author: JUSTICE RARICK JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAMELLA LEWIS, Defendant-Appellant.
    Fifth District
    No. 5—90—0129
    Opinion filed June 8, 1992.

      HARRISON, J., dissenting.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Bob Haida, State’s Attorney, of Belleville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Following a jury trial, defendant, Camella Lewis, was found guilty of first-degree murder (Ill. Rev. Stat. 1989, eh. 38, par. 9 — 1(a)(2)) for the stabbing and subsequent death of her boyfriend, Louis Jones. Defendant was sentenced to a term of 24 years’ imprisonment in the Illinois Department of Corrections.

In this appeal, defendant contends that she was denied a fair trial where the trial court: (1) refused to instruct the jury on second-degree murder based on sudden and intense passion resulting from serious provocation by the deceased; and (2) denied defendant her right to cross-examine a State’s witness about charges pending against the witness. We affirm.

At trial, Irvin Duckworth testified that on August 9, 1989, he was drinking beer with the deceased around 5 p.m. when defendant came up and asked the deceased whether he was ready to go home. When the deceased said “No,” defendant replied, “When you come home, I’m going to kill you.” Duckworth stated that the deceased merely laughed and did not take the threat seriously, nor did Duckworth, because this was something defendant “always” said during their fights. According to Duckworth, defendant then returned to the residence she shared with the deceased, George Brown, and Brown’s girlfriend.

Duckworth further testified that he and the deceased drank beer until around 1 a.m., when they went to Duckworth’s residence and had a sandwich. The deceased then left Duckworth’s residence, and approximately five minutes later, Duckworth learned that the deceased had been stabbed. When Duckworth arrived at defendant’s residence, he heard her saying “Mandingo killed Louis, Mandingo killed Louis.” Duckworth testified that he had often seen defendant with a knife, which she carried in her bra. Duckworth admitted that he had been convicted of misdemeanor theft in 1983 and 1985.

Estella Jones, the deceased’s sister, testified that around 10:45 p.m. on August 9, she saw defendant and the deceased standing on 14th Street and arguing. Ms. Jones was at her home around 1 a.m. when Duckworth, who lived with her, and the deceased arrived and went to the kitchen to fix sandwiches. On his way out, the deceased knocked on her bedroom door, asked for a cigarette, and stated that he was going home. About 15 minutes later, Ms. Jones received a phone call informing her that the deceased had been stabbed. When Ms. Jones and Duckworth arrived at the deceased’s residence, defendant was there with two police officers. Ms. Jones testified that defendant told her that the deceased had gotten into an argument with a man named Mandingo and that when the deceased had pulled a knife, Mandingo had taken the knife away from the deceased and stabbed him and defendant had taken the knife from Mandingo. Defendant had changed clothes since the time Ms. Jones observed her earlier that night.

Ms. Jones testified that defendant and the deceased had been living together approximately two months and that during that time she had heard defendant threaten the deceased as “an everyday thing.” Defendant would say things to the deceased like, “I’ll kill you.” Defendant usually kept a knife in her bra. According to Ms. Jones, the deceased “wasn’t a violent type,” and she had never seen the deceased abuse defendant when he had been drinking.

George Brown, the deceased’s brother, testified that defendant and the deceased had been living at his residence for approximately two months. On the morning of August 10, defendant banged on his door. Defendant was calling Brown’s name and saying “Help.” Brown looked out his window and saw the deceased lying on the ground with defendant standing by his body. When Brown got outside, he observed defendant with a knife in her hand and he asked her what had happened. Defendant told him that the deceased had stabbed himself. Brown tried to ask the deceased what had happened, and the deceased pointed his finger at defendant. Brown again asked defendant what had happened, and she told him that three men, one named Mandingo, had stabbed the deceased. Brown saw blood on defendant’s hands, her shorts, and the knife; defendant dropped the knife in Brown’s yard.

Brown drove the deceased to the hospital, and when defendant later arrived, he told her that the deceased was dead. Defendant then repeatedly said that she “didn’t mean to do it.” Brown testified that defendant carried a knife in her bra “[e]very day,” and that when defendant and the deceased would argue, she often told the deceased that she would kill him. Brown found some of defendant’s clothes with blood on them in the bathroom of his house and turned them over to police. Brown admitted that in 1987 he was convicted of two robberies.

Officer Curtis Hill, East St. Louis police department, testified that he was dispatched to 1745 State Street around 1 or 1:30 a.m. on August 10. Upon his arrival, Officer Hill observed a large puddle of blood and a knife on the ground. Officer Hill spoke to defendant, who informed him that her boyfriend had gotten into a fight with two “guys” and that he had been stabbed by a man named Mandingo.

Dr. Harry Parks testified that he performed an autopsy on the deceased. Dr. Parks stated that the deceased suffered one wound at the base of his neck above the left collarbone, which pierced the left common carotid artery and extended down into the upper lobe of the left lung. Dr. Parks testified that death was caused by a combination of massive bleeding and the collapse of the deceased’s left lung. People’s exhibit 1, the knife found at the scene, was capable of inflicting the deceased’s wound. Dr. Parks stated that the deceased’s blood-alcohol level, indicated in the toxicology report, was 0.272 milligrams per deciliter of blood.

Detective Marion Hubbard, East St. Louis police department, testified that he interviewed defendant at the police station on August 10 and took a signed two-page statement from her. Detective Hubbard read to the jury the body of defendant’s statement:

“I have been staying at 1743 State for about two months with my boyfriend, Louis Jones, and his brother, George, and George’s girlfriend. Louis and I would fight all the time. The reason I had the small kitchen knife with me is because I always carried a knife. I carried it for protection because Louis, when he got drunk he always jumped on me. We were coming from about 14th and Columbia Place from his sister’s house when we were arguing. When we got out in front of the apartment building on State Street, Louis slapped me and we got to fighting. When Louis hit me, I had the knife in my hand and it fell on the ground. We were down on the ground wrestling over the knife and I got the knife and I accidentally stabbed him. I don’t know where I stabbed him at. There was a lot of blood on me and Louis was on top of me, so I got him off of me and then I called George for help, who was upstairs in the apartment. When George came down I told him that Mandingo and three more dudes had jumped him. George picked up Louis and put him in the car and took him to the hospital. I went upstairs and washed the blood off of me and I changed shorts because they had blood on them. Then I walked to Community Hospital. When I got there George told me that Louis was dead. I thought he was playing. I told him, [‘]Why don’t you quit lying,[’] and the police officer told me to get into the car. We drove back to the apartment building first and then the police officer arrested me and took me to jail.
I did not mean to kill Louis. I did not know he was dead until later.”

Defendant testified that she had been involved with the deceased for approximately four months and had been living with him at George Brown’s residence for about two months. Defendant testified that the deceased “was nice until he started drinking,” and then he became “very violent” and liked to argue and fight. Defendant stated that the deceased had previously threatened her during these arguments, once drawing a two-by-four board on her and another time breaking a glass and trying to cut her with it, but both times she had run away. Defendant testified that she carried a knife for protection from the deceased because she was afraid of the deceased when he was intoxicated.

On the evening of August 9, defendant and the deceased had gone to an apartment complex at Columbia Place. Defendant stated that while they were there, she drank one beer and the deceased drank several beers. Duckworth and the deceased drank together all evening, and defendant knew the deceased was drunk. Upon leaving, defendant and the deceased went to his sister’s house, and the deceased went in, got a cigarette, and came out. On the walk home, the deceased began arguing with defendant and slapped her. Defendant testified that they had reached the front of their apartment when the deceased

“started hitting on me [sic] and I pulled my knife and it fell and I fell down and I got the knife and he was choking me and I tried to get him off of me, so I cut him with the knife and I seen [sic] blood and I got him up off of me and I went upstairs, told George to call the police and the ambulance because I needed some help.”

Defendant stated that she originally told Brown a different story because he “was talking about jumping on” her and she was afraid of him. After the deceased was taken to the hospital, defendant went upstairs, wiped off some of the blood, put on old clothes, and ran to the hospital. Defendant stated that she did not intend to kill the deceased, but that she was scared and was “just trying to get him off me because he was choking me very hard.” Defendant denied ever threatening the deceased and denied pulling the knife before their fight began.

Dr. Christopher Long testified that he operates the forensic toxicology laboratory at St. Louis University. Dr. Long’s laboratory received and analyzed the deceased’s blood sample and found it to contain 0.272 grams of alcohol per 100 milliliters of blood. Dr. Long stated that a blood-alcohol level between .20 and .30 was indicative of “very heavy alcohol consumption” and that the deceased’s level of .27 could reasonably be described as “pretty drunk.”

At the jury instructions conference, defense counsel tendered instructions concerning second-degree murder based on “serious provocation” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aXl); Hlinois Pattern Jury Instructions, Criminal (hereinafter IPI Criminal), Nos. 7.03A, 7.04A (2d ed. 1989 Supp.)), second-degree murder based on an “unreasonable” belief in the need for self-defense (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2(aX2); IPI Criminal 2d, Nos. 7.05A, 7.06A (1989 Supp.)), and involuntary manslaughter based on an act performed “recklessly” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 3(a); IPI Criminal 2d, Nos. 7.07, 7.08). The State argued that both forms of mitigation in second-degree murder could not be presented to the jury because “[tjhey’re not logically or legally consistent.” The prosecutor further contended: “I don’t think a defendant can have both theories. They have to elect which they’re going to go under. Is the defendant acting under serious provocation or does the defendant think [she’s] acting in self-defense?”

The trial court originally ruled that the jury would be given instructions on both forms of second-degree murder but later reversed its decision and ruled that both forms of mitigation could not be presented to the jury. The court then refused defendant’s tendered instructions on second-degree murder based upon provocation. Defendant contends that the trial court’s rejection of these instructions constituted reversible error. We do not agree.

In 1987, the Illinois General Assembly amended the Criminal Code of 1961 (Code) and replaced voluntary manslaughter with second-degree murder. However, the case law involved pertaining to voluntary-manslaughter and murder under the old law is applicable to first-degree murder and second-degree murder under the new law. See People v. Johnson (1991), 215 Ill. App. 3d 713, 727-29, 575 N.E.2d 1247, 1256-57 (appellate court, when deciding whether trial court in first-degree murder case abused its discretion by refusing defendant’s offer of second-degree murder instructions based upon “serious provocation,” considered five cases dealing with “serious provocation,” all of which were decided under the old voluntary manslaughter statute).

If there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, a manslaughter instruction tendered by the defendant must be given. (People v. Leonard (1980), 83 Ill. 2d 411, 420-21, 415 N.E.2d 358, 363.) Moreover, when there is evidence in the record to support “unreasonable belief” voluntary manslaughter as well as “provocation” voluntary manslaughter, the court must give instructions on both. (See People v. Craven (1973), 54 Ill. 2d 419, 425-26, 299 N.E.2d 1, 4-5; People v. March (1981), 95 Ill. App. 3d 46, 54, 419 N.E.2d 1212,1218 (it is permissible to instruct the jury as to both types of voluntary manslaughter).) Therefore, although the trial court in the case at bar erroneously concluded that it could not instruct the jury on both forms of second-degree murder, the error is only prejudicial to defendant if the evidence of record supported both theories.

A defendant in a criminal case is entitled to have the jury consider any legally recognized defense which has a foundation, however tenuous, in the evidence. (People v. Robinson (1989), 189 Ill. App. 3d 323, 349, 545 N.E.2d 268, 286.) A “provocation” voluntary manslaughter instruction is warranted where the evidence indicates that the defendant acted as a result of sudden and intense passion resulting from provocation. |(People v. Ford (1987), 163 Ill. App. 3d 497, 502, 516 N.E.2d 766, 770.) Mutual quarrel, combat, or assault is evidence of ad-Sate provocation to require a voluntary manslaughter instruction. Robinson, 189 Ill. App. 3d at 349, 545 N.E.2d at 286.

When mutual combat occurs immediately preceding or during the infliction of death, the voluntary manslaughter instruction may not be refused, even if the defendant was the aggressor at the outset. Nor may the instruction be validly refused on the ground that there was evidence that defendant’s intent to kill was formulated at an earlier time, if there is evidence that the defendant’s criminal intent may have arisen during or out of the heat of the altercation. (Robinson, 189 Ill. App. 3d at 349-50, 545 N.E.2d at 286; see also Leonard, 83 Ill. 2d at 420-23, 415 N.E.2d at 358.) The instruction is required even if the evidence of mutual combat is only a momentary scuffle. (Robinson, 189 Ill. App. 3d at 350, 545 N.E.2d at 286; see also March, 95 Ill. App. 3d at 54, 419 N.E.2d at 1218.) Accordingly, where there is sufficient evidence of mutual combat in the record, it is reversible error to refuse such an instruction. Johnson, 215 Ill. App. 3d at 728, 575 N.E.2d at 1257.

In the instant case, there is no evidence which warranted the giving of a second-degree murder instruction based on serious provocation. The record shows that the deceased had been drinking throughout the evening and, considering his blood-alcohol level, was extremely drunk. Defendant testified that when the deceased drank he would get very violent and “jump on” her, and that she carried a knife for protection against defendant. Several State’s witnesses confirmed that defendant and the deceased argued regularly, and defendant testified that during previous arguments deceased had threatened her, once with a board and once with a broken glass. Defendant testified that the deceased “started hitting *** me and I pulled my knife and it fell and I fell down and I got the knife and he was choking me and I tried to get him off of me, so I cut him with the knife.”

Defendant’s written statement also mentioned that she frequently fought with the deceased and that her fear of the deceased was her reason for carrying a knife. Defendant’s statement indicated that at the time the deceased was stabbed, the two were fighting and “were down on the ground wrestling over the knife.” Evidence that not only defendant’s hands but also her shorts were bloodstained is consistent with her claim that the stabbing occurred during a struggle or combat with the deceased.

Given the relevant facts of this case, we believe People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295, is controlling. In Slaughter, the reviewing court found that the trial court’s decision not to give an instruction on “provocation” voluntary manslaughter was proper because the defendant had consistently testified that his actions were defensive and motivated by fear and the desire to escape from the victim. The testimony of the defendant in the present case likewise demonstrates that her actions were motivated by fear of the deceased and were defensive in nature. Although defendant and the deceased struggled, there is nothing to indicate that defendant willingly participated in the struggle. To warrant a “provocation” instruction based upon mutual combat, the struggle must be mutual. Struggling with an attacker in an effort to ward off or defend one’s self against an assault is not sufficient to warrant a provocation instruction. As in Slaughter, the record in the present case is “devoid of evidence that defendant acted under sudden and intense passion due to provocation” at the time of the stabbing. 84 Ill. App. 3d at 1109, 405 N.E.2d at 1301.

Defendant next argues that her right to cross-examine a State’s witness was improperly restricted when the trial court refused to allow defense counsel to question George Brown about his pending residential burglary charge. We do not agree.

The sixth amendment to the Federal constitution protects the defendant’s right of cross-examination, and the defendant should be allowed a wide latitude to show bias. (People v. Owens (1984), 102 Ill. 2d 88, 103, 464 N.E.2d 261, 267-68, cert, denied (1984), 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 361; People v. Paisley (1986), 149 Ill. App. 3d 556, 560, 500 N.E.2d 96, 98-99.) The pending charges of a witness are admissible to show that his testimony might be influenced by bias, interest, or a motive to testify falsely. (People v. Triplett (1985), 108 Ill. 2d 463, 475, 485 N.E.2d 9, 15.) Cross-examination for this type of impeachment is a matter of right subject only to the trial court’s broad discretion to preclude repetitive or unduly harassing interrogation and to confine the cross-examination to proper subject matter. Paisley, 149 Ill. App. 3d at 560, 500 N.E.2d at 99; see also Triplett, 108 Ill. 2d at 475, 485 N.E.2d at 15.

In the case at bar, defense counsel, during cross-examination, asked State’s witness George Brown whether he was “currently being charged for another offense.” The State objected and moved for a mistrial, arguing that no “deals” had been made with the witness and that evidence that the witness was charged with an offense was irrelevant unless there was evidence of a deal. Arrests or charges to be used against a witness

“must give rise to the inference that the witness has something to gain or lose by his testimony. [Citation.] In other words, the State must have some ‘leverage’ over the witness.” Triplett, 108 Ill. 2d at 481-82, 485 N.E.2d at 18.

Although the defendant does not have to show prior to examining the witness that the witness has been promised leniency or expects to receive favorable treatment (Triplett, 108 Ill. 2d at 476, 485 N.E.2d at 15), the State’s Attorney’s affidavit demonstrates that defense counsel knew before trial that no “deals” had been made. Further, because there was no offer of proof demonstrating that the evidence excluded had a positive and direct bearing on the issue of bias or motive to testify falsely, it was not error for the trial court to foreclose this line of inquiry. People v. Johnson (1986), 150 Ill. App. 3d 1075, 502 N.E.2d 304.

Based upon the foregoing, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

H. LEWIS, J., concurs.

JUSTICE HARRISON,

dissenting:

I decline to join in the majority’s opinion in this case because I believe there was sufficient evidence presented at trial to warrant the giving of a second-degree murder instruction based on serious provocation. Although the majority admits that where there is evidence of mutual combat in the record it is reversible error to refuse such an instruction (People v. Johnson (1991), 215 Ill. App. 3d 713, 728, 575 N.E.2d 1247, 1257), it concludes that the combat was not mutual because “there is nothing to indicate that defendant willingly participated in the struggle.” (229 Ill. App. 3d at 881.) However, mutual combat is defined as a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. People v. Austin (1989), 133 Ill. 2d 118, 125, 549 N.E.2d 331, 334; People v. Burks (1981), 103 Ill. App. 3d 616, 621, 431 N.E.2d 1085, 1088.

As the majority notes, the record shows that at the time of the incident, the deceased was extremely drunk. Defendant testified that when the deceased drank he would get very violent and that the two frequently argued and fought when he drank. Defendant’s written statement indicated that the two had been arguing, that the deceased slapped her, that they began fighting and “were down on the ground wrestling over the knife” when the deceased was stabbed. Similarly, in Burks, the reviewing court held that there was sufficient evidence to find the defendant had committed voluntary manslaughter based on serious provocation where an argument erupted which escalated into a physical assault and ended with the victim being stabbed. (103 Ill. App. 3d at 620-21, 431 N.E.2d at 1088.) Given the past incidents of drinking and arguing between the pair, and the evidence that such an argument escalated into mutual combat at the time of the stabbing, an issue of fact existed as to whether defendant was provoked. See People v. Dare (1986), 140 Ill. App. 3d 413, 420, 488 N.E.2d 1304, 1308-09; Johnson, 215 Ill. App. 3d at 728, 575 N.E.2d at 1256-57.

The majority cites People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295, as controlling because here, as in Slaughter, the defendant testified that her actions were defensive and motivated by fear of the deceased. However, a defendant’s testimony that he acted in self-defense does not negate his right to a manslaughter-provocation instruction. (People v. Ford (1987), 163 Ill. App. 3d 497, 503, 516 N.E.2d 766, 770.) Furthermore, where the court in Slaughter admitted that the defendant’s testimony that the victim grabbed him and choked him before the fatal stabbing “could constitute serious provocation,” its conclusion that the record was “devoid of evidence that defendant acted under sudden and intense passion due to provocation” is totally incongruous and should not be followed. Slaughter, 84 Ill. App. 3d at 1109, 405 N.E.2d at 1301.

The record herein contained evidence which could support the conclusion that defendant acted under sudden and intense passion at the time of the stabbing. The trial court’s failure to instruct the jury on second-degree murder based on provocation precluded defendant from obtaining the jury’s consideration of this theory, despite the evidentiary basis for it. This error requires reversal of defendant’s conviction and remandment of the cause for a new trial. See People v. Barnes (1982), 107 Ill. App. 3d 262, 267-68, 437 N.E.2d 848, 852.

I also disagree with the majority’s conclusion that it was not error for the trial court to deprive defendant of her right to cross-examine a State’s witness about his pending felony charge. Although the State’s Attorney’s affidavit represents that no “deals” had been made with the witness, this fact does not preclude inquiry as to the pending charge because, as the majority concedes, defense counsel need not show beforehand that any promises of leniency have been made or that any expectations of special favor exist in the mind of the witness. (People v. Triplett (1985), 108 Ill. 2d 463, 476, 485 N.E.2d 9, 15.) Further, counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. (108 Ill. 2d at 476, 485 N.E.2d at 15.) Rather, the only requirement when impeaching by showing bias, interest or motive is that the evidence used must not be remote or uncertain and must give rise to the inference that the witness has something to gain or lose by his testimony. (108 Ill. 2d at 475-76, 485 N.E.2d at 15.) Here, the evidence was not remote or uncertain. The record shows that the witness had a pending residential burglary charge, and the existence of this charge gave rise to the inference that the witness had something to gain or lose by his testimony. Thus, the fact that no “deals” had been made should not have prevented inquiry into the witness’ pending charge, where that information’s only relevance was to rebut the inference arising from that charge.

The majority further argues that no error occurred in foreclosing this line of inquiry where there was no offer of proof “demonstrating that the evidence excluded had a positive and direct bearing on the issue of bias or motive to testify falsely,” citing People v. Johnson (1986), 150 Ill. App. 3d 1075, 1082, 502 N.E.2d 304. However, in People v. Paisley (1986), 149 Ill. App. 3d 556, 500 N.E.2d 96, also cited by the majority, the court held that despite a witness’ testimony during an offer of proof that he had not entered negotiations with the State regarding his pending charges and had not been promised or led to believe that his testimony would affect his treatment in his case, evidence of his pending charges should have been presented where it would have shown possible bias in his testimony resulting from a desire to affect his treatment in jfuture negotiations on the charges. 149 Ill. App. 3d at 561, 500 N.E.2d at 100.

The United States Supreme Court has declared that revealing a witness’ possible biases, prejudices or ulterior motives was “a proper and important function of the constitutionally protected right of cross-examination.” (Davis v. Alaska (1974), 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 354, 94 S. Ct. 1105, 1110.) In Davis, the defendant was precluded from cross-examining a witness regarding his probationary status and hence his possible bias. The Court concluded:

“[I]t seems clear to us that to make *** inquiry [into the witness’ credibility] effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliance of the witness. [The defendant] was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Janis [(1966)], 384 U.S. 1, 3[, 16 L. Ed. 2d 314, 316, 86 S. Ct. 1245, 1246].’ Smith v. Illinois [(1968), 390 U.S. 129, 131, 19 L. Ed. 2d 956, 959, 88 S. Ct. 748, 750.]” Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105,1111.

The Davis Court’s rationale was followed by our supreme court in Triplett (108 Ill. 2d at 479-86, 485 N.E.2d at 17-20), and I believe it is equally applicable in the instant case. Thus, because I believe reversible error to have been committed, I would remand for a new trial.


source: Caselaw Access Project

author:
JUSTICE HARRISON
      JUSTICE RARICK,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BENNY STEWART, Defendant-Appellee.
    Fifth District
    No. 5—91—0214
    Opinion filed June 9, 1992.
    RARICK, J., dissenting.
    Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The State appeals from an order granting defendant Benny Stewart’s motion in limine to bar statements or other evidence regarding the use of bloodhounds to follow a trail. The State argues that the trial court erred in excluding the bloodhound evidence and alternatively that the cause should be remanded to allow the State to present an offer of proof as to the reliability of bloodhound evidence.

Before considering the propriety of the trial court’s order, we must first address defendant’s motion to strike the State’s statement of facts. Defendant contends that the statement of facts must be stricken because the majority of facts reported therein are garnered from police reports which were never admitted into evidence. We decline to grant defendant’s motion as the material was properly included in the record on appeal; however, we do not rely upon this evidence in our determination of the issues presented. People v. Arkebauer (1990), 198 Ill. App. 3d 470, 471, 555 N.E.2d 1162, 1163; People v. Brackett (1986), 144 Ill. App. 3d 442, 446, 494 N.E.2d 610, 613, aff’d (1987), 117 Ill. 2d 170, 510 N.E.2d 877.

In this case, defendant was charged with three counts of murder (Ill. Rev. Stat. 1989, ch. 38, pars. 9 — 1(a)(1), (a)(2)) in the death of his mother, Marilyn Stewart. At the preliminary hearing, Sergeant Mark Doris of the Illinois State Police testified, inter alia, that the deceased was found on the morning of September 11, 1990, near her automobile in a parking lot in Teutopolis, Illinois. A set of keys, identified as belonging to the deceased, was found a short distance from the body along a railroad track. On September 12, a bloodhound was brought in to pick up a trail at the location where the keys were found. Sergeant Doris stated that the dog was allowed to sniff a piece of sterile gauze which had earlier been placed on the passenger seat of the deceased’s automobile. The dog followed the scent for a distance of approximately 10 miles to the adjacent residences of the deceased and defendant.

At the hearing on defendant’s motion in limine to bar the presentation of bloodhound evidence to the jury, defendant argued that under the Illinois Supreme Court holding in People v. Pfanschmidt (1914), 262 Ill. 411, 104 N.E. 804, the bloodhound tracking of man or animal is inherently unreliable and that it is reversible error to admit that type of evidence in any case. Defense counsel further argued that “it is not possible to lay a foundation as to reliability or relevancy to admit [bloodhound evidence] because of the holding in Pfanschmidt." In response, the State argued that since the time of the Pfanschmidt opinion in 1914, there had been “major strides *** as far as training and the record keeping and so forth on bloodhounds,” so that with adequate foundation the court could reasonably find the evidence admissible. In support of this argument, the State noted that bloodhound evidence had been presented to the jury in several recent murder cases and theorized that since the admissibility of such evidence had not been challenged on appeal, Pfanschmidt was no longer mandatory authority. The following exchange then occurred:

“[STATE’S ATTORNEY] PHILLIPS: I would also suggest to the Court that the dog and the dog handler that were involved in this case, that testimony was admitted in 1987 after adequate foundation was laid in the Fifth District Jefferson County case of the child Amy Schultz who was so brutally murdered, and the defendant in that case received the death penalty, and would even be willing at this time to make an offer of proof on that.
THE COURT: That was an appellate court case?
MS. PHILLIPS: It was — the issue was not, has not even been raised on appeal, but that evidence was allowed in in that case.
THE COURT: I am not concerned with what some Jefferson County Circuit Court Judge did with regard to that matter. That does not have anything to do by way of authority on the issue as it is raised in this court.”

After further argument by counsel, this colloquy ensued:

“THE COURT: Let the record show that I have examined the Motion; I have reviewed the cited authority; and I find the following.
* * *
The authority of the People v. Pfanschmidt has been reaffirmed in modern times, as recently as 1964 ***.
I am further convinced by the citation of the most recent edition of The Trial Handbook of Illinois Lawyers — Criminal that this evidence is simply not admissible in Illinois.
The Motion in Limine is allowed. All parties are prohibited from disclosing to the fact-finder the fact that any dogs were even employed in the investigation of this case as well, of course, of any results of the employment of any such animals.
MS. PHILLIPS: So it’s this Court’s position that even if we were to make an offer of proof as to the foundation your ruling would still be the same?
THE COURT: My ruling I have just made.”

The State argues that it twice attempted to offer proof on the issue of the reliability of the bloodhound and handler used herein, and it contends that the trial court refused to allow the State to present its offer of proof. However, we believe that the record above shows that the State never offered proof of reliability and that the trial court never refused to allow such an offer of proof to be made part of the record for review.

Trial courts are required to permit counsel to make offers of proof, and a refusal to permit the offer is error. However, the court’s refusal of the offer is not error if the suggested testimony is not relevant. (People v. Richmond (1990), 201 Ill. App. 3d 130, 137, 559 N.E.2d 302, 307.) Here, the State originally cited its willingness to offer proof that another circuit court had recently allowed the use of bloodhound evidence at trial. The court replied that it was not “concerned” with the actions of another circuit judge and that such an offer of proof would not be relevant “on the issue as it is raised in this court.” Therefore, under Richmond, the court’s refusal to hear this irrelevant testimony does not constitute error.

We agree with defendant that the State’s second mention of an offer of proof was not made to preserve the question of the evidence’s reliability for review but was a belated attempt to persuade the court to change its ruling. The State cites People v. Minnis (1983), 118 Ill. App. 3d 345, 455 N.E.2d 209, in which the reviewing court held that the trial court’s refusal to permit an offer of proof on the applicability of the battered-woman syndrome to the facts of the case was reversible error. In the case at bar, unlike in Minnis, the trial court did not prevent an offer of proof from being placed in the record; the court merely stated that its ruling had been made. Cf. Minnis, 118 Ill. App. 3d at 354, 455 N.E.2d at 216.

In People v. Reimolds (1982), 92 Ill. 2d 101, 440 N.E.2d 872, the State appealed an adverse ruling by the trial court made at a hearing where the State presented no evidence and made no offer of proof. In denying the State’s request to remand for a supplemental hearing, the Illinois Supreme Court stated that “[t]he parties involved in litigation must make their case at the appropriate time allowed in the trial court and must stand or fall on the record thus made.” (Reimolds, 92 Ill. 2d at 108, 440 N.E.2d at 876.) Therefore, where the record herein does not show that the State was precluded from preserving for review the question of the reliability of its bloodhound evidence, and no offer of proof was ever made, “[t]o order another hearing at this point would only waste judicial resources and significantly dilute defendant’s statutory protections and constitutional guarantees.” Reimolds, 92 Ill. 2d at 108, 440 N.E.2d at 876.

The question remaining for review by this court is whether the trial court erred in ruling that, as a matter of law, evidence of bloodhound tracking could not be presented to the jury. We believe that no error occurred.

In Pfanschmidt, the Illinois Supreme Court thoroughly examined the treatment of bloodhound evidence and noted that in a majority of the jurisdictions where the question had been raised it had been held “that when the proper foundation has been laid, the result of the trailing of a human being by a blood-hound from the place of the crime may be shown in evidence.” (Pfanschmidt, 262 Ill. at 457, 104 N.E. at 822.) Nevertheless, the court expressly declined to follow this approach, stating:

“[W]e have reached the conclusion that testimony as to the trailing of either a man or an animal by a blood-hound should never be admitted in evidence in any case. A blood-hound may be used to track down a known fugitive from justice. *** His guilt or innocence of a given crime, however, should be established by other evidence.” (Pfanschmidt, 262 Ill. at 461-62, 104 N.E. at 823.)

The Pfanschmidt court based its rejection of bloodhound evidence not only on its fallibility and unreliability (262 Ill. at 462, 104 N.E. at 823), but also on the likelihood that such evidence would unduly influence juries:

“ ‘It is well known that the exercise of a mysterious power not possessed by human beings begets in the minds of many people a superstitious awe ***. The very name by which the animal is called has a direct tendency to enhance the impressiveness of the performance ***.’ ” Pfanschmidt, 262 Ill. at 458, 104 N.E. at 822, quoting Pedigo v. Commonwealth (1898), 103 Ky. 41, 50, 44 S.W. 143, 145-46.

We believe the Pfanschmidt court’s reasoning continues to apply today. As the trial court herein noted, Pfanschmidt’s statement of the law on bloodhound evidence was reaffirmed in the 1964 case People v. Griffin (1964), 48 Ill. App. 2d 148, 198 N.E.2d 115. Furthermore, where the supreme court has declared Illinois law on this point, that court alone can overrule and modify its previous opinion. The Pfanschmidt decision continues to be binding authority and thus it was the duty of the trial court, as it is our duty, to follow this decision in similar cases. See People v. Palmer (1986), 141 Ill. App. 3d 234, 238, 490 N.E .2d 154,158.

For the foregoing reasons, the order of the circuit court of Effing-ham County is affirmed.

Affirmed.

H. LEWIS, J., concurs.

JUSTICE RARICK,

dissenting:

Because I believe the trial court improperly denied the State the opportunity to make an offer of proof as to the reliability of bloodhound evidence, I must dissent. As the majority points out, it is error for the trial court to refuse to permit counsel to make an offer of proof. (See People v. Eckert (1990), 194 Ill. App. 3d 667, 675, 551 N.E.2d 820, 825; In re Estate of Undziakiewicz (1964), 54 Ill. App. 2d 382, 385, 203 N.E.2d 434, 436.) Contrary to the majority’s view, however, I believe the suggested testimony was relevant. Notwithstanding the antiquity of Pfanschmidt, other jurisdictions have admitted bloodhound evidence. (See Annot., 18 A.L.R.Sd 1221 (1968).) Moreover, the very issue is now pending before our supreme court. (See People v. Cruz (199_),_Ill. 2d__) The trial court should have at least permitted the State to present what it had before rejecting the evidence outright. (See Eckert, 194 Ill. App. 3d at 675, 551 N.E.2d at 825.) While I realize the State’s choice of wording may not have been the best possible in this instance, the State’s intent was more than clear. For these reasons, I dissent.


author: JUSTICE HENRY LEWIS

text:
    MICHELLE RENE WEST, Plaintiff-Appellee, v. DAYMOND WEST et al., Defendants-Appellants.
    Fifth District
    No. 5—91—0346
    Opinion filed June 9, 1992.

      Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellants.
    Michelle Rene West, of Bethalto, appellee pro se.

   JUSTICE HENRY LEWIS

delivered the opinion of the court:

The plaintiff, Michelle West, filed a small-claim complaint on October 23, 1990, against the defendants, Daymond West and Judith West, for the sum of $650 for certain stereo speakers or for their return. The defendants are the parents of her former spouse, Daymond Leon West, who was killed in a motorcycle accident on September 21, 1990. The marriage of the plaintiff and the decedent had been dissolved; disposition of their property had been effected by an order of the trial court entered on August 8, 1990, in case No. 89 — D—242 in Madison County. In that order the trial court awarded the speakers in question, together with certain other items, to the plaintiff’s former husband, stating in the order, “It is the understanding of the parties that there was no indebtedness with respect to said items; however, should there be any indebtedness, the Defendant [Daymond Leon West] will be responsible for same and save and hold the Plaintiff [Michelle West] harmless from any liability thereon.” The order provided further:

“Additionally, in regards to debts, the Plaintiff will provide copies from the credit card companies with which the parties had a credit account at the time of the separation, indicating the debtedness owed at the time of the separation. With the exception of the aforementioned $600.00 [for the purchase of tires for Daymond Leon West’s vehicle], any indebtedness existing at the time of the separation shall be equally divided between the parties and each of them shall pay and be responsible for one-half (1/2) of said debts and shall save and hold the other party harmless from any responsibility thereof. Any debts incurred after the separation of the parties, will be the responsibility of the party incurring said indebtedness.”

The credit card debt of the parties included the debt for the purchase of the speakers awarded to Daymond Leon West.

When the decedent died, the speakers were in the plaintiff’s possession. A few days later the decedent’s mother, the defendant Judith West, asked the plaintiff for the speakers and received them from her. Shortly thereafter, the plaintiff sought payment of the bill for the speakers and, alternatively, their return. The speakers remain in the defendants’ possession. No estate was opened for Daymond Leon West. At the bench trial the plaintiff indicated that she owes approximately $4,400 in marital debts, one half of which was to be paid by the decedent pursuant to the trial court’s order disposing of the property of plaintiff and Daymond Leon West.

Following the trial, the trial court entered judgment in favor of the plaintiff and against the defendants in the sum of $400, which represented the value of the speakers at that time. The trial court denied the defendants’ post-trial motion. The defendants appeal, presenting two issues for review: (1) whether parents of a deceased adult child may be held liable individually for that child’s debts arising out of a judgment of dissolution of marriage and (2) whether a spouse has a property interest in personalty awarded to a former spouse to insure performance of provisions pertaining to the disposition of their property.

With respect to the first issue they present, the defendants contend that, assuming plaintiff has a claim for the unpaid credit card balances, the question to be addressed is against whom this claim may be asserted. The defendants argue that plaintiff’s claim should have been, and still could be, presented as a claim against the estate of Daymond Leon West. The plaintiff, who appeared pro se in the trial court as she does here, maintains that justice is better served by ordering the defendants to pay for the property they took from her: “They continue to receive the benefit and use of the speakers while [plaintiff] pays for the speakers.” In her brief she cites us to no authority.

Our disposition turns on the question whether the obligation for payment of the debt for the speakers is a debt of the decedent or a personal obligation of the defendants. If the debt was the decedent’s, plaintiff was required by statute to file her claim in the proceeding for the administration of the estate. (See Puhrman v. Ver Vynck (1981), 99 Ill. App. 3d 1130, 426 N.E.2d 921.) To be allowed as a claim against an estate, a claim must be based upon an absolute liability of the deceased, although the liability does not accrue during the statutory claims period. (In re Estate of Morrow (1986), 150 Ill. App. 3d 500, 501 N.E .2d 998.) If a claim is of such a character that it could have been presented to and allowed against the administrator, the holder is barred from pursuing the assets, real or personal, into the hands of the heirs, devisees, or the administrator. (Union Trust Co. v. Shoemaker (1913), 258 Ill. 564, 101 N.E. 1050.) The law having given a remedy in such a case, it must be pursued. Union Trust Co. v. Shoemaker (1913), 258 Ill. 564, 101 N.E. 1050.

In the instant case, the cause of action against the defendants is based upon an absolute liability of the deceased, established by the judgment entered with respect to the dissolution of the marriage of the plaintiff and Daymond Leon West. There is no contention here that the claim arose out of any agreement between the plaintiff and the defendants herein. Nor is there any suggestion by plaintiff that the decedent’s parents are legally responsible for the debt of their adult child. Under the circumstances, the claim is of such a character that it could have been presented to the administrator of the decedent’s estate. As the defendants point out, section 9 — 3 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. lKP/a, par. 9 — 3) provides that a creditor of an estate is a person entitled to preference in obtaining the issuance of letters of administration. The plaintiff had, and still has (see section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. IIOV2, par. 18 — 12)), a remedy afforded by the Probate Act for her claim against the decedent’s estate. The trial court erred in entering judgment in her favor and against the defendants in this cause. Therefore, the judgment is reversed. In light of our disposition with regard to this issue, we need not consider the other issue the defendants raise on review.

Reversed.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE BARRY

text:
    WILL COUNTY STATE’S ATTORNEY, Petitioner, v. THE ILLINOIS STATE LABOR RELATIONS BOARD et al., Respondents.
    Third District
    No. 3—91—0469
    Opinion filed June 16, 1992.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Philip Mock, Assistant State’s Attorney, and David A. Hibben, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for petitioner.
    Roland W. Burris, Attorney General, and Brian Reynolds, of Illinois State Labor Relations Board, both of Springfield, and Jacalyn J. Zimmerman, of Illinois State Labor Relations Board, of Chicago (Susan Frederick Rhodes, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.
    Cornfield & Feldman, of Chicago (Jacob Pomeranz, of counsel), for other respondent.
   JUSTICE BARRY

delivered the opinion of the court:

The State’s Attorney of Will County has petitioned this court for review of an order of the Illinois State Labor Relations Board (Board) which found that the State’s Attorney violated sections 10(a)(1) and 10(a)(4) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1989, ch. 48, pars. 1610(a)(1), (a)(4)) by refusing to engage in collective bargaining with Local 1028 of the American Federation of State, County and Municipal Employees. The issue in dispute is whether Local 1028 is the historical bargaining representative of certain employees of the Will County State’s Attorney.

Section 11(e) of the Illinois Public Labor Relations Act provides for direct judicial review in the appellate court of final orders of the Board. Supreme Court Rule 335 (134 Ill. 2d R. 335) mandates application of appropriate rules of administrative review to this proceeding. Thus, the findings and conclusions of the administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) Therefore, the sole issue before this court is whether the decision of the Board that a historical bargaining relationship exists between Local 1028 and the State’s Attorney is contrary to the manifest weight of the evidence. We conclude that it is not.

This litigation commenced on December 7, 1989, when Local 1028 filed a charge of unfair labor practices against the State’s Attorney for refusing to bargain with Local 1028 as to wages, hours, terms and conditions of employment of employees in violation of section 10(a) of the Act. The particular State’s Attorney’s employees designated were two clerical receptionists, one data entry clerk, and one victim-witness assistant.

Recognition of labor organizations as collective bargaining representatives for public employees is governed by section 9 of the Public Labor Relations Act, effective July 1, 1984, which provides in part:

í((b) * * *
In cases involving an historical pattern of recognition, and in cases where the employer has recognized the union as the sole and exclusive bargaining agent for a specified existing unit, the Board shall find the employees in the unit then represented by the union pursuant to the recognition to be the appropriate unit.
* * *
(c) Nothing in this Act shall interfere with or negate the current representation rights or patterns and practices of labor organizations which have historically represented public employees for the purpose of collective bargaining, including but not limited to the negotiations of wages, hours and working conditions, discussions of employees’ grievances, resolution of jurisdictional disputes, or the establishment and maintenance of prevailing wage rates ***.” Ill. Rev. Stat. 1989, ch. 48, pars. 1609(b), (c).

At the hearing before a hearing officer, Local 1028 presented the testimony of AFSCME staff member A1 Harris, concerning collective bargaining agreements negotiated between Local 1028 and the Will County Board (County Board) in 1975, 1977, 1979, 1979-80, 1980-83, 1983-86 and 1987-89. Each contract purported to cover employees of all county offices, including listed clerical employees of the State’s Attorney’s office. During those years, the chairman of the County Board notified county office holders each time negotiations were about to begin, but, according to Harris, office holders did not attend negotiating sessions except in 1975 when an assistant State’s Attorney attended as legal advisor to the County Board. Harris stated that no State’s Attorney ever repudiated the contract with Local 1028 and that, in fact, State’s Attorney employees received at least the minimum wages provided in the contract.

In 1987 State’s Attorney Edward Petka resigned following his election to the Illinois legislature, and Edward Masters, newly appointed to the position, signed the collective bargaining agreement for the period December 1, 1987, to November 30, 1989, as did other county office holders. During all the prior years, the contracts were signed solely by the chairman and members of the County Board.

The parties stipulated that Petka knew of the contracts during the years he served as State’s Attorney, including contracts beginning in 1977, 1979, 1980, and 1983, and he did not communicate to either Local 1028 or the County Board that he would be bound by the contracts or that he would not be bound although it was his opinion that he was not bound.

Edward Burmila testified that he took office as elected State’s Attorney on December 1, 1988, after serving as an assistant since 1977. He stated that, while an assistant, he had discussed the union contract with Petka and that he did not know the contract covered the State’s Attorney’s office. He admitted that the contract did refer to employees of the office and stated that in the normal course of business, the contract would be discussed and reviewed with the State’s Attorney. He also testified that the State’s Attorney’s office did not comply with contract provisions requiring a union bulletin board, 15-minute breaks for employees, posting of job openings, or progressive discipline. He further stated that he did not consider himself bound by a contract signed by his predecessor.

The hearing officer issued a recommended decision and order finding that the State’s Attorney violated the Act. The Board adopted the recommendation of the hearing officer as its decision. In its decision and order, the Board explicitly found that the State’s Attorney has afforded de facto recognition to Local 1028 based upon the the State’s Attorney’s participation in and review of the collective bargaining process and the State’s Attorney’s failure to disavow the County Board’s collective bargaining actions. The Board also found that the State’s Attorney “for the most part” abided by the agreements between the County Board and Local 1028.

On review of a decision of the State Labor Relations Board, we may not reweigh evidence or make independent determinations of fact. (Board of Education of Plainfield Community Consolidated School District No. 202 v. Illinois Educational Labor Relations Board (1986), 143 Ill. App. 3d 898, 493 N.E.2d 1130.) The Board’s decision must be confirmed unless it is against the manifest weight of the evidence. (Rockford Township Highway Department v. Illinois State Labor Relations Board (1987), 153 Ill. App. 3d 863, 506 N.E.2d 390.) Moreover, the language of the Act favors historical recognition and must be given a liberal construction in order to carry out its purpose. Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 522 N.E.2d 1259.

Both formal and de facto recognition are provided for in section 9(b) of the Act, quoted above. We held in City of Peoria v. Illi nois State Labor Relations Board (1988), 165 Ill. App. 3d 429, 435, 518 N.E.2d 1325, that defacto recognition occurs where an employer has impliedly recognized a labor organization as the exclusive representative of a specified unit, and we said:

“The test for determining implied recognition is whether the employer has manifested an intent to establish a bargaining relationship. *** [W]e believe section 9(c) of the Act describes those practices to be considered in determining whether the employer has manifested an intent to bargain collectively.”

Accord City of Chillicothe v. Illinois State Labor Relations Board (1988), 165 Ill. App. 3d 217, 518 N.E.2d 734.

The testimony of Harris indicates that the State’s Attorney’s office has paid at minimum the negotiated wage rates to its clerical employees. The evidence strongly supports the Board’s finding that the State’s Attorney abided by the contracts “for the most part.” The evidence that certain provisions of the contract were not followed was not sufficient to require a reversal since matters such as the location of a union bulletin board, the posting of job openings, and providing 15-min-ute breaks are of much lesser importance than the wage schedule.

The facts of the case before us indicate that the State’s Attorney personally did not negotiate any of the collective bargaining agreements and did not formally accept any of the contracts prior to 1987. Notwithstanding these facts, we agree with the Board that the State’s Attorney can be held to have ratified the actions of the County Board, acting as his agent, by not repudiating those actions once he knows of them. This view is in accord with City of Burbank v. Illinois State Labor Relations Board (1989), 185 Ill. App. 3d 997, 1003, 541 N.E.2d 1259, where the court said:

“ ‘Ratification occurs upon the express or implied adoption of the acts of another by one for whom the other assumes to be acting, even without authority; and the consequences are the same as if the acts ratified had been authorized in the beginning.’ (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 866.) The principal can ratify the actions of his agent by not repudiating such acts once he has knowledge of them or by accepting the benefits of those acts.”

Here the State’s Attorney has either actual or imputed knowledge of the content of the contracts in his capacity as legal counsel to the County Board. There is no evidence of disavowal or repudiation. Former State’s Attorney Petka indicated that he knew the collective bargaining agreements negotiated by the County Board purported to cover the State’s Attorney’s employees and that he never stated that he would not be bound by those contracts. Consequently, the evidence supports the Board’s finding that the State’s Attorney ratified those contracts entered into before 1984, thus creating an historical pattern of recognition of Local 1028 as the bargaining agent for the State’s Attorney’s employees.

The State’s Attorney argues that the County Board could not enter into a valid contract concerning employees of his office because the County Board is not the employer or joint employer of those employees and, further, because the State’s Attorney is an officer of the judicial branch of government. The State’s Attorney relies upon Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 537 N.E.2d 784, where the supreme court ruled that counties are not joint employers of circuit court employees for purposes of collective bargaining because to do so would be contrary to the doctrine of separation of powers.

In the case before us, historical recognition does not depend upon a theory of joint employment but rather upon past State’s Attorneys’ ratification of contracts negotiated on behalf of their employees in the years prior to the enactment of the Public Labor Relations Act, i.e., before July 1, 1984. Here there is evidence that the County Board notified the State’s Attorney in advance prior to undertaking negotiations, that the State’s Attorney reviewed each agreement, that the State’s Attorney had knowledge that his employees were covered by each contract, that the State’s Attorney never repudiated any contract, and that at least the wage schedules were followed. Moreover, the first time the collective bargaining agreement was prepared with space for the signatures of public office holders, then State’s Attorney Edward Masters signed the contract, indicating a continuation of a past pattern of recognition of Local 1028. This evidence supports the decision of the Board.

At oral argument before this court, the State’s Attorney contended that the four positions in dispute were not listed prior to 1984 and thus were not subject to union representation on a theory of an historical pattern of recognition. Since this issue was not raised before the Board, it was waived and cannot be raised for the first time on appeal. Furthermore, the issue here is whether Local 1028 is the bargaining representative for a unit of employees, and the addition of new positions to the unit must be anticipated in this modem world without invalidating the historical representation of the unit. Having concluded that the employees of the State’s Attorney’s office as a unit are represented by Local 1028, the Board correctly held that the four positions in question are also subject to such representation.

The decision of the Board was not against the manifest weight of the evidence and is affirmed.

Affirmed.

SLATER and GORMAN, JJ., concur.


author: JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. SONGER, Defendant-Appellant.
    Third District
    No. 3—90—0301
    Opinion filed June 5, 1992.

      Carey J. Luckman, of Pontiac, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCUSKEY

delivered the opinion of the court:

John A. Songer was convicted by a jury of unlawful possession with intent to deliver more than 30 grams but not more than 500 grams of cannabis (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(d)) and unlawful possession of less than 15 grams of a controlled substance (LSD) (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1402(b)). He was sentenced to eight years’ imprisonment on the cannabis conviction. The trial court reserved sentencing on the LSD conviction. Songer appeals his conviction of unlawful possession of cannabis. We affirm.

At approximately 8:20 p.m. on October 24, 1988, two agents with the Peoria Metropolitan Enforcement Group (MEG) and two Peoria County sheriff’s deputies arrived at 1708 West Lane in Peoria County to execute a search warrant. A third agent arrived after the search commenced. The record indicates the residence was described as a basement house. The above-ground portion consisted only of a bedroom, a foyer closet, and a hallway. The basement level contained a kitchen, a living room, and a bathroom.

MEG Agent Dan Brotz testified that after knocking on the door of the residence, he saw Songer’s roommate, Brian Tipton, come to the door and then retreat about six feet. Brotz testified that he waited approximately 45 seconds to a minute before striking the door open with a sledgehammer. Brotz was not asked whether the police identified themselves as police officers prior to the forced entry. Upon entering, Brotz found Tipton standing in the doorway of the upstairs bedroom, approximately six feet from the front door. Brotz was dressed in civilian clothes. However, he was wearing a black “raid” jacket with “police” clearly printed on the front and back. Brotz also had his revolver drawn. The other MEG agent present also wore civilian clothes and a “raid” jacket just like Brotz’s. The two sheriff’s deputies were wearing sheriff’s uniforms.

The officers searched the upper-level closet and found $1,876 cash in a brown plastic bag and $7,100 cash in a paper bag. Two plastic bags of cannabis were found in a paper bag on the closet floor. A box on the closet floor contained drug paraphernalia and purported price lists. In a gym bag in the closet the officers found two bags of cannabis, an item of drug paraphernalia described as a “one hitter,” small squares of paper which tested positive for LSD, and approximately $50 in coins. A search of the kitchen yielded an electronic scale and 11 plastic bags of cannabis.

Danny Richards, deputy director of MEG, testified that the search was already in progress when he arrived at the house. Upon arrival, he found Songer and Tipton seated at a table in the kitchen in the basement level. No other testimony was offered to explain where Songer was located when the raid started or how he came to be seated in the kitchen. Songer admitted to Agent Richards that he lived in the residence. Tipton stated that he lived there occasionally. Songer had $455 cash in his pants pocket. Tipton had two bags of cannabis and $867 cash in his pants pocket.

Agent Richards was offered as an expert in the field of packaging, delivery, sales and valuation of drugs. Richards testified that in his expert opinion the nearly half pound of cannabis found on the premises, packaged in bags of varying quantities, “would be for redistribution.” He stated that the amount of cannabis in the house clearly exceeded the amount normally used for personal consumption.

Songer contends his conviction should be reversed because (1) the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt of possession of cannabis with intent to deliver; (2) hearsay testimony was improperly admitted at trial; (3) expert testimony allowed at trial was plain error; and (4) the unannounced entry by the officers executing the search warrant was not constitutionally reasonable.

A court in reviewing the sufficiency of the evidence must view all the evidence in the light most favorable to the prosecution in order to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Songer is correct that no testimony was offered to place him at the residence when the police arrived to execute the search warrant. Agent Brotz stated that it was Songer’s roommate, Tipton, who answered the door. Agent Richards testified that he saw Songer seated at the kitchen table while the search was being conducted. Therefore, Songer concludes that the elements necessary to prove unlawful possession were lacking since there was no testimony placing him in the house at the time of the forced entry by the police.

Songer additionally argues that the locations in the house where the contraband and other items were found did not lend themselves to an inference of knowledge on his part. Songer also points out that no contraband was found on his person, in his car, or in the bedroom. The record is unclear whether Songer or his roommate claimed possession of the bedroom. Songer contrasts all of this evidence with the conduct of Tipton, who responded to the knock at the door and was found with two bags of cannabis and $867 in his trouser pockets.

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of drugs and that they were in his immediate possession and control. (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370, 372.) Possession may be established by evidence of either actual or constructive possession. (People v. Mack (1957), 12 Ill. 2d 151, 161-63, 145 N.E.2d 609, 612-13; People v. Scott (1987), 152 Ill. App. 3d 868, 871, 505 N.E.2d 42, 44.) Constructive possession may be inferred from the defendant’s exclusive control of the premises where the drugs were found. (People v. Hester (1980), 87 Ill. App. 3d 50, 52-53, 409 N.E.2d 106, 108-09.) Once possession is proved, knowledge may be inferred from the surrounding facts and circumstances. (People v. Jackson (1961), 23 Ill. 2d 360, 365, 178 N.E.2d 320, 322.) Whether Songer had knowledge of the drugs and possession of them were questions of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 569, 550 N.E.2d 255, 257.

Based upon our review of the record, we find there is sufficient evidence to establish Songer’s immediate and exclusive control over the premises. Songer admitted that he lived at the premises in question. Tipton told Agent Brotz that he stayed there occasionally. The officers found cannabis in various locations throughout Songer’s residence. The presence of Songer’s roommate, Tipton, does not change the result. The requirement that possession must be exclusive does not preclude a finding of joint possession. (People v. Burke (1985), 136 Ill. App. 3d 593, 599, 483 N.E.2d 674, 679.) Songer’s unexplained absence when the officers arrived at his residence is irrelevant to the issue of possession. Songer was in actual control of the premises and lived there full time while Tipton admitted that he was only an occasional visitor.

We disagree with Songer’s assertion that proof was lacking of his possession of cannabis with intent to deliver. An individual’s possession with intent to deliver is not always subject to direct proof. A reasonable inference of intent to deliver is permitted when the amount of drugs possessed could not reasonably be used for personal consumption. (People v. Marshall (1988), 165 Ill. App. 3d 968, 976, 521 N.E.2d 538, 543.) Other factors which may support or enhance the inference of intent to deliver include the manner in which the drugs were kept, the discovery of a large amount of cash, and the presence of paraphernalia used in the sale of drugs, including a scale. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 703, 479 N.E.2d 428, 432-33; People v. Friend (1988), 177 Ill. App. 3d 1002, 1021, 533 N.E.2d 409, 421.) We find all of these factors to be present here.

The police found cannabis packaged in a number of bags of varying quantities throughout Songer’s home. Agent Richards testified as an expert that the amount of cannabis discovered exceeded the amount expected to be used for personal consumption and was packaged in a manner that would suggest it was for redistribution. Richards also testified that he would not expect a cannabis user to possess a scale, a price list, nearly $10,000 in currency, and books on marijuana-growing techniques. Our review of the record clearly indicates that sufficient evidence was presented to support the inference that Songer intended to deliver the cannabis in his possession.

Songer next contends that he was denied a fair trial by the admission of hearsay evidence. During the search, officers found a gym bag on the floor of the foyer closet. The contents included prescription drug bottles, a letter addressed to John Sanders, and a car title issued to John Songer at 1708 West Lane. The contents were admitted into evidence over Songer’s hearsay objections.

The State maintains the documents were offered and admitted not to prove the truth of the matters stated by the pharmacist, the addressor, or the Secretary of State, but to indicate that the person whose name appeared on the items possessed the contraband found in the bag and foyer closet. We agree. The items were admissible simply as being relevant to the issue of Songer’s presence at and control over the residence. See Hester, 87 Ill. App. 3d at 54-55, 409 N.E.2d at 109-10.

Even if the documents were improperly admitted, we do not consider the error so prejudicial as to require a new trial. The documents were admitted into evidence solely for the purpose of linking Songer to the residence and were merely cumulative evidence since Songer had already admitted to Agent Richards that he lived there. Songer’s admission alone placed him in constructive possession of the contraband found in the kitchen and the foyer closet. Reversal for improperly admitted hearsay evidence is not warranted where properly admitted evidence proves the same matter. Hester, 87 Ill. App. 3d at 55, 409 N.E.2d at 110.

Songer also questions the admissibility of Agent Richards’ testimony as an expert witness. Specifically, Songer argues he was prejudiced by Richards’ testimony that the cannabis seized was packaged for redistribution. Songer claims that it was error for an agent present during the execution of the search warrant to then testify as an expert for the State. We disagree. Agent Richards was properly tendered, without any objection, as an expert in packaging, delivery, sales, and valuation of drugs. In addition, because Songer failed to preserve this issue for review, it can only be considered under the plain error doctrine. This doctrine requires that the evidence be closely balanced or that the error is of such gravity that it denies the defendant a fair trial. (People v. Walker (1985), 109 Ill. 2d 484, 504, 488 N.E.2d 529, 537-38.) We do not find the evidence to be closely balanced nor do we find any error in the trial court’s ruling which allowed Richards to testify as an expert witness. As we discussed earlier, the inference of Songer’s intent to deliver could be properly drawn from the quantity of cannabis found, the presence of a scale and the large amount of cash.

Songer next argues that the unannounced entry by the officers was constitutionally unreasonable under the circumstances. Songer filed a motion to suppress the items seized during the execution of the search warrant. The trial court denied the motion.

The Illinois Supreme Court has recently discussed the knock-and-announce rule in People v. Condon (1992), 148 Ill. 2d 96.

“Although the failure of law enforcement officers to knock and announce is not a per se constitutional violation, the presence or absence of such an announcement is an important consideration in determining whether a subsequent entry to arrest or search is constitutionally reasonable. [Citations.] *** Officers may be excused from the knock-and-announce requirement if exigent circumstances exist sufficient to justify the intrusion. [Citation.] *** Exigent circumstances may encompass such considerations as danger to the police officers executing the warrant, or the uselessness of the announcement, or the ease with which the evidence may be destroyed.” Condon, 148 Ill. 2d at 102-03.

We must first note that the supreme court in Condon did not find the failure of the police to knock and announce to be a per se constitutional violation. The reasons for the knock-and-announce rule are to: (1) notify the person inside of the presence of police and of the impending intrusion; (2) give that person time to respond; (3) avoid violence; and (4) protect privacy as much as possible. (Condon, 148 Ill. 2d at 103.) We find the purpose of the rule was fully served in the instant case. Tipton, Songer’s roommate, responded to Agent Brotz’s knock and then retreated without opening the door. Such behavior confirms that Tipton was aware of the presence of police. Agent Brotz also testified that he and another agent were dressed in “raid” uniforms — black jackets with “police” printed on both sides. Further, Brotz and the other agent were accompanied by two uniformed sheriff's deputies. In addition, Brotz had his weapon drawn. Based upon all these circumstances, we find that it was not unreasonable to assume that Tipton was clearly made aware of the presence of law enforcement officers prior to their entry. It would be useless for the officers to wait any further for a response under these circumstances.

The amount of time which elapses between a police announcement and their entry is also relevant to determine the reasonableness of the officers’ conduct when they execute a search warrant. (People v. Saechao (1989), 129 Ill. 2d 522, 533, 544 N.E.2d 745, 749-50.) The facts and circumstances of each case must be examined in making a determination as to reasonableness. (People v. Boykin (1978), 65 Ill. App. 3d 738, 740, 382 N.E.2d 1369, 1371-72; People v. Mathes (1979), 69 Ill. App. 3d 275, 278, 387 N.E.2d 39, 41.) This court in Boykin upheld the reasonableness of a forcible entry where the elapsed period of time between the knock and entry was 10 seconds. (Boykin, 65 Ill. App. 3d at 741, 382 N.E.2d at 1371-72.) In Mathes, this court found the forcible entry reasonable where police received no response from within the premises after waiting 15 seconds. (Mathes, 69 Ill. App. 3d at 278-79, 387 N.E.2d at 42.) Here, Brotz testified that he waited approximately 45 seconds to a minute before using his sledgehammer to make the entry after knocking. We believe Tipton had sufficient time to respond and that the officers acted in a constitutionally reasonable manner in executing the search warrant.

For the reasons indicated, we affirm defendant Songer’s conviction.

Affirmed.

GORMAN and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
    NORMAN NELSON, as Attorney in fact and Trustee for Genevieve Soller et al., Plaintiff-Appellee, v. ROGER J. LANGE AND COMPANY, INC., et al., Defendants-Appellants.
    Third District
    No. 3—92—0003
    Opinion filed June 4, 1992.
    Perlman & Horvitz, of Chicago (Stuart D. Perlman, of counsel), for appellants.
    Baymiller, Christison, Radley & Covey, of Peoria (David B. Radley, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Norman Nelson, as attorney in fact and trustee for Genevieve Soller and Vivian Murphy, filed a complaint against the defendants, Roger J. Lange & Company, Inc., Roger J. Lange and Jan F. Lange. The complaint alleged the defendants violated a number of the provisions of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1989, ch. 121½, par. 137.1 et seq.). The complaint alleged a series of transactions in which the defendants fraudulently induced Soller and Murphy into investing in the stock of Roger J. Lange & Company, Inc., rather than mutual funds and tax-exempt bonds.

In response, the defendants filed a motion to dismiss or stay proceedings and compel arbitration. Attached to the motion was a copy of an account application from MidAmerica Management Corporation and National Financial Services Corporation. In bold print immediately above the signature lines, the application stated the signatories acknowledged the receipt of a predispute arbitration agreement.

Following arguments and written briefs, the trial court denied the defendants’ motion on October 17, 1990. On November 16, 1990, the defendants filed a notice of interlocutory appeal. This court subsequently reversed and remanded the cause for further determination of whether the defendants were employees or agents of MidAmerica Management Corporation and National Financial Services Corporation and therefore entitled to invoke the arbitration agreement as third-party beneficiaries.

On remand, the defendants amended their motion to dismiss or stay proceedings contending Soller and Murphy signed an investment management agreement with Roger J. Lange & Company, Inc., on October 10, 1989. The agreement contains an arbitration clause identical to the one found in the account application with MidAmerica Management Corporation.

The plaintiff moved for an evidentiary hearing to determine the existence of an arbitration agreement under the investment management agreement. The defendants opposed the plaintiff’s motion. On October 16, 1991, the circuit court granted the plaintiff’s motion for an evidentiary hearing. However, the court stated further discovery would not constitute a waiver by the defendants of their claimed right to submit the dispute to arbitration.

The record indicates a hearing was held on November 20, 1991, at which Charles Vail and Roger Kern testified and the evidence depositions of Vivian Murphy and Roger Lange were submitted. A transcript of this hearing has not been included in the record on appeal.

On December 4, 1991, the circuit court entered an order denying the defendants’ motion to dismiss or stay proceedings and compel arbitration. The court found that at no time did Genevieve Soller and Vivian Murphy knowingly and voluntarily enter into a contract providing for arbitration, and that none of the other agreements entered into with other financial institutions conferred on the defendants a right to arbitrate disputes. The defendants have again brought an interlocutory appeal from the circuit court’s ruling.

On appeal, the defendants contend the circuit court erred as a matter of law in denying their motion. The defendants argue the sum of the plaintiff’s argument is that Soller and Murphy were fraudulently induced into entering into the investment management agreement. The defendants contend this issue is covered by the arbitration clause contained in that agreement.

The plaintiff argues Soller and Murphy along with Roger Kern signed page six of the investment management agreement believing it was necessary to allow Lange to invest Soller and Murphy’s savings in tax-exempt bonds and conservative mutual funds. The plaintiff asserts Seller and Murphy did not know they were signing an investment agreement or that it contained an arbitration clause. Despite the plaintiff’s assertions to the contrary, the sum of his contention is that Soller and Murphy were fraudulently induced into entering into the investment management agreement on October 10,1989.

The sole issue at a preliminary hearing to compel or stay arbitration is whether there is an agreement to arbitrate. (T D E Ltd. v. Israel (1989), 185 Ill. App. 3d 1059, 541 N.E.2d 1281.) The only question brought before a reviewing court on an interlocutory appeal is whether there was a sufficient showing to sustain the order of the trial court. J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 456 N.E.2d 889.

As an initial matter, the parties have not clarified whether this matter is governed by the Illinois statute on arbitration (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.) or whether because the contract involves interstate commerce the United States Arbitration Act of 1925 (9 U.S.C. §1 et seq. (1988)) governs. (See Southland Corp. v. Keating (1984), 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852.) In any event, Illinois courts have followed the Supreme Court’s analysis of the Federal statute in interpreting the Illinois provisions when a claim of fraud in the inducement is raised against a motion to compel arbitration. Konewko v. Kidder, Peabody & Co. (1988), 173 Ill. App. 3d 939, 528 N.E. 1; Monical v. N C R Corp. (1984), 126 Ill. App. 3d 790, 467 N.E.2d 644.

In Prima Paint Corp. v. Flood & Conklin Manufacturing Co. (1967), 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801, the United States Supreme Court held that under the United States Arbitration Act of 1925, a broad arbitration clause requires the arbitrator(s) to decide a claim of fraud in the inducement of the entire contract. Thus the issue is whether the arbitration clause in the investment management agreement is broad enough to encompass a claim of fraud in the inducement of the entire contract. To determine the scope of the arbitration clause the court must examine the wording of the clause and the terms of the contract in which the clause is included. A.E. Staley Manufacturing Co. v. Robertson (1990), 200 Ill. App. 3d 725, 558 N.E.2d 434.

The clause states in pertinent part: “I agree that all controversies that may arise between us concerning any order or transaction, or the continuation, performance or breach of this or any other agreement between us, whether entered into before, on, or after the date this account is opened, shall be determined by arbitration ***.”

We find this arbitration clause to be broad enough to require that the claim of fraud in the inducement be submitted to arbitration. Therefore the circuit court erred in denying the defendants’ motion to stay proceedings and compel arbitration.

For the foregoing reasons, the judgment of the circuit court of Marshall County is reversed and the cause remanded with directions to enter an order staying judicial proceedings in this matter and compelling arbitration.

Reversed and remanded with directions.

BARRY, P.J., and SLATER, J., concur.


author: JUSTICE STEIGMANN

text:
    JAMES STEWART, Plaintiff-Appellee, v. GEORGE H. RYAN, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—91—0938
    Opinion filed June 18, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Alison E. O’Hara, Assistant Attorney General, of Chicago, of counsel), for appellant.
    William A. Pryor, of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1991, plaintiff, James E. Stewart, filed a complaint for administrative review of a decision by the Secretary of State (Secretary) to deny plaintiff’s request for either reinstatement of full driving privileges or the issuance of a restricted driving permit (RDP). In November 1991, the circuit court conducted a hearing on plaintiff’s complaint and entered an order that affirmed the Secretary’s denial of reinstatement of full driving privileges but reversed the Secretary’s denial of the issuance of an RDP. The Secretary appeals and we reverse.

I. Facts

Plaintiff was 27 years old at the time of the November 1991 circuit court hearing. We quote his complete driving record as the Secretary accurately sets it forth in his brief to this court:

“On December 14, 1981, the plaintiff was convicted of a license classification violation. *** On the same date, he was convicted for speeding 16-25 miles per hour above the speed limit. *** On November 8, 1982, plaintiff was convicted for a motorcycle violation (failure to have glasses, shield or goggles). *** On June 21, 1983, plaintiff was arrested for speeding 16-25 miles per hour above the speed limit. The plaintiff’s bond was forfeited, and he was given a driver remedial program and court supervision. On August 27, 1984[,] plaintiff was convicted for speeding 11-15 miles per hour above the speed limit. On January 28, 1984, plaintiff was arrested for driving under the influence of alcohol. Plaintiff was convicted September 14, 1984[,] for the illegal transportation of an alcoholic liquor and received court supervision for the DUI arrest. ***

On October 25, 1984, plaintiff was arrested for being involved in a collision involving personal injury and for DUI. During the October 1984 DUI incident, plaintiff was involved in a serious motorcycle accident which caused plaintiff to be hospitalized. Plaintiff remained comatose for thirteen or fourteen days. *** Plaintiff’s license was then subjected to statutory summary suspension pursuant to Section 11 — 501.01 of the Illinois Vehicle Code, Ill. Rev. Stat. ch. 95½, par. 11 — 501.1 (1985), from March 12,1986[,] through March 12, 1987.

On May 14, 1986[,] plaintiff was convicted of DUI based upon the October 25, 1984[,] arrest. Plaintiff’s driver’s license was mandatorily revoked on June 14, 1986[,] for the DUI conviction pursuant to Section 6 — 205(aX2)[.] Ill. Rev. Stat. ch. 951½, par. 6 — 205(a)(2) (1985).

Plaintiff was again arrested on January 25, 1986[,] for DUI. He consented to a blood alcohol test which revealed an alcohol level of .23. During the January 1986 DUI incident, open alcohol was found in the vehicle. *** Plaintiff was convicted of DUI on May 22, 1986. Plaintiff’s license was again mandatorily revoked on July 1, 1986[,] based upon the second DUI conviction on May 22, 1986, pursuant to Ill. Rev. Stat. ch. 95½, par. 6— 205(a)(2) (1985).

Plaintiff was arrested on August 6, 1987[,] for driving during a license revocation. An immediate action for bond forfeiture was taken on November 4, 1987. Plaintiff was convicted for driving while his license was revoked and was sentenced to seven days in jail, received a fine, costs, and one year [of] probation.”

II. Analysis

In Britt v. Edgar (1989), 192 Ill. App. 3d 469, 472-73, 548 N.E.2d 826, 828-29, this court addressed the standard of review and factors to be considered in determining whether the Secretary properly denied an RDP to a plaintiff and wrote the following:

“Upon review, the findings and conclusions of an administrative agency are considered prima facie true and correct. [Citations.] Courts may not interfere with an agency’s discretionary authority unless that power is exercised in an arbitrary and capricious fashion, or the decision is contrary to the manifest weight of the evidence. [Citations.] The Secretary’s decision will be found to be contrary to the manifest weight of the evidence only when the reviewing court can find, viewing the evidence in a light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s determination. [Citation.]
The relevant factors in determining whether to issue an RDP are the degree of hardship which deprivation of driving privileges imposes upon the applicant, whether alternative means of transportation are available, and whether issuance of the permit would prove a danger to public safety and welfare. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206(c)(3); Youle v. Edgar (1988), 172 Ill. App. 3d 498, 526 N.E.2d 894; Sutton v. Edgar (1986), 147 Ill. App. 3d 723, 498 N.E.2d 295; see also 92 Ill. Adm. Code §§1001.430(b), 1001.440(d), at 3520, 3522 (Supp. 1988).) The relevant inquiry in restricted driving permit cases is the danger to public safety and welfare." (Emphasis added.)

In the present case, the circuit court ruled that the Secretary’s findings of fact and conclusions of law were contrary to the manifest weight of the evidence and contrary to law. Although we view the circuit court’s rulings as erroneous regarding the Secretary’s findings on (1) whether the deprivation of driving privileges imposes a hardship upon plaintiff, and (2) whether alternative means of transportation were available to plaintiff, we need not address these matters further. Instead, we view the circuit court’s rulings as egregiously erroneous regarding the question of whether issuance of an RDP to plaintiff would prove a danger to public safety and welfare.

Citing plaintiff’s driving record, the Secretary makes the following argument to this court:

“In Cusack v. Edgar, 137 Ill. App. 3d 505, 484 N.E.2d 1145 (1st Dist. 1985), this court affirmed the Secretary’s decision to deny the plaintiff an RDP after noting that the plaintiff’s driving record revealed seven traffic offenses, including two DUI convictions, within the previous ten years. The court stated that based on plaintiff’s driving record alone, there was substantial evidence to deny plaintiff an RDP. [Cusack, 137 Ill. App. 3d at 510-11,] 484 N.E.2d at 1149.
In the present case, plaintiff committed nine traffic violations in as many years, worse than the driving record involved in Cusack. Plaintiff’s numerous driving offenses demonstrate a ‘total disregard for traffic laws and traffic safety.’ Cusack, [137 Ill. App. 3d at 510,] 484 N.E.2d at 1149. Because plaintiff’s driving record alone supports the Secretary’s decision, the circuit court abused its discretion in reversing that decision and ordering the Secretary to issue plaintiff an RDP.”

Section 6 — 205(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 205(c)) places the burden upon a person seeking an RDP to demonstrate that he “will not endanger the public safety or welfare.” We agree with the argument of the Secretary, quoted above, that plaintiff on this record has failed to do so, and we find no error in the Secretary’s conclusion that granting an RDP to this plaintiff would endanger the public safety or welfare.

Mindful that the circuit court can rule that a decision of the Secretary — such as the denial in this case of the RDP to plaintiff — is contrary to the manifest weight of the evidence “only when the reviewing court can find, viewing the evidence in a light most favorable to the Secretary, that no rational trier of fact could have agreed with the Secretary’s determination” (Britt, 192 Ill. App. 3d at 472-73, 548 N.E.2d at 828), we reverse the circuit court’s ruling.

We note that plaintiff, in response to the Secretary’s argument about his terrible driving record, cites Britt for the proposition that “at some point in time the relative weight of the prior offenses decreases and may no longer justify a finding that restoration of an applicant’s driving privileges will cause harm to public safety and welfare.” (Britt, 192 Ill. App. 3d at 474, 548 N.E.2d at 829.) Although we stand by that statement as a general observation, it has minimal application to a driving record like the one before us. While “at some point in time” the relative weight of even this plaintiff’s prior offenses may no longer justify the Secretary’s finding that granting an RDP to him would cause harm to public safety or welfare, there is no telling how many years — or decades — need pass before that point is reached.

As a last matter, we point out that the circuit court provided the following as its entire ruling (and explanation) in this case:

“The findings of fact and the conclusions of law of the hearing officer, Tina Moorehead, which were adopted by the Secretary of State, were contrary to the manifest weight of the evidence and contrary to law.”

Such a ruling does not sufficiently explain the circuit court’s reasoning, particularly when that ruling is based upon the court’s analysis of the evidence presented at the administrative hearing. Had the record before us not provided a clear basis for reversing the decision of the circuit court, we would likely have reversed and remanded with directions that the circuit court explain the basis for its holding, so as to provide both the parties and this court with a more detailed record to review. See Muck v. Van Bibber (1992), 223 Ill. App. 3d 830, 836-37, 585 N.E.2d 1147, 1152 (“most trial courts, when ruling on issues of law, not only provide a statement of the grounds for their ruling, but also frequently provide some analysis regarding why they thought those grounds to be applicable” (emphasis in original)).

For the reasons stated, we reverse the judgment of the circuit court directing the Secretary to grant plaintiff an RDP.

Reversed.

KNECHT and COOK, JJ., concur.