author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS KLUXDAL, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 89—0421
    Opinion filed December 31, 1991.

      Law Offices of Terry Sullivan, Ltd., of Rolling Meadows (Terry Sullivan and Nancy J. Nicol, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant, Thomas Kluxdal, was convicted of murdering his wife, Beth Kluxdal (Beth), and his mother-in-law, Muriel Dawson (Muriel). (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a).) Defendant was sentenced to natural life in custody of the Department of Corrections. He argues on appeal that (1) an incorrect standard of proof was used in evaluating his defense of insanity; (2) the finding of his sanity was against the manifest weight of the evidence; (3) his cross-examination of the State’s expert was improperly restricted; (4) he was not proved guilty beyond a reasonable doubt of murdering Muriel; (5) he should have been found guilty but mentally ill; (6) the guilty but mentally ill statute is unconstitutional; and (7) his sentence is excessive. We reverse and remand for a new trial, for reasons which follow.

Daniel Todd, Beth’s ex-husband, testified that he, his son Ryan, Beth, and Muriel were all inside Beth’s apartment in Elgin, Illinois, on the afternoon of January 13, 1987. Beth opened the front door in response to the doorbell, and defendant entered with a gun in his right hand, which was pointed skyward. Defendant approached Beth repeating “now you’re going to pay.” Beth screamed “please Tom— don’t hurt me,” and Todd tried to calm defendant. Defendant ordered Todd to remain seated and told Beth and Muriel to go into a back bedroom. Todd heard both women screaming and begging not to be shot; he also heard some mention of money, to which Beth responded “please forgive me for that.” Three shots were fired, and defendant walked out of the bedroom and left the apartment. Todd went into the bedroom and saw Beth and Muriel lying on the bed.

The autopsies of the victims showed that Beth had sustained three gunshot wounds; two bullets were recovered from her body. One bullet was removed from Muriel’s body, which had passed through Beth’s body. Both women died as a result of hemorrhagic shock.

Elsie Acevedo, an employee of Home Federal Savings & Loan (Home Federal) in Elgin, testified that she spoke with defendant at the bank on January 12, 1987, when he inquired about some bounced checks, and she told him that his wife had closed out their account. Defendant appeared very upset, and Acevedo asked her supervisor to talk to him. Before he left, defendant said he would “blow [his wife’s] brains out.”

Gloria Avilas, another employee of Home Federal, testified that she saw defendant in the bank on both January 12 and 13. On January 13, Avilas explained to defendant that his wife had been allowed to close out his account because she was on the signature card and had the right to withdraw funds. Defendant appeared nervous and upset; he mentioned his divorce and said that he was going to “get” his wife for what she had done.

Defendant’s friend, Edward Taylor, was at the Elgin police department on January 13 to report vandalism of his automobile. He saw defendant enter the station and asked him why he was there; defendant responded “you’re never going to believe this *** I just shot my wife.” When Taylor asked if she was hurt, defendant replied “I hope so.” He was arrested shortly thereafter.

The State rested, and defendant’s motion for a finding was denied.

Defendant testified that on the morning of January 13, 1987, he picked up his 16-month-old daughter, Katie, from Beth’s apartment for his scheduled visitation. Around 4 p.m. he gathered some items to return to Beth, including a copy of a check written by Beth to close out their account at Home Federal, and several pieces of Tupperware. He placed these items in a paper bag and put his gun inside the largest Tupperware container. Defendant believed that his wife would be forced to speak with him if he had the gun.

Defendant drove to his wife’s apartment with Katie and the paper bag. He left his daughter in the car and carried the bag to the door. Beth opened the door, and defendant showed her the copy of the check, which he pulled from the bag. Defendant then drew the gun and walked into the apartment with his arm pointed skyward. He saw Todd and told him to stay seated. Beth and Muriel went into the bedroom, closed the door and held it shut, but defendant was able to push it open. Beth was dialing the telephone, but dropped it when defendant ordered her to do so. Defendant began to question Beth about some disputed items, including a television, the check, a silver dollar and the Tupperware. During this confrontation, Muriel became more and more angry and tried to talk to defendant. Beth said “I’m going to make sure that you never see your daughter again,” and Muriel echoed that sentiment. At that point, defendant said that he “snapped” and “just shot.” After firing three shots, defendant said that “[i]t was like I came out of a stupor.” After a few seconds, he walked out of the bedroom and exited the apartment. Todd spoke to him, but he did not respond.

Defendant reentered his car and placed the gun on the floor behind his seat. He drove to his sister’s house, where he left Katie. He unloaded his gun and walked to the police station, where he saw Taylor in the lobby. Defendant declared that he had shot his wife. Taylor asked if she was all right and defendant replied “I hope so.” He was immediately arrested.

Defendant said that he had gone to Home Federal on January 8, 1987, and learned on that day that Beth had withdrawn all the money in their account. He tried to discuss the matter with Beth, but she said “talk to my lawyer.” On January 12, defendant made a deposit and talked to Acevedo; she gave defendant a copy of the check Beth had written. Defendant was unemployed and said that money had been a point of contention between him and Beth.

During cross-examination, defendant defined “stupor” as “a state where you don’t know what you’re doing.” He claimed that he went into the stupor the moment that Beth and Muriel made the statement about his daughter, and remained in that state for five to seven seconds. He experienced a similar stupor when he was talking to the bank personnel on the day prior to the shooting.

Dr. Carmen Ciatteo, a board-certified psychiatrist, testified that he studied the police report, various psychological reports, and examined defendant for 90 minutes following his incarceration. He said that defendant’s life was based on control, and that prior to the shooting, defendant had been losing control of himself and his environment. On the day of the shooting, defendant was suffering from an obsessive compulsive personality disorder, which generally is a lifelong condition. Evidence of this condition was defendant’s penchant for argument, monotone voice, lack of close friends, and general distrust of others. His obsessive compulsive personality interfered with his interpersonal relationships to such an extent that it constituted a mental illness. This caused defendant to “lose control of his cognizance” on January 13, when the remark about his daughter was made. The stressors in defendant’s life, including his divorce, unemployment, and financial situation, weakened his ability to cope with stress. If defendant had not been suffering from an obsessive compulsive personality disorder, the stressors “would not have led to the tragic action that was allegedly taken.”

On cross-examination, Dr. Ciatteo admitted that he had not asked defendant about the specific events of January 13, 1987; he had relied entirely upon Todd’s account contained in the police report. He also said that defendant’s anger toward Muriel on that day was just as great as his anger toward Beth. Although defendant’s objective in confronting the women with the gun was to get his wife’s attention and gain control over himself and his environment, Dr. Ciatteo found it equally possible that defendant’s design was to kill them.

Dr. Marvin Ziporyn, an expert in psychiatry, interviewed defendant while he was in Cook County jail. He found that defendant had a general history of interpersonal difficulties which could be attributed to his inflexibility. Defendant also was overly concerned with his financial situation. Dr. Ziporyn diagnosed defendant as having a compulsive personality disorder on January 13, 1987, under which a person has very little tolerance for deviations from his perception of right and wrong. Beth’s statement that defendant would never again see his daughter acted as the “straw that broke the camel’s back.” Dr. Ziporyn asserted that the stress of defendant’s situation would not have been sufficient to induce an individual to react as defendant had without the personality disorder.

On cross-examination, Dr. Ziporyn said that defendant did not react violently to his lack of control at the bank because he knew his financial problems were not caused by incorrect behavior of the employees. In entering the apartment with the gun, defendant was psychologically attempting to intimidate Beth and Muriel into conforming their actions to his standard of appropriateness. Even if the threat about separation from his daughter had not been made, Dr. Ziporyn maintained that defendant still would not have been able to conform his conduct to the requirements of the law. During examination by the court, Dr. Ziporyn said that defendant had talked in some detail about his love for Katie; he stated, however, that he was not aware that defendant had left his daughter in the car, and that fact would require him to consider “what the possibilities of that might be.”

After the defense rested, the State called Dr. Mathew Markos, a forensic psychiatrist, in rebuttal. Dr. Markos claimed to have examined defendant for one hour and was unable to detect any mental illness. A mentally disturbed person would not be able to carry out a series of sequential, goal-directed activities, as defendant had done prior to the incident. At the time of the offense, defendant was not suffering from any mental illness or defect which would have impaired substantially his ability to conform his behavior to the requirements of the law. He did not disagree with the conclusions of Drs. Ciatteo and Ziporyn; he simply did not have data sufficient to make their diagnoses. Dr. Markos also said that a personality disorder, such as an obsessive compulsive personality, would not impair an individual’s ability to conform his conduct to the requirements of the law.

Defendant, called in surrebuttal, stated that Dr. Markos interviewed him for only three minutes and asked him a total of two questions.

The court found defendant guilty of murdering both Beth and Muriel and sentenced him to natural life in prison.

I

Defendant first argues that the court imposed a greater burden of proof on the issue of insanity than was required by statute.

In presenting the defense of insanity, the burden is on defendant to prove by a preponderance of the evidence that he is not guilty by reason of insanity. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e).) In making its findings, however, the circuit court said:

“I think the next area that I have to address is the issue of insanity. Did the defendant preponderate? Did they show me by clear and convincing evidence that [defendant] was insane at the time the act was committed? * * *
*** We, therefore, have an affirmative insanity defense, and at the close of the defense’s case, I was not entirely convinced by clear and convincing evidence that this individual was insane *** I do not think that the defense has shown by clear and convincing testimony or preponderated the evidence that the defendant was insane at that time.
*** I don’t think that they have preponderated the evidence, especially in light of the defendant’s selective and sometimes, many times, incredible testimony.
*** I think the State has proved every element beyond a reasonable doubt. I do not think that the defendant has preponderated on the issue of insanity by clear and convincing evidence, and for that reason, the defendant will be found guilty of the offense.” (Emphasis added.)

The circuit court is presumed to know the law and apply it properly, and that presumption is rebutted only when the record affirmatively shows the contrary. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 322, 570 N.E.2d 344.) Here, the record contains strong affirmative evidence that the circuit court applied the wrong burden of proof in determining defendant’s sanity. The court’s repeated reference to a standard of “clear and convincing evidence” rebuts the presumption that the court properly applied the law.

Defendant relies upon People v. Gutierrez (1982), 105 Ill. App. 3d 1059, 1063, 433 N.E.2d 361, for the proposition that the court need not “state for the record the standard of proof [s]he has employed.” In that case, defendant was convicted of leaving the scene of a vehicular accident involving death. (Ill. Rev. Stat. 1979, ch. 95V2, par. 11— 401.) He argued that because the court did not mention the required mental state in its findings, it treated the matter as a strict liability offense and did not consider whether defendant had knowledge of the accident. In rejecting that argument, this court held that the failure to mention the proper standard did not demonstrate that the circuit court followed the wrong standard. Gutierrez, 105 Ill. App. 3d at 1063.

This case, however, does not involve the omission of the proper standard by the court. Instead, the court affirmatively recited the wrong standard at least four times. Although the court repeatedly used the word “preponderate” in conjunction with the term “clear and convincing,” we are uncertain that the proper burden of proof was applied to the evidence of defendant’s sanity. Defendant’s conviction, therefore, must be reversed and the cause remanded for a new trial.

Because other issues may arise in defendant’s new trial, we will address remaining arguments.

II

Defendant claims that the court’s determination of his sanity was against the manifest weight of the evidence.

Defendant is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) The trier of fact determines whether defendant was insane at the time of the offense, and that finding will not be reversed unless it is so improbable or unsatisfactory as to raise a reasonable doubt of defendant’s sanity, or is so contrary to the manifest weight of the evidence as to indicate passion or prejudice on the part of the fact finder. People v. Wheeler (1990), 194 Ill. App. 3d 178, 182, 550 N.E.2d 1170.

Contrary to defendant’s assertion, the circuit court is not obligated to accept the opinions of psychiatrists proffered by defendant, but is entitled to consider contrary opinions of the State’s expert. (People v. Eckhardt (1987), 156 Ill. App. 3d 1077, 1090, 509 N.E.2d 1361.) Further, the resolution of contradictory testimony by experts on the issue of whether defendant was legally insane at the time of the crime is for the trier of fact. (Eckhardt, 156 Ill. App. 3d at 1090.) Here, Dr. Markos, the State’s expert, said that defendant was not suffering from a major mental illness at the time of the shooting which would have substantially impaired his ability to conform his behavior to the requirements of the law. Even if defendant did suffer from a personality disorder, Dr. Markos said that it would not impair his major mental functions.

Less credence was given to Dr. Ciatteo’s testimony because he never spoke to defendant about the incident itself. Although he generally diagnosed defendant as having an obsessive compulsive personality disorder, he said that defendant’s goal or mission in going to the apartment could have been to kill Beth. Dr. Ziporyn also said defendant had a compulsive personality disorder. Defendant, however, never told Dr. Ziporyn that he left his daughter in the car when he went to the apartment, a fact that the doctor said would require him to rethink his analysis. Further, Dr. Ziporyn said that defendant would not have been able to conform his conduct to the law even if Beth had not threatened defendant with separation from his daughter. The court also noted that despite Dr. Ziporyn’s assertion that defendant is punishment-oriented regarding his crime, he showed no remorse for the shootings.

In addition, lay witnesses may express their opinions as to sanity if based on personal observation of defendant, including conversations with him. (People v. Tylkowski (1988), 171 Ill. App. 3d 93, 99, 524 N.E.2d 1112.) Todd, who saw defendant immediately before the shooting, said defendant seemed to be acting normal while in the apartment, and his behavior was no different shortly after the incident. The court concluded that defendant planned the shooting, as well as the post-shooting conduct and possibly the groundwork for an insanity defense. (See People v. Bouchard (1989), 180 Ill. App. 3d 26, 34-35, 535 N.E.2d 1001.) The circuit court’s determination of defendant’s sanity, therefore, was not improbable or contrary to the manifest weight of the evidence.

Ill

Defendant next contends that his cross-examination of the State’s expert was improperly restricted.

In criminal proceedings, the scope of cross-examination is determined by the circuit court, whose decision will not be overturned absent an abuse of discretion resulting in manifest prejudice to defendant. (People v. Hunter (1984), 124 Ill. App. 3d 516, 538, 464 N.E.2d 659.) None of the instances cited by defendant constitutes an abuse of the circuit court’s discretion. Defendant’s cross-examination of Dr. Markos regarding his qualifications was not improperly restricted; the information which defendant sought to elicit was presented to the court through an offer of proof. Based upon the totality of his qualifications, the court found Dr. Markos qualified as an expert in forensic psychiatry, and that determination was not an abuse of discretion. (See People v. Cole (1988), 170 Ill. App. 3d 912, 929-30, 524 N.E.2d 926.) Further, the court sustained several of the State’s objections to the cross-examination of Dr. Markos on relevance grounds. The court did not abuse its discretion in so acting, and defendant suffered no prejudice as a result.

Defendant also claims that the court applied a different standard on cross-examination to the defense than it did to the prosecution. Specifically, he argues that Dr. Markos was allowed to expound upon his answer to a question which allegedly called for a “yes” or “no” answer, whereas Dr. Ciatteo was specifically instructed at one point to answer “yes” or “no.” The record, however, does not show that different standards were used. At one point, the court specifically noted that “we have allowed [all the experts] to qualify their answers or say how they’ve evolved their answers.” The court’s admonishment of Dr. Ciatteo to “[j]ust listen to his question *** and answer yes or no,” was not an attempt to discredit the witness or the defense in general. (See People v. Williams (1990), 201 Ill. App. 3d 207, 221, 558 N.E.2d 1258.) In fact, the trial judge indicated that she would strike any testimony by Dr. Markos that was unresponsive. Defendant suffered no prejudice as a result of the court’s action.

Even if the circuit court erred in restricting defendant’s cross-examination of Dr. Markos, that error would not have warranted reversal. There is no reasonable doubt whether defendant was prejudiced thereby or the outcome of the trial would have differed had the error not been made. See People v. Sprawls (1990), 205 Ill. App. 3d 337, 342, 562 N.E.2d 1065.

IV

Defendant asserts that he was not proved guilty beyond a reasonable doubt of Muriel’s murder. Specifically, he claims that the State failed to prove he intended to kill Muriel.

The relevant mental state of murder is that an accused knows the acts he performs create a strong probability of death or great bodily harm. (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)(2).) Defendant need not be shown to have had specific intent to kill or do great bodily harm or to have known with certainty that his acts would achieve those results; it is sufficient to show that he voluntarily and willfully committed an act, the natural tendency of which was to destroy another’s life. (People v. Bartall (1983), 98 Ill. 2d 294, 307, 456 N.E.2d 59.) Because intent to kill or cause great bodily harm is not commonly proved by direct evidence, intent may be inferred from the character of defendant’s acts and the circumstances surrounding commission of the offense. (People v. Terrell (1989), 132 Ill. 2d 178, 204, 547 N.E.2d 145.) Generally, when an accused intentionally uses a deadly weapon upon his victim, it may be inferred that he intended to cause her death. Terrell, 132 Ill. 2d at 204.

Here, defendant entered the apartment brandishing a loaded revolver. He ordered Beth and Muriel into the bedroom, where they pleaded for their lives. Defendant fired three shots, one of which struck and killed Muriel. The court specifically found that defendant possessed the requisite intent to kill Muriel, even if it was transferred intent. At a bench trial, the judge weighs the evidence and draws reasonable inferences therefrom. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) The circuit court’s findings will not be overturned unless the evidence, when viewed in the light most favorable to the State, is so unreasonable or improbable that it leaves a reasonable doubt of defendant’s guilt. (People v. Pintos (1989), 133 Ill. 2d 286, 290-92, 549 N.E.2d 344; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) At bar, there is no reasonable doubt of defendant’s guilt.

V

Defendant claims that the circuit court’s finding of guilty, rather than guilty but mentally ill, was against the manifest weight of the evidence.

When defendant has asserted a defense of insanity, the court may find defendant guilty but mentally ill if, considering all the evidence, the court finds beyond a reasonable doubt that defendant (1) is guilty of the offense charged, (2) was mentally ill at the time of the commission of the offense, and (3) was not legally insane at the time of the commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 115— 3(c).) “Mental illness” is a substantial disorder of thought, mood or behavior which afflicted defendant at the time of the commission of the offense and which impaired defendant’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law. (Ill. Rev. Stat. 1985, ch. 38, par. 6—2(d).) A finding of guilty by a trier of fact will not be disturbed on appeal on the issue of mental illness absent facts indicating defendant’s illness at the time he committed the offense; the court’s decision will be affirmed unless the determination is so improbable or unsatisfactory as to raise a reasonable doubt of defendant’s sanity. People v. Wiley (1989), 185 Ill. App. 3d 1097, 1106, 541 N.E.2d 1345.

Defendant relies on People v. Gurga (1986), 150 Ill. App. 3d 158, 501 N.E.2d 767, in which defendant was convicted of murder, attempted murder, and home invasion (Ill. Rev. Stat. 1981, ch. 38, pars. 8— 4(a), 9—1(a), 12—11(a)), having failed to sustain his insanity defense. The appellate court concluded that he should have been found guilty but mentally ill because he had an extensive history of emotional problems documented by numerous psychiatrists. Further, the State’s expert, as well as defendant’s, submitted considerable evidence showing that defendant suffered from a substantial disorder of mood or behavior which impaired his judgment. Based upon that evidence, the court reversed defendant’s conviction and remanded for entry of a judgment of guilty but mentally ill. Gurga, 150 Ill . App. 3d at 166-68.

Here, however, the court determined that defendant “at best *** may have had a mental defect amounting to a personality disorder”; his condition, however, did not rise to the level of a mental illness that deprived him of all rational thought. Defendant here had no history of emotional or psychological problems or treatment. The court also concluded that defendant was shown to be goal-oriented and had planned the shooting. The fact that Dr. Markos’ testimony contradicted that of defendant’s experts does not authorize this court to overturn the findings of the trier of fact. (See People v. Reed (1991), 209 Ill. App. 3d 575, 582, 568 N.E.2d 334, appeal denied (1991), 139 Ill. 2d 602.) The determination of defendant’s guilt, therefore, was not so improbable as to raise a reasonable doubt of his sanity.

VI

Defendant asserts that the guilty but mentally ill statute is unconstitutionally vague. Contrary to the State’s assertion, defendant has not waived this issue for failure to include it in his post-trial motion, as a constitutional challenge to a statute can be raised at any time. People v. Bryant (1989), 128 Ill. 2d 448, 454, 539 N.E.2d 1221.

The constitutionality of the guilty but mentally ill statute has been upheld several times on various grounds. (See People v. Seaman (1990), 203 Ill. App. 3d 871, 884-89, 561 N.E.2d 188, appeal denied (1990), 135 Ill. 2d 564; People v. Fields (1988), 170 Ill. App. 3d 1, 6-7, 523 N.E.2d 1196, appeal denied (1988), 122 Ill. 2d 583; People v. Martin (1988), 166 Ill. App. 3d 428, 435, 519 N.E.2d 1085; People v. Carter (1985), 135 Ill. App. 3d 403, 414-16, 481 N.E.2d 1012; People v. Smith (1984), 124 Ill. App. 3d 805, 807-13, 465 N.E.2d 101; People v. DeWit (1984), 123 Ill. App. 3d 723, 733-39, 463 N.E.2d 742.) Defendant offers no new arguments to warrant deviation from those precedents.

VII

Defendant lastly argues that his sentence of natural life imprisonment is excessive. Defendant has waived this argument for failure to file a post-sentencing motion specifically alleging such error. People v. Diaz (1989), 189 Ill. App. 3d 473, 476, 545 N.E.2d 399.

Nevertheless, were we to consider defendant’s argument, it would fail. Section 5—8—1 of the Unified Code of Corrections provides that a defendant found guilty of murdering more than one victim shall be sentenced to a term of natural life imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(c); see also People v. Winchel (1987), 159 Ill. App. 3d 892, 923, 512 N.E.2d 1298.) Further, even if defendant was found guilty but mentally ill, he would remain eligible for natural life imprisonment. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005—2—6(a); People v. Crews (1988), 122 Ill. 2d 266, 278, 522 N.E.2d 1167.) Although defendant qualified for imposition of the death penalty, the court determined that the mitigating factors outweighed those presented in aggravation, and instead imposed the natural life prison sentence. That sentence, made mandatory by statute, is not excessive.

Because the circuit court applied an improper standard of proof to the evidence of defendant’s insanity, we reverse his convictions for murder and remand for a new trial.

Reversed and remanded.

DiVITO and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCORMICK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD LANG, Defendant-Appellant.
    First District (2nd Division)
    Nos. 1 — 87—1833, 1—87—1872 cons.
    Opinion filed January 21, 1992.
    —Rehearing denied March 12, 1992.

      Rita A. Fry, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

In 1971, defendant, Donald Lang, was arrested and charged with the murder of Earlene Brown. At the time of the murder, defendant, who has been deaf from birth, was unable to speak, read, or write and did not know sign language. In 1972, defendant was tried for the murder and convicted by a jury. On appeal, after determining that defendant’s disabilities deprived him of a fair trial, this court reversed defendant’s conviction and remanded the cause for a fitness hearing. People v. Lang (1975), 26 Ill. App. 3d 648, 325 N.E.2d 305.

On remand in 1976, defendant was found unfit to stand trial and was placed in the Department of Mental Health’s Psychiatric Institute (Department). Subsequently, the trial court allowed the Department to discharge defendant to the Cook County jail. In addition, the trial court issued a writ of mandamus requiring the Department to implement a care and treatment program for defendant and denied a writ of habeas corpus filed by defendant. In an appeal from the trial court’s order, this court vacated the mandamus and affirmed the denial of defendant’s writ of habeas corpus. People v. Lang (1978), 62 Ill. App. 3d 688, 378 N.E.2d 1106.

Following an appeal to the Illinois Supreme Court, the cause was again remanded for a determination of whether defendant remained unfit to stand trial. (People v. Lang (1979), 76 Ill. 2d 311, 391 N.E.2d 350.) On remand, the trial court again found defendant unfit and further foünd that there was no substantial probability that defendant would attain fitness within one year. Subsequently, a commitment hearing was held and the trial court determined that defendant met the criteria for involuntary commitment by the Department of Mental Health. Since that determination, the trial court has held regular hearings on defendant’s status. In each, the court has found that defendant continues to meet the criteria for involuntary commitment.

In an appeal from those hearings and from the trial court’s denial of defendant’s request for a formal hearing on his fitness to stand trial, this court held that defendant was entitled to a formal fitness hearing. However, the court also held that defendant was not entitled to a discharge hearing as set forth in sections 104— 23(a) and 104 — 25 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 23(a), 104 — 25), because defendant’s 1972 trial provided him with the one discharge hearing to which he was entitled. People v. Lang (1984), 127 Ill. App. 3d 313, 468 N.E.2d 1303.

On appeal, the Illinois Supreme Court reversed that portion of this court’s decision denying defendant a discharge hearing. The supreme court held that if, on remand, defendant was again found to be unfit to stand trial, he should be provided with another discharge hearing. People v. Lang (1986), 113 Ill. 2d 407, 498 N.E.2d 1105.

On March 23, 1987, another fitness hearing was conducted by the trial court. Following the hearing, defendant was once again found unfit to stand trial, and the court granted defendant’s request for a discharge hearing.

At the hearing, Rufus Knight was called as a witness on behalf of the State. Knight testified that in 1971, he lived at the Viceroy Hotel located at 1519 Warren Boulevard in Chicago. Knight stated that the Viceroy was both a transient and residential hotel, with the top four floors of the building reserved for permanent residents.

Knight testified that on July 25, 1971, at approximately 1:30 a.m., he was in the lobby of the hotel when defendant entered with Earlene Brown. Brown was given a room card by Mattie Ligun, the hotel manager. Brown filled out the card and gave it to defendant, who then paid Ligun. After receiving the key to room 201 from Li-gun, defendant and Brown entered the elevator.

The next time Knight saw defendant was at 3:30 a.m., when defendant returned to the lobby. Knight testified that defendant was alone and that after returning the room key to Ligun, defendant left the hotel. Knight further testified that he did not see Earlene Brown leave the hotel.

James Padar of the Chicago police department testified that on July 26, 1971, he was assigned to Area 4 as a homicide detective. At approximately 12:20 p.m. on that date, he received a call concerning a body found at the Viceroy Hotel. Padar went to the hotel, where he found a woman’s body in the closet of room 201. Padar testified that the body, identified as that of Earlene Brown, was lying facedown with the face and upper torso on the floor and the legs extending up along the wall of the closet. Underneath the body were Brown’s clothing, two bed sheets and some pillows.

Later that day, Padar arrested defendant and took him to Area 4. Padar testified that after he and defendant arrived at the police station, he noticed that defendant had a reddish-brown stain on one of his socks. These socks and defendant’s other clothing were submitted to the crime laboratory for examination.

Timothy Zamb testified that in 1971 he was employed by the Chicago police department as a microanalyst. Zamb testified that in July 1971, he examined blood and bone tissues from Earlene Brown and determined that her blood was type B. Zamb testified that he also tested defendant's clothing and found type B human blood on defendant’s T-shirt, socks and pants. Human blood also was found on defendant’s shoes, but in an amount insufficient for typing.

Zamb further testified that flakes of green paint were found on the clothing of both defendant and Brown. Zamb testified that he compared the paint flakes taken from defendant’s clothing with those taken from Brown’s clothing and found that the flakes were similar in color, texture and sheen.

Zamb also testified that he examined a sample of defendant’s blood and found it to be type O. And on cross-examination, Zamb testified that the blood found on defendant’s clothing could have been present there for a period ranging from several hours to months.

Also admitted into evidence by the State were transcripts from defendant’s 1972 trial and 1976 civil commitment hearing, including the testimony of Mattie Ligun and Sarah Williams, a maid at the Viceroy Hotel. Both Ligun and Williams were deceased at the time of the discharge hearing. A supplemental record containing Williams’ testimony has been filed with this court. The transcripts of Ligun’s testimony and the testimony of the other witnesses at the 1972 and 1976 proceedings were not made a part of the record on appeal.

At the time of the 1972 trial, Williams was 75 years old. She testified that between 2:30 and 3 a.m. on the morning of July 25, 1971, she went to room 201 and that when she entered the room she noticed that the linen and pillows were missing from the bed. Williams also testified that she found a wet “pinkish” hand towel on the bathroom floor, that there was a small red spot on the wall near the bed and that there was a small “pinkish” spot on the floor by the dresser.

Williams further testified that prior to entering room 201, she was working in the room directly across the hall and that during that time she did not hear any loud or unusual noises coming from room 201, but she did hear voices. Williams also testified that when she was in room 201, she attempted to check the closet but could not open the door.

In 1976, because Williams was 80 years old and in poor health, her testimony was taken in the form of an evidence deposition. At the start of the deposition, Williams was unable to state the date, year or the name of the governor. When questioned about the events of July 25, 1971, Williams stated that on that date she was in room 202 when she received a telephone call from the hotel manager telling her to clean room 201. Williams told the manager that she thought room 201 was still occupied because she had heard voices coming from there. The manager told Williams that the man had left the room, and Williams testified that when she entered the room it was empty, although she had not seen anyone leave.

Williams again testified that the bed in room 201 had no sheets or pillows, that she found a hand towel on the bathroom floor, that there was a spot on the floor and that she was unable to open the closet door.

Defendant’s only witness was Robert Hollis, an attorney with the Cook County public defender’s office. Hollis testified that in 1976 he worked as an investigator for the public defender’s office and that at that time he took part in an investigation of defendant’s case.

Hollis testified that as part of the investigation, he visited the Viceroy Hotel in 1976 and discovered that it was possible to step out of the window of room 201 onto the roof of an adjacent structure and then lower oneself to the ground by stepping onto a guardrail or garbage can. Hollis also testified that it was possible to enter room 201 by this method.

At the close of the evidence, the court denied defendant’s request for discharge. This appeal followed.

Under section 104—23(a) of the Criminal Code, when a defendant is unfit to stand trial and there is not a substantial probability that he will attain fitness within one year from the original finding of unfitness, the defendant may move for a discharge hearing pursuant to section 104—25 of the Code. At the discharge hearing, the trial court must determine whether the evidence is sufficient to establish that the defendant is guilty of the crime charged. (People v. McBrien (1986), 144 Ill. App. 3d 489, 494 N.E.2d 732.) As in the case of criminal convictions, the State is required to establish the defendant’s guilt beyond a reasonable doubt, although the trial court’s determination that the State has met its burden of proof does not constitute a technical determination of guilt. People v. Rink (1983), 97 Ill. 2d 533, 455 N.E.2d 64; People v. Burt (1986), 142 Ill. App. 3d 833, 492 N.E.2d 233; People v. Raseaitis (1984), 126 Ill. App. 3d 600,467 N.E.2d 1098.

In his appeal, defendant claims that the evidence presented at his discharge hearing was not sufficient to establish his guilt beyond a reasonable doubt. Defendant argues that, therefore, the trial court’s decision should be reversed and a judgment of acquittal entered.

According to defendant, Sarah Williams testified in her evidence deposition that she heard the voices of a man and a woman coming from room 201 during her telephone conversation with Li-gun. Defendant contends that this testimony establishes that he was not the last person to see Brown alive since Ligun did not call Williams until after she saw defendant leave the hotel. The transcripts of Williams’ testimony do not seem to support defendant’s contentions.

In her deposition, Williams gave the following testimony:

“Q. When Mrs. Legón [sic] called you and told you room 201 was out, did you tell her it was still occupied?
A. I say, ‘somebody is in this room.’ She said, ‘no, the man came out.’ I said, ‘Okay then.’
Q. What made you think someone was still in that room?
A. I heard that low tone. I heard that low tone of talking in there.
Q. Was this after Mrs. Legón [sic] called you?
A. What?
Q. Was this after Mrs. Legón [sic] called you?
A. I had heard that when she called me. * * *
Q. You said you heard talking. Was that talking before Mrs. Legon [sic] called you?
A. I heard them talking in the room.
Q. That was sometime before?
A. Before he left out, I guess.”

Nothing in Williams’ testimony supports defendant’s claim that she heard voices from room 201 while she was on the telephone with Ligun. Rather, Williams appears to state that she had already heard talking when Ligun telephoned.

In entering its findings, the trial court noted that, according to the transcripts of her testimony, Ligun testified that she called Williams after seeing defendant in the lobby. Williams in turn testified that she entered room 201 after the telephone call from Li-gun and found it to be empty. She also testified that she did not see anyone go into or come out of the room.

We find that there was sufficient evidence that defendant was the last person to see Brown alive and that this evidence, coupled with the presence of type B blood on defendant’s clothing, was sufficient to meet the State’s burden of proving beyond a reasonable doubt that defendant murdered Brown.

Defendant also argues that he was denied a fair trial because the trial court either misapprehended the evidence or considered evidence outside of the record in determining defendant’s guilt. Defendant’s argument is based on comments made by the trial court while entering its findings.

While summarizing the evidence, the trial court noted that “paint chips from the [scene] or paint flakes were of a similar composition to those traced to the Defendant.” Defendant argues that because there was no evidence indicating the presence of green -----5BL-an inaccurate perception of the record and should be reversed. This argument is without merit.

As stated above, Timothy Zamb testified that flakes of green paint were found on the clothing of both defendant and Brown. Zamb further testified that the flakes found on defendant’s clothing and those found on Brown’s clothing were of a similar color, texture and sheen. Thus, there is nothing inaccurate in the trial court’s statement that paint flakes from the scene were similar to those traced to defendant. Moreover, as the State points out, there was no question that defendant and Brown were together at the Viceroy Hotel on the night in question and, therefore, the fact that similar paint flakes were found on their clothing is of limited importance.

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

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellant, v. JAMES LANN, Indiv. and d/b/a Lann Industries of Illinois, d/b/a Hammer Construction, and d/b/a Midway Construction Company, Defendant-Appellee.
    First District (6th Division)
    No. 1 — 90—2800
    Opinion filed January 24, 1992.

      Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Deborah L. Ahlstrand, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Allan W. Masters, of Chicago (Mary Ellen Dienes, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), this interlocutory appeal requires us to consider the following question certified by the circuit court of Cook County:

“[W]hether, for purposes of discovery, individual consumers [may] be considered party plaintiffs rather than occurrence witnesses in suits brought by the Attorney General in the public interest when the Attorney General seeks restitution for individual consumers pursuant to the provisions of the Consumer Fraud and Deceptive Business Practices Act [(Consumer Fraud Act or the Act)].” Ill. Rev. Stat. 1989, ch. 1211/2, par. 261 et seq.

The Attorney General of Illinois, on behalf of the People of the State of Illinois, filed this action in 1987 against James Lann, individually and doing business as Lann Industries of Illinois, Pal Construction, Pal Construction Company, S. Norton Roofing and Siding, D.P. Management, Kenward International, Inc., Hammer Construction, and Midway Construction Company. The 1989 amended complaint alleged that defendant, who was engaged in the business of selling home repair goods and services, had violated the Consumer Fraud Act by, inter alia, failing to provide for contracted services and materials, failing to begin or complete work within dates required by contract and obtaining payments by misrepresentation. The complaint set forth allegations about defendant’s business dealings with three customers in violation of the Consumer Fraud Act. The complaint did not, however, specify the number of individual customers represented in the suit or the number of business dealings alleged to constitute defendant’s fraudulent business practices. The State also asked the court to enjoin defendant from operating his business in Illinois, to require defendant to provide restitution to all injured customers, to assess civil penalties for each violation and to cancel and rescind all the contracts.

Pursuant to discovery requests, the State provided defendant with “an extensive volume of records,” including contracts and cancelled checks relating to 19 dissatisfied customers. In October 1989, defendant moved to bar the testimony of any consumers not named in the amended complaint. The Attorney General responded that naming individual customers was not required. Defendant also sought to dismiss the State’s complaint on the ground that Lotte Leja, one of the three consumers specified as an example in the amended complaint, had obtained a private judgment against defendant. Defendant also filed discovery motions on the Attorney General requesting various consumers to answer interrogatories and to produce and appear for discovery depositions. The State refused to answer these discovery requests.

On June 4, 1990, after hearing argument on defendant’s motions to bar and dismiss, the circuit court struck the prayers for restitution and for rescission of contracts, noting that the Consumer Fraud Act did not contemplate such remedies. After a hearing upon the State’s motion to reconsider, the circuit court acknowledged that the statute provided for restitution and modified its prior ruling accordingly. The court, however, imposed a duty on the Attorney General to act as counsel for individual consumers for whom restitution was sought and to treat them as party plaintiffs for discovery purposes only. The court wrote:

“If the Attorney General is going to seek restitution or seek to recover damages on behalf of individual consumers, each individual consumer shall be considered conventional party plaintiffs for purposes of discovery. The Attorney General must represent the individual consumer and comply with the rules of discovery in order to grant the defendants fundamental due process rights. The Attorney General will be required to produce individual consumers for deposition, to answer interrogatories on behalf of consumers and to generally comply with the rules of discovery as if personally appearing on behalf of consumers.”

The trial court expressed its concern that some of the consumers represented by this suit had filed their own suits, creating the possibility of double liability for defendant. The State conceded that the potential for double recovery existed. The State refused to answer interrogatories for particular consumers, contending that defendant at his own expense could send interrogatories to each consumer, pay witness fees and depose each individual.

The circuit court certified the question of law here presented and stayed further proceedings. In November 1990, this court granted the State’s motion for leave to appeal. Defendant died in June 1991.

The Consumer Fraud Act confers upon the Attorney General certain investigative and administrative duties to combat unlawful business practices. Section 7 of the Act authorizes the Attorney General to bring an action on behalf of the people and in the public interest to enjoin any proscribed act or practice. (Ill. Rev. Stat. 1989, ch. 12½, par. 267.) That section provides:

“Whenever the Attorney General or a State’s Attorney has reason to believe that any person is using, has used, or is about to use any method, act or practice declared by this Act to be unlawful, and that proceedings would be in the public interest, he or she may bring an action in the name of the People of the State against such person to restrain by preliminary or permanent injunction the use of such method, act or practice. The Court, in its discretion, may exercise all powers necessary, including but not limited to: injunction; revocation, forfeiture or suspension of any license, charter, franchise, certificate or other evidence of authority of any person to do business in this State; appointment of a receiver; dissolution of domestic corporations or association[;] suspension or termination of the right of foreign corporations or associations to do business in this State; and restitution.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 12½, par. 267.

We conclude that when the Attorney General seeks restitution for individual consumers pursuant to the Consumer Fraud Act, the consumers may not be considered party-plaintiffs for purposes of discovery only.

We believe that the Act explicitly and implicitly evidences the legislature’s intent to provide restitution for nonparty consumers, and hold that to treat individual consumers as party-plaintiffs for discovery purposes only under the Consumer Fraud Act is contrary to the Act’s purposes and violates statutory construction rules.

The legislature has instructed courts to liberally construe general provisions and terms in order to carry out the true legislative intent. (Ill. Rev. Stat. 1989, ch. 1, par. 1002.) The legislature’s intent must be determined by examining the entire statute and by construing material parts together. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 547 N.E.2d 437.) Moreover, we may ascertain such intent from the nature and object of the Act and the consequences of construing it one way or the other. Castaneda v. Illinois Human Rights Comm’n, 132 Ill. 2d 304, 547 N.E.2d 437.

This court has consistently recognized that the intent of the Consumer Fraud Act is to curb fraudulent abuses and to provide a remedy to persons thereby injured. (Beaton & Associates, Ltd. v. Joslyn Manufacturing & Supply Co. (1987), 159 Ill. App. 3d 834, 512 N.E.2d 1286.) The Act was “intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong. [Citations.]” (Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 585-86, 447 N.E.2d 1007, 1011.) Moreover, the Act should be liberally construed to effect the purposes thereof. Ill. Rev. Stat. 1989, ch. 12½ par. 271a; Kennedy v. First National Bank (1990), 194 Ill. App. 3d 1004, 551 N.E.2d 1002; Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc. (1989), 190 Ill. App. 3d 524, 546 N.E.2d 33.

Even though the transactions underlying this action arose between individual consumers and defendant, the action stems from the Attorney General’s duty to enforce the Consumer Fraud Act. An action filed by the Attorney General under the Act is essentially a law enforcement action designed to protect the public, not to benefit private parties. The statute expressly authorizes the Attorney General to enjoin illegal practices and to collect actual damages. (Ill. Rev. Stat. 1989, ch. 1211/2, par. 267.) Both remedies serve to prevent continued violations of the Act and may promote enforcement of the law. Although restitution may benefit aggrieved consumers, the remedy flows from the basic policy that those who engage in proscribed conduct or practices surrender all profits flowing therefrom. Because the nature and object of the Act and its remedies are indisputably the protection of the public interest, we believe that the legislature intended the State to be the only real party in interest and the only party subject to discovery. Moreover, no express language in the Act indicates otherwise or requires the State to treat the consumers as parties for discovery purposes. As such, we conclude that in authorizing the Attorney General to seek restitution for aggrieved consumers, the legislature did not intend the individual consumers to be treated as parties to the action for any purposes even under a liberal construction of the Act.

Nor do we believe that the Act requires the Attorney General to comply with the discovery rules “as if personally appearing” on behalf of the consumers. We conclude that the availability of restitution does not create an attorney-client relationship between each individual consumer and the Attorney General, even for discovery purposes only. The relationship between the Attorney General and individual consumers pursuant to the Consumer Fraud Act simply lacks traditional attributes of the attorney-client relationship, including: a mutual consent to enter the relationship (York v. Stiefel (1982), 109 Ill. App. 3d 342, 440 N.E.2d 440); the client’s right to discharge his attorney (Ellerby v. Spiezer (1985), 138 111. App. 3d 77, 485 N.E.2d 413); and the client’s right to control the litigation, to choose to settle or dismiss the case against the attorney’s advice (Herbster v. North American Co. for Life & Health Insurance (1986), 150 111. App. 3d 21, 501 N.E.2d 343). As indicated above, the Attorney General in a consumer fraud action decides to initiate the action, not any individual consumer; the Attorney General has the power to direct the litigation without any input from aggrieved consumers; and the Attorney General owes primary responsibility to the public, not to any individual consumer. Moreover, the Attorney General’s role as protector of the public and as the State’s legal officer may be inconsistent with the welfare of the individual consumers such that he could not adequately protect their interests. Finally, there is no express provision in the Act which requires the State to act as if personally appearing for consumers for whom it seeks restitution.

In an analogous context, the legislature has authorized the courts to order restitution to victims in criminal actions without creating party status. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6.) Under this statute, the court may order a criminal defendant to make restitution to a victim who suffered damages proximately caused by the defendant’s conduct, even when the information does not name the victim. (People v. Early (1987), 158 Ill. App. 3d 232, 511 N.E.2d 847.) Notably, the statute does not create a private cause of action for the victim, provide for discovery of the victim, or create an attorney-client relationship between the victim and the State’s Attorney.

We find the following cases from other jurisdictions, cited by the Attorney General in support of its position, instructive: People v. Pacific Land Research Co. (1977), 20 Cal. 3d 10, 569 P.2d 125, 141 Cal. Rptr. 20; and State ex rel. Stephan v. Brotherhood Bank & Trust Co. (1982), 8 Kan. App. 2d 57, 649 P.2d 419. In Pacific Land, the Attorney General brought an action against defendant seeking injunctive relief and restitution for consumers. Defendant there argued that because the Attorney General sought restitution, defendants were entitled to the same procedures available in a class action suit by a private party. The supreme court rejected defendant’s argument, finding that the action was essentially a law enforcement action designed to protect the public, not private parties:

“The request for restitution on behalf of vendees in such an action is only ancillary to the primary remedies sought for the benefit of the public. [Citation.] While restitution would benefit the vendees by the return of the money illegally obtained, such repayment is not the primary object of the suit, as it is in most private class actions.” (Pacific Land Research, 20 Cal. 3d at 17, 569 P.2d at 129,141 Cal. Rptr. at 24.)

The court emphasized that the Attorney General, in protecting the public interest, may not be able to adequately represent the consumers’ interests. The court also stated that pursuant to its inherent and statutory powers the trial court could grant restitution even if the Attorney General did not request it. Finally, the California court noted that although the class action procedures at issue would allow defendant to better assess his potential liability, the potential civil penalties ($2,500 per violation) were “sufficient incentive to mount a vigorous defense” even absent a claim for restitution. Pacific Land Research, 20 Cal. 3d at 20, 569 P.2d at 131,141 Cal. Rptr. at 26.

In Brotherhood Bank & Trust, the Kansas Appellate Court rejected the defendant’s argument that the limitations period applicable to a private party barred the State’s action under the consumer protection act where the State sought restitution for only one consumer. The court ruled that the State is the real party in interest in a consumer protection case even though the State sought restitution for only one consumer, writing as follows:

“While it is true that one consumer may be particularly benefited, this fact does not detract from the general benefit reaped by the public which the [consumer protection act] seeks to foster.
*** [I]t is clear that the [act] was enacted in the interest of the public generally. Whether one consumer, ten or one hundred consumers, may receive actual damages as a result of a suit by the attorney general does not diminish the overall benefit to the State’s interest in protecting consumers against deceptive and unconscionable acts and practices.
In performing the duties required by the act, the attorney general acts in the interest of the State and for its benefit. Furthermore, there is no express provision in the act subjecting the State to all defenses which would be available against a private consumer.” Brotherhood Bank & Trust, 8 Kan. App. 2d at 62-63, 649 P.2d at 423-24.

We find these cases well reasoned and instructive. As in Pacific Land, although the discovery sought may allow defendant to better assess his potential liability, the State’s claim for civil penalties of $50,000 per violation is sufficient incentive to vigorously defend this case. Nor do we believe that defendant will be denied due process if the individual consumers are not treated as party plaintiffs. Procedural due process requires that a defendant be given notice and the opportunity to be heard and to defend in an orderly proceeding. (Lakeview Trust & Savings Bank v. Estrada (1985), 134 Ill. App. 3d 792, 480 N.E.2d 1312.) The record indicates that the State provided defendant with an “extensive volume” of records, including consumers’ names and addresses and copies of their complaints and other documents. Moreover, the Attorney General indicated that it will answer interrogatories on the State’s behalf. Finally, if defendant requires additional discovery, Supreme Court Rule 204 (134 Ill. 2d R. 204) allows defendant to obtain discovery from nonparties. Under the circumstances, we believe that the discovery procedures available to defendant under the Consumer Fraud Act comport with due process.

Nor does James Lann’s death subsequent to the filing of this appeal alter our conclusion. It is undisputed that a consumer fraud action does not abate upon a defendant’s death. (People ex rel. Fahner v. Testa (1983), 112 Ill. App. 3d 834, 445 N.E.2d 1249.) The State’s complaint, which also seeks an order barring the depletion or transfer of estate assets, the rescission of consumer contracts and the assessment of costs and penalties, refutes the argument that Lann’s death eliminates the State’s interest in enjoining the alleged illegal practices, and reduces the State’s interest to consumers’ restitution claims.

We recognize the broad discretion normally afforded to the trial court in discovery matters and the broad scope of discovery generally. (Marsh v. Lake Forest Hospital (1988), 166 Ill. App. 3d 70, 519 N.E.2d 504.) We also acknowledge the circuit court’s concern that certain consumers may receive double recovery against defendant. Nothing in our opinion, however, precludes the circuit court from fashioning an order diminishing the likelihood of double recovery. We conclude that the trial court’s order here violates the Act.

For the foregoing reasons, in answering the certified question, we hold that when the Attorney General seeks restitution under the Consumer Fraud Act, individual consumers may not be considered party plaintiffs for discovery purposes only. Accordingly, the order of the circuit court of Cook County is reversed.

Judgment reversed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE STOUDER

text:
    KROPP FORGE COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Francene Zozaski, as Parent and Custodian of Christopher Zozaski et al., Minor Children of Dennis Zozaski, Deceased, Appellees).
    First District (Industrial Commission Division)
    No. 1 — 91—0175WC
    Opinion filed January 31, 1992.

      Jobin & Flynn, of Chicago, for appellant.
    Lannon, Lannon & Barr, Ltd., of Chicago (Richard J. Barr, Jr., of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Following the death of Dennis Zozaski, the petitioners, Francene, Christopher, and Gregory Zozaski, brought a claim for workers’ compensation against the respondent, Kropp Forge Company. The arbitrator found that Dennis’ death arose out of his employment and awarded Christopher and Gregory, who were Dennis’ minor sons, $283.33 per week, until the youngest reached the age of 18. The Industrial Commission (Commission) affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision. The respondent appeals.

At the hearing before the arbitrator, it was established that the respondent is a forging manufacturer which uses several furnaces to treat various metals. Dennis Zozaski, the decedent, was employed by the respondent as an instrument technician. His job was to maintain, inspect, and repair various instruments located on the outside and inside of the respondent’s furnaces.

Dale Sevhla of the Cicero police department was called to the respondent’s company at 5 a.m. on October 4, 1985. Sevhla observed a body in flames inside furnace 201. After waiting eight hours for the furnace to cool, he entered and removed the decedent’s body. The decedent was still wearing his glasses. Evidence technicians also removed four beer cans, pliers, a gauge, a wrench set, goggles, and a hard hat. No flashlight was found in the furnace.

Furnace 201 was approximately 10 feet high, 10 feet wide, and 35 to 40 feet long. Materials were wheeled in and out of the furnace on a flatbed car which had steel wheels and ran on steel tracks. When the car entered the furnace, it became the furnace’s floor, covering the entire length and width of the furnace. A door would then come down to close the furnace. The decedent was found pinned between the back wall of the furnace and the car.

The decedent arrived at work at approximately 6:15 a.m. on October 3, 1985. His supervisor was not present. Co-employee Mark Bolen testified that he gave the decedent a ride to work that morning and did not notice alcohol on his breath. The last time Bolen spoke with the decedent was 7:30 a.m. that day on the telephone. The decedent told Bolen he was feeling tired and was going to find a place to lie down. Bolen admitted that he had given a prior statement in which he stated that the decedent had said he wanted to find a hole to crawl into. Bolen left work at 2:30 p.m. without the decedent. He noted that he had never seen the decedent sleeping in a furnace or anywhere else on the job.

Michael McDaniels, the decedent’s immediate supervisor, testified that the employees in his charge, including the decedent, often performed unscheduled work inside the furnaces. McDaniels stated that his instrument repairmen would not know when a furnace was going to be run. When working inside a furnace, an employee was supposed to chain the door up so it could not close. In addition, tags were to be placed on the furnace warning that a worker was inside. Safety rules and bulletins were posted in the shop, and warning stickers were made available to employees. However, McDaniels stated that hardly anyone ever followed these safety procedures. The workers also did not notify anyone when they were working inside a furnace. When McDaniels saw workers not following safety procedures, he would reprimand them, but there were no written disciplinary actions and he did not punish them in any way.

According to McDaniels, a flashlight would not normally be needed for an inspection of a furnace, although it would be handy to have one. He noted that there was enough natural light by furnace 201 for someone to be able to inspect inside. However, to do repairs, a flashlight would be needed.

McDaniels further testified that the decedent had worked for him for approximately three years. During that time, he had observed the decedent inside furnaces approximately once every two weeks. The decedent had a hearing problem, and McDaniels sometimes had to yell to be heard by him. The decedent had often told McDaniels that he wanted to find a hole to crawl into, but McDaniels had never seen the decedent sleeping on the job. Occasionally, the decedent had come to work and told McDaniels that he had been drinking. On those occasions the decedent did not smell of alcohol, nor did he stumble or stagger. McDaniels would watch him closely and noted that he was able to perform his duties. According to McDaniels, the decedent was not a beer drinker and there were often empty beer cans scattered all around the furnace area. McDaniels stated that the decedent never drank at work, nor did McDaniels ever see him bring alcohol to work.

Pat Rangel, the chief metallurgist and heat treatment superintendent for the respondent, testified that no work could be done on a furnace without her knowledge. According to Rangel, such work would have to be ordered by a letter from her department to the instrument department. Standard procedure required a minimum of two men for any repair work. If inside work was required, the furnace doors would be blocked or chained. Rangel stated that she had never seen an instrument repairman inside a furnace.

Rangel further testified that no repairs were scheduled for furnace 201 on October 3, 1985. She stated there were no problems with furnace 201 that day or in the days immediately prior. According to Rangel, the flatbed car had been pulled out of furnace 201 and it was turned off on the morning of October 2, 1985. The furnace then remained open until 10:30 a.m. on October 3, 1985, when the car was moved into the furnace to obtain floor space. The car was removed at 4 p.m., loaded, placed in the furnace at 7 p.m., and the furnace was activated.

Rangel further stated that she had had a conversation with the decedent in her office on October 2, 1985. They were face to face, about four feet apart. She spoke in a normal tone and the decedent appeared to understand her.

Both McDaniels and Rangel testified regarding the ventilation in furnace 201. Rangel stated that ventilation would come from the open door of the furnace and cross-ventilation from the floor. McDaniels stated that this ventilation occurred when the flatbed car was out and the furnace door was open. According to McDaniels, there were occasional gas leaks inside the furnaces, which the instrument repairmen were required to fix. Rangel stated that approximately one month prior to the decedent’s death, another furnace, 202, had exploded. The suspected cause was gas accumulation. Following the decedent’s death, OSHA conducted an investigation and ordered the removal of certain obsolete piping to improve the ventilation of furnace 201. McDaniels stated that this only slightly changed the ventilation.

McDaniels and Rangel both testified regarding the sound and speed of a flatbed car as it moved into a furnace. McDaniels described the motor as quiet, but the wheels made a squeaky noise. He described the speed as walking speed or one foot per second. Rangel stated the wheels squealed and it was quite noisy. She described the speed as a very slow walk.

Frank Cooney, another of respondent’s employees, testified that he saw the decedent at approximately 6:15 a.m. on October 3, 1985. There was nothing unusual about the decedent, and he- did not smell of alcohol. Cooney stated that the decedent was hard of hearing and it was necessary to get his attention first and then talk “real loud” to him. Additionally, Cooney had never seen the decedent sleeping during work.

Francene Zozaski, the decedent’s former wife, testified that he had a hearing problem that made it necessary to be within a few feet of him to communicate. She also stated that the decedent read lips. According to Zozaski, the decedent wore glasses but would take them off before napping.

The decedent’s preemployment physical report was introduced. It indicated a problem with the decedent’s hearing and recommended that a further examination be done to determine whether he needed a hearing aid.

It was stipulated that the decedent had received treatment at a hospital detoxification center approximately 10 months prior to his death. The respondent attempted to introduce these hospital records, contending they showed the decedent’s lifelong problem with drinking. The arbitrator ruled the records inadmissible, stating that what happened to the decedent 10 months earlier was not relevant to whether he was intoxicated the day he died.

Dr. Schaffer, chief toxicologist of the Cook County medical examiner’s office, described two tests done on blood and brain tissue samples taken from the decedent. According to Schaffer, the decedent was intoxicated. However, he also stated that a person’s intoxication depends on the individual’s level of alcohol tolerance, and a person’s tolerance affects whether he can perform certain activities. Schaffer admitted that he did not know the decedent’s tolerance for alcohol.

The arbitrator found that the decedent had sustained an accident which arose out of and in the course of his employment and which caused his death. He therefore awarded death benefits as previously described. The Commission affirmed the arbitrator’s decision, and the circuit court confirmed the Commission’s decision.

On appeal, the respondent first argues that the Commission’s decision that the decedent’s injuries and death arose out of his employment was against the manifest weight of the evidence. The respondent contends that death benefits should have been denied in the instant case because the decedent manifested a clear intention to remove himself from his employment when he advised his co-worker, Bolen, that he was going to find a place to lie down. The respondent also asserts that no evidence was presented that the decedent was performing his duties at the time of his death.

An injury is compensable under the Act only if it arises out of and in the course of employment. (Panagos v. Industrial Comm’n (1988), 171 Ill. App. 3d 12, 524 N.E.2d 1018.) For an injury to arise out of one’s employment, it must have an origin in some risk connected with or incidental to the employment so that there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) An injury is in the course of employment when it occurs within the period of employment at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto. (Panagos, 171 Ill. App. 3d at 15, 524 N.E.2d at 1020.) If an employee is injured as the result of his violation of the employer’s safety rules, but is attempting to do the work he is employed to do, but merely violating the rule as to the manner of doing it, his injury is compensable. Chadwick v. Industrial Comm’n (1989), 179 Ill. App. 3d 715, 534 N.E.2d 1000.

It is the function of the Industrial Commission to decide questions of fact and causation and to judge the credibility of the witnesses. (O’Dette v. Industrial Comm’n (1980), 79 Ill. 2d 249, 403 N.E.2d 221.) The decision of the Industrial Commission should not be disturbed unless it is contrary to the manifest weight of the evidence. (Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.) A reviewing court should not overturn the Industrial Commission’s findings simply because different inferences could be drawn, or otherwise substitute its judgment for that of the Commission. Hoegger v. Industrial Comm’n (1987), 158 Ill. App. 3d 1025, 512 N.E.2d 110.

In the instant case, the evidence was conflicting as to whether the decedent was in fact working for the respondent at the time he sustained the injuries which resulted in his death. While Bolen testified that the decedent told him he was going to find a place to sleep, he admitted that in an earlier statement he had said the decedent merely told him he wanted to find a hole to crawl into. McDaniels, the decedent’s supervisor, stated that he had often heard the decedent say this, but had never found him sleeping on the job. Cooney, another coworker of the decedent, also testified that he never saw the decedent sleeping at work. Furthermore, the decedent was wearing his glasses when his body was found and this appears to be inconsistent behavior for one whose alleged purpose was to take a nap.

Additionally, although Rangel testified that no work could be done on the furnaces without her knowledge, her testimony was contradicted by McDaniels, who stated that his instrument repairmen often performed unscheduled work inside the furnaces. The respondent also asserts that the decedent could not have been working in the furnace since no flashlight was found with his body. However, McDaniels’ testimony indicated that certain inspections could be done on the inside of the furnaces without a flashlight. Furthermore, other work tools were found near the decedent’s body.

We note that several witnesses testified to the decedent’s hearing problem. Only Rangel stated that she had no problem communicating with the decedent. The evidence of the decedent’s preemployment examination suggests that the respondent was aware of the decedent’s hearing problem. Finally, while it appears that the decedent did not follow the proper safety procedures, McDaniels testified that hardly anyone ever followed them, and there was no apparent policy for enforcing them.

Clearly, there was enough evidence presented in the instant case from which the Industrial Commission could reasonably infer that the decedent had been performing his work in an area where he was expected to be at the time he died. Additionally, the fact that he may have violated safety rules is irrelevant, especially since there was evidence that they were not enforced. For these reasons, we hold that the Commission’s finding was not against the manifest weight of the evidence.

The respondent next argues that the decedent’s intoxication barred the recovery of death benefits as a matter of law. It contends that the decedent’s death either arose out of the intoxication, or the intoxication was of such a degree that it constituted a departure from his employment.

Intoxication is not a per se bar to workers’ compensation benefits. (Riley v. Industrial Comm’n (1991), 212 Ill. App. 3d 62, 570 N.E.2d 887.) For compensation to be denied on the basis of intoxication, the evidence must show that the employee was so intoxicated that the court can say as a matter of law that the injury arose out of his drunken condition and not out of his employment. (Paganelis v. Industrial Comm’n (1989), 132 Ill. 2d 468, 548 N.E.2d 1033; Riley v. Industrial Comm’n (1991), 212 Ill. App. 3d 62, 570 N.E.2d 887.) Whenever an employee is so drunk and helpless that he can no longer follow his employment, and he is injured in that condition, his injury does not arise out of his employment. However, intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation even though the intoxication may be a contributing cause of his injury. District 141, International Association of Machinists & Aerospace Workers v. Industrial Comm’n (1980), 79 Ill. 2d 544, 404 N.E.2d 787.

Resolving disputes in the evidence and drawing reasonable inferences and conclusions therefrom is the responsibility of the Industrial Commission. (County of Cook v. Industrial Comm’n (1988), 177 Ill. App. 3d 264, 532 N.E.2d 280.) The Commission’s findings will not be reversed on appeal unless they are against the manifest weight of the evidence. Glover v. Industrial Comm’n (1985), 140 Ill. App. 3d 361, 485 N.E.2d 605.

In the instant case, Dr. Schaffer opined that the decedent was intoxicated. However, he also stated that a person’s level of tolerance for alcohol would affect whether he could perform certain tasks. Schaffer admitted that he did not know the decedent’s tolerance for alcohol.

Additionally, McDaniels testified that on occasion the decedent would come to work and tell McDaniels that he had been drinking. McDaniels would watch the decedent closely and noted that he was able to perform his work. While four beer cans were found in the furnace with the decedent’s body, McDaniels stated that there were often empty beer cans in the furnace area. Also, none of the witnesses who last saw the decedent noticed the smell of alcohol or anything unusual about him.

We find that the evidence in the instant case was such that the Commission could have reasonably inferred that the decedent’s death did not arise out of intoxication and that he was not so intoxicated that it constituted a departure from his employment. Accordingly, the Commission’s conclusion was not against the manifest weight of the evidence.

Finally, the respondent contends that the circuit court improperly excluded the decedent's medical records from evidence. Specifically, it argues that the decedent’s hospital records relating to his treatment in a detoxification program should have been admitted into evidence. At arbitration, the respondent argued that the records were relevant to show the decedent’s alleged lifelong problem with drinking. Before the circuit court, the respondent also argued for the first time that the records were relevant to the issues of the decedent’s tolerance for alcohol and his hearing condition.

An arbitrator’s decision should not be reversed based on contentions not presented to him and raised for the first time on appeal. Failure to raise issues before the arbitrator results in their waiver. Thomas v. Industrial Comm’n (1980), 78 Ill. 2d 327, 399 N.E.2d 1322.

Initially, we note that we agree with the arbitrator’s ruling that the records were irrelevant to the issue of whether the decedent was drunk at the time he died. Furthermore, the petitioners’ attorney stipulated that the decedent had undergone a hospital detoxification program 10 months prior to his death. Therefore, the arbitrator was aware that the decedent had a drinking problem in his past.

Additionally, we hold that since the respondent’s other bases for admission of the records were never presented to the arbitrator they are waived and the circuit court was correct in not considering them on appeal.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MCCULLOUGH, P.J., and WOODWARD, LEWIS, and RAKOWSKI, JJ., concur.


author: JUSTICE O’CONNOR

text:
    MICHAEL HYAMS, a Minor, by Patricia Hyams, His Mother and Next Friend et al., Plaintiffs-Appellees, v. EVANSTON HOSPITAL et al., Defendants (Alan J. Schumacher, Contemnor-Appellant).
    First District (1st Division)
    No. 1 — 91—0326
    Opinion filed February 3, 1992.

      Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Scott O. Reed, of counsel), for appellant.
    Hilfman & Fogel, P.C., of Chicago (Louis Hilfman, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants’ attorney, Alan J. Schumacher, appeals from an order of the circuit court which held him in contempt of court for refusing to produce certain documents demanded by plaintiffs during discovery. Schumacher was assessed a fine of $25 for his refusal to comply with the court’s order. For reasons which follow, we affirm the circuit court’s ruling and vacate the finding of contempt.

On June 6, 1985, plaintiffs, Patricia and Ron Hyams, on behalf of themselves and their son, Michael, filed a medical malpractice action against defendants, Evanston Hospital, Dr. Rodney Lamb, and Dr. Averon Ellis. The complaint alleged that defendants negligently cared for Patricia during Michael’s birth on November 28, 1983, which resulted in injury to Michael. During the course of discovery, plaintiffs sought the production of “reports, correspondence, notes, memoranda and/or other records and documents of any parties, witnesses and agents, servants and conversations or observations with the plaintiffs, parties or witnesses with regard to the subject occurrence, and any care and treatment to the plaintiffs at any time.” Plaintiffs supplemented this request by filing an additional interrogatory requesting the identity of any persons having knowledge of any alleged negligence in the treatment of Patricia and Michael.

Defense counsel objected to the request, arguing that, other than the medical records previously produced, all other documents were protected under the attorney-client privilege. In response, plaintiffs sought identification and production of the records referred to by the defense, and the court set a briefing schedule.

Defendants asserted that the statements which would be responsive to the request were either taken from defendants or their agents by counsel or were taken by personnel from the insurance carrier, pursuant to its duty to defend and indemnify defendants and their agents and employees. Counsel also noted that all individuals who gave these statements were available to be deposed.

On May 25, 1988, the court ordered production of all nonprivileged documents, identification of all materials in which privilege was claimed, and copies of the material for an in camera inspection. Defendants then moved for reconsideration of the order.

Meanwhile, defense counsel identified three documents to which a privilege was claimed. These documents were the typed transcriptions of recorded statements taken from nurses Helen Snead on September 17, 1985, Jane Schwab on November 5, 1985, and Cathy Perkowitz on January 27, 1987, by personnel from the hospital’s insurance carrier, acting as agents of defense counsel. Defendants asserted the attorney-client privilege and work product doctrine for all three of these documents.

The circuit court modified its previous discovery order, requiring the defendants to produce all nonprivileged documents and permitting the defendants not to identify or produce all communications between the named defendants and their attorneys or insurers. The court ordered production of the nurses’ statement by November 21, 1990, for an in camera inspection. On November 28, 1990, defendants’ counsel again raised the attorney-client privilege and the work product doctrine. The court ruled that the nurses were not insured under the insurance contract. The court later found that the nurses were not part of the hospital’s control group and that no attorney mental impressions had been involved in taking the three statements. Defendants were ordered to produce the statements by December 12, 1990. On January 3, 1991, defense counsel refused to produce the documents, and the court found him in contempt of court. The contempt order was stayed pending this appeal.

Initially, defendants maintain that, under People v. Ryan (1964), 30 Ill. 2d 456, 197 N.E.2d 15, the nurses’ statements to the insurance company are protected by the attorney-client privilege because the statements were made within the context of defending the hospital under its insurance policy. The circuit court ruled that the privilege did not apply because the nurses were not named insureds.

Supreme Court Rule 201(b) (134 Ill. 2d R. 201(b)) governs the protection of attorney-client communications from discovery. The rule provides that

“[a]ll matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (134 Ill. 2d R. 201(b)(2).)

Moreover, the party who claims a privilege has the burden of proving the facts which establish its existence. Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 337 N.E.2d 15.

In Illinois, the attorney-client privilege extends to communications between an insured and insurer, where the insurer is under an obligation to defend. (People v. Ryan, 30 Ill. 2d at 460; Braglia v. Cephus (1986), 146 Ill. App. 3d 241, 496 N.E.2d 1171.) This rule underscores the fact that the insurance carrier usually selects the attorney under a common liability contract. Therefore, “the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured.” People v. Ryan, 30 Ill. 2d at 460-61.

At bar, the circuit court stated that the nurses were not insured. Apparently, the insurance policy was never offered into evidence in the circuit court, and it has not been included in the record on appeal. No affidavits were filed attesting to the scope of the policy. Without such record evidence, it is difficult to review the circuit court’s finding on this matter; however, a similar absence of such “threshold facts” proved fatal to the proponent of the privilege in Claxton v. Thackston (1990), 201 Ill. App. 3d 232, 237, 559 N.E.2d 82. There, the proponent, like defendants at bar, failed to provide the circuit court with information about the insurance carrier and its duty to defend the defendant. Although the proponent provided the circuit court with an affidavit, the affidavit failed to supply any information concerning the identity of the insurance carrier, the policy’s coverage, and the duty to defend the lawsuit. For these reasons, the appellate court ruled the proponent had “not articulated the threshold facts necessary to qualify [the] statement as an attorney-client communication.” Claxton, 201 Ill. App. 3d at 237.

Defendants here attempt to distinguish Claxton by referring to the unsupported statement made by attorney Schumacher that the nurses were covered in the policy. This argument is unpersuasive because, in Claxton, the appellate court found a similar statement, made in an affidavit, insufficient to meet the burden of proof necessary to claim the privilege. Based on these facts, the defendants have not met their burden in proving the facts necessary to establish the statements as attorney-client communications.

Defendants next contend that the nurses are members of the hospital’s corporate control group, and as such, their statements are to be protected from disclosure.

To be entitled to the attorney-client privilege, a claimant must show that the statement originated in a confidence that it would not be disclosed, was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services, and remained confidential. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 119, 432 N.E.2d 250.) Beyond this, a corporate claimant must show that the statement was made by someone in the corporate “control group,” that is, someone who was:

“(1) *** in an advisory role to top management, such that the top management would normally not make a decision in the employee’s particular area of expertise without the employee’s advice or opinion; and (2) [whose] opinion [did] in fact form the basis of the final decision by those with actual authority.” (Archer Daniels Midland Co. v. Koppers Co. (1985), 138 Ill. App. 3d 276, 279, 485 N.E.2d 1301, citing Consolidation Coal, 89 Ill. 2d at 120.)

The focus of the court for finding the privilege is “on individual people who substantially influenced decisions, not on facts that substantially influenced decisions.” (Archer Daniels, 138 Ill. App. 3d at 280.) In other words, the concern is not on what was said, but on who said what.

Here, defendants presented no evidence which tends to prove the nurses were part of the hospital’s control group. Instead, defendants refer to Golminas v. Fred Teitelbaum Construction Co. (1969), 112 Ill. App. 2d 445, 449, 251 N.E.2d 314, where the appellate court noted that “communications by an employee of a corporation who does not come within the ‘control group’ definition may never be privileged.” (Golminas, 112 Ill. App. 2d at 449.) The court recognized that “the principle underlying the attorney-client privilege would demand that an employee’s communications should be privileged when the employee of the defendant corporation is also a defendant or is a person who may be charged with liability and makes statements regarding facts with which he or his employer may be charged, which statements are given or delivered to the attorney who represents either or both of them.” (Golminas, 112 Ill. App. 2d at 449-50, citing D.I. Chadbourne, Inc. v. Superior Court (1964), 60 Cal. 2d 723, 388 P.2d 700, 36 Cal. Rptr. 468.) In Consolidation Coal, our supreme court referred to Chadbourne, but did not utilize its rationale in adopting the control group test in Illinois. (See Consolidation Coal, 89 Ill. 2d at 119-21.) Accordingly, defendants’ arguments in this area are unpersuasive. Moreover, no evidence appears to support a finding that the nurses were part of the hospital’s control group. The circuit court did not err in its ruling.

Finally, Schumacher asks this court to vacate the contempt order because his conduct was not contemptuous and because he did not hold the circuit court in disdain or subject it to scorn.

The record clearly establishes that Schumacher’s conduct was not contemptuous. The court entered the contempt order at Schumacher’s request, which is the proper procedure to test on appeal a circuit court’s discovery order. (See CNR Investments, Inc. v. Jefferson Trust & Savings Bank (1983), 115 Ill. App. 3d 1071, 451 N.E.2d 580.) Accordingly, we direct the circuit court to vacate the contempt order.

Based on the foregoing, the circuit court’s order to produce the statements is affirmed and the order of contempt is vacated.

Affirmed; contempt order vacated.

BUCKLEY, P.J., and MANNING, J., concur.

      On appeal, defendants have abandoned their arguments based on the work product doctrine.