author: PRESIDING JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA ANN HOOD, Defendant-Appellant.
    First District (3rd Division)
    No. 1— 88—0876
    Opinion filed September 19, 1990.

      Glenn Seiden and James A. Graham, both of Volpe, Seiden, Graham & Associates, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Linda Ann Hood, was charged by indictment with the murder of her daughter, Michelle Hood. Following a jury trial, the defendant was found guilty but mentally ill (GBMI) and was sentenced to thirty years’ imprisonment. On appeal, the defendant challenges the constitutionality of the GBMI statute (111. Rev. Stat. 1987, ch. 38, par. 115 — 4(j)) then in effect at the time of her trial. (Section 115 — 4® was amended during the pendency of this appeal.) The defendant further contends that the GBMI instructions were incomplete; that she was proved insane by a preponderance of the evidence; and that the evidence did not warrant submission of the GBMI instructions to the jury. We affirm.

The evidence reveals that on the morning of August 6, 1986, the defendant drove her children to the day care center and signed them in. The defendant decided, however, to take Michelle back home and told Michelle’s teacher she would bring her back later. After returning home, Michelle began “messing up” her parents’ bed while the defendant was attempting to make it. The defendant took the cord from her bathrobe and tied it around Michelle’s neck for a few minutes until Michelle collapsed. The defendant then knelt beside her daughter and continued strangling her. Thereafter, the defendant submerged Michelle under water in the bathtub fully clothed for a few minutes. The defendant removed Michelle from the bathtub, dried her and dressed her, and then placed her in bed. The defendant called her husband at work and told him to come home. Michelle was two months away from her third birthday at the time.

The defendant made a statement to the police admitting she killed her daughter and describing the incident. The defendant also told an officer that she placed Michelle in the bathtub in order to stop her from hurting. A detective testified that he observed ligature marks on the side of Michelle’s neck and noticed tufts of hair missing from the child’s head. A paramedic testified that upon arrival he observed bruises on Michelle’s body, a large bruise on her forehead, and tufts of hair missing from her head. The record also reveals a previous incident on July 23 where the defendant choked Michelle with her bathrobe cord and then released the child when her face turned red. As a result of the choking incident on July 23, arrangements had been made for Michelle to attend a day care center with her sister. The defense theory at trial was that the defendant was insane at the time of the offense.

Doctor Karen Smith, a psychologist with the Psychiatric Institute of the Circuit Court of Cook County, testified that she examined the defendant on three occasions in 1987. During the evaluations, the defendant appeared withdrawn and detached from her emotions. Smith also noted that the defendant was in a dissociative state because the defendant described the incident as though someone else had performed the act. Smith testified that she diagnosed the defendant as having recurrent major depression and a compulsive personality disorder. Doctor Smith further testified that the defendant exhibited moderate psychomotor retardation, meaning that movements were slowed down, i.e., walking and talking. Smith also performed a psychological screening test, the results of which revealed that depression was interfering with the defendant’s ability. In her opinion, the defendant was legally insane at the time of the offense.

On cross-examination, Smith stated that although she had never seen the defendant in 1986, she was able to determine the defendant’s condition on the day of the incident in part from reports prepared by the defendant’s treating physicians, Doctor Teas and Doctor Conwall, who both had examined the defendant in 1986. Unlike Doctor Smith, however, Doctor Teas and Doctor Conwall did not find a compulsive personality disorder. Doctor Smith also discussed the third edition of the Diagnostic and Statistical Manual (DSM3) used in the field for diagnosing mental disorders. Smith explained that under DSM3, a diagnosis of major depression requires evidence that the patient has exhibited at least four of the eight major symptoms of depression every day for a period of two weeks. In reaching her diagnosis of major depression, Smith relied upon her conversations with the defendant and notes by other clinicians who had examined the defendant around the time of Michelle’s death. Smith stated that the defendant exhibited: (1) a loss of interest or pleasure in usual activities and in sexual drive; (2) a loss of energy; (3) feelings of worthlessness or excessive guilt; and (4) recurrent thoughts of death or suicide. Smith conceded that under the revised edition, DSM3R, a diagnosis of major depression requires evidence of at least five symptoms. She further admitted that in the defendant’s 42-page statement taken by a court reporter on August 6, the defendant did not describe the killing as if someone else had committed the offense.

The defendant’s sister, Chris Duszynski, testified that the defendant attempted suicide in mid-October of 1984. Before the suicide attempt, Chris remembered the defendant as being outgoing, loving, very energetic and animated, and conscious of her family’s needs. In September of 1984, however, the defendant began to change. The defendant barely talked and seemed overwhelmed by everything. Chris further stated that the defendant made a second, more lethal, attempt on her life four days after returning from the hospital. Thereafter, the defendant remained hospitalized until the Christmas holiday. In 1985, the defendant became extremely high and hyper, and then in June of 1986, the defendant slipped back into a depressive mood.

Doctor Jan Faucett, a physician and psychiatrist, testified that he interviewed the defendant in November of 1986. Doctor Faucett stated that at the time of the incident, the defendant was severely depressed in a major depression with psychotic features. He also agreed with Doctor Smith that the defendant was in a dissociative state. In his opinion, the defendant could not appreciate the wrongfulness of her act, and she could not conform her behavior to the requirements of the law. Faucett further testified that on the morning of his testimony, he was shown for the first time the notes of the defendant’s treating physicians, Doctor Teas and Doctor Conwall. Faucett testified that their notes strengthened his opinion because the notes contained evidence that the defendant was having mood swings between manic and depressive states. Faucett stated that after reading the doctors’ notes, he modified his diagnosis from major depression to bipolar disorder or manic depressive disorder.

The State’s cross-examination of Doctor Faucett revealed some inconsistencies between his report and the facts. For example, Doctor Faucett wrote in his report that the defendant developed symptoms of a depression a year before the killing, and he indicated that this conclusion was based upon the defendant’s hospital records and his interview. Contrary to Doctor Faucett’s report, however, the defendant was hospitalized two years before the killing. Faucett stated that he had no reports for the period covering 1985. Doctor Faucett also wrote in his report that the defendant’s second suicide attempt took place in the garage of her mother’s residence. In fact, however, the second attempt took place in the garage of defendant’s residence. The doctor’s testimony also raised questions regarding his work habits.

Doctor Mathew Markos, a forensic psychiatrist employed by the circuit court of Cook County (specializing in the evaluation of defendants facing criminal proceedings), testified that he interviewed the defendant on three occasions in 1987. Prior to his evaluations, he reviewed the report prepared by Doctor Smith, the notes by Doctor Teas and Doctor Conwall, the hospital charts, police reports, and a psychosocial summary prepared by a social worker. Markos testified that the defendant suffered from recurrent major depression, meaning that the depressive mood tends to occur at different times. Doctor Markos further stated that the defendant’s major depression was associated with psychotic features. He concluded that the defendant was unable to conform her behavior to the requirements of the law and could not appreciate the criminality of her act.

On cross-examination, Doctor Markos testified that he also reviewed the results from an electroencephalogram performed on the defendant after his first interview. Markos stated that the results were insignificant as there was no evidence of any seizure disorder or brain lesion. Markos also testified that the purpose of the third interview was to determine whether the defendant was capable of understanding the Miranda warnings when she gave her statement to the police. He stated that there was no inconsistency between his finding that the defendant was capable of understanding the Miranda warnings on the day of the killing and his conclusion that she was also insane at the same time. Markos explained that they are two distinct issues determined by different criteria.

In rebuttal, the State presented the testimony of Doctor Teas. He testified that he first met the defendant in October of 1984 after the defendant’s first suicide attempt. He also saw the defendant after her second attempt. Teas agreed that the defendant had a compulsive personality trait. However, Teas disputed the finding that the defendant had been suffering from major depression. He diagnosed the defendant as suffering from atypical depression because the defendant did not meet the necessary criteria for a diagnosis of major depression as defined in DSM3. Doctor Teas prescribed medication to treat the defendant’s condition. Teas further stated when he saw the defendant on August 2, four days before Michelle’s death, the defendant’s condition did not meet the minimum criteria for a diagnosis of major depression. According to Teas, the defendant was capable of appreciating the wrongfulness of her actions on August 2. He admitted, however, that the medication he prescribed would have masked any symptoms of illness.

During cross-examination and re-cross-examination, the defendant elicited testimony that DSM3 does not require a minimum of four symptoms to diagnose major depression where the patient suffers from a bipolar disorder, i.e., mood swings, and the patient has had a previous period of major depression. Doctor Teas admitted that he had treated the defendant in 1984 as if she had major depression.

The last expert to testify, Doctor Henry Lahmeyer, stated that he saw the defendant in June of 1987. He also reviewed the reports prepared by Doctor Smith, Doctor Faucett, and Doctor Markos, the police report, and the hospital records. Doctor Lahmeyer testified that the defendant did not exhibit enough symptoms to make a diagnosis of major depression at the time of the killing. He stated that only three symptoms were present and that the defendant had not gone through a manic episode (hyper mood) as testified to by the other doctors. He explained that one of the doctor’s notes used the term “hypomania,” which is distinct from manic in that one who suffers from hypomania is not dysfunctional. Moreover, Lahmeyer did not even agree that the defendant had an episode of hypomania as such a finding would have required a sustained period of elevated mood which the treating doctors’ notes did not support. In his opinion, the defendant was capable of appreciating the wrongfulness of her acts and could conform her behavior to the requirements of the law at the time of the offense. Lahmeyer further concluded that the defendant did not suffer from any classifiable mental illness.

On cross-examination, Lahmeyer agreed that if in fact the defendant had a manic episode, then it was possible that the defendant had major depression in August of 1986 since DSM3 does not require a minimum of four symptoms to make such a diagnosis where depression is followed by a manic episode. He also admitted that if in fact the defendant was suffering from major depression, she could have been insane. Finally, Lahmeyer testified that in every case in which he has been called upon to render an opinion on the question of insanity, he has testified that the defendant was sane.

On appeal, the defendant contends first that the GBMI statute then in force during her trial was unconstitutionally vague. She further contends that the GBMI statute was unconstitutional because it did not bear a rational relationship to the public interest the statute was intended to serve. In so contending, the defendant focuses upon an anomaly, discussed by our supreme court in People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972, that existed because of the interrelationship between the then existing GBMI statute and the insanity defense. At the time of the defendant’s trial, the GBMI statute provided:

“When the affirmative defense of insanity has been presented during the trial, the court, where warranted by the evidence, shall also provide the jury with a special verdict form of guilty but mentally ill, as to each offense charged and shall separately instruct the jury that a special verdict of guilty but mentally ill may be returned instead of a general verdict, but that such special verdict requires a unanimous finding by the jury beyond a reasonable doubt that the defendant committed the acts charged and that the defendant was not legally insane at the time of the commission of those acts but that he was mentally ill at such time.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(j).)

Thus, a verdict of GBMI required the State to prove beyond a reasonable doubt that the defendant committed the crime charged, that the defendant was not insane, and that the defendant was mentally ill. (People v. Fierer (1988), 124 Ill. 2d at 185.) When the GBMI statute was first enacted in 1981, the affirmative defense of insanity required the defendant to introduce some evidence in order to place sanity in issue, and if a reasonable doubt as to the defendant’s sanity was created, the State bore the burden of proving beyond a reasonable doubt that the defendant was sane. (Ill. Rev. Stat. 1981, ch. 38, pars. 3— 2(b), 6 — 2(a).) Since 1984, however, a defendant who asserts the insanity defense bears the burden of proving insanity by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, pars. 3 — 2(b), 6 — 2(e).) The GBMI statute was not, however, correspondingly amended when the insanity defense was amended. As a result, there existed a “gap” between the respective measures of proof through which fell a theoretical class of defendants who could not be found insane by a preponderance of the evidence and who could not be found not insane beyond a reasonable doubt and who therefore had to be found simply guilty. (Fierer, 124 Ill. 2d at 189.) Stated another way, if the issue of sanity was a close question and the defense failed to meet its burden of proving insanity, and if the State failed to meet its burden of proving that the defendant was sane, then the jury was precluded by law from finding the defendant guilty but mentally ill or not guilty by reason of insanity and was therefore required to find him simply guilty. “If one of the goals of the GBMI verdict is to identify those in need of psychiatric treatment (see United States ex reí. Weismiller v. Lane (7th Cir. 1987), 815 F.2d 1106), the conflicting burdens of proof hinder[ed], rather than advance[d], that objective.” (Fierer, 124 Ill. 2d at 190.) In Fierer, the supreme court found that the GBMI statute was “rife with potential confusion,” but declined to resolve the question of whether the statute was ■ “so awkward as to be unconstitutional.” (Fierer, 124 Ill. 2d at 189.) After the present appeal was filed, the General Assembly amended the GBMI statute. Today, the accused bears the burden of proving by a preponderance of the evidence that he or she was mentally ill at the time of the offense. (Pub. Act 86— 392, eff. Jan. 1, 1990; Ill. Rev. Stat. 1989, ch. 38, par. 115 — 4(j).) The defendant now asserts that the anomaly created by the statutory scheme then in force at the time of her trial rendered the GBMI statute unconstitutionally vague and irrational.

We agree with the State that the defendant lacks standing to challenge the statute on the grounds asserted. A party may not challenge a statute’s constitutional validity unless that party has sustained or is in immediate danger of sustaining a direct injury as a result of the statute’s enforcement. (People v. Rogers (1989), 133 Ill. 2d 1, 8-9, 549 N.E.2d 266; People v. Palkes (1972), 52 Ill. 2d 472, 480, 288 N.E.2d 469; People v. Gurga (1986), 150 Ill. App. 3d 158, 164, 501 N.E.2d 767.) Because the defendant was found guilty but mentally ill, she does not fall within that class of theoretical defendants who could have been precluded from a GBMI verdict despite their questionable state of mind. Further, having been found guilty but mentally ill, the defendant has been identified as a person in need of treatment. “One who would attack a statute as unconstitutional must bring himself within the class as to whom the law is unconstitutional.” (People v. Bombacino (1972), 51 Ill. 2d 17, 19-20, 280 N.E.2d 697, quoted in Rogers, 133 Ill. 2d at 10.) Had the jury found Linda Hood simply guilty, we could have considered the matter for we then would have had before us a record from which it could be argued that a defendant, having been found guilty, ought to have been found guilty but mentally ill. Accordingly, we decline to address the constitutional challenge.

The defendant also argues that the jury instructions were in error because they failed to inform the jury that the State bore the burden of proving sanity and mental illness for a GBMI verdict. It is clear that a jury in a criminal trial must be instructed as to the elements of the offense charged, the presumption of innocence, and the burden of proof. (People v. Fields (1988), 170 Ill. App. 3d 1, 11, 523 N.E.2d 1196.) The pertinent instruction, the State’s instruction No. 16, read as follows:

“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Michelle Hood; and
Second: That when the defendant did so, she intended to kill or do great bodily harm to Michelle Hood or knew that her acts created a strong probability of death or great bodily harm to Michelle Hood.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty, your deliberations should end, and you should return a verdict of not guilty.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, then you should go on with your deliberations to decide whether the defendant has proved by a preponderance of the evidence that she is not guilty by reason of insanity.
You may not consider whether the defendant has met her burden of proving that she is not guilty by reason of insanity until and unless you have first determined that the State has proved the defendant guilty beyond a reasonable doubt of the offense of Murder.
If you find from your consideration of all the evidence that the defendant has proved by a preponderance of the evidence that she is not guilty by reason of insanity, you should find her not guilty by reason of insanity, your deliberations should end, and you should return the verdict of not guilty by reason of insanity.
If you find from your consideration of all the evidence that the defendant has not proved by a preponderance of the evidence that she is not guilty by reason of insanity, then you should continue your deliberations to determine whether the defendant is guilty but mentally ill.
A special verdict of guilty but mentally ill shall be returned by you instead of a general verdict of guilty if you find each of the following propositions to be present in this case:
First: That the defendant is guilty of Murder; and Second: That the defendant was not legally insane at the time she committed Murder: and
Third: That the defendant was mentally ill at the time she committed Murder.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should return the special verdict finding the defendant guilty but mentally ill on the charge of Murder.
If you find from your consideration of all the evidence that either the Second of Third propositions concerning the guilty but mentally ill verdict has not been proved beyond a reasonable doubt, you should return the general verdict finding the defendant guilty of Murder.”

Thus, while the jury was properly advised as to the measure of proof required for a verdict of GBMI, it was not instructed as to who carried the burden of proving sanity and mental illness. It appears that this question has not been addressed in this State as the parties have not cited any authority, and we have not found any. However, the identical question was raised in the neighboring State of Indiana in Green v. State (Ind. 1984), 469 N.E.2d 1169. There, the Indiana Supreme Court found that their instructions adequately set forth the circumstances under which a jury could return a verdict of GBMI notwithstanding their failure to describe the burden of proof. {Green, 469 N.E.2d at 1174.) We too conclude that the jury instructions were adequate.

Jury instructions must be read as a whole. (Fields, 170 Ill. App. 3d at 11.) In addition to the State’s instruction No. 16, the jury was also instructed that the defendant is presumed innocent throughout every stage of the trial; that the presumption is not overcome unless the jury is convinced beyond a reasonable doubt that the defendant is guilty; and that the State has throughout the case the burden of proving the defendant’s guilt beyond a reasonable doubt. It is doubtful that the jury did not understand that the GBMI verdict, which as its name expresses is a verdict of guilty, required the State to prove that the defendant was not insane but was mentally ill. Further, we find that the outcome would not have been any different had the State’s burden been more accurately articulated. Therefore, the omission, even if error, was harmless.

The defendant next contends that she was proved legally insane by a preponderance of the evidence. The issue of a defendant’s insanity is a question of fact, and the jury’s finding will not be disturbed unless it is against the manifest weight of the evidence. (People v. Martin (1988), 166 Ill. App. 3d 428, 433, 519 N.E.2d 1085.) The defendant maintains that of the five doctors who testified at trial, only Doctor Lahmeyer stated that she was sane at the time of the offense. The defendant’s treating physician did not render an opinion as to the defendant’s condition on the day of the offense as he testified only to his examination and treatment of the defendant and her condition when he saw her four days before Michelle’s death. Because Doctor Lahmeyer further testified that the defendant was not even mentally ill, the defendant asserts there was no evidence supporting a GBMI verdict. Since the jury rejected Doctor Lahmeyer’s opinion that the defendant had no classifiable mental illness when it returned a verdict of GBMI, the evidence must have been sufficient to the jury to prove insanity by a preponderance of the evidence. This argument is without merit, however, because the defendant’s own evidence introduced for the purpose of proving insanity indicated that the defendant was suffering from a mental illness and was sufficient to place the issue of mental illness before the jury. (People v. Grice (1984), 121 Ill. App. 3d 567, 569, 469 N.E.2d 1169.) The jury was free to accept the defense experts’ diagnosis of her mental disorders and simultaneously reject their conclusions that she was legally insane. (Grice, 121 Ill. App. 3d at 569.) The jury was also free to reject the State’s expert’s opinion that she was not mentally ill while accepting his other opinion that she was not insane. (Grice, 121 Ill. App. 3d at 570.) Accordingly, we will not disturb the finding of the jury on the issue of insanity.

The defendant’s remaining contention that the trial court erred in submitting the GBMI instruction to the jury is disposed of in view of the preceding discussion. The decision whether to give the jury a GBMI instruction is within the discretion of the trial court. (People v. McDarrah (1988), 175 Ill. App. 3d 284, 297, 529 N.E.2d 808.) Both the State and the defendant are entitled to instructions presenting their theories of the case, and only slight evidence is needed to justify an instruction. (People v. Isenberg (1978), 60 Ill. App. 3d 325, 328-29, 376 N.E.2d 778.) Because the evidence introduced by the defendant on the issue of insanity disclosed the presence of a mental illness, the trial judge was warranted in tendering GBMI instructions to the jury. Grice, 121 Ill. App. 3d at 569.

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

Judgment affirmed.

WHITE and FREEMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    DILANJIAN TAXI SERVICES, INC., et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 1— 88—2298
    Opinion filed September 19, 1990.

      Edward A. Cohen and Russell C. Green, both of Chicago, for appellants.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Lynn K. Mitchell, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs-appellants, Dilanjian Taxi Services, Inc. (Dilanjian), and Gurdev Bhatthal (Bhatthal), appeal from the order of the circuit court dismissing count I of their amended complaint. On appeal, plaintiffs argue that the trial court erred in its ruling that (1) their damages were insufficiently pled and entirely speculative and (2) the issues raised were moot. We reverse and remand.

In count I of the amended complaint, plaintiffs alleged on behalf of themselves and those persons similarly situated that as owners of transferable taxi medallions, they had constitutionally protected property interests which the September 15, 1982, city ordinance violated. Specifically, they alleged that the prohibition of the assignment or transference of the medallions was unlawful in that it denied them the equal protection of the laws, deprived them of their property without due process of law and violated the Illinois Constitution of 1970. Their allegations with respect to the ordinance were as follows:

(a) it is discriminatory;

(b) it arbitrarily differentiates between individuals and corporations;

(c) it abrogates one’s property rights without notice and an opportunity for a hearing;

(d) it allows the taking of one’s property rights without just compensation;

(e) it fosters and perpetuates a monopolistic industry with respect to taxi medallion owners; and

(f) it is wholly without any rational basis and fails to serve any legitimate governmental interest.

Plaintiffs further alleged that they were injured by the ordinance in that:

(a) they were prevented from contracting for the sale of their medallions and selling them at a profit;

(b) they were forced to maintain the unfavorable sole proprietorship form of taxi business and prevented from establishing the preferential corporate entity;

(c) they lost substantial sums of money as a direct result of the above.

The amended complaint states that Dilanjian owns taxi medallions Nos. 2601, 2614, 2647, 2428, 3031, 2653 and 3039, and that Bhatthal owns taxi medallions Nos. 2547 and 3230, all issued by the City of Chicago. Dilanjian and Bhatthal allege that in 1987, they submitted assignment documents to the City of Chicago in an attempt to assign their right, title, and interest in and to one or more of their medallions and the city refused to process the applications for assignment due to the September 1982 ordinance.

In count II, Kathleen Boomstra alleged that the ordinance deprived the estate of property without just compensation. Count II was dismissed without prejudice to plaintiff’s right to assert the cause of action in the probate division. No issues are raised on appeal as to count II.

The issue on review is whether plaintiffs sufficiently pled facts constituting an injury so as to have standing such that they should have prevailed in the hearing on the motion to dismiss.

The Illinois General Assembly authorized the City of Chicago to license, tax and regulate taxicab operators. (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 42—6.) The city promulgated a comprehensive ordinance for the licensing of taxicab operators in 1963 which provided for the creation of 4,600 taxicab licenses, subject to a $200 annual licensing fee. (Chicago Municipal Code §§28-22.1(a), 28-7 (1963).) The ordinance authorized the assignment of licenses. Chicago Municipal Code §28-9.1 (1963).

On July 16, 1982, the commissioner of consumer services unilaterally instituted a moratorium on the assignment and transferability of all taxi medallions. The United States District Court for the Northern District of Illinois found this action by the. commissioner arbitrary and having no basis in law. (Flower Cab Co. v. Petitte (N.D. Ill. 1987), 658 F. Supp. 1170, 1180.) Subsequently, on September 15, 1982, the city council passed an ordinance prohibiting the transfer and assignment of taxi medallions, including the medallions which had been previously issued and were outstanding. (Chicago Municipal Code §28 — 8 (1982).) In January 1988, the city council passed an ordinance which repealed the prohibition and authorized the transfer and assignment of medallions. Chicago Municipal Code §28 — 19(FX1) (1988).

Defendant argues that the amended complaint was properly dismissed because plaintiffs failed to allege specific facts showing that they had bona fide agreements to assign their medallions. Dilanjian attached to the amended complaint an assignment agreement wherein he was the assignor as president of Dilanjian Taxi Service, Inc., and assignee as the president of Top Hat Taxi Service Co.

Together with doctrines like mootness, ripeness and justiciability, the standing doctrine is one of the devices by which courts attempt to preserve for consideration only those disputes which are truly adversarial and capable of resolution by judicial decision. (Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 488, 524 N.E.2d 561, 573.) One component of standing, injury in fact, genuinely narrows the class of potential plaintiffs to those whose grievances may be redressed by such decisions. (Greer, 122 Ill. 2d at 488.) One who is hurt by illegal action should have a remedy. (Greer, 122 Ill. 2d at 488.) Therefore, one who is adversely affected by governmental action has standing to challenge its legality. (Greer, 122 Ill. 2d at 488.) Standing in Illinois requires only some injury in fact to a legally cognizable interest. (Greer, 122 Ill. 2d at 492.) The claimed injury must be (1) distinct and palpable, (2) fairly traceable to the defendant’s actions, and (3) substantially likely to be prevented or redressed by the grant of the requested relief. (Greer, 122 Ill. 2d at 492-93.) There is no question that a diminution in the value of property is a legally cognizable interest. Economic injuries have long been recognized as sufficient to lay the basis for standing with or without a specific statutory provision for judicial review. (Greer, 122 Ill. 2d at 493.) Damage exists when a plaintiff’s property has been wrongfully detained and the damage is equal to the loss sustained while the property was wrongfully detained. Puritan Finance Corp. v. Gumdrops, Inc. (1981), 101 Ill. App. 3d 888, 891-92, 428 N.E.2d 950, 953.

A motion to dismiss admits all well-pled facts. Its purpose is to raise an issue of law as to the legal sufficiency of the allegations of the complaint. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256.) A motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the plaintiff to recover. (Ostendorf, 89 Ill. 2d at 280.) A reviewing court, on appeal from an order granting a motion to dismiss, must determine whether the allegations of the complaint interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted. Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 282-83, 405 N.E.2d 411, 414.

It is undisputed that beginning in September 15, 1982, until January 1988, plaintiffs were no longer able to transfer medallions due to the ordinance. It is also undisputed that the medallions were a valuable asset based upon their limited supply. Both plaintiffs alleged that in 1987 they “submitted assignment documents to the City of Chicago in an attempt to assign their right, title and interest in and to one or more of the medallions owned by the plaintiffs.” Accepting the allegations of fact in the complaint as true, we do not believe that no set of facts could ever be proved that would entitle the plaintiffs to recover. With respect to the period September 15, 1982, until January 1988, the issues raised are not moot.

Whether the licensing provision prohibiting assignments or transfers was reasonably necessary to make effective the exercise of the admitted powers of the municipality was not decided by the court below or raised on appeal. Accordingly, we do not address that issue, but reverse the judgment granting the motion to dismiss and remand for further proceedings.

Reversed and remanded.

CERDA, P.J., and FREEMAN, J., concur.


author: JUSTICE DUNN JUSTICE DUNN

text:
    DREISILKER ELECTRIC MOTORS, INC., Plaintiff-Appellant, v. RAINBOW ELECTRIC COMPANY, Defendant-Appellee.
    Second District
    No. 2— 89—1132
    Opinion filed September 5, 1990.
    Supplemental opinion filed November 1, 1990.

      B.J. Farrell, of Fortunato, Farrell & Davenport, Ltd., of Westmont, for appellant.
    Sarah E. Chapin and James F. Best, both of Fraterrigo, Best & Beranek, of Wheaton, and Michael J. Lapat, of Michael J. Lapat, Ltd., of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Dreisilker Electric Motors, Inc., appeals from an order of the circuit court granting summary judgment in favor of defendant, Rainbow Electric Company, on count I of plaintiff’s complaint. Count I alleged that defendant had violated the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121V2, par. 262 et seq.) by issuing to a third party a report which disparaged plaintiff in the performance of its business. The circuit court found that count I of plaintiff’s complaint was barred by the Act’s three-year statute of limitations (111. Rev. Stat. 1989, ch. 121V2, par. 270a(e)). On appeal, plaintiff contends that the discovery rule applies to causes of action filed under the Act and that it filed its complaint in a timely fashion after it discovered it had been injured by defendant’s wrongful conduct. We affirm.

The record before us establishes the following undisputed facts. Plaintiff is an Illinois corporation that is in the business of selling and repairing electric motors. Defendant is an Illinois corporation in the business of repairing electric motors, among other things. In October 1983, plaintiff repaired an electric motor owned by Instrumentalist Company (Instrumentalist), which is not a party to this action. A dispute arose between plaintiff and Instrumentalist over payment of plaintiff’s invoice for the repairs to the motor. Ultimately, Instrumentalist paid plaintiff for the repairs and arranged for the motor to be delivered to defendant for evaluation.

Defendant inspected the motor, performed some repairs on it and returned it to Instrumentalist on November 4, 1983. At Instrumentalist’s request, defendant prepared a written service report dated November 17, 1983, which described the tests and repairs defendant had performed on the motor. Specifically, defendant reported that it had replaced 12 carbon brushes and a bearing.

On July 12, 1984, Instrumentalist sued plaintiff in the circuit court of Cook County, alleging breach of the contract to repair the motor, negligent repair and fraudulent misrepresentation. Instrumentalist attached a copy of defendant’s November 17, 1983, report to its complaint. Plaintiff was served with a copy of the summons and the complaint on July 23, 1984, and its president, Henry Dreisilker, read the complaint and attached report shortly thereafter.

In June 1985, plaintiff deposed James Rohner, president of Instrumentalist, as part of the discovery in Instrumentalist’s lawsuit against plaintiff. In responses to questions posed by plaintiff’s attorney, Rohner testified that the motor and the printing press in which it was installed had been sold to Mall Graphics in Evanston, Illinois, in August or September 1984. Instrumentalist failed to comply in further discovery by refusing to submit its expert witnesses for depositions, and plaintiff obtained summary judgment on Instrumentalist’s complaint. The lawsuit was dismissed with prejudice on August 29, 1986.

Sometime after the dismissal of Instrumentalist’s complaint, plaintiff obtained Mall Graphics’ permission to inspect the motor. Henry Dreisilker testified in a deposition that he opened the motor and observed that 11 of the 12 carbon brushes installed by his company were still inside.

Plaintiff filed a three-count complaint against defendant on September 3, 1987. Pursuant to defendant’s motion, the circuit court struck count II, which alleged common-law fraud, but let stand a prior ruling that counts I and III stated causes of action. Defendant subsequently filed a motion for summary judgment on count I on the ground that the complaint had not been filed within the applicable statute of limitations. The circuit court heard the parties’ arguments and granted the motion. Plaintiff then filed a motion for a voluntary nonsuit of count III with prejudice. The trial court entered two agreed orders on September 29, 1989, granting plaintiff’s voluntary nonsuit of count III, striking the scheduled trial date, and making the dismissal of counts I and II final and appealable. Plaintiff’s timely appeal ensued.

The issues presented on appeal are: (1) whether the circuit court properly granted defendant’s motion for summary judgment on count I of plaintiff’s complaint on the ground that plaintiff’s cause of action was barred by the statute of limitations; and (2) whether this court should impose sanctions upon plaintiff or its counsel for pursuing a frivolous appeal pursuant to defendant’s motion under Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)). We ordered defendant’s motion for sanctions and plaintiff’s response thereto to be taken with the case. The parties’ appellate briefs suggest a subsidiary issue, i.e., whether the so-called discovery rule is applicable to toll the limitations period set forth in section 10a(e) of the Act (Ill. Rev. Stat. 1989, ch. 121V2, par. 270a(e)). In view of our resolution of the first issue above, however, we find it unnecessary to answer this question.

It is well settled in this State that summary judgment is a drastic and extraordinary measure which should be granted by the trial court only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The trial court’s function in considering a motion for summary judgment is to determine whether issues of fact which are material to the dispute exist, but not to try those issues. (Purtill, 111 Ill. 2d at 240.) Summary judgment should be granted by the trial court only when the court is satisfied that the pleadings, affidavits and other supporting evidence in the record present no genuine issue of material fact. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The trial court is obliged to construe the record before it most strictly against the movant and most liberally in favor of the nonmovant. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) Our function in reviewing a trial court’s entry of summary judgment is to determine whether the trial court correctly concluded that there were no genuine issues of material fact and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

Among other things, the Act prohibits a person engaged in business from “disparaging] the goods, services or business of another by false or misleading representation of fact.” (Ill. Rev. Stat. 1989, ch. 1211/2, par. 312(8).) Section 10a(e) provides, “[a]ny action for damages under this Section shall be forever barred unless commenced within 3 years after the cause of action accrued.” Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(e).

Count I of plaintiff’s complaint, filed September 3, 1987, alleges that defendant violated the Act by disparaging plaintiff’s business and services in its November 17, 1983, report to Instrumentalist. Simple arithmetic shows that the complaint was filed nearly four years after defendant committed the complained-of act. These facts would seem to dictate the conclusion that plaintiff’s complaint is barred by the Act’s own explicitly stated three-year limitation period. Plaintiff, however, urges this court to apply the “discovery rule” and hold that the limitation period did not commence until plaintiff “discovered” its injury and the wrongful cause of the injury.

In support of this contention, plaintiff cites Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, which it claims renders the rule applicable to any statute of limitations. In Knox College, the supreme court observed:

“The discovery rule relating to the statute of limitations has been applied across a broad spectrum of litigation to alleviate what has been viewed as harsh results resulting from the literal application of the statute. The effect of the discovery rule is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury. [Citations.] The difficulty in applying the discovery rule has been in giving meaning to the term commonly used stating the rule, ‘knows or should have known of his injury.’ ” (88 Ill. 2d at 414.)

The supreme court considered this difficulty and relied upon two earlier holdings in which it had explicated the rule and adopted a construction of it which was neither “narrow nor expansive.” (88 Ill. 2d at 414-15.) Citing Witherell v. Weimer (1981), 85 Ill. 2d 146, 156, and Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171, the court declared that, under the discovery rule, the statute of limitations commences when the potential plaintiff knows or reasonably should know of his injury and also knows or reasonably should know that the injury was wrongfully caused. (88 Ill. 2d at 415.) The court stated:

“In those cases [Witherell and Nolan] it was made clear that the term ‘wrongfully caused’ does not mean that the plaintiff must have knowledge of the defendant’s negligent conduct before the statute is triggered. * * *
Also, it was made clear in those decisions that a plaintiff need not have knowledge that an actionable wrong was committed before the period begins to run.” (Knox College, 88 Ill. 2d at 415.)

Rather, the rule triggers the commencement of the limitations period when the injured person has obtained sufficient information to be aware that his injury was caused by another party’s wrongful acts. At this- point, the injured person is put on notice and is obligated diligently to inquire further to determine whether there is an actionable wrong. Knox College, 88 Ill. 2d at 416; Nolan, 85 Ill. 2d at 171; Witherell, 85 Ill. 2d at 156.

In short, in matters to which the discovery rule applies, the statute of limitations is held in abeyance, but, as the Knox College holding illustrates, commencement of the running of the limitations period does not await complete knowledge of the injured party:

“At some point the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved. At that point, under the discovery rule, the running of the limitations period commences.” (Emphasis added.) Knox College, 88 Ill. 2d at 416.

Assuming, arguendo, that complaints filed under the Act are subject to the discovery rule, determining the point at which an injured party becomes possessed of sufficient information to be alerted to his potential cause of action, thus triggering the commencement of the limitations period under the discovery rule, is usually a question of fact (Knox College, 88 Ill. 2d at 416). In some circumstances, however, this determination may be a question of law. (Elsa Benson, Inc. v. Kalman Floor Co. (1989), 191 Ill. App. 3d 1016, 1029.) We conclude, as did the trial court, that plaintiff had reason to know its injury was wrongfully caused on July 24, 1984, at the latest. It received Instrumentalist’s complaint based on defendant’s report on this date. The date of service and the fact that the complaint included a copy of defendant’s report are undisputed. Henry Dreisilker testified that he saw the report shortly after service and stated that he found the report “terrible, insulting and sick.” He “definitely” disputed its contents and discussed them with plaintiff’s general manager and other personnel who “were 100 percent [in agreement] with me.” The record thus conclusively establishes that plaintiff was aware of the allegedly disparaging report on approximately July 24, 1984, and disputed its contents immediately. We determine, as a matter of law, that at this point plaintiff had sufficient information concerning the injury and its cause that a reasonable person in its place would be obliged to inquire further as to the existence of a cause of action against defendant.

The trial court characterized plaintiff’s inspection of the motor sometime after August 29, 1986, as a “red herring” that was irrelevant for purposes of the application of the discovery rule, and we agree with this assessment. Plaintiff’s inspection of the motor proved only that defendant apparently lied about some of the repairs its report claimed it had performed. In count I of its complaint, plaintiff alleged that defendant’s report “falsely represented to Instrumentalist that [plaintiff] had not correctly repaired the electric motor, had installed the wrong grade of brushes, had installed the wrong type of bearings, and had otherwise poorly, negligently or intentionally failed to repair the electric motor.” Plaintiff thus claimed that defendant violated the Act by disparaging plaintiffs actions, a viable claim under the Act. By contrast, whether defendant falsely represented its own actions is completely immaterial to such a claim.

Plaintiff argues, without citation of authority, that it would be proper to toll the running of the statute of limitations for a six-week period following service of the Instrumentalist lawsuit on July 23, 1984, in order to take into account plaintiff’s need for time to answer the Instrumentalist lawsuit and investigate. It is clear under Illinois law that once a party knows or should reasonably know of his injury and that the injury was wrongfully caused, that party has a duty to investigate further to determine if the wrong is actionable. (Nolan, 85 Ill. 2d at 171.) The statute of limitations begins to run once this duty to investigate commences; there is no further period of tolling to give the party a chance to complete the investigation. (See Nolan, 85 Ill. 2d at 171.) Since we have concluded plaintiff was aware of its injury and its wrongful cause in July 1984, but did not file suit until September 3, 1987, count I was barred by the three-year limitation period set forth in the Act even if the discovery rule was applicable.

Defendant has filed a motion with this court to have sanctions imposed against plaintiff pursuant to Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) for filing a frivolous appeal. In determining whether an appeal is frivolous, an objective standard should be applied; the appeal is considered frivolous if it would not have been brought in good faith by a reasonable, prudent attorney. 134 Ill. 2d R. 375(b); Kennedy v. Miller (1990), 197 Ill. App. 3d 785, 791.

It would have been readily apparent to a reasonable, prudent attorney that count I was barred by the three-year statute of limitations under the Act. Plaintiff alleged that defendant violated the Act by disparaging plaintiff’s services in November 1983. Plaintiff did not file its complaint until September 1987. It should have been obvious that the discovery rule, if applicable to actions under the Act, would not save plaintiff’s complaint when plaintiff’s president and other employees were aware of the disparaging report in July 1984 and immediately disputed its contents.

Plaintiff’s success in this appeal was dependent upon its argument that the discovery rule tolled the commencement of the limitations period under the Act until plaintiff inspected the motor on August 29, 1986. This inspection, however, only revealed, according to the evidence, that Rainbow may have lied about the extent of its repairs. As we have pointed out, count I concerned Rainbow’s alleged disparagement of Dreisilker’s repairs, and Dreisilker was aware of this disparagement no later than July 1984. This argument, which was the basis of plaintiff’s appeal, was frivolous. Moreover, plaintiff’s claim that Instrumentalist prevented plaintiff from seeing the motor during the course of the Instrumentalist litigation is highly dubious in light of James Rohner’s deposition testimony on June 25, 1985, that the motor had already been sold to Mall Graphics, where plaintiff ultimately inspected it.

We agree with defendant that sanctions should be imposed against plaintiff for filing a frivolous appeal. Since defendant has not yet done so, we direct defendant to file a statement of reasonable expenses and attorney fees incurred as a result of this appeal within 14 days. Plaintiff and its attorneys shall have seven days to file a response. This court will then file a supplemental opinion determining the amount of the sanction which will be imposed upon plaintiff and its attorney.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

|

Affirmed with sanctions.

UNVERZAGT, P.J., and GEIGER, J., concur.

SUPPLEMENTAL OPINION

JUSTICE DUNN

delivered the opinion of the court:

Pursuant to the request in our original opinion, defendant has filed a statement regarding the attorney fees and expenses incurred in defending this appeal. In the statement, defendant seeks recovery for 83.55 hours of attorney time billed at a rate of $85 per hour for a total of $7,101.75, plus $26.12 in expenses. A substantial portion of this time was for services rendered several weeks prior to the filing of plaintiff’s notice of appeal; these services bore no relation to the appeal. Defendants also seek to recover for legal research which was not reflected in their brief on appeal. Defendants cited no authority in their appellate brief which had not been cited in their trial court filings. We believe an appropriate sanction would be to compensate defendants for 30 hours of attorney time at the rate of $85 per hour, plus $26.12 in expenses. We, therefore, direct plaintiff and its attorney, B.J. Farrell, to pay defendant $2,576.12 as a sanction for bringing a frivolous appeal. Plaintiff and Farrell shall be jointly and severally liable for payment of this amount.

Additionally, plaintiff has filed a motion requesting reconsideration of our decision to award attorney fees. This motion is denied.

Accordingly, the judgment of the circuit court of Du Page County is affirmed, and defendant is awarded the sum of $2,576.12 pursuant to Supreme Court Rule 375.

Affirmed with sanctions.

UNVERZAGT, P.J., and GEIGER, J., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NICHOLAS MONTENEGRO, Defendant-Appellee.
    Second District
    No. 2— 89—0077
    Opinion filed August 31, 1990.
    Rehearing denied October 31, 1990.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Nicolas Montenegro, was arrested on July 13, 1988, and indicted with three other men on July 19, 1988, for unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(2)). He was discharged when the trial court determined that the 120-day period specified for his right to a speedy trial under section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)) had expired by November 14, 1988. On appeal, the State contends that the trial court erred in finding that the 120-day period expired when defendant occasioned delay by requesting supplemental discovery. We reverse and remand.

On August 1, 1988, defense counsel was appointed; she filed a motion for discovery, and the matter was continued until August 22, 1988, for compliance with discovery. The State filed its answer to discovery on August 1, 1988. On August 22, 1988, defendant filed a motion for supplemental discovery, and his counsel stated:

“I don’t know how long it would take for the State to obtain these additional materials which are requested, but I would imagine that it would take some time. The lab analysis obviously will take the longest, but the other reports, I think, would probably be able to be tendered within a couple of weeks.”

The court set September 6, 1988, for a status hearing on discovery. On September 6, the State requested another week to comply with the discovery request but agreed with defendant that a trial date could be set. The court set September 21, 1988, for a pretrial conference and stated that it would set a trial date at that time. The State filed its answer to the discovery request on September 21, 1988. On September 27, 1988, the trial was set for November 14, 1988, with a final pretrial conference set for November 10,1988.

After the cause had been set for trial, it was transferred to a different judge. On January 3, 1989, defendant filed a motion for discharge, which he supported with the transcripts of the previous hearings before the first judge. The trial court read the transcripts and heard the arguments of counsel. The court determined that the August 22 motion was not a request to extend the discovery but instead was merely a request for supplemental discovery and, since the period up to September 6 was unreasonable, it did not cause a delay of trial. The court ruled that the motion did not occasion a delay that could be attributable to defendant. Therefore, since more than 120 days had elapsed between defendant’s arrest on July 13, 1988, and November 14, 1988, the trial court ordered defendant discharged.

Section 103 — 5(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a)) gives effect to every defendant’s right to a speedy trial. The State has the burden of bringing a defendant to trial within 120 days following the date he was taken into custody, but this period may be suspended temporarily for a number of reasons, including delay occasioned by the defendant. The relevant inquiry is whether a defendant’s act in fact caused or contributed to the delay. (People v. Turner (1989), 128 Ill. 2d 540, 550; People v. Paulsgrove (1989), 178 Ill. App. 3d 1073, 1076.) The defendant bears the burden of establishing facts which show a violation of the speedy-trial statute. (Turner, 128 Ill. 2d at 550.) The decision of the trial court as to accountability for delay in bringing a defendant to trial should not be overturned unless there was a clear abuse of discretion. 128 Ill. 2d at 551.

We note at this point that a single day’s delay occasioned by defendant was sufficient to result in the November 14, 1988, trial date being within the 120-day period. The period commenced the first day following the date of arrest on July 13, 1988. (People v. Grant (1982), 104 Ill. App. 3d 183, 188.) The 120th day was Thursday, November 10, 1988. If there was a one-day delay causing a one-day enlargement of time, the period would have expired on Veterans Day, a holiday. (See Ill. Rev. Stat. 1987, ch. 1, par. 3116.) Since holidays, Saturdays and Sundays are not included in the computation of the last day (People v. Miles (1988), 176 Ill. App. 3d 758, 775; People v. Hill (1973), 15 Ill. App. 3d 349, 354), the period would have expired on Monday, November 14, the scheduled trial date. Thus, if defendant’s discovery motion occasioned a single day’s delay, defendant’s right to a speedy trial was not violated. Defendant also admitted that, if any of the delay were attributed to him, the term would not have expired.

A defendant is entitled to discovery. (People v. Nunnery (1973), 54 Ill. 2d 372, 377.) All discovery motions are not intrinsically dilatory; therefore, not every such motion will extend the statutory period. (People v. Frame (1988), 165 Ill. App. 3d 585, 591.) A discovery motion which the State could answer quickly would cause little or no delay, whereas a motion which requests answers which are not readily available will cause delays appropriately charged against a defendant. (People v. Scott (1973), 13 Ill. App. 3d 620, 630.) Whether a motion in fact causes delay depends on the facts and circumstances of each case, and the trial court must appraise the timeliness and complexity of the motion. (Scott, 13 Ill. App. 3d at 630.) A discovery motion on the eve of trial may cause delay (People v. Thomas (1975), 25 Ill. App. 3d 88, 90-91) or may not cause delay if compliance may be had immediately if the State were truly ready for trial (Nunnery, 54 Ill. 2d at 377).

Whether a discovery request is complex depends on the facts and circumstances of every case and the amount of preparation necessary to comply with the request. For example, where the State must supply a lengthy list of witnesses who reside in various locations, numerous exhibits and a large amount of scientific evidence, the discovery request is complex and compliance with such discovery causes delay attributed to a defendant. (People v. Green (1975), 30 Ill. App. 3d 1000, 1006-07.) By contrast, where the State can respond almost immediately by supplying police reports, statements of witnesses and a list of potential witnesses, the request is not extraordinary and does not occasion delay. People v. Mollet (1975), 28 Ill. App. 3d 415, 418.

In the present case, the State argues that the supplemental discovery motion was complex and therefore occasioned delay, while defendant argues that the motion requested nothing that he was not already entitled to have.

Defendant’s motion for supplemental discovery requested reports of Drug Enforcement Agency (DEA) officials referred to in reports previously supplied; an opportunity for a court-appointed translator to transcribe the tape-recorded statement of Jose Nunez-Balderas, a coindictee; a report on what plea bargains or agreements had been made with Nunez-Balderas in exchange for his testimony; reports concerning prior drug transactions between a different co-indictee and the police; copies of the laboratory analysis of the controlled substance seized; and a copy of the Spanish language Miranda card.

Some of the items requested, such as information concerning the plea bargain and the Miranda card, would not have taken long to provide and thus did not contribute to the delay. The request for the laboratory analysis also did not contribute to the delay because, if the State were ready for trial, it would have already procured the analysis sufficient to prove an element of the crime charged, whereas defendant’s defense did not rest on disproving the chemical composition of the cocaine. As for the DEA reports, there was no showing that these reports were previously requested or that the State had ready access to them, and there is nothing in the record to indicate whether they could have been supplied immediately.

The request for a tape-recorded statement of Nunez-Balderas, however, was more than a simple request. The interview was conducted in English and Spanish with contemporaneous translations, but defendant sought an opportunity for an independent translator to make arrangements to listen to the tape. The State argued that getting the statement transcribed and arranging for the interpreter to listen to the tape took a lot of time. It was something more than the State needed to be prepared for trial. (Cf. Green, 30 Ill. App. 3d at 1018 (Simon, J., concurring).) We believe that, under the facts in this case, it did cause a delay of at least one day.

We make this determination by noting that defendant’s act of filing a motion for supplemental discovery caused a delay due to the fact that the State needed time to respond. While it is clear that some of the material requested was relatively easy to produce (i.e., the plea bargain request and Miranda card), other portions of the request were not easily ascertainable. As defense counsel stated during the hearing on August 22, 1988, “I don’t know how long it would take for the State to obtain these additional materials which are requested, but I would imagine that it would take some time.” As the court stated in Scott:

“[A] discovery motion that calls for answers which are not quickly available or requests answers replete in detail would cause a legitimate delay; such a motion is properly attributable to a defendant and tolls the running of the statutory period.” Scott, 13 Ill. App. 3d at 630.

See also People v. Henderson (1976), 39 Ill. App. 3d 164, 167-68; Green, 30 Ill. App. 3d at 1006-07.

It is obvious in this case that the State would need a considerable amount of time in order to comply with defendant’s request. As other courts have pointed out, a defendant is responsible for the time reasonably associated with the processing of his pretrial motions. (Paulsgrove, 178 Ill. App. 3d at 1077; People v. DeCarlis (1980), 88 Ill. App. 3d 634, 637-38.) We believe that the State was entitled to a reasonable amount of time to comply with defendant’s request for supplemental discovery, especially considering the relative complexity in translating certain transcripts from Spanish to English. This time, which was at least one day, should have been charged to defendant for purposes of the speedy-trial statute. Thus, given that defendant caused a portion of the delay, the trial court erred in discharging defendant for a violation of his right to a speedy trial.

For the above reasons, the order of the circuit court of Kane County discharging defendant for violation of his right to a speedy trial is reversed, and the cause is remanded for proceedings consistent with this disposition.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
      In re ESTATE OF JAMES O. BURKE, Deceased (J. Donald Burke, Sr., Ex’r, Petitioner-Appellant, v. Estate of Wallace Burke et al., RespondentsAppellees).
    Second District
    No. 2— 89—1344
    Opinion filed September 12, 1990.

      Mary P. Gorman, of O’Brien, Healy, Wade & Gorman, of Rockford, for appellant.
    Dennis R. Hewitt, of Rochelle, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, J. Donald Burke, Sr., filed a petition as executor of the estate of James 0. Burke seeking to sell certain real property of the estate. An objection to the sale of the real estate was made by certain heirs of the deceased claiming to have an interest in the property because of a specific devise to them in the will of the decedent. Because of a misdescription of the property in the specific devise contained in the fifth clause of the will, the executor argued that the specific bequest failed and the property should pass through the residuary clause of the will. After considering written and oral arguments of the litigants, the trial court entered an order construing the fifth clause of the will, which devised property located at 721 Seventh Avenue, in Rochelle, Ogle County, Illinois, as having actually devised property of the decedent at 721 Fifth Avenue, in Rochelle, Ogle County, Illinois. The court’s order of November 29, 1989, further required the executor to convey by deed the decedent’s interest in the property to the remaindermen and objecting heirs, Michael G. Burke and Wallace J. Burke, Jr., as tenants in common.

Only the executor appeals from this order, raising two issues: (1) whether the trial court erred in construing the specific devise of the property; and (2) whether the court erred in ordering the executor to convey the property where a number of issues remained to be determined including the final distribution of the assets of the estate and payment of the expenses of the estate. Finding that the judgment appealed from is not final and that the executor has no standing to bring the appeal in this cause, we dismiss the appeal.

James 0. Burke died testate March 27, 1965, in Rochelle, Illinois. On May 24, 1965, the trial court entered an order admitting his will to probate and appointing decedent’s sons, Wallace Burke and (J.) Donald Burke, as co-executors of the estate. Decedent’s will bequeathed 50% of his assets to his surviving spouse, Allie V. Burke. Certain provisions were made for the use of some of the remainder of the estate to care for the surviving spouse during her lifetime. Wallace and Donald apparently managed the assets of their father’s estate and cared for their mother, Allie. Allie and Wallace Burke both died in January 1986. The fifth clause of the will concerning the disposition of certain remaining real estate after the death of Allie provided in pertinent part:

“My son Wallace Burke to have the life use, rents, issues and profits of the ‘North Farm’ together with the life use, renta [sic] issues and profits of house at 721 Seventh Avenue in the City of Rochelle, Ogle County, Illinois and the remainder shall be given to his children. My son, Donald Burke, to have the life use rents, issues and profits of the ‘South Farm or Heath Farm’ and the remainder shall be given to his children.”

The surviving co-executor, Donald Burke, sought to wind up the affairs of the estate by filing an interim report of the executor, an amended inventory, and a petition to list and sell real estate. The inventory lists as assets of the estate only three items of real estate together with their legal descriptions but titled by their commonly known designations as: a rental dwelling at 721 Fifth Avenue, in Rochelle, Illinois; an undivided interest in the “South Farm,” in Flagg Township, Ogle County, Illinois; and an undivided interest in the “North Farm,” in Flagg Township, Ogle County, Illinois. The interim report indicates that the three real estate parcels appeared to be the only remaining assets of the estate. The petition averred that the parcel owned by decedent at 721 Fifth Avenue, in Rochelle, Illinois, should be sold to pay for the administrative expenses of the estate and that this parcel had not been specifically bequeathed to any party in the will. The interim report indicates that it was necessary to sell this property to pay administrative expenses and that it was the intention of the executor to obtain a final distribution of the assets and close the estate.

At the initial hearing on the petition held on January 17, 1989, counsel for the estate of Wallace Burke and his children, Michael Burke and Wallace Burke, Jr. (objectors), appeared and objected to the sale of the real estate. Counsel for the objectors pointed out that the property in question was held by Allie and James 0. Burke as tenants in common; therefore, counsel concluded, the Burke estate did not have title to the whole of the property. Counsel for the objectors claimed that half of the property was properly an asset of the Wallace Burke estate.

Subsequently, a second amended inventory and an amended petition to sell the real estate were filed in April 1989. These documents acknowledged that the James Burke estate claimed only a one-half interest in the property located at 721 Fifth Avenue, in Rochelle, Illinois, and the petition acknowledged that the two other parcels were subject to specific devises in the will of decedent, James Burke.

At a hearing on March 9, 1989, the objectors raised the issue whether the will should be construed so that the property at 721 Seventh Avenue, in Rochelle, Illinois, could be read to mean the devise of 721 Fifth Avenue, in Rochelle, Illinois. Written letter briefs were submitted to the trial court by the executor and by the objectors, and further oral arguments were heard on May 12, 1989. When the trial court sent a letter of opinion to counsel indicating that it had found that the estate of James 0. Burke was the owner of an undivided, one-half interest in the property located at 721 Fifth Avenue, in Rochelle, Illinois, the executor filed a motion for clarification or, in the alternative, to reconsider.

After further oral argument on the executor’s motion heard on September 27, 1989, the court rendered an opinion by letter. The court stated that after examining the property owned by the decedent when he died together with the extrinsic evidence contained in the inventory and the inheritance tax return, the motion to reconsider was denied. The court then requested that a draft order be prepared for its signature. At a hearing on October 26, 1989, the objectors sought to include in the order a provision that the interest of James Burke be deeded to them.

In its order dated November 28, 1989, the trial court found that the provision in the will describing the property at 721 Seventh Avenue should be construed as a devise by James 0. Burke of the property he owned at 721 Fifth Avenue, in Rochelle, Illinois. The court based its decision on the ownership of the property of decedent as shown by the inventory of the estate and the inheritance taxes paid on this property and on the rules of construction relating to a scrivener’s error. The court reasoned that common sense should dictate that the intent of the testator was to devise the property at 721 Fifth Avenue. Accordingly, the interest of the decedent was held to be devised to Michael G. Burke and Wallace J. Burke as tenants in common. The court further ordered the executor to execute a deed conveying that interest to them. Only the executor has filed a timely notice of appeal from that order and brings this appeal pursuant to Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)).

We must first decide whether we may hear this appeal. Pursuant to the holding of In re Estate of Tingos (1979), 72 Ill. App. 3d 703, 711-12, we conclude that the order appealed from is neither final nor appealable as to the executor, who has no standing to bring this appeal. (See In re Estate of Wagner (1989), 184 Ill. App. 3d 882; 2 Horner Probate Practice & Estates §851 (4th ed. 1988); Annot., 16 A.L.R.3d 1274 (1967).) In Tingos, an executor appealed from an order requiring him to make a partial distribution of the estate’s assets to two heirs and legatees. The executor claimed that the order was in error because it failed to require a refunding bond. The Tingos court determined that the order was neither final nor appealable by the executor, since the order of partial distribution was in no sense final because it determined nothing as against the executor. The court reasoned that, even if a partial distribution order could be considered final in some contexts or as against some persons, the executor did not have such an interest as would entitle him to appeal from the order. The general rule followed in other jurisdictions is that an executor has no right to appeal from an order granting or denying a partial distribution. (Tingos, 72 Ill. App. 3d at 711.) The rationale for the rule appears to be that, since the executor is in essence a stakeholder, he is not a party aggrieved by the partial distribution order and is not bound to litigate conflicting claims of beneficiaries and creditors at the expense of the estate. (72 Ill. App. 3d at 711.) The Tingos court further determined that, even if it were to recognize an exception where the order would render the estate’s assets insufficient to pay-claims, the record failed to establish such a situation.

We believe that the instant appeal falls well within the ambit of Tingos. The executor here is not “a party” as required under Supreme Court Rule 304(b)(1) merely because the trial court determined that the property in question was to be conveyed to particular heirs or devisees. Furthermore, the order was not final as to the executor in his representative capacity. It is the law in this State that, in the absence of fraud, one who distributes assets pursuant to court order will be protected. (Wagner, 184 111. App. 3d at 886-87.) The lack of finality of the order is further evidenced by the executor’s appellate contention that there remain several unresolved issues before the trial court and a final order of distribution has not yet been entered. It remains for the executor to pursue his legal remedies in the trial court regarding the final distribution of assets and the payment of expenses rather than by piecemeal appeal to this court. As in Tingos, the state of the record in this case is not such that we should recognize an exception to the general rule stated there in order to examine whether the order entered would render the estate’s assets insufficient. We leave the proper resolution of those issues to the trial court.

For the reasons stated, the appeal is hereby dismissed.

Appeal dismissed.

GEIGER and INGLIS, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. KENNETH R. HELTON, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Second District
    No. 2— 89—1307
    Opinion filed September 12, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellant Jim Edgar.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, the Secretary of State (Secretary), appeals an order of the circuit court of Winnebago County granting a judicial driving permit (JDP) to defendant, Kenneth R. Helton. The Secretary raises one issue on appeal: whether the trial court erred by ordering the Secretary to issue a JDP to defendant, who was not a statutory first offender within the meaning of section 11 — 500 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11-500).

Defendant has not filed an appellee's brief in response. We will, however, consider the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

On July 20, 1989, defendant was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501). Defendant was served the same day with a notice of statutory summary suspension of his driving privileges. The notice did not state whether defendant was a first offender.

On August 4, 1989, defendant filed a petition for a JDP to relieve hardship. He declared that he was a first offender as defined in section 11 — 500 of the Code (111. Rev. Stat. 1987, ch. 95^2, par. 11 — 500). A copy of the abstract of defendant’s driving record is contained in the record. The Secretary has failed to provide an explanation of the abstract. We would like to note our agreement with the suggestion made by the court in People v. Kerr (1990), 196 Ill.

App. 3d 207, 212-13, that it would be much better practice for the Secretary to provide, in each case, an explanation of the driving record of that specific driver. However, as well as can be determined by this court (see People v. Duff (1989), 181 Ill. App. 3d 324, 326), the abstract reveals that defendant was previously arrested for DUI on March 6, 1984. Based on that offense, he was given court supervision on October 5, 1984.

The trial court found that defendant was a first offender as defined by the statute and granted defendant’s petition. On October 10, 1989, the court entered an order directing that the Secretary issue a JDP to defendant for the purpose of driving to and from his place of employment. The Secretary, in a letter dated October 23, 1989, requested that the court reassess its decision to order the issuance of the JDP because defendant’s record indicated that he was a second offender. Defendant then filed a motion asking that the court reassess the matter so that the JDP could be issued. On November 20, 1989, the court entered an order again finding that defendant was a first offender, stating, in pertinent part:

“That the one constant and fair date in determining the five (5) year requirement under section 11 — 501 [sic], Chapter 95V2j ILLINOIS REVISED STATUTES, is the date of arrest and/or offense, which in the instant case is in excess of five (5) years.”

The court then ordered that the original order for the JDP be resubmitted to the Secretary for issuance.

On appeal, the Secretary contends that the trial court should not have granted a JDP to defendant because he is not a statutory first offender. Section 6 — 206.1(a) authorizes the trial court to grant a first offender’s petition for a JDP to relieve undue hardship. (111. Rev. Stat. 1989, ch. 95V2, par. 6 — 206.1(a).) At the time of the trial court’s ruling, a first offender was defined as:

“[A]ny person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501 *** within 5 years prior to the date of the current offense ***.” (111. Rev. Stat. 1989, ch. 951/2, par. 11 — 500 (amended by Pub. Act 86-929, eff. Sept. 21, 1989).)

Prior to the amendment, the statute similarly defined a first offender as “any person who has not had a previous conviction or court assigned supervision for violating Section 11 — 501 *** within the last 5 years.” Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 500.

The Secretary argues that it was error for the trial court to order the issuance of a JDP because the defendant was arrested for

__ DUI on July 20, 1989, and this occurred less than five years from defendant’s assignment to court supervision on October 5, 1984. The Secretary cites People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 99, and People ex rel. Edgar v. Curley (1989), 188 Ill. App. 3d 37, 39, two third district cases which have held that the relevant date is the date the defendant received court-assigned supervision, not the date of the defendant’s prior arrest.

The second district has, in fact, also concluded that, based on the language of the statute, the five-year period commences with the date of the defendant’s assignment to supervision and not from the date of his prior arrest. (People v. Reymar (1990), 197 Ill. App. 3d 224, 225; People v. Brom (1989), 189 Ill. App. 3d 910, 912 (dictum); People v. Duff (1989), 181 Ill. App. 3d 324, 326.) The same conclusion has been reached by the fourth district. (See People v. Sandness (1990), 197 Ill. App. 3d 486; People v. Kerr (1990), 196 Ill. App. 3d 207.) This court has recently found, in upholding the constitutionality of the statute, that the date of conviction (or assignment to supervision) is the most practical commencement point for the five-year period. People v. Tritthardt (1990), 195 Ill. App. 3d 167, 170.

Since defendant was arrested for DUI within five years of his prior assignment of supervision for DUI, he does not fall within the first-offender category and was ineligible to receive a JDP. The trial court therefore abused its discretion in granting defendant’s petition for a JDP.

The order of the circuit court of Winnebago County is reversed.

Reversed.

REINHARD and WOODWARD, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JON P. MAYO, Defendant-Appellant.
    Second District
    Nos. 2 — 88—1159, 2 — 88—1204 cons.
    Opinion filed September 21, 1990.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Steven R. Frank, of Johnson, Frank, Frederick & Walsh, of Urbana (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Jon P. Mayo, appeals his conviction of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 501(a)(2)). He contends the trial court erred in giving a jury instruction based on section 11 — 501.5 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.5, formerly Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501.4) when there was no evidence adduced at trial to support the instruction.

At the trial, Officer Martin Shields of the Downers Grove police force testified that he saw defendant stopped at a stoplight on February 12, 1988. Officer Shields approached him because defendant’s car windows appeared to be obstructed with snow and ice. When Officer Shields talked to him, Shields smelled alcohol on defendant’s breath, saw that his eyes were bloodshot and his speech was slurred. Shields then ordered him to perform field sobriety tests, and defendant failed the walk-and-turn test, the heel-to-toe test, the finger-to-nose test and the one-legged-stand test.

At that time, Commander Jack Robertson arrived with a portable breath-screening device. Defendant agreed to Shield’s request to take a preliminary test by blowing into the machine. Shields attempted to testify that the machine indicated that defendant’s blood-alcohol concentration would have been at least 0.10% on a breathalyzer machine, but the officer’s answer was stricken on the defendant’s objection that no foundation was laid for that answer. Shields further testified that he formulated an opinion that defendant was intoxicated based on defendant’s driving, the ice on the windows, the speech being slurred, his bloodshot eyes, the odor of alcohol on his breath and his performance on the field sobriety tests. Shields further testified that defendant refused to take the breathalyzer test when warned that if he registered a 0.10% or more blood-alcohol count, his driver’s license would be suspended for three months. Officer Shields was extensively cross-examined regarding defendant’s performance, appearance, and behavior.

Commander Robertson testified, without objection, that defendant blew into the screening machine and a red light flashed indicating that defendant would have registered a 0.10% blood-alcohol count on a breathalyzer, which meant defendant was intoxicated. On cross-examination, Robertson admitted that there was no State agency which certified operators of the machine; that he did not know the name of the machine, its serial number, its manufacturer, or whether or when the machine was last certified; that as far as he knew, the machine was certified by the manufacturer because the deputy chief had advised him so; that he did not have a log book showing when it was last certified as operating correctly; and that he did not test the machine himself. On redirect examination, Robertson again testified that the machine indicated defendant’s blood-alcohol concentration was over 0.10%.

Officer Shields was recalled as a witness and testified that he told defendant the machine indicated that he had registered a 0.10% reading on a breathalyzer test. On cross-examination, he admitted he had no training on the use of the machine other than to tell suspects to blow into it and he had no knowledge whether the machine was accurate that night.

Defendant testified on his own behalf and stated he had worked from 5 a.m. to 5 p.m. that day and was tired at the time he performed the sobriety tests after 11:45 p.m. He admitted he drank three cans of beer at a friend’s house that evening and then drove approximately six miles before he was arrested. He stated that he was able to perform the heel-to-toe test, straight-line test and the finger-to-nose test.

Following the close of evidence, the State tendered jury instructions. The assistant State’s Attorney tendered People’s instruction No. 11, which read as follows:

“If a law enforcement officer has probable cause to believe that the person is violating Section 11 — 501, the officer, prior to arrest, may request the person to provide a sample of his breath for a preliminary breath screening test using a portable device [as approved by the Illinois Department of Public Health]. Those results may be used by the law enforcement officer for the purpose of assisting with the determination of whether to require a chemical test as authorized under 11— 501.1 and 11-501.2.”

The court asked him if the instruction was word for word from section 11 — 501.5. Although the assistant State’s Attorney said it was, defense counsel noted the words “approved by the Illinois Department of Public Health” were missing following the words “portable device.” The assistant State’s Attorney then stated he would include the missing words. At that time, defense counsel objected because there was no evidence to support the phrase “approved by the Illinois Department of Public Health.” The court allowed the instruction to be given over the objection and told defense counsel that he could argue that the evidence showed the device was not approved. Following its instructions and its deliberations, the jury returned a verdict of guilty on the DUI charge.

The only issue raised on appeal is whether the court erred in giving People’s instruction No. 11. We have no occasion to decide the propriety of the submission of evidence of the breath-screening test testified to by Commander Robertson without objection. A trial court should refuse the tendered jury instruction when there is no evidence to support that proffered instruction. (People v. Moya (1988), 175 Ill. App. 3d 22, 25.) Thus, the court should not have given People’s instruction No. 11 because there was not the slightest bit of evidence to show the device was approved by the Department of Public Health. The State refers to Commander Robertson’s statement that the deputy chief advised him of the certification of the device, but this answer was in response to a question whether the manufacturer had certified the machine as operating correctly. There was no evidence that the Department of Public Health approved of the unnamed and unidentified machine. Neither party to this appeal has produced any regulations that the Department of Public Health uses to approve screening devices. In the absence of evidence to show the device was approved by the Department of Public Health, the trial court erred in giving the instruction.

The State argues that defendant cannot complain of an error in an instruction when he invited the error. This argument ignores the actual dialogue that occurred during the tendering of the instruction, as it was the court that asked whether the instruction corresponded to the statute. Moreover, defendant did not waive this objection by also noting that the instruction did not correspond to the law.

However, although the instruction was erroneously given, defendant’s conviction will not be reversed unless the error actually prejudiced him. (People v. Vanda (1982), 111 Ill. App. 3d 551, 569.) The instruction itself was irrelevant to any issue before the jury. The issue was whether defendant was intoxicated, not whether the officer had a right to use the screening device result in his determination to require a breathalyzer test. As worded, the instruction actually limited the use of the damaging evidence of the test result from direct evidence of defendant’s level of intoxication to evidence that the officers had cause to test him further. Thus, defendant cannot contend he was prejudiced by the instruction.

Finally, the defendant contends the instruction was argumentative because it singled out a single piece of damaging evidence and thus drew too much attention to it. (People v. Hall (1986), 143 Ill. App. 3d 766, 773.) In People v. Godbout (1976), 42 Ill. App. 3d 1001, 1009, the court found that numerous instructions dealing with a breathalyzer test unnecessarily emphasized that piece of evidence over other items of evidence in the record. Under the facts of that case, the court determined that the excessive number and types of instructions may have mistakenly suggested to the jury that the defendant was guilty of DUI solely on the basis of the breathalyzer results. By contrast, in the cause before the court, there was only a single instruction dealing with the machine, and that instruction actually deemphasized the probativeness of the test result. Thus, we do not believe the instruction unduly singled out one piece of evidence thereby requiring us to reverse defendant’s conviction. Vanda, 111 111. App. 3d at 569.

For the above reasons, the judgment of the trial court of Du Page County is affirmed.

Affirmed.

REINHARD and WOODWARD, JJ., concur.