author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICKY BOWMAN, SR., Defendant-Appellee.
    Third District
    No. 3—88—0197
    Opinion filed March 17, 1989.

      HEIPLE, J., dissenting.
    James T. Teros, State’s Attorney, of Rock Island (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Richard P. Coppula, of Rock Island, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The trial court granted defendant Ricky Bowman’s motion to dismiss, based on a violation of his statutory right to a speedy trial. The State appeals the order.

On April 29, 1987, the defendant was charged in a criminal complaint with residential burglary. On August 6, 1987, the defendant was placed in the Rock Island County jail, and on the same day, a public defender was appointed to represent him. The next day, the defendant demanded a speedy trial. On August 11, 1987, attorney Fred Kopp was appointed to represent the defendant. Kopp had a contract with the County of Rock Island to represent criminal defendants who might have a conflict with the public defender’s office. On October 8, 1987, the defendant was arraigned and a trial date of November 23, 1987, was set.

On November 1, 1987, attorney Alexander Jarrin replaced Kopp as conflicts public defender, since Kopp had terminated his employment with the County of Rock Island effective October 31, 1987. On November 18, 1987, Jarrin filed a motion to remove the defendant’s case from the November jury list and to continue the case, alleging that he had insufficient time to prepare a defense. Although Jarrin and the prosecutor stipulated that the delay would be attributable to the defendant, their stipulation was not included in the order granting the motion. The defendant was not present when the motion was presented nor was a hearing conducted on the motion.

In mid-January of 1988, the defendant wrote a letter to the chief judge stating that he had not wanted a continuance and that he had desired to go to trial on November 23, 1987. He further pointed out that he had not had a trial date set since the continuance. Approximately two weeks later, the defendant again wrote to the chief judge, requesting that attorney Richard Coppula be appointed to represent him.

On February 19, 1988, Coppula filed an entry of appearance on behalf of the defendant and Jarrin was allowed to withdraw. On that same day, the defendant filed a motion to dismiss, alleging a violation of the speedy trial act (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5). The defendant had been in custody continuously for a period of 197 days, from August 6, 1987, until his motion to dismiss was filed. Following a hearing, the trial court granted the defendant’s motion, discharging the defendant. On February 24, 1988, the State filed a motion to reconsider, which the trial court subsequently denied.

On appeal, the State argues that the trial court erred in granting the defendant’s motion to dismiss. The State contends that the 120-day speedy trial period was tolled by the defendant’s motion to remove his case from the jury list and to continue the matter.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)) provides that an accused in custody is to be brought to trial within 120 days from the date he was taken into custody, unless delay is occasioned by the defendant. When a court-appointed counsel withdraws on his own initiative due to a conflict of interest, any resulting delay cannot be charged to the defendant (People v. Roberts (1985), 133 Ill. App. 3d 731, 479 N.E.2d 386), unless the withdrawal was made under circumstances from which it may be inferred that the defendant acquiesced in the delay (People v. McGuire (1984), 123 Ill. App. 3d 908, 463 N.E.2d 1041). Since the trial court is in a better position to determine whether the defendant acquiesced in the delay, a reviewing court will affirm its decision unless it amounts to an abuse of discretion. People v. Keagbine (1979), 77 Ill. App. 3d 1039, 396 N.E.2d 1341.

At the hearing on the instant defendant’s motion to dismiss, the defendant testified that he was not notified until November 18, 1987, that attorney Kopp no longer represented him. The defendant further testified that he was not aware that his newly appointed counsel, Alexander Jarrin, had filed a motion for a continuance until two days after it was filed. The defendant testified that he told Jarrin that he did not want a continuance.

Kopp testified on behalf of the State that he had informed the defendant in late October that Jarrin would be taking over the case and would probably need more time to prepare. Kopp also explained to the defendant that he could either have the case settled before Kopp left or go to trial with a new lawyer. The defendant then told Kopp that he did not want to plea bargain. The defendant further indicated that a continuance would be fine because he wanted to spend as much time as he could in the Rock Island County jail. According to Kopp, the defendant believed that time spent in the Rock Island County jail would be credited against time he was required to serve in an Iowa correctional facility. Kopp also testified that the defendant was aware of the speedy trial provision. Kopp explained to the defendant that any motion they made would toll the time in which the State had to bring him to trial.

Under the circumstances of the instant case, we find that the defendant did not voluntarily acquiesce in the delay occasioned by the withdrawal of his counsel. The defendant was faced with the choice of either going to trial with unprepared counsel or asking for a continuance and foregoing his right to a speedy trial. The defendant was placed in a compromising position not as a result of his actions, but as a result of the acts of his two attorneys and the County of Rock Island. We agree with the trial judge’s finding that “if the defendant did acquiesce in the motion to continue, he did so only under duress and not voluntarily.”

Further, under the circumstances of the instant case, we do not find it significant that the defendant’s counsel stipulated that delay would be chargeable to the defendant. The defense counsel withdrew from the case on his own initiative, not at the insistence of the defendant. As such, any resulting delay cannot be charged to the defendant. People v. Roberts (1985), 183 Ill. App. 3d 731, 479 N.E.2d 386.

The State’s second argument on appeal is that dismissal for a speedy trial violation is discretionary and not mandatory. It therefore contends that the trial court erred in automatically dismissing the defendant’s case. The State’s argument rests on an analysis of the distinction between the use of the mandatory “shall” contained in section 103 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)), as opposed to the use of the permissive “may” contained in section 114 — 1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(a)).

In People v. Jones (1986), 145 Ill. App. 3d 804, 495 N.E.2d 1330, we previously rejected the State’s instant statutory construction argument. Although the statutory speedy trial period is not coextensive with the constitutional right to a speedy trial, if an accused is not brought to trial within the 120-day term and he has not occasioned any delay in trial, he is entitled to dismissal of the charges. People v. Jones (1986), 145 Ill. App. 3d 804, 495 N.E.2d 1330.

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

Affirmed.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

In the instant case, defense counsel filed a motion to remove the defendant’s case from the jury list and to continue the matter. The basis of counsel’s motion was the fact that he had been assigned to the defendant’s case on November 1, 1987, and that he had an insufficient amount of time to adequately prepare the defense for trial, which was scheduled for November 23, 1987. In addition, defense counsel stipulated that the delay occasioned by the continuance was specifically attributable to the defendant. Contrary to the majority holding, I find that a motion submitted by the defendant’s own attorney for a continuance is a delay occasioned by the defendant and consequently tolls the 120-day speedy trial period provided under section 103 — 5(a) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)).

Section 103 — 5(a) provides in pertinent part:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a).)

It is well settled that the statutory speedy trial term is tolled where a defendant requests, stipulates to, or consents to a continuance. (People v. Tillman (1963), 26 Ill. 2d 552, 554; People v. Brown (1982), 110 Ill. App. 3d 443.) The record establishes that the defendant was arrested on August 6, 1987, and charged with the offense of residential burglary. On November 18, 1987, the defendant’s counsel requested and obtained a continuance order. Thus, if the statutory period had been tolled on November 18, 1987, there would have been 16 days remaining in the 120-day term. The majority finds, however, that because the defendant did not voluntarily acquiesce in his counsel’s request for a continuance, the delay was not occasioned by the defendant, and the 120-day period was not tolled. I cannot agree with the majority’s interpretation of section 103 — 5(a).

Continuances which are requested by the State are charged to the State. (People v. Rhoads (1982), 110 Ill. App. 3d 1107.) Likewise, continuances which are requested by the defendant are charged to the defendant. (People v. Gathings (1984), 128 Ill. App. 3d 475.) Courts should not be forced to inquire into every chargeable delay to determine whether a defendant personally agreed to a continuance or was wholly blameless for asking for a continuance. Such a rule would allow defendants to divert the blame for delays caused by their own motions. For example, a defendant may move for a continuance in order to receive more time to complete discovery. If the continuance is granted, the defendant might resourcefully argue that the reason he needed more time for discovery was because the State had not been forthcoming and expedient in furnishing him information. Thus, the defendant could argue that since he was not to blame for the circumstances necessitating the continuance motion, the motion should not be charged to him. Then, when the 120-day speedy trial period expires, the defendant will move to dismiss the case, since the delay was not occasioned by him. To avoid this pitfall, this court should adhere to the principle that parties should be charged for motions that they request.

Furthermore, the majority’s ruling attempts to separate the affirmative acts taken by defense counsel from the defendant’s own acts. This runs counter to well-established case law. It is clear that when defense counsel fails to appear in court at the appointed time, his absence causes a delay attributable to the defendant. (People v. Hairston (1970), 46 Ill. 2d 348, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) It does not matter whether the defendant personally acquiesced to his counsel’s decision not to appear in court at the appointed time. Likewise, in the present case, it should not matter whether the defendant personally agreed to the continuance. Actions taken by defense counsel should be charged to the defendant.

Finally, the defendant in this case is presented with a no-lose situation. Certainly, if the defendant’s counsel had not moved for a continuance and had gone to trial unprepared, the defendant on appeal would be arguing that trial counsel rendered ineffective assistance of counsel. Yet, since his counsel chose to request a continuance, the defendant now attempts to assert a technical violation of the 120-day speedy trial period. This court should not allow the defendant to have it both ways. For the reasons stated, the continuance motion should be charged to the defendant and the statutory 120-day period should have been tolled. Accordingly, I dissent.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    AUTO-OWNERS INSURANCE COMPANY, Plaintiff-Appellant, v. ERNEST E. GRAY, Indiv. and as Adm’r of the Estate of Lynda Gray, Deceased, et al., Defendants-Appellees (Gary E. Miller et al., Defendants).
    Third District
    No. 3—88—0466
    Opinion filed March 17, 1989.
    Myers, Daugherity, Berry & O’Connor, Ltd., of Ottawa (Eugene P. Daugherity, of counsel), for appellant.
    Law Offices of Peter F. Ferracuti, P.C., of Ottawa (Mark A. Schindler, of counsel), for appellee Ernest E. Gray.

      Anthony C. Raccuglia, of Anthony C. Raccuglia & Associates, of Peru (James A. McPhedran, of counsel), for other appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff Auto Owners Insurance Company brought this action seeking a declaratory judgment regarding its liability under a personal automobile insurance policy. Plaintiff seeks a determination that the policy did not afford coverage because the vehicle being operated by the insured, defendant Gary Miller, at the time of the accident was furnished for his frequent and regular use. The trial court determined the vehicle was not furnished for Miller’s regular use because there was a deviation from the permitted uses at the time of the accident.

Gary Miller was involved in an accident while driving a pickup truck owned by his employer, La Salle County Asphalt. The accident occurred on the evening of September 9, while Miller was returning from a golf outing.

Miller was assigned the pickup truck in May of 1982; the truck was in his exclusive possession up until the date of the accident in September 1984. Miller kept the truck at his personal residence at all times, 24 hours a day, for the entire year. Miller was allowed to retain the truck during the winter months even though he would frequently not work and not be on La Salle’s payroll because it was La Salle’s slow season. The only sets of keys to the truck were in La Salle’s office and in Miller’s possession.

Miller stated he had made personal use of the truck prior to the date of the accident and had never been reprimanded for making personal use of the vehicle. Although he had never received verbal or written instructions from his supervisor at La Salle limiting or restricting his use of the truck, Miller acknowledged he knew he was violating company policy at the time of the accident.

Under La Salle’s unwritten policy, employees were allowed to use company trucks for company business only. According to La Salle, any personal use of the truck by an employee would result in discharge. Miller was discharged from his position with La Salle after the accident. All of the employees who were in positions similar to Miller, who testified in court, stated that they had been given specific directions as to the prohibition of personal use of the vehicle.

La Salle’s vice-president, Owen Seibert, testified that La Salle benefited from its foreman having possession of the trucks because the workers were able to go directly to the job site. Seibert maintained that in the event of an emergency, La Salle’s foreman could quickly reach a problem area if the truck was in his possession. According to Seibert, the trucks were also used for storage of the company’s bulky, heavy tools, which were frequently used each day.

At the time of the loss there was in effect a policy of insurance issued by Auto Owners covering Miller for his personal automobile use. The policy included coverage for Miller’s operation of a non-owned vehicle subject to an exclusion which is the subject of this litigation. The exclusion portion of the insurance policy provided, in relevant part, as follows:

“(b) Coverage does not apply:
(1) To any automobile owned by, or furnished for regular use to the named insured or a member of its household other than a private chauffeur or domestic servant of the named insured or spouse ***.”

The central issue to be decided in this case is whether, on the date of the accident, Miller was operating a vehicle that was furnished for his regular use within the meaning of his personal insurance policy and relevant case authority. On appeal, Auto Owners contends the trial court erred in finding Miller’s company-owned vehicle was not furnished for Miller’s regular use.

The Illinois Supreme Court has held the term “regular use” is not subject to an absolute definition and its application should be interpreted on a case-by-case basis. (State Farm Mutual Automobile Insurance Co. v. Differding (1977), 69 Ill. 2d 103, 370 N.E.2d 543.) Differding was a student at Northern Illinois University. During the summer term, a professor made an auto available to Differding for the purpose of maintaining and preventing its deterioration while he was out of the country. Differding also sublet her professor’s apartment, but maintained a permanent home with her parents in Park Forest. There were two limitations placed upon Differding’s use of the auto; it was to be used only in the De Kalb area, and it was only to be used for the summer. In August while Differding was driving the auto from De Kalb to her home in Park Forest, she collided with a motorcycle.

At the time of the accident there were in force two policies of automobile liability insurance issued to Differding’s family members. Each policy included a provision which provided coverage for non-owned automobiles that are not furnished for the regular use of persons residing in the same household. The Illinois Supreme Court affirmed the trial court’s judgment that no coverage was afforded under the Differdings’ policies.

The cases preceding and following Differding are the subject of controversy between the parties. Specifically, the defendants contend the Differding court’s findings are consistent with that of an earlier case, Schoenknecht v. Prairie State Farmers Insurance Association (1960), 27 v. App. 2d 83, 169 N.E.2d 148. In Schoenknecht, the plaintiff’s employee provided him with a car to use in his work, and at the end of the day, plaintiff was required to return the car to his employer’s shop. After his last call on the day in question, instead of returning the car, he drove it to visit friends. An accident occurred at approximately 11 p.m. that evening. The trial court found that an insurance policy issued by defendant on plaintiff’s personal automobile provided coverage for this collision. On appeal, the defendant insurance company contended that coverage was not provided because the automobile involved in the collision had been furnished to plaintiff by his employer for his “regular use.” The appellate court rejected that contention, stating that plaintiff was furnished the car for use only in connection with his employer’s business during working hours. The use of the car to visit friends after hours was an isolated, casual and unauthorized use of the vehicle and thus did not come within the “regular use” exclusion.

The plaintiff argues Differding overruled Schoenknecht and that this court should follow two cases which came after the Differding decision. (See Economy Fire & Casualty Co. v. Gorman (1980), 84 Ill. App. 3d 1127, 406 N.E.2d 169; State Farm Mutual Automobile Insurance Co. v. Bundy (1988), 165 Ill. App. 3d 260, 519 N.E.2d 109.) Differding, Gorman, and Bundy are consistent in recognizing that the departure from permitted use by an individual, when driving an owner’s vehicle, is not as a matter of law dispositive of the question of whether that vehicle has been furnished for the individual’s regular use.

In Gorman, the insured’s son, Gorman Jr., was involved in a collision while driving his employer’s vehicle. His employer provided the automobile for him to use in making deliveries: the vehicle was never furnished to him for personal use. On the evening of the accident, Gorman Jr. drove the vehicle to a friend’s home after working hours and later that night became involved in an accident. The court determined that the car at the time of the accident was furnished to Gor-man Jr. on a regular basis. The court felt the facts in Gorman illustrated that the car was provided to Gorman Jr. for his use throughout each business day. The Gorman court considered Schoenknecht to have been overruled by Differding.

The second case decided by the fourth district after Differding is State Farm Mutual Automobile Insurance Co. v. Bundy (1988), 165 Ill. App. 3d 260, 165 N.E.2d 109, which also found an auto excluded from coverage under a policy limitation for nonowned cars provided for an insured’s “regular or frequent use.” In Bundy, the court upheld the trial court’s denial of coverage to Bundy for an accident which occurred while Bundy was using his employer’s vehicle for personal reasons. The record revealed that Bundy had previously used the employer-owned truck for personal business. Bundy’s employer’s policy was to allow use of the vehicles provided permission was received. On the day in question, Bundy failed to obtain permission for use of the truck, which he was using to transport a refrigerator.

The defendant argues Gorman and Bundy have incorrectly interpreted the Differding decision to have silently overruled Schoenknecht. After analyzing all four of the above-mentioned cases, it can be determined that, although a different emphasis is placed upon the individual factors in the record, the courts’ reasoning and result in each case is consistent. Each case examines the circumstance surrounding the individual employee’s use of the company vehicle and each case reaches a result based upon the individual facts presented.

Applying the above-stated principles to the present case, it can be determined that Miller’s vehicle was furnished to him for his regular use. This result can be reached by applying the analysis of any of the above-stated cases.

Without restating the facts as they were set forth in the introduction of this decision, it is our conclusion that there is not coverage in this case. Under the guidelines set forth in Schoenknecht, Differding, Gorman and Bundy, Miller was furnished the La Salle truck for regular use. A finding that the vehicle was not furnished for Miller’s regular use would be a triumph of form over substance.

For the foregoing reasons the judgment of the circuit court of La Salle County is reversed.

Reversed.

SCOTT and HEIPLE, JJ., concur.


author: PRESIDING JUSTICE WOMBACHER

text:
    JAMES KINDRED, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Appellees (International Harvester, Respondent).
    Third District
    No. 3—88—0320
    Opinion filed March 17, 1989.
    Richard M. Batcher, of Bozeman, Neighbour, Patton & Noe, of Moline, for petitioner.

      Neil F. Hartigan, Attorney General, of Springfield (Diane Curry-Grap-sas, Assistant Attorney General, of Chicago, of counsel), for respondent Human Rights Commission.
    Oliver W. Loewy and Janet L. Jannusch, both of Keck, Mahin & Cate, of Peoria, for respondent International Harvester.
   PRESIDING JUSTICE WOMBACHER

delivered the opinion of the court:

The Illinois Human Rights Commission (Commission) found that the respondent, International Harvester, had not terminated the petitioner’s employment because of his age. The petitioner, James Kindred, appeals.

The record shows that on September 10, 1982, the respondent terminated the 52-year-old petitioner’s employment after 30 years of service. The respondent had been suffering serious financial problems since 1980. The petitioner’s termination was part of a massive workforce reduction which resulted in approximately 3,800 layoffs out of 4,350 total employees.

During his employment with the respondent, the petitioner worked in the plant protection department. Starting as a plant guard, he eventually worked his way up to chief of the department. After suffering a heart attack, he voluntarily stepped down in 1978 from the chief's post and worked as a lieutenant until his termination.

At the time of the petitioner’s termination, his department had one chief and three lieutenants. Chief James Dickey was 41 years old. Lieutenants Morris Chambers and Lynn Klarkowski were, respectively, 40 and 30 years old. As part of the work-force reduction, one lieutenant’s position was eliminated.

Tom Hansen, the respondent’s director of human resources, discussed the situation with Dickey and decided to discharge the petitioner. He further decided to move Ronald Bjork, the 43-year-old plant safety supervisor, to the plant protection department. Hansen testified that he retained Bjork because, among other reasons, he had more experience in plant safety than did the petitioner. He retained Chambers because he had greater growth potential, had an advanced degree, had excellent writing and verbal skills, had developed the respondent’s fire fighting plan, and had had better evaluations than the petitioner. He stated that he kept Klarkowski because she was promotable, was equally qualified with the petitioner, and was a woman.

The petitioner argued before the Commission that Hansen’s reasons were pretextual and hid age discrimination. In support of his position, the petitioner presented evidence that he was more experienced and more qualified than several of the retained personnel.

The administrative law judge (ALJ) found that the petitioner had proved a prima facie case of age discrimination and that the respondent had in turn articulated legitimate nondiscriminatory reasons for the petitioner’s discharge. The ALJ further found that the petitioner had failed to show direct evidence of age discrimination and had failed to show that the respondent’s reasons were pretexts for age discrimination. The ALJ therefore recommended that the Commission dismiss the petitioner’s complaint. The Commission subsequently dismissed the complaint with prejudice.

On appeal, the petitioner first argues that the Commission placed an improper burden of proof on him. The petitioner contends that instead of requiring him to prove his case by a preponderance of the evidence, the Commission required him to prove that his credentials were so superior that the reasons articulated by his employer were unworthy of credence.

In an age discrimination suit, the employee may prove his case with either direct or circumstantial evidence. (McNeil v. Economics Laboratory, Inc. (7th Cir. 1986), 800 F.2d Ill.) In the indirect case, the employee must first prove a prima facie case of age discrimination. If the employer then articulates a lawful reason for the employee’s dismissal, the employee has the burden of proving that the reason given by the employer is merely a pretext by showing that the discriminatory reason more likely motivated the employer or that the employer’s proffered explanation is unworthy of credence. LaMontagne v. American Convenience Products, Inc. (7th Cir. 1984), 750 F.2d 1405.

We find the petitioner’s argument unpersuasive. The petitioner’s prima facie case was based on the circumstantial evidence that his credentials were superior to the credentials of several of the retained personnel. The respondent then articulated apparently legitimate reasons for its determination that the retained personnel had better credentials. At that point, the petitioner did not have to merely prove that his credentials were in fact superior. He had to prove that their superiority was so obvious that the respondent’s reasoning was unbelievable and must be construed as merely a pretext for age discrimination. Accordingly, the Commission correctly paraphrased the La Montagne burden of proof to fit the facts of the instant case.

The petitioner’s second argument on appeal is that the ALJ erred in refusing to allow one of the respondent’s guards to testify that Chambers had told him that Dickey had stated that the petitioner was too old for his job. He notes that this would have been direct evidence of age discrimination.

We agree with the petitioner that Dickey’s alleged statement to Chambers was not hearsay, because it was not offered for the truth of the matter asserted. (Lundberg v. Church Farm, Inc. (1986), 151 Ill. App. 3d 452, 502 N.E.2d 806.) However, we find that Chambers’ alleged statement to the guard was hearsay. It was offered for the truth of the matter asserted, i.e., that Dickey had made the alleged statement to Chambers. Further, Chambers’ alleged statement was not admissible under the state-of-mind exception to the prohibition on hearsay statements (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112), because at most it could only have shown Chambers’ state of mind. Dickey’s state of mind, not Chambers’, was the relevant issue.

The petitioner’s third argument on appeal is that the ALJ erred in barring his testimony regarding Chambers’ qualifications.

In limited instances, a lay witness may give his opinions or conclusions about facts in issue. (State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 260 N.E.2d 415.) In order for such testimony to be admissible, the court must find that the witness’ testimony is based upon his personal observation and recollection of concrete facts. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524.) Rulings on the admissibility of evidence are within the discretion of the trial court and may be disturbed on appeal only when they constitute an abuse of discretion. In re Estate of Weir (1983), 120 Ill. App. 3d 18, 458 N.E.2d 134.

In the instant case, the petitioner sought to give his opinion on Chambers’ credentials. The record shows, however, that he had had very little opportunity to personally observe Chambers’ work. Instead, the petitioner would have based his opinion on other parties’ statements about Chambers and on conversations he and Chambers had when one was finishing his shift and the other was starting. Under these circumstances, the ALJ did not abuse his discretion in refusing to admit the evidence.

The judgment of the Human Rights Commission is affirmed.

Affirmed.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE LUND JUSTICE GREEN,

text:
    DECATUR BOARD OF EDUCATION, DISTRICT NO. 61, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—88—0400
    Opinion filed February 9, 1989.
    Supplemental opinion filed on denial of rehearing April 19, 1989.

      GREEN, J., specially concurring.
    Philip H. Gerner III and John T. Taylor, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gregory J. Malovance and William G. Miossi, both of Winston & Strawn, of Chicago, and Sandra Holman, of Illinois Education Association, of Springfield, for respondent Decatur Education Association.
    Stephen A. Yokich and Mark S. Stein, both of Cornfield & Feldman, of Chicago, for amicus curiae Illinois Federation of Teachers.
   JUSTICE LUND

delivered the opinion of the court:

The Decatur Board of Education, District No. 61 (School District), appeals from a decision of the Illinois Educational Labor Relations Board (Board) determining the School District had violated sections 14(a)(1) and 14(aX5) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 1714(a)(1), (aX5)), in refusing to bargain over class size. Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, case No. 86 — CA—0042—S (Illinois Labor Relations Board, May 17,1988).

The School District initially argues the Decatur Education Association, IEA-NEA (Association), waived the issue of class size and the issue of the impact of class-size decisions on teachers’ working conditions. However, the stipulated facts submitted by the parties to the hearing officer indicate the parties agreed that the Association had not waived any bargaining rights concerning class size, “and/or the impact thereof.” The School District’s initial argument is rejected.

Section 10(a) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1710(a)) provides the mandatory topics of collective bargaining are wages, hours, and other terms and conditions of employment. Section 4 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1704) denotes, in broad terms, areas under the employer’s control, and provides, in relevant part, as follows:

“Employer rights. Employers shall not be required to bargain over matters of inherent managerial policy, which shall include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. Employers, however, shall be required to bargain collectively with regard to policy matters directly affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by employee representatives.”

The words “directly affecting” and “impact” in the second sentence are of importance in this decision. Two members of the Board determined class size directly affected terms and conditions of employment, and one member determined that class size did not have a direct effect but had an impact on terms and conditions of employment. The finding of a “direct” effect ultimately resulted in a determination that class size is a mandatory subject for bargaining. An “impact” finding would have resulted in required bargaining concerning the “impact” of class-size determinations on terms and conditions of employment, although the class-size decision itself would have been reserved to the employer.

The Board members all agree that a finding of direct effect, under the second sentence of section 4, did not automatically result in mandatory bargaining. The Board adopted a balancing test whereby, after finding a direct effect exists, the interests of the employees are weighed against the School District’s interest in maintaining unencumbered control over the managerial policy. This same balancing test could be used in determining when the impact of a particular policy decision would be subject to bargaining.

We digress in an attempt to clarify what has been said. A liberal interpretation of the words “directly affecting” could include many subjects properly limited to managerial discretion. Almost every policy decision made by a school district could be said to have a direct effect or, at a minimum, an “impact” on conditions of employment. The first sentence of section 4 could, through a liberal interpretation of “directly affecting” and “impact,” become meaningless, which would undoubtedly be contrary to legislative intent. The complexity of determining what is “directly affected” is illustrated by the disagreement among the Board members. We recognize this complexity and the necessity of establishing guidelines which assist in giving the statutory provisions meaning.

BALANCING TEST

The Association argues the application of a balancing test is unnecessary in the instant case because classroom size is directly covered by section 10(a), and such a finding should bar the application of section 4. This argument is without merit. Too many factors in school operations overlap, requiring a method for deciding between managerial exclusivity and employee participation through bargaining. Any other decision would ignore the legislative history relating to section 4. The School District also disagrees with the application of the balancing test, but for the opposite reason. The School District argues the facts are similar to those in Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066, case No. 84 — CA—0057—C (Illinois Educational Labor Relations Board, May 30, 1986). In Berkeley, the school management determined to change athletic programs from interscholastic to intramural. Hours and wages of coaches were affected, but the majority of the Board found the subject matter was not a working condition under section 10(a). The policy decision was held not to be a working condition and not subject to bargaining. The School District argues the Board should have similarly found class-size decisions not a term or condition of employment under section 10(a). There would, therefore, be no need to resort to a balancing test. Although the main emphasis of the Berkeley holding was about section 10(a), we note the Board determined the purpose of section 4 “clearly was to balance the employees’ right to bargain collectively with ‘the unique managerial problems besetting educational employers and the taxpayers who ultimately pay the bill.’ ” Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066, case No. 84 — CA—0057—C, at VII — 176.

Several factors support the adoption of a balancing test. Governor James Thompson mentioned the need to balance employers’ and employees’ interests in his Amendatory Veto Message of the Act (IV House Journal, 84th Ill. Gen. Assem., Sept. 23, 1983, at 9134 (1983 Sess.)). The Pennsylvania Public Employee Relations Act (Pa. Stat. Ann. tit. 43, §1101.201 et seq. (Purdon Supp. 1988)), which applies to school districts, served as a guideline in the preparation of the Illinois Act. The courts of Pennsylvania have approved the use of a balancing test. (Pennsylvania Labor Relations Board v. State College Area School District (1975), 461 Pa. 494, 337 A.2d 262.) We have previously held that following the interpretation given by the courts of Pennsylvania is a logical sequence resulting from the use of the Pennsylvania Act as a guideline for our Act. (Board of Governors of State Colleges & Universities v. Illinois Educational Labor Relations Board (1988), 170 Ill. App. 3d 463, 478-80, 524 N.E.2d 758, 767-68.) A balancing test has also been adopted by the Illinois State Labor Relations Board (County of Cook (Cermak Health Services), 3 Pub. Employee Rep. (Ill.) par. 3030, case Nos. L — CA—87— 200, L — CA—87—205 (Illinois Local Labor Relations Board, Sept. 21, 1987)), which may also be considered as persuasive authority. See Ill. Rev. Stat. 1987, ch. 48, par. 1717.

We agree with the Board and find that the balancing test is necessary to give proper interpretation to the statutory provisions. We determine the facts in Berkeley are sufficiently different from those in the present case so as to be of no precedential value. The balancing test measures the interests of both sides and is a reasonable method in resolving the overlap problem between sections 10(a) and 4.

DEFERENCE TO AGENCY DECISIONS

The Board argues the court should adopt a standard of “considerable deference” in reviewing decisions construing what topics are mandatory bargaining subjects under the Act. The “considerable deference” language comes from the United States Supreme Court’s opinion in Ford Motor Co. v. National Labor Relations Board (1979), 441 U.S. 488, 495, 60 L. Ed. 2d 420, 427, 99 S. Ct. 1842, 1848. Ford Motor Co. involved a situation similar to the instant case, where the Supreme Court reviewed a National Labor Relations Board (NLRB) decision which held a particular topic to be a mandatory bargaining subject. The court stated the NLRB is to be accorded considerable deference in making such determinations.

The courts in Illinois have already adopted a standard of

“substantial deference” for certain agency decisions. In general, the courts give substantial weight and deference to an interpretation of an ambiguous statute by the agency charged with the administration and enforcement of the statute. (Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 152, 447 N.E.2d 295, 300; Scott v. Edgar (1987), 152 Ill. App. 3d 221, 224, 505 N.E.2d 4, 6; Mattson v. Department of Labor (1983), 118 Ill. App. 3d 724, 727, 455 N.E.2d 278, 281.) Further, in a case involving educational matters, this court stated that where administration of a broad statutory standard has been delegated to an agency’s discretion, the court should rely upon the agency’s interpretation where there is reasonable debate as to the statute’s meaning. (Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 907, 493 N.E.2d 1130, 1136.) It is hard to distinguish between “considerable deference” and “substantial deference.” In this case, the Board asks the court to adopt the standard for a particular type of determination: a decision by the Board on what constitutes a mandatory subject for collective bargaining.

In a recent case, this court stated the standard was simply “deference.” (Hardin County Education Association, IEA-NEA v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 173-74, 528 N.E.2d 737, 740.) Hardin County is similar to the instant case in that the Board applied a new test to the facts therein. On appeal, the parties argued over which test was proper. This court held the test adopted by the Board was the proper one. Hardin County, 174 Ill. App. 3d at. 178, 528 N.E.2d at 742.

The Board’s expertise in educational labor matters must be given due consideration. Any other holding on our part would, for practical purposes, make appellate review of bargaining issues trial de novo. Such a result would appear to substitute our general knowledge and study for the expertise required of Board members by section 5 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1705). We conclude considerable deference should be given the Board’s decisions pertaining to mandatory bargaining subjects.

Class size is an element which obviously affects financial planning. The bargaining requirement may well create administrative problems, such as the need for additional teachers, or even additional buildings. The substantial fiscal problems faced by school boards must be a factor when determining whether class size should be subject to bargaining. At the same time, a teacher’s work hours are definitely affected by class size. Classroom discipline require-merits are subject to change based on the size of the class. It would appear that the amount of pressure on a teacher increases in proportion to the increase in class size.

Both sides cite authorities from foreign jurisdictions to support their arguments. At the same time, the parties attempt to distinguish the authorities which hold opposite to their positions. The fact is the authorities are divided.

The majority of the States which have examined the issue of class size find it to be a nonmandatory bargaining subject: Kenai Peninsula Borough School District v. Kenai Peninsula Education Association (Alaska 1977), 572 P.2d 416; Hillsborough Classroom Teachers Association, Inc. v. School Board of Hillsborough County (Fla. App. 1982), 423 So. 2d 969; National Education Association of Shawnee Mission, Inc. v. Board of Education of Shawnee Mission Unified School District No. 512 (1973), 212 Kan. 741, 512 P.2d 426; City of Biddeford By its Board of Education v. Biddeford Teachers Association (Me. 1973), 304 A.2d 387; School District of Seward Education Association v. School District of Seward (1972), 188 Neb. 772, 199 N.W.2d 752; In the Matter of West Irondequoit Teachers Association v. Helsby (1974), 35 N.Y.2d 46, 315 N.E.2d 775, 358 N.Y.S.2d 709; Springfield Education Association v. Springfield School District No. 19 (1976), 24 Or. App. 751, 547 P.2d 647; Aberdeen Education Association v. Aberdeen Board of Education (S.D. 1974), 215 N.W.2d 837; Beloit Education Association v. Employment Relations Comm’n (1976), 73 Wis. 2d 43, 242 N.W.2d 231.

The courts of three States have decided class size is a mandatory topic of collective bargaining: West Hartford Education Association v. DeCourcy (1972), 162 Conn. 566, 295 A.2d 526; Boston Teachers Union, Local 66, American Federation of Teachers (AFL-CIO) v. School Committee of Boston (1976), 370 Mass. 455, 350 N.E.2d 707; Clark County School District v. Local Government Employee Management Relations Board (1974), 90 Nev. 442, 530 P.2d 114.

Examining the case law from Pennsylvania leads to an inconclusive result. In State College Education Association v. Pennsylvania Labor Relations Board (1973), 9 Pa. Commw. 229, 306 A.2d 404, the Pennsylvania Commonwealth Court found class size to be a non-mandatory bargaining subject. However, the court expressed a very management-oriented interpretation of the Pennsylvania Public Employee Relations Act. Three members of the panel dissented in part, arguing class size had a direct effect on working conditions and should be considered a mandatory bargaining topic. The Pennsylvania Supreme Court reversed the commonwealth court. (Pennsylvania Labor Relations Board v. State College Area School District (1975), 461 Pa. 494, 337 A.2d 262.) The supreme court rejected the narrow interpretation of employee rights and remanded the matter to the agency for further consideration under proper principles. As mentioned above, the supreme court adopted a balancing approach for resolving the overlap problem. The employer’s rights provision of the Pennsylvania statute is very similar to section 4 of the Act. (Pa. Stat. Ann. tit. 43, §1101.702 (Purdon Supp. 1988).) The significant difference is that employers need not bargain collectively over policy matters that overlap into working conditions. They are required to “meet and discuss,” which is a lesser obligation. See Commonwealth v. Association of Pennsylvania State College & University Faculties (1976), 24 Pa. Commw. 337, 355 A.2d 853.

We have indicated our concern relating to the fiscal problems of school districts, and we recognize that it is the responsibility of an administration to maintain a solvent district. We conclude, however, that these responsibilities and problems can be discussed in bargaining and may be decisive in a school district taking a firm position relating to class size. The Board’s decision, given considerable deference by this court, is within the perimeters of its discretion. Classroom size is a mandatory issue for bargaining in Illinois.

For the reasons set forth in this opinion, we uphold the determination of the Board.

Affirmed.

KNECHT, J., concurs.

JUSTICE GREEN,

concurring specially:

I concur in the decision to affirm the ruling of the Board and I agree with the adoption of the balancing test.

In applying the balancing test to determine whether class size is an issue for collective bargaining, the Board recognized that class size has a substantial effect on the quality of service rendered to pupils but that a decision on the question has “a more direct and significant effect on teachers’ working conditions.” (Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, case No. 86— CA — 0042—S, at IX — 323 (Illinois Educational Labor Relations Board, May 17, 1988).) Thus, the Board determined that reductions in class size confer more benefits upon the teachers than upon the pupils. I am willing to give substantial deference to the expertise of the Board in making a determination of that nature.

I write separately (1) to emphasize the limits of this decision; (2) to discuss further the giving of “substantial deference” to Board decisions concerning matters upon which bargaining is required; and (3) to point out the severity of the burden which this decision places upon school districts.

The collective bargaining on class size requested here did not involve classes above the high school level. I do not interpret the order and opinion of the Board or the majority opinion to hold or indicate that educational employers engaged in providing programs in higher education are required to bargain over class size. Large classes obviously place a much greater burden on teachers at lower levels in maintaining discipline and giving individual attention to pupils than larger classes place upon college teachers. I would find any Board determination that determinations as to class size at the college level had a greater effect upon working conditions than upon the delivery of educational services to be clearly wrong and would not give such a determination deference. With the various ways available to conduct college classes, requiring bargaining as to class size would seem to place an unduly restrictive limitation upon college administration and deter innovation.

For the reasons explained, I am willing to give “substantial deference” to the Board’s determination that at the primary and secondary levels, the issue of class size is primarily a working condition. We cannot foresee all of the questions which may arise in regard to what issues require bargaining or as to the mix of factual and legal questions which may be involved. We should not state or imply that we will always give substantial deference to a Board determination on these questions, particularly in view of the fact that we may not always be able to do so properly.

The burden which the decision places upon school districts seems to me to be more than the majority recognizes. The record indicates the parties have already had substantial discussions in regard to the question. The duty now imposed to bargain in good faith on the question requires much more than discussion. As pointed out in the dissent of Board member Randi Hammer Abramsky to the Board’s opinion and order, the decision limits school districts in “effectuating any change in structural methodology (e.g., team teaching, lecture format) for the duration” of a contract. (Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, case No. 86 — CA—0042— S, at IX — 326 (Board member Abramsky, dissenting).) Board member Abramsky also explains that, unlike bargaining on salaries, bargaining on class size may involve the necessity of providing further building space. For these reasons, she would limit bargaining on class size to impact bargaining aimed at compensating teachers for the added burdens placed upon them when class sizes are increased. She also explains that the foregoing factors are the reasons why most States have apparently determined that public school districts are not required to bargain as to class size.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE LUND delivered the opinion of the court:

On petition for rehearing, the Decatur Education Association, IEA-NEA, faults the following statement included in our opinion:

“The Board members all agree that a finding of direct effect, under the second sentence of section 4, did not automatically result in mandatory bargaining. The Board adopted a balancing test whereby, after finding a direct effect exists, the interests of the employees are weighed against the School District’s interest in maintaining unencumbered control over the managerial policy. This same balancing test could be used in determining when the impact of a particular policy decision would be subject to bargaining.” 180 111. App. 3d at 772-73.

The decision of the Illinois Educational Labor Relations Board (IELRB) in this cause included the following statement:

“The IELRA itself, however, contains the answer to this problem [where a given subject is arguably both a term and condition of employment and a reserved managerial prerogative]. It provides that those policy matters ‘directly affecting wages, hours and terms and conditions of employment’ must be bargained. In Berkeley, we said that ‘policy matters directly affecting wages, hours and terms and conditions of employment’ are those policies that have ‘wages, hours and terms and conditions of employment as their primary subject ***’ [Berkeley School District No. 87, 2 Pub. Employee Rep. (Ill.) par. 1066, No. 84-CA-0057-C (Illinois Educational Labor Relations Board, May 30, 1986).] When a given subject is both a term and condition of employment and a managerial prerogative, the question becomes how to determine if a policy has ‘wages, hours and terms and conditions of employment as [its] primary subject’ under Berkeley. We believe that such policies should be identified by using a balancing test.” Decatur School District No. 61, 4 Pub. Employee Rep. (Ill.) par. 1076, No. 86 — CA—0042—S, at IX — 322 (Illinois Educational Labor Relations Board; May 17,1988).

In the opinion and order of the IELRB in Central City School District No. 133, 5 Pub. Employee Rep. (Ill.) par. _, No. 87— CA — 0018—S, at_n.5 (Illinois Educational Labor Relations Board, Mar. 2, 1989) (Opinion and Order), the following footnote was included:

“In Decatur School District No. 61 v. IELRB, supra, the Appellate Court stated in passing that the IELRB balances the competing interests ‘after finding a direct effect exists’ (i.e., that a policy decision directly affects wages, hours and terms and conditions of employment). Rather, we balance the competing interests only after determining that a given subject is both ‘wages, hours, and terms and conditions of employment’ and a matter of educational policy. We then apply our balancing test to determine if the policy matter ‘directly affects(s) wages, hours and terms and conditions of employment’ within the meaning of the second sentence of Section 4 of the Act. We also note that the Court stated in dicta that ‘[t]his same balancing test could be used in determining when the impact of a particular policy decision would be subject to bargaining’ (Slip Op. at 3). Rather, Section 4 of the Act expressly requires that impact be bargained, upon request, regardless of whether the decision itself is subject to mandatory collective bargaining.”

We recognize a problem of semantics may be involved. However, our interpretation of legislative intention is final unless changed by our supreme court. Unless so changed, our opinions are to be followed by the IELRB.

The conflicts arising between section 10(a) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1710(a)), which is entitled “Duty to bargain” and section 4 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 1704), which is entitled “Employer rights,” are apparent. Some employment policies, which in the common use of the English language would be said to directly affect conditions of employment, are so intertwined with matters of inherent managerial policy as to be beyond the right of bargaining. The IELRB would judge conflicts by determining whether the policy has wages, hours, and terms and conditions of employment as its primary subject. The IELRB professes to make this determination by the use of a balancing test.

Section 10(a) and section 4 illustrate the conflicting interests considered at the time of legislative enactment. In attempting to placate the conflicting interests, something less than perfection resulted. Our responsibility is to add some responsible and, hopefully, some understandable interpretation to the seemingly conflicting statutory provisions.

We withdraw our statement as to the use of the balancing test in regard to determining whether impact is subject to bargaining. However, nothing contained in this opinion should be taken to indicate that all cases, where impact is present, are subject to bargaining.

KNECHT and GREEN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME WHITE, Defendant-Appellant.
    Fourth District
    No. 4—88—0553
    Opinion filed March 31, 1989.
    Rehearing denied April 21, 1989.

      Dennis Doherty, of Chicago, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On August 19, 1982, defendant Jerome White, Bernice Caldwell, and Jerome’s brothers Derrick White and Michael Johnson were charged by a multicount indictment in the circuit court of' Champaign County with the offenses of murder, felony murder, armed robbery, conspiracy to commit murder, and conspiracy to commit armed robbery in violation of sections 9 — 1(b)(5), 9 — 1(a)(3), 18 — 2, and 8 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9— 1(b)(5), 9 — 1(a)(3), 18 — 2, 8 — 2). Following a jury trial, that court entered judgment on February 15, 1983, on a general verdict finding defendant guilty of murder and conspiracy to commit murder but not guilty of armed robbery. The court subsequently sentenced defendant to a term of natural life imprisonment.

The conviction and sentence were affirmed on direct appeal. (People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.) On October 11, 1985, the circuit court dismissed a pro se petition for post-conviction relief filed by defendant as “frivolous and patently without merit.” This court reversed that dismissal and remanded with directions to appoint counsel to represent defendant (People v. White (1987), 152 Ill. App. 3d 404, 504 N.E.2d 520) and to proceed to the second stage of inquiry in the post-conviction process.

On October 28, 1987, defendant’s attorney filed a supplemental post-conviction petition adopting and incorporating the pro se petition and alleging in part: (1) defendant was denied due process because the multicount indictment was based in part on the State’s knowing use of perjured testimony which it never sought to correct; and (2) defendant’s trial attorneys were ineffective for (a) failing to consult with defendant regarding trial preparation; (b) failing to call an exculpatory witness; and (c) failing to explain to defendant his right to testify. Other issues raised in the petition are not raised on this appeal. On July 7, 1988, following a hearing, the circuit court allowed the State’s motion to dismiss the amended petition, noting it failed to allege facts sufficient to warrant the relief requested.

On appeal, defendant maintains the amended post-conviction petition was sufficient to require the court to hold an evidentiary hearing to determine whether: (1) the State knowingly used perjured testimony before the grand jury thus depriving him of due process; and (2) defendant was deprived of his sixth amendment right to effective assistance of counsel at trial. We agree with the circuit court that the amended petition and supporting documents failed to set forth facts showing a deprivation of defendant’s rights in either respect. Thus, we affirm.

We consider first the allegations of the State’s knowing use of perjured testimony before the grand jury in obtaining the indictment of defendant. In Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173, the United States Supreme Court held that an accused was denied due process in a State criminal proceeding partly because the State knowingly used perjured testimony at trial. However, neither that Court nor the Illinois Supreme Court has ever held that due process was violated by the use of perjured testimony before a grand jury. Moreover, the United States Supreme Court has expressed a great reluctance to pass upon the propriety of evidence used to indict. In Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406, the Court rejected a defendant’s claim that his indictment should have been dismissed because the grand jury did not have sufficient competent evidence to indict. The Court said, “[i]f indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed.” (Costello, 350 U.S. at 363, 100 L. Ed. at 402, 76 S. Ct. at 408.) Similarly, unwillingness to examine the evidence leading to indictments has been expressed by that Court in Lawn v. United States (1958), 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311, and United States v. Calandra (1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613.

A fairly recent decision of the United States Supreme Court indicates a particular reluctance of that court to examine the evidentiary procedures before a grand jury after an accused has been convicted. In United States v. Mechanik (1986), 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938, late in trial in a Federal district court, the defense learned that a rule prohibiting witnesses to be present before the grand jury while others were testifying had been violated in the proceedings where the accused was indicted. The defense raised the issue in its post-trial motion after conviction. The United States Supreme Court ultimately held that any error was cured by the conviction.

No claim of constitutional deprivation was asserted in Mechanik and the rule violation was comparatively minor, but the strong language of the opinion is significant. The Court pointed out that the rule violation could have enabled pressure to be put on a witness which would cause the witness to give testimony influencing the grand jury to indict when it would not otherwise have done so “[b]ut the petit jury’s subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt.” (Mechanik, 475 U.S. at 70, 89 L. Ed. 2d at 56, 106 S. Ct. at 942.) The opinion then explained the social costs incurred any time a new trial is ordered and concluded such clearly was not justified there.

On the grounds of knowing presentation of perjured testimony before the indicting grand jury, various Federal Circuit Courts of Appeal have set aside convictions. (See United, States v. Ciambrone (2d Cir. 1979), 601 F.2d 616; United States v. Basurto (9th Cir. 1974), 497 F.2d 781; 2 W. LaFave & J. Israel, Criminal Procedure §15.4, at 307-08 (1984).) In United States v. Samango (9th Cir. 1979), 607 F.2d 877, a Federal district court was held to have properly discharged its supervisory powers in its pretrial dismissal of an indictment obtained through the use of known perjury. Other circuit courts of appeal have refused to set aside convictions obtained even though perjury occurred before the grand jury when the evidence before the grand jury (1) was sufficient “to support the indictment” (United States v. Claiborne (9th Cir. 1985), 765 F.2d 784, 791), such “that the grand jury may have indicted without giving any weight to the perjured testimony” (United States v. Udziela (7th Cir. 1982), 671 F.2d 995, 1001); or (2) contained “some competent evidence to sustain the charge” (emphasis in original) (Coppedge v. United States (D.C. Cir. 1962), 311 F.2d 128, 132). The Udziela opinion contains an excellent discussion of the question of when the use of perjured testimony before the grand jury is cured by other evidence presented.

No substantial ruling by a court of review of this State regarding the effect upon an indictment of perjured testimony has been called to our attention. In People v. Rivera (1979), 72 Ill. App. 3d 1027, 1037-38, 390 N.E.2d 1259, 1267, the court stated that when the record showed (1) a dispute as to whether a police officer lied before the grand jury; and (2) two other witnesses, one of whom identified the defendant as the perpetrator of the crime, also testified before the grand jury, the trial court’s determination to deny a motion to dismiss the indictment should not be set aside.

In People v. Rodgers (1982), 92 Ill. 2d 283, 442 N.E.2d 240, the circuit court, in consolidated cases, had dismissed indictments for lack of supporting evidence.- On ultimate appeal, the supreme court concluded the circuit court has “inherent supervisory authority to review grand jury transcripts and determine whether any evidence was presented which tends to connect the accused to the offense charged.” (Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 243.) The court made clear that the trial court need not determine if “any evidence was presented as to each element of the offense” but only to ascertain that there be “some evidence relative to the charge.” Rodgers, 92 Ill. 2d at 290, 442 N.E.2d at 244.

In determining whether the amended post-conviction petition and supporting documents here set forth a sufficient showing of a violation of defendant’s due process rights by use of perjured testimony, we consider all of the foregoing authorities. We recognize the caution expressed by the United States Supreme Court in permitting the upsetting of a conviction on the basis that a grand jury might have erred in receiving evidence as to probable cause. However, we also recognize the importance, as expressed by the circuit courts of appeal, of upholding the integrity of the judicial process by sanctioning the prosecution for the knowing use of perjury before the grand jury. We need not decide whether the policy of not examining the process of determining probable cause to charge, once guilt has been proved beyond a reasonable doubt, should always prevail. As we shall explain, other evidence before the grand jury here was clearly more than sufficient to meet the “some evidence relative to the charge” standard of Rodgers which we deem to be sufficient to cure any alleged knowing use of perjury in obtaining the indictment.

In order to obtain a full understanding of the occurrence giving rise to the charges against defendant, a reading of the opinion of this court in the case on direct appeal from the conviction would be helpful. (People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802.) In explaining the sufficiency of the evidence before the grand jury to cure any alleged perjury before that body, we need only summarize the transcript of the proceedings before the grand jury, a copy of which was attached to the amended post-conviction petition.

The only witness testifying before the grand jury was Detective Michael Robb. He testified concerning the events surrounding two shootings that occurred on August 6, 1982, at a rest stop on Interstate 57. He related the description of the shooters and their car and the facts of the shootings as told to him by a number of people who witnessed the shootings. He further related that two men who apparently matched the description of the shooters, driving a silver, midsized car, as described by the witnesses, were subsequently stopped by police and identified as Allen Walker and Doyle Johnson, both of Chicago. Robb then described the physical evidence found by the police near the rest area where the shootings occurred and along Interstate 57. That evidence included a sawed-off .410 shotgun and a .357 magnum revolver.

Robb then testified that his investigation of the deaths revealed four additional names of persons involved in the shootings: Jerome White, Derrick White, Bernice Caldwell, and Michael (White) Johnson. Robb said those names were given to him by the shooters. He said that Doyle Johnson (Doyle) indicated he and Walker had been picked up in Chicago and driven to Champaign by Caldwell and Michael Johnson. He said Doyle related how they were taken into a bedroom at Caldwell’s house in Champaign and were given two firearms, a .357 magnum revolver and a sawed-off shotgun, and they were given a silver mid-sized Chevrolet car. He said Doyle indicated it was explained to them that they were to go to the rest area to do “a job,” and that Doyle thought the job was “simply” an armed robbery at that time. Robb testified that Walker agreed they had been picked up in Chicago and driven to Champaign, but stated that defendant rather than Michael Johnson accompanied Caldwell during this time. According to Robb, Walker did not mention anything about their being given firearms and being told what they were to do but merely stated he and Doyle stayed in Champaign for a few days and returned to Chicago.

The grand jury could have believed a reasonable likelihood existed that Doyle was truthful and accurate in all else he allegedly told Robb, but he was untruthful or inarticulate in stating that Michael Johnson accompanied Caldwell. The grand jury could also have deemed it likely that Walker correctly identified defendant as the person accompanying Caldwell but was unwilling to further incriminate himself in his statement. Thus, there was some evidence defendant aided in bringing Doyle and Walker to Champaign, in supplying them with weapons and directing them to perform “a job.” One of the charges against White was felony murder based on a robbery. The trial jury returned a general verdict of guilty of murder. The hearsay evidence of Doyle and Walker’s statement contained evidence of every element of the guilt of defendant by accountability for a felony murder based on robbery.

Robb also testified that a witness, who was not named for safety purposes and who worked as an errand boy for Derrick White, told Robb he witnessed a meeting between Derrick, Caldwell, and defendant in Derrick’s hospital room on the day after the shootings. He said the witness brought two prostitutes to the hospital room, and Derrick told them that “the shooters knew exactly what they were doing” and that the women were in no danger. He said Derrick also told the women not to discuss the incident. Robb said that the witness also related that he had seen Michael Johnson with a .357 magnum revolver several weeks before the shootings and had given him an empty cartridge from the gun. Robb testified that laboratory analysis indicated the cartridge was from one of the murder weapons.

The latter testimony tended to generally corroborate defendant’s guilt of murder and conspiracy to commit murder. Moreover, a statement by defendant that the shooters were aware of what they were doing could be taken by the grand jury as an indication that when, according to Doyle, they were told to do “a job,” they were being told to kill the victim. Thus, the hearsay evidence presented to the grand jury contained at least some evidence of defendant’s guilt, by accountability of murder other than felony murder and of conspiracy to commit murder.

The contention that evidence known to be perjurious was presented arises from the testimony of Robb that another unnamed person was present at the Caldwell house on the night before the shootings and witnessed Walker and Doyle being given two firearms, instructed to drive to the rest area, supplied with a description of the deceased and his vehicle, and told to go to the rest area and to kill him or anyone else with him. Robb testified the witness was standing in the room when this conversation took place. The amended post-conviction petition alleged that on the day of the indictment, law enforcement officers had learned that the foregoing was not true and Robb was aware of this.

The circuit court concluded that the allegations of peijury were sufficient to raise a factual question in that regard but, in any event, the record showed that the evidence of defendant’s guilt was sufficient to cure the peijury. We agree that any perjury was cured and need not consider the sufficiency of the allegation of perjury.

We next address defendant’s contention that he should have been afforded a hearing on his allegations of ineffective assistance of counsel.

Defendant argues his trial attorneys failed to adequately investigate and prepare his defense, as shown by their failure (1) to secure the favorable testimony of defendant’s coindictee, Bernice Caldwell; (2) to explicitly advise defendant of his right to testify in his own behalf; and (3) to discuss defense strategies with him. Defendant further alleged that one of his trial attorneys was ineffective because his breath “smelled strongly of alcohol” during the trial.

To establish the ineffectiveness of trial counsel, the defendant must show (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that counsel’s shortcomings were so serious as to deprive the defendant of a fair trial. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.) A defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) The inquiry into counsel’s performance must be whether counsel’s assistance was reasonable considering all the circumstances. (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) The Illinois Supreme Court adopted the standards of Strickland in People v. Albanese (1984), 104 Ill. 2d 504, 526, 473 N.E.2d 1246, 1255, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, and, here, the trial court judged defendant’s allegations based on that standard.

The first allegation of incompetence is that his attorneys failed to prepare for trial, as shown by their failure to confer with defendant before trial and their consequent ignorance of the availability of Bernice Caldwell’s favorable testimony. That allegation was supported by a copy of defendant’s visitor record from the Champaign County Correctional Center showing visits from defendant’s trial attorneys on September 24, 1982, for 15 minutes and on February 6, 1983, for 30 minutes, and an affidavit from Bernice Caldwell outlining the testimony she would have given if she had been called as a witness for defendant.

In that affidavit, she stated that (1) on August 5, 1982, she and defendant drove to Chicago, and while there, defendant talked with Walker and Doyle; (2) defendant offered them a ride to Peoria; (3) en route to Champaign, Doyle asked defendant if he still operated his prostitution business from a rest stop on 1-57; (4) defendant told Doyle he was in the process of relocating, because Bernice had been beaten while working there; (5) when they arrived in Champaign, Bernice suggested the four of them continue their drive to Peoria the following morning; (6) Doyle and Walker ate dinner with Bernice and defendant, and afterwards, she showed them where they were to sleep; and (7) upon awakening the following morning, she and defendant discovered Walker and Doyle were gone and that they had taken some guns from the house and a rental car.

In considering the question of counsel’s failure to call Caldwell as a witness, the trial court adopted the opinion it had expressed in dismissing defendant’s original petition, that Caldwell chose not to testify at her own trial, and it was unlikely she would have testified at defendant’s trial. However, apparently the court was mistaken and Caldwell did testify at her own trial.

Defendant has included, in this post-conviction proceeding, the record of Caldwell’s testimony at her own trial on these charges to illustrate the testimony she would have provided at his trial. The State has filed a motion to strike Caldwell’s record on the basis that a court should not take judicial notice of the contents of records except in the proceeding pending before it. (People v. Washington (1966), 81 Ill. App. 2d 90, 225 N.E.2d 472, aff’d (1968), 41 Ill. 2d 16, 241 N.E.2d 425.) In People v. Honn (1977), 47 Ill. App. 3d 378, 362 N.E.2d 90, this court said, where a foundation is laid and they were otherwise properly offered into evidence, such records would be admissible. No such foundation was laid here, however, and, accordingly, we grant the State’s motion to strike references to the contents of the record of Bernice Caldwell’s trial.

Moreover, while the failure to interview witnesses may indicate actual incompetence, particularly where the testimony is known to trial counsel and may be exonerating (People v. Greer (1980), 79 Ill. 2d 103, 123, 402 N.E.2d 203, 212), the testimony here, as shown by Caldwell’s affidavit, would not have exonerated defendant. Caldwell’s affidavit supported Doyle’s statements that she and defendant had driven Doyle and Walker to Champaign, that there was friction between defendant and decedent regarding prostitution at the rest stop and that Doyle and Walker had gotten the guns and rental car used in the commission of the shootings from defendant and Caldwell. In addition, the discovery materials which would have been available to defendant’s attorneys showed Bernice Caldwell had information relating to defendant’s activities on the night before the shootings, even if defendant did not advise them of that fact. Any error in the trial court’s conclusion that Caldwell would have been unable or unwilling to provide testimony which would exonerate defendant is harmless.

Defendant’s next criticism of trial counsel is his alleged failure to advise defendant of his right to testify. The trial court found, in its original memorandum opinion, that in the absence of an accompanying assertion that the petitioner was actually unaware of his right to testify, the allegation was insufficient. The trial court noted the supplemental petition also omitted such an allegation, and further, omitted any allegation that his counsel would not allow defendant to testify. The trial court found that, applying the Strickland test, even if defendant met the first prong of the test, i.e., that counsel’s failure to inform him of the right to testify fell below an objective standard of reasonableness, he failed to show that the result of the trial would probably have been different had counsel fully advised him of his right. We conclude the trial court properly found no error in counsel’s failure to inform defendant of his right to testify.

Defendant’s next claim of ineffectiveness is based on counsel’s failure to discuss trial strategies with defendant. Although an accused represented by counsel retains a right to make decisions involving “fundamental rights,” a review of counsel’s competency does not extend to those areas involving trial tactics or strategy, which are purely matters of professional judgment. People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410, 412; People v. Reese (1984), 121 Ill. App. 3d 977, 460 N.E.2d 446.

Finally, defendant claims one of his trial attorneys was incompetent, because his breath smelled strongly of alcohol during the trial. Again, applying the Strickland test, even if defendant had shown that his counsel’s use of alcohol during trial fell below an objective standard of reasonableness, he did not show how this shortcoming created a reasonable probability that the result of the trial would have been different had it not been for counsel’s behavior.

Accordingly, we hold that the circuit court correctly dismissed the amended post-conviction petition without an evidentiary hearing. We affirm.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES R. DUCKWORTH, Defendant-Appellant.
    Fourth District
    No. 4-88-0704
    Opinion filed March 23, 1989.
    Rehearing denied April 24, 1989.

      Glenn H. Collier, of Jackson, Mitchell & Collier, of Peoria, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Charles R. Duckworth was tried jointly with codefendant Tammy Duckworth on charges that they knowingly delivered a controlled substance in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Act). (Ill. Rev. Stat. 1987, ch. SGVe, par. 1401(a)(2).) On April 29, 1988, the circuit court of Vermilion County entered judgment on jury verdicts finding both guilty of that offense. Defendant now appeals, contending (1) the court erred in admitting certain hearsay statements allegedly made by the codefendant and (2) the State failed to prove him guilty of the offense beyond a reasonable doubt. We reverse.

The testimony presented during the trial in this cause shows the following sequence of events, which was not contradicted. In July 1987, special agent Richard Scott of the Quad City Metropolitan Enforcement Group learned about a potential drug contact by the name of Tammy Duckworth through a confidential source. On July 8, 1987, Scott made two telephone calls to a woman in Danville. He later learned the voice of the woman he talked with on that date belonged to Tammy Duckworth.

Scott testified that, during the conversations with Tammy Duck-worth, she agreed to sell him three ounces of cocaine every three to four weeks. He said she further informed him she would get the cocaine from an uncle who lived next door to her and the uncle told her each ounce of cocaine would cost $1,400. Scott and Tammy Duck-worth arranged to meet on July 10, 1987, at the Village Mall in Dan-ville to consummate the deal they had made.

On July 10, 1987, Scott arrived in Danville and proceeded to the arranged point with a Vermilion County surveillance team. He telephoned Tammy Duckworth, and she told him she would be driving a white Buick. He subsequently saw a vehicle fitting that description pull into the mall parking lot. He waved the driver over and asked her if her name was Tammy, to which she responded it was. Scott said that, when she entered his car, she told him “her uncle was going to be the source *** and that her uncle had to show his man the money” before Scott could get the cocaine.

Scott refused to turn the money over to her without receiving the drugs but said he “suggested to her that she have her uncle drive to the Village Mall [and] park a couple rows away from [his] car.” Scott said she could then go between his car and her uncle’s car with the cocaine, and he would give her the money. Tammy Duckworth left briefly and returned a second time. She informed Scott she could not get three ounces but could only obtain an ounce and a half of cocaine. Scott agreed to purchase the lesser amount for $2,700, and Tammy Duckworth again left the mall parking lot. Scott said that, when Tammy Duckworth later returned to his vehicle, she gave him two bags of a powdery substance thereafter proved to be cocaine. Scott proceeded to count out the money and signaled the surveillance units that the deal had been made. Tammy Duckworth was then placed under arrest.

Robert Putnam, one of the surveillance officers positioned at the mall parking lot, witnessed the first two contacts between Tammy Duckworth and Agent Scott. He said he subsequently saw a blue van enter the parking lot and park nearby. Tammy Duckworth exited the passenger side of the van, walked past the surveillance vehicle and entered Scott’s car. Putnam was then notified delivery had been made. Putnam and another surveillance officer approached the van and ordered the man sitting in the driver’s side to exit the vehicle. The man, defendant Charles Duckworth, was then placed under arrest. Another female passenger of the van was also arrested. Another surveillance officer, Jack Smith, corroborated the testimony given by Putnam.

Ordinarily, we would first address a reasonable doubt question raised by an accused, for resolution of such an issue could well decide the outcome of a case. However, because we conclude error occurred here in admitting certain hearsay evidence, we need not address the sufficiency of proof. Clearly, absent such hearsay evidence, the evidence is insufficient to convict defendant of the offense of delivery of a controlled substance beyond a reasonable doubt.

During trial, when the prosecution attempted to elicit the details of the conversations had between Scott and Tammy Duckworth, defendant’s attorney objected to such testimony on hearsay grounds. He stated he thought “the conversation that the agent [was] probably going to get into — he’s going to make reference to Tammy Duckworth saying that her uncle was going to be her source. I think that that is clearly hearsay.” The court overruled the objection and allowed Scott to testify concerning the content of the conversations.

Defendant argues on appeal that the introduction of certain testimony violated the hearsay rule and should not have come in. He specifically points to testimony by Scott that Tammy Duckworth told him her “uncle” would be her “source” and she would speak with her “uncle” about Scott’s suggestion that he come to the mall lot with her to witness the transaction. He claims such evidence does not fall within the coconspirator exception to the hearsay rule because the State failed to prove the existence of a conspiracy through evidence independent of the hearsay statements. We agree.

Declarations of a coconspirator made in furtherance of and during the pendency of a conspiracy are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy between the declarant and other defendants. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.) While evidence of a conspiracy can be totally circumstantial, such evidence must be sufficient, substantial, and independent of the declarations made in order to admit statements by a declarant under the coconspirator exception to the hearsay rule. People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.

Here, the evidence exclusive of those hearsay statements allegedly made by Tammy Duckworth was insufficient to establish a conspiracy between Tammy and the defendant. The State argues the evidence that Scott told Tammy to have her uncle return with her and park a few rows away and that a van with a male driver subsequently pulled into the parking lot and parked a short distance away from Scott’s vehicle constituted sufficient, independent evidence of the existence of a conspiracy between the two codefendants.

While we recognize the acts and declarations of conspirators themselves may form an inferential basis for the existence of a conspiracy (People v. White (1984), 122 Ill. App. 3d 24, 460 N.E.2d 802), the mere appearance of defendant at the scene of the drug transaction does not establish any illicit association between him and Tammy Duckworth. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) Tammy Duckworth’s act in returning with defendant creates the inference that he is her uncle and source but is a verbal act which also constitutes impermissible hearsay. None of the nonhearsay evidence establishes an agreement between the two defendants, which is a necessary element of a simple conspiracy. Ill. Rev. Stat. 1987, ch. 38, par. 8 — 2.

Since the State failed to prove the existence of a conspiracy between defendant and Tammy Duckworth, we conclude the trial court erred in allowing Scott to testify concerning those references to an “uncle” or “source” allegedly made by Tammy Duckworth during a conversation between her and Scott. We noted previously that, without that evidence, the conviction against defendant cannot stand. Mere presence at the scene of a crime and knowledge that a crime is being committed are insufficient to establish guilt. Evans, 87 Ill. 2d 77, 429 N.E.2d 520.

For the reasons stated, the judgment of the circuit court of Vermilion County is reversed.

Reversed.

LUND and SPITZ, JJ., concur.