author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BACZKOWSKI, Defendant-Appellant.
    Second District
    No. 2—87—0498
    Opinion filed February 21, 1989.
    Rehearing denied April 5, 1989.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, Richard Baczkowski, was convicted of battery (111. Rev. Stat. 1987, ch. 38, par. 12 — 3(a)(2)) and was sentenced to six months in the Lake County jail, one year of supervised probation, alcohol abuse evaluation and treatment in an outpatient program, and attendance at Alcoholics Anonymous meetings for 90 days. He appeals, contending: (1) that the trial court erred in giving the jury a non-Illinois Pattern Jury Instruction, which misstated the law and conflicted with other given instructions; and (2) that he was denied the effective assistance of counsel in that the public defender presenting his case failed to properly introduce expert testimony in order to adequately advise the jury of the defendant’s voluntary intoxication defense.

We agree with the defendant’s initial contention and reverse the conviction. In light of this holding, we do not consider the defendant’s second contention.

On August 11, 1986, the defendant was admitted to the emergency room of Good Shepherd Hospital in Barrington, Illinois, exhibiting signs of intoxication. He was brought into the hospital by a rescue squad and was lying, restrained, on a stretcher. During his stay in the emergency room, the defendant flailed and thrashed about on the stretcher, spitting and verbally abusing thé emergency room staff in general, and the individual medical personnel who treated him in particular. Dr. Ronald Tanowye examined the defendant and ordered various blood tests. Emergency room nurse Annette Ray attempted to draw the blood for these tests, and while she was so engaged, the defendant reached through the bars of the emergency room stretcher and pinched the nurse on her left buttock. Nurse Ray sought the assistance of hospital security personnel to subdue the defendant; ultimately she was successful in withdrawing blood for the laboratory tests. The defendant received intravenous fluid treatments, ordered by Dr. Tanowye for the purpose of lowering the defendant’s blood-alcohol level, for approximately 2Vz hours, at which time the defendant was led out of the emergency room in a standing position by Lake County sheriff’s police. He was charged with battery with regard to his pinching of Nurse Ray.

The defendant was represented by a public defender in a jury trial on March 31, April 1 and 2, 1987. The State elicited testimony from Nurse Ray and Mr. Ray Grimes, the security guard who assisted Nurse Ray in the emergency room. The defendant offered his testimony, as well as that of Dr. Tanowye and Linda Gaasrud, the medical technologist at Good Shepherd Hospital who performed the laboratory tests on the defendant’s blood samples. The defendant also offered the testimony of Alison Oliver, an alcoholism and substance abuse counselor, for the purpose of her expert testimony regarding the effects of varying blood-alcohol levels on human behavior. This testimony, was ruled out of order as it was offered prior to the admission of the blood-test results, and Ms. Oliver was never recalled.

Nurse Ray, Mr. Grimes and Dr. Tanowye all testified that the defendant was clearly intoxicated during his stay in the emergency room; however, their testimony conflicted as to the degree of the defendant’s intoxication. Nurse Ray stated that the defendant’s speech was slightly slurred and somewhat rambling and that the defendant spit so much that “the curtain [enclosing his cubicle in the emergency room] was laundered *** when he left because it was so wet.” Nurse Ray further testified that she did not believe the defendant was so intoxicated that he did not know what he was doing.

Mr. Grimes stated that the defendant’s speech was quite clear, that the defendant was thrashing around, and that he was “pretty obnoxious.”

Dr. Tanowye testified that the defendant was spitting and thrashing around and that the defendant was severely intoxicated. The doctor also stated that he believed the defendant was acutely intoxicated and that his opinion regarding the defendant’s intoxication was based upon his experience as an emergency room physician, his observation of the defendant in the emergency room, and the defendant’s blood-alcohol level as indicated by the blood-test result.

Ms. Gaasrud testified that she had performed a laboratory analysis upon the defendant’s blood sample which indicated his blood-alcohol level to be 394 milligrams per deciliter.

The defendant testified that he was a chronic alcoholic and had been arrested 50 or 60 times in the past, always while he was intoxicated. He further testified that he had no recollection of the events leading up to his admission to the Good Shepherd Hospital on the day in question, nor did he recall any of the events which took place there, including his alleged pinching of Nurse Ray. He did state that he remembered being led out of the hospital by the sheriff’s police.

At the close of evidence, both parties offered jury instructions. People’s instruction No. 7 stated:

“A person commits the offense of battery when he, knowingly without legal justification and by any means makes physical contact of an insulting nature with another person.”

This instruction corresponds to Illinois Pattern Jury Instructions, Criminal, No. 11.05 (2d ed. 1981) (IPI Criminal 2d) and tracks the language of section 12 — 3 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 3(aX2)).

In his instruction No. 3, the defendant incorporated the language of section 4 — 5(b) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5(b)) and defined the term “knowingly” as follows:

“A person acts knowingly when he is consciously aware that a certain result is practically certain to be caused by his conduct.”

The defendant also tendered, as his instruction No. 2, the affirmative defense of voluntary intoxication as provided in IPI Criminal 2d No. 24-25.02:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly.”

The State offered People’s instruction No. 10, which stated:

“For voluntary intoxication to be a legal defense, the level of intoxication must be so extreme as to suspend all power of reason and render the defendant incapable of any mental action.”

The court gave all the above to the jury, including People’s instruction No. 10, a non-IPI instruction to which the defendant objected.

The jury returned a guilty verdict on the charge of battery. At sentencing, the defendant filed a motion for a new trial, arguing that the court had erred in giving People’s instruction No. 10, as it was not an accurate statement of the law. The defendant additionally argued that the court erred in preventing Linda Gaasrud, the medical technician who performed the blood test, from testifying regarding scientific standards in that a blood-alcohol reading of 150 was “toxic” and that a reading of 400 was “lethal.” In this same vein, the defendant asserted that the court erred in preventing him from discussing the standards in closing argument and from relating the standards to the defendant’s blood-alcohol level in that such presentation was crucial to his defense of voluntary intoxication. The court denied the defendant’s motion for a new trial and sentenced him to six months in the Lake County jail, one year of supervised probation and various alcoholism treatments. The defendant timely appeals.

On appeal, the defendant contends that the trial court erred in giving the jury the State’s non-IPI instruction defining the defense of voluntary intoxication because said instruction was in conflict with the IPI instruction regarding the same subject and said instruction did not accurately state the law. The defendant further contends that he was denied the effective assistance of counsel on the ground that the public defender who presented his case misapprehended the rules concerning the admission of expert testimony and thereby failed to adequately apprise the jury of his voluntary intoxication defense. We hold that the giving of the non-IPI instruction was reversible error and do not address the defendant’s second contention.

Section 6 — 3(a) of the Code provides the affirmative defense of voluntary intoxication as follows:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition *** [i]s so extreme as to suspend the power of reason and render him incapable of forming a specific intent which is an element of the offense ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 3(a).)

Thus, in Illinois, it is well established that voluntary intoxication is not a defense to charges of criminal conduct unless it can be shown that the intoxication “is so extreme as to make impossible the existence of a mental state which is an element of the crime.” (People v. Lewis (1988), 165 Ill. App. 3d 97, 106, 518 N.E.2d 741, 747.) A defendant charged with a specific intent crime may avail himself of this affirmative defense, and battery is such a crime. People v. Brabson (1977), 54 Ill. App. 3d 134, 136, 369 N.E.2d 346, 348; People v. Hayes (1976), 37 Ill. App. 3d 772, 774, 347 N.E.2d 327, 329.

There is no dispute that defendant was intoxicated at the time of the alleged battery; thus, voluntary intoxication is a valid defense in this case. The State argues, however, that such defense could not have possibly prevailed in the instant matter. The State contends that defendant’s mental state can be inferred from the nature of the alleged criminal conduct, i.e., the defendant’s pinching of Nurse Ray on the left buttock. The State asserts that such an act “inherently requires a knowing or intentional state ***. Such an action requires volition and thus the formation of such a state.” Thus, the State argues, since the defendant could not have excused his conduct by showing he lacked “a knowing or intentional mental state,” issues related to the defense of voluntary intoxication should not result in reversal of the conviction. The State’s reasoning is contrary to the law. Generally speaking, we can infer the requisite mental state of an individual from the character of his act; however, once the individual has introduced evidence to show that an intoxicated condition negated the existence of the requisite mental state and such evidence raises a reasonable doubt, the State must then overcome the affirmative defense by proving, beyond a reasonable doubt, the existence of the requisite mental state. (People v. Gutknecht (1984), 121 Ill. App. 3d 839, 846, 460 N.E.2d 60, 65; People v. Aguirre (1975), 30 Ill. App. 3d 854, 857, 334 N.E.2d 123, 126.) The State’s argument assumes a per se rule with regard to certain acts despite evidence tending to show a defendant’s intoxication. No such rule exists in Illinois.

With regard to the giving of the State’s tendered non-IPI instruction, we believe that People v. Haywood (1980), 82 Ill. 2d 540, 413 N.E.2d 410, is controlling. Haywood was found guilty of murder following a jury trial at which he had adduced evidence establishing that he was intoxicated at the time of the alleged crime. The State submitted two instructions regarding the defense of voluntary intoxication, and the court gave both to the jury. The first, to which the defendant did not object, was IPI Criminal No. 24.02, which provided:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly and intentionally.” (Haywood, 82 Ill. 2d at 544, 413 N.E.2d at 412.)

The State also submitted the following instruction, which the court gave to the jury over Haywood’s objection:

“While intoxication may be used to nagative [sic] the element of intent when it is extreme, merely being drunk or intoxicated is not a sufficient defense. Only if the Defendant’s intoxication is so extreme as to suspend entirely his power of reason, rendering him incapable of any mental action, is that intoxication a defense to the offense of Murder.” 82 Ill. 2d at 544, 413 N.E.2d at 412-13.

We note that these instructions match defendant’s instruction No. 2 (IPI Criminal 2d No. 24 — 25.02) and People’s instruction No. 10 (the disputed non-IPI instruction) at issue in the case at bar nearly word for word.

On appeal, Haywood argued that the State’s latter instruction was misleading to the jury in that the phrase “rendering him incapable of any mental action” could imply “a state of unconsciousness, or at least *** a higher degree of intoxication than is necessary to constitute the defense under the law.” (Haywood, 82 Ill. 2d at 544-45, 413 N.E.2d at 413.) As such, Haywood argued that the State’s instruction was not an accurate statement of the law and required reversal.

In considering Haywood’s appeal, the supreme court discussed the history and purpose behind the drafting of the Illinois Pattern Jury Instructions. The court said:

“[E]ach instruction was painstakingly drafted with the use of simple, brief and unslanted language so as to clearly and concisely state the law. To insure the use of such instructions, this court adopted Rule 451(a), which requires that an instruction in IPI be given where applicable, unless the court determines that the instruction does not accurately state the law. It is axiomatic, therefore, that the use of additional instructions on a subject already covered by IPI would defeat the goal that all instructions be simple, brief, impartial and free from argument.” Haywood, 82 Ill. 2d at 545, 413 N.E.2d at 413.

The supreme court held that the IPI instruction given on the defense of voluntary intoxication was “a simple, clear and concise statement [of the law and as such] needs no embellishment, explanation or further definition.” (82 Ill. 2d at 545, 413 N.E.2d at 413.) The court further held that the State’s non-IPI instruction was confusing, ambiguous and conflicted with IPI Criminal No. 24.02. The court agreed with Haywood’s assertion that the non-IPI instruction could have been interpreted by the jury so as to require “the defendant to be devoid of any mental activity whatsoever or to be in a state of unconsciousness. This is not the law in Illinois, and the trial court committed reversible error in allowing [the non-IPI instruction] to be given to the jury.” Haywood, 82 Ill. 2d at 546, 413 N.E.2d at 413.

The supreme court’s holding in Haywood is based on two interrelated principles. The first is set out in Supreme Court Rule 451(a), which provides in pertinent part:

“Whenever *** the court determines that the jury should be instructed on [a] subject, the IPI Criminal 2d instruction shall be used, unless the court determines that it does not accurately state the law.” 107 Ill. 2d R. 451(a).

The second principle relied upon by the Haywood court is that the giving of conflicting instructions, one of which is a correct statement of law and the other an incorrect statement of law, is not harmless error. The Haywood court reasoned that such conflicting instructions inhibit a jury’s ability to perform its function because it has not been adequately apprised of the law to be applied in a given case. Haywood, 82 Ill. 2d at 545, 413 N.E.2d at 413.

Turning to the case at bar, we note many parallels between it and the situation presented in Haywood: (1) there is no dispute that the defendant was intoxicated at the time of the alleged crime; however, the degree of his intoxication is in question; (2) the defendant has raised the affirmative defense of voluntary intoxication; (3) the trial court gave the jury the approved IPI Instruction defining such defense (IPI Criminal 2d No. 24 — 25.02); and (4) the trial court also gave the jury a non-IPI instruction purporting to define the affirmative defense of voluntary intoxication so as to require intoxication so extreme that it renders the actor “incapable of any mental action” (see Haywood, 82 Ill. 2d at 544, 413 N.E.2d at 412-13; see also People’s instruction No. 10 in the instant case). In spite of these striking parallels, the State, in its brief to this court, claims that the Haywood decision is misleading and inapplicable to the instant facts because the supreme court did not expressly state that the instructions at issue in fact conflicted, but rather held that the possible misinterpretation of the non-IPI instruction conflicted with the meaning of the IPI instruction. Thus, the State reasons, if the instructions as a whole are sufficiently clear that there is no potential for a conflicting misconstruction, no reversal obtains. We do not agree with the State’s characterization of Haywood, nor do we believe that, in the instant case, the instructions as a whole are sufficiently clear to preclude any possible misinterpretation by the jury.

The statutory defense of voluntary intoxication expressly states that such defense excuses criminal conduct when an individual is so intoxicated as to be “incapable of forming a specific intent which is an element of the offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 3(a).) At the time the supreme court was considering Haywood’s appeal, the statute provided for voluntary intoxication as a defense when an individual’s intoxication was so extreme it “[njegatives the existence of a mental state which is an element of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 3(a).) Neither wording of the statute requires that a defendant asserting the defense must establish that, at the time of the alleged crime, he was “incapable of any mental action” (emphasis added), as provided in People’s instruction No. 10. Clearly, this defense does not require a showing that the defendant is devoid of any mental activity or is in fact unconscious. (See Haywood, 82 Ill. 2d at 546, 413 N.E.2d at 413.) Obviously, it is true that if an individual’s intoxicated state is so great that he is devoid of any mental action whatsoever, he cannot be convicted of a specific intent crime (People v. Winters (1963), 29 Ill. 2d 74, 80-81, 193 N.E.2d 809, 813), but one is not required to make this extreme showing in order to successfully invoke the affirmative defense.

The State’s arguments in favor of its non-IPI instruction further fly in the face of the requirements of Supreme Court Rule 451(a) that non-IPI instructions shall be used only if no IPI instructions on a specific subject exist, or if the existing IPI instruction does not contain an accurate statement of the law. (107 Ill. 2d R. 451(a); see also People v. Pope (1985), 138 Ill. App. 3d 726, 741, 486 N.E.2d 350, 358-59; People v. Morrison (1985), 138 Ill. App. 3d 595, 599, 486 N.E.2d 345, 348.) Jury instructions should not be misleading or confusing, and, when viewed as a whole, the instructions should properly inform the jury of the applicable law. Pope, 138 Ill. App. 3d at 740, 486 N.E.2d at 358.

We think it clear that the IPI instruction given in the instant case regarding the affirmative defense of voluntary intoxication reflects a correct and concise statement of the law; likewise, we think it clear that People’s instruction No. 10 as given to the jury in the instant matter served only to confuse the issue by redefining the affirmative defense, and, further, it does not accurately state the law. The giving of this instruction was reversible error.

In light of our holding above, we do not reach the defendant’s contention regarding the alleged ineffective assistance of counsel.

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

Reversed and remanded.

REINHARD and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL D. BOUCHARD, Defendant-Appellant.
    Second District
    No. 2—87—0554
    Opinion filed February 28, 1989.
    Rehearing denied April 7, 1989.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Paul Bouchard, was charged by information with one count of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1) for intentionally and knowingly causing the death of Kimberly Shattuck without lawful justification. Following a bench trial, defendant was found guilty but mentally ill of the crime of murder and was sentenced to 20 years’ imprisonment. Defendant’s post-trial motion was denied, and this appeal followed. We affirm.

Defendant raises the following issues on appeal: (1) whether the Illinois statute requiring defendant to prove the defense of insanity by a preponderance of the evidence is an unconstitutional shifting of the burden of proof; and (2) whether the trial court erred in holding that defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense.

On September 3, 1986, at approximately 6 p.m., Jesse Shattuck found the body of his wife, Kimberly Shattuck, on the bedroom floor. It was determined that she died as a result of hemorrhage in association with the 55 stab wounds she had received. The police arrived and found no evidence of burglary or ransacking of the Shattuck home. Around 8 p.m., two police officers visited defendant’s home after learning that defendant had been to the victim’s home earlier in the day. Defendant agreed to accompany the police officers to the police station for an interview. After receiving and waiving his Miranda rights, defendant told the police officers that he visited the Shattuck home around 5:40 p.m., looking for the victim’s stepdaughter Tracy. He stated that no one was home and that he continued his walk to a local grocery store where he was employed. He arrived at the store at 6 p.m., where he saw Tracy Shattuck, also an employee. He told Tracy that he had a stomachache and would not be able to work that evening. Defendant then went home.

On September 4, 1986, the police received a call from Barbara McFarlane, an employee at a store located across the street from where defendant was employed. McFarlane told the police that she was working the previous afternoon and saw defendant in an alley around 5:30 p.m. Defendant approached McFarlane and requested a towel to wipe the blood from his arms and hands. Defendant stated that he had fallen down but was not hurt. The following morning, Mc-Farlane discovered clothing in the washroom where defendant had cleaned himself. This clothing was later identified as belonging to defendant. A 12-inch-long knife was also recovered in the washroom. An arrest and search warrant was executed, and defendant was brought into custody on the evening of September 4. Items seized pursuant to the warrant and turned over to police by McFarlane were found to have traces of blood and hair incriminating the defendant.

Several classmates of defendant at Rockford East High School testified at trial. They testified that defendant was not known to ever use alcohol, tobacco, or illegal drugs. They did not notice anything unusual or bizarre about defendant’s behavior on the day of the murder. However, nearly all of the witnesses stated that defendant was known to tell very unusual and often exaggerated stories. At various times defendant was known to claim that he was from Canada and moved to the United States to have a better chance of making the Olympic wrestling team. He often told stories about the number of automobiles and motorcycles he owned, and how he had personally built a three-car garage for his auto repair business.

Defendant also told numerous exaggerated stories and lies about his father. At various times he stated that his father was a Vietnam veteran and that he had served in the Canadian Air Force. He noted that his father was an Olympic-class wrestler who would have received an Olympic medal had not a stove blown up and broke his father’s back. He also stated that his father was an alcoholic and smoked a lot of marijuana.

None of the acquaintances testified that defendant was a violent person. However, defendant often told stories relating to the subject of death. He told classmates that he once killed a “mental person” in Chicago and placed him in a trash dumpster. He also told them that he had once been in a car crash in which a friend was killed. Defendant once asked two classmates how they would kill someone if they had the opportunity to do so. Defendant told them that he was going to kill “a fat lady, a girl that was a bitch and her father” in order to get a car to drive. The two students thought he was kidding and laughed at him, after which defendant then stated that he was kidding.

Defendant’s father, Terry Bouchard, also testified at trial. He stated that defendant had a normal childhood and was not known to use any type of drugs. He agreed that defendant was frequently known to exaggerate and tell unusual stories. He also noted that he never served in Vietnam or in the Canadian Air Force and that he was never an Olympic-class wrestler. Furthermore, defendant never owned a car or motorcycle, nor did he operate an auto repair business. He also stated that defendant never lived in Canada nor was he involved in any killings or fatal automobile accidents.

Two expert witnesses testified for the defendant. Dr. Frank Cushing, a clinical psychologist, diagnosed defendant’s mental condition as “a paranoid schizophrenic break *** and also suffers from a borderline personality disorder.” Dr. Cushing described a borderline personality disorder as falling in between neuroses (mild disorders) and psychoses (major disorders) and claimed it was “the gateway to insanity.” It was the doctor’s opinion that defendant’s pattern of “intense emotional ups and downs,” coupled with a history of unstable relationships, was characteristic of a person suffering from a borderline personality disorder. Dr. Cushing later described the characteristics associated with schizophrenia as a loss of touch with reality and delusions, hallucinations, and perception disorders.

It was the opinion of Dr. Cushing that defendant suffered from schizophrenia and borderline personality disorder on September 3, 1986. The doctor stated that this condition would prevent defendant from having the capacity to appreciate the criminality of his conduct. Dr. Cushing also stated that there was no evidence during any of the interviews that defendant was faking mental illness. In fact, defendant would often fight the notion that there was anything wrong with him.

Dr. Cushing interviewed defendant several times, including once when defendant was under the influence of a sodium amytal injection. Dr. Cushing stated that sodium amytal (a barbiturate) is used to slow down a patient’s defense system to allow for more spontaneous responses to questions. After receiving the injection, defendant did not try to protect the fact that there may have been something mentally wrong with him. Defendant told Dr. Cushing that he wanted to kill Mrs. Shattuck to gain possession of her car, but he did not actually take the car because he did not want to steal it. Defendant also stated that he killed Mrs. Shattuck because she was fat and “little people” told him to do it. He also expressed an extreme hostility towards his father, claiming that he killed Mrs. Shattuck because he wanted his father to suffer in knowing that his son was a murderer. He also talked about strong urges towards killing his father.

On cross-examination, Dr. Cushing testified that defendant may have known the gravity of the act he had committed when he changed his clothes and disposed of the murder weapon shortly after he committed the crime. He also agreed that defendant may have tried to “cover himself” when he visited the victim’s stepdaughter at work shortly after the murder was committed. It was also Dr. Cushing’s opinion that defendant was trying to cover for something he knew was wrong when he was “shocked and surprised” when he found out that Mrs. Shattuck had been murdered.

Dr. Anthony D’Souza, a psychiatrist, also testified as to defendant’s mental state at the time of the offense. It was Dr. D’Souza’s opinion that defendant was suffering from a paranoid schizophrenia condition along with having a dissociative disorder. The doctor described a dissociative disorder as a condition in which certain aspects of a person’s mental functioning are removed from the rest of the person’s mental functioning. It was Dr. D’Souza’s opinion that defendant had an irresistible urge to kill someone, although he did not know whom he actually wanted to kill. The doctor noted that certain aspects of defendant’s mind disintegrated from the rest of his mind, as a result of extreme stress or anger, such that defendant did not know he was stabbing the victim. It was only after defendant finished stabbing the victim that he knew he had done something wrong.

Dr. D’Souza also noted that defendant had experienced auditory hallucinations at the time of the homicide. It was his opinion that the motive for the crime was defendant’s intense anger with his father. He further added that defendant did not know right from wrong and that based on all of the patients he had seen, defendant was “one of the most severely schizophrenic people I have ever seen.”

On cross-examination, Dr. D’Souza acknowledged that persons in a psychotic state can know right from wrong. He indicated that the probability that defendant could do so was “extremely low.” He also stated that the fact that defendant brought a change of clothing with him to the crime may be indicative that defendant knew what he was doing was wrong.

The State also presented two expert witnesses to testify as to defendant’s mental condition at the time of the offense. Dr. Lawrence Berley, a psychiatrist, testified that defendant did not suffer from schizophrenia. Instead, it was the doctor’s opinion that defendant suffered from narcissistic and compulsive identity disorder, conduct disorder, malingering, factitious disorder, and post-traumatic stress disorder. Dr. Berley noted that these five personality disorders would impair defendant’s judgment at the time he committed the crime. However, he stated that defendant could appreciate the criminality of his conduct and did possess the capacity to conform his conduct to the law at the time of the offense.

Dr. Berley testified, on cross-examination, that defendant told him that Mrs. Shattuck resembled defendant’s father in terms of her gestures and laughter. Defendant also told him that he picked Mrs. Shat-tuck because she was more vulnerable than was his father. It was Dr. Berley’s opinion that defendant had an eventual goal of killing his father in mind. The doctor noted that defendant’s motive for the killing appeared to be a displaced revenge for his father’s abusive humiliation of him.

The State’s other expert witness, Dr. Donald Pearson, a clinical psychologist, testified that he found no evidence that defendant was suffering from schizophrenia. He further stated that defendant was not suffering from any mental disease or defect at the time of the homicide. It was his opinion that defendant had the capacity to understand the criminality of his conduct and also the ability to conform his conduct to the requirements of the law.

On cross-examination, Dr. Pearson testified that it was his assumption that defendant’s conduct was sufficiently outrageous as to suggest some type of chemical involvement. Specifically, the doctor believed that blood and urine tests would discover the presence of some mind-altering substance, possibly PGP (Phencyclidine). However, no blood or urine tests were administered to defendant after he was arrested for the crime. It was Dr. Pearson’s opinion that something had to cause defendant’s unexplainable conduct.

Following the final arguments of the parties, the trial court determined that defendant failed to meet his burden on the insanity issue and found defendant guilty but mentally ill of murder. The court concluded that defendant was not legally insane at the time of the commission of the offense.

Defendant first contends that his conviction should be reversed because he was tried under an unconstitutional legal standard. Defendant argues that the State has the burden of proving the defendant’s capacity to formulate the mens rea necessary to commit the offense. Thus, defendant concludes that to require defendant to prove his insanity by a preponderance of the evidence is a violation of the fifth and fourteenth amendments to our constitution. Defendant concedes that this argument was not raised in the court below, but requests us to consider it on appeal under the plain error doctrine.

It is well established that to preserve an error for review a defendant must object to the error at trial and raise it with specificity in a post-trial motion for a new trial. (People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362; People v. Greene (1987), 160 Ill. App. 3d 1089, 1094, 513 N.E.2d 1092.) The failure to do so constitutes a waiver of that issue, and it cannot be utilized as a ground for reversal on appeal. People v. Johnson (1987), 119 Ill. 2d 119, 131, 518 N.E.2d 100.

There is, however, an exception to the general rule of waiver when there has been “plain error.” Supreme Court Rule 615(a) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (107 Ill. 2d R. 615(a).) This rule is not a general savings clause preserving all errors affecting substantial rights. (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) Instead, it must be plainly apparent from a review of the record that the alleged error affected substantial rights of the defendant. Precup, 73 Ill. 2d at 17.

Several recent decisions have considered the constitutionality of section 6 — 2(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e)). In People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808, we specifically held this section to be constitutional. In addition, both the Appellate Court for the First District (People v. Martin (1988), 166 Ill. App. 3d 428, 519 N.E.2d 1085) and the Fifth District (People v. Hightower (1988), 172 Ill. App. 3d 678, 526 N.E.2d 1129) have held the statute to be constitutional. Thus, no substantial rights are being affected which may require application of the rule, and we therefore decline to apply the rule.

Defendant next contends that he met his burden of proving insanity by a preponderance of the evidence. He claims that the trial court’s ruling that defendant was sane at the time of the offense was against the manifest weight of the evidence. Defendant concedes that the question of sanity is one of fact, and the decision of the trier of fact will not be reversed unless the decision is so improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s sanity. People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1090, 509 N.E.2d 1361; People v. Snowden (1986), 147 Ill. App. 3d 763, 770, 498 N.E.2d 612.

Defendant contends that the trial court could not have believed the State’s expert witnesses because the testimony was “internally contradictory, conclusory, and tentative” such that the testimony was not credible. Defendant cites People v. Palmer (1985), 139 Ill. App. 3d 966, 487 N.E.2d 1154, for the proposition that a witness must be credible before rendering an opinion as to sanity. In Palmer, the defendant was found guilty but mentally ill of committing murder. All defense witnesses, both lay and experts, agreed that defendant possessed a severe mental illness. The treating physicians believed he was suffering from schizophrenia and that he could not conform his conduct to the requirements of the law at the time of the offense. The State’s only expert based his opinion on defendant’s drug use, but added that schizophrenia would produce similar symptoms. The appellate court reversed defendant’s conviction, holding that there was a reasonable doubt as to defendant’s sanity at the time of the offense. (Palmer, 139 Ill. App. 3d at 974.) The court noted that there was no real evidentiary conflict for the trier of fact to resolve, especially considering that the State’s expert witness agreed that the defendant was “grossly psychotic” at the time of the offense. (139 Ill. App. 3d at 973.) Defendant contends that his conviction should also be overturned because, like Palmer, there was no real evidentiary conflict for the trier of fact to resolve.

We find the facts and expert opinions in this, case to be very different from those present in Palmer. In Palmer, the defendant had a long history of mental illness and in fact had been previously hospitalized and diagnosed as suffering from schizophrenia. (139 Ill. App. 3d at 968-70.) There was no evidence that the Palmer defendant planned the crime or attempted to conceal the crime from the police. (139 Ill. App. 3d at 967.) In addition, the State’s witness was not credible, and all lay witnesses corroborated the defendant’s experts as to defendant’s insanity. 139 Ill. App. 3d at 973.

Here, unlike Palmer, there was no evidence of any prior mental illness of defendant Bouchard. All of defendant’s teachers, fellow students, and neighbors who testified at trial stated that he was like any other “normal” teenager. Outside of the fact that defendant was known to frequently exaggerate, none of the witnesses had anything negative to say about defendant’s mental stability.

In addition, we find support in the record to substantiate the State’s contention that defendant had planned the offense and had attempted to conceal evidence of the crime from the police. On the day before the killing, defendant told two classmates that he was going to kill someone to get a car. He even asked a fellow student to assist him in killing someone by requesting the student hold the victim down so defendant could stab the person with a knife or an axe. This request was refused. Furthermore, defendant asked another student what the best method is for killing someone. The evidence clearly warrants the conclusion that defendant had known, at least for one day, that he was going to kill someone.

There is also evidence to suggest that defendant attempted to conceal his involvement in the crime from the police. Defendant spoke with the victim’s stepdaughter, Tracy Shattuck, about one-half hour after the homicide. He told her that he had been over to her house but that there was no one home. He told the police the same story, apparently in an effort to provide an excuse for himself if anyone had happened to see him at the house. Defendant also tried to hide the murder weapon and his bloodstained clothing in a garbage can a short distance from the Shattuck home. Defendant immediately took a shower when he returned home after committing the crime, apparently to wash the blood from his body.

The existence of a plan for a crime, and methods to prevent detection, are relevant factors in determining a defendant’s sanity. (People v. Skorka (1986), 147 Ill. App. 3d 976, 982, 498 N.E.2d 607; People v. Teague (1982), 108 Ill. App. 3d 891, 903, 439 N.E.2d 1066, cert. denied (1983), 464 U.S. 867, 78 L. Ed. 2d 179, 104 S. Ct. 206.) In Skorka, the court held that the fact that defendant attempted to hide the murder weapon was an indication that he was attempting to avoid punishment for the crime. He was thus aware of the wrongfulness of the act such that he was not insane at the time of the commission of the crime. (Skorka, 147 Ill. App. 3d at 982.) The defendant in Teague also tried to conceal a weapon after committing two armed robberies. The court reasoned that defendant’s attempt to avoid detection was indicative that defendant knew what he had done was wrong. Thus, the court concluded that the totality of the evidence presented supported the finding that defendant was sane at the time of the offense. (Teague, 108 Ill. App. 3d at 904.) We also find the evidence of a plan and an attempt to conceal evidence of the crime as supporting the trial court’s determination that Paul Bouchard was sane at the time of the offense.

In addition, we find defendant’s contention that the State’s witnesses were not credible to be unpersuasive. Defendant correctly points out that the expert testimony was conflicting in this case. Each of defendant’s experts testified that defendant was suffering from schizophrenia or a similar mental disease at the time of the offense such that he could not appreciate the criminality of his conduct. Each of the State’s experts testified that defendant was sane at the time of the offense. It is within the sound discretion of the trial court to resolve all contradictions in the expert testimony presented to it. Martin, 166 Ill. App. 3d at 435; Eckhardt, 156 Ill. App. 3d at 1095.

The record indicates that both of the State’s experts performed various psychological tests on defendant, none of which indicated defendant was suffering from schizophrenia. Dr. Pearson determined that defendant was sane at the time of the offense, although he deferred making a diagnosis because defendant refused to answer certain questions during the interview. Defendant contends that Dr. Pearson’s failure to come to a diagnosis is a result of an incomplete assessment of defendant’s mental stability. Defendant also asserts that Dr. Pearson’s conclusion that drugs or alcohol may have contributed to defendant’s outrageous conduct renders Dr. Pearson’s testimony invalid because there was no evidence to suggest defendant ever used any drugs. We agree that the record clearly indicates defendant was not known to use any type of illegal drug or alcohol at any time in his life. However, we are not willing to conclude that because Dr. Pearson suggested the possibility of chemical involvement, his entire opinion regarding defendant’s sanity is unreliable.

The trier of fact is allowed to accept a part of any expert’s testimony and reject other parts of the testimony. (Eckhardt, 156 Ill. App. 3d at 1096; People v. Grice (1984), 121 Ill. App. 3d 567, 569, 459 N.E.2d 1122.) The trial judge could very easily have discounted any of Dr. Pearson’s opinions regarding the possibility of chemical involvement, while at the same time finding the doctor’s opinions concerning the interpretation of the psychological test data to be persuasive. We do not find Dr. Pearson’s testimony to be incomplete, as defendant suggests, and find ample support in the record to support his opinion that defendant was sane when he committed the homicide.

In addition, the State presented numerous lay witnesses to testify as to defendant’s mental condition. Lay opinions are admissible on the issue of defendant’s sanity at the time of the offense if they are based on observations made shortly before or after the crime was committed. (People v. Gindorf (1987), 159 Ill. App. 3d 647, 660, 512 N.E. 2d 770, cert. denied (1988), 486 U.S. 1011, 100 L. Ed. 2d 206, 108 S. Ct. 1743; People v. Chatman (1986), 145 Ill. App. 3d 648, 659, 495 N.E.2d 1067.) The testimony of numerous students who went to high school with defendant indicated that there was nothing unusual about his manner of speech or appearance on both the day of the crime and the previous day. We find such lay testimony to be based on personal observations close enough in time to the offense to be admissible in this case. Furthermore, the lay witness testimony supports the State’s expert opinions that defendant was sane at the time of the crime.

In deciding questions of sanity, the trier of fact may accept one expert’s opinion over another. (Chatman, 145 Ill. App. 3d at 659; People v. Schwartz (1985), 135 Ill. App. 3d 629, 642, 482 N.E.2d 104.) In addition, the fact finder may reject all expert testimony and rely solely on lay testimony to conclude defendant was sane. (Palmer, 139 Ill. App. 3d at 974.) Here, the trier of fact was presented with a conflict of the evidence as to whether defendant was sane. The court resolved this conflict in favor of finding defendant sane at the time of the offense. This decision is amply supported by the testimony of two expert witnesses and a number of lay witnesses. We find the record supports the decision of the trial court that defendant did not meet his burden of proving insanity by a preponderance of the evidence.

For the reasons stated above, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

LINDBERG and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY JONES, Defendant-Appellant.
    Second District
    No. 2—88—0090
    Opinion filed March 8, 1989.
    Rehearing denied April 7, 1989.
    Kenneth N. Flaxman and Elizabeth Dale, both of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Gregory Jones, appeals from a judgment of the circuit court of Lake County dismissing his post-conviction petition. On appeal, defendant contends that the trial court’s order of dismissal is void because it was entered more than 30 days after the petition was filed. For the reasons set forth below, we vacate the judgment and remand the cause for further proceedings.

In July 1977, defendant was found guilty of robbery, rape and murder after a jury trial in the circuit court of Lake County. On September 27, 1977, judgment was entered, and defendant was sentenced on all three counts. This court affirmed defendant’s conviction on direct appeal. People v. Jones (1980), 81 Ill. App. 3d 1201 (unpublished Rule 23 order).

On September 9, 1987, defendant filed a pro se post-conviction petition alleging that his conviction should be overturned due to the ineffective assistance of counsel. A second petition was filed on defendant’s behalf by retained counsel on September 14, 1987. This petition basically restated the allegations made in the pro se petition. On December 10, 1987, the public defender was appointed to represent defendant, and the case was set for status on December 30. At the status hearing, the court dismissed the petition, finding that it was frivolous and that the issue was waived because it was not raised on direct appeal. This appeal ensued.

The sole issue raised on appeal is whether the trial court’s dismissal order is void because it was not entered within 30 days of the filing of the post-conviction petition. Section 122 — 2.1 of the Code of Criminal Procedure of 1963 states that within 30 days after a post-conviction petition is filed, the court shall enter an order either dismissing the petition as frivolous or setting the matter for consideration. (Ill. Rev. Stat. 1987, ch. 38, par. 122—2.1.) In People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, the Illinois Supreme Court ruled that the 30-day rule of section 122 — 2.1 was mandatory and noncompliance with the rule rendered a later order of dismissal void. Porter, 122 Ill. 2d at 84-87, 521 N.E.2d at 1166-67.

The State argues that even though the trial court’s dismissal of the petition took place more than 30 days after the petition was filed, Porter does not apply because the court ordered counsel to be appointed and an amended petition was filed before dismissal occurred. This argument exhibits both a misunderstanding of Porter and a mis-eharacterization of the facts of the present case.

Only two petitions were filed in the present case, and both petitions were filed more than two months before the trial court appointed the public defender. Porter and section 122 — 2.1 are very clear in their requirements. Within 30 days after the filing of a petition the court must either enter an order dismissing the petition or order the petition to be set for further consideration. Some order must be entered within that 30-day period. If no order is entered, then Porter requires that any later dismissal must be vacated and the petition must be set for further consideration in accordance with sections 122 — 4 through 122 — 6. (Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 4 through 122 — 6.) Since no order was entered within the 30-day period, the order of dismissal was improper and must be vacated. Furthermore, the record does not reflect that the court docketed and further considered the matter in accordance with sections 122 — 4 through 122 — 6 pursuant to section 122 — 2.1(b) as it was required to do under Porter. 122 Ill. 2d at 86.

The judgment of the circuit court of Lake County is vacated, and the cause is remanded for further proceedings consistent with this order.

Vacated and remanded.

DUNN and LINDBERG, JJ., concur.


text:
    LOWE EXCAVATING COMPANY, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL NO. 150 et al., Defendants-Appellees.
    Second District
    No. 2—88—1005
    Opinion filed March 3, 1989.

      David W. McArdle, of Zukowski, Rogers & Flood, of Crystal Lake, and Abramson & Fox, of Chicago (Gerard C. Smetana, of counsel), for appellant.
    Louis E. Sigman, of Baum & Sigman, Ltd., of Chicago, and Harold C. McKenney, of Holmstrom & Green, of Crystal Lake (Dale D. Pierson and R. Mark Gummerson, of counsel), for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff appeals from the interlocutory order entered by the circuit court of McHenry County on October 11, 1988. This order denied plaintiff’s request for a preliminary injunction due to a finding of Federal preemption of the issues. The trial court held that plaintiff’s request for a preliminary injunction enjoining defendants from picketing with placards relating to area standards, when such placards allegedly contained statements which were knowingly false or made in reckless disregard for the truth, must be denied as this area is preempted by Federal law. We reverse.

Plaintiff, Lowe Excavating Company (Lowe), is an Illinois corporation engaged in excavating and site preparation. Plaintiff entered into a contract with FAMCO Corporation, a general contractor, agreeing to provide labor and services for a Federal housing project known as Canterbury Place. During the fall of 1987, the defendant, International Union of Operating Engineers Local No. 150 (union), attempted to persuade plaintiff to recognize the union for collective bargaining purposes. This attempt failed. On February 15, 1988, plaintiff received a mailgram from the codefendant and business agent for the union, Robert Darling. The mailgram stated that after a careful investigation of plaintiff’s policies regarding payment to employees, the union determined that plaintiff was not meeting the area standards on this project. On February 15, 1988, defendant also began picketing the Canterbury Place jobsite carrying placards that stated:

“NOTICE TO THE PUBLIC

LOWE EXCAVATING DOES NOT PAY THE PREVAILING WAGES AND ECONOMIC BENEFITS FOR OPERATING ENGINEERS WHICH ARE STANDARD IN THIS AREA

OUR DISPUTE CONCERNS ONLY SUBSTANDARD WAGES AND BENEFITS PAID BY THIS COMPANY

LOCAL 150 International Union of Operating Engineers, AFL-CIO”

As a result of the picketing, FAMCO ordered Lowe off the jobsite on February 17, 1988. The defendant ceased picketing at that time.

On March 22, 1988, Lowe employees elected the Congress of Industrial Unions (CIU) as its representative for collective bargaining purposes. The National Labor Relations Board certified CIU as agent, and Lowe and CIU signed a collective bargaining agreement on August 15, 1988. This agreement was made retroactive to April 15, 1988, and provided that Lowe would pay wages equal to or higher than others in the area.

On September 27, 1988, plaintiff received a telegram from defendant reiterating the claims made in the mailgram of February 15. This telegram was limited to a jobsite in Crystal Lake, Illinois, at which the plaintiff was performing excavation and site preparation services. On September 28, 1988, defendant began picketing the Crystal Lake site and also resumed picketing at the Canterbury Place jobsite. The placards displayed by the defendant contained the identical language that appeared during the February picket. As a result of the picketing, Lowe was ordered off the Crystal Lake jobsite.

Plaintiff initially filed a complaint on February 17, 1988, seeking a temporary restraining order, a preliminary injunction, and a permanent injunction enjoining the defendant from engaging in allegedly false picketing at a jobsite where plaintiff was working. Plaintiff also sought damages for tortious interference with prospective economic advantage. On February 18, 1988, defendant filed a petition for removal to Federal district court claiming that plaintiff’s complaint seeks redress for an unfair labor practice and therefore exclusive jurisdiction rests with the Federal court. On June 10, 1988, defendant’s petition was denied and the case remanded to State court. The Federal court stated that plaintiff’s complaint did not on its face contain a Federal claim and therefore the court was without subject matter jurisdiction. This order was not appealed.

Plaintiff filed an amended complaint on July 22 and a second amended complaint on August 4, 1988. Plaintiff’s second amended complaint included counts for libel and slander in addition to tortious interference and requested injunctive relief. Defendant filed a motion to dismiss pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure stating that the court had no subject matter jurisdiction. (111. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(1).) The lower court granted defendant’s motion to dismiss and gave plaintiff leave to amend its complaint.

Plaintiff filed its third amended complaint alleging tortious interference with contractual relations, tortious interference with prospective economic advantage, trade libel and negligent interference with contract. Plaintiff sought both injunctive relief and damages. Defendant again filed a motion to dismiss pursuant to section 2 — 619(a)(1) stating plaintiff’s claims were barred due to the court’s lack of jurisdiction. Plaintiff also filed a motion for a temporary restraining order and a preliminary injunction. Plaintiff sought to enjoin the defendant from carrying placards that stated plaintiff did not pay wages consistent with the standards in the area. Plaintiff also sought to enjoin the defendant from communicating to others that Lowe is nonunion. Plaintiff alleged that defendant knew these statements were false. On October 11, 1988, the trial court entered an order denying defendant’s motion to dismiss. The court also granted plaintiff’s motion for a temporary restraining order in part. The court entered a temporary restraining order prohibiting defendant from disseminating the claim that Lowe was nonunion. However, the court denied plaintiff’s request to enjoin defendants from picketing with placards referring to area standards on the basis of Federal preemption. Plaintiff appeals this portion of the court’s order.

The sole issue on appeal is whether the National Labor Relations Act (NLRA) deprives a State court of jurisdiction to enjoin a union from picketing with placards that contain knowingly false statements, or statements made in reckless disregard for the truth.

Plaintiff’s contention is that the trial court erred in denying its request for a preliminary injunction due to Federal preemption. Generally, the elements which a trial court should consider in deciding whether to issue a preliminary injunction are: (1) the possibility of irreparable harm to the plaintiff’s legal rights pending the outcome of trial if the preliminary injunction does not issue; (2) the potential irreparable harm to the defendant’s rights if it does; and (3) the plaintiff’s likelihood of success on the merits. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 510.) On appeal from the grant or denial of a preliminary injunction an appellate court is to consider whether the circuit court abused its sound discretion in evaluating these considerations and granting or denying the preliminary injunction. Chicago Health Clubs, Inc. v. Picur (1988), 124 Ill. 2d 1, 7-8.

The issue before this court, however, does not rest on whether the trial court abused its discretion in denying plaintiff’s request for an injunction. The trial court found that it was preempted from exercising its discretion and therefore did not analyze the elements set forth above. This court is to determine if this refusal to exercise discretion was proper.

Initially, we note that the issue of preemption was not decided by the Federal district court. Defendant filed a petition for removal on February 18, 1988, claiming that plaintiffs complaint sought redress for an unfair labor practice and therefore jurisdiction rested with the Federal court. Defendant’s petition was denied and the case remanded back to the circuit court. The Federal court concluded that plaintiff’s complaint did not on its face state a cause of action under Federal law and therefore the court lacked subject matter jurisdiction. The court did not consider the question of preemption.

There are two types of Federal preemption over State torts regarding employee/employer or labor relationships. The first type of preemption that pertains to this area is Federal common-law preemption under section 301 of the Labor Management Relations Act (Act) (29 U.S.C. § 185(a) (1982)). Section 301 provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce *** may be brought in any district court of the United States having jurisdiction of the parties ***.” (29 U.S.C. § 185(a) (1982).)

Federal labor law preempts State tort actions which are “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract.” (Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 220, 85 L. Ed. 2d 206, 221, 105 S. Ct. 1904, 1916.) The key inquiry is “whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” 471 U.S. at 213, 85 L. Ed. 2d at 216, 105 S. Ct. at 1912.

The case at bar cannot be preempted by section 301 of the Act because there is no labor contract to interpret in this case. The State tort claims in this case are not “substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract.” Therefore, evaluation of the tort claim cannot be intertwined with the terms of a labor contract. The only contract in force is the one between Lowe and UIC. That contract is not at issue here. This case is not preempted by Federal case law.

The second type of Federal preemption requires preemption whenever the conduct complained of is “arguably subject” to the jurisdiction of the National Labor Relations Board (NLRB). (See San Diego Building Trades Council, Millmen’s Union, Local 2020 v. Garmon (1959), 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773.) However, even if the claim involves State torts that are “arguably subject” to the jurisdiction of the NLRB, the court in Garmon noted an exception to preemption when the State’s interests outweigh any peripheral Federal concern or “where the regulated conduct touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” Gar-mon, 359 U.S. at 244, 3 L. Ed. 2d at 782, 79 S. Ct. at 779, citing International Union, United Automobile, Aircraft & Agricultural Implement Workers of America v. Russell (1958), 356 U.S. 634, 2 L. Ed. 2d 1030, 78 S. Ct. 932.

Defendant argues that area standards picketing is protected under section 7 of the NLRA. The union also cites authority for the proposition that the area standards protest does not lose protection simply because the employer presents evidence that establishes its labor costs met or exceeded the standard. Since the activity in question is “arguably protected” by the NLRA, defendant, citing Garmon, contends that preemption must apply. This court agrees with defendant and finds this activity is “arguably” protected. However, determining that the activity is arguably protected or prohibited by the NLRA does not dispose of the issue. We must then look to the exception to preemption set forth by the Supreme Court in Garmon.

The exception to preemption, as set forth in Garmon, is essentially a balancing of interests. On the one hand we have the Federal interest in establishing a uniform set of rules dealing with labor disputes. On the other hand, we have the interests of the State in protecting its citizens from conduct that it deems harmful or inappropriate. When balancing the competing interests, we look at the risk of State interference with the national labor policy if the State is allowed to adjudicate the matter in controversy. (See Vaca v. Sipes (1967), 386 U.S. 171, 180, 17 L. Ed. 2d 842, 852, 87 S. Ct. 903, 911; Fisher v. Illinois Office Supply Co. (1984), 130 Ill. App. 3d 996, 1000.) If the risk of interference is minimal and the activity in question is only a peripheral concern of the Act, the matter is not preempted, and the State may proceed. Garmon, 359 U.S. at 243-44, 3 L. Ed. 2d at 782, 79 S. Ct. at 778-79.

The United States Supreme Court discussed the Federal interests and stated:

“We have necessarily been concerned with the potential conflict of two law-enforcing authorities, with the disharmonies inherent in two systems, one federal the other state, of inconsistent standards of substantive law and differing remedial schemes.” (Garmon, 359 U.S. at 242, 3 L. Ed. 2d at 781, 79 S. Ct. at 778.)

Several separate and distinct tribunals with a diversity of procedures are as sure to produce inconsistent decisions as are different substantive rules of law. (Garmon, 359 U.S. at 243, 3 L. Ed. 2d at 782, 79 S. Ct. at 778, citing Garner v. Teamsters, Chauffeurs & Helpers Local Union No. 776 (1953), 346 U.S. 485, 490-91, 98 L. Ed. 228, 239-40, 74 S. Ct. 161, 165-66.) The State’s interest in this matter is to protect its citizens from malicious defamation by others and to redress any injury that may have been caused by this conduct. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 341, 41 L. Ed. 2d 789, 806, 94 S. Ct. 2997, 3008.

This exception to preemption was also discussed in the case of Linn v. United Plant Guard Workers of America, Local 114 (1966), 383 U.S. 53, 15 L. Ed. 2d 582, 86 S. Ct. 657. In Linn, the plaintiff was an officer of an employer. The defendant was a union that sought to unionize the employer. Plaintiff filed a complaint alleging that the union published several defamatory remarks during a union organizing campaign. These remarks included statements that plaintiff was “lying” to company employees and had “robbed” them of pay increases. The court stated that while there is considerable leeway with regard to defamatory statements made during labor disputes, even the NLRB does not allow a party to intentionally injure another by publishing defamatory material known to be false. (Linn, 383 U.S. at 61, 15 L. Ed. 2d at 589, 86 S. Ct. at 662.) The court found that the State’s interest outweighed the Federal concerns and stated that “a State’s concern with redressing malicious libel is ‘so deeply rooted in local feeling and responsibility’ that it fits within the exception specifically carved out by Garmon” (Linn, 383 U.S. at 62, 15 L. Ed. 2d at 589, 86 S. Ct. at 663), and, therefore, the claim was not preempted.

Defendant argues that Linn is distinguishable on the basis of the untruths that were published. Defendant alleges that Linn involves statements about “lying” and “robbing,” “the stuff of which libel claims are traditionally made.” Defendant asserts that since the case at bar deals with untruths involving area standards, the Linn rationale does not apply. This court finds no authority to support the proposition that the specific content of the untruth is relevant to the Linn analysis.

In Fisher v. Illinois Office Supply Co. (1984), 130 Ill. App. 3d 996, the plaintiff alleged that a letter from the employer’s agent to the union was defamatory in nature. The court noted that the NLRB would only be peripherally concerned with this type of injury. (130 Ill. App. 3d at 1001.) The State court would be concerned with, in ter alia, the nature and extent of the injured plaintiff’s reputation, the defendant’s mental state as it pertains to the possible award of punitive damages and mental pain and suffering. (130 Ill. App. 3d at 1001.) The court did recognize that adjudicating the truth or falsity of the communication may cause some overlap with Federal policy favoring resolution of these matters in arbitration. (130 Ill. App. 3d at 1001.) However, the court held that the matter was not preempted and stated that “the protection of an individual’s interest in his reputation is a deep and traditional concern of the State of Illinois.” (130 Ill. App. 3d at 1001.) In conclusion, the court stated that “the preemption doctrine should not be used as a shield to protect malicious falsehoods where the State has an overriding interest in protecting its citizens from the damage which these falsehoods inevitably cause.” 130 Ill. App. 3d at 1001.

The Illinois Supreme Court has also held that an action in State court for defamation is not preempted by the jurisdiction of the NLRB. (See Krasinski v. United Parcel Service, Inc. (1988), 124 Ill. 2d 483.) In Krasinski, the plaintiff filed suit alleging wrongful discharge and defamation based on statements indicating he had stolen some equipment. (124 Ill. 2d at 486.) The trial court, asserting Federal preemption, dismissed plaintiff’s defamation claim and plaintiff appealed. (124 Ill. 2d at 488.) Defendant argued that plaintiff’s claims arose out of unfair labor practices and were, therefore, preempted by the exclusive jurisdiction of the NLRB. (124 Ill. 2d at 492-93.) The supreme court indicated that simply because “this claim could arguably be characterized as an unfair labor practice does not require preemption in order to protect the exclusive jurisdiction of the NLRB.” (124 Ill. 2d at 493.) The court concluded by discussing the applicability of Linn and holding that a State claim for malicious publication of libelous statements during a labor dispute is not preempted by the exclusive jurisdiction of the NLRB. 124 Ill. 2d at 495.

The case at bar fits into the exceptions carved out by the Supreme Court in Garmon. The issues in deciding the merits of the case are of only peripheral concern to the NLRB. Defendant contends that the issue presented is whether Lowe was in fact paying area standards. To decide this would force the State court to interpret or enforce the NLRB’s area standards doctrine. Defendant states that enforcing the area standards doctrine is of primary importance to the NLRB and, therefore, the exception to preemption does not apply.

The underlying issue in this case is not whether plaintiff paid wages sufficient to meet area standards. The issue is whether defendant, with actual malice, published a statement with knowledge of its falsity, or in reckless disregard for the truth. While truth or falsity is an important element in the tort of trade libel, it is certainly not the only issue to be considered. The issues of injury to reputation and defendant’s mental state must also be considered. These issues are of only peripheral concern to the NLRB. The NLRB may be concerned with “area standards,” but this concern is outweighed by the State’s interest in protecting its citizens from malicious publication of defamatory material. This cause of action fits into the exception carved out by Garmon, and, therefore, the State court is not preempted by the exclusive jurisdiction of the NLRB.

Defendant next contends that the State of Illinois has in force an anti-injunction act that is applicable, and thus the State court cannot enjoin the union from peaceful picketing. (See Ill. Rev. Stat. 1987, ch. 48, par. 2a(l).) This act may or may not apply. That issue is not before this court at this time. The trial court did not reach the question of Illinois law applying to this case. The court ruled that it could not consider these substantive rules due to Federal preemption. Therefore, the question of whether or not the anti-injunction act applies in this case is not ripe for review.

In conclusion, we find that the cases of Linn and Krasinski are controlling in this matter. We hold that this case falls within the exception to preemption noted by the United States Supreme Court in Garmon and is also not preempted by Federal case law. Therefore, we remand this case to the circuit court of McHenry County to review the plaintiff’s motion for a preliminary injunction consistent with this opinion.

The judgment of the circuit court of McHenry County is reversed, and the cause is remanded.

Reversed and remanded.

LINDBERG and WOODWARD, JJ., concur.


author: JUSTICE INGLIS

text:
    MARIONJOY REHABILITATION HOSPITAL, Plaintiff, v. CEASAR J. LO et al., Defendants and Third-Party Plaintiffs-Appellants (Union Bankers Insurance Company, Third-Party Defendant-Appellee; Alex Mishulovich, Third-Party Defendant).
    Second District
    No. 2—88—0802
    Opinion filed March 3, 1989.

      Barry G. Bollinger and John D. Kuhn, both of Brinton & Bollinger, of Chicago, for appellants.
    John J. Mangan and Michael J. Wolfe, both of Rooks, Pitts & Poust, and Tribler & Marwedel, P.C., both of Chicago, and Frank E. Jeffers III, of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

This appeal arises from an order for summary judgment granted in favor of third-party defendant, Union Bankers Insurance Company (Union). Ceasar J. Lo and Cleotilde Lo, defendants and third-party plaintiffs, brought an action against Union seeking indemnification under a health insurance policy issued to Ceasar Lo. The trial court granted summary judgment in favor of Union, finding that Ceasar Lo had intentionally misrepresented material facts to Union in applying for insurance, thereby voiding any coverage obligation.

On appeal, the Los contend that (1) the trial court erred in granting summary judgment because there was an issue as to whether the Los acted to deceive Union, and (2) the trial court erred in granting summary judgment because Union is precluded from rescinding the insurance policy because it failed to comply with section 154 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 766). We affirm.

The insurance policy at issue was to cover Mr. Lo and the Los’ son, Ceasar J. Lo, Jr. At the time that the policy was obtained, the Los’ son was suffering from a condition known as hydrocephalus. As a result of this condition, surgery was performed in 1981, at which time a ventricular shunt was attached to his skull.

In November 1984, Mr. Lo was introduced to third-party defendant, Alex Mishulovich. Mishulovich was selling insurance policies on behalf of Union and other companies. During their November meeting, Lo provided Mishulovich with information about his son’s brain surgery and the insertion of the ventricular shunt.

Sometime after their meeting, Mishulovich forwarded to Lo an application for an insurance policy with the John Alden Life Insurance Company. Lo completed the application and in so doing disclosed his son’s condition relative to hydrocephalus and the fact that his son had a ventricular shunt placed in his skull. Lo mailed the application to Mishulovich and was subsequently informed that the application had been denied.

Sometime in February 1985, Lo received through the mail a medical insurance policy from Union which provided coverage for his son. The policy was mailed to Lo by his employer, Oak Tree Liquors. Attached to the policy was a copy of the application. Lo had never seen the application, and the application had not been filled out by either himself or his wife. A sworn affidavit of Maureen Casey Owens, a forensic document examiner, stated that the signatures of Ceasar J. Lo on the application form and the policy were not actually those of Ceasar J. Lo.

Upon receipt of the policy, Lo contacted Mishulovich by telephone. Mishulovich informed Lo that he, Mishulovich, had in fact prepared the entire application. Lo asked Mishulovich what happened to the application because it appeared that all the questions were answered in the negative when it was known that Lo’s son had had brain surgery. According to Lo, Mishulovich told Lo not to worry, that Mishulovich had prepared the application, and that Union was a very high risk insurance company.

At or near the same time he received the Union policy, Lo received a letter from the policy holders service department for Union. The letter requested that Lo examine a copy of the application attached to the policy to ensure that all of the information disclosed therein was correct. Specifically, the letter asked: “Do we have all the right information about past health for you and your family” (Emphasis in original.) Attached to the letter was a checklist asking whether various information on the application was correct. Lo signed and returned the checklist to Union, indicating that all the information in the application was correct. Lo stated that with Mishulovich’s assurance that there was nothing to worry about, he filed the insurance policy.

In April 1985, Lo’s son suffered an injury to his head when he tripped and fell while running up a flight of stairs. A CT scan showed that there was a large subdural hematoma on the left side of the brain. A left frontal temporal parietal craniotomy and evacuation of the acute subdural was performed. There was no evidence that the preexisting condition of hydrocephalus had an impact on the injury or the treatment of the injury.

A claim was made to Union for medical bills related to the injury. Union denied the claim by rescinding the policy.

Plaintiff, Marionjoy Rehabilitation Hospital, instituted suit against the Los seeking payment for treatment of the Los’ son: The Los then brought a third-party complaint against Union seeking reimbursement for medical costs incurred on behalf of the Los’ son. Union filed a motion for summary judgment on the basis that there were material misrepresentations made in the application for insurance which voided any obligation on the part of Union to provide insurance coverage for the Los’ son. The trial court granted this motion, and the Los timely appealed.

We note that in cases appealed to the appellate court, Supreme Court Rule 341(e)(4)(ii) requires that an appellant’s brief contain a statement of jurisdiction (122 Ill. 2d R. 341(e)(4)(ii)) and that the Los have not complied with the rule. While the fact that this rule has been effective only since August 1, 1988, may explain counsel’s oversight, it is no excuse, and compliance will be expected in the future. We further note that in the instant case, we have jurisdiction under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

The Los initially contend that the trial court improperly granted Union’s motion for summary judgment. The Los contend that there remained a genuine issue of material fact as to whether the application for insurance submitted to Union was the result of any intentional misrepresentation made by the Los. The Los contend that because Mishulovich was Union’s agent and because Mishulovich knew of the son’s preexisting condition, Union cannot rely on the falsity of the answers contained in the application to rescind the policy.

In response, Union contends that the misrepresentations contained in the application are grounds for rescinding the policy because the Los knew of the existence of such misrepresentations. Union contends that the Los adopted and ratified the application when Mr. Lo returned Union’s confirmatory letter stating that the application contained all the correct information and further contends that it is irrelevant when the misrepresentations occurred.

It has long been held in this State that when an applicant for insurance gives correct answers to the the insurer’s agent, and the agent fills in the application with incorrect answers to be signed by the applicant, the insurer will be estopped from denying its liability. (Guter v. Security Benefit Association (1929), 335 Ill. 174, 180; Germania Fire Insurance Co. v. McKee (1880), 94 Ill. 494, 500.) Moreover, the insurer cannot rely on incorrectly recorded answers even when the insured knows that the agent has entered answers different from the ones he gave where the incorrect answers are entered pursuant to the agent’s advice, suggestion, or interpretation. (Logan v. Allstate Life Insurance Co. (1974), 19 Ill. App. 3d 656, 660; see also Good v. National Life & Accident Insurance Co. (1976), 37 Ill. App. 3d 831, 834; Boyles v. Freeman (1974), 21 Ill. App. 3d 535, 539. But see Tesluk v. Metropolitan Life Insurance Co. (1970), 130 Ill. App. 2d 290, 295 (the general rule does not apply when the party is acquainted with the circumstances plainly indicating that the agent will not advise the principal).) The fact that there is a clause in the application that the insured has verified the answers and statements as true does not prevent the knowledge of the agent from being imputed to the insurer. (See Royal Neighbors of America v. Boman (1898), 177 Ill. 27, 31-32; see also Johnson v. Royal Neighbors of America (1912), 253 Ill. 570, 574.) However, where the applicant has acted in bad faith, either on his own or in collusion with the insurer’s agent, knowledge of the agent will not be imputed to the insurer. Logan, 19 Ill. App. at 661; see also Royal Neighbors of America, 177 Ill. at 32.

In the instant case, it was Union’s agent, Mishulovich, who filled out the application while knowing the true medical history of the Los’ son. If the tale ended here, we would find that Union could not rely on the misrepresentations contained in the application. (See Logan, 19 Ill. App. 3d at 660.) The tale does not, however, end at this point. Mr. Lo received a letter from Union requesting that he look over the application to make sure that the information that it contained was correct. Lo sent back to Union a form which indicated that the information on the application was indeed correct. We find this to be an affirmative action on the part of Lo independent of the agent which shows bad faith.

While it may be argued that in answering the letter as he did Mr. Lo was only continuing to follow the advice of Mishulovich, we believe that this argument asks too much. The rule which transfers the knowledge of the agent to the insurer was adopted in part because it was thought that an applicant would assume that the agent knew what information the insurer desired and how it should be expressed. (See Royal Neighbors, 177 Ill. at 32.) We find, however, that in a case such as the one now before us, the reason for the rule does not apply. First, the letter that was sent to the Los was a communication independent from the agent. The communication at least in part is an attempt by the insurer to avoid any problems that might arise due to unscrupulous agents and as such should be encouraged. Second, whereas the average applicant may be under the impression that the agent better knows what information the insurer desires, it is evident that such was not the fact in the case at bar. The Los knew the severity of their son’s condition and had, on several other occasions, been turned down for insurance. The Los thus knew that their son’s health was a material fact which an insurer would want disclosed. We therefore find that even had they been following the advice of the agent, they were not justified in doing so, and Mr. Lo’s answers in response to Union’s inquiry thus showed bad faith. Under such circumstances, to allow a false representation to be continued by an insured with impunity would be to extend the theory of imputed knowledge to an extent which we are unwilling to do.

The Los also contend that the rescission of insurance was in violation of section 154 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 766) because the rescission was not based on a document attached to the policy but rather to the letter which confirmed the application. In response, Union contends that the rescission was based on the application which was attached to the policy. Union also contends that this was proper because the Los, by way of Mr. Lo’s response to Union, ratified the application as being true.

Section 154 of the Illinois Insurance Code provides:

“No misrepresentation or false warranty made by the insured or in his behalf in the negotiation for a policy of insurance, or breach of a condition of such policy shall defeat or avoid the policy or prevent its attaching unless such misrepresentation, false warranty or condition shall have been stated in the policy or endorsement or rider attached thereto, or in the written application therefor, of which a copy is attached to or endorsed on the policy, and made a part thereof. No such misrepresentation or false warranty shall defeat or avoid the policy unless it shall have been made with actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” Ill. Rev. Stat. 1985, ch. 73, par. 766.

In Inter-Insurance Exchange of the Chicago Motor Club v. Milwaukee Mutual Insurance Co. (1978), 61 Ill. App. 3d 928, 931-32, the court defined the purpose of section 154 as follows:

“The primary purpose of requiring the application to be attached to the insurance policy is to allow for objective evidence of negotiations at the time of application for the protection of the insured from possible frauds by insurance agents in falsifying the answers given by the insured in applying for the insurance. In such a case if the application is not attached to the policy, so that the insured can examine it carefully, he labors under the mistaken impression that he is protected by the insurance policy issued to him when, in fact, he may not have any coverage.”

We find that there was no violation of section 154 in Union’s rescission of the insurance policy. Union based its rescission on the application which was attached to the policy. We find that although the application was not filled out by the Los, it can be said to have been filled out on their behalf and that rescission could therefore be based on misrepresentations made in the application. We make this finding because Mr. Lo returned the letter to Union in which it was stated that all information on the application was correct. We also find that, by filing a claim, the Los sought to benefit from both the policy and the application for the policy. We find that this is sufficient to conclude that the misrepresentations were made on the Los’ behalf for purposes of section 154.

Finally, we note that our conclusion is not inconsistent with the purpose of section 154. Because the application was attached to the policy, the Los were aware of the terms under which the policy was issued. We find that in knowing that the answers in the application were false, and in light of their knowledge regarding the material nature of such answers, the Los could not have reasonably believed that their son was covered by the policy.

For the foregoing reasons we affirm the decision of the trial court.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.