text:
    (No. 88-CV-0496

      In re Application of Ralph J. Hopkins

      Opinion filed December 3, 1993.

      Order filed August 22, 1995.

    Legal Assistance Foundation (Devereux Bowly, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This cause comes before the Court on the application of Claimant, Ralph J. Hopkins, for benefits pursuant to the Illinois Crime Victims Compensation Act. The application was filed on January 15,1988. The history of the case indicates the Attorney General filed his investigatory report on November 1, 1989, and the Court entered an order denying the claim on January 4, 1990. The basis for the denial was a finding by the Court that the Claimants conduct contributed to his injury to such an extent as to warrant that the Claimant be denied entitlement to compensation.

On January 22, 1990, the Claimant requested a hearing before the Commissioner assigned to the case to contest the initial denial of the claim based on the Respondents investigatory report. The Commissioner tried the case on December 14, 1990, on the issue of liability only. The Court learned at the oral arguments that there was a tacit agreement between counsel to try the issue of liability bifurcated from the issue of damages. In the event the Claimant prevailed and damages could not be stipulated to, a second trial would be held to determine damages. While this procedure may not be the most economical in time for the parties and the Court, this procedure is not disapproved in crime victims cases. This procedure may be useful in many crime victims cases where damages are easily ascertainable and the Attorney General has the ability and staff to ascertain the statutory damages. However, it would help ensure judicial economy if the parties would advise the Commissioners of disputed damage issues in crime victims cases, where possible, so that all fact issues can be determined in one trial. By allowing this procedure of bifurcation in crime victims cases, we acknowledge that crime victims cases are different than most other cases and that this bifurcated procedure can be appropriate in crime victims cases.

At the trial on liability before the Commissioner, the Claimant testified that one week prior to March 5,1987, he gave a ride to an acquaintance named Janice who worked at a tavern located at 511 S. St. Louis. Janice objected to the fact that Claimant was going to stop at a few places before taking her home. Janice decided to get out of Claimant’s car and to find another means of getting home. On March 5, 1987, Claimant went to the tavern located at 511 S. St. Louis. Janice was sitting by the door. Janice shoved Claimant in the face and the lights went out in the tavern. After the lights went out, Claimant was stabbed. Claimant denied that he started the fight which led to his injury.

The Respondent called no witnesses. The Respondent sought to introduce the police reports which indicate that Claimant may have started the fight. The Claimant objected to the introduction of the police reports and the Commissioner sustained the objection pursuant to the authority of Tamm v. State (1982), 35 Ill. Ct. Cl. 805. Without the police reports, the only evidence before the Court is the Claimant’s testimony indicating he did not start the altercation. The Claimant argues that police reports are inadmissible hearsay. The Respondent argues that the Crime Victims Compensation Act allows the Commissioner and the Court to consider all evidence helpful to the determination of the Claimants right to benefits. (740 ILCS 45/13.1(b).) Section 13.1(b) states that at “hearings held under this Act before Commissioners of the Court of Claims, any statement, document, information or matter may be received in evidence if in the opinion of the Court or its Commissioner such evidence would contribute to a determination of the claim, regardless of whether such evidence would be admissible in a court of law.” (Emphasis added.)

Normally police reports are not admissible in a court of law except for purposes of impeachment of the officers testimony. We have held as we did in Tamm, supra, that in cases other than crime victims cases police reports are normally inadmissible. However, the statute in crime victims cases specifically allows for the receipt of any document in evidence regardless of its admissibility in a court of law if either the Court or Commissioner is of the opinion that such document would contribute to the resolution of the case.

While in most cases, we would agree that police reports should not be admissible, we do find that there are crime victims cases where police reports may be helpful and should be admitted. Where witnesses are deceased, unavailable or refuse to testify, police reports may help the Court in resolving the issues. In such cases, the Court must consider the weight to be given to such reports in the face of testimony at the trial which is the subject of cross-examination. Generally more weight will be given to live witnesses who are subject to cross-examination or where the police reports are inconsistent. In re Application of Cage (1990), 43 Ill. Ct. Cl. 443.

The trial transcript indicates that the Commissioner believed police reports were inadmissible under any circumstances. Because of this belief and because the trial only considered liability and not damages, we remand this case to the Commissioner assigned to the case for a new trial. In the event the Respondent is unable to present witnesses and attempts to admit police reports, the Commissioner should make a finding based on section 13.1(b) (740 ILCS 45/13.1(b)), as to admissibility.

Based on the foregoing, the case is remanded to the Commissioner assigned to the case with directions to set a retrial of the case in accordance with the findings of this opinion.

ORDER

Frederick, J.

The parties have entered into a stipulation whereby the Attorney General’s Office recommends that a payment in the amount of $2,040 be made to the Claimant, Ralph Jerome Hopkins, for loss of earnings.

Wherefore, it is hereby ordered that a payment in the amount of $2,040 be made to the Claimant, Ralph Jerome Hopkins, for loss of earnings.

It is further ordered that this case be closed.


source: Caselaw Access Project

author: JANN, J. JANN, J.

license: Public Domain

text:
    (No. 89-CV-0322

      In re Application of Ronald D. Mancini

      Opinion filed November 19, 1993.

      Opinion on petition for rehearing filed March 11, 1996.

    Stevens & McGuire (K. Thomas Stevens, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This claim arises out of an incident that occurred on September 29, 1987. Claimant, Ronald Mancini, seeks compensation pursuant to the Crime Victims Compensation Act (hereinafter referred to as the “Act”). 740 ILCS 45/1 etseq. (1992).

The Court, after review of the claim and the investigatory report issued by the Attorney General, issued an opinion on July 22, 1989, denying the claim. The Court found that the Claimant and a companion initiated a series of fights with third persons that led to Claimants injuries. The Court also found that Claimant notified law enforcement officials 11 days after the perpetration of the incident and failed to establish that such notification was timely under the circumstances.

Claimant seeks reimbursement for out-of-pocket medical expenses and loss of earnings. The sum sought is in excess of the maximum award allowed by the Act. Claimant was employed full time by the fire department of the City of Chicago prior to his injury and worked occasionally as a stagehand.

On August 17, 1989, Claimant filed a petition for hearing. A hearing was conducted at which Claimant and a witness on behalf of Claimant, David Sears, testified. Claimant was represented by counsel. Ten exhibits were offered into evidence by the Claimant. All ten were admitted without objection.

Claimant testified, under oath, that on the day in question he and David Sears stopped at a bar to wait for a ride from Claimants girlfriend. On that day he and Sears had been working as stagehands and he had his tool bag with him. All of the tools possessed by the two were in the tool bags at all times.

The two were at the bar for approximately 30 to 35 minutes and were drinking their second beer when Claimant heard several individuals at the end of the bar making racial slurs. As the Claimant and Sears started to leave the bar, one of the individuals blocked their path. Claimant told the individuals that he and Sears did not want any trouble and only wanted to leave. The individual, whom Claimant later learned was Lavelle Cross, said to “hang around for awhile” or “you ain’t going nowhere.” Claimant stated that he did not respond to Cross but asked the bartender to call the police and she refused. Another individual, Joseph Pinney, was next to Cross. Neither Claimant or Sears made any aggressive moves towards Cross or Pinney.

Claimant and Sears left the bar several minutes after the verbal exchange. As the two entered the street, Cross and Pinney and a third individual followed them out of the bar. Sears started running and Claimant ran across the street to the Medinah Building to seek some protection. He dropped his tool bag approximately 50 feet from the door to the building and found the doors locked. Cross and Pinney grabbed Claimant by both arms and threw him into and through a plate glass door.

Claimant stated that neither he or Sears held a hammer or any other tool that could be considered a weapon. He did not have a chance to turn around and defend himself or to fight off his attackers. He was knocked unconscious in the attack.

Claimant suffered extremely severe injuries to his left upper extremity which nearly resulted in the loss of the upper extremity and his life. The injury included multiple tendon, artery, nerve and muscle injuries as indicated by Claimants exhibits.

After the incident Claimant was taken by ambulance to the hospital and received emergency surgery. The day Claimant came out of intensive care, 11 days after the incident, he reported the crime to the police. He was in the hospital three to four weeks. There is evidence that he was receiving vast amounts of pain-killing drugs, i.e., morphine and darvon. Claimants exhibit number 1 is a letter from Daniel J. Nogles, M.D., in which it is stated that Claimant nearly lost his life and was in no condition to communicate with anyone during the majority of his hospitalization. Based upon the evidence relating to Claimant’s physical and mental inability to report the crime because of his injuries, the Court finds that Claimant has established that notification to police was reasonable under the circumstances.

David Sears’ testimony corroborated Claimant’s version of the incident, and confirmed that he and Claimant were attacked without having provoked the incident.

The Respondent did not produce any witnesses but did tender a 12-page group exhibit purporting to be the October 10, 1987, police report which was admitted into the record without objection.

The Attorney Generals investigatory report filed with the Court prior to its July 22, 1989 opinion, included a conclusion that Claimant and a companion verbally harassed one of the offenders, struck the offender with a hammer and initiated another fight. The Court apparently relied upon this factual conclusion, along with the statement in the investigatory report that the conduct of Claimant directly contributed to his injury, in issuing its opinion denying the claim.

During the hearing, the Assistant Attorney General indicated that the Respondent, in preparing and filing the investigatory report, only reviewed the police report arising out of the incident. A review of the police report indicates that approximately seven witnesses were interviewed and the three most relevant are Claimant, Sears and Robert Harris, the night watchman at the Medinah Building. The interview with Harris indicates that Claimant voluntarily left the Medinah Building with a hammer in his hand to face Cross and Finney. The Harris interview does not directly dispute any other portion of Claimant’s testimony.

The police report, except for the interviews with Cross and Finney, does not tend to prove that Claimant initiated or provoked the altercation. Claimant’s exhibit numbers 4 and 5 are certified statements of convictions of Cross and Finney, respectively, for the offense of battery arising out of the incident.

Based upon the testimony of Claimant and his companion, and the proof of convictions of Cross and Finney, this Court finds that Claimant did not initiate the altercation and therefore did not directly contribute to his injury.

The issue of reimbursement for certain expenses must now be considered. Claimant’s exhibit number 11, purporting to be Claimant’s complete financial account from Northwestern Memorial Hospital, was presented. A review of the exhibit shows that Claimant’s hospital bill for the period of September 30 through October 16, 1987, totaled $37,161.40, of which $91.40 was indicated as the sum due from Claimant, the balance being indicated as due from insurance benefits.

Claimant’s group exhibit number 7 relates to the medical expenses incurred by Claimant. The first page is a summary of medical expenses totaling $2,557.88. Claimant contends that these expenses were paid out-of-pocket by him and he received no reimbursement. Photocopies of certain checks from Claimant, allegedly indicating tire payments, are included in the exhibit.

In reference to the copies of checks the following is noted: (a) the sum of the copied checks is only $1,404.25; (b) a check in the sum of $50 is made payable to CADCO, which is not listed in the summary of medical expenses (pg. 1 of exhibit number 9); (c) there are no copies of checks to Drs. Bell and Stromberg, and to Dr. Maier, although the doctors are listed on the summary; and (d) checks totaling $962.50 include the name “Sonnenberg” in the memo portion of the check. The name “Sonnenberg” also appears on Claimant’s 1987 and 1988 individual income tax returns, whereby Claimant declares Donald Sonnenberg and Julene Sonnenberg, no relationship to Claimant, to be his dependents. All checks with the Sonnenberg notation in the memo portion were dated in 1988.

The balance of the documents in Claimant’s exhibit number 7, are statements for services including: (a) a Northwestern Medical Faculty Foundation, Inc., statement indicating that on April 26, 1988, a $10 payment was received from Claimant, on July 5,1988, another $10 payment was received, and on June 6, 1989, a $109 payment was made by Claimant; (b) a June 7,1990, statement from Drs. Bell and Stromberg indicating $92 was due without any indication of sums paid by Claimant; (c) an illegible statement; (d) the following statements, all of which are not included in the $2,557.88 sum in Claimants summary of medical expenses — (i) Consultants in Neurology, Ltd., (ii) an April 24, 1990, statement from Northwestern Memorial Hospital, (iii) a June 9, 1990, statement from Addison Radiology ASSC, SC, and (iv) statements from Our Lady of the Resurrection medical facility, and (e) a statement from DeSilva Center.

The inconsistencies between the summary of medical expenses and supporting documents is tremendous and troubling. It is not logical or reasonable that Claimant would pay a bill attributable to him by placing another persons name in the memo area of the check. Based upon inconsistencies and absence of documentation, and potentially misleading information, the Court could deny Claimants entire claim for reimbursement of $2,557.88 in medical bills.

In the interest of fairness, and due to the fact that the Attorney General has not filed any objections to the information, Claimant shall be reimbursed $560.75 for the following payments for medical services which are claimed on the summary and are supported by the documents in Claimants exhibit number 7:

Northwestern Medical Faculty

Foundation, Inc. $179.00

Dr. DeBacher 100.00

Dr. Brandstatter 125.00

Dr. Bartruck 55.00

Damon Clinical Labs 48.75

Diagnostic Radiology Associates 33.00

Nuclear Medical Associates 10.00

Evanston North Shore

Home Health 10.00

Total Substantiated $560.75

Claimant seeks an award in excess of the maximum sum permitted by the Act for lost earnings. In support of his claim, he offered exhibit numbers 8 through 11. Claimant presents a theory of “differential” loss. Claimant maintains that his differential in income between his previous full-time salary and the gross benefits he now receives is approximately $20,624.88 less per year. The total loss of wages claimed from the date of the injury to the hearing date is $46,411.23.

Immediately prior to the injury on September 29, 1987, Claimants gross pay was $2,730 per month and his net pay was $1,860.04 per month as verified by his exhibits.

Exhibit number 8 indicates that Claimant would receive his ordinary disability benefit of $1,009.51 per month from September 29, 1988, to January 17, 1993. Accordingly, Claimant would receive approximately $39,976.60 for that 39.6-month time period. Claimants gross salary, based upon his pay of $2,730 per month for the same 39.6-month time period would have been $108,381. Pursuant to Claimants differential loss theory, there is a difference of $68,404.41, between the salary he would have earned as a fireman and the disability benefits he received. This is in excess of the maximum that can be awarded pursuant to the Act. If the differential in earnings were all that would be required to demonstrate a loss of earnings claim under the Act, Claimant would be entitled to the maximum award of $25,000.

Section 2(h) of the Act defines compensable “[Pjecuniary loss” as, inter alia, loss of earnings and loss of future earnings because of disability resulting from injury. The same section specifies that an award for loss of earnings or future earnings is to be determined on the basis of the victims average net monthly earnings for the six months immediately preceding the date of injury or on $1,000 per month, whichever is less. In this instance, Claimant demonstrated six months of earnings from his primary job as a fireman prior to the date of injury. The sum of $1,000 per month is the lesser amount to be used to calculate earnings loss for Claimant.

Claimant was injured on September 29, 1987, and was earning $2,703.50 per month as an employee of the Chicago Fire Department. He was on personal disability leave from his job for a period of 12 months following the incident and received his earnings in full from the fire department. Therefore, Claimant did not lose any earnings in the 12 months following the injury, except for what he might have earned in his second job as a stagehand. His Federal tax returns indicate that he earned $787 in 1987 and $2,369 in 1988 from his stagehand work. The only conclusion which can be drawn is that he had more earnings from his stagehand job in the calendar year after the incident. No tax return for 1989 was provided. There is insufficient documentation of his earnings from his stagehand work to warrant an award of loss of earnings.

Additionally, it is noted that the 1988 Federal tax return shows he received a $15,000 sum from a Nationwide Life Insurance policy.

On November 30, 1988, 14 months after the incident, the retirement board of Firemens Annuity and Benefit Fund of Chicago notified Claimant that he was granted ordinary disability benefits in the amount of $1,119.51 a month beginning September 28, 1988, and that he was removed from the Chicago Fire Department payroll effective September 29. The sum of $110 was to be deducted from his benefits for his health insurance premium.

On November 17, 1989, Claimant was notified by the board that he was found unfit for duty and his benefits would be continued for another year. A July 17, 1990, letter from the board indicates that Claimant would receive a monthly grant of $1,009.51 until January 17,1993.

Section 2(h) of the Act specifies that the loss of future earnings shall be reduced by any income from substitute work actually performed by the victim or by income he would have earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake.

Claimant testified that he has had some employment as a stagehand since the date of his injury. His grasp and strength of his left arm do not permit him to work as a stagehand like he did prior to the accident. There is no evidence of other efforts by Claimant in attempting to secure appropriate substitute work.

Claimants disability benefit does give him less income than his pay from the fire department. But, the claimed loss of future earnings because of his disability needs to be reduced by income earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake. See section 2(h) of the Act.

Claimant testified that he did some stagehand work after his injury; therefore, it was demonstrated that he was capable of performing some substitute work. He did not demonstrate that he was unable to perform additional substitute work. The finding of disability by the retirement board was that he was unfit for duty as a fireman. There were no findings or proof offered that Claimant is completely and permanently disabled and incapable of performing any work. Claimant has failed to establish that he experienced a loss of earnings making him eligible for an award, after the board granted him ordinary disability benefits effective September 29,1988.

We find that Claimants petition for loss of earnings and future earnings is hereby denied. Claimant unreasonably failed to undertake substitute work he was capable of performing, or to demonstrate that he was incapable of performing any work. Claimant did not provide evidence relating to his income in 1989; therefore, he has failed to demonstrate that any sum would be due him for 1989.

It is hereby ordered that Claimant be awarded the sum of $560.75 for medical expenses supported by the evidence. Should Claimant be able to verify additional medical expenses alleged, he may petition the Court for further consideration.

OPINION

JANN, J.

This cause comes before the Court on a rehearing of Claimant Ronald Mancini’s application for compensation pursuant to the Crime Victims Compensation Act (hereinafter the “Act”). (740 ILCS 45/1 et seq. (1992).) Claimants application sought compensation in the amount of the statutory maximum of $25,000 for injuries occurring as a result of a September 29, 1987, incident. The Court issued an opinion on November 19, 1993, finding that Claimant was a victim pursuant to the Act and ordering that Claimant be awarded the sum of $560.75 for certain medical expenses.

On December 14, 1993, Claimant filed a petition for rehearing. On March 30, 1994, the Court entered an order granting a rehearing to allow Claimant to supplement the record and give evidence regarding his continuing disability and inability to obtain substitute employment.

At the rehearing, Claimant appeared and testified. Claimant identified and verified that his income for 1989 was $3,023. He described the six stagehand job assignments he had in 1989. He performed more of a supervisory or management position than actual physical labor. He identified his 1991 Federal tax return. He verified five stagehand job assignments and that his income was $3,938. He identified his 1992 Federal tax return. He identified his 1993 Federal tax return, and verified his income as $10,326.

Claimant stated that after his injuries he was unable to perform the requirements of his job as a fireman for the City of Chicago. He returned to the Chicago Fire Department and attempted to regain his position, but was unable to, based upon his physical evaluation. He received extensive physical therapy from Baxter Clinical Health Rehabilitation Center. He estimates that his strength is 45 to 50 percent of what it was before the incident.

Claimant testified the injury has affected his ability to work as a stagehand because it requires a lot of strenuous work, including unloading and loading semis. His condition allows him to function as a manager for stagehand activities.

Claimant explained that he earned more as a stagehand in 1988 ($2,400-$2,500) than in 1987 ($800) because he was working as a fireman in 1987, and was not working as a fireman in 1988. In 1990 he did not have a job. He applied for many different positions with maintenance and lawn care but was unable to get a job. He constandy has pain associated with his injuries in his left elbow to his forefingers and in his three right fingers. His previous employment had been in physically demanding jobs. He had not received any specialized training in any types of occupations, other than to be a fireman or stagehand.

Claimant has applied at delivery services with cars, driving for trucking firms and delivery for maintenance and janitorial services. He has applied at restaurants for busboy positions, but it is difficult with only one functioning arm.

Claimant identified 12 additional exhibits offered into evidence at rehearing. On the exhibits, which relate to services performed on account of his injuries, Claimant stated:

a. S-5 is a $494 bill that he personally owes to Illinois Masonic Medical Center;

b. S-6 is a $39.51 bill he personally owes to Consultants in Neurology;

c. S-7 is a $109 bill he personally owes to Northwestern Medical Faculty Foundation;

d. S-8 is a $26 bill he personally owes to Drs. Branch, Statger, Forenz and Thornhill (although he testified he owed them $290);

e. S-9 is a $15.82 bill he personally owes to OLR Cardiology Services Limited;

f. S-10 is an $80 bill he personally owes to DeSilva Center;

g. S-l is an $899 bill he personally owes to Dr. DeBacher;

h. S-12 is a $108 bill he personally owes to Nuclear Medical Associates Limited;

i. S-13 is a $370.35 bill he personally owes to Northwestern Hospital Radiology Group;

j. S-14 is an $84.70 bill he personally owes to Northwestern Hospital;

k. S-15 is a $326.65 bill he personally owes to Northwestern Hospital;

l. S-16 is an $8.25 bill he personally owes to Resurrection Hospital; and

m. S-17 is a $2,448.90 bill he owes to Drs. Bell, Stromberg, Hanis, Nagel and Wideiy.

Exhibit numbers S-15 through S-17 were admitted into the record. Claimant identified exhibit number S-18 as copies of bills for cash expenditures made for medication which were admitted into the record.

Claimant testified in relation to Claimants group exhibit number 7 (admitted in the initial hearing), that Sharon Zoden was the signer of certain checks. She is his “ex.” At the time the checks were written he was living with her. Sonenberg was her married name, and Zoden was her maiden name. In relation to the checks with “Sonnenberg” in the memo portion, he stated that Ms. Sonnenberg did not receive any medical care from Surgical Associates in General Surgery (a check in the 300 series) and that the check was in regard to his bill. His testimony in relation to check number 194, check number 152, and check number 180 was consistent with his explanation of the one in the 300 series.

On cross-examination, Claimant acknowledged that 1993 was the only year his adjusted gross income was under $12,000. He is not currently working but is trying to get a landscaping job. He is still under the care of doctors. He did not file a civil suit as a result of the incident.

Claimant was receiving annuity benefits from the firemans fund until 1993. He has not received those benefits since 1993. On line 17-B of his 1989 tax return, $13,433 was reported from the firemans annuity. This is his pension. The approximate sums also appear on line 17-B of his 1991 and 1992 Federal tax returns. He received nearly $40,000 in pension payments. In the 1993 Federal tax return the sum of $578 appears because he exhausted the benefits available to him under his pension. He will not receive any retirement payments. He had not filed a 1994 Federal tax return at the time of rehearing.

The first year after the incident, Claimant received full pay from the fire department. Then the retirement board met and determined he was disabled. He began receiving $1,009.58 per month. The retirement board determined each year, through 1992, that Claimant was still unfit to perform the duties of a fireman.

Claimant received $5,000 of unemployment benefits in 1989. None of his medical or hospital creditors represented by exhibit numbers S-5 through S-17 have filed a lawsuit to collect the sums owed.

In relation to the payments made with checks wherein the word “Sonnenberg” was on tire memo portion of the check, no bills were provided which would show that services were provided to Claimant. Claimant was instructed that the record would remain open for 30 days after the rehearing and he could file any documents he desired.

Claimant believed that he would have received continuing disability payments and a pension if he had ten years on the fire department. Instead, he only had eight years and the retirement board refunded his pension contributions over three and one-half years. Claimant was granted leave to supplement the record with information from the Fireman’s Annuity and Benefit Fund. The Commissioner inquired whether there was any type of work that Claimant could do, i.e., working at a convenience store. It was also suggested that Claimant provide specific information on his efforts at finding a job, i.e., dates and names of companies.

Claimant applied for disability with the Social Security Administration and for supplemental social security but was denied.

On April 12, 1995, Claimant’s counsel provided a March 27, 1995 letter from the Retirement Board of the Firemans Annuity and Benefit Fund of Chicago, and an affidavit of Claimant, dated April 24, 1995, which stated his efforts to secure employment. The two documents were marked as exhibits and became part of the record. Claimant has not filed a brief.

The March 27, 1995 letter indicates that Claimant was employed by the Chicago Fire Department on February 18, 1980, and was so employed until September 29, 1988, at which time he went on ordinary disability in the amount of $1,199.51 per month through January 16, 1993, when his benefit expired. It states further that this benefit was not a deduction from future benefits nor was it deferred compensation. He was reinstated to the Chicago Fire Department on April 16, 1993, through June 1, 1993, which was his date of discharge. For pension purposes, accumulated service credits amount to 13 years and nine days. As of the date of the letter, Claimant had two options: collect a pension at age 50 in the monthly amount of $475 or take a refund of his contributions in the amount of $39,584.21.

The affidavit provided by Claimant listed 23 different companies where he made efforts toward seeking employment. No dates of when the efforts were made are stated in the affidavit.

FINDINGS

The record is inconsistent in relation to whether Claimant received disability payments or a return of his pension funds from 1989 through 1993. He testified that it was the return of his pension. However, the documents provided indicate that Claimant was receiving disability payments. In addition, he apparently received unemployment compensation in the sum of $5,000 in 1989, which was at the same time he was receiving disability payments. The State of Illinois may have a claim against him for a set-off in the amount of unemployment compensation received.

The purpose of the rehearing was to allow the Claimant to supplement the record on his continuing disability and inability to obtain substitute employment. Claimant has supplemented the record, however, we find that Claimant is not entitled to an award for loss of earnings or loss of future earnings. Claimant received his salary or disability payments from the Firemans Fund in excess of the $1,000 monthly maximum specified in the Act. Claimant applied for disability with the Social Security Administration and for supplemental social security but was denied benefits. More importantly, no expert evidence has ever been provided to indicate that Claimant is now physically unable to work. The purpose of the Act is not to provide relief for persons who are unable to find employment after suffering injuries, but is to compensate those persons who are unable to work because of injuries suffered from a violent crime. In this instance, Claimant has not demonstrated that he is unable to find work because of his injuries.

In relation to compensation for medical and hospital expenses, the Courts prior award of $560.75 shall stand. Although the purpose of the rehearing was for consideration of continuing disability and inability to find work, Claimant supplemented the record with 13 different bills/statements from medical and health providers indicating that he still personally owes money. This evidence was not provided in the initial hearing. Exhibit number S-17 indicates that the provider wrote off the amounts owed as a bad debt. All of the other bills/statements are dated six or seven years prior to the hearing date. Although Claimant testified that he still owes those sums, he did not provide any independent evidence that the providers are still seeking payment.

Based upon the evidence provided at the rehearing and documents supplementing the record, the Courts award of $560.75 shall stand and Claimants requests for additional compensation are hereby denied.


author: JANN, J. Jann, J.

text:
    (No. 90-CV-0329
    Rhonda Lee a/k/a Rhonda Colina, as Guardian of the Persons and Estates of Amanda Colina, Angel Colina, and Vicenta Colina, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1995.

      Order filed August 31, 1995.

    Northwestern Univ. Legal Clinic (Thomas F. Geraghty, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This action is the second hearing of a consolidated claim encompassing three separate claims originally identified by 91-CV-0028, 91-CV-0130 and the above number. All relate to claims for compensation under the Illinois Crime Victims Compensation Act (740 ILCS 45/1 et seq.), and arise from the murder of Armando M. Colina (“Armando”) on August 14, 1989. The original claim brought on her own behalf by Rhonda Lee (“Rhonda”), the live-in companion of the victim and the mother of his three children, was denied because the parties were never married.

This second claim is brought on behalf of the minor children fathered by the victim and currently under the care of their mother, Rhonda Lee, and asks for compensation based upon the loss of the three childrens fathers financial support.

The key question is whether, as required by the statute, the victim, Armando Colina, supported his children in the six months prior to his death.

At hearing, testimony was given by Glenn Reitsma (“Reitsma”), stepfather of Rhonda Lee and stepgrandfather to the Claimant children. Reitsma and Rhondas mother shared an apartment with Rhonda and Armando for a time in 1988 and Reitsma testified that Armando paid him in cash for their share of the rent. Reitsma also got a job for Armando at his place of employment. The work was apparently sporadic, as Armandos total earnings for 1988 were less than $4,800. There is no direct evidence of any earnings in 1989, the subject period.

Irene Anthony (“Irene”), who worked as a babysitter for Armando and Rhonda between 1988 and 1989, testified concerning the fact that Armando always paid her in cash, usually on a daily basis, in an amount between $70 and $80 per day, four or five days per week. Irene worked on an as-needed basis and made approximately $600 to $700 per month.

The final witness was Rhonda Lee who testified that Armando earned about $1,200 per month after taxes and that he gave her $250 every two weeks to run the house. Rhonda claimed that after the work at her stepfathers company ran out, Armando worked for a now-defunct company that rehabbed old refrigerators, “Gonzalo Used Refrigeration,” which brought in a net take-home of $300 per week. Claimant’s brief maintains that wage and tax statements for 1989 are not available but does not state whether “Gonzalo Used Refrigeration” filed any wage or tax statements with the Federal government or State of Illinois. Claimant wrongfully asserts that Armando worked for Data East Pinball during the six months prior to his murder and wrongfully ascribes to him both full-time work and the title of project manager. Mr. Reitsma was a project engineer at Data East; Armandos work at Data East does not add up to 12 weeks work during the whole of 1988. There is no evidence that Armando performed any work at Data East during the statutory period. Further, the argument over the W-4 is disingenuous: Armando claimed multiple dependents on his W-4 to avoid having any taxes taken out; at the time of filing his return, he could regain all taxes withheld without claiming any deductions, as his personal exemption was greater than the minimal amount he had earned during 1988.

What appears from the record is that Armando Colina apparently had some sources of money which were not a part of anyone’s formal records. Claimants will argue that the source of the funds which Armando used to support his family is irrelevant, and that the only relevant issue is how his children will get along without such financial contribution.

Nevertheless, the record presented before us is a murky one. According to this record, Rhonda and Armando met in 1984. Rhonda had a baby in 1985, Robert Vasquez, whose father is not Armando. Armando and Rhonda continued to keep company and Amanda was bom to them in 1987. In 1988, Armando and Rhonda signed a lease with Rhondas parents for the apartment on Howard Street. Reitsma got Armando a job at his company but Armando didn’t earn $4,800 there during the year. This is the year before Rhonda claimed that work got slow and that Armando was laid-off. Six months after moving in, the arrangement ended (Irene refers to Reitsma as “the man that left.”) Rhonda testified that the “family” then moved to an apartment on Argyle Avenue. In fact, the birth certificate of Angel Colina, bom 12/28/88 shows an address of 839 West Sheridan Road. Later in her testimony, Rhonda stated that they moved into the Argyle address in late February or early March of 1989. No explanation for the termination of the Howard lease, nor the subsequent move from Sheridan after a few months is detailed in the record. However, Reitsma testified, "I believe [Armando] tried to [support his children] but I don’t really know how well he succeeded.” Reitsma further testified that he was “concerned about [the grandchildren’s] welfare.”

Throughout this time, Armando, with 1988 gross income on the record of about $400 per month, was paying $500 to his wife for incidentals; $300 to his in-laws for rent (later $425 for rent at the Argyle address); $700 to $800 to Irene Reynolds for baby-sitting because Armando “might be” out working for eight to ten hours. (Irene stated “he must be working because he paid me”); buying groceries, snacks, toys, and junk food for the children; taking days off whenever he felt like it, also according to the testimony of Irene Reynolds; “he used to buy new furniture like snapping the fingers” (testimony of Irene Reynolds); in the two weeks prior to his death, Armando, with no known source of income, paid over $3,000 cash to Allied Furniture, Central Furniture, Nelson Brothers and Highland Superstore for furniture and stereo equipment. Shirlee Garcia of Travelers Aid states by affidavit that she saw Armando almost every day during the last four months of his life, although he was supposedly at work.

Looking at all the evidence, there is nothing on the record which indicates that the victim engaged in any type of lawful employment during the period for which financial responsibility had to be proven, outside of the nebulous assertions that some type of refrigerator repair business no longer extant was paying him and apparently not reporting such wages. Claimant Rhonda Lee testified that she had contacted the owner, Gonzalo, of Gonzalo Used Refrigeration in conjunction with filing this cause of action. Ms. Lee stated she was unable to adequately explain the proceedings to Mr. Gonzalo as he spoke Spanish and she was unable to make herself understood. No further attempt to verify the victims wages and his exact period of employment at Gonzalo is set forth in the record.

Claimant’s brief relies upon In re Application of Michael DeBartolo (1984), 36 Ill. Ct. Cl. 442, for the proposition that in a compensation case for loss of support, “dependency must be proved by a preponderance of the evidence,” which is one that “is more probably true than not.” However in DeBartolo, the decedent’s employer/partner and work release records provided some evidence to support a finding of employment. We have also found that failure to substantiate earnings through applicable tax returns results in a finding that Claimant has failed to meet the burden of proof. (In re Application of Jeanette M. Crissie (1992), 44 Ill. Ct. Cl. 443.) In Crissie we further held that “copies of paid utility bills prove only that they were paid, but do not prove income or earnings of the victim.” See Crissie, at 448.

The record before us is most analogous to Crissie, supra. The numerous offerings of hearsay evidence as to decedents income do not support a finding of lawful income for the six months preceding his death.

We hereby find Claimants have failed to sustain their burden of proof that decedent provided support to his children during the six months prior to his death. This claim is hereby denied.

ORDER

Jann, J.

This cause comes on to be heard on Claimants’ petition for rehearing. The Court has carefully considered the record in this cause and finds Claimants’ petition for rehearing is hereby denied. Claimants have failed to meet their burden of proof as to decedent’s employment in the six months prior to his death.


author: Montana, C.J. Frederick, J.

text:
    (No. 90-CV-0953

      In re Application of Bernestine Richardson

      Order filed May 8, 1990.

      Opinion filed April 15, 1996.

    Bernestine Richardson, pro se, for Claimant.
    Jim Ryan, Attorney General (James Maher, III and Charles Davis, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause coming on to be heard on the petition of B. Richardson for an extension of time to file documents to claim benefits under the Crime Victims Compensation Act, 740 ILCS 45/1 et seq. (hereinafter referred to as the Act); the Court hereby finds:

1. Section 6.1 of the Act provides in pertinent part that a person is entitled to compensation under the Act if:

“(a) within 6 months of the occurrence of the crime he files a notice of intent to file a claim with the Attorney General and within one year of the occurrence of the crime upon which the claim is based, he files an application, under oath with the Court of Claims * * *. Upon good cause shown, the Court of Claims may extend the time for filing the notice of intent to file a claim and application for a period not exceeding one year * “

2. The crime was alleged to have occurred on October 12,1987;

3. The notice of intent was filed January 16, 1990;

4. The application was tendered on January 16,1990;

5. The petition at bar was filed on January 16,1990;

6. Pursuant to the section of the Act quoted above we have authority only to extend the filing time for a period not to exceed one year;

7. We are therefore unfortunately constrained by operation of law to deny this petition.

Wherefore, it is hereby ordered that this petition be, and hereby is, unfortunately denied.

OPINION

Frederick, J.

This cause comes before the Court on the petition of Bemestine Richardson for an extension of time to file her claim for benefits under the Crime Victims Compensation Act. On May 8, 1990, the Court entered an order denying the Claimant’s petition finding that Petitioner was time-barred by the statute of limitations. The time period for extensions of time for filing the claim had passed the extension period of one year allowed by section 6.1 of the Crime Victims Compensation Act as it appeared on the date of the crime.

The Act stated: A person is entitled to compensation under the Act if:

"(a) within 6 months of the occurrence of the crime he files a notice of intent to file a claim with the Attorney General and within one year of the occurrence of the crime upon which the claim is based, he files an application, under oath with the Court of Claims * * *. Upon good cause shown, the Court of Claims may extend the time for filing the notice of intent to file a claim and application for a period not exceeding one year.” Ill. Rev. Stat. 1987, ch. 70, par. 76.1.

The Court based its denial on the facts that the crime was alleged to have occurred on October 12, 1987; the notice of intent was filed on January 16, 1990; the application was tendered on January 16, 1990; and the petition at bar was filed on January 16, 1990. On May 17, 1990, the Claimant requested a hearing to review the Court’s decision.

On November 7, 1991, a hearing was held before Commissioner Michael E. Fryzel. The Claimant appeared and testified at the hearing, as did her aunt, Martha Yaney. The Claimant and her aunt were both credible witnesses and indicated they relied on a funeral director who handled the funeral of the alleged victim, the Claimants husband. The Claimant claims that she was repeatedly told by the funeral director that he filed the appropriate form for her to receive compensation under the Act. A letter from the funeral director, admitted into evidence, stated that “every form that was sent to (the) funeral home ” # * was sent back re: Carl Richardson.”

There does exist some confusion as to what type of forms the funeral director said he would file, what type of forms he was sent, and what the Claimant believed was being done on her behalf. Certainly the occurrence of a crime in which your spouse is killed could lead to confusion and trauma for the surviving spouse.

It appears in this case that the Claimant believed the appropriate forms for compensation under the Act had been filed for her. She testified, and her aunt corroborated the testimony, that efforts to follow up with the funeral director on the status of any filing always led to assurances that everything necessary had been done. Only when the Claimant began to make further calls to follow up with someone other than the funeral director, did she realize that something was wrong.

At the time of the crime in this case, the maximum period allowed to file, with an extension, was 18 months. Under the amended Act in effect presently, that time period has been extended to 24 months. The time elapsed in the case at bar between the commission of the crime and the filing of the application was 27 months.

The Crime Victims Compensation Act is a secondary source of recovery. (In re Application of George (1993), 45 Ill. Ct. Cl. 483.) The Act is statutory and the Court has construed the limitation provisions strictly. (In re Application of Hutcherson (1985), 37 Ill. Ct. Cl. 491.) Claimants reliance on the funeral directors assertions is not a recognizable exception to the filing time limitations.

The Court has denied petitions to extend time where the Claimant alleged an Assistant Attorney General told Claimant not to file the application until a workman’s compensation claim was completed and where the Claimant argued the police and hospitals did not give the Claimant information about the Act as required. (In re Application of Geraghty (1989), 42 Ill. Ct. Cl. 388; In re Application of Schenk (1991), 43 Ill. Ct. Cl. 437.) While we are sympathetic to the Claimant herein, we have no lawful authority to expand the statute of limitations for the filing of the application.

For the foregoing reasons, it is therefore the order of this Court that Claimant’s petition for an extension of time to file her claim for benefits under the Crime Victims Compensation Act is denied.


author: JANN, J.

text:
    (No. 92-CV-1015

      In re Application of Gregorio Lopez, Jr.

      Opinion filed May 17, 1996.

    John B. Mix, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause comes on to be heard on Petitioners motion to waive lien, due notice having been given and the Court being fully advised in the premises finds:

1. Petitioner was awarded the sum of $4,903.12 for medical expenses and lost earnings by order of the Court on July 7,1993.

2. Petitioner filed suit in the Circuit Court of Cook County styled Gregorio Lopez, Jr. v. Michael A. Salem, et al., cause no. 91 L 11031 under the Dram Shop Act seeking damages arising from the same incident underlying his petition in the Court of Claims.

3. Petitioners cause in circuit court was set for mandatory arbitration. The panel of arbitrators found against Petitioner.

4. Petitioner instructed his attorney to file a renunciation of the arbitrators findings and paid $200 to have the cause reinstated for a jury trial.

5. Prior to trial, Petitioner accepted a settlement in the sum of $7,500.

6. Petitioner agreed to a contingent fee agreement with his attorney in the amount of one-third of the proceeds from any settlement or judgment. Additional costs in the amount of $822.50 were incurred in pursuance of the lawsuit in circuit court.

7. Petitioner’s net recovery from the lawsuit is $4,177.50. As his net proceeds from the settlement were less than the award herein ($4,903.12), Petitioner seeks waiver of the statutory hen of the State of Illinois created by section 17(c) of the Act. (740 ILCS 45717(c).) Section 10.1(g) of the Act states that “compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under the Criminal Victim’s Escrow Account Act or any governmental or medical or health insurance programs, including * # * life, health, accident, or liability insurance.” 740 ILCS 45/10.1(g).

The Act further states “where compensation is awarded under this Act and the person receiving same also receives any sum required to be, and that has not been deducted under Section 10.1, he shall refund to the State the amount of the compensation paid to him which would have been deducted at the time the award was made.” 740 ILCS 45717(d).

As recently held in In re Application of Cherrington (1994), 46 Ill. Ct. Cl. 615 (also a dram shop case), “Under the law # * crime victim’s compensation is a secondary source of compensation available only after having exhausted all other sources of payment, such as insurance, and the repayment of crime victim’s compensation is mandatory if amounts which have been recently recovered would have been deducted when computing the original award, had these amounts then been available.” (Emphasis added.) The dram shop award herein would have been deducted from Petitioners award had it been received prior to the award under the Act.

As previously stated, Petitioners net award from the circuit court case was less than the award granted under the Act. A similar situation was recently addressed by the Court in In re Application of Shook (1994), 46 Ill. Ct. Cl. 619 which held:

"The Act speaks of monies received by the Claimant. (740ILCS 45/17d.) We find that expenses, including attorneys fees, may be deducted from the amount returnable to the State under the Hen, as the Claimant receives only the net amount. The reasoning is that without such expenses, no recovery would be made.”

We hereby order that the net amount of the dram shop award in the amount of $4,177.50 be returned to the State as per section 17 of the Act.


author: Frederick, J.

text:
    (No. 92-CV-1105

      In re Application of Elitha Butler

      Opinion filed November 1, 1995.

    Elitha Butler, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, Elitha Butler, was the mother of Michael Butler who was struck by an auto driven by John Daniel on September 13, 1990, near 13346 South Indiana, Chicago, Illinois. Police investigation showed that the victim was hit as he was walking along the street. The victim died on September 15, 1990. The driver fled the scene but was later issued tickets for failure to exercise due care on the roadway and operation of an uninsured vehicle. Police found no evidence of alcohol or illegal drug use by the driver. After being granted an extension of time to file a claim, on December 2, 1991, Elitha Butler filed a claim for reimbursement of funeral expenses totaling $2,855.52. On September 18,1992, the Court denied the claim holding that the investigation showed the driver was not under the influence of intoxicating liquor or narcotic drugs. Thus the accident was an unintentional motor vehicle offense and not covered as a “crime of violence” under the Crime Victims Compensation Act. The Claimant asked for a review of the decision. A hearing was held before Commissioner Michael E. Fryzel on April 8,1994.

At the trial, Claimant testified a bus driver who saw the accident said “something wrong with him,” referring to the driver of the vehicle. She further testified, “He look like he been drinking or something else. I don’t know. Drugs or what, but I know the man — he was walking all over the street.” Joseph Cole, who witnessed the accident, testified he saw the driver get out of the car and walk up to the victim. Mr. Cole was sitting back drinking beer when he saw the accident. He got up and started running towards the street because he knew the victim. He didn’t know if the driver was scared of them but he started walking toward the car. The man got in the car and locked the door. They tried to open the car door. The driver then made a u-tum and took off. A couple of people with Mr. Cole starting throwing their beer cans at him and he pulled off. Mr. Cole did not talk to the police when they arrived. Mr. Cole testified in regard to the driver, “Well, looking at his face expression, he was under the influence of drinking. He had been drinking.”

There is no question that the death of Michael Butler is a tragedy. We are very sympathetic toward the Claimant and understand her grief. However, this is a claim pursuant to the Crime Victims Compensation Act. This is not a criminal prosecution and/or a State civil claim against the driver and the Courts decision in this claim has nothing to do with whether the victim died in vain or not. Compensation under the Crime Victims Compensation Act is a secondary source of compensation. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) The burden of proof in a crime victims compensation case is on the Claimant to prove by a preponderance of the evidence that the Claimant meets all requirements for eligibility. In re Application of DeBartolo (1984), 36 Ill. Ct. Cl. 442.

In the present case, the Court has scrupulously examined the investigatory report and the transcript of the trial. We find that Claimant has failed to prove by a preponderance of the evidence that Claimant s decedent was the victim of a crime of violence as defined in section 72(c) of the Act. The only covered offenses involving motor vehicles are reckless homicide and DUI. A hit-and-run accident not involving reckless homicide or DUI is not covered by the Act. (In re Application of Wilcox (1988), 41 Ill. Ct. Cl. 339; In re Application of Ceniceros (1995), 48 Ill. Ct. Cl. 653.) The evidence presented at trial, which is the only evidence the Court is considering, falls far short of a preponderance of the evidence that the decedent was a victim of a reckless homicide or DUI. The testimony which we have quoted is conclusory and without proper foundation. These findings in no way impugn the victim or the Claimant. We would like nothing more than to make an award. However, based on the evidence before us, we cannot do so. For the foregoing reasons, this claim is denied.


text:
    (No. 92-CV-2094

      In re Application of Jane Doe

      Opinion filed May 15, 1996.

    Jane Doe, pro se, for Claimant.
    Jim Ryan, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   OPINION

JANN, J.

This cause is brought before the Court by Jane Doe on behalf of her minor daughter, Joan. Jane seeks reimbursement of medical and counseling bills incurred on behalf of her minor daughter as a result of alleged sexual assaults by the child’s father. In an order dated March 26, 1993, the Court denied Claimant’s application based upon a lack of evidence that a violent crime as defined by the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), was committed against the victim.

Claimant requested rehearing in a timely manner and hearing was held before Commissioner Turner on October 1,1993.

Claimant appeared pro se and presented evidence to the Court. The facts as presented in the hearing transcript are as follows:

Claimant and her husband, John Doe, were divorced on April 19, 1989. Mrs. Doe was given custody of Joan and her two minor brothers. The children are triplets bom on September 23, 1984. The divorce settlement provided that Mr. Doe was to have visitation with the children so long as visitation was supervised by Mrs. Doe or another adult approved by Mrs. Doe.

In the early months of 1992, Joan and her brothers were enrolled in the Life Span Program. Life Span is a domestic violence agency which provides counseling for young children. The children were enrolled in the program by their mother to help them deal with their fathers alcoholism and erratic behavior. Lynn James, a childrens counselor with Life Span testified as to the events she observed at Life Span. At the beginning of every Life Span meeting the participants were required to sign their names on an attendance sheet. Ms. James and the other counselors notice that, although there was no child named Susan registered for the program, the name Susan continued to appear on the sign-in sheet over a period of several weeks. On February 4, 1992, the counselors figured out that "Susan” was Joan Doe. Ms. James asked Joan who Susan was. Joan told Ms. James that Susan was her friend. Joan was asked if Susan had family problems. Joan told Ms. James that “her father does things to her that scare her.” Ms. James advised Mrs. Doe of this conversation. Mrs. Doe assured Ms. James that Joan had no friends or neighbors named Susan.

Two days later, Ms. James again spoke to Joan about “Susan.” Joan said Susan was very scared because Susans father touched her. Joan proceeded to relate incidents of Susans father touching her “private parts” when she was in the shower and in her fathers bedroom. The child reverted to present tense in describing several of these incidents. Joan drew a picture of Susan for Ms. James which physically matched Joan’s appearance. Joan asked her mother to call Ms. James after her next visitation with her father. She told Ms. James “I saw Susan today and Susan’s father hurt her today.” Ms. James believed that Susan was really Joan and that the seven-year-old had been molested by her father. Susan/Joan had also shown where she had been touched via drawings.

Ms. James contacted DCFS which sent a caseworker to Mrs. Doe’s home on February 9, 1992. Joan refused to acknowledge that she had been molested by her father during this interview. A medical exam later that evening proved inconclusive as to signs of penetration. Ms. James stated that Joan had never discussed an incident of full penetration which would be consistent with the physical examination findings. Additionally, Joan told Ms. James she thought going to the hospital was a good idea as she might be “contagious.” Joan subsequently told Ms. James that she had told her father about her conversation with Ms. James and that he had stopped hurting her and she (Joan) didn’t want to talk about it anymore.

Joan was given another physical examination on February 27, 1992, and another interview at Columbus Hospital. Again, the results were inconclusive and Claimant was advised that her former husband could not be prosecuted if Joan refused to specifically admit that her father had molested her. It is the opinion of Ms. James that Joan was molested.

Ms. James suggested that Joan would benefit from additional therapy. Mrs. Doe engaged Dr. Susan Babb, a licensed clinical psychologist. Dr. Babb specializes in working with early childhood disorders and adolescents. Although she does not specialize in child sexual abuse, she testified that she has had extensive experience in that area of practice.

Joan began seeing Dr. Babb on March 9, 1992, and was continuing to see her as of the date of hearing. Dr. Babb testified that Joan continued to deny that she was molested when asked directly. However, Joan has also been consistent in providing indirect evidence which Dr. Babb found “compelling” that she was molested by her father, beginning at approximately age three. Joan was also consistent in her therapy with Dr. Babb in lapsing into the first person when relating “Susans” history of molestation. However, she was fiercely protective of her family as a cohesive unit and unable to directly accuse her father of molestation. Dr. Babb also felt that Joan was seeking approval from her father and felt she had failed him in some way due to his lack of attentiveness. Joan had continued to be an excellent student but had what Dr. Babb described as anxiety-related problems at home. Joan also made drawings which identified the areas which were touched by “Susans” father. These drawings were consistent with those Joan made for Ms. James and indicated the child had been touched in a sexually explicit manner with her fathers penis on her mouth, anus and vagina.

On cross-examination, Dr. Babb stated that in her professional opinion, Joan had been molested but was unable to verbalize the incidents directiy due to her age and the trauma these events had wrought.

Dr. Babb also reviewed a psychological evaluation by Dr. Lynne H. Shebon, Ph.D. Dr. Shebon tested Joan on Dr. Babb’s recommendation. Dr. Shebons report was made part of the record. Dr. Shebons report did not indicate a finding of sexual abuse. However, she made findings similar to those of Dr. Babb with regard to Joan’s anxiety over the divorce and her father’s unavailability. It was also noted that Joan felt she was in some way to blame for the break-up of her family. Dr. Shebon recommends that “continued inquiry into the nature of possible threats to Joan’s sense of safety is urged.”

The State presented no testimony at hearing.

Claimant has provided no direct evidence of physical sexual abuse which would constitute a crime under the Act. The young victim has never directly accused her father of the alleged acts. We cannot assume the alleged crime occurred based upon the evidence available herein.

We note that the allegations herein are of a most serious and heinous nature. If the young victim is able to provide more information as to tire alleged assaults resulting in charges against the perpetrator at some later date, she may refile this action any time before she reaches the age of majority.

Claimant has failed to prove that a violent crime as defined by the Act has occurred. This claim does not meet a required condition precedent under the Act.

It is hereby ordered that this claim be, and hereby is denied.


text:
    (No. 93-CV-1133

      In re Application of James Patterson and Willie J. Patterson

      Opinion filed December 27, 1995.

    James Patterson and Willie J. Patterson, pro se, for Claimants.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

These claims are before the Court on two different crime victims compensation applications seeking compensation pursuant to the Crime Victims Compensation Act (hereinafter the “Act”). (740 ILCS 45/1, et seq. (1992).) Claimant, James Patterson, brother of the deceased victim, sought funeral and burial expenses arising out of the death of the victim on August 17, 1992. Claimant, Willie J. Patterson, son of the deceased victim, is also seeking funeral and burial expenses.

On May 13, 1994, the Court, in reliance upon the investigatory report by the Attorney General s office, issued an opinion awarding the sum of $500 to James Patterson and the sum of $2,500 to James Patterson and Wallace Broadview Funeral Home. The opinion included findings that James Patterson had paid the sum of $500 of the funeral and burial expenses and still owed the sum of $3,339 to Wallace Broadview Funeral Home. The Court denied an award to Willie J. Patterson, finding that he did not incur a compensable loss under the Act.

On June 13, 1994, Willie J. Patterson filed a request to review the opinion. His written request indicated that he had proof of payment to Wallace Westend Funeral Home by the Laborers’ Retirement Board Employees’ Annuity and Benefit Fund of Chicago. A hearing was scheduled for October 14, 1994, before the Commissioner at which time James Patterson appeared. James Patterson was not seeking a review of the opinion. Claimant, Willie J. Patterson, did not appear and therefore, the hearing was continued.

The continued hearing was conducted on April 27, 1995, at which time Willie J. Patterson appeared and testified. Willie J. Patterson presented a photocopy of the front and back of a check dated December 23, 1992, to Wallace Westend Funeral Home as Claimants exhibit 1. The check was drawn on an account in the name of the Laborers’ Annuity and Benefit Fund. The copy of the reverse of the check indicated that it was endorsed by the funeral home and deposited in its own account. The second page of Claimant’s exhibit 1 was a copy of the form entitled, “Refund to Heirs,” which was signed by Willie J. Patterson on November 13,1992. The form specified that the Laborers’ and Retirement Board Employees’ Annuity and Benefit Fund of Chicago (hereinafter the “Fund”) was requested and authorized to make payment to Wallace Westend Funeral Home and the balance of any sums remaining were to be paid to Willie J. Patterson.

At the April hearing, Willie J. Patterson was not sure whether the funds were death benefits, retirement benefits or deferred compensation. He presented a letter addressed to him from the Fund indicating that the Fund granted a refund to the account of the deceased victim in the amount of $40,224.22. The letter also indicated that the sum of $3,839 was going to be deducted and paid to the funeral home. It appears that this payment is not a death benefit but part of the retirement refund.

The Respondent indicated that the funeral home may have been paid twice, once by the Fund and also by the State. The funeral home signed an affidavit indicating payment from James Patterson. According to Willie J. Patterson, James Patterson was with him on November 13, 1992, when he signed the “Refund to Heirs” form and was aware that the sum stated would be paid to the funeral home.

A second continued hearing was held on July 30, 1995. The order setting the hearing was mailed to both Claimants. At the July hearing, Willie J. Patterson appeared. James Patterson did not appear. Mr. Vernon Wallace, the owner of Wallace Westend Funeral Home, appeared pursuant to subpoena by the Attorney General’s office. Willie J. Patterson testified that James Patterson was not a beneficiary of the Fund. James Patterson filed the crime victims compensation application before he knew anything about it. He received a bill from Wallace Funeral Home for $3,839.

Mr. Wallace testified that he received the $3,839 from the Fund and received the $2,500 from the State. He agreed that the funeral home was paid twice. He stated that his records indicated that he refunded the $2,500 paid by the State to James Patterson. He also beheves he saw Willie J. Patterson in his office. He believes James Patterson indicated that the money should be reimbursed to him because he, James Patterson, forwarded the Funds payment to the funeral home. Mr. Wallace did not recall whether the $2,500 check from the State was co-payable to James Patterson and the funeral home. He did not recall whether James Patterson specifically requested a refund. It is his normal procedure to refund automatically when he receives an overpayment. Mr. Wallace indicated that he would provide copies of his records within one day of the hearing. However, no records have been received from Mr. Wallace.

On July 20, 1995, Respondent sent a letter to James Patterson asking him to contact the Attorney General s office. On August 24, 1995, the Respondent sent a letter to the Commissioner which indicated that Todd Magee, nephew of James Patterson, requested, via a telephone conversation, another date so that testimony could be presented that Willie J. Patterson was not telling the truth. On August 29, 1995, the Commissioner had a telephone conference with the Respondent and confirmed that the Attorney General s office had not received documents from Mr. Wallace.

Subsequent to the July hearing, the Court received copies of the two State warrants, together with copies of the reverse sides showing the endorsements. Exhibit number 2 is a copy of warrant number 9614231, dated May 26, 1994, payable in the sum of $2,500 made co-payable to Patterson, James & Wallace Broadview Funeral Home. The reverse side indicates that both James Patterson and Vernon Wallace endorsed the check and it was apparently deposited in the funeral homes account on approximately June 14, 1994. The endorsements and deposit took place approximately 18 months after Wallace Westend Funeral Home received payment from the Fund. (Emphasis added.) Exhibit number 3 is a $500 warrant, dated May 26, 1994, and is payable to James Patterson. It was apparently endorsed and cashed by James Patterson on June 1, 1994.

Based on the evidence, the Court finds that Willie J. Patterson directed the Laborers’ Annuity and Benefit Fund to pay $3,839 to Wallace Westend Funeral Home for the funeral and burial of the deceased victim. The Fund paid the sum requested to the funeral home. Section 10.1(c) of the Act allows a relative of the deceased victim to seek compensation for funeral expenses which he has paid or is obligated to pay. Section 10.1(e) provides that an award shall be reduced by the amount of benefits, payments or awards listed in section 7.1(a)(7) of the Act. Clause (j) of subsection (a)(7) requires the listing of “any other source.” The payment from the Fund falls into the “other source” category.

Section 10.1(e) expressly excepts from the reduction requirement:

“* ° * annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000 of life insurance that would inure to the benefit of the applicant 6 e

The Court further finds that the $40,224.22, and particularly the portion thereof used for funeral expenses, was a benefit, award or payment from “other sources” and reduced the funeral expenses paid by Willie J. Patterson, and therefore, Claimant, Willie J. Patterson, is not entided to any compensation under the Act.

The Act specifically provides that benefits, payments or awards payable from pension plans do not reduce an award pursuant to the Act except when such payments are payable to “dependents” of the victim. Willie J. Patterson has not shown that he was dependent on the deceased victim. The use of the words “pension plans” in the reduction exception indicates that the General Assembly intended to exempt payments from pension plans only when received by dependents. It is reasonable to conclude that the General Assembly, therefore, intended for payments from pension plans to be included as “other sources” and reduce awards when received by non-dependents. Therefore, the exception cannot apply to the receipt of funds by Willie J. Patterson and any award should be reduced by the full amount paid by the Fund.

In relation to James Patterson, there is nothing in the record to indicate that he did not advance $500 for the funeral expenses. The $500 payment was made prior to the $3,839 payment by the Fund. There is nothing in the record that indicates James Patterson was obligated to pay the additional $3,339 in funeral expenses. The issue becomes more complex by virtue of the awards made and warrants delivered to James Patterson and the funeral home in May of 1994, some 18 months after the date of the Funds payment of all funeral expenses. Additionally, James Patterson and Mr. Wallace endorsed and cashed their warrants. It appears that either Mr. Wallace, or James Patterson, knowingly received $2,500 from the State that should have been returned to the State.

The Court strongly recommends that the Attorney General investigate and prosecute the individuals responsible for the knowing receipt or conversion of State warrant number 9614231 in the sum of $2,500.

The Crime Victims Compensation Act is a secondary source of compensation. In this case, the entire funeral bill was paid by another source. Claimant, Willie J. Patterson, has failed to prove by a preponderance of the evidence that he is entitled to compensation.

For the foregoing reasons, it is hereby ordered:

A. That the claim of Claimant, Willie J. Patterson, is denied.

B. That the Attorney General shall be notified of this opinion.

C. That the Court strongly recommends that the Attorney General investigate and prosecute the individual or individuals responsible for the knowing receipt or conversion of State warrant number 9614231 in the sum of $2,500.


author: Mitchell, J.

text:
    (No. 93-CV-1167

      In re Application of Gerald L. Sivels, Marjorie Sivels Barnes, and Cindie Hudgens

      Order filed December 8, 1995.

    Gerald L. Sivels, Marjorie Sivels Barnes, and Cindie Hudgens, pro se, for Claimants.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

On September 19, 1992, Maurice Sivels was a victim of first degree murder. Gerald L. Sivels, brother of the deceased victim, Cindie Hudgens, mother of Alexis Laurice Hudgens, minor child of the victim, and Marjorie Sivels Barnes, wife of the deceased victim, brought this action seeking compensation pursuant to the Crime Victims Compensation Act, hereinafter referred to as the Act. 740 ILCS 45/1 etseq.

On November 16, 1993, following a review of the investigatoiy report, this Court found that Claimant, Gerald Sivels, had paid funeral expenses in the amount of $2,767.31.

The Court found that Claimant, Cindie Hudgens, had failed to substantiate that the deceased victim was making child support payments in the six months prior to the incident. The Court held that her application for compensation was denied.

The Court further held that Claimant, Marjorie Sivels Barnes, was entitled to loss of support. The Court determined that the victims average net monthly earnings were $779.90 and his projected life expectancy was 74.2 years. The victim was 39 years old at the time of his death; therefore, the projected loss of support for 35.2 years was calculated at $329,429.76.

Since the pecuniary loss of Claimants Gerald Sivels and Marjorie Sivels Barnes exceeded the $25,000 maximum allowed by statute, the Claimants’ awards were prorated in accordance with the percentage of net loss.

A total award was made to Gerald Sivels in the amount of $200 and to Marjorie Sivels Barnes in the amount of $24,800.

On December 3, 1993, Claimant, Cindie Hudgens, filed a request for the Court’s consideration of her claim.

Claimant, Cindie Hudgens, appeared at a hearing on February 16, 1995, and produced a State of Illinois birth certificate for the minor child, Alexis Hudgens, which did not name the child’s father.

Illinois Department of Public Aid records indicate that the deceased victim, Maurice Sivels, was required by court order to pay support in the amount of $54 biweekly for the benefit of Alexis Hudgens. The effective date of the order was October 8,1991.

Claimant established that the deceased victim was employed at Julian Electric, Inc. in the six months prior to the incident. However, in a letter dated November 16, 1994, the employer denied having made any child support deductions from the victim’s paycheck.

Claimant did not offer any other evidence to support her position that the deceased victim was contributing to the minor child’s support.

Section 72(f) of the Act provides that where Claimant is seeking loss of support for the deceased’s minor child, the amount shall be based on the amount of support the child received pursuant to the judgment for the six months prior to the victim’s death.

The Court has consistently held “that mere entitlement to support is not dependency under the act.” Reynolds v. State (1992), 45 Ill. Ct. Cl. 525, 535; In re Application of Smith (1976), 31 Ill. Ct. Cl. 675, 679.

Dependency cannot be found in a case where Claimant fails to produce evidence that the deceased victim was actually contributing to a persons support. The legislature intended to compensate persons who experienced out-of-pocket loss. Reynolds, supra, at 536; Smith, supra, at 679.

In this case, Claimant has established that there was an order for the deceased victim to pay support for the benefit of his daughter. Claimant further produced evidence that the victim was working in the six months prior to the date of the incident. However, there is no evidence that the deceased was contributing to the support of the minor child during the six months prior to his death.

For the purposes of the Act, the Claimants minor child was not a dependent of the deceased victim and, therefore, her request for compensation for loss of support must be denied.


author: Sommer, C.J.

text:
    (No. 93-CV-1727

      In re Application of Maria Bueno and Emely Delgado

      Opinion filed December 27, 1995.

    Maria Bueno, pro se, and Legal Assistance Foundation of Chicago (Devereux Bowly, of counsel), for Claimants.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim comes before the Court on two different crime victims compensation applications. The Claimant, Maria Bueno, the mother of the deceased victim, and the Claimant, Emely Delgado, mother of the deceased victims son, Rafael Padilla, Jr., seek compensation pursuant to the Crime Victims Compensation Act (hereinafter referred to as the "Act”) 740 ILCS 45/1, et seq. (1992).

On November 16, 1993, this Court issued an opinion finding that Claimant Bueno incurred funeral and burial expenses in the amount of $3,369. This Court ordered that the sum of $3,000 be awarded as compensation for funeral expenses. An award to Claimant Delgado was denied. The opinion included a finding that Claimant Delgado had not substantiated her claim that the victim s minor son, Rafael Padilla, Jr., was dependent on the victim for support.

On December 17, 1993, Claimant Delgado, by and through her attorney, appealed the decision. She asserted that evidence would show that the victim s son was dependent upon the victim for support. She also disputes the portion of the opinion that awards $3,000 in funeral expenses to Claimant Bueno, contending that the funeral was paid for by her, Claimant Delgado, and that Claimant Bueno provided incorrect or fraudulent documents.

A hearing was scheduled for October 14, 1994, at which time, Claimant Delgado appeared with her attorney. Her attorney acknowledged that she was not eligible for reimbursement of funeral and burial expenses because she was not a relative. The following documents were offered by the Claimant and made a part of the record:

1. A copy of the 1989 U.S. Individual Income Tax Return Form 1040A signed by Rafael Padilla showing income of $3,459 and declaring Giovanni Padilla to be a dependent.

2. A copy of a Certificate of Live Birth indicating that Rafael Padilla was the father of Rafael Giovanni Padilla, Jr., born on December 19,1983.

The Assistant Attorney General indicated that his office would review the employment records in relation to the loss of support claim and would investigate the funeral and burial expenses.

A continued hearing was held on March 15, 1995, at which both Claimants appeared and testified. On the issue of funeral and burial expenses, the Attorney General s office confirmed that Caribe Funeral Home provided two contradictory affidavits. One indicates that Maria Bueno paid the funeral and burial expenses and the other indicates Emely Delgado paid the expenses. Claimant Delgado is not related to the victim; therefore, she would not be eligible for reimbursement. (740 ILCS 45/10.1(c) (1992).) The Assistant Attorney General (“AAG”) indicated that Ms. Bishop from Caribe told him that she did not know why there were two different affidavits. The AAG subpoenaed her for the hearing; however, she did not appear. She did not send documents to the AAG.

Claimant Bueno testified that she was the mother of the deceased victim and he lived with her. She presented four receipts, numbers 2415, 2418, 2419 and 2707, from Caribe Funeral Home, indicating that money was received from Maria E. Perez. Claimant Bueno stated that Perez was her maiden name. The receipts are dated July 14, 1992, through August 18,1992, and total $3,180. She presented a receipt, dated June 15, 1994, from Cast Monuments, Inc., showing that $1,649.50 was paid by Maria Padilla, whom she said was her. She had a copy of a cashiers check made payable to Cast Monuments, Inc. in the amount stated on the receipt. The remitter on the check was Maria Bueno.

The AAG presented a copy of the funeral directors report, signed by Julius (or Julia) Bishop, and a statement of services indicating that $3,369 was received from Maria Padilla, mother of Rafael Padilla. The document appeared to have been altered; i.e., certain items scratched out, with additions, and signatures. “Padilla” was crossed out and “Bueno” was printed in. A copy of a receipt was attached, number 2867, dated August 30, 1993, showing receipt of $3,369 from Maria Padilla, with “Padilla” crossed out and “Bueno” printed in. This receipt is different than the receipts presented by Ms. Bueno at the hearing.

Claimant Delgado testified that the deceased victim was the father of her son. She stated that neither she nor Claimant Bueno paid for the funeral. A collection was gathered from the victims friends, grandmother, and other family from his fathers side. She presented a receipt from Caribe of $3,369 from Emely Delgado. She stated that the victims stepmother, Natalia Molina, was involved in collecting the money. Claimant Bueno argued with Natalia in relation to the collection of the money; and Natalia gave some of the collection to Claimant Bueno and some to Caribe. She stated that Claimant Bueno did not pay the funeral expense out of her own pocket but from a collection taken from the victims friends and family.

Claimant Delgado testified her name was put on the receipt because she and Claimant Bueno entered into an oral agreement. She presented a signed funeral directors report, dated September 11, 1992, showing that Emely Delgado paid $3,369 for funeral and burial expenses. Claimant Delgado believes that the victims grandmother paid $1,000, his aunts husband paid $580, his aunt bought the suit, and the rest was contributed by his friends.

In relation to the oral agreement between the Claimants, Claimant Delgado stated that the receipt would be put in her name and the $3,000 reimbursement would be split three ways: $1,000 for the victims son, $1,000 for the monument, and $1,000 for Claimant Bueno. Claimant Bueno “went behind my back, went to the funeral director, and asked her for a receipt.” When she learned that Claimant Bueno was going to receive $3,000 for funeral and burial expenses, she asked Claimant Bueno whether she was still going to give her $1,000 for her son, and was told “No.” That is why she got a lawyer and appealed the order.

Claimant Bueno said that Claimant Delgado was lying. She stated that she used money from social security to pay for the monument. She receives disability payments from the Social Security Administration. She said that the money paid to Caribe came from her. She said her friend gave her $600. His name was “Sammy” but she did not know his last name. She said “Natie,” her sons stepmother, collected $1,500. She also collected approximately $500 from friends but forgets how much she collected. She claims to have paid $600.

Claimant Delgados counsel indicated she would stipulate that Ms. Bueno paid $600 of the burial and funeral expenses. Claimant Bueno then claimed she paid more than $600. She asked for a continuance to “bring all the papers.”

On the issue of loss of support, Claimant Delgado testified that her son, Rafael Giovanni Padilla, Jr., bom on December 19, 1983, was the son of the victim. She was unsuccessful in obtaining later tax returns, beyond the 1989 return, of the victim. In 1990 and 1991 he was working at a temporary place, but was still supporting the boy. He gave her cash for the support every week, usually between $50 to $125 per week. One time it was $485. He spent a lot of time with his son.

The employer report indicates that at the time of his death the victim was employed by Coles Appliance and Furniture Company from March, 1992, to the date of his death. The victim received his first check on March 21, 1992.

At the conclusion of the hearing, the record was left open for either Claimant to present any further documents. Claimant Bueno wanted to present a list of persons who gave her money but had left it at home. She was instructed to mail it together with a letter if she desired. Subsequent to the hearing, Claimant Bueno mailed a letter together with a letter from Jorge L. Crespo and a garbled listing of contributions. (English translations were provided by the Commissioners secretary).

This is a troublesome case. Claimant Delgado admits that she filed false information in relation to the funeral and burial expenses. She contends that it was done in furtherance of an agreement with Claimant Bueno. Claimant Bueno denies that this agreement took place. Claimant Buenos testimony is expressly inconsistent. At times she states that she paid all of the funeral and burial expenses, and at other times she states that she paid $600 of the funeral and burial expenses. The funeral home’s records are also inconsistent. The funeral home either negligently reported receipt of the same funds, or has participated in the presentation of false information as alleged by Claimant Delgado.

This Court finds that Claimant Buenos presentation of false information, i.e., she paid all of the expenses, in light of her testimony that the bulk of the money came from a collection, is sufficiently inconsistent to bar her from any recovery. (740 ILCS 45/20.) Public policy is best served by discouraging the presentation of false information.

On the loss of support claim, the same public policy concerns expressed above apply to Claimant Delgados provision of false information on the funeral expenses. However, the support that would be provided would be for the benefit of the victims minor child, aged eight years and 205 days as of the date of the victims death. The record does establish that the victim was employed for some time during the six-month period prior to his death. The total net earnings for the six-month period was $2,379.86, or an average monthly net income of $396.64. There is no documentation to show that he was actually providing support for his son. Claimant Delgado stated that neither she nor the victim maintained a checking account and the victim would give her cash ranging from $50 to $125 per week. No witnesses were presented to corroborate these payments. Her counsel indicated that the victim was providing an average of $250 per month. This amount is 64 percent of his average monthly net income. Claimant Bueno did not dispute that the victim was making cash payments to support his son. She did state that the victim was living with her at the time of his death; therefore, it may be reasonable to conclude that his own living expenses might not be as high if he were kving on his own.

This Court finds that Claimant Delgado has not established that support was being provided. It is therefore ordered that this Courts order of November 16, 1993, is amended and compensation is hereby denied to both of the Claimants.


text:
    (No. 93-CV-2399

      In re Application of Kerry Jones and Rose Marie Jones

      Opinion filed May 17, 1996.

    Kerry Jones and Rose Marie Jones, pro se, for Claimants.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of an incident that occurred on May 7, 1991. Kerry Jones, the mother of Brian K. Jones, Brandon D. Jones and Dominique S. Jones, the minor children of the deceased victim, Brian Keith Jones, and Rose Marie Jones, mother of the deceased victim, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the “Act.” 740 ILCS 45/1 et seq.

On August 16, 1995, the Court entered an order denying the claim. Based on the investigatory report, the Court found that the deceased victim was involved in the illegal sale and distribution of narcotics and that the offenders shot the decedent during an illegal narcotics transaction. In light of that finding, the Court denied the claim as the victims conduct provoked or contributed to his death to such an extent that Claimant did not meet the required conditions precedent for an award of compensation. On August 24, 1995, Claimant requested a hearing. The cause was tried before Commissioner Fryzel.

Claimant, Kerry Jones, was the mother of the victims children and Claimant, Rose Marie Jones, was the mother of the victim, Brian Jones. The victim was fatally shot in the head on March 24, 1991, by George Brown and Christopher Stokes who then left the deceased victim in an abandoned building at 716 E. Marquette Road in Chicago, Illinois, where he was found on May 7, 1991, by two men searching for tin cans. The offenders were later apprehended and found guilty of murder. Stokes was given 35 years and Brown 15 years in prison. On November 30, 1992, Kerry Jones filed a petition for extension of time to file a claim under the Crime Victims Compensation Act. The Court of Claims granted the petition on March 3, 1993, giving her 60 days to file a claim, which she did on March 15, 1993, and August 19, 1993. The claim is for compensation for the mother of the victim and Brandon D. Jones, Brian K. Jones, Dominique S. Jones, minor children of the deceased victim. The Court of Claims denied the claim on September 20, 1993, stating that section 6.1(a) of the Act required that an application be filed within one year of the date of the crime upon which the claim is based. The Court can extend that period up to another year. This petition was filed more than two years after the crime, constraining the Court by operation of law to deny the petition. The Claimant asked for a review of the decision based on the incapacity of the Claimant, Rose Marie Jones, because she is being treated for schizophrenia, paranoid type (per a May 19, 1994, letter from Community Counseling Centers of Chicago). The Court ordered, on June 29, 1994, that a Commissioner be assigned to hold a hearing to hear evidence on whether Claimant was incapacitated as defined by law so as to extend the statute. A hearing was held before Commissioner Michael E. Fiyzel on December 7, 1994. The Attorney General was ordered to file an investigatory report. The Court of Claims denied the claim on August 16, 1995, stating that police investigation revealed that the victim was involved in the sale and distribution of illegal narcotics and that the offenders shot him during an illegal narcotics transaction. Section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death. Since the victim was shot during an illegal drug transaction, his conduct contributed to his death to such an extent as to warrant that the Claimants be denied entitlement to compensation.

Claimant, Kerry Jones, testified that Brian Jones did not deal drugs at all and that the men who murdered him mistook him for his brother, Shawn Jones, who is a drug dealer. This testimony directly contradicts what she told the police when they were investigating the murder. The police report indicates she told officers that on March 23 and 24, 1991, the victim had approximately $3,000 worth of drugs on his person. She related that he did not store drugs in their residence but had a key to another location unknown to her where he kept narcotics and valuables. She additionally related that Wayne Henley would often accompany the deceased on “drops of narcotics.”

Officers also interviewed many other people, including Shawn Jones, who all stated that Brian Jones dealt drugs (cocaine). Wayne Henley told the police that he was called by Brian to go on a run with him for a drug deal on the day Jones was shot, but when Henley arrived at Jones’ house, Jones was already gone. While there is some evidence in the police reports that Shawn Jones owed Stokes $30,000 for drugs and that there may have been mistaken identity of Brian for Shawn, there is also reason to believe that everyone knew each other and that the shooting was due to Brian’s own drug deals. Section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim. In re Application of Cross (1980), 34 Ill. Ct. Cl. 411; In re Application of Casey (1993), 46 Ill. Ct. Cl. 610.

We find that, based on the evidence before the Court, Brian Keith Jones contributed to his death to such an extent that this claim should be denied. The evidence points to his involvement in narcotics and indicates that his death was drug-related. Claimants have failed to present sufficient evidence to contradict that conclusion. (In re Application of Fort (1990), 42 Ill. Ct. Cl. 392.) While the decedent’s death is a tragedy and we sympathize with Claimants in their loss, we are constrained to find that Claimants have failed to meet their burden of proof that they have met all conditions precedent for an award under the Act. For the foregoing reasons, it is the order of the Court that the claim be and hereby is denied.