text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH BOND, Defendant-Appellant.
    First District (6th Division)
    No. 1—86—3110
    Opinion filed June 26,1992.

      Rita A. Fry, Public Defender, and Mary Ellen Dienes, both of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Barbara Jones, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a joint jury trial, defendant, Keith Bond, was found guilty of murder and attempted armed robbery, and sentenced to serve concurrent terms of 30 and 25 years’ imprisonment, respectively. As set forth in the companion case, People v. Sevier (1992), 230 Ill. App. 3d 1071, Bond was charged with the shooting death of William Young on December 24, 1984. This court has reversed and remanded for a new trial the convictions of codefendants Edward Sevier and Sylterrell Brown for their participation in this offense.

On appeal, defendant alleges reversible error on the following issues: (1) defendant’s motion for severance should have been granted in light of the antagonistic defenses advanced by the codefendants; (2) defendant was not proved guilty beyond a reasonable doubt; (3) the trial court failed to grant defendant’s motion to quash arrest and suppress evidence; (4) defendant’s convictions for murder and attempted armed robbery are legally inconsistent with his acquittal of armed violence; (5) the State exercised its peremptory challenges in a racially discriminatory manner; (6) defendant was prejudiced at trial by the introduction of hearsay testimony; (7) the trial court refused to tender defendant’s proffered jury instruction; and (8) the judge’s imposition of sentence was excessive.

In view of our recitation of facts in the companion case, we shall set forth only the facts necessary to our analysis of the issues in this case.

We consider first defendant’s contention that the trial court’s failure to grant his motion for severance in light of the antagonistic defenses advanced by the three codefendants constitutes reversible error. Defendant argues that Brown’s statement implicated him as an active participant, and that the trial court failed to correct the potential for error present in this situation by redacting the statements of the codefendants. Bond did not testify.

A defendant who believes that he will suffer prejudice as a result of the joinder of his case with that of a codefendant may request severance by pretrial motion. (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 8.) A defendant does not have an automatic right in Illinois to be tried separately from his codefendants simply because they were all charged in the same indictment for crimes arising from the same circumstances. (People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349, citing People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148.) “ ‘The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice.’ ” (Emphasis added.) (People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, quoting People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461.) Actual hostility between the two defenses is required. People v. Daugherty, 102 Ill. 2d 533, 468 N.E.2d 969; People v. Lee, 87 Ill. 2d 182, 429 N.E.2d 461.

There are two independent sources of potential prejudice which are likely to require that jointly indicted defendants should be separately tried. (People v. Bean, 109 Ill. 2d 80, 485 N.E.2d 349.) The first problem concerns interference with the constitutionally guaranteed right to confrontation (see Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620) which arose against Brown and Sevier when Bond did not testify at trial and his statements were admitted into evidence.

The second problem addresses the issue of antagonistic defenses, which arises when codefendants’ defenses are so antagonistic to each other that one of the codefendants cannot receive a fair trial jointly with the others, thereby requiring severance. (People v. Bean, 109 Ill. 2d 80, 485 N.E.2d 349; People v. Daugherty, 102 Ill. 2d 553, 468 N.E.2d 969; People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208.) The seminal case in this jurisdiction which focused upon this issue occurred in People v. Braune (1936), 363 Ill. 551, 555, 2 N.E.2d 839, where each defendant “was protesting his innocence and condemning the other” by attempting to discredit the witnesses of his codefendant. Our supreme court concluded:

“The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other.” People v. Braune, 363 Ill. at 557, 2 N.E.2d at 842.

In ruling on a motion for severance, the trial judge must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings. (People v. Daugherty, 102 Ill. 2d 533, 468 N.E.2d 929; People v. McMullen (1980), 88 Ill. App. 3d 611, 410 N.E.2d 1174.) The trial court’s decision will not be reversed absent an abuse of discretion. People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.

In the present case, the trial judge abused his discretion in refusing to grant defendant’s request for severance based upon the antagonistic defenses among the codefendants. At the motion for severance, Bond cautioned the trial court that his defense may be to cast blame for this offense upon Brown and that he might help the State. As such, Brown is put into the position of having to defend himself against another defendant, who will try to exonerate himself by blaming the person who did the shooting. We also note that discrepancies existed among the statements as to which codefendants carried guns and the number of shots fired.

The potential for prejudice was exacerbated at trial when Sevier and Brown testified that Adolph Powell fired the shot that killed the deceased. Brown also testified that neither he nor Sevier planned to rob, and that they did not carry guns. The trial court has a continuing duty at all stages of trial to grant severance if prejudice appears. (People v. Poree (1983), 119 Ill. App. 3d 590, 456 N.E.2d 950; People v. Lee, 82 Ill. 2d 182, 429 N.E.2d 461.) In this case, defendant continually sought a mistrial on the basis that codefendants were developing an antagonistic defense. We find that the judge erred in permitting the trial to continue in the presence of such apparent conflict among the codefendants. We therefore reverse defendant’s conviction on this issue and remand for a new trial separate from Brown and Sevier.

Although we have remanded this cause for a new trial based upon the trial court’s failure to grant the motion for severance, defendant also raises several other issues. We shall consider only those issues which we believe we must.

Defendant contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant argues that the State failed to prove that he was accountable for the murder of the deceased pursuant to section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2), because he withdrew from the criminal enterprise before the victim was shot. Defendant argues that his own statements, standing alone, are insufficient to establish his accountability for the shooting of the deceased by Brown. Ronald Boston, the newsstand attendant who sold the deceased a newspaper moments before his death, picked defendant out of a lineup; however, he testified that he was sure that defendant was not one of the two men to whom he had sold a newspaper on the morning of the deceased’s murder.

In order for a conviction founded on a confession to be upheld, the confession must be corroborated by some evidence, exclusive of the confession, tending to show that a crime did occur and that the defendant committed it. (People v. Neal (1985), 111 Ill. 2d 180, 489 N.E.2d 845; see also People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) Upon review of the record, we find that sufficient corroborating evidence exists. The deceased’s widow, L.A. Young, testified that the deceased always carried his wallet in his back pocket. The deceased purchased a paper from the newsstand around 6 a.m. and began walking in a westward direction on 71st St. Moments after the deceased walked away, two men approached the newsstand and bought a newspaper. Seconds later, shots rang out and the deceased was found lying in the street. A small, single-shot pistol was found underneath the deceased’s body.

We find that this evidence is consistent with the detailed confession of defendant. Accordingly, we find that the record does establish the corpus delicti independent of the confession, in corroboration of defendant’s statement that the three codefendants attempted an armed robbery which resulted in the eventual death of the deceased.

Defendant also contends that the court erred in denying his motion to quash arrest and suppress evidence.

Probable cause to arrest exists where the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766; People v. Williams (1985), 137 Ill. App. 3d 736, 484 N.E.2d 1191.) Evidence sufficient to convict is not required to support a finding of probable cause. (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605.) On review, the trial court’s finding of probable cause will not be disturbed unless manifestly erroneous. People v. Borges (1980), 88 Ill. App. 3d 912, 410 N.E.2d 1076.

At trial, testimony was adduced that Adolph Powell, another suspect in the murder investigation, told police that Sevier, Brown and defendant were involved in the murder of the deceased. Powell led the police to Sevier’s apartment. After Sevier was arrested, he implicated Brown and defendant in connection with the murder. Sevier took the police to defendant’s apartment, where he was arrested. In view of the fact that both Powell and Sevier named defendant as a participant in the offense, we find that sufficient probable cause existed to support defendant’s arrest.

We turn now to defendant’s assertion that his arrest was unlawful because the police arrested him inside his home without first obtaining an arrest warrant, and that no exigent circumstances existed to excuse their failure to procure a warrant. In Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, our Supreme Court determined that the police may not, absent exigent circumstances, enter a “suspect’s home” to arrest the suspect without a warrant for the suspect’s arrest and reason to believe the suspect is within. As an exception to this well-established rule, voluntary consent to enter will justify a warrantless at-home arrest even in the absence of exigent circumstances. People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.

Defendant and members of his family, including his mother, testified that at approximately 8 a.m. on February 19, 1985, while defendant was in bed, two police officers pushed into the apartment without permission and made a warrantless arrest.

Office Brian Regan testified that, along with Glyn and Garrity, he went to defendant’s apartment and knocked on the door. Defendant’s brother invited the officers to enter and speak with defendant’s mother. The officers told the mother that they wished to question defendant about a shooting. Defendant’s mother directed the officers to the back bedroom where defendant was asleep. The officers asked defendant to get dressed and accompany them to the police station. Regan denied forcing the apartment door open or that the officers entered with guns drawn. Glyn and Garrity corroborated Regan’s testimony.

The trial court must determine the credibility of the witnesses and the weight to be given their testimony when ruling on a motion to quash arrest and suppress evidence. (People v. Chambers (1990), 200 Ill. App. 3d 538, 558 N.E.2d 274.) The decision of a trial court on defendant’s motion to quash arrest and suppress evidence will not be disturbed by a reviewing court unless that finding is determined to be clearly erroneous. People v. Foskey (1990), 136 Ill. 2d 66, 554 N.E.2d 192.

In this case, it was the function of the trial court to assess the credibility of defendant’s account that the police forcibly entered his family’s apartment without consent. Similarly, the trial judge was also in the best position to assess the credibility of the family members who testified in defendant’s behalf. In opposition, the police officers testified that defendant’s brother did in fact open the door and admit them into the apartment. While defendant seeks to attach great significance to the trial judge’s statement that “the police did not have sufficient evidence to obtain a warrant,” we find ample evidence in the record to support the State’s position that entry into defendant’s home was consensual.

In view of our finding that defendant was not illegally arrested, defendant’s motion to suppress statements made subsequent to his arrest was properly denied.

We turn now to defendant’s claim that his convictions for murder and attempted armed robbery are legally inconsistent with his acquittal of armed violence. Similar to the argument advanced by co-defendant Sevier, defendant relies upon People v. Frias (1983), 99 Ill. 2d 193, 457 N.E.2d 1233, and maintains that because the jury returned a verdict of not guilty on the armed violence offense, he could not be held accountable for murder. As stated in our discussion of this issue in the companion case, the facts in this case are distinguishable from those in Frias. The finding of not guilty of armed violence based on murder is not a finding that the defendant did not commit murder. Instead, it may be construed as an expression of lenity, and does not render the verdicts legally inconsistent. People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and remanded for a new trial in accordance with our directions.

Reversed and remanded with directions.

LaPORTA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN JUSTICE TULLY,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WARDELL et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—88—1913, 1—88—1925 cons.
    Opinion filed June 10,1992.

      TULLY, J., dissenting.
    Rita A. Fry, Public Defender, of Chicago (Richard E. Cade, Assistant Public Defender, of counsel), for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Howard D. Weisman, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Following a joint jury trial, defendants, Billy Wardell and Donald Reynolds, were convicted of aggravated criminal sexual assault, armed robbery, attempted aggravated criminal sexual assault and attempted armed robbery. Wardell received triple consecutive terms of imprisonment totaling 69 years. Reynolds received consecutive and extended terms of imprisonment totaling 69 years. Both defendants now appeal.

On appeal, Wardell asserts that one victim’s identification of him was not sufficiently reliable so as to convict him beyond a reasonable doubt. Reynolds contends that the trial court erred by precluding certain DNA testing which he alone requested.

Both Wardell and Reynolds claim that the trial judge’s remark made at sentencing and regarding the cross-racial nature of the crime entitle them to a new sentencing hearing and that the sentences imposed were an abuse of discretion.

We affirm Warden’s conviction beyond a reasonable doubt and the trial court’s decision to refuse to order the DNA tests requested by Reynolds. We remand for a new sentencing hearing based on the trial judge’s explicitly racial comment at sentencing.

The events underlying defendants’ convictions occurred on the evening of May 3, 1986, and involved two female victims, J.C. and C.H. About 10:15 p.m., while walking near their college dormitory, the two victims were approached from behind by three male assailants. The three men shoved the victims to their knees, demanded their money, and told them that they had a gun. C.H. saw a gun but had no money. J.C. gave her money ($6) to one of the assailants later identified as defendant Donald Reynolds. The assailants then told the victims to get up and walk straight ahead.

A short distance later, the three men ran up behind the victims again, told them to get down on their hands and knees and crawl. The victims crawled in several directions. The assailants then told the victims to get up and forced them to walk several blocks until they reached an empty lot enclosed by a fence and described as a garbage dump. J.C. was then led away and separated from C.H.

J.C. testified that she was raped by Reynolds three times and by an unknown male once. During the struggle, Reynolds hit J.C. in her face with a metal object and choked her. J.C. scratched Reynolds on the face and neck.

C.H. testified that when she was separated from J.C., all three assailants told her to take off her clothes, she screamed and was hit from behind on the side of her head. Wardell and Reynolds then left her with the unknown third male who put his hand over her mouth. C.H. heard J.C. screaming, choking and gagging. When Wardell later reappeared, the unknown male left. Wardell told C.H. to take her clothes off and she screamed. Wardell ripped C.H.’s clothes, threw her to the ground, and started choking her. C.H. dug her nails into his penis and Wardell punched her in the right eye. When C.H. tried to get up, Wardell knocked her down by hitting her with something very hard on the left side of her face.

The victims then climbed over the fence, crossed an empty lot, and called for help on a university security phone.

Thereafter, university security and Chicago police officers arrived. The victims gave statements to the police and were taken to the hospital to be treated. C.H. gave the police a description of the assailants’ ages, height, weight and clothing.

On May 6, 1986, police officers picked up C.H. and J.C. to bring them to the police station to prepare a composite sketch of their assailants. While riding to the station, the squad car passed another detective who was talking to Reynolds. The detective had stopped Reynolds because he fit one assailant’s general description which had previously been given by the victims. Reynolds had scratches on his face, neck and chest. As the squad car passed by Reynolds, J.C. said “that’s him” and “that’s the guy,” referring to Reynolds. The police officer stopped the car and brought Reynolds over to the car. Both victims then identified Reynolds as one of their three assailants and he was arrested.

On May 8, 1986, C.H. and J.C. individually viewed a lineup but were unable to identify the other two assailants.

On June 6, 1986, both victims separately viewed photographs of six different men provided by the police. C.H. picked out a photo of Wardell and said “this could be one of the guys” but was not certain because the man in the photo had long hair and she only saw her attacker while he was wearing a hood from his sweatshirt.

On June 10, 1986, both victims separately viewed another lineup of five men. Each participant put on a gray sweatshirt with the hood pulled up and said the phrase “[A]re you trying to play dead?” which was spoken during the attack. J.C. could not make a positive identification. C.H. identified Wardell and said “that is the man, yes, that is the man.” At trial, C.H. also identified Wardell in court.

In January 1988, before trial, Reynolds moved to have a DNA fingerprinting test performed on semen or blood samples taken from J.C. and Reynolds. In his motion, Reynolds noted that DNA testing was not available until October 1987 and attached affidavits of two doctors who worked for Cellmark Diagnostics, the company which would administer the tests.

On February 17, 1988, following a hearing, the trial court refused to allow the DNA test, reasoning that the test did not meet “the necessary legal requirements of the law.” The trial judge stated “I do not believe that there is enough information available to either substantiate the validity of this test and the probative value of this test. *** [A]s it stands right now I believe it is still in its embryonic stage.”

The jury found Wardell and Reynolds guilty of the aggravated criminal sexual assault of J.C., the attempted aggravated criminal sexual assault of C.H., the armed robbery of J.C., and the attempted armed robbery of C.H.

Before pronouncing sentence, the trial judge noted the armed robbery of J.C. and the attempted armed robbery of C.H. The trial judge then stated: “You weren’t satisfied with that. You were going to have some more fun with some white girls.”

The trial judge then sentenced Wardell to three consecutive terms of imprisonment totaling 69 years and sentenced Reynolds to two consecutive prison terms, including an extended term for the aggravated criminal sexual assault of J.C., totaling 69 years.

Wardell raises the first issue on appeal and contends that the identification by C.H. was unreliable so as to preclude his conviction beyond a reasonable doubt. He argues that: (1) C.H.’s only opportunity to see her assailant was during a violent struggle; (2) her attention was directed toward the struggle, not the man’s features; (3) the accuracy and certainty of her description during the photographic display on June 6 is questionable since she only stated “this could be the one” and did not positively identify Wardell at that time; (4) the photographic display took place more than a month after the crimes; and (5) she never noticed Wardell’s missing front tooth. We disagree and find that C.H.’s identification was sufficiently reliable.

Where the witness viewed the accused under circumstances permitting a positive identification, a single witness’ identification of the accused is sufficient to sustain a conviction. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) The following five circumstances are considered in evaluating an identification: (1) the opportunity the victim had to view the accused at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the accused; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. Slim, 127 Ill. 2d at 307-08.

We find that all five elements enunciated in Slim have been satisfied in the present case to establish a reliable identification of War-dell as one of the assailants. First, C.H. clearly had ample opportunity to view Wardell at the time of the crimes because his face was not masked in any way and she saw him face to face, in very close proximity, and over a considerable length of time. Second, C.H.’s degree of attention during the commission of the crimes is exemplified by her ability to describe her attackers’ ages, height, weight and clothing to the police after they arrived on the scene, and her recognition of Wardell’s voice in the lineup. Third, the accuracy of C.H.’s description during the June 6 photographic display is strengthened, not weakened, by her provisional selection of Wardell’s photo since she had previously only seen him while he was wearing a sweatshirt hood. Fourth, defendant’s assertion that C.H. lacked certainty as to the identification of Wardell at the June 6 photographic display totally ignores C.H.’s selection of his photo from the array, her nonselection of any suspects during prior opportunities such as a lineup on May 8, and her positive identification of Wardell at the June 10 lineup and in court. Lastly, the passage of about one month between the time of the crimes and the date of the photo identification did not adversely affect the identification. People v. Rodgers (1972), 53 Ill. 2d 207, 214, 290 N.E.2d 251 (identification two years after the crime was upheld); People v. Smith (1991), 215 Ill. App. 3d 1029, 576 N.E.2d 186 (two-year lapse); People v. Chatman (1975), 32 Ill. App. 3d 506, 510, 336 N.E.2d 153 (one-month lapse).

In addition, we also find that the failure of C.H. to notice that War-dell had a missing front tooth did not render her identification insufficient to establish beyond a reasonable doubt that Wardell was one of the assailants. Minor discrepancies and omissions in a victim’s description of her attacker, as to such matters as whether the assailant had missing teeth, does not generate a reasonable doubt where a positive identification has been made. Slim, 127 Ill. 2d at 309-10; People v. Bias (1985), 131 Ill. App. 3d 98,104-05, 475 N.E.2d 253.

Wardell also argues that the State did not meet its burden of proof beyond a reasonable doubt because there was no physical evidence linking him to the crimes and three witnesses presented an alibi for him. We disagree.

The Illinois Supreme Court abolished the sex-offense standard of review which provided that a victim’s testimony be clear and convincing or substantially corroborated. (People v. Schott (1991), 145 Ill. 2d 188, 582 N.E.2d 690.) In place of this standard, the supreme court found that the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, should govern an appellant’s claim of evidentiary insufficiency in sex-offense cases. Schott, 145 Ill. 2d at 202.

Accordingly, criminal convictions are not to be overturned on review where, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203, citing Collins, 106 Ill. 2d at 261.

Whether alibi evidence creates a reasonable doubt of guilt is a question primarily for the trial court. (People v. Berland (1978), 74 Ill. 2d 286, 307, 385 N.E.2d 649.) The finder of fact determines the credibility of witnesses, weighs evidence and draws reasonable inferences therefrom, and resolves any conflicts in the evidence. Slim, 127 Ill. 2d at 307.

Even when contradicting alibi testimony is present, a single witness’ positive identification is still sufficient to support a conviction. Slim, 127 Ill. 2d at 307.

In light of the evidence presented and the applicable standard of review, we find that a rational trier of fact could have found Wardell guilty of the crimes beyond a reasonable doubt.

Next, Reynolds asserts that he was denied his constitutional right to present a defense because the trial court refused to allow DNA fingerprint tests to be performed on specimens recovered from J.C. and himself. Reynolds argues that the DNA fingerprint tests could have excluded him as a possible semen donor and that the trial judge declined to delay the trial to accommodate the testing because he was being criticized by the crime commission for delay in bringing cases to trial.

In response the State contends that the trial court did not abuse its discretion in denying the DNA testing because Reynolds failed to meet his burden of proof that at the time of his trial, the scientific community accepted the DNA testing as reliable.

Initially we note that the trial court’s decision, not its reasoning, is considered on review. (E.g., People v. Eyler (1989), 133 Ill. 2d 173, 213, 549 N.E.2d 268.) We believe that the trial court did not abuse its discretion in precluding the DNA tests.

The use of evidence obtained from a new scientific technique is governed by the standard established in Frye v. United States (D.C. Cir. 1923), 293 E 1013. The Illinois Supreme Court has recognized the Frye standard for evaluating the admissibility of new scientific techniques. E.g., People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.

The Frye standard prohibits the use of scientific evidence unless the technique has gained acceptance within the relevant scientific community. People v. Thomas (1990), 137 Ill. 2d 500, 517, 561 N.E.2d 57 (the process of “electrophoresis” to test dried blood satisfied the Frye standard); Eyler, 133 Ill. 2d at 207, 213 (allowed the use of a “supergluing process” to identify fingerprints and the use of “electrophoresis”).

The determination of whether or not the Frye standard has been met is placed within the discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Lipscomb (1991), 215 Ill. App. 3d 413, 430, 574 N.E.2d 1345.

Hlinois cases have recently held that the DNA identification or fingerprinting procedure is generally accepted within particular scientific fields and is admissible. People v. Miles (1991), 217 Ill. App. 3d 393, 405, 577 N.E.2d 477; Lipscomb, 215 Ill. App. 3d at 432.

However, DNA testing, as acknowledged by Reynolds, only became available in the United States in October 1987. Thus, in February 1988 when the trial court ruled on Reynolds’ motion, the DNA fingerprinting test had neither reached the degree of acceptability recognized now in 1992 nor had any Illinois court ruled on this issue.

In support of his motion, Reynolds submitted two affidavits from employees of Cellmark (Drs. Strom and Herrin) and one affidavit from another forensic science expert (Dr. Gamer). He advised the court that DNA tests had been allowed in two Florida cases and in England.

The Lipscomb and Miles cases indicate the prior hesitancy in accepting DNA testing. In Lipscomb, one expert testified that he had previously refused to support Lifecodes Corporation, the company performing the DNA tests in that case, because of his concern over its procedures. Lipscomb, 215 Ill. App. 3d at 421..

In Miles the court noted that numerous cases decided before 1991 found Cellmark’s testing procedures so unreliable that the results were not admitted into evidence. (Miles, 217 Ill. App. 3d at 403.) These remarks question whether Cellmark was producing reliable results in early 1988 when the trial court denied Reynolds’ motion in the present case.

Given the early stage of development of DNA testing in 1988 and the paucity of information presented in the instant case as compared to the Lipscomb and Miles cases, we cannot say that the trial court abused its discretion in deciding that the DNA testing methodology had not yet been generally recognized in the scientific community in early 1988.

Next, both defendants, Wardell and Reynolds, assert that at sentencing, the trial judge’s remark about the race of the victims shows that he considered an improper factor and thus tainted the sentencing determination. We agree.

After discussing the robbery offenses at the sentencing hearing, the trial judge commented that defendants then decided “to have some more fun with some white girls.” This remark clearly referred to the subsequent sex offenses involving the defendants who are black and the victims who are white.

The State contends that the trial court merely parroted the words used by defendants during the attack and that no rights were violated. The State points out that C.H. testified one of her attackers told her “you white girls don’t know what is good for you.” Similarly, J.C. testified that after Reynolds raped her for the third time, he said “something about the fact that I was white and he was black.”

Alternatively, the State maintains that the defendants waived this issue by failing to object to the trial judge’s remark at sentencing and failing to address the issue in the post-trial motions.

To preserve an issue for review, a proper objection at trial and in a written post-trial motion are essential. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Brown (1990), 200 Ill. App. 3d 566, 558 N.E.2d 309.

The waiver rule, however, is less rigidly applied when the the basis for the objection is the trial judge’s conduct. (People v. Nevitt (1990), 135 Ill. 2d 423, 455, 553 N.E.2d 368; Brown, 200 Ill. App. 3d at 575.) The rationale for the relaxation of the waiver rule when the conduct of the judge is at issue stems from “ ‘the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge.’ ” Brown, 200 Ill. App. 3d at 575, quoting People v. Heidorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 568.

We find the exception to the waiver rule applicable here and, thus, will address the merits.

The Unified Code of Corrections mandates the criteria to be considered by a judge in imposing sentence upon the defendants. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 4—1.) The defendant is entitled to a new sentencing hearing where the sentencing judge relies on an improper factor (People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168 (the judge personally maintained an “inflexible policy” of treating certain crimes as “simply not probationable”) or where comments made by the sentencing judge indicate that he did not consider the requisite statutory factors (People v. Rosa (1990), 206 Ill. App. 3d 1074, 565 N.E.2d 221 (the judge referred to “the stupidity and slutliness of women,” the “cowardpce]” of street gang members, and described the defendant as “slovenly” and “stupid”); People v. Clemons (1988), 175 Ill. App. 3d 7, 13, 529 N.E.2d 577 (the judge improperly invoked a “personal policy” of not disturbing a sentence without the approval of the victim involved); People v. Rafac (1977), 51 Ill. App. 3d 1, 4-5, 364 N.E.2d 991 (the judge opined that “the defendants have taken the trial of this cause more of a joke than as a reality”)).

The sentencing judge “owes the same duty to the defendant to protect his own mind from the possible prejudicial effect of incompetent evidence that he would owe in protecting a jury from the same contaminating influence.” People v. Riley (1941), 376 Ill. 364, 369, 33 N.E.2d 872; see also People v. Crews (1967), 38 Ill. 2d 331, 337, 231 N.E.2d 451, appeal after remand (1969), 42 Ill. 2d 60, 63, 244 N.E.2d 593.

As the judge at trial must shield the jury from considering racially prejudicial remarks by the participants during trial, so also must the judge at sentencing safeguard against racial considerations. Rape incites, as it should, a feeling of outrage, but the offensiveness of that act is not transformed by the different skin colors of those persons involved. “[Ajppeals to racial prejudice, whether open or oblique, discredit our justice and are to be condemned.” People v. Dukett (1974), 56 Ill. 2d 432, 443, 308 N.E.2d 590.

We must assume that defendants’ race was considered by the judge when he imposed these long, consecutive sentences. If it is on his tongue, it most assuredly must be on his mind.

Due to the trial judge’s improper consideration of the cross-racial nature of the crimes, we vacate defendants’ sentences and remand the cause for a new sentencing hearing.

Lastly, since we have remanded for a new sentencing hearing, we need not address the propriety of the sentences imposed upon defendants.

For all the reasons stated above, we affirm the convictions of defendants and remand this cause to the trial court for resentencing.

Affirmed in part; vacated in part and remanded.

CERDA, J., concurs.

JUSTICE TULLY,

dissenting:

I cannot agree with the majority view that the comments of the trial judge in this case require the sentences to be vacated. The testimony of both victims clearly indicates that race was at least a partial motive in the violent robbery and sexual assault of two young college students. During the assault, one of the assailants stated: “You white girls don’t know what’s good for you.” After Reynolds penetrated one of the victims for the third time, he said something about himself being black and her being white. The majority finds that the trial judge improperly commented upon the possible racial motivation behind the crime and that it was improperly considered in sentencing. I disagree.

In this instance, the statement of the trial judge was not an attempt to inject his own private prejudice into the judicial process, but rather was a comment on the evidence presented at trial. Where testimony regarding racial motivation is properly admitted into evidence without objection, and does not rise to the level of plain error, a new trial is not warranted. (See People v. Eddmonds (1984), 101 Ill. 2d 44, 461 N.E.2d 347.) Although the judge would have been wise to “hold his tongue,” it was not unduly prejudicial for the judge to consider racial motivation, given the explicit testimony of the victims in this case. Even if improper, the comment was not so egregious as to warrant a new sentencing hearing.

Secondly, the actual sentences of the defendants, when compared with the maximum sentences allowed by statute, do not reflect any apparent taint or prejudice by the trial judge. The maximum consecutive sentence permitted would have been the sum of the maximum terms for the two most serious felonies under section 5 — 8—2 of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 8—2, 1005 — 8— 4.) Under section 1005 — 8—2, dealing with extended terms, the maximum consecutive sentence for either defendant would be 120 years. Both defendants received 69 years, which is considerably less than the maximum.

For all of the foregoing reasons, I respectfully dissent from the majority opinion.

      In Lipscomb, the proponent of the DNA testing (the State) presented the testimony of one expert witness who was employed by Lifecodes Corporation, the company performing the DNA tests in that case; the testimony of two experts who were not affiliated with Lifecodes; a detailed explanation of each step in the six-part procedure; an opportunity for the court to visually observe a part of the process; the actual comparison of the defendant’s blood sample with the forensic sample; the statistical probabilities of the results reached; and evidence establishing that at least two companies (Lifecodes and Cellmark) and the FBI were then performing forensic DNA analysis. In the subsequent case of Miles, the opponent of the test (defendant) did not claim that DNA testing fails to meet the Frye standard, but contended the proponent of the test (the State) failed to present sufficient evidence to establish that the techniques used by Cellmark produced a reliable result. The Miles court found that “Cellmark, however, appears to be learning from past mistakes” and elaborated on the evidence showing the integrity of the process, and the quality control and assurance procedures instituted after numerous courts had refused to admit its results into evidence because its procedures were found to be so unreliable. Miles, 217 Ill. App. 3d at 403.

      The admissibility and reliability of DNA testing continues today to be the subject of debate. In a recent article in the American Bar Association Journal, the author observed that at least four different tests are employed by various jurisdictions to decide whether or not to admit DNA evidence: (1) the “pure Frye” standard, as used in Illinois; (2) the “Frye-plus” decisions, which add to the Frye test a requirement that the testing laboratory in the particular case perform the accepted scientific techniques in its procedures; (3) the basic relevancy standard of the Federal Rules of Evidence in place of the Frye test; and (4) the “relevancy-plus” cases which graft the Frye test and other inquiries onto a relevancy standard. The article also notes the rapid development and improvement of DNA testing procedures within the last year. (Goldberg, A New Day for DNA?, A.B.A.J., April 1992, at 84-85.) In addition, a recent Federal report, prepared by a panel of scientific and legal experts, stated that DNA fingerprinting techniques are not infallible and recommended the use of stricter standards to ensure the tests are performed and interpreted properly. National Research Council, DNA Technology In Forensic Science (1992); Rensberger, Scientists Back DNA Tests, but Urge More Safeguards, Chicago Sun-Times, April 15, 1992, at 26, col. 1; Kolata, Federal Panel Urges Ban on Use of DNA “Fingerprinting” in Court, Chicago Law Bulletin, April 14,1992, at 3, col. 2.


author: PRESIDING JUSTICE EGAN

text:
    WILLIAM WEST, Plaintiff-Appellant, v. H.P.H., INC., Defendant (Robert H. Engler, Defendant-Appellee).
    First District (6th Division)
    No. 1—90—2407
    Opinion filed April 24, 1992.
    Rehearing denied July 21, 1992.

      R.L. Huszagh, of Wheaton, for appellant.
    Karen Fisher Di Monte and Ward P. Fisher, both of Fisher & Di Monte, of Chicago, for appellee.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This is an appeal from an order based on Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), dismissing a complaint for the plaintiff’s failure to exercise reasonable diligence in effecting service of summons before the expiration of the statute of limitations.

The plaintiff, William West, filed a two-count complaint. It was alleged in count I that the defendant, Robert Engler, struck the plaintiff in the face on July 24, 1984. In count II it was alleged that at the time the defendant struck the plaintiff he was intoxicated as a result of his consumption of alcoholic liquors which had been provided to him by another defendant, a dramshop. Summons were issued against both defendants. One set of summons was given to the sheriff of Du Page County for service on the defendant Engler at 227 Robin Lane, Wood Dale, Illinois, the address given by Engler to the police at the time of the occurrence. The dramshop defendant appeared, conducted discovery and entered into a settlement agreement with the plaintiff. An order was entered on or about March 15, 1989, dismissing all defendants with prejudice except the defendant Robert Engler.

On November 4, 1988, notice was sent to the defendant at 227 Robin Lane, Wood Dale, Illinois, that a motion for entry of a default judgment would be filed on November 21, 1988. On November 17, 1988, the defendant’s attorney filed a special and limited appearance on behalf of the defendant “for the sole purpose of contesting the jurisdiction of [the] court.”

On January 18, 1989, a return of service was filed which showed that a deputy sheriff of Du Page County had served the defendant’s sister, Leslie, age 17, at 227 Robin Lane, Wood Dale, Illinois, on December 17, 1984. On January 19 the plaintiff filed a motion for a default against the defendant.

On February 6 the defendant filed a motion to quash the purported service dated December 17, 1984. The motion alleged, in part, as follows:

“Notwithstanding the return of service, Engler did not reside at the residence located at 227 Robin Lane in Wood Dale, Illinois on December 17, 1984. Said address is the home of Engler’s parents and was not Engler’s abode. On December 17, 1984, Engler resided at 246 E. Monroe, Villa Park, Illinois.

Engler has never been served with process in connection with this cause. The court has failed to obtain jurisdiction over Engler and the return of service of summons should be quashed and held for naught.”

On February 6 the court entered an order setting the case for an evidentiary hearing on the motion to quash on May 4. The plaintiff’s attorney wrote to the Illinois Secretary of State to obtain the driving abstract for the defendant. After receiving the abstract showing the defendant’s address as 17 West 230 Third Avenue, Bensenville, Llinois, the plaintiff had a private process server appointed, and the defendant was served on March 21, 1989, by substitute service on Linda Engler, the defendant’s wife, at 17 West 230 Third Avenue, Bensenville, Llinois.

On May 4, 1989, an agreed order, prepared by the defendant’s attorney, was entered which provided, in part, as follows:

“Defendant ENGLER now having acknowledged jurisdiction of this court by way of substituted service on March 21, 1989, verified proof of which has been or will be filed with this court; the parties being in agreement that the court has jurisdiction over Defendant ENGLER by way of the summons served on March 21,1989, and the court being fully advised in the premises:
IT IS HEREBY ORDERED:
1) That the pending motions are withdrawn;
2) That ROBERT H. ENGLER is granted leave to file his answer or otherwise plead to the complaint within 14 days.”

On May 18, 1989, the defendant filed a motion to dismiss in lieu of answer based upon Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)). The motion recited, in part, as follows:

“On the hearing date on the motion to quash, an agreed order was entered by this court in which jurisdiction of this court was recognized by way of the summons served on March 21, 1989. A copy of said order is attached hereto and incorporated herein as Exhibit ‘D’.
The service of process allegedly made on ENGLER on December 17, 1984, was defective. From 1984 until 1988, no action was ever taken against ENGLER in this cause. The applicable statute of limitations had long since run. Plaintiff failed to make any reasonable attempts to diligently perfect service of process upon ENGLER. As soon as a second attempt to serve ENGLER was made, service of process was perfected but, in light of Illinois Supreme Court Rule 103(b), plaintiff failed to exercise reasonable diligence to obtain service prior to the applicable statute of limitations.”

After a hearing the judge entered an order on October 20, 1989, granting the defendant’s motion to dismiss, finding that the plaintiff had failed to exercise diligence as required by the supreme court rule. On July 20,1990, the judge denied the plaintiff’s motion to reconsider.

Both sides have cited several cases setting forth the appropriate criteria to be considered in determining whether a party has exercised reasonable diligence in effecting service before the expiration of the statute of limitations. (E.g., Segal v. Sacco (1990), 136 Ill. 2d 282, 555 N.E.2d 719; Schusterman v. Northwestern Medical Faculty Foundation (1990), 195 Ill. App. 3d 632, 552 N.E.2d 1178; Dupon v. Kaplan (1987), 163 Ill. App. 3d 451, 516 N.E.2d 727.) We have determined that we need not discuss those cases because we have also determined that the trial judge accepted the defendant’s unfounded assertion of fact, that is, that the defendant was not properly served on December 17, 1984. Acceptance of that unfounded assertion of fact rendered the judge’s order erroneous.

The motion to dismiss was based solely on the defendant’s claim that the plaintiff had failed to exercise reasonable diligence in effecting the second service, which was made on March 21, 1989. The defendant did not claim that the plaintiff did not exercise reasonable diligence in effecting the first service on December 17, 1984. Therefore, if the record establishes that the defendant was properly served on December 17, 1984, any lack of reasonable diligence in serving the defendant on March 21, 1989, is of no consequence; the second service would have been redundant.

As a general rule, the sheriff’s return should be considered prima facie evidence that the process was properly served upon the defendant in person, and it should not be set aside unless the return has been impeached by clear and convincing evidence. (In re Jafree (1982), 93 Ill. 2d 450, 444 N.E.2d 143.) The general rule, however, does not apply in the case of substitute service. When a return on substitute service is challenged by affidavit, and there are no counteraffidavits, the return itself is not even evidence. (Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645.) But whether personal or substitute service is challenged, the plaintiff is entitled to at least a hearing to determine the validity of the service. In Four Lakes Management & Development Co. v. Brown (1984), 129 Ill. App. 3d 680, 472 N.E.2d 1199, the affidavit of the wife of the defendant asserted that on a date before the alleged service she and her husband had vacated the premises at which the deputy sheriff allegedly served her and her husband. The wife later testified at a hearing that the defendant, her husband, did not live at the service address. A deputy sheriff testified that the wife had told him that the defendant lived there. The appellate court affirmed the judgment of the trial court quashing service upon the defendant with this observation:

“While [the wife’s] affidavit and testimony were impeached by the deputy’s testimony that a person fitting her description told him [the defendant] lived there, the issue was one of fact resolved against plaintiff by the trier of fact ***. Its judgment was not against the manifest weight of the evidence and must be affirmed.” 129 Ill. App. 3d at 685.

In contradistinction to that case, no hearing was held in the case before us. Indeed, the defendant withdrew the motion to quash. Consequently, insofar as the record is concerned, the service of December 17, 1984, stands as a valid one.

The defendant argues that by the entry of the agreed order of May 4, 1989, the plaintiff conceded that the service of December 17, 1984, was defective. The record is to the contrary, and no reasonable interpretation of the terms of the order itself supports a finding that the plaintiff had agreed that the first service was defective.

At the motion to reconsider, the defendant’s attorney argued that the agreed order “was an implicit admission that there was not good service in November [sic] of ’84.” The court said, “The fact there was an agreed order entered having to do with the service in ’89, which is an admission that there was not service in ’84.”

The plaintiff’s attorney expressed disagreement with the defendant’s attorney’s argument and the conclusion of the judge. He insisted that he “got service in ’84.” At the hearing on the motion to reconsider, he pointed out that the agreed order “doesn’t say that the plaintiff agreed that there wasn’t good service before.” In his reply memorandum filed on the motion to reconsider, he said the following:

“Since there has not been a determination that the service of defendant, Engler, made by substituted service on December 17, 1984, was not effective, this court should not dismiss plaintiff’s suit under Supreme Court Rule 103(b).”

An agreed order should be tested under the same standards applicable to stipulations. A stipulation is an agreement and the court will look to the actual intention of the parties; like a contract, it must be clear, certain and definite in its material provisions. Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74.

At the hearing on the motion to dismiss, the defendant’s attorney said, “The agreed order which was entered explicitly conceded the defect in the December 17, 1984, service of summons.” We disagree with that interpretation of the order. The order does not explicitly concede defective service in 1984. Indeed, the agreed order makes no mention of the previous service. When the parties said that they were “in agreement that the court has jurisdiction over defendant ENGLER by way of the summons served on March 21, 1989,” they cannot be said to have agreed that the court did not have jurisdiction by way of the summons served in December 1984.

The defendant’s attorney himself recognized that the plaintiff’s attorney was attempting to “try to litigate a motion to quash, which is not what is pending before the court.” Nothing in the plaintiff’s argument could be construed as an acceptance of the defendant’s contention that he had explicitly agreed that the service of December 1984 was defective. It is obvious to us that he agreed to the order because he believed that his subsequent service resolved any question of service or jurisdiction. Before a court may hold that a party has waived a legal position, the question of waiver must be free from doubt. We judge that the plaintiff did not waive the argument that the first service was proper.

For these reasons, we conclude that the complaint should not have been dismissed and that the order of dismissal must be reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

RAKOWSKI and LaPORTA, JJ., concur.


author: JUSTICE McMORROW

text:
    GREGORY BAKSINSKI et al., Plaintiffs-Appellants, v. NORTHWESTERN UNIVERSITY et al., Defendants (The City of Chicago, Intervenor-Plaintiff-Appellee).
    First District (4th Division)
    No. 1—90—3180
    Opinion filed May 21, 1992.
    Rehearing denied July 16, 1992.

      Clinton A. Krislov and Jonathan Nachsin, both of Krislov & Associates, Ltd., of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Stan Berman, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

This is an appeal from an order denying an amended petition for attorney fees. The issue on appeal is whether the petitioner, Clinton Krislov, is entitled to compensation for preparing and litigating that fee petition.

In 1983, plaintiffs, Gregory and Edward Baksinski, through their attorney, Sidney Z. Karasik, filed an action as Chicago taxpayers against the City of Chicago (City) and various not-for-profit entities alleging that those entities were improperly being exempted from payment of water and sewer charges. The action sought an accounting and a mandatory injunction requiring the City to collect the water and sewer fees.

In 1985, the City obtained leave to realign itself as a plaintiff. The Baksinskis and Karasik were given leave to remain in the case as monitors of the City’s progress in prosecuting the claims. The City and various defendants ultimately reached settlement agreements for back payment of water and sewer charges, which netted the City in excess of $10 million, as well as agreements for the future payment of water and sewer usage fees.

On March 16, 1990, Karasik filed a petition for attorney fees. The petition included a lodestar amount based upon 188.5 hours at a rate of $175 per hour enhanced by the application of a multiplier of two. Through a miscalculation of these figures, Karasik arrived at a total of $56,500.

The City opposed the award of any fees, arguing that there was neither statutory authorization for attorney fees nor a common fund from which fees could be awarded. Alternatively, the City argued that the requested award was excessive, and that if any award were made, it should be no more than $7,070.

Thereafter, Karasik was diagnosed as terminally ill and engaged attorney Clinton Krislov to pursue the fee petition. Krislov was granted leave to appear on May 22, 1990. In lieu of a reply to the City’s response to Karasik’s fee petition, Krislov filed an amended fee petition in August 1990. The amended petition sought a fee award of 10% of the amounts recovered by the City. In the alternative, Krislov sought fees based upon an “updated” lodestar computation of a $275 hourly rate multiplied by 288 hours, which included the 188.5 hours claimed by Karasik up to July 1986, plus “subsequent time, including preparation of [the] amended petition, believed to total approximately 100 hours through the filing of [the petition].” Krislov then requested that this “working figure lodestar” of $86,400 be enhanced by a multiplier of six, resulting in a total of $518,000. Krislov also requested a $25,000 incentive award to be shared by the Baksinskis for instituting the action.

In its response to Krislov’s amended fee petition, the City reiterated the objections it raised in its memorandum in opposition to Karasik’s original petition for a fee award of $56,550. The City also strongly opposed Krislov’s amended petition arguing, inter alia, that there was no legal basis for either a percentage award, an award of fees for preparation of the amended petition or an incentive award for the Baksinskis; that the theories advanced by Krislov in support of his position were untenable; and that the amounts requested by Krislov were unwarranted and grossly excessive. The City requested that the court reject Krislov’s amended petition in its entirety.

A hearing was held on September 18, 1990. The City moved that Krislov’s amended petition be stricken. Following argument by counsel, the court rejected the positions advanced by Krislov and “disallowed” the amended petition. The court also rejected the City’s assertion that it lacked authority to award attorney fees because there was no “common fund” brought into court from which fees could be drawn. The court observed that as a court of equity, it was empowered with the discretion to award reasonable attorney fees as compensation for Karasik’s successful efforts on behalf of the City and the taxpayers. In recognition of Karasik’s skill and the substantial benefit his efforts produced, the court allowed all of the hours claimed by Karasik, applied a multiplier of three to the lodestar amount in Karasik’s petition, rather than a multiplier of two which Karasik had requested, and ordered a $75,000 fee award. The court also granted a $25,000 incentive award to the Baksinskis for becoming involved in public interest litigation and to encourage others to do so in the future.

On September 25, 1990, Krislov filed a motion for reconsideration and correction of the September 18 order on three matters. He first pointed out the mathematical error in Karasik’s original calculation of the lodestar amount. In addition, Krislov argued that the lodestar should have been calculated on the basis of a current market rate of $275 an hour rather than at the lower rate charged by Karasik during the years of the litigation. Finally, Krislov reargued that the court improperly excluded fees for time spent on the preparation of the fee petitions.

The City moved for reconsideration of the incentive award to the Baksinskis, and also filed a response to Krislov’s motion for reconsideration. The City acknowledged the mathematical error in Karasik’s petition, but maintained that since no legal authorization for an award of fees existed in the first instance, the award granted by the court should not be increased.

The court entered an order in which it (1) corrected the mathematical error in Karasik’s original computation of the lodestar and thereby increased the fee award from $75,000 to $98,962.50, based upon a lodestar of $32,987.50 multiplied by three, and (2) vacated the Baksinskis’ incentive award. Cross-appeals were filed but, following a settlement between Karasik and the City on Karasik’s claim for attorney fees, the City voluntarily dismissed its appeal and the plaintiffs dismissed their appeal as to all issues except the denial of Krislov’s petition for fees for his work on the amended fee petition.

It is Krislov’s contention that the trial court improperly denied his petition for attorney fees for the time he spent preparing and litigating the fee petitions. He argues that he has spent 300 hours on this litigation and requests that his lodestar for this time, which he computes to be $60,000, be enhanced by the same multiplier of three as was applied to Karasik’s lodestar. He advances several lengthy arguments in support of his position. Specifically, he claims that the court’s denial of his request for fees was arbitrary, unjustified and unexplained; that cases have held that fee petition and litigation time is compensable; that it is unfair to require an attorney to expend time and effort on a fee petition but not compensate him for it; that failing to compensate an attorney for such work encourages the opponent to engage in extensive “second litigation” to “wear down” attorneys into accepting less than reasonable fees, and, conversely, that awarding fees will discourage the opponent from engaging in a “hardball defense” which protracts the litigation; that his work produced a substantial benefit, in that it greatly increased Karasik’s fee and aided the court in setting it; and that a fee award is necessary to encourage attorneys to take public interest cases. When reduced to summary form, Krislov’s arguments are founded on the position that denying him fees for his work is inequitable.

The City responds that the court did not abuse its discretion in denying Krislov a separate fee for his work on the fee petition. The City argues that attorney fees accrued in fee litigation involving a common fund are not compensable; that because his amended fee petition was stricken, his work did not even produce a benefit for Karasik; and that, in any case, the amount Krislov requests is grossly excessive.

With respect to awards of attorney fees, the prevailing rule in the United States, often referred to as the “American rule” (Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612; In re Burlington Northern, Inc. (7th Cir. 1987), 832 F.2d 430), is that in the absence of statutory authority or a contractual agreement between the parties, a successful litigant may not recover attorney fees or the costs of the litigation from his adversary. Illinois has long adhered to this rule. (Saltiel v. Olsen (1981), 85 Ill. 2d 484, 426 N.E.2d 1204; Hamer v. Kirk (1976), 64 Ill. 2d 434, 356 N.E.2d 524; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 245 N.E.2d 468; Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41; Constant v. Matteson (1859), 22 Ill. 546, 560.) No claim has been made in this appeal that there was an agreement between the parties or that the statute permitting taxpayer suits on behalf of municipalities (Ill. Rev. Stat. 1989, ch. 24, par. 1—5—1) authorizes an award of attorney fees.

The general rule requiring litigants to bear their own costs and attorney fees does not, however, interfere with the historic power of courts of equity to permit an individual, or the attorney of an individual, who creates, preserves or recovers a fund for the benefit of others in addition to himself by instituting, pursuing or settling litigation, to recover costs and reasonable fees from the fund itself or from its other beneficiaries. (Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 62 L. Ed. 2d 676, 100 S. Ct. 745; Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612; Trustees of the Internal Improvement Fund v. Greenough (1881), 105 U.S. 527, 26 L. Ed. 1157.) This principle, by which courts exercise their inherent powers of equity, has become known as the common fund or equitable fund doctrine (hereafter equitable fund doctrine). See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 62 L. Ed. 2d 676, 100 S. Ct. 745; Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973), 487 F.2d 161 (Lindy I); Skelton v. General Motors Corp. (N.D. Ill. 1987), 661 F. Supp. 1368; Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 512 N.E.2d 1286.

The award of fees under this doctrine rests on equitable considerations of quantum meruit and the prevention of unjust enrichment. When an individual who, by instituting and pursuing successful litigation, has conferred a benefit on a group or class of persons by his creation or preservation of a fund, he is entitled to an award from the fund for the reasonable value of his services. Such an award operates to spread the cost of the litigation proportionately among those who share in the benefit of his efforts. (Alyeska Pipeline Service Co. v. Wilderness Society (1975), 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612; Hall v. Cole (1972), 412 U.S. 1, 36 L. Ed. 2d 702, 93 S. Ct. 1943.) To allow the other beneficiaries to obtain the full benefit from the successful efforts of the plaintiff and his attorney without contributing to the litigation expenses would unjustly enrich those beneficiaries at the expense of the successful litigant and his counsel. (Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 62 L. Ed. 2d 676, 100 S. Ct. 745; Mills v. Electric Auto-Lite Co. (1970), 396 U.S. 375, 24 L. Ed. 2d 593, 90 S. Ct. 616; Skelton v. General Motors Corp. (N.D. Ill. 1987), 661 F. Supp. 136; Purdy v. Security Savings & Loan Association (E.D. Wis. 1989), 727 F. Supp. 1266.) Fee awards under the equitable doctrine must, however, be “made with moderation and a jealous regard to the rights of those *** interested in the fund.” Trustees of the Internal Improvement Fund v. Greenough (1881) 105 U.S. 527, 536-37, 26 L. Ed. 1157, 1161-62; Skelton v. General Motors Corp. (N.D. Ill. 1987), 661 F. Supp. 1368.

As the court observed in Saltiel v. Olsen (1981), 85 Ill. 2d 484, 426 N.E.2d 1204, allowance of fees under the equitable fund doctrine is not inconsistent with the American rule, nor is it truly an exception to it, though it has been characterized as such. In equitable fund cases, the award of fees and expenses is not charged against the adversary, as is disallowed by the American rule, but, rather, against the persons or entity which are benefited by the successful creation or preservation of the fund.

The Illinois Supreme Court has adopted the approach taken by the majority of Federal courts on the issue of attorney fees in equitable fund cases. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897.) Where an equitable fund has been created, attorneys for the successful plaintiff may directly petition the court for the reasonable value of those of their services which benefited the class. Fiorito v. Jones, 72 Ill. 2d 73, 377 N.E.2d 897.

The beneficial result achieved is of major importance because attorney fees reduce each class member’s proportional share of the recovery. (Lurie v. Canadian Javelin Limited (1982), 93 Ill. 2d 231, 443 N.E.2d 592.) In determining reasonable compensation, the court must also consider, among other factors, the number of hours expended on services which benefited the class, the manner in which the time was expended, and by whom. The amount of the award of attorney fees is within the sound discretion of the trial court. (Fiorito v. Jones, 72 Ill. 2d 73, 377 N.E.2d 897.) Citing Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973), 487 F.2d 161 (Lindy I), and Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1976), 540 F.2d 102 (Lindy II), the Fiorito court expressly held, however, that “[h]ours which do not benefit the class members are to be disallowed.” Fiorito, 72 Ill. 2d at 89.

Fiorito did not involve a claim for attorney fees for time spent pursuing fees after the successful conclusion of equitable fund litigation. However, in Lindy II, cited by the Fiorito court, the specific question of whether such fees are allowable was addressed by the Third Circuit Court of Appeals, en banc. In determining that fee litigation time was not compensable, the court reasoned:

“Services performed in connection with the fee application are necessary to the attorney’s recovery. They benefit him, for without them, the attorney cannot *** recover. But such services do not benefit the fund — they do not create, increase, protect or preserve it. Accordingly, *** we accept the prevailing rule for litigation involving the competing interests of claimants to a common fund[, i.e., for there to be a charge against the fund there must be a benefit to the fund (540 F.2d at 110)]. There being no benefit to the fund from services performed by [attorneys] in connection with their fee application, there should be no attorneys’ fee award from the fund for those services.” (Emphasis in original.) (Lindy, 540 F.2d at Ill.)

The court in Lindy II thus found that the district court had abused its discretion in awarding fees for pursuing the fee and vacated that portion of the award granted by the district court.

In addition to our supreme court’s reliance on Lindy II in holding that hours that do not benefit the class must be disallowed, courts in the Seventh Circuit, as well as other jurisdictions, have also expressly adopted the reasoning in Lindy II. These courts have disallowed fees and expenses for tasks and matters not directly benefiting the class in cases involving a common or equitable fund.

Mills v. Eltra Corp. (7th Cir. 1981), 663 F.2d 760, was an appeal in an action to recover fees for services rendered in a stockholders’ disclosure suit. The attorney sought fees for 186 hours he spent on the case in chief as well as 350 hours spent on prosecution of the fee application. The Mills court first noted, as was cautioned in Lindy II, that the fee proceedings had “become the main event rather than the side show.” (663 F.2d at 761.) The court observed, as Krislov argues in this appeal, that “[u]nder certain circumstancesf,] justice requires that time and effort spent in complying with court-created requirements which counsel must meet in order to collect a fee to which he is legally entitled should be included in his compensation.” (663 F.2d at 761.) However, relying on Lindy II, the court held, “[b]ut this rule does not apply where the right to compensation depends upon the creation of a common fund or benefit rather than statutory entitlement.” (663 F.2d at 761.) The court thus allowed fees only for the 186 hours spent on the underlying litigation.

In Skelton v. General Motors Corp. (N.D. Ill. 1987), 661 F. Supp. 1368, the district court conducted a detailed examination of the fee petitions submitted by the numerous attorneys in a consumer class action suit. Fees for many of the hours requested were reduced or disallowed as excessive or duplicative. In each instance, the court expressly stated that the hours were reduced or disallowed because they were of minimal or no benefit to the class. One of the several firms involved in the litigation also requested reimbursement for time spent preparing its fee petition. The Skelton court disallowed the time under the general rule enunciated in Lindy II and by other courts, that such time is not compensable in common fund cases because it is “clearly not time spent creating, preserving or enlarging the fund.” 661 F. Supp. at 1388 n.33.

Another Seventh Circuit case, Purdy v. Security Savings & Loan Association (E.D. Wis. 1989), 727 F. Supp. 1266, involved fee petitions submitted following settlement of an investors’ class action suit. After reviewing the general principles upon which the equitable fund doctrine rests, the court discussed the nature of an attorney’s position upon successful conclusion of the equitable fund litigation. The court explained that once an attorney files a petition for compensation from the fund, his role changes from that of a fiduciary for his clients to that of a claimant against the fund which was created for the benefit of the clients. Because, the court observed, the defendants are rarely interested in the distribution of their contribution to the fund, it is “incumbent upon the trial court to become the fiduciary for the fund’s beneficiaries,” and, quoting Trustees v. Greenough (105 U.S. at 536-37, 26 L. Ed. at 1161-62), “to act with ‘moderation and a jealous regard to the rights of those who are interested in the fund’ in determining what is a reasonable fee to be paid to class counsel for their efforts in settling the litigation and creating the fund.” Purdy, 727 F. Supp at 1269, also citing Skelton, 661 F. Supp. 1368, and City of Detroit v. Grinnell Corp. (2d Cir. 1974), 495 F.2d 448.

Following a detailed examination of the fee petitions, the Purdy court reduced and disallowed certain fees requested by the attorneys. Among the time excluded were two hours involving publicity rather than legal work and approximately four hours relating to the fee petition. Regarding the latter, the court, citing Mills v. Eltra Corp. (663 F.2d 760), stated that the Seventh Circuit has held that “when an attorney’s right to compensation depends upon the creation of a common fund, time spent collecting the fee cannot be included in the compensation.” Purdy, 727 F. Supp. at 1270.

In the Grinnell case, also cited by Purdy, the Second Circuit likewise expressly adopted the rule enunciated in Lindy II and disallowed any compensation for preparation and litigation of the fee petition both in the district court and on appeal as not being services which benefit the class. As further support for its ruling, the court posited that “if counsel is allowed compensation for efforts to obtain his fee, any class member objecting to an initial award would risk increasing the total attorneys’ fee — and thereby decreasing the class’s fund-even though successful in pressing the objection.” City of Detroit, 560 F.2d at 1102.

See also In re Chicken Antitrust Litigation (N.D. Ga. 1980), 560 F. Supp. 963 (court held it was bound by the equitable fund doctrine and had no authority to award fees from the settlement fund in excess of the reasonable value of the benefits conferred upon the class by the petitioner, which did not include preparation of a petition for fees benefiting only the attorney); In re Armored Car Antitrust Litigation (N.D. Ga. 1979), 472 F. Supp 1357 (time spent on fee application did not benefit the class; if anything, it was antagonistic to the claimants’ recovery and could not be awarded from an equitable fund); Computer Statistics, Inc. v. Blair (S.D. Texas 1976), 418 F. Supp. 1339 (time devoted to compiling and presenting a fee petition is beyond the scope of efforts for which fees are to be allowed because such services are not rendered in connection with the recovery). Cf. In re Fine Paper Antitrust Litigation (3d Cir. 1984), 751 F.2d 562 (time spent interviewing a potential witness for the State-related litigation following settlement of the Federal action was disallowed as not benefiting the class).

In his reply brief, Krislov attempts to distinguish Lindy II and the cases following it on the ground that they were all class action suits on behalf of unrepresented claimants, whereas the litigation here was a derivative suit on behalf of the City. His lengthy argument on this point is not persuasive. Although there was no class certification in this case, Krislov himself argued in the trial court that this was a common or equitable fund case which reaped monies “for the benefit of the taxpayer class” and that was the rationale upon which the court awarded a fee to Karasik. While it is the City which receives the funds paid by the defendants as a result of the litigation, the primary and ultimate beneficiaries are the taxpayers. It is they who fund all City expenditures, including the water and sewer expenses to which the defendants were previously exempted from contributing. Further, it has been held that an attorney’s work on a fee application is not to be counted in setting attorney fees when the fee will reduce the fund obtained, whether in a class action or a derivative suit. Seigal v. Merrick (2d Cir. 1980), 619 F.2d 160.

Krislov’s briefs cite to no less than 45 cases, a full review of which is neither feasible nor necessary, because the authorities he cites are generally inapposite to the case before us. For example, each of the Illinois cases cited involved a statute authorizing an award of fees. In Rackow v. Illinois Human Rights Comm’n (1987), 152 Ill. App. 3d 1046, 504 N.E.2d 1344, the court awarded fees, including two hours for preparation of the fee petition, under the Illinois Human Rights Act. In Wayne Township Board of Auditors v. Ludwig (1987), 154 Ill. App. 3d 899, 507 N.E.2d 199, fees were allowed for time spent to enforce the township’s statutory obligation to pay for the costs of the litigation. Citing House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 245 N.E.2d 468, the court noted, however, that even where litigation expenses are authorized by statute they are generally confined to expenses necessarily incurred in the prosecution or defense of the primary action. The court in In re Estate of Marks (1979), 74 Ill. App. 3d 599, 393 N.E.2d 538, rejected an argument that Leader v. Cullerton (1976), 62 Ill. 2d 483, precluded the probate court’s award of fees for services rendered to the executor of an estate, stating that Leader was a class action suit and, therefore, distinguishable.

Similarly, the majority of the Federal cases cited by Krislov also involved fee-shifting statutes. Indeed, several of the cases are directly adverse to Krislov’s position in that they expressly recognize the prevailing rule disallowing compensation for fee litigation in cases involving an equitable fund.

For instance, in Prandini v. National Tea Co. (3d Cir. 1978), 585 F.2d 47, a civil rights class action suit, the court discussed the policy-reasons for its earlier decision in Lindy II disallowing fees for work relating to the fee petition in equitable fund cases. The court emphasized that the case before it was not an equitable fund case but one in which fees were statutorily authorized. The court explained that fees allowed by statute “do not come out of, nor do they reduce, the plaintiff’s recovery. Hence [they are] unlike a common fund award, which does reduce the plaintiffs’ recovery.” (585 F.2d at 53.) The court held that in cases where fees are statutorily authorized, “the considerations of Lindy II and the equitable fund cases do not apply” because “[s]tatutorily authorized fees are not paid out of the plaintiffs’ recovery, and the attorney in seeking his fee is not acting in any sense adversely to the plaintiffs’ interest.” 585 F.2d at 53.

In re Nucorp Energy, Inc. (9th Cir. 1985), 764 F.2d 655, in which the court allowed fees for 200 hours of time spent preparing a 400-page fee application in a bankruptcy case involving 40 attorneys and paralegals and 6,500 hours of litigation time, is also of no assistance to Krislov. Nucorp presents an even more detailed analysis of the distinction between equitable fund and statutory fee cases. The court observed that there is a “divergence of interests” between attorneys and clients in common fund cases. Fees for services which create or preserve the fund are awarded to avoid unjust enrichment of class members who benefit from the attorney’s efforts. Fees for services relative to the fee application, on the other hand, are disallowed because they reduce the fund and are therefore in conflict with the interests of the class members for whose benefit the fund was established. The Nucorp court stated that the principal concerns prompting courts to refuse compensation to attorneys for fee litigation time in common fund cases do not exist in statutory fee or bankruptcy cases. Because these cases do not involve principles of unjust enrichment, nor are the fees paid from a client’s recovery, but, rather, in addition thereto either by the defendant or the bankruptcy estate, it is not improper to award fees for services in connection with fee petitions.

The majority of the remaining Federal cases cited by Krislov are similarly distinguishable. Several involved a fee-shifting statute; others presented situations to which the rationale in fee-shifting cases was applied because the fees were not to be deducted from a fund created for the benefit of the plaintiff class; and two involved uncontested class action settlement agreements which incorporated compensation for time spent on the fee petitions. The three common fund cases cited by Krislov which rejected the reasoning in Lindy II and allowed fees for fee application work were all written by the same district judge in the Southern District of Ohio. Our research has found no other decisions following those cases on the issue of compensation for fee litigation. In fact, in Heist v. Jacob (S.D. Ohio 1985), Nos. C— 3 — 82—184, C — 3—82—254, slip op. at 7 n.6, another jurist in the same district recognized the prevailing rule enunciated in Lindy II disallowing fees for fee applications in equitable fund litigation.

Krislov characterizes the reasoning in Lindy II as “dubious.” However, our supreme court in Fiorito relied on Lindy II in unequivocally ruling that hours which do not benefit the class are to be disallowed. As the authorities cited and discussed above demonstrate, the reasoning in Lindy II on the issue of compensation for fee litigation where the fee would be drawn from an equitable fund has been adopted by the vast majority of jurisdictions, and disallowance of such fees has become the accepted rule in this country.

Indeed, the original fee petition submitted by Karasik recognized Fiorito and Leader as the controlling authority in cases involving common or equitable funds. In discussing the factors to be considered in fashioning a fee award under the lodestar approach, Karasik noted that the Fiorito court accepted the “technique for determining attorneys’ fees [set forth] in Lindy I, and further refined in Lindy II, [which] has become widely accepted in the federal system,” and that the rules articulated in Fiorito and Leader “are now applied with great consistency in the determination of reasonable attorneys’ fees for counsel in class actions in Illinois.” Karasik also cited to Mills v. Eltra Corp. (7th Cir. 1981), 663 F.2d 760, in which compensation for fee litigation was denied. Notably, Karasik himself did not request compensation for time spent preparing his own fee petition.

Krislov nevertheless filed an amended petition requesting that the trial court reject the lodestar approach adopted by the supreme court and award a fee based upon a percentage of the fund. In the alternative, he requested that the lodestar for Karasik’s services be increased to $275 per hour for 188.5 hours and then upwardly adjusted by a multiplier of. six. He also requested an award of fees, based upon the same computation method, for the 100 hours he claimed to have spent on preparation of the amended fee petition itself. On appeal, Krislov seeks compensation for an additional 200 hours of fee-related work performed through the filing of his appellate brief, as well as the 100 hours he claimed in the trial court. Computed at $275 an hour, he proposes a lodestar of $60,000, enhanced by a multiplier of three, for a total of $180,000 in requested fees.

We first observe the similarity of the instant appeal to the situation in Mills v. Eltra (7th Cir. 1981) 663 F.2d 760. In Mills, the fee award sought was comprised of 350 hours for work on the fee proceedings and only 186 hours for services performed earning a fee in the case in chief. Here, the 300 hours Krislov claims is more than IV2 times the hours claimed by Karasik for his work on the primary litigation, and his mathematical total approximately doubles the amount the court awarded Karasik for those services. As in Mills, the fee proceedings are “assuming massive proportions, perhaps even dwarfing the case in chief.” Mills, 663 F.2d at 761.

We further note that the purposes of an upward adjustment of the lodestar amount by application of a multiplier are to account for the contingent nature of the particular class action at issue and to reward a successful attorney who, by his superior quality services, has conferred a substantial benefit upon the class. (Fiorito v. Jones, 72 Ill. 2d 73; see also Purdy v. Security Savings & Loan Association (E.D. Wis. 1989), 727 F. Supp 1266.) In the absence of these factors, employment of a multiplier is not warranted because “each dollar awarded in attorney fees *** further reducefs] the recovery of the class members.” (Fiorito v. Jones, 72 Ill. 2d at 92.) The fee litigation in this case is not part of the class action litigation and, certainly, confers no benefit on the class. Even assuming fees for fee litigation were allowable, it is not the type of litigation warranting the application of a multiplier.

There is, however, no legal basis upon which to award fees for litigation of the fee petitions in the first instance. None of the time spent preparing and pursuing the petitions for fees has benefited the City or the taxpayers by increasing or preserving the equitable fund consisting of the water and sewer usage payments. To the contrary, the amount awarded pursuant to Karasik’s petition reduced the fund. The reduction was justified, of course, by equitable principles of quantum meruit and the prevention of unjust enrichment, since Karasik’s legal services in instituting and prosecuting the primary litigation were instrumental in the ultimate collection of those user payments.

Fee litigation time, however, benefits only the attorney, and in this case, not even the attorney whose services were instrumental in obtaining the benefit for the class. The dispute over Karasik’s fee was resolved long ago. The trial judge rejected the theories advanced by Krislov, disallowed the amended petition and awarded a fee to Karasik based upon the corrected mathematical computations in Karasik’s original petition, albeit with the application of a slightly increased multiplier. The City’s appeal of that award was voluntarily dismissed following the settlement between the City and Karasik over the issue of his fee. The fees sought in this appeal are attributable solely to Krislov’s work and are solely for his benefit. One third of the $180,000 sought is for the time he spent on the disallowed amended fee petition and two-thirds of it is for his efforts in contesting the denial of that petition. This work has no relation to the underlying litigation and is highly antagonistic to the interests of the City and taxpayers.

The trial court correctly stated that it was bound by the law enunciated in Fiorito and exercised sound discretion in denying Krislov’s petition for fees for preparing and litigating the amended fee petition. Krislov’s appellate request for additional fees for contesting that denial must likewise be denied.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.

      The City indicates that it has not abandoned its belief that there was no legal basis for any attorney fees in this case. The City states, however, that in light of the settlement agreement it reached with Karasik, it will not contest the existence of a common fund for purposes of appeal.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD QUINLAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—0255
    Opinion filed June 10, 1992.

      Rita A. Fry, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a bench trial, defendant, Richard Quinlan, was convicted of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(2)) and sentenced to 18 years’ imprisonment. On appeal, defendant asserts that the evidence did not prove beyond a reasonable doubt that the victim was unable to give knowing consent and did not understand the nature of the acts. We affirm. The issue in this case is whether an illegitimate medical examination is covered by the criminal sexual assault statute and is a commission of a criminal act.

On November 11, 1988, D.S., a 26-year-old woman, was admitted to Humana Hospital in Hoffman Estates, Illinois, suffering from pneumonia and dehydration. D.S., who had bachelor’s and master’s degrees in psychology with some training in child sexual abuse, had suffered from respiratory problems most of her life. Defendant was employed as a respiratory therapist at the hospital and was assigned to D.S.’s case.

On the first day of D.S.’s hospitalization, defendant came into her room three or four times. Each time he asked D.S. questions about her medical history or explained the treatments to be administered. Defendant administered a respiratory treatment on that first day.

The next day, defendant came to see D.S. in the late afternoon. He told her that he had discussed her case with his colleagues and asked more specific medical questions, including questions relating to a vaginal yeast infection. Defendant asked D.S. how far she was willing to go to solve her medical problems. He related a story about another woman patient who told him that she was willing to go under a microscope to solve her medical problems. Defendant asked D.S. if she was willing to go that far. Frustrated, D.S. told defendant she would be willing to undergo whatever medical tests were necessary to make her feel well. Defendant left the room, stating that he was going to consult some colleagues.

Defendant returned to D.S.’s room about two hours later and administered a respiratory treatment. He then indicated that he and his bos? had come up with a medical test that would help get at the root of D.S.’s problems. When D.S. asked about the identity of defendant’s boss, defendant was evasive. When D.S. asked again, defendant responded that his boss was Dr. Hollan from Lutheran General Hospital. Both sides stipulated that no Dr. Hollan was on staff at Lutheran General Hospital in November 1988. Defendant asked more questions and left.

About 7 p.m. that same night, defendant returned and asked D.S. more questions. He then told D.S. that his boss (Dr. Hollan) had decided that the cardio-pulmonary-respiratory examination, or C.N.R. test, was her best option. Both sides stipulated that there is no such procedure as a C.N.R. test relating to respiratory therapy.

Defendant told D.S. that there were three ways to administer the C.N.R. test. While the first way did not apply to D.S., the second was a modified test, and the third was invasive. When D.S. asked about the modified test, defendant stated that it looked at “profusion,” which he explained only as blood and circulation. Defendant then explained that the invasive C.N.R. consisted of rectal and vaginal penetration to determine if the muscles were contracting properly to see if the patient was neurologically intact.

When D.S. indicated that she preferred the modified C.N.R., defendant responded that the invasive C.N.R. was in her best interest if she wanted to get to the root of her problems. D.S. told defendant that she wanted to consult with her primary physician, Dr. Round, but defendant said that her case had been referred to the pulmonology department, had been taken off Dr. Round’s caseload, and that defendant and his boss (Dr. Hollan) were handling her case.

Near the end of that conversation, D.S.’s parents entered the room. Defendant briefly discussed the C.N.R. test with them, but did not elaborate about the invasive procedure. After defendant left, D.S. generally discussed the tests with her parents, but did not go into detail.

Around 10 p.m. that night, defendant again came into D.S.’s room to administer a respiratory treatment. When he finished, he asked D.S. if she had decided about the C.N.R. test. D.S. was unsure and asked whether it would give her the answers she needed. When defendant replied that the test was in her best interest, D.S. agreed to have the test performed. Defendant then told D.S. to remove all her clothes except her hospital gown and he would order the test.

Defendant left and returned five minutes later. When D.S. asked him how many times he had performed this test, he responded “maybe 200.” Defendant then instructed D.S. to roll over on her right side and pull her knees to her chest. He then began to examine her rectal area, supposedly to check for “profusion.” Defendant inserted a metallic object into D.S.’s rectum and asked her to contract and release her muscles. After removing the object, defendant inserted one finger and then more than one finger into D.S.’s rectum and had her repeat the process.

Defendant then told D.S. to turn over on her back and spread her legs, again telling her that he was going to check for “profusion.” Defendant began touching her vaginal area and said, “Boy, you certainly are saturated now, aren’t you?” He then inserted one finger into her vagina and asked her to contract and release her muscles. Defendant asked D.S. if he could insert fingers into her rectum and vagina simultaneously, but D.S. refused. Defendant then pinched D.S.’s vaginal area, stroked the bottom of her feet, checked her cuticles for circulation, and told her he was finished.

Before defendant left, D.S. asked if Dr. Round would receive a copy of the report. Defendant replied that the report would be in her file the next day. D.S. cleaned herself off, then called her apartment. She spoke with her roommate and her parents. She told them that she felt violated, humiliated, and uncomfortable with the examination. Her parents encouraged her to speak with Dr. Round.

The next day, D.S. asked Dr. Round about the results of the test. Dr. Round informed D.S. that he did not order such a test. After questioning her about the test and who performed it, Dr. Round left, stating that he would check into it. The following morning, Dr. Round and the head nurse questioned D.S. about the details of the C.N.R. exam. Dr. Round explained to D.S. that she had been a victim. At trial, D.S. testified that she would not have allowed the incident to occur if she did not think it was a legitimate medical test.

Defendant asserts that his conviction must be reversed because the evidence did not prove him guilty beyond a reasonable doubt since D.S. was an intelligent, educated woman who understood the proposed acts and knowingly consented to them. Furthermore, defendant argues, the statute’s consent language has been applied historically to victims of a young age or of diminished mental capacity.

The State responds that defendant’s acts violated both the language and the intent of the statute. Defendant took advantage of D.S.’s frustration over- her illness and her reliance on him as a medical professional assigned to her case, the State argues. D.S. consented to a medical test, not to acts of sexual penetration. D.S.’s consent is vitiated, the State claims, because it was received through deceit.

We agree. Defendant was convicted of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(2)), which provides that:

“The accused commits criminal sexual, assault if he or she:
***
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.” Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(2).

Knowing consent “presupposes an intelligence capable of understanding the act, its nature and possible consequences.” (People v. Blunt (1965), 65 Ill. App. 2d 268, 274.) Even though D.S. is an intelligent, educated woman, she is not a doctor or a trained respiratory therapist. She had no way of knowing that the proposed examination was not a legitimate medical test, but relied on the medical professional who was assigned to her case in a reputable hospital. D.S. consented to an invasive medical procedure, not to sexual acts. Since defendant’s acts were not a medical procedure, the evidence proved beyond a reasonable doubt that D.S. did not understand the nature of the acts and did not give knowing consent.

Furthermore, the evidence proved beyond a reasonable doubt that defendant knew that D.S. was unable to understand the nature of the acts or to give knowing consent. There were numerous conversations and questions where D.S. showed concern and an uncomfortableness with the invasive procedure. It was only after defendant used deceit to convince D.S. that the test would get to the root of her medical problems that she consented.

Moreover, the State legislature exempted legitimate medical tests from the criminal sexual assault statute. 0(People v. Foster (1990), 195 Ill. App. 3d 926, 953.) Section 12 — 18 of the Criminal Code of 1961 provides that exemption to the statute:

“(b) Any medical examination or procedure which is conducted by a physician, nurse, medical or hospital personnel, parent, or caretaker for purposes and in a manner consistent with reasonable medical standards is not an offense under Sections 12-13, 12-14, 12-15 and 12-16 of this Code.” Ill. Rev. Stat. 1987, ch. 38, par. 12-18(b).

This section evidences a legislative intent that illegitimate medical examinations are covered by the criminal sexual assault statutes. Since defendant’s acts were not part of a legitimate medical examination, defendant was proved guilty beyond a reasonable doubt.

Based on the foregoing, defendant’s conviction is affirmed.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.