver called the police and reported the robbery.

A Waukegan police officer responded to the cab driver’s call. Police detectives heard the dispatch about the robbery and located the abandoned cab about a block and a half northwest of the Metra station. While surveying the area, the detectives saw defendant walking. When defendant saw the police car, he started to run. One of the detectives ordered defendant to stop. Defendant dropped his gun, some money, and a pillow case, as he ran and jumped a fence. Defendant hid in a trailer where he was discovered and apprehended by police.

After being arrested for armed robbery, defendant consented to an interview at the Waukegan police station. Defendant admitted to detectives that he had intended to rob an unidentified jewelry store on Gene-see Street and to use the stolen cab as a getaway vehicle. Defendant told the detectives that he did not know the name of the building where the jewelry store was located but knew what the jewelry store looked like. In other respects, defendant’s admissions corroborated the testimony of the State’s witnesses at the trial.

The defense put on no witnesses at the trial. After putting on all of its testimony, the prosecution, as part of its proof on the unlawful use of weapons charge, filed a certified statement of conviction from the circuit court of Cook County indicating that on November 1, 1983, “Shaster Smith” pleaded guilty to and was sentenced on a charge of burglary. The copy of conviction did not identify the person convicted in any way other than by name. Defense counsel, in moving for a directed verdict, argued that the unlawful use of weapons by a felon charge could not be sustained because the copy of conviction was legally insufficient to establish that defendant was the person convicted of the 1983 burglary charge. Defendant rested without presenting any witnesses. The trial judge found defendant guilty of all four charges. Defendant was subsequently sentenced to concurrent terms of 21 years’ imprisonment for armed robbery of the cab driver, 15 years’ imprisonment for attempted armed robbery of the jewelry store, five years for unlawful use of weapons by a felon, and one year for aggravated assault.

Defendant argues first that he could not properly be found guilty of attempted armed robbery of the jewelry store because there is no evidence that he ever found or came within any particular distance of the store. He argues that because the prosecution failed to show that he ever came within “dangerous proximity to success” of his objective, his conviction must be reversed.

Defendant also argues that the court, in adjudging the sufficiency of the evidence, must limit itself to those facts set out in the indictment, to wit, that, “While armed with a *** gun, [defendant] went to a street in Waukegan and inquired of a cab driver as to the location of a jewelry store he wanted to rob.” However, defendant at no time objected to any variance between pleading and proof or to the trial judge’s consideration of facts beyond those specified in the indictment. In passing on the sufficiency of the evidence of attempt (armed robbery), we therefore examine the totality of the evidence' presented at trial. People v. Flowers (1958), 14 Ill. 2d 406, 415-17, cert. denied (1959), 358 U.S. 942, 3 L. Ed. 2d 349, 79 S. Ct. 349.

The Illinois Criminal Code of 1961 provides that a person commits an attempt “when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a).) Defendant concedes that he intended to rob a jewelry store, but argues that at most his actions amounted to preparation rather than attempt. The State maintains, and defendant denies, that under People v. Terrell (1984), 99 Ill. 2d 427, defendant, by arming himself, traveling to Waukegan, searching for the jewelry store, and driving a stolen cab that he intended to use as a getaway car, committed a substantial step toward his objective of robbing the store.

In Terrell, the defendant was convicted of attempted armed robbery. The Terrell defendant was discovered hiding in weeds about 25 to 30 feet behind a service station and carrying a loaded revolver and a stocking mask. In a split decision, the supreme court held the evidence sufficient to prove both intent and a substantial step toward the armed robbery of the service station. The majority stated the general rule that although it is not necessary that a defendant commit the last proximate act to be convicted of attempt, mere preparation is not a substantial step. The determination of whether the line between preparation and perpetration has been crossed must therefore be decided on the facts of each case. (99 Ill. 2d at 433.) The court noted earlier findings of a “substantial step” in People v. Burleson (1977), 50 Ill. App. 3d 629, where the defendant, armed with a shotgun, a suitcase, and disguises, was prevented from entering a bank only by the quick action of a man inside the bank, and in People v. Reyes (1981), 102 Ill. App. 3d 820, where the defendant’s conviction of attempted armed robbery was upheld even though he never entered the drugstore whose patrons he intended to rob. The Terrell court held the defendant, like those in Burleson and Reyes, was in possession of the materials necessary to carry out an armed robbery at or near the place contemplated for its commission and, therefore, had done enough to support a finding of a “substantial step.”

The Terrell majority held further that the defendant’s actions fit within certain provisions of the Model Penal Code, providing that a “substantial step” may consist of:

“(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances.” Terrell, 99 Ill. 2d at 436, citing Model Penal Code §5.01(2) (Proposed Official Draft 1963).

The three Terrell court dissenters denied intent had been shown beyond a reasonable doubt and further maintained that, as the defendant’s actions were preliminary activities consistent with a variety of possible outcomes and as the defendant had never been observed moving toward any target or making any demands on anyone, the defendant’s activities did not bring him within “dangerous proximity to success.” The Terrell dissent asserted that the majority misapplied the standards of the Model Penal Code because the record did not initially establish the defendant’s intent to rob the gas station, and without the establishment of specific intent it was impossible to test whether the conduct involved was strongly corroborative of the defendant’s criminal purpose.

In applying Terrell, we note first defendant correctly points out a major difference between his case and the facts of Terrell, Burleson, and Reyes', in each of those cases, the defendant had already found his target and either was waiting close by, intending to pounce momentarily, or had already started toward the building. In each case, the defendant’s physical proximity to an identified, settled target enabled the fact finder to conclude beyond a reasonable doubt that the defendant had gone beyond preparation and achieved dangerous proximity to success. Here defendant never located his target, although he did drive along the street where he expected to find it. The facts of this case do not fit within the rule of Terrell that a substantial step has been taken when the defendant possesses the necessary materials for the crime at or near the placo contemplated for its commission. (Terrell, 99 Ill. 2d at 435.) We have found no case in our jurisdiction analogous to this one. However, in People v. Rizzo (1927), 246 N.Y. 334, 158 N.E. 888, the New York Court of Appeals reversed the defendant’s conviction of attempted robbery where the evidence showed only that the defendant and his confederates rode around town looking for their intended victim but were arrested before they could find him. The court explained:

“In a word, these defendants had planned to commit a crime, and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was.” 246 N.Y. at 338-39,158 N.E. at 889.

However, the Terrell court held that a “substantial step” may be also found according to the standards of the Model Penal Code based on a defendant’s “(e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances.” Terrell, 99 Ill. 2d at 436, citing Model Penal Code §5.01(2)(e) (Proposed Official Draft 1963).

By shifting the emphasis from what remains to be done to what the actor has already done, the Model Penal Code standards enable a trier of fact to find a “substantial step” even where the commission of the crime still requires several major steps to be taken. The standards thus broaden the scope of criminal liability beyond that under the “dangerous proximity” test. (Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Colum. L. Rev. 571, 593 (1961).) This expanded reading of the “substantial step” language of the attempt statute is supported not only by the fact that the statutory language is taken from the Model Penal Code, but also by the committee comments to section 8 — 4(a) that “[wjhether we describe the required act as a substantial step toward commission, or as in dangerous proximity to the principal offense, the courts must still make the determination based on the facts of each case.” (Emphasis added.) Ill. Ann. Stat., ch. 38, par. 8 — 4, Committee Comments, at 499 (Smith-Hurd 1989).

The Model Penal Code criteria were consciously patterned after a Louisiana statute that was expressly directed at preventing the type of result in People v. Rizzo. Thus, searching or lying in wait for a victim who never materializes may still amount to criminal attempt. Wechsler et al, 61 Colum. L. Rev. at 595-96.

However, even the expanded scope of a “substantial step” provided by the Model Penal Code provisions does not allow mere preparation to rise to the level necessary to find an attempt. Both of the cited Model Penal Code provisions contain a requirement of specificity that is lacking in this instance.

“[T]he contemplated victim of the crime” was never identified here. (See Model Penal Code §5.01(2Xa) (1985).) Although defendant admitted an intent to rob a jewelry store, defendant, as well as the State, was unable to give the name, address or description of the store that was “the contemplated victim.” Rather, the evidence reveals that defendant had only general, vague notions of the location and the appearance of a jewelry store. Defendant’s lack of specific information belies the existence of a specific contemplated victim as required by the Model Penal Code.

Nor were the materials carried by defendant “specially designed” for the unlawful purpose of robbing a jewelry store. (See Model Penal Code §5.01(2Xe) (1985).) A gun and a pillowcase simply do not rise to the level of “specifically designed” materials.

The Terrell majority’s adoption of the expanded scope of “substantial step” as provided by the Model Penal Code did not abrogate the general rule that mere preparation does not bring a defendant in “dangerous proximity to success.” (Terrell, 99 Ill. 2d at 434, citing Hyde v. United States (1912), 225 U.S. 347, 388, 56 L. Ed. 1114, 1134, 32 S. Ct. 793, 810 (Holmes, J., dissenting).) Rather, only clearly specific conduct which can only be directed at the specific identified victim or crime if “strongly corroborative of the actor’s criminal purpose” may be held a “substantial step.” See Model Penal Code §5.01(2) (1985).

We, therefore, hold that defendant was not proved guilty beyond a reasonable doubt of attempt (armed robbery) and reverse his conviction of and sentence for this charge.

We hold further that the evidence was legally insufficient to convict defendant of unlawful use of weapons by a felon. The sole evidence at trial of defendant’s prior felony conviction, an essential element of the charge, was a certified copy of a conviction from the circuit court of Cook County indicating that on November 1, 1983, “Shaster Smith” was sentenced on a guilty plea to a term of three years for burglary. The State argues that under People v. Davis (1983), 95 Ill. 2d 1, and People v. Bond (1989), 178 Ill. App. 3d 959, the identity of names between defendant and the defendant in the copy of conviction creates a rebut-table presumption of identity of person, which, in the absence of any contest by defendant, shows his prior conviction beyond a reasonable doubt. We disagree, however, that these cases enable us to affirm the trial court where the previous conviction is an element of the offense to be proved at trial and the copy of conviction is uncorroborated.

Prior to Davis, our courts consistently held that the presumption of identity of person from identity of names, though legally sufficient in a civil context, was inadequate to establish identity under the criminal standard of proof beyond a reasonable doubt. Thus, proof of defendant’s prior conviction required more than the record of conviction of someone with the same name. (People v. Casey (1948), 399 Ill. 374, 378; People v. Langdon (1979), 73 Ill. App. 3d 881.) However, the supreme court upheld the application of judicial notice in the criminal context in People v. Davis (1976), 65 Ill. 2d 157, a case in which the defendant coincidentally had the same name as that in the decision now urged by the State. Nonetheless, in People v. Martin (1981), 97 Ill. App. 3d 704, we held that Casey and Langdon were still good law, noting that the earlier Davis decision involved both a trial judge with direct personal knowledge of the prior conviction and a preponderance, rather than reasonable doubt, standard of proof.

The State, however, contends that under People v. Davis (1983), 95 Ill. 2d 1, the rebuttable presumption of identity held inadequate in Casey, Langdon and Martin must now be considered sufficient to satisfy the reasonable doubt standard, at least where, as here, defendant does not directly deny that he is the person named in the prior conviction. Because Davis has generated much confusion, we examine both its holding and subsequent application in detail.

In Davis, the defendant argued that the State had not, in a death penalty hearing on aggravating factors, adequately proved his prior convictions. The State introduced certified copies of defendant’s two prior indictments and convictions for murder. An employee of the court clerk’s office testified that these were the convictions of the same Girvies L. Davis presently being sentenced. The witness did not, however, identify the defendant, and the defendant’s counsel did not cross-examine the witness or object to this lack of identification. The supreme court held that the defendant, who did not deny his prior convictions or assert that he was not the Girvies L. Davis named in the document, was not prejudiced by the State’s proof of identity. The court announced its adoption of a rebuttable presumption of identity of person based on identity of name and found that the evidence satisfied the State’s burden to prove the defendant’s prior conviction beyond a reasonable doubt. The State urges us to interpret this decision as holding that an unrebutted presumption of identity, without more, satisfies the State’s burden of proving a prior conviction as an element of a crime beyond a reasonable doubt as a matter of law.

Only the Appellate Court for the Fourth District (fourth district) has adopted the expansive reading of Davis urged in this instance by the State. In People v. Bond (1989), 178 Ill. App. 3d 959, and more recently in People v. House (1990), 202 Ill. App. 3d 893, the fourth district applied the presumption of identity to an element of the crime charged without corroboration. However, the fourth district has also limited the presumption of identity to the context of a sentencing hearing (People v. Stanley (1983), 116 Ill. App. 3d 532, 537-38 (Miller, J., specially concurring)) and expressly held that outside of a sentencing hearing at a trial in absentia, the presumption of identity is not proof beyond a reasonable doubt without corroboration. (People v. Newbern (1989), 183 Ill. App. 3d 995; see also People v. Broyld (1989), 146 Ill. App. 3d 693.) Nor are appellate court decisions from the Appellate Court for the First and Fifth Districts dispositive of the question as both have applied the presumption of identity only in the context of sentencing hearings, and only when corroborated. People v. Stewart (1989), 186 Ill. App. 3d 833, 836-37; People v. Gill (1988), 169 Ill. App. 3d 1049, 1057; People v. Hall (1986), 145 Ill. App. 3d 873, 878.

With such unsettled appellate precedent, we return to Davis itself for guidance. The court cited its earlier Davis opinion that “an inflexible rule requiring formal proof of earlier court records only by authenticated or certified copies of proof of identity *** [is] incompatible with considerations of judicial economy and efficiency” (Davis, 95 Ill. 2d at 31, citing People v. Davis (1976), 65 Ill. 2d 157, 164) and adopted the “general rule that identity of name gives rise to a rebuttable presumption of identity of person.” Davis, 95 Ill. 2d at 31.

Presumptions and inferences are substitutes for evidentiary facts. (People v. Housby (1981), 84 Ill. 2d 415, 418.) As such, presumptions present serious due process concerns when applied in criminal contexts. (Housby, 84 Ill. 2d at 418-19.) Mandatory presumptions are distinguished from permissive presumptions. (Housby, 84 Ill. 2d at 420.) A mandatory presumption must flow beyond a reasonable doubt from the established fact. (Housby, 84 Ill. 2d at 420, citing County Court v. Allen (1979), 442 U.S. 140, 166, 60 L. Ed. 2d 777, 797, 99 S. Ct. 2213, 2229.) In contrast, a permissive presumption must have a “rational connection” (Housby, 84 Ill. 2d at 420, citing Tot v. United States (1943), 319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1245), and is “ ‘more likely than not to flow from’ ” the proven fact (Housby, 84 Ill. 2d at 421, quoting County Court, 442 U.S. at 165, 60 L. Ed. 2d at 797, 99 S. Ct. at 2229).When the burden of proof is beyond a reasonable doubt, a permissive presumption must further be corroborated. Housby, 84 Ill. 2d at 421, citing County Court, 442 U.S. at 167, 60 L. Ed. 2d at 798, 99 S. Ct. at 2229-30.

In Davis, the court did not identify the presumption of identity as a permissive presumption. However, the presumption was corroborated by testimony of a witness that the defendant was in fact the person named in the certified copies of conviction. Thus, we interpret that decision to create a permissive presumption, which alone is adequate to satisfy a preponderance of the evidence “more likely than not” standard, but which must be corroborated when the burden is proof beyond a reasonable doubt.

Because in this instance defendant’s prior conviction was an element of the crime charged, and it was the State’s burden to prove defendant’s conviction beyond a reasonable doubt, we hold that the State failed to meet its burden as to this element of the charged offenses. Accordingly, we reverse both defendant’s conviction of unlawful use of weapons by a felon as well as his conviction of attempt (armed robbery). Those portions of defendant’s convictions of aggravated assault and armed robbery that were not appealed are affirmed.

Affirmed in part; reversed in part.

BOWMAN and INGLIS, JJ., concur.


author: JUSTICE McLAREN

text:
      In re RALPH NAU, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Ralph Nau, Respondent-Appellant).
    Second District
    Nos. 2-90-0093, 2-90-0682 cons.
    Opinion filed February 22, 1991.
    Rehearing denied April 5, 1991.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, and Sandra Kopels, of Legal Advocacy Service, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent Ralph Nan (respondent) appeals from two orders of the circuit court of Kane County. The court first ordered respondent to be committed to the Department of Mental Health Facility in Elgin on an involuntary basis. In the consolidated case, the trial court ordered respondent’s continued commitment to the Elgin facility We reverse these orders.

Extensive background to these cases is contained in People v. Nau (1988), 167 Ill. App. 3d 338. We will provide only those facts necessary to decide these cases.

In August 1984, respondent was charged with the murder of his stepbrother, Dennis Gerken. Respondent was acquitted in May 1989, and the State immediately filed a petition to involuntarily admit him to the mental health facility on an emergency basis. Following a stipulated bench trial on December 11, 1989, respondent was found to be a person subject to involuntary admission and was committed to the Elgin facility.

Respondent first contends that the petition was not executed in accordance with statutory requirements. Respondent was originally admitted to the facility pursuant to article VI of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 600 et seq.). Section 3 — 602 of the Code requires, in addition to the petition for involuntary admission, “a certificate executed by a physician, qualified examiner, or clinical psychologist which states [among other things] that the respondent is subject to involuntary admission and requires immediate hospitalization.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 602.) Another such certificate must be filed within 24 hours. (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 610.) Respondent argues that the certificate which accompanied the petition does not establish that the preparer was a physician, qualified examiner, or clinical psychologist. The certificate is signed, somewhat illegibly, but is dated where the preparer’s title should have been included. Respondent contends that the lack of the preparer’s title constitutes failure to comply with the Code and requires reversal of the trial court’s order. We disagree.

Noncompliance with statutory involuntary commitment procedures renders the judgment in such a cause erroneous and of no effect. (In re King (1986), 148 Ill. App. 3d 741, 745.) However, the Code does not require that an examiner’s title appear on the face of the certificate; therefore, noncompliance with the Code cannot be premised on this absence. In addition, respondent at no time below challenged the credentials of the signatory to the initial certificate filed, and the record does not contain any evidence that the signatory was unqualified to sign the certificate. In the absence of any such evidence, we must presume that the certificate was properly executed. See In re Grimes (1990), 193 Ill. App. 3d 119, 122-23.

Respondent next contends that the court’s order must be reversed because, contrary to the Code, he was not properly served with notice of the hearing. Section 3 — 611 of the Code states in part:

“Upon the filing of the petition and *** certificate, the court shall set a hearing to be held within 5 days *** after receipt of the petition. The court shall direct that notice of the time and place of the hearing be served upon the respondent.” (Ill. Rev. Stat. 1989, ch. 9I½, par. 3 — 611.)

In this case, the petition and certificate were filed between 2:03 and 2:04 p.m. on June 1, 1989. The notice of hearing, which states that respondent was served with notice on June 1, was filed at 2:05 p.m. on the same date. Respondent argues that these facts demonstrate that he had been served with notice before the petition and certificate were filed and before the court set the hearing date, in violation of section 3 — 611 of the Code. We agree.

This court has consistently held that the State must strictly comply with relevant provisions of the Code. (See In re Hatala (1990), 200 Ill. App. 3d 163; In re Splett (1990), 194 Ill. App. 3d 391; In re Bloyer (1989), 185 Ill. App. 3d 245.) Noncompliance with procedures prescribed in the Code renders the judgment erroneous and of no effect. (Hatala, 200 Ill. App. 3d at 165.) We see no reason to depart from this consistent path. In this case, the hearing date was set, and the respondent was served with notice of hearing, before the petition and certificate were even filed -with the court. This failure to follow the provisions of section 3 — 611 requires reversal of the circuit court’s order.

We determine that we must also reverse the trial court’s judgment in the consolidated case ordering respondent’s continued commitment to the Elgin facility. Section 3 — 813 of the Code provides in part:

“An initial order for hospitalization or alternative treatment shall be for a period not to exceed 60 days. Prior to the expiration of the initial order if the facility director believes that the patient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court. *** If no petition is filed prior to the expiration of the initial order, the patient shall be discharged.” (Ill. Rev. Stat. 1989, ch. §V-k, par. 3 — 813.)

In the case before us, the initial order for respondent’s involuntary hospitalization was entered on December 11, 1989. The petition for continued hospitalization was not filed until February 9, 1990, 61 days after the court’s initial order. This court, requiring strict compliance with required statutory procedures, has held that failure to timely file a petition to continue hospitalization requires reversal of the trial court’s order and discharge of the respondent. (See In re Walker (1990), 200 Ill. App. 3d 159; Hatala, 200 Ill. App. 3d 163.) We, therefore, also reverse the trial court’s order of continued hospitalization.

Although we reverse the trial court’s orders because of statutory violations by the State, we will still consider two issues raised by respondent, as these issues may arise again in subsequent proceedings. Respondent contends that his right to due process was violated when statements he made during an in-custody police interrogation were admitted against him at both of his commitment hearings. Respondent was questioned after the disappearance of his stepbrother and eventually told the police that his stepbrother had turned into an animal and that respondent then hit the animal several times with an axe and buried the body. This statement was suppressed in respondent’s trial for murder, and the suppression was upheld by this court. (See Nau, 167 Ill. App. 3d 338.) Respondent filed motions in limine before both commitment hearings seeking to exclude his statements to the police. Both motions were denied. Respondent now argues that the trial court was required to hold a hearing to determine whether respondent’s statements were knowingly and voluntarily made; if they were not, according to respondent, they should have been excluded.

Respondent acknowledges that proceedings under the Code are civil, not criminal, in nature. Having said that, respondent has failed to cite any authority that extends due process protection against use of involuntary or unknowing statements to civil proceedings in general or to involuntary commitment proceedings in particular. Respondent cites People v. Capoldi (1957), 10 Ill. 2d 261, for the proposition that due process requires a hearing on voluntariness before a statement can be used against a person in a civil proceeding. We find Capoldi distinguishable. Capoldi involved a hearing under the Sexually Dangerous Persons Act (the Act) (Ill. Rev. Stat. 1955, ch. 38, pars. 820.01 through 825e (now Ill. Rev. Stat. 1989, ch. 38, par. 105— 1.01 et seq.)). Petitions for involuntary committal under that Act are to be filed "[w]hen any person is charged with a criminal offense and it shall appear *** to the State’s Attorney of the county wherein such person is so charged, that such person is a sexually dangerous person.” (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 3.) Although it, too, is a civil proceeding, proof that a person is sexually dangerous must be beyond a reasonable doubt (People v. Pembrock (1976), 62 Ill. 2d 317, 321; Ill. Rev. Stat. 1989, ch. 38, par. 105 — 3.01); the standard in proceedings held pursuant to the Mental Health Act is clear and convincing evidence. (Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 808.) Persons found to be sexually dangerous are committed to the custody of the Director of Corrections as guardian. (Ill. Rev. Stat. 1989, ch. 38, par. 105 — 8.) Persons involuntarily committed under the Mental Health Code may be committed to a mental health facility, private hospital, United States Veterans Administration facility, or the care and custody of a relative or other person willing and able to properly care for him. Ill. Rev. Stat. 1989, ch. 91½, par. 3 — 811.

The distinctions between criminal and sexually dangerous person proceedings, on the one hand, and involuntary civil commitments on the other are substantial. (In re Stephenson (1977), 67 Ill. 2d 544, 561.) Our supreme court has held:

“A ‘sexually dangerous person’ creates different societal problems, and his past conduct is different in degree and kind from the conduct of persons in the larger, more inclusive class defined under the Mental Health Code. The defendant has failed to show why, in light of these factors, the legislature is not justified in prescribing a different manner of treatment. As noted earlier, ‘society has a substantial interest in the protection of its members from dangerous deviant sexual behavior.’ ” (Pembrock, 62 Ill. 2d at 322, quoting United States ex rel. Stachulak v. Caughlin (7th Cir. 1975), 520 F.2d 931, 937.)

Proceedings under the Sexually Dangerous Persons Act are much more closely tied to criminal actions and proceedings than are those under the Mental Health Code. Strict procedural safeguards are required for proceedings under the Act; however, even then, not all criminal procedural safeguards need be applied. (People v. Allen (1985), 107 Ill. 2d 91, 100, aff’d (1986), 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988.) Although a loss of liberty is inherent in both criminal and involuntary commitment proceedings, the “use of simplistic analogies is of little real assistance.” (Stephenson, 67 Ill. 2d at 554.) We conclude that proceedings under the Mental Health Code are sufficiently different from criminal proceedings and those under the Sexually Dangerous Persons Act so as to distinguish and make inappropriate the adoption of the Capoldi requirement of a hearing for voluntariness. Therefore, the trial court did not err in admitting respondent’s statements.

Respondent next contends that the trial court erred in admitting evidence of Dennis Gerken’s murder in the hearing to continue respondent’s hospitalization. According to respondent, his acquittal on the murder charge collaterally estopped the State from arguing that respondent was responsible for the murder. We disagree.

Respondent was acquitted of Gerken’s murder at a discharge hearing held pursuant to section 104 — 25 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25). If the evidence at such a hearing does not prove a defendant guilty beyond a reasonable doubt, the court shall acquit the defendant; however, the State may then proceed to involuntarily commit the defendant under the provisions of the Mental Health Code. (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 25(b).) The State would be required to prove that the defendant was a person subject to involuntary admission by proving that the defendant was mentally ill and that either he is reasonably expected to seriously harm himself or another in the near future or that he is unable to provide for his basic physical needs so as to guard himself from serious harm. Ill. Rev. Stat. 1989, ch. §V-k, par. 1 — 119.

The trial court suppressed defendant’s statement and then found “that Ralph Nau probably committed this offense based only upon the evidence presented.” However, the court was not convinced beyond a reasonable doubt and, therefore, acquitted respondent of his stepbrother’s murder. Respondent now argues that the State attempted to “relitigate” the murder charge in the continued commitment hearing by referring to respondent as a “murderer” in opening and closing statements and by presenting the testimony of a police officer as to his theory of how respondent committed the murder. The admission of this evidence and argument, according to respondent, was reversible error and warrants a new hearing.

The doctrine of collateral estoppel was designed to protect parties from having to relitigate identical causes of action with the same party or privy. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432.) This doctrine may be invoked if (1) the issue decided in the prior adjudication is identical with the one presented in the current suit; (2) the prior suit was terminated with a final judgment on the merits; and (3) the party against whom estoppel is asserted was a party or in privity with a party in the prior suit. (Illinois State Chamber of Commerce v. Pollution Control Board (1979), 78 Ill. 2d 1, 7.) Clearly, this doctrine is not applicable in the case before us. In the discharge hearing, respondent was acquitted of murder and should not have been termed a “murderer.” However, the question in the case before us is not whether respondent murdered Dennis Gerken, but whether respondent is a person subject to continued involuntary admission. The court need not find that respondent murdered Gerken in order to find respondent subject to involuntary admission. It is on this basis that we distinguish People v. Grayson (1974), 58 Ill. 2d 260, a case relied upon heavily by respondent. In Grayson, the defendant, already on probation, was charged with armed robbery. Following the defendant’s acquittal on that charge, the State attempted to revoke the defendant’s probation based upon his participation in the robbery. The trial court revoked the probation; our supreme court reversed the revocation. The court there held that the State could not attempt to relitigate the defendant’s participation in the robbery, as that issue had already been decided in the prior proceeding. (Grayson, 58 Ill. 2d at 265.) Both the criminal trial and the revocation hearing sought to resolve identical issues of whether the defendant committed the armed robbery. In the case before us, the ultimate question to be resolved is not the same as that resolved in the prior proceeding. Respondent’s suitability for continued involuntary admission was not at issue in the discharge hearing. Therefore, the State was not estopped from seeking the admission of this evidence.

Because of our disposition of prior issues, we need not address respondent’s remaining contention.

The judgment of the circuit court of Kane County is reversed.

Reversed.

BOWMAN and GEIGER, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICK J. MOSKOWITZ, Defendant-Appellant.
    Third District
    No. 3-90-0280
    Opinion filed February 26, 1991.

      Ruud, Scovil & Neppl, of Rock Island (Douglas C. Scovil, of counsel), for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (Rita Kennedy Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Rick J. Moskowitz, entered a negotiated plea of guilty to one count of felony theft (Ill. Rev. Stat. 1985, ch. 38, par. 16— 1(a)(2)) in exchange for dismissal of a second theft count and the State’s promise not to seek a term of imprisonment greater than three years. Following a presentence investigation and sentencing hearing, the defendant was sentenced to three years in the Department of Corrections. The defendant’s motion to reduce sentence was denied, and he now appeals, contending that the trial court abused its discretion in imposing a sentence of three years. We affirm.

The record indicates that the defendant, an attorney, converted in excess of $50,000 belonging to a client to his own use. At the sentencing hearing, the State presented no evidence in aggravation; a number of witnesses testified for the defendant in mitigation. That testimony indicated that the defendant has been married for 20 years and has three children. His wife earns approximately $450 per month as a teacher’s aide and cannot support the family by herself. Several witnesses testified that the defendant is a devoted family man and trusted friend and that his dishonesty was completely out of character. The defendant was experiencing severe financial pressure due to bankruptcy and unpaid taxes. The probation officer who prepared the presentence report testified that the defendant was remorseful, was likely to successfully complete a period of probation, and would not benefit from incarceration. Further evidence indicated that the defendant made partial restitution, had been offered employment, had no prior offenses, and was active in community service. The defendant’s doctor, a dermatologist, stated in a report that the defendant suffers from various physical and emotional ailments including allergies, migraine headaches, hiatal hernia, vascular disease, possible peptic ulcer and diabetes, and severe depression. The doctor concluded that the defendant is unlikely to survive incarceration.

In sentencing the defendant, the trial judge cited sections 5 — 5— 3.2(a)(6) and (a)(7) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(a)(6), (a)(7)) as factors in aggravation. Section 5 — 5—3.2(a)(6) states that the defendant “utilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(a)(6).) Section 5 — 5—3.2(a)(7) refers to the need to deter others from committing the same crime. The judge also expressed his belief that society is entitled to hold professional people such as lawyers, doctors, and accountants to a higher moral and ethical standard than others because “we entrust them with our funds and entrust them with our lives.”

The defendant contends that his sentence is excessive and is not in keeping with the objective of restoring him to useful citizenship. Specifically, the defendant argues that the trial court failed to give sufficient weight to the numerous factors in mitigation; that it arbitrarily denied probation because the defendant fell within the court’s “disfavored class” of defendants; and that the judge’s statement that this was one of the few days in I8V2 years that he did not look forward to sitting on the bench demonstrates that the judge summarily dismissed the defendant’s argument for probation. We do not agree.

The sentencing judge is charged with the difficult task of fashioning a sentence which strikes the appropriate balance between protection of society and rehabilitation of the offender (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547), and that determination will not be disturbed absent an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882). The sentencing judge is not obligated to recite and assign value to each fact presented at a sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9; People v. Goodman (1983), 116 Ill. App. 3d 125, 128, 451 N.E.2d 607, 610.) When mitigating evidence is presented to the court, it is presumed that the court considered the evidence absent some indication, other than the sentence itself, to the contrary. (People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662, affd (1986), 115 Ill. 2d 184, 503 N.E.2d 331.) Here the court heard a considerable amount of testimony in mitigation, and it is clear from the judge’s comments that this evidence was considered. It is not the function of a reviewing court to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we might have balanced the appropriate factors differently if the task had been ours. Cox, 82 Ill. 2d at 280, 412 N.E.2d at 547.

The defendant also contends that the judge’s statement that professional people are held to a higher moral and ethical standard than others demonstrates that the judge arbitrarily denied probation because the defendant fell within the judge’s category of disfavored offenders (see People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168). We believe, however, that the judge was simply commenting on the applicability of section 5 — 5—3.2(a)(6) as an aggravating factor. That section expressly allows the sentencing judge to consider the defendant’s use of his professional reputation in committing the offense. We find no error.

Finally, we find nothing improper in the trial judge’s expression of regret at having to preside at the sentencing of a fellow member of the bar and a man whom he had regarded as a friend for many years. Such feelings are not unexpected from one having to perform such a distasteful duty, and we do not glean from such a comment any intent by the judge to summarily dismiss the defendant’s argument for probation.

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

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY K. LOVE, Defendant-Appellant.
    Third District
    No. 3-89-0776
    Opinion filed January 24, 1991.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Anthony K. Love was charged with 1 count of unlawful possession of a controlled substance (more than one but less than 15 grams of cocaine) with intent to deliver (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(b)(2)). After a jury trial, defendant was found guilty only of the lesser-included offense of unlawful possession of more than 1 but less than 15 grams of a controlled substance (Ill. Rev. Stat. 1989, ch. 56V2, par. 1402(b)). He was subsequently sentenced to serve three years in the Department of Corrections. Defendant appeals from his conviction.

The facts adduced at trial established that in the afternoon of March 7, 1989, defendant was seated in the backseat driver’s side of a 1977 Buick four-door automobile driven by one Stacy Pruitt. Officer Jeff Stabler of the Joliet police department observed that the car had an expired license plate registration. The officer pulled the car over and began to run a license registration check when Pruitt got out and approached the officer’s car. Stabler met Pruitt at the rear of the Buick and conducted a pat-down search for possible weapons. During this procedure, Stabler noticed that the backseat passengers were moving their shoulders from side to side and then bent down toward the floor. Stabler considered the movements suspicious. Officer Michael Sheridan, who arrived as backup while Stabler was talking with Pruitt, corroborated Stabler’s testimony regarding the movements of the backseat passenger on the driver’s side. Stabler removed the front seat passenger, Jerome Abbott, and then the other backseat passenger, Peter Luckett, and lastly, defendant, and conducted pat-down searches of them as well. Stubler found no weapons or contraband on any of the car’s occupants, but he did notice a Tylenol bottle on the floor mat of the rear passenger side. The floor was otherwise uncluttered. Stubler reached into the car and removed the bottle and shook it. Since there was no rattle, but something else inside, Stubler opened the bottle and discovered 38 small plastic bags containing a white powdery substance.

Defendant and Luckett were arrested and charged with possession with intent to deliver cocaine. They were tried jointly. The prosecution presented the theory at trial that the suspicious movements of Luckett and defendant may have been to remove the drugs from their pockets and stuff them into the Tylenol bottle. Expert testimony established that 15 of the small bags were weighed and tested. They all contained cocaine and their combined weight was 5.3 grams. It was further established that cocaine sells on the street for about $250 for a quarter of an ounce (seven grams), or $100 for a gram. The record on appeal gives no clue as to the outcome of the arrests of Pruitt and Abbott.

The defendants sought to defend against the charged offense with proof that Luckett had only $1.07 in change on his person when arrested, and that Love was similarly lacking in money. By contrast, the front seat occupants had produced $100 and $265 from their pockets. The State moved in limine to exclude this evidence, and at the close of the State’s case, the trial court granted the motion. Both defendants then rested without presenting any evidence.

In closing argument, the prosecutor emphasized that the case against the defendants was unrebutted. The jury was instructed that they could find either or both defendants guilty of the charged offense or of unlawful possession or not guilty. The jury returned verdicts finding both defendants guilty of unlawful possession only.

In this appeal, defendant challenges his conviction on grounds of insufficiency of the evidence, improper granting of the State’s motion in limine and prejudicial closing argument by the prosecutor calling attention to defendant’s failure to testify on his own behalf.

Defendant first asserts that the State’s evidence was insufficient to establish either actual or constructive possession of the cocaine. No fingerprint evidence was introduced to connect the backseat passengers to the cocaine, and the evidence established that the automobile was owned by Stacy Pruitt. Thus, defendant argues, the State’s case rested solely on defendant’s proximity to the contraband.

A conviction for unlawful possession of a controlled substance must be supported by proof beyond a reasonable doubt that defendant had knowledge of the substance and that it was in his immediate and exclusive control. “[N]arcotics being found on the premises under the control of defendant gives rise to an inference of knowledge and possession by him which alone may be sufficient to sustain a conviction for unlawful possession of controlled substances. [Citations.] Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession. [Citation.] Moreover, exclusive possession does not mean that possession may not be joint. [Citations.] If two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. [Citation.] Whether defendant had knowledge and possession are questions of fact to be resolved by the jury. Its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to guilt.” People v. Scott (1987), 152 Ill. App. 3d 868, 505 N.E.2d 42.

In this case we find that the circumstantial evidence of possession, while far from overwhelming, was not so deficient as to require a reversal of defendant’s conviction. Officer Stubler’s observations of defendant’s shifting movements and leaning toward the floor where the drugs were found, corroborated by Officer Sheridan, together with defendant’s proximity to the drugs in an area within his immediate and joint control, are sufficient to sustain the jury’s verdict. See People v. Briggs (1983), 112 Ill. App. 3d 979, 446 N.E.2d 305 (jury verdict of guilty of unlawful possession of cocaine affirmed on circumstantial evidence where defendant was standing bent over sink in tavern restroom where scratching and clicking sounds had been heard by officer and cocaine residue was found on edge of sink).

Defendant’s next argument is that he was denied his right to a fair trial by the trial court’s ruling on the State’s motion to exclude evidence of defendant’s and codefendant Duckett’s lack of money upon their arrest and the fact that the front seat passengers had about $365 between them. The court found the proffered evidence irrelevant. Because of the unique circumstances presented here, we find the court’s ruling reversible error.

Defendant was charged with unlawful possession with intent to deliver. There were 38 small bags of cocaine stuffed into a Tylenol bottle. Officer Stubler testified that the bottle was about three-fourths full of the bags when he opened it at the scene of the arrest. This evidence tends to support the inference that additional bags had been in the bottle, but had been used or delivered prior to defendant’s arrest. If the latter, it would be reasonable to expect that the person or persons who made the delivery(ies) would have money. Notably, there was no fingerprint evidence to connect any of the passengers to either the Tylenol bottle or any of the small bags it contained. Given the lack of direct evidence of possession, if defendant had been permitted to demonstrate that the backseat passengers had only a couple of dollars between them and that the front seat passengers had $365 in cash, this “negative” evidence would have leant support to defendant’s defense theory that he was not involved in any sale or delivery and had never in fact possessed the cocaine.

Although the jury in fact found the evidence insufficient to support the charged offense, this does not render harmless the court’s error in excluding the proffered testimony. By offering the lesser-included offense instruction, the defense gave the jury an opportunity to compromise between a finding of guilty as to the greater offense and an acquittal. Had the defendant been permitted to present the negative evidence with respect to the delivery charge, it is not certain how the State would have proceeded, whether the lesser-included instruction would have been requested, or what the jury’s verdict might have been. Because, as we have stated, the evidence of guilt was not overwhelming, we hold that the error in refusing defendant’s evidence requires that this cause be reversed and remanded for retrial.

Lastly, although not by itself a ground for reversing this defendant’s conviction, we deem it appropriate to comment on defendant’s third issue on appeal, i.e., the prosecutor’s reference in closing argument to defendant’s exercise of his right not to testify. Defendant argues that the prosecutor’s repeated allusions to the State’s “unrebutted” evidence deprived him of his right to a fair trial. We have reviewed the closing argument and, in context, do not find that the improper comments were repeated so as to overemphasize or focus the jury’s attention on defendant’s failure to take the stand. Nonetheless, we wish to soundly denounce the practice not only of blatant, but of subtle references as well to the State’s “uncontradicted,” “unrebutted” evidence. (People v. Slaughter (1980), 84 Ill. App. 3d 88, 404 N.E.2d 1058.) Once the seed has been planted, it does not take a deluge of overt reminders to insure the fomentation of an improper consideration in the mind of a lay juror. In this case, after successfully moving to exclude evidence that could have diluted the State’s case, the prosecutor’s closing remarks about defendant’s silence are particularly offensive to our sense of justice. We feel confident that the prosecutor will jealously guard defendant’s constitutional right by eliminating from his arguments any reference whatsoever to defendant’s exercise of his right not to testify on retrial.

The judgment of the circuit court is reversed, and this cause is remanded for a new trial.

Reversed; cause remanded.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE KNECHT

text:
    RONALD L. BURGESS, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF QUINCY et al., DefendantsAppellees.
    Fourth District
    No. 4-90-0516
    Opinion filed February 28, 1991.
    Rehearing denied April 3, 1991.

      Richard D. Frazier, of Metnick, Barewin & Wise, of Springfield, for appellant.
    Thomas J. Ortbal, Assistant Corporation Counsel, of Quincy, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Ronald L. Burgess (Burgess) appeals a circuit court order which dismissed his complaint for administrative review on the basis of his failure to join a necessary party as a defendant. In his complaint for administrative review, Burgess sought reversal of an order of the Board of Fire and Police Commissioners of the City of Quincy (Board) which discharged Burgess from his employment as a City of Quincy (Quincy) police officer. We reverse the order of dismissal and remand.

On June 15, 1989, John M. Wilson, who is the Quincy chief of police, filed with the Board written charges against Burgess. Appended to these charges were copies of internal police department memoranda and other documents which allegedly supported the charges. Subsequently, on July 7, 1989, the Board, “[pjursuant to written complaint of Chief of Police John M. Wilson,” filed 17 charges against Burgess. The majority of these charges were premised on Burgess allegedly leaving his assigned area of patrol without authorization on numerous occasions, often to offer unrequested assistance to other police officers who were outside his assigned area; Burgess being less than truthful in answering questions of and in preparing reports to his superiors; Burgess’ alleged failure to submit required reports in a timely manner; Burgess allegedly making errors and failing to follow proper procedures in entering court dates on traffic tickets; and Burgess’ alleged carelessness in the handling of evidence. On July 11, 1990, a copy of the charges prepared by the Board, together with notice of a July 18, 1990, hearing on the charges, was personally served on Burgess.

The hearing on the charges against Burgess was on three occasions continued by agreement of the parties. The Board held hearings on the charges on September 5, September 26, and November 15, 1989. In a “finding and decision” entered December 28, 1989, the Board found Burgess guilty of all but 3 of the 17 charges filed against him. Following a dispositional hearing held January 30, 1990, the Board on February 14, 1990, entered an order discharging Burgess from his position as a police officer.

On March 21, 1990, Burgess filed a complaint for administrative review of the Board’s discharge order. The Board filed a motion to dismiss Burgess’ complaint on April 10, 1990. The basis for this motion was Burgess’ failure to name Chief Wilson as a party defendant to the administrative review action. The Board asserted Chief Wilson was a necessary party to the proceeding. On June 27, 1990, the circuit court allowed the Board’s motion and dismissed with prejudice Burgess’ complaint for administrative review.

In appealing the circuit court’s dismissal order, Burgess asserts because no hearing was scheduled within 30 days of June 15, 1989 — the date Chief Wilson filed charges against him with the Board — the Board lacked jurisdiction to consider the charges against him and the discharge order which it entered is thus void ab initio. As to the merits of the necessary party issue, Burgess asserts Chief Wilson was not a necessary party because (1) neither he nor his attorney entered an appearance in the administrative proceeding, and (2) the Board proceeded on the basis of charges which it, and not Chief Wilson, filed.

As an alternative to holding either that the Board’s discharge order should be reversed for lack of jurisdiction, or that this cause should be remanded to the circuit court for a hearing on the merits because Chief Wilson was not a necessary party, Burgess asserts we should remand this cause to the circuit court with directions that the Board be required to file in the circuit court a complete record of the administrative proceedings which resulted in the discharge order. Burgess points out the complete transcripts of the administrative hearings were not filed in the circuit court, and he maintains that, without the transcripts, the circuit court was incapable of making an informed decision as to whether Chief Wilson was a necessary party. Burgess also contends the circuit court could not properly have relied on an affidavit of attorney Howard Snow-den in determining whether Chief Wilson was a necessary party, since the filing of this affidavit in the circuit court amounted to an improper attempt to supplement the record of the administrative proceedings.

With respect to the question of whether it had jurisdiction to enter its discharge order, the Board asserts the 30-day time limit for setting hearings on charges against police officers contained in section 10— 2.1 — 17 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17) is inapplicable to this case, because Quincy, pursuant to its home-rule powers, has adopted an ordinance which supersedes this statute. The Board asserts, under the applicable ordinance, it did not have to schedule a hearing within 30 days of the date Chief Wilson filed charges with the Board, but instead it was only required to schedule a hearing within 30 days of the date the Board filed charges against Burgess.

The Board maintains Chief Wilson is a necessary party to this administrative review action because (1) he filed the initial charges against Burgess, (2) he is listed as a party of record on proofs of service attached to three orders of continuance which the Board entered in the administrative proceeding, (3) he was served with a copy of the Board’s finding and decision as well as with a copy of the Board’s discharge order, and (4) the affidavit of attorney Howard Snowden corroborates the Board’s assertion Chief Wilson was a party to the administrative proceeding. The Board suggests it was not required to file a complete record of the administrative proceedings in the circuit court because, pursuant to section 3 — 106 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 106), it had the option of filing a motion to dismiss in lieu of filing the entire record. The Board states, in addition to filing a motion to dismiss in this case, it also filed the portions of the record relevant to the necessary party issue, and Burgess fails to assert in what respect the filing of the entire record would have altered the trial court’s decision as to this issue. With regard to the admissibility of the affidavit of attorney Snowden, the Board states:

“[T]he purpose of the affidavit was not to introduce new or additional evidence in support or opposition to the Board’s decision. Rather, the purpose of the affidavit was to provide a verified statement as to the facts as they related to the administrative proceeding, but which were not necessarily reflected on the face of the complaint for administrative review (the only pleading on file). The affidavit served to simply place the issue before the trial court as to whether Chief Wilson was a necessary party.”

Burgess asserts, in his reply argument, that under the Board’s rules, which have been adopted by the relevant Quincy city ordinance, the 30-day time period for scheduling a hearing commenced when Chief Wilson initially filed written charges with the Board.

The Code provides in pertinent part:

“The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges [against a police officer or firefighter], to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time.” (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17.)

Municipalities such as Quincy, which have populations of more than 25,000, are home-rule units and may enact ordinances pertaining to municipal employees which conflict with State statutes concerning the same matters. (Ill. Const. 1970, art. VII, §§6(a),(i); Paglini v. Police Board (1975), 61 Ill. 2d 233, 335 N.E.2d 480; Cappitelli v. Rodewald (1988), 171 Ill. App. 3d 875, 525 N.E.2d 1037.) Quincy has exercised this power by enacting the following ordinances pertaining to police and fire department personnel matters. Section 11.611 states, in part:

“Nothing herein shall be deemed to limit or restrict the power and authority of the board [of Fire and Police Commissioners], in accordance with its rules, to conduct informal investigations of complaints or allegations of misconduct of members of the fire or police departments. Charge or charges as used herein, shall be deemed to be filed only after the board files and serves on the member formal, written notice of charges in accordance with the rules of the board, and after such informal investigation of a complaint or allegation as the board, in its discretion may conduct.” (Quincy, Ill., City Code §11.611 (1980).)

And, section 11.625 states:

“Pre-emption — It is found and determined that this article and the provisions thereof prevails over division 2 of article 10 entitled ‘Board of Fire and Police Commissioners’ as amended by act approved August 10, 1965 of chapter 24 of the Illinois Revised Statutes, sections 10 — 2.1—1 to and including section 10 — 2.1—30 of said act of the Legislature of Illinois in accordance with the provisions of the Illinois Constitution of 1970 as in such case made and provided, and it is the intent of this article to pre-empt said act of the State of Illinois as herein set forth.” (Quincy, Ill., City Code, §11.625 (1980).

The rules adopted by the Board provide, in part:

“Section 2. Formal charges. All formal charges shall be filed with or by the Board in writing and shall state specifically the facts alleged to constitute the cause for the hearing; provided, however, that the Board may, of its own motion, lodge charges. Investigation of charges may be broad in their character, and evidence may be heard upon any facts or circumstances pertinent or applicable to such charges.” Quincy, Ill., Rules of the Board of Fire and Police Commissioners, Rule V, §2.

A reading of section 11.611 of the Quincy City Code, juxtaposed with the above-quoted portion of the Board’s rules, leads to the conclusion that it was the service upon Burgess of a copy of the charges against him which triggered the Board’s duty to schedule a hearing. Section 11.611 clearly states charges “shall be deemed to be filed only after the board files and serves on the member formal, written notice of charges in accordance with the rules of the board.” (Emphasis added.) (Quincy, Ill., City Code §11.611 (1980).) Thus, a charge is not deemed filed until after it is served on the police officer to whom it is directed. Both the filing and service of the charge must occur in accordance with the rules of the Board before the time for setting a hearing begins to run. The facts that parties other than the Board may file formal charges and the charges filed by Chief Wilson may have constituted formal charges are of no consequence with regard to determining when the time period for setting a hearing on the charges against Burgess commenced. This time period did not begin to run until a formal charge, whether filed by the Board or by someone else, was served on Burgess. In Sherman v. Board of Fire & Police Commissioners (1982), 111 Ill. App. 3d 1001, 445 N.E.2d 1, on which Burgess principally relies, the event which triggered the obligation to set a hearing date was the filing of charges with the board, and that case is thus factually inapposite to the present case.

Like section 10 — 2.1—17 of the Code (Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17), section 11.611 of the Quincy City Code (Quincy, Ill., City Code §11.611 (1980)) requires, in cases of this type, a hearing “be commenced within thirty (30) days” of the filing of charges. In the present case, the charges were filed in accordance with the applicable ordinance and Board rules on July-11, 1990, when Burgess was first served with a copy of charges against him. A hearing was initially set for July 18, 1990, which was well within 30 days of the date the charges were filed. Therefore, the Board had jurisdiction to consider the charges against Burgess and to take appropriate action on the basis of the charges.

Before addressing the merits of the necessary party issue, we must determine whether the affidavit of attorney Howard Snowden may be considered in deciding this issue. In his affidavit, Snowden stated: (1) in his capacity as corporation counsel, he appeared for and with Chief Wilson in the proceedings before the Board which are the subject of the present action, (2) Chief Wilson appeared personally and with Snowden at all Board proceedings pertaining to the charges against Burgess, and (3) the evidence in support of the charges against Burgess was presented by Snowden on behalf of Chief Wilson.

It is well established that affidavits which were not made a part of the record in proceedings before the administrative agency may not be considered in an administrative review action. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110; Kupkowski v. Board of Fire & Police Commissioners (1979), 71 Ill. App. 3d 316, 322, 389 N.E.2d 219, 224.) Moreover, a complete transcript of the proceedings before the Board probably would have provided definitive information as to most of the matters mentioned in Snowden’s affidavit. For these reasons, Snowden’s affidavit may not be considered in determining what transpired in the proceedings before the Board.

The determination of whether Chief Wilson is a necessary party to this administrative review action turns on whether he was a “party of record” to the proceedings before the Board. Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266, clearly holds that pursuant to sections 3 — 103 and 3 — 107 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 3 — 103, 3 — 107), all persons who were parties of record to an administrative proceeding must be made parties to an action for review of an order entered in the course of the administrative proceeding, and summons must be timely issued with respect to such parties. Noncompliance with the time limit for obtaining issuance of a summons may, however, be excused if there is evidence of a good-faith, albeit futile, effort to comply with this requirement.

Lockett provides little help in determining who is a “party of record” in an administrative proceeding. The supreme court decision simply states the police superintendent was a party of record to the proceedings before the police board. (Lockett, 133 Ill. 2d at 354, 549 N.E.2d at 1268.) The appellate decision (Lockett v. Chicago Police Board (1988), 176 Ill. App. 3d 792, 793, 531 N.E.2d 837, 837) only states the police superintendent filed the charges against Lockett.

In the present case, Chief Wilson is listed as a party of record on the proofs of service attached to three orders of continuance entered by the Board, and he obviously was the person ultimately responsible for the administrative proceeding taking place, in that he filed the initial charges against Burgess. However, Chief Wilson is not listed as a party on the appearance pages of the administrative hearing transcripts (which, together with the caption sheets, are the only portions of the hearing transcripts filed in the circuit court), although these sheets do list an appearance by “the Police Department.” This case differs from Lockett, in that there, the charges on which the discharge order was premised were filed by the police superintendent. In the present case, by contrast, the Board premised its discharge order on charges which it filed.

Under the facts of this case, a complete transcript of the administrative hearing could well have been crucial in determining whether Chief Wilson was a party of record to the administrative proceeding. The transcript might have revealed, for instance, if counsel specifically stated he appeared on behalf of Chief Wilson. However, under section 3 — 106 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 106), an administrative agency which is a defendant in an administrative review action may appear by filing either “an answer consisting of a record of the proceedings had before it, or a written motion in the cause or a written appearance.” Thus, an administrative agency is not required to file the record of an administrative proceeding until such time as it is required to file an answer, which, in this case, would have been after denial of the Board’s motion to dismiss.

Unlike in Pisano v. Giordano (1982), 106 Ill. App. 3d 138, 435 N.E.2d 899, which is cited by both parties, those portions of the administrative record which the Board deemed relevant to its motion were before the circuit court when it ruled on the motion. In contrast to Pisano, the circuit court in the present case was not placed in the position of having to render its decision in a vacuum, without the benefit of any portion of the administrative record. Consequently, the circuit court’s ruling on the Board’s motion to dismiss must be considered solely on the basis of that portion of the administrative record on file with the circuit court when it considered the Board’s motion.

The portions of the administrative record which were before the circuit court do not establish Chief Wilson filed the charges which were the basis for the discharge order. Moreover, the proofs of service of continuance orders, which list Chief Wilson as a party, do not conclusively establish he was a party of record to the administrative proceeding. There is nothing which establishes that after the Board filed the charges on which it premised its discharge order, Chief Wilson took any action to become a party of record. An individual does not become a party of record to an administrative proceeding simply because the administrative agency says he is a party. For these reasons, we hold the Board did not sustain its burden of establishing Chief Wilson was a party of record to the administrative proceeding which culminated in the order discharging Burgess.

The circuit court order which allowed the Board’s motion to dismiss is reversed, and this cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

SPITZ and GREEN, JJ., concur.