author: JUSTICE GORDON

text:
    JESUS NUNEZ, Plaintiff-Appellant, v. LEONARD HORWITZ, d/b/a Liberty Auto, Defendant-Appellee.
    First District (5th Division)
    No.1—88—3070
    Opinion filed November 2, 1990.

      Jane A. Ready, of Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    Maris V. Lidaka, of Stern & Rotheiser, of Chicago, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff, Jesus Nunez, brought this action against the defendant, Leonard Horwitz, d/b/a/ Liberty Auto (hereinafter Liberty Auto), alleging that Horwitz or one of his employees negligently repaired Nunez’ automobile thereby causing his personal injuries. Nunez appeals from an order of the circuit court of Cook County granting a directed verdict in Horwitz’ favor. On appeal, Nunez contends: (1) the trial court improperly directed a verdict in favor of Horwitz; and (2) the trial court erred in denying his request for attorney fees pursuant to Illinois Supreme Court Rule 219(c) (107 111. 2d R. 219(c)). On cross-appeal, Horwitz contends that in the event of a reversal, the discovery sanction imposed by the trial judge was unwarranted and should be set aside. We affirm the judgment of the trial court.

On October 3, 1981, the plaintiff, Jesus Nunez, brought this action against several defendants, each of whom was ultimately dismissed by the trial court except for the defendant Leonard Horwitz. The count of the complaint relevant to this appeal alleged that in November 1979, Nunez brought his car to Liberty Auto, then owned and operated by defendant Horwitz, for repairs to the “sheet metal portion of his automobile.” It further alleged that Horwitz or one of his employees improperly connected the automobile’s radiator hose, and, as a result, the hose disconnected when Nunez was working under the hood of his automobile in August 1980 and sprayed burning antifreeze fluid over his body. Nunez’ complaint sought damages for the injuries caused by Horwitz’ alleged negligence.

On October 11, 1984, Nunez amended his complaint to include an additional count alleging a theory of res ispa loquitor. Horwitz filed a motion to dismiss the res ipsa count which the trial court granted for the reason that the allegations in plaintiff’s complaint conceded that Nunez was in possession and exclusive control of the car for more than eight months prior to the occurrence. The propriety of the dismissal of the res ipsa count is neither addressed nor challenged in this appeal.

On May 17, 1985, Nunez served Horwitz with a notice of deposition and a request to produce “work orders, work records of the mechanics, pay records of the mechanics of November 15, 1979, and any and all work orders for the Liberty Auto shop for that week.” At the deposition on May 24, 1985, Horwitz represented that he had the documents “down at the shop,” referring to Liberty Auto, and promised to forward the requested documents to Nunez.

On July 22, 1985, Nunez, who still had not received the documents, wrote a letter to Horwitz to remind him that he was required to produce all records generated by the repair of Nunez’ automobile. In response, Horwitz stated that Liberty Auto transferred the “payroll records” to Howard Yanes, his stepson and Liberty Auto’s new owner as of August or September 1984. However, when Nunez’ counsel contacted Yanes by phone, Yanes denied having any records related to the car repairs done on Nunez’ car, an assertion which Yanes later affirmed by an affidavit filed in February 1986. On August 30, 1985, Nunez filed a motion to compel discovery again demanding that Horwitz produce the documents. On April 18, 1986, Horwitz filed an affidavit of compliance with discovery attaching copies of employee pay records and stated besides these pay records, the only other record relevant to the request to produce was the Allstate estimate which was used as a “work order.”

On July 20, 1987, pursuant to court order, Horwitz was redeposed. At this deposition, Horwitz clarified that besides the payroll records and insurance estimates, the only other applicable records which he would have kept were auto parts receipts reflecting what parts were purchased to repair the damaged cars. Horwitz went on to state that he routinely discarded such receipts after the lapse of IV2 to 2 years.

On August 24, 1987, pursuant to Illinois Supreme Court Rule 219, Nunez filed a motion for discovery sanctions including a request for attorney fees incurred as a result of the discovery violation. In granting this motion for sanctions, the trial court entered an order striking any pleading by which defendant Leonard Horwitz, d/b/a/ Liberty Auto, denies that he performed any work on the radiator or radiator hoses of the plaintiff’s automobile and granting summary judgment as to that issue. As a result of this ruling, Horwitz was precluded from denying that he or any of his agents, assignees, or employees worked on the radiator or its hoses. The court reserved the issue of attorney fees until after the trial was completed.

On September 28, 1987, Horwitz requested a rehearing on the trial court’s order striking certain pleadings and granting partial summary judgment. In response, the trial court affirmed its earlier order, stating that the defendant “showed a deliberate and continuous disregard of the Court’s authority” by destroying the auto parts receipts.

The trial began on September 29, 1988. The plaintiff, Nunez, testified that in November of 1979, he brought his 1979 Camaro to Liberty Auto for repairs. He further confirmed that his insurance carrier, Allstate, prepared an estimate detailing the needed repairs which he transmitted to Liberty Auto.

He testified further that on August 20, 1980, several months later, he raised the car’s hood to pour windshield cleaning fluid into its reservoir. As he was closing the hood, the radiator hose disconnected at its attachment to the radiator and sprayed boiling antifreeze solution across the anterior of Nunez’ body. There is no dispute to the severity of Nunez’ injuries.

Horwitz testified as an adverse witness. He recalled seeing the 1979 Camaro in his shop and stated that he did body work on the front left fender of Nunez’ car. He stated that he only employed “body men” and not mechanics at Liberty Auto. Horwitz then testified that he sold the business to Howard Yanes in 1986. When asked what happened to “bills” for auto parts ordered in 1979, he replied that “they were done away with in 1986 — ’85.” But Horwitz then corrected himself by clarifying that he “dissolved” all records in 1984 when he sold the business. Over objection, he was again asked what happened to the 1979 “bills for [auto] parts.” Horwitz replied that he kept these bills for “three years,” meaning from 1979 thru 1981. In determining what repairs were needed on a particular car, Horwitz stated that he used the insurance company estimates “90 percent of the time.”

Howard Yanes testified that he bought Liberty Auto from his stepfather, the defendant, in August 1984. Yanes stated that when first asked the whereabouts of the documents, he believed that he did not have these documents in his “personal possession.” He realized, however, that perhaps records were stored in the boxes left on the auto shop’s premises so he brought these boxes to Horwitz’ home in December 1984. This was the only time, Yanes stated, that the records were in his “personal possession.” He never looked inside the boxes, because he “had no need to” and never had any personal knowledge as to what aspect of the business these records pertained to.

At the close of the plaintiff’s case, Horwitz moved for a directed verdict arguing that the plaintiff failed to establish a prima facie case of negligence. The trial court then examined the Allstate insurance estimate, evidence relied upon by both parties. It was the trial court’s uncontested conclusion that this estimate did not contain anything relating to radiator repairs. The trial court noted that although Horwitz was precluded from denying that he worked on the radiator or its hose, Nunez nonetheless still had the burden to establish that Horwitz negligently performed the repairs which caused Nunez’ injuries.

For these reasons, the trial court directed a verdict stating that Nunez presented no proof of causation to tie defendant to his injuries. The trial court thereafter denied Nunez’ motion for attorney fees which it had previously taken under reservation.

Opinion

DIRECTED VERDICT

On appeal, plaintiff contends that the trial court erroneously directed a verdict in favor of the defendant, Horwitz. It is well established in Illinois that a trial court should grant a motion for a directed verdict for a defendant at the close of the evidence if “all of the evidence, when viewed in its aspect most favorable to the *** [plaintiff], so overwhelmingly favors [defendant] that no contrary verdict *** could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 514.) With respect to neg ligence actions, the “question of the absence or existence of negligence should be resolved as a question of law and a verdict directed only when the facts are such that there [can] be no difference in the judgment of reasonable men as to the inferences to be drawn from the facts.” Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 968-69, 424 N.E.2d 1279, 1283.

Basic tort law mandates that to establish a prima facie case of negligence and thereby withstand a motion for a directed verdict, the plaintiff must introduce evidence showing that (1) the defendant owed a duty of care to plaintiff; (2) the defendant breached that duty; (3) that breach was the proximate cause of plaintiff’s injury; and (4) the plaintiff sustained damages. (W. Keeton, Prosser & Keeton on Torts §30, at 164-65 (5th ed. 1984).) In the instant case, Nunez had to prove not only that Horwitz worked on his car’s radiator or its hose but also that he performed the repairs negligently and that act of negligence caused his injuries.

It is undisputed that Nunez contracted with Horwitz to repair body damage on the front left section of Nunez’ car. To establish that Horwitz’ duty extended to the repair of the radiator, Nunez must further establish that Horwitz did in fact work on Nunez’ car radiator or at least undertook its repair. Although Nunez never introduced any such evidence indicating radiator repairs were performed, Horwitz was precluded from denying that fact as a result of the discovery sanction imposed by the trial judge. However, the trial judge’s ruling on the motion for discovery sanctions established only that Horwitz had a duty to perform the work on the radiator in a safe and a reasonable manner. That ruling neither proved nor implied that Horwitz or one of his employees breached this duty by performing the work improperly. The burden to prove defendant’s breach of duty still remained upon Nunez, who failed to introduce any evidence to the nature or quality of the work performed on the radiator.

Nunez contends that because Horwitz’ testimony concerning the whereabouts of the auto parts receipts was equivocal and replete with uncertainties and apparent contradictions, the trial court should have submitted this case to the jury. Any questions concerning Horwitz’ credibility cannot replace Nunez’ burden of proving the elements of his prima facie case of negligence. Even if Horwitz’ credibility were to be totally disregarded, Nunez would still be lacking proof of breach of duty and causation, the burden of which still rested upon him.

Nunez contends that Horwitz’ breach of duty should be deduced inferentially from the alleged fact that Liberty Auto would have been the last shop to have worked on the radiator prior to the occurrence on August 20, 1980. This contention is tantamount to an assertion of a res ipsa loquitor theory. However, as previously noted, Nunez’ res ipsa loquitor count was correctly dismissed by the trial court and no appeal from that dismissal was taken. We fully agree with the reasoning of the trial court in disallowing the res ipsa count since there was a lapse of approximately nine months between defendant’s alleged repairs and the date of Nunez’ injuries, during which time Nunez, not Horwitz, was in possession and control of the automobile. (See, e.g., Poole v. University of Chicago (1989), 186 Ill. App. 3d 554, 542 N.E.2d 746, appeal denied (1989), 128 Ill. 2d 672, 548 N.E.2d 1078.) Moreover, as the trial court further noted, although Nunez argues that Liberty Auto was the last to perform radiator repairs, he never testified or introduced evidence to establish that fact. Accordingly, the occurrence of Nunez’ injury cannot give rise to any inference of negligent causation on the part of the defendant.

The circumstances presented by this case are similar to those present in Mareci v. General Motors (1980), 90 Ill. App. 3d 335, 413 N.E.2d 34. There the court affirmed a directed verdict on the negligence count in favor of the defendant, owner of a service station. Having brought her car to the defendant’s station for repairs, the plaintiff watched the defendant install a new carburetor in her car. She returned twice to the defendant’s station to complain that the same malfunction had reoccurred. She then observed the defendant make adjustments to the carburetor. Seven months later, the plaintiff was involved in a car accident caused by the very condition that the defendant was contracted to repair. During the trial, an expert witness testified that defendant had installed a rebuilt carburetor. Nonetheless, at the close of plaintiff’s case, the trial court directed verdict for the defendant on the negligence count, simply stating that the plaintiff presented no evidence to show that the defendant negligently installed the carburetor.

Here, too, although by virtue of the discovery sanction Horwitz was precluded from denying that he worked on the radiator several months prior to the occurrence, there was no evidence of any misfeasance in performing these repairs or causal connection between that work and plaintiff’s injuries. Thus no breach of duty would be inferable even if we were to assume that Horwitz was the last one to work on the radiator before Nunez sustained his injuries.

ATTORNEY FEES

Nunez next contends that in addition to the grant of the partial summary judgment, the trial court should have also awarded him reasonable attorney fees pursuant to Supreme Court Rule 219(c) because Horwitz willfully and deliberately failed to comply with his request to produce.

Rule 219(c) provides in part that if a party fails to comply with discovery rules, the court, in lieu of or in addition to other remedies, may order the offending party or his attorney to pay the reasonable expenses, including the attorney fees, incurred by any party as a result of the misconduct. (107 Ill. 2d R. 219(c).) However, it is well established that the trial court has broad discretion when imposing sanctions against a dilatory party, and a court of review should not inter fere with such discretion absent any clear abuse. (Savitch v. Allman (1975), 25 Ill. App. 3d 864, 870, 323 N.E.2d 435, 439.) When consider ing whether to impose fees and other sanctions, the court should seek to accomplish the objectives of discovery rather than to punish a dilatory party. Jones v. Healy (1981), 97 Ill. App. 3d 255, 257, 422 N.E.2d 904, 906.

In the instant case, the trial court denied the plaintiff’s motion for attorney fees. In reviewing the surrounding circumstances of this case, we agree that the award of attorney fees was not mandated insofar as the sanctions already imposed against the defendant were sufficiently severe. (See King v. American Ford Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958, appeal denied (1987), 117 Ill. 2d 544, 517 N.E.2d 1087.) As noted, the Allstate insurance repair estimate upon which both the plaintiff and the defendant relied failed to indicate any radiator damage which would justify any such repairs. Nevertheless, the trial court sanctioned Horwitz for his destruction of records by precluding him from denying that he repaired the radiator. Thus, notwithstanding that there was a firm indication that no such work was performed or would have been reflected in the aborted records, the court imposed the sanction which gave to Nunez the benefit which he would have received had such records ever, in fact, existed.

We, therefore, hold that the trial court did not abuse its discretion when it denied plaintiff’s motion for attorney fees in light of the sanction which it did impose. Since we affirm the judgment in favor of the defendant, we need not address the issues raised by his cross-appeal.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

COCCI A, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    HENRY WILSON, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF MARKHAM et al., Defendants-Appellees.—RALPH TOLBERT, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF MARKHAM et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—89—1074, 1—89—2743 cons.
    Opinion filed November 2, 1990.

      John H. Kelly, of Long Grove, for appellant Henry Wilson.
    Stanley H. Jakala, of Berwyn, for appellant Ralph Tolbert.
    Hutchison, Anders & Associates, P.C., of Tinley Park, for appellee Board of Fire and Police Commissioners of City of Markham.
    Thomas F. McGuire, of Long Grove, for appellee Ted Clayton.
   JUSTICE MURRAY

delivered the opinion of the court:

After separate but related hearings before the Board of Fire and Police Commissioners of the City of Markham (Board), two City of Markham police officers, Sergeant Henry Wilson (Wilson) and patrolman Ralph Tolbert (Tolbert), were found to have violated certain police department rules and regulations in conjunction with an incident that had transpired between these two officers. Wilson was ordered suspended for 30 days from his duties as a police sergeant for the City of Markham. Tolbert was ordered discharged from the Markham police force. Both parties filed complaints for administrative review with the circuit court of Cook County, and the complaints were heard by two separate trial courts. Each trial court affirmed the actions of the Board in the case that was before it. Both parties appealed, each contending that the Board’s decision was improper and against the manifest weight of the evidence. Because the cases were related, we consolidated the cases after oral argument was heard in Wilson’s case.

We affirm the Board’s conclusion that both officers were guilty of violating rules of conduct. However, because of the gross disparity in the sanctions levied against the two parties, we reverse the trial court’s order in both cases and remand the matter to the Board for a new hearing on the issue of sanctions only.

Both of the cases on appeal stem from an incident that took place between Wilson and Tolbert, on December 7, 1988, in the Markham police department. The evidence presented to the Board indicates that when Tolbert reported for duty that morning he was confronted by Wilson prior to roll call. Wilson called Tolbert into an office to question him concerning a letter authored by a Markham alderman, which was critical of Wilson’s ability as a police officer. An argument followed. Wilson claimed that “there was cursing on both sides,” although Tolbert testified that only Wilson was cursing. At the close of this discussion, Wilson ordered Tolbert to leave the police station.

Rather than leave the station, Tolbert went to the squad room at the back of the station and began typing on a sheet of paper, presumably to lodge a complaint against Wilson. Wilson entered the squad room and noticed Tolbert sitting behind the counter at a typewriter. He approached Tolbert, repeated that he was to leave the station and told him that he was suspended. Tolbert ignored Wilson’s direction, so Wilson pulled the paper out of the typewriter that Tolbert was using. Tolbert grabbed for the paper and the paper tore.

What happened next is disputed. Wilson claimed that Tolbert came charging at him and that he merely grabbed Tolbert in an attempt to restrain him for his own defense. However, an eyewitness, Officer Mattie King, testified that Tolbert came around the counter that separated him from Wilson and stated, “What do you think you’re doing?” At the same time he had his arms raised. Wilson then pushed Tolbert into the counter. In response, Tolbert swung at Wilson and an altercation ensued, which was later terminated by the intercession of other police officers. According to Tolbert, during the course of this altercation, he hit his head on some overhead pipes, causing him to suffer a nondepressed skull fracture.

After the incident, on December 13, 1988, Tolbert was given a five-day suspension by the Markham chief of police, Ted Clayton. In addition, Clayton filed charges against Tolbert with the Board of Fire and Police Commissioners, calling for his discharge from the Markham police force. At the same time, on December 22, 1988, Tolbert filed charges with the Board against Wilson.

Rather than consolidating the two cases for hearing, the Board first proceeded with the case against Tolbert on January 10 and 17, 1989. The Board reconvened on January 26, 1989, and, after denying Wilson’s request for a continuance, heard the case against Wilson. At the close of this hearing the Board made its findings with regard to both cases, ruling that both Tolbert and Wilson were guilty of misconduct. Specifically, the Board found that Wilson was guilty of (1) conduct unbecoming an officer for yelling at Officer Tolbert and snatching a paper from the typewriter; and (2) disobedience of orders for committing a battery against Tolbert by pushing him and causing him to strike his head. Tolbert was found guilty of (1) conduct unbecoming an officer for using loud and profane language toward Wilson; (2) disobedience of orders for committing a battery against Wilson by punching and kicking him; (3) disobedience of orders for breaking a polished stone washroom partition in the course of the struggle; and (4) conduct unbecoming an officer for engaging in a verbal and physical altercation with his superior officer, Wilson.

On appeal Wilson contends that the hearing he received was unfair because of the Board’s denial of his request for a continuance. He further claims that the determination reached by the Board, including the sanction imposed, was against the manifest weight of the evidence. Tolbert questions whether his five-day suspension barred the filing and hearing of charges for dismissal. In addition, he, too, questions whether the Board’s findings and the sanction imposed were against the manifest weight of the evidence. Before addressing the correctness of the Board’s findings and penalties, we shall address the preliminary matters raised by the parties.

With respect to Wilson’s claim, the only unfairness that Wilson points to is the Board’s refusal to postpone his hearing until such time as the Board reached a determination on the charges lodged against Tolbert and the Board’s failure to provide him with a transcript of Tolbert’s hearing prior to his own hearing. Wilson’s position is based upon the erroneous conclusion that his own culpability was somehow contingent upon Tolbert’s guilt and that the Board’s denial of his motions for continuance and discovery limited his ability to adequately prepare his own defense.

We find no indication that Wilson was prejudiced by the Board’s decision to deny his requests. Administrative agencies are given broad discretion to grant or deny continuances. (Martich v. Ellis (1981), 100 Ill. App. 3d 1098, 427 N.E.2d 876.) Absent some showing that additional evidence would have been discovered which could have affected the outcome of the hearing or the penalty imposed, we cannot say that the Board abused its broad discretion in denying Wilson’s requests. As required by law (Ill. Rev. Stat. 1987, ch. 24, par. 10—2.1—17), Wilson was informed of the charges against him in writing. He attended Tolbert’s hearing and was fully cognizant of the circumstances surrounding the altercation which was being reviewed by the Board. Under these circumstances we find that Wilson was given the fair and impartial hearing to which he was entitled.

We note, too, that the Administrative Review Law grants the court jurisdiction to remand a cause back to the administrative agency so that additional evidence may be taken if it appears that such action is necessary and just. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — Ill.(7).) Wilson has made no such request, nor does he suggest any evidence that might be forthcoming if such action were taken.

We also find no merit in Tolbert’s argument that the five-day suspension imposed by the Markham police chief barred the subsequent disciplinary proceeding before the Board for the same conduct. Illinois statutory law provides that a member of a police department may be removed or discharged only for cause, upon written charges and after an opportunity to be heard at a fair and impartial hearing, conducted by the Board of Fire and Police Commissioners. (111. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—17.) Thus, the Board has the sole authority to discharge or to suspend without pay for a period not exceeding 30 days. At the same time, the law recognizes the power of the police chief to suspend an officer, without pay, for a period up to five days. These two powers are not mutually exclusive, unless it is evident from the record that the initial suspension was intended to be a final disposition of the matter and not merely a suspension pending a discharge hearing. Green v. Board of Fire & Police Commissioners (1980), 87 Ill. App. 3d 183, 408 N.E.2d 1187.

In this case there was sufficient evidence that the five-day suspension imposed by Chief Clayton was not intended to be a final disposition of the matter. Attached to Tolbert’s order of suspension was a copy of the complaint that was soon thereafter filed with the Board. Additionally, within the order of suspension Tolbert was commanded to surrender his badge for the period of suspension or until the matter was adjudicated. These factors indicate that the five-day suspension was not intended to be the final disciplinary action in connection with the incident and, consequently, the Board was not barred from conducting the subsequent discharge hearing.

We now consider whether the Board’s findings, with respect to either Tolbert or Wilson, were against the manifest weight of the evidence. It is settled authority that the role of a court when reviewing administrative rulings is not to reweigh the evidence or judge the credibility of the witnesses. (Keen v. Police Board (1979), 73 Ill. App. 3d 65, 391 N.E.2d 190.) Findings and conclusions of an adminis trative board on questions of fact are deemed prima facie true and correct. (Crittenden v. Board of Fire & Police Commissioners (1985), 139 Ill. App. 3d 154, 487 N.E.2d 115.) The reviewing court may not disturb these findings unless they are against the manifest weight of the evidence (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 307 N.E.2d 371), which means that a contrary conclusion is clearly evident. (Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351.) In light of this standard, this court must affirm the trial court and the Board.

The fact that an altercation occurred between Tolbert and Wilson is undisputed. The only substantive dispute, on the facts of the two cases, was over the cause of the altercation, i.e., whether Wilson or Tolbert provoked the incident, and whether they should be held culpable for their roles in the incident. The Board found that both Wilson and Tolbert engaged in conduct unbecoming an officer and should be held culpable for participating in an altercation. We do not find that it was manifestly erroneous for the Board to have concluded that both parties’ behavior was culpable.

As stated earlier, the Board found that Wilson displayed conduct unbecoming an officer by acting in an unprofessional and provoking manner toward Officer Tolbert by yelling and snatching a paper out of the typewriter that Tolbert was typing on. The Board also found that Wilson disobeyed orders in that he committed a battery against Tolbert by pushing him and causing him to strike his head and receive injury. The record shows that Wilson admitted “cursing” at Tolbert and pulling the paper from the typewriter. While it is true that Tolbert had been ordered to leave the station, this does not excuse Wilson’s act of removing the paper from the typewriter, which surely escalated the animosity of the situation.

Wilson also admitted to grabbing and pushing Tolbert, although for the stated purpose of self-defense. However, there was some evidence to indicate that Wilson initiated the physical contact between the two men and, in any event, there was abundant evidence that they engaged in a struggle which required the intercession of other officers. This evidence adequately supports the finding that Wilson’s conduct was improper and that the charges against him were sustained.

We note that Wilson challenges the Board’s decision to admit into evidence Tolbert’s medical report which showed that he had suffered a nondepressed skull fracture. While it is true that the report is hearsay evidence, which is not generally admissible even in administrative proceedings (Fagiano v. Police Board (1984), 123 Ill. App. 3d 963, 463 N.E.2d 845), the improper admission of hearsay evidence will not be deemed prejudicial error if there is sufficient competent evidence to support the administrative decision. Cha v. City of Chicago (1990), 194 Ill. App. 3d 213, 550 N.E.2d 1198; La Grange Bank v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992.

In this case there was sufficient competent evidence to support the Board’s finding that Wilson grabbed and pushed Tolbert, thereby committing a battery. Proof that Tolbert sustained a skull fracture was not essential since battery may be proven by evidence of physical contact of an insulting or provoking nature.

We also find sufficient evidence to support the Board’s findings with regard to Tolbert. Clearly, there is no dispute that Tolbert engaged in an altercation with Wilson, his superior officer, and Tolbert admitted to striking and kicking Wilson during the struggle. This was also confirmed by several witnesses who testified at the hearing. Consequently, the charges against Tolbert were sustained.

Having found the question of guilt supported by the record, we next consider whether the Board’s findings provided sufficient basis for the sanctions that were imposed. (Department of Mental Health & Developmental Disabilities v. Civil Service Comm’n (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885.) In making this determination this court may not consider whether it would have imposed a more lenient disciplinary sentence. (Sutton v. Civil Service Comm’n (1982), 91 Ill. 2d 404, 438 N.E.2d 147.) Review is limited to a determination of whether the Board acted unreasonably or arbitrarily by selecting a type of discipline that was inappropriate or unrelated to the needs of the service. Sutton v. Civil Service Comm’n, 91 Ill. 2d 404, 438 N.E.2d 147.

In the present cases, separate trial courts reviewed the appropriateness of the sanctions imposed upon the two plaintiffs. Each court was only able to consider the appropriateness of the sanction in the matter that was before it. Neither trial court was able to consider whether the sanction was inappropriate or arbitrary when viewed in relation to the sanction imposed in the other related case. Although, we believe that neither of the Board’s actions, i.e., either the 30-day suspension of Wilson or the discharge of Tolbert, if viewed separately, could be considered inappropriate or arbitrary. When considering the fact that the events surrounding these cases were completely related, there appears to be a gross disparity or disproportionality between the two sanctions. For this reason we believe that a new hearing on. sanctions is warranted.

We do not condone either party’s conduct, nor do we mean to intimate that either party should go unpunished. We remand this case to the Markham Board of Fire and Police Commissioners for the sole purpose of determining whether alternative sanctions should be imposed against either Wilson or Tolbert, or both.

For the reasons set forth above, we affirm the trial courts’ decisions in affirming the Board’s findings of fact. We reverse the trial courts’ orders as to the sanctions and remand the matter to the Markham Board of Fire and Police Commissioners for reconsideration of the issue of sanctions in each case.

Affirmed in part; reversed and remanded in part.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE McNAMARA

text:
    ILLINOIS ARMORED CAR CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (John Spizzinoco, Appellee).
    First District (Industrial Commission Division)
    No. 1—89—3375WC
    Opinion filed November 2, 1990.

      Law Offices of Jobin & Flynn, of Chicago, for appellant.
    Law Offices of Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago (David M. Parish, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, John Spizzinoco sought workers’ compensation benefits for injuries sustained while working for Illinois Armored Car Corporation. The arbitrator awarded him $341.19 per week for 262/v weeks as temporary total disability. The arbitrator also awarded $97.52 per week as a wage differential, which represents two-thirds of the difference between the average amount he would have earned if engaged in his former occupation and the average amount earned in the job he is capable of performing after the accident. The Industrial Commission (Commission) affirmed the arbitrator’s decision on February 23, 1989.

The employer appealed to the circuit court of Cook County. On March 20, 1989, the employer filed a request for the issuance of summons, a petition to commence proceeding to review order of the Commission and the certificate of mailing. On the same day, the employer’s attorney executed a bond as its principal. A representative of the employer’s insurance company signed the bond as surety. On April 19, 1989, claimant filed a special and limited appearance and a motion to quash the summons, contending that the bond was defective because it was executed by the attorney as principal, rather than by an agent of the employer. On May 3, 1989, the employer filed the affidavit of Christopher Alexander, its president, which stated that the attorney was authorized to execute the bond as principal on behalf of the respondent on March 20, 1989.

The trial court denied claimant’s motion to quash summons and motion to dismiss for want of subject matter jurisdiction. The court, however, ultimately confirmed the Commission’s decision that the claimant’s condition was causally related to his October 24, 1985, work injury and that he was entitled to both the temporary total disability benefits and the wage differential.

The employer now appeals, contending that the Commission’s decision as to the wage differential was against the manifest weight of the evidence. Specifically, it argues that the Commission erred in finding that claimant was unable to perform his previous job and that his earning capacity was diminished. Further, it maintains that the bond executed by its attorney was proper and complied with section 19(f)(2) of the Workers’ Compensation Act (Act) (111. Rev. Stat. 1987, ch. 48, par. 138.19(f)(2)) and thus the trial court properly found that subject-matter jurisdiction existed.

The claimant-appellee argues that the trial court lacked jurisdiction because the bond filed by the employer was defective. Because we believe that the jurisdictional issue disposes of the appeal, it is not necessary to review the evidence relating to the claimant’s injury.

Section 19(f) of the Act sets forth the requirements for the filing of an appeal from the Commission to the circuit court. Section 19(f)(2) provides in pertinent part: “No such summons shall issue unless the one against whom the Commission shall have rendered an award for the payment of money shall upon the filing of his written request for such summons file with the clerk of the court a bond conditioned that if he shall not successfully prosecute the review, he will pay the award and the costs of the proceedings in the courts.” 111. Rev. Stat. 1987, ch. 48, par. 138.19(f)(2).

In this case, the Commission issued a written decision awarding benefits on February 23, 1989. The employer timely petitioned for review in the circuit court. It also timely filed a bond. However, the bond was not executed by “the one against whom the award was made,” as the statute requires. Rather, the employer’s attorney executed the bond. Further there was no indication that the attorney had authority to sign the bond until after the statutory period had expired. As such, no subject-matter jurisdiction existed for the appeal, and the trial court improperly denied the claimant’s motion to quash summons.

The circuit court exercises special statutory jurisdiction when it hears cases on certiorari to the Industrial Commission. (Perusky v. Industrial Comm’n (1978), 72 Ill. 2d 299, 381 N.E.2d 270; Peter H. Clark Lodge No. 483 v. Industrial Comm’n (1971), 48 Ill. 2d 64, 268 N.E.2d 382; Malone v. Industrial Comm’n (1986), 141 Ill. App. 3d 116, 489 N.E.2d 1167.) Therefore, statutory requirements for the circuit court’s jurisdiction to review Commission cases require strict compliance. (Daugherty v. Industrial Comm’n (1983), 99 Ill. 2d 1, 457 N.E.2d 381; Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 451 N.E.2d 866.) In the absence of proof in the record, jurisdiction does not exist. Wabash Area Development, Inc. v. Industrial Comm’n (1981), 88 Ill. 2d 392, 430 N.E.2d 1002.

The trial court relied on Lee v. Industrial Comm’n (1980), 82 Ill. 2d 496, 413 N.E.2d 425, to find that jurisdiction existed. In Lee, the Commission awarded benefits against the respondents, Eugene Lee and Jack Onofrey, who were partners doing business as LeJac’s. When the respondents filed an appeal to the circuit court, one partner signed the bond as principal and the other signed as surety. The trial court granted claimant’s motion to dismiss because the bond was not in proper form. The trial court subsequently refused to accept respondents’ tender of a new bond which both partners executed as principals. On appeal, the supreme court reversed, finding that the trial court should have allowed the respondents’ motion to vacate the order quashing the writ and should have determined the sufficiency of the subsequently tendered bond. The court focused on the fact that one of the two respondents did, in fact, execute the original bond. The court concluded that although the bond was irregular in form, the fact that at least one of the respondents signed the bond was sufficient to allow the trial court to find that jurisdiction was proper.

The Lee court’s reasoning will not sustain a finding of jurisdiction in this case. Unlike the bond in Lee, the bond here was not executed by the employer against whom the award was made. Although the attorney was hired to represent the employer in this matter, the attorney cannot be considered “the one against whom the award was made” for purposes of this statute. The award was against the corporation, not the attorney. Further, no agent or officer of the corporation signed the bond. Thus, Lee is distinguishable.

The supreme court’s decision in Coultas v. Industrial Comm’n (1964), 31 Ill. 2d 527, 202 N.E.2d 485, demonstrates the necessity for strict compliance with the section 19(f)(2) bond requirement to confer jurisdiction for review of Commission cases. In Coultas, the Commission awarded benefits to the claimant against L. Coultas doing business as Scott Grain and Land Company. Although the award was made against L. Coultas, the company executed the bond. The court stated: “L. Coultas was the person against whom the Commission entered the award for money and it is she who must file her bond at the time she requests judicial review before such review may be had.” (Coultas, 31 Ill. 2d at 528, 202 N.E.2d at 486.) The supreme court thus concluded that the trial court lacked jurisdiction to hear the appeal.

The employer argues, however, that under basic agency law, its attorney was authorized to execute the bond on its behalf. Specifically, the employer suggests two bases of authority: actual authority and ratified authority. Under either theory, however, the employer’s argument fails.

Generally, the ordinary agency rules apply to the attorney-client relationship. (Flight Kitchen, Inc. v. Chicago Seven-Up Bottling Co. (1974), 22 Ill. App. 3d 558, 317 N.E.2d 663; Doyle v. Shlensky (1983), 120 Ill. App. 3d 807, 458 N.E.2d 1120.) However, a court may not presume the agent’s authority to bind the principal. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311.) Instead, the person alleging authority must show the source of his authority unless the principal ratified the act. Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311; Mudd v. Goldblatt Brothers, Inc. (1983), 118 Ill. App. 3d 431, 454 N.E.2d 754.

The employer contends that it ratified the attorney’s authority by tendering its president’s own affidavit. Where an act is performed by one person without authority for the benefit of another, or by an authorized agent in excess of his authority, the person for whose benefit the act was done may ratify the act. (Copley v. Pekin Insurance Co. (1985), 130 Ill. App. 3d 299, 474 N.E.2d 57, rev’d on other grounds (1986), 111 Ill. 2d 76, 488 N.E.2d 1004; Effingham State Bank v. Blades (1985), 139 Ill. App. 3d 259, 487 N.E.2d 431.) Ratification of an unauthorized act is the equivalent of an original authorization and confirms that which was originally unauthorized. Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311; Advance Mortgage Corp. v. Concordia Mutual Life Association (1985), 135 Ill. App. 3d 477, 481 N.E.2d 1025.

However, even assuming that the sworn affidavit here ratified the attorney’s unauthorized execution of the bond, the attorney’s authority did not appear in the record within the statutory period. The failure to demonstrate this authority until after the statutory period expired does not meet the strict compliance standard required for circuit court review of Industrial Commission cases. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 451 N.E.2d 866.

The employer also contends that the attorney possessed actual authority to execute the bond. Authority of an agent may be either actual or apparent; actual authority may be either express or implied. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311.) The record shows no evidence that an agent of the employer expressly authorized the attorney to file the bond prior to the expiration of the statutory period.

Implied authority is defined as actual authority proved circumstantially and is implied from facts and circumstances. (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 504 N.E.2d 1289.) Aside from the belated affidavit, there are no facts or circumstances in the record which demonstrate the attorney’s authority to execute the bond. The employer hired the attorney to represent it in this worker’s compensation case. As such, we may presume that she had the authority to take certain actions to defend the employer in this case. However, we cannot presume that the attorney had authority on March 20, 1989, to obligate her client to pay an $8,300 bond. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311.) The only evidence in the record which even suggests the attorney’s authority appears in the affidavit which was filed after the statutory period ended.

The scope of an agent’s implied authority may be ascertained by determining what reasonably prudent persons, who are familiar with pertinent business practices, might rightfully believe the agent possesses based on the principal’s conduct. (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 504 N.E.2d 1289.) It is un likely that a reasonable person would assume that retaining an attorney to defend a corporation against a worker’s compensation claim would necessarily give the attorney authority to obligate the corporation financially. Nor is this the customary practice. Decisions relating to a corporation’s financial obligations are typically reserved for corporate officers and directors, not for attorneys representing the corporation. The purpose of an appeal bond is to protect the employee. (Cooke v. Groveland Coal Mining Co. (1934), 276 Ill. App. 521.) The bond here failed to protect the claimant in the same way as one executed by a corporate officer.

In our opinion, employer’s bond does not substantially comply with the material provisions of section 19(f)(2). While we recognize the merits of honoring substance over form and simplifying appeal procedures, we believe that the substance of the statutory bond requirement was not fulfilled in this case.

Although it is sometimes proper to correct a mistake on appeal, it is not proper to belatedly supply a jurisdiction element. (Peasley v. Industrial Comm’n (1990), 198 Ill. App. 3d 460, 555 N.E.2d 1172.) In Beasley, the claimant failed to exhibit a receipt showing payment to the clerk of the court within the statutory period, as required by section 19(f)(1). After the statutory period expired, claimant filed the requisite receipt. The court held that claimant could not attempt to cure a jurisdictional flaw after the statutory period expired, and, thus, no jurisdiction was conferred.

Beasley is apposite to the present case. Although a bond was filed within the 20-day period, it was not executed by the party against whom the award was made, as the statute requires. Further, the attorney’s authority to sign the bond was not apparent within the 20-day statutory period. As in Beasley, the defect in the jurisdictional requirement was not cured until after the statutory period had expired, when the employer’s agent tendered an affidavit which ratified the attorney’s execution. See Sears, Roebuck & Co. v. Industrial Comm’n (1971), 133 Ill. App. 2d 439, 273 N.E.2d 725 (employer filed for review after 20-day period had expired; later affidavit stating that counsel misplaced the Commission’s decision cannot cure defect; no jurisdiction).

Notwithstanding our holding that no jurisdiction existed for review of the Commission’s original order, we should note that even if there were jurisdiction, the Commission’s decision to award benefits was not against the manifest weight of the evidence. Thus, that decision would not be disturbed by this court. See Odie v. Industrial Comm’n (1982), 88 Ill. 2d 514, 431 N.E.2d 374.

The Commission found that claimant was entitled to a wage differential under section 8(d)(1) of the Act because he was no longer able to perform his usual employment and was now earning less money due to his work-related injury. The medical evidence on this issue was in dispute. Drs. Kale, Brash and Bias all opined that claimant was unable to perform his usual duties as coin roller and truck driver, while Dr. Shafer believed that claimant was fully capable of returning to his usual duties. It is, of course, for the Commission to decide which of the conflicting medical opinions is to be accepted, and we would not disturb that determination.

We hold that the trial court was without jurisdiction to hear the case on its merits since the employer against whom the award of money was made did not file its bond. The judgment of the circuit court of Cook County is reversed, with directions to quash the writ of certiorari.

Reversed and remanded, with directions.

BARRY, P.J., and WOODWARD, McCULLOUGH and LEWIS, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1168
    Opinion filed November 5, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Mary C. Arundel and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Kathleen L. Panozzo, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Frank Williams was convicted of armed robbery (111. Rev. Stat. 1987, ch. 38, par. 18 — 2) and sentenced to eight years’ imprisonment. Williams appeals his conviction. For the reasons below, we reverse and remand.

On June 8, 1987, at approximately 5 a.m., the Hertz Rent-A-Car agency at O’Hare Airport was robbed. A man walked into Hertz and asked Hertz employee Paul Jackson for a job application. Jackson called the manager, Ed Burchert, who told the man to come back the next Tuesday for an application. The man left.

The man returned immediately, showed Jackson a pistol, and demanded money. Jackson gave $178 from a cash drawer to the man, who then demanded that Jackson open the safe. Jackson and the man went into the back room to get the safe key from Burchert. Burchert assumed the man had not understood the instructions about the job application and repeated to him to return Tuesday.

Before Jackson could ask for the safe key, a customer entered the storefront. Jackson and the robber left the back room. The robber told Jackson to take care of the customer, and as Jackson did so, the robber left the building. Jackson called the police and told them he had been robbed with a silver gun.

On June 10, 1987, Chicago police officer Gaal stopped an Avis rental car in which Frank Williams, an Avis employee at O’Hare, was a passenger. Finding that neither Williams nor the driver had proper rental papers for the car, Gaal arrested them both. Gaal found a clear plastic bag with six .38 caliber cartridges on the front passenger seat with Williams. But, Gaal had no probable cause to stop and search, and a motion to quash the arrest and suppress the evidence was granted.

On June 19, Jackson identified Williams as the Hertz robber, identifying his picture and picking him out of a lineup. Williams was charged with the armed robbery of Hertz and given a jury trial.

At trial, Jackson testified to the details of the robbery, identifying Williams as the robber. Jackson testified that Williams had used a .38 caliber revolver, a detail of which he was sure because of his experience with guns. Jackson acknowledged, however, that he had told police only that the robber had used a silver gun.

Ed Burchert testified that he had spoken twice to the man who had asked for a job application and both times had looked directly at the man. Burchert had been unable, however, to identify Williams as that man in a lineup.

Detective Patrick Brosdan was a Chicago police officer who moonlighted as a security officer for the O’Hare Avis rental agency, located near the Hertz agency. Brosdan testified that on June 8, he saw an Avis employee, whom he later identified as Williams, drive into the Avis employee parking lot at about 1 a.m. and leave at about 5:20 a.m. On cross-examination, Brosdan admitted that at the time he neither identified the driver as Williams, nor made any notes concerning the vehicle or driver, but had, prior to testifying, reviewed prepared police reports concerning the investigation of Williams.

Iola McDaniel and Maxine Over, who lived with Williams, testified that on June 7, Williams came home at 10:30 p.m., spoke to them, then went to bed. Neither saw Williams leave the house after 10:30.

Williams testified that on June 7, he worked at Avis from 3 p.m. to 9 p.m., went home at about 10:30, and shortly after went to bed. Responding also to a series of questions intended to elicit biographical details, Williams testified that he had served four years in the army and two years in the National Guard. The record shows that the questions about Williams’ military service concerned only years served and the locations of service. No questions were asked concerning Williams’ knowledge or experience with firearms.

On cross-examination, the prosecutor asked Williams about his whereabouts on June 7 and 8 and a conversation with Assistant State’s Attorney Ellen Mandeltort. The prosecutor then explored Williams’ military career in the following colloquy:

“Q. Now you have testified, sir, you were in the military?
A. Yes.
Q. Did you ever see a .38 caliber gun?
A. No.
Q. In the military?
A. Never, never in the military. They have .45s.
Q. All right, so in the course of your four years in the United States military, you never saw a .38 caliber weapon?
A. Never seen a .38.
Q. Did you ever see a .38 caliber bullet?
A. No.
DEFENSE COUNSEL: Objection.
THE COURT: All right, I am going to overrule that.”

After the objection was overruled, the prosecutor asked no more questions about Williams’ military career, or his knowledge of any weapons or bullets, but rather proceeded to ask about Williams’ participation in the lineup of June 19.

During a conference on jury instructions, defense counsel again raised the objection to the questions whether Williams had ever seen a .38 caliber weapon or bullet. The trial court’s notes of the colloquy stated, “I was in the military. Ever see a .38 caliber? No. Never seen a .38 caliber bullet? No.” Relying on its notes, the trial court found that the question whether Williams had ever seen a .38 caliber bullet was sufficiently general to encompass more than Williams’ military career. Accordingly, the trial court allowed Officer Gaal to testify, for impeachment purposes only, to Williams’ arrest while possessing .38 caliber cartridges.

In rebuttal, Assistant State’s Attorney Mandeltort testified that, in a conversation with Williams, he had told her that he had been at O’Hare on June 7 and that it was his day off. Mandeltort also testified that Williams told her that he had returned to O’Hare at about 1 a.m. in an Avis rental car.

On cross-examination, Ms. Mandeltort admitted she had made no notes of her conversation with Williams, nor had any statement by Williams been produced from that conversation, and that she was testifying from memory to the conversation that had taken place almost two years before. Ms. Mandeltort also admitted that prior to testifying she had seen a prepared police report on Williams that referred to a statement allegedly made by Williams.

The jury returned a verdict of guilty. Williams was convicted and sentenced to eight years’ imprisonment. Williams appeals.

Williams argues that the trial court erroneously allowed impeachment of his assertion that he had not seen a .38 caliber bullet "with the suppressed evidence that he had been arrested with .38 caliber bullets in his possession. Williams contends that use of the suppressed evidence was improper because the question about .38 caliber bullets was asked in the context of his military service. The State counters that the trial court correctly found that the question was asked in a general context and not limited to the period of Williams’ service. Regardless of the context of the State’s questions, admitting the suppressed evidence to impeach Williams was error.

The State may impeach a defendant with suppressed evidence (Agnello v. United States (1925), 269 U.S. 20, 70 L. Ed. 145, 46 S. Ct. 4; United States v. Havens (1980), 446 U.S. 620, 64 L. Ed. 2d 559, 100 S. Ct. 1912, reh’g denied (1980), 448 U.S. 911, 65 L. Ed. 2d 1172, 101 S. Ct. 25; People v. James (1988), 123 Ill. 2d 523, 528 N.E.2d 723, rev’d on other grounds (1990), 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648); a defendant’s constitutional shield against having illegally seized evidence used against him may not be “perverted into a license to use pefyiry by way of a defense, free from the risk of confrontation.” (Havens, 446 U.S. at 626, 64 L. Ed. 2d at 565, 100 S. Ct. at 1916.) But the State may not impeach a defendant merely as a subterfuge to place otherwise inadmissible evidence before the jury.

In United States v. Webster (7th Cir. 1984), 734 F.2d 1191, the prosecution called a witness to testify whose testimony tended to exculpate the defendant. The prosecution then impeached the witness with inculpatory prior inconsistent statements that were otherwise inadmissible hearsay. The Seventh Circuit declared that for the State to call a witness it knew would give no useful testimony, to introduce inadmissible evidence as impeachment in the hope that the jury would either miss or ignore the distinction between impeachment and substantive evidence, was an abuse of evidentiary rules and accordingly ruled that impeachment may not be permitted where employed “as a mere subterfuge to get before the jury evidence not otherwise admissible.” Webster, 734 F.2d at 1192.

The use of inadmissible evidence in Webster, however, was justified by a finding of good faith by the prosecutor, who had asked the trial court to question the witness outside the presence of the jury. Defense counsel objected, and the request was denied. The Seventh Circuit found that the request for voir dire indicated that the prosecution could not have known that the witness would not give useful testimony. Webster, 734 F.2d at 1192-93.

Here, in a situation analogous to Webster, the State asked questions that could have produced no useful information. Williams’ military record was totally unconnected to the crime with which he was charged; the facts did not even suggest that knowledge or experience derived from military service had been necessary or employed in the commission of the robbery. The State argues that because the robbery was committed with a .38 revolver, it was “only natural” to inquire as to Williams’ knowledge and experience with such weapons and ammunition. But again, the facts show nothing to indicate that any general knowledge or experience with weapons, much less weapons of a specific caliber, had been necessary or used in the commission of the crime. The State’s argument, moreover, defies the commonsense understanding that all one need know to use a gun is which end to point and the location of the trigger.

We also note that the State’s assertion that the robbery was committed with a .38 revolver is based on Paul Jackson’s trial testimony, which was countered by his admission that he had originally told police that the robber had used a “silver gun.” Jackson testified that he knew from his military experience that the weapon used was of .38 caliber. The State’s argument, therefore, that Williams’ knowledge and experience with firearms made it more likely that he committed the crime, applies equally to Jackson, who was accused of nothing.

Because the information elicited by the State’s questions was so far removed from the crime charged, the State could not reasonably have expected its questions to produce useful information. Thus, the State’s conduct cannot be rescued by a finding of good faith; the questions were a deliberate and virtually transparent deliberate maneuver to sidestep Williams’ constitutional protections and place before the jury illegally obtained, and otherwise inadmissible, evidence.

Even were the context of the State’s cross-examination questions dispositive, the record shows that admission of suppressed evidence for impeachment was error. The State may impeach either the defendant’s statements during direct examination, or answers to questions on cross-examination where the questions are plainly within the scope of the direct examination. (Havens, 446 U.S. at 627, 64 L. Ed. 2d at 566, 100 S. Ct. at 1916.) But where the cross-examination has too tenuous a connection to any subject opened on direct examination, impeachment with tainted evidence will not be permitted. Havens, 446 U.S. at 625, 64 L. Ed. 2d at 565, 100 S. Ct. at 1916. See, e.g., Agnello v. United States (1925), 269 U.S. 20, 70 L. Ed. 145, 46 S. Ct. 4.

Here, the prosecution asked the following questions:

“Q. All right, so in the course of your four years in the United States military, you never saw a .38 caliber weapon?
A. Never seen a .38.
Q. Did you ever see a .38 caliber bullet?
A. No.”

The bullet question indicates no context beyond that of the questions immediately preceding it. The context, therefore, is, at best, ambiguous, but the most reasonable reading of the record shows that the question was asked within the context of Williams’ military service.

Having determined that Williams never saw a .38 caliber weapon in four years of military service, the prosecutor next asked, “Did you ever see a .38 caliber bulletV’ The phrasing of the question, “did you ever see,” indicates a specific frame of reference, and not the general life experience connoted in the phrasing, “have you ever seen,” indicated by the trial court’s notes. Given the preceding questions, the distinction between weapons and bullets, and the phrasing of the bullet question, the most reasonable interpretation of the record is that Williams answered the bullet question with the understanding that it was within the context of his military experience. Clearly, Williams’ testimony that he never saw a .38 caliber bullet, while he served in the military, could not properly be impeached by his possession of .38 bullets at the time of his arrest years later. The trial court’s ruling to allow impeachment, based on a misinterpretation of the record, was error.

But assuming the trial court had not erred in its interpretation of the record, the use of suppressed evidence to impeach Williams remains improper because the State’s questions were beyond the scope of the direct examination. Although the trial court has wide discretion in allowing cross-examination, allowing questions beyond the scope of direct examination constitutes an abuse of that discretion. Here, no direct examination questions were directed towards Williams’ knowledge of weapons of any kind, either in the context of his military experience or generally. Because the cross-examination questions were beyond the scope of the direct examination, impeachment with suppressed evidence was improper. United States v. Havens (1980), 446 U.S. 620, 627, 64 L. Ed. 2d 559, 566, 100 S. Ct. 1912, 1916.

The State further argues that any error was harmless because the evidence of guilt was overwhelming. That argument, however, is not supported by the record.

The victims, Jackson and Burchert, saw the robber in good light, and both talked to him before he revealed his intent to rob the Hertz agency. Only Jackson, however, was able to identify Williams. Jackson also testified in court that the robber had used a .38 caliber handgun, but told police just after the robbery only that the robber had used a silver gun.

Officer Brosdan testified that Williams had entered and left the Avis rental agency on the morning of the robbery, but Brosdan had no notes to refresh his recollection and admitted reading prepared police reports before testifying. Assistant States’ Attorney Mandeltort testified that, in a conversation with Williams, he had admitted being at the Avis lot on the morning of the Hertz robbery. But, like Brosdan, Mandeltort had no notes to refresh her recollection, and she also admitted reading prepared police reports concerning the investigation of Williams before testifying.

Williams testified that he was at home when the robbery occurred. Iola McDaniel and Maxine Over corroborated Williams, but both women lived with Williams. Finally, the State presented no physical evidence of any kind to connect Williams to the robbery.

The facts showed that determination of guilt depended largely on the jury’s assessment of the witnesses’ credibility. The evidence, although sufficient to prove guilt, was not so overwhelming that no jury could have found reasonable doubt. The improper admission of inadmissible evidence could easily have prejudiced the jury by introducing an otherwise absent physical link between Williams and the crime, too tempting for the jury to ignore as substantive evidence. Thus, the clear abridgement of Williams’ constitutional right to be shielded from the use of illegally obtained evidence was substantially prejudicial.

Finally, because we reverse, we need not address Williams’ argument that the State’s attempt to argue the impeachment evidence as substantive evidence was reversible error. The trial court’s ruling to permit impeachment with previously suppressed evidence was erroneous and, given the closely balanced evidence, substantially prejudicial. Accordingly, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BOLAND, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—1900
    Opinion filed November 5, 1990.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Elizabeth Sklarsky, Special Assistant State’s Attorney, and Renee Goldfarb and Anne C. Scrivner, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was convicted of aggravated criminal sexual assault and aggravated criminal sexual abuse. (111. Rev. Stat. 1985, ch. 38, pars. 12 — 14(a)(2), 12 — 16(d).) The court sentenced defendant to 16 years’ imprisonment, followed by three years of mandatory supervised release. Defendant appeals on the grounds that: (1) his rights under the fifth, sixth and fourteenth amendments to the United States Constitution were violated by the denial of a continuance at trial; (2) the prosecutor improperly commented on the element of bodily harm in closing argument; (3) the sentence is excessive; and (4) the indictment was fatally defective regarding the mental state for the crimes charged. We affirm.

The complaining witness, M.R., age 13, testified that she was born on April 6, 1974. She left her house at about 4 p.m. on May 11, 1987, to pay a bill for her mother. On her way back home, she was grabbed from behind by the upper arms. Turning her head, she could see the person grabbing her was a man (later identified as defendant) whom she had known on a very casual basis for about 2Vz years.

Defendant dragged complainant across the street and released her several houses into an alley. A garage stood inches behind complainant, and defendant stood a few inches in front of her.

Defendant pulled complainant’s shorts and panties to her knees. He then knocked her to the ground. Complainant’s arms were pinned behind her. She yelled at defendant to leave her alone, but did not run away because defendant held her shoulders. Defendant then unzipped his pants and got on top of complainant. He took his penis out of his pants and placed it inside her vagina. He then lay on top of her as she continued to protest. Defendant laughed most of the time.

After a few minutes, defendant got up and left. Complainant put her pants on and went to her aunt’s nearby home because her mother would still be at work. After hearing what happened, complainant’s aunt (Laura), called complainant’s mother (Gloria) and then took complainant home. Complainant told Gloria what happened. Gloria called the police about an hour later. After the police arrived and spoke with complainant, they returned with her to the alley so that she could identify the area. The police then patrolled the area with complainant, looking unsuccessfully for defendant. Later, the officers took complainant to the hospital, where she was examined.

Laura testified in corroboration of complainant’s testimony that on May 11, 1987, at about 5 p.m., her niece came to the house. She testified that her niece was crying, had bruises on both arms, a red face and dirt on the back of her clothes. The niece told Laura what happened and asked her to call Gloria, which she did. Laura took complainant to Gloria’s home and then left.

Gloria then testified in corroboration of complainant’s testimony. The mother testified that on the date in question, at about 5:30 p.m., she received a phone call from Laura. Shortly thereafter, complainant arrived home, with dirty clothes, scratches on at least one arm and a reddened face. Gloria spoke with complainant, but did not call the police for one hour because she initially did not want her daughter to go through an investigation or trial.

Officer Jeffrey Johnson testified that he went to complainant’s home at about 6:55 p.m. on May 11, 1987. After noting complainant’s physical appearance and speaking with her, they went to the alley, toured the area to look for defendant and went to the hospital. Detective George Patton testified that he met with complainant at the hospital on the evening of May 11. He observed her physical and emotional state. As a result of speaking with complainant, he was able to obtain a photograph of a person who was identified as defendant by complainant on May 12, 1987. Defendant was then taken into custody and identified by complainant in a one-on-one showup.

It was later stipulated that defendant was born on February 18, 1969, making defendant more than five years older than complainant. Finally, Dr. Neal Winston testified about his examination of complainant at the hospital. He noted her age and the condition of her clothing. He then noted bruises and sets of parallel scratch marks on both of her forearms, pressure marks on her face and pain in the superpubic areas of her body. A gynecological examination revealed a slight reddening of the labia, which would be consistent with sexual penetration. A urinalysis ruled out infection as a possible cause of the reddening. Samples were taken for a Vitullo kit.

The State rested its case in the morning. The record does not reflect the exact time. Defense counsel moved to recess until 2 p.m. so that a witness, Jessica Risa, could arrive to testify. The trial court recessed until 2:05 p.m. Defense counsel then moved to recess until 2:30 p.m. because its investigator had not yet arrived with the witness. After hearing that defense counsel was unsure of the witness’ exact testimony and that the witness was not currently under subpoena, the court denied the continuance. Defendant was the only other witness for the defense. Defense counsel stated that he did not believe that defendant could knowledgeably exercise his right to testify until after the witness testified. Nevertheless, the trial proceeded.

Defendant testified that on May 11, 1987, he was with a friend at the corner of 89th and Exchange from 4 p.m. until about 4:15 or 4:30 p.m., when he rode a bike down Commercial. He saw Jessica Risa during the bike ride. He then returned to 89th and Exchange at 5 p.m., where he remained until about 7 p.m. Defendant further testified that he knew complainant on a “hi and bye” basis, but did not see, grab or have intercourse with her on May 11. He also denied knowing the identity of the complainant at the time of his arrest.

On cross-examination, defendant testified that he had spoken about the case to Assistant State’s Attorney Nick Trutenko, but did not remember if he mentioned the bike ride. The State later called Nick Trutenko as a rebuttal witness to testify that defendant had told him that defendant was at the corner of 89th and Exchange from about 3:45 to 5 p.m. and that defendant had never seen complainant before the one-on-one showup. In rebuttal testimony, defendant testified that he believed Detective Patton would lie on the stand, but could offer no reason for his belief.

After defendant’s testimony, the trial court granted defense counsel’s request for a brief recess. Jessisa Risa then testified that she saw defendant riding his bike at 91st and Commercial at some time between 4:15 and 4:30 p.m. on the date in question. Ms. Risa testified that she remembered this event after hearing about defendant’s arrest from a friend. On cross-examination, however, Ms. Risa testified that she could not say under oath that she saw defendant on May 11, 1987.

Following a stipulation of defendant’s prior conviction for robbery, rebuttal testimony and closing arguments, the court denied defendant’s motion for a mistrial. The jury found defendant guilty of aggravated criminal sexual assault and aggravated criminal sexual abuse. At the sentencing hearing, the court imposed a sentence of 16 years of imprisonment and three years of mandatory supervised release, to run consecutive to a previously imposed sentence for robbery.

The first issue on appeal is whether defendant’s rights under the fifth and sixth amendments to the Constitution of the United States were violated by the denial of a continuance during trial. Defendant contends that forcing defendant to testify before hearing Ms. Risa’s testimony violated his right to wait until all of the defense testimony has been presented to decide whether to testify. See Brooks v. Tennessee (1972), 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891.

Defendant has waived this issue on appeal by failing to raise it in his written post-trial motion for a new trial. (E.g., People v. Nevitt (1990), 135 Ill. 2d 423, 441, 553 N.E.2d 368, 374.) Defendant’s motion for a new trial asserts 15 grounds for a new trial, but the denial of the continuance is not among them. The only assertion that relates to the alleged error is number 3, “The defendant was denied due process of law.” Standing alone, this assertion is too general to have notified the trial court of the alleged error regarding the continuance. (People v. Sargent (1989), 184 Ill. App. 3d 1016, 1021-22, 540 N.E.2d 981, 984-85; People v. Nunez (1974), 24 Ill. App. 3d 163, 169-70, 320 N.E.2d 462, 467.) Therefore, the issue is waived.

Nor was the denial of the continuance plain error justifying a departure from the general waiver rule. (E.g., People v. Nevitt (1990), 135 Ill. 2d 423, 448, 553 N.E.2d 368, 377-78.) The grant or denial of a continuance rests within the sound discretion of the trial court, and its ruling will not be reversed on appeal in the absence of a clear abuse of that discretion. (People v. Collins (1985), 106 Ill. 2d 237, 281, 478 N.E.2d 267, 287, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) In reviewing the denial of a continuance sought to secure the presence of a witness, this court will consider whether: (1) defendant was diligent; (2) the witness’ testimony was material and might have affected the verdict; and (3) defendant was prejudiced in his rights. People v. Timms (1978), 59 Ill. App. 3d 129, 135, 375 N.E.2d 1321, 1325.

First, there is the question of defendant’s diligence in attempting to secure his witness for trial. Although Ms. Risa had been under subpoena for previously scheduled trial dates, she was not under subpoena on the actual date of trial. Failure to subpoena a witness suggests a lack of diligence, unless counsel has a reasonable expectation that the witness will appear without a subpoena and the witness is delayed by last-minute events. (Timms, 59 Ill. App. 3d at 135, 375 N.E.2d at 1325.) Here, the record reflects defense counsel’s belief that Ms. Risa would appear without a subpoena and that Ms. Risa was delayed because she was suddenly without a ride to court. Yet the record also reflects that defendant had the entire morning session and á recess granted by the trial court to secure the witness’ presence in court, leaving defendant’s diligence open to doubt.

Second, the witness’ testimony must be material and might affect the verdict. Defendant believed that Ms. Risa could corroborate his alibi; direct corroboration of a defendant’s alibi is material (Timms, 59 Ill. App. 3d at 136, 375 N.E.2d at 1326.) Whether Ms. Risa’s testimony was in fact material is open to question because she could not say under oath that she had seen defendant on the day of the offense.

Then there is the issue of whether the order of the testimony might have affected the verdict. Defendant argues that he would not have testified “without substantial corroboration.” To do so was to cause the jury to observe the impeachment of defendant by at least two prior inconsistent statements and a prior conviction, as well as to hear defendant’s unsupported characterization of Detective Patton’s honesty.

If the continuance had been granted and defendant had elected not to testify, then the jury would have already heard the complainant’s testimony, which was clear and convincing. This testimony was corroborated by the complainant’s mother, aunt and Officer Johnson. The jury would also have heard the testimony of Detective Patton regarding the identification and arrest of defendant, as well as the expert testimony of complainant’s treating physician that complainant’s injuries were consistent with sexual penetration and a struggle. Finally, the jury would have heard a defense witness who could not testify that she saw defendant on May 11, 1987. There was ample support in the record to support a guilty verdict. (See, e.g., People v. Hebel (1988), 174 Ill. App. 3d 1, 527 N.E.2d 1367, cert, denied (1989), 489 U.S. 1085, 103 L. Ed. 2d 848, 109 S. Ct. 1544; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131.) Therefore, defendant has failed to demonstrate that the denial of the continuance would have affected the outcome of the trial.

Finally, there is the question of whether defendant’s rights were prejudiced. A criminal defendant cannot be forced to choose whether to testify before all of the other defense evidence has been presented. (See Brooks v. Tennessee (1972), 406 U.S. 605, 32 L. Ed. 2d 358, 92 S. Ct. 1891.) The denial of a criminal defendant’s fifth amend ment rights is automatically reversible error unless the error is harmless beyond a reasonable doubt. (United States v. Hasting (1983), 461 U.S. 499, 76 L. Ed. 2d 96, 103 S. Ct. 1974; Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut (1963), 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 173, 84 S. Ct. 229, 230; see People v. Merideth (1987), 152 Ill. App. 3d 304, 503 N.E.2d 1132.

We are not persuaded that defendant was required to choose whether to testify. Defendant has therefore failed to show that his constitutional rights were prejudiced. Consequently, the trial court did not err in denying the defense a second continuance.

Defendant’s second argument is that remarks made by the State in rebuttal closing argument denied him a fair trial. Specifically, he contends that it was improper for the prosecutor to argue that the bruises and scratches on complainant’s arms were bodily harm, “by law.”

Defendant has waived this issue by failing to raise it in his written post-trial motion for a new trial. (E.g., People v. Nevitt (1990), 135 Ill. 2d 423, 441, 553 N.E.2d 368, 374.) The only ground asserted in the motion that relates to the alleged error is number 14:

“The Assistant State’s Attorney made prejudicial, inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury, thereby prejudicing the defendant’s right to a fair trial.”

An identical allegation was held to be too vague in People v. Sargent (1989), 184 Ill. App. 3d 1016, 1021-22, 540 N.E.2d 981, 986-87. Consequently, the issue is waived in this case.

Assuming, arguendo, that the issue had not been waived, there was no error in the prosecutor’s comment. The Illinois Supreme Court has repeatedly noted that attorneys are granted “considerable leeway” in their closing and rebuttal arguments. Thus, a reviewing court will accord the trial court every reasonable presumption in the exercise of its discretion concerning argument to the jury. (E.g., People v. Simms (1988), 121 Ill. 2d 259, 269, 520 N.E.2d 308, 312.) It is reasonable to presume that the trial court was acquainted with the law regarding the element of bodily harm, which involves “some sort of physical pain or damage to the body, [such as] lacerations, bruises or abrasions, whether temporary or permanent.” (People v. Haywood (1987), 118 Ill. 2d 263, 276, 515 N.E.2d 45, 51, quoting People v. Mays (1982), 91 Ill. 2d 251, 256, 437 N.E.2d 633, 635-36.) Given the evidence of complainant’s scratches, bruises and pain, the trial court’s ruling allowing argument on bodily harm was not an abuse of its discretion.

Defendant’s third argument is that his sentence is excessive for a teenager of his background. The State contends that defendant has waived this issue by failing to raise it in his written post-trial motion for a new trial, citing People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124, 1130-31, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

The sentencing issue was not raised by defendant’s post-trial motion for a new trial. We therefore find that defendant has waived the issue.

In any event, our supreme court has often stated that appellate courts are not sentencing courts, and the sentence of a trial court will be affirmed absent a clear abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 547; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.

In sentencing a defendant, the trial court may consider the gravity and circumstances of the offense, as well as defendant’s mental capacity, age, demeanor and credibility. (E.g., Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 884.) The trial court must also balance the protec tion of society with the objective of rehabilitating defendant. (See People v. Harris (1989), 187 Ill. App. 3d 832, 844, 543 N.E.2d 859, 866.) Once struck, an appellate court will be loathe to upset this balance, particularly where the sentence falls within the statutory limitation. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641, 649.

Aggravated criminal sexual assault is a Class X felony (111. Rev. Stat. 1985, ch. 38, par. 12 — 14(c)), with a statutory prison term of not less than six years and not more than 30 years as mandated by the Uniform Code of Corrections (111. Rev. Stat. 1985, ch. 38, pars. 1005— 8 — 1(a)(3)). The trial court’s sentence was thus within statutory limits.

A review of the record of the sentencing hearing indicates that the trial court considered all of the mitigating and aggravating factors presented by counsel and in the presentence investigation report prior to sentencing defendant, in conformity with the Unified Code of Corrections (111. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). Mitigating factors included defendant’s age and stressful family situation, as well as the fact that defendant had never been imprisoned. Aggravating factors included the severity of the offense, the age of the complainant, and defendant’s prior history, which consisted of a juvenile finding of delinquency, juvenile sentences of probation for auto theft and robbery, and adult convictions for misdemeanor attempted theft and robbery. The offense at bar was committed while defendant was on bond pending trial for the latter offense. The trial court, having weighed these factors, did not abuse its discretion.

Defendant’s final argument is that the failure to specify a mental state in his indictment is a fatal defect mandating reversal of his conviction. See, e.g., People v. Grant (1981), 101 Ill. App. 3d 43, 46, 427 N.E.2d 810, 813.

The State again raises the issue of waiver. Defendant did not raise this issue in the written post-trial motion for a new trial, thus waiving the issue here. E.g., People v. Nevitt (1990), 135 Ill. 2d 423, 441, 553 N.E.2d 368, 374.

Even if the issue had been raised in the written post-trial motion for a new trial, defendant’s pre-trial motion to dismiss the charge was not based on a failure to specify the mental state, thus waiving the argument. (People v. Peebles (1984), 125 Ill. App. 3d 213, 221, 465 N.E.2d 539, 545.) The sufficiency of the indictment would then be judged by whether it gave defendant sufficient notice of “the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460.

Aggravated criminal sexual assault is a general intent crime not requiring the allegation of a specific mental state. Consequently, an indictment for this offense is not defective for failing to allege a mental state. See People v. Leonard (1988), 171 Ill. App. 3d 380, 384, 526 N.E.2d 397, 399-400, cert. denied (1989), 490 U.S. 1008, 104 L. Ed. 2d 162, 109 S. Ct. 1647.

For the aforementioned reasons, the judgment of the trial court is affirmed, with costs of $75 to be awarded to the State under People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319.

Judgment affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.