author:
MR. JUSTICE KLUCZYNSKI
      MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 50309.

      In re ESTATE OF GENERAL HOBSON MILLSAP.—(William Johnson, Appellant, v. Geraldine G. Wagy et al., Appellees.)

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

      GOLDENHERSH, C.J., and MORAN, J., dissenting.

      Louis G. Lenard, of Joliet, for appellant.
    Douglas L. Ziech, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet, for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Appellees, Geraldine G. Wagy and Patricia Ruth Scott, filed a petition for letters of administration in the circuit court of Will County, alleging that their father, General Hobson Millsap, died intestate. Appellant, William Johnson, filed a petition for letters testamentary, attaching thereto an executed carbon copy of the decedent’s will. The court heard arguments on both petitions at the same time, granted the petition of Wagy and Scott, and denied the petition of Johnson. The court found that the original will was under the exclusive control of the decedent, that it was not found at his death and was therefore presumed revoked, and that no evidence was produced to rebut the presumption. The court accordingly ruled that the copy offered by Johnson could not be admitted to probate. Johnson appealed, and the appellate court affirmed (55 Ill. App. 3d 749). We allowed his petition for leave to appeal under Supreme Court Rule 315 (65 Ill. 2d R. 315).

The will offered by appellant Johnson devised and bequeathed all of the decedent’s property to Johnson and his wife, and designated Johnson as executor, to be succeeded by his wife in the event that Johnson did not serve. Pursuant to section 6—7(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1975, ch. 3, par. 6—7(a), current version at Ill. Rev. Stat. 1977, ch. 110%, par. 6—7(a)), a hearing was held to determine whether the will should be probated. On cross-examination of an attesting witness, it was revealed that the decedent had declared that he would retain the original will in his safety deposit box. A carbon copy was executed and retained by appellant Johnson. At the decedent’s death, the original could not be found. Appellant Johnson offered the copy for probate, which was denied on the basis of the presumption of revocation that arises when a will is retained by the decedent after its execution, but cannot be found at his death. See In re Estate of Moos (1953), 414 Ill. 54, 57.

Appellant Johnson contends that the issue of presumed revocation may not be raised under section 6 — 7(a) because that section is limited in scope. It is argued that tne drafters of the law intended that a probate court conducting a hearing under section 6 — 7(a) should only consider the testimony of attesting witnesses as to whether the will was executed with the requisite testamentary formalities, and any evidence of fraud, forgery, compulsion, or other invalidating conduct. Appellant Johnson has also conceded at oral argument that a probate court may also consider other evidence establishing revocation as a matter of law. Appellant contends that the presumption of revocation may only be raised in a will contest, apparently on the belief that this presumption is not a matter of law competently adjudicated in proceedings under section 7(a).

dose consideration of the argument leads us to conclude that adoption of appellant’s analysis of section 6 — 7(a) would unnecessarily limit the scope of proceedings under that section. The statute provides in pertinent part:

“(a) When each of 2 attesting witnesses to a will testifies that (1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will in chancery. If the proponent establishes the will by sufficient competent evidence, it shall be admitted to probate, unless there is proof of fraud, forgery, compulsion or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.” (Ill. Rev. Stat. 1975, ch. 3, par. 6—7(a).)

Contrary to appellant’s argument, we feel that evidence giving rise to a presumption of revocation may be presented in probate court proceedings under section 6 — 7(a), and that a party is not limited to a will contest if he desires to produce such evidence. Probate courts have long had the power “to hear testimony on the question of revocation and to deny probate where it appears that the alleged will is no will at all by reason of revocation.” in re Estate of Holmberg (1948), 400 Ill. 366, 369, citing Research Hospital v. Continental Illinois Bank & Trust Co. (1933), 352 Ill. 510; see also In re Estate of Moos (1953), 414 Ill. 54; Bley v. Luebeck (1941), 377 Ill. 50.

The Bley case is most instructive in this matter. The case involved an appeal from a circuit court decree admitting to probate a copy of a lost will. Rules of probate practice in effect at the time required that a petition to probate a will be filed in the county court with right of appeal to the circuit court. The court’s opinion traced the history of probate practice and included a discussion of a statute, section 71 of the Probate Act of 1939, identical in material respects to the statute now before us, section 6—7(a) of the Probate Act of 1975:

“In 1939, the legislature passed an act designated by short title as the Probate act. This act was a complete revision of the statutes relating to the administration of estates, including the probate of wills. AH other statutes on the subject, including chapter 148, which is the act of 1874 relating to wills, were expressly repealed. Section 71 of the Probate act (Ill. Rev. Stat. 1939, chap. 3, par. 223) was substituted for section 13 of the chapter on wills, but the language was materially changed. That section, as reenacted as section 71 of the Probate act, preserves and continues the right of the proponent to offer additional evidence on an appeal to the circuit court as such right existed under section 13 of the act relating to wEs. *** ‘*** If the proponent establishes the wE by sufficient competent evidence it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which, in the opinion of the court, is deemed sufficient to invalidate or destroy the will.’ *** * * *
In a case where the will is lost and is not in existence, proof may be offered on the additional issue of the loss or destruction of the wE and its contents.
*** In the case of a lost will, which is not in existence, the issues to be tried by the county court are necessarily broadened. In such case the county court must hear proof of the due execution of the will and the sanity of the testator and any evidence of fraud, forgery, compulsion, or other improper conduct, the same as in cases where the will is in existence; but where the will is lost, proof that the will has been lost, or destroyed, and that it was not revoked by the testator in his lifetime must also be made. *** There is nothing in the statute which limits the evidence on these additional issues to the subscribing witnesses either on the hearing in the county court, or on appeal to the circuit court. *** Upon the hearing of an appeal from an order of the county court, either admitting or denying probate of a lost will, the circuit court is required to pass upon the issues of loss, or destruction, of the will; that it was in existence at the time of the testator’s death and had not been revoked by him in his lifetime.” Bley v. Luebeck (1941), 377 Ill. 50, 56-57, 62-64.

Even cases cited by appellant recognize the power of a court to deny admission of a revoked will in probate proceedings. In re Estate of Marcucci (1973), 54 Ill. 2d 266, 270, for example, stated, “The usual issue presented at such proceedings is a determination of which is the last, valid, unrevoked will of the testator.” (Emphasis added.)

Appellant had cited Marcucci and other cases (see, e.g., Ruffing v. Glissendorf (1968), 41 Ill. 2d 412; Shepherd v. Yokum (1926), 323 Ill. 328; In re Estate of Parker (1976), 42 Ill. App. 3d 860) for the proposition that a probate court may consider only the testimony of attesting witnesses as to proper execution and testamentary capacity, and evidence of fraud, forgery, compulsion or other invalidating conduct. Appellant has also conceded at oral argument that a probate court may also deny probate where there is revocation as a matter of law. We agree with the law set forth by appellant, but disagree as to its applicability in the case now before us. Because, as a matter of law, a probate court will not admit a revoked will (Research Hospital v. Continental Illinois Bank & Trust Co. (1933), 352 Ill. 510, 521), the presumption of revocation may be the basis of a probate court’s denial of admission. Appellant’s misplaced reliance on Marcucci and the other cases cited apparently stems from the courts’ holdings in those cases that the issues there presented were not susceptible to resolution in proceedings to probate a will. In Marcucci, for example, this court held that the validity of a contract not to revoke could not be adjudicated in proceedings to probate a will. The court said, “Any attempt to prove the existence of a contract not to revoke at such proceedings is irrelevant since it is tantamount to an attempt to prove a contractual claim against the estate before the appointment of an indispensable party, the executor.” (In re Estate of Marcucci (1973), 54 Ill. 2d 266, 270.) The issue presented here, however, is one that may be properly determined by a probate court in proceedings under section 6 — 7(a), and in this respect the present case differs from those cited by appellant.

Once it appears that the will was under the exclusive control of the decedent, and that the will cannot be found and offered for probate, it is presumed that it was revoked, even if an executed copy is found. (In re Estate of Holmberg (1948), 400 Ill. 366, 371.) The presumption arises as a matter of law, and a probate court must give effect to the presumption if the necessary evidence is brought to the attention of the court and no rebuttal evidence is admitted to overcome the presumption. If the proponent of the will has not presented such rebuttal evidence, it cannot be said that he has produced “sufficient competent evidence” within the meaning of section 6 — 7(a) to have the will admitted. Appellant’s disregard of this proof requirement and his failure to recognize that the presumption of revocation operates as a matter of law render his analysis of section 6 — 7(a) incomplete.

Appellant argues, however, that section 6 — 7(a) cannot constitutionally accommodate a challenge of this nature whereby a party alleges that a will is presumed revoked. It is appellant’s contention that the rights of interested parties are cut off without notice of the proceedings, opportunity to be heard, and the option of a jury trial. In light of the requirements of section 6 — 4(a) that heirs and legatees receive notice of proceedings to admit a will to probate (Ill. Rev. Stat. 1975, ch. 3, par. 6—4(a)), we find it difficult to understand how appellant can complain of a failure of the Probate Act to require notice and opportunity to be heard. In any event, we feel that appellant is without standing to make this argument. Two reasons for this appear. First, section 6—4(b) provides that a party who appears in probate proceedings need not be given notice. (Ill. Rev. Stat. 1975, ch. 3, par. 6—4(b).) Appellant commenced these proceedings, appeared, and therefore was not entitled to notice. Since he was not entitled to notice, he may not complain of a failure to require that notice be given to others. Second, because he did have notice of the proceedings, appellant may not complain that others were not notified. In re Estate of Meskimen (1968), 39 Ill. 2d 415, 422-23.

It is also appellant’s contention that the rights of interested parties are not adequately protected because section 6 — 7(a) does not afford the option of trial by jury. Though we see no problem with appellant’s standing to raise this issue, we find no merit in the argument. The constitutional right to trial by jury does not extend to actions unknown at common law, such as statutory proceedings to admit a will to probate. (Research Hospital v. Continental Illinois Bank & Trust Co. (1933), 352 Ill. 510, 521-22; Moody v. Found (1904), 208 Ill. 78, 79-80.) The question of whether a will should be probated is a question for the court and not for the jury. Schofield v. Thomas (1908), 236 Ill. 417, 428; Schofield v. Thomas (1907), 231 Ill. 114, 119.

Having determined that a probate court may properly consider the issue of presumed revocation in proceedings under section 6 — 7(a), we turn to the question of whether the courts below properly ruled that the will of General Hobson Millsap was revoked. The probate court found, and the appellate court agreed, that the presumption of revocation was raised and unrebutted.

Due to the strength of the evidence which gave rise to the presumption, as well as the strength of corroborating evidence, we conclude that the probate and appellate courts did not err in ruling that the presumption was raised. Testimony elicited before the probate court showed that the decedent had retained the original will, and that it could not be found at his death, thereby raising the presumption of revocation. Corroborating testimony was presented that the decedent had expressed his intention to have his property distributed to his children and not according to the will’s provisions. Due to the absence of rebuttal evidence, we also agree that the probate and appellate courts did not err in holding that the presumption was not overcome.

In reaching the conclusion that the will of General Hobson Millsap was revoked, we are not unmindful of the fact that the copy offered for probate was executed. If an unrebutted presumption of revocation is to be given the full legal effect to which it is entitled, it must be held that no document, executed or unexecuted, may be probated. To allow probate of such a document would create an unwarranted exception to the rule that a will which is presumed revoked may not be admitted, and would not give proper recognition to the purpose of the rule. The presumption was adopted to conform the law of wills to common experience. As Page states in his treatise, the presumption of revocation “has been adopted as the rule which conforms most of the actual facts of human life. While wills are occasionally destroyed by disinherited heirs, they are much more frequently destroyed by testator, with the intention of revoking them. This presumption, therefore, takes the normal case as the standard, and requires affirmative evidence of the abnormal case.” (3 W. Bowe & D. Parker, Page on Wills sec. 29.139, at 697-98 (rev. ed. 1961).) We see no reason why this purpose should not be given effect in the present case, where an executed document is found and offered for probate without explanation of the failure to produce the document retained by the decedent. As Atkinson indicates in his treatise, the very nature of duplicate wills advises against admission of even an executed copy where the document retained by the decedent is revoked by mutilation or by virtue of the presumption of revocation. The author writes:

“A will executed in duplicate is totally revoked by the testator’s mutilation of one of the duplicates with the required intent. [Citing, inter alia, In re Estate of Holmberg (1948), 400 Ill. 366.] This follows from the nature of duplicate wills, either copy being regarded as the will so that revocation may be by physical act to either one of them. The presumption of revocation from the non-production of the will which was in testator’s possession, or its production in a mutilated condition applies in the case of duplicate wills. As a result all duplicate copies in the testator’s possession must be produced intact, or the loss or mutilated condition explained, in order to obtain probate. Thus, the practice of executing wills in duplicate, often thought to be a safeguard against loss or fraudulent destruction, may prove to be a boomerang when the situation gives rise to the presumption of revocation and there is not sufficient evidence to overcome it.” T. Atkinson, Wills sec. 86, at 442-43 (2d ed. 1953).

In summary, we hold that no statutory or constitutional restrictions prevent a probate court from considering the presumption of revocation in proceedings under section 6 — 7(a) of the Probate Act of 1975, and that the courts below properly ruled that the will of General Hobson Millsap was revoked. For these reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent. The effect of the majority opinion is to deprive the proponents of the will of an opportunity to litigate the question whether the failure to find the copy of the will in the testator’s possession revoked the will. Only one case cited by the majority (In re Estate of Holmberg (1948), 400 Ill. 366) involved fully executed duplicate copies of the will. In Holmberg the word “Void,” admittedly in the testatrix’s handwriting, and her signature, admittedly genuine, were written across the carbon copy found in her possession. None of the other authorities involved fully executed copies and are clearly distinguishable from this case. Here, there are admittedly duplicate originals of the wiU fully executed and properly witnessed.

Unlike the presumption which arises from the mutilation, destruction or modification of a will which, as a matter of law, effects revocation, the failure to produce the document which is one of several fully executed copies of a will gives rise only to an inference of fact, and the proponent of the will is entitled to adduce evidence which overcomes the inference that revocation was intended. Under these circumstances, whether revocation was intended is an issue of fact, triable to a jury. (Harris v. Etienne (1925), 315 Ill. 540; Clarkson v. Kirtright (1920), 291 Ill. 609.) Here the opponents of the will were not required to file any pleadings which in any manner delineated the issues, and the injustice effected by the majority opinion is that the proponent was given no opportunity to try the key issue in the case. The requirement of a pleading and the framing of issues would enable the use of appropriate discovery procedures to determine what had happened to the document which was in testator’s possession, and to determine whether his failure to have it in his possession resulted from his intent to effect a revocation.

MR. JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 50891.
    NATIONAL LOCK COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al.-(Earnest Benford, Appellee.)

      Opinion filed April 3, 1979.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson and Frank C. Rowland, of counsel), for appellant.
    Tuite, Morrissey, Gesmer & Finnegan, of Rockford (Jason N. Gesmer and Gerald F. Tuite, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Earnest Benford filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries to his right ankle and foot allegedly sustained in an accident on May 12, 1975, while working for respondent, National Lock Company. An arbitrator found that claimant had sustained accidental injuries arising out of and in the course of employment and awarded him temporary total disability payments of $105.50 per week for 34 weeks and $83.20 per week for 5414 weeks for a permanent 35% loss of use of his right foot. Respondent was given credit for weekly benefits paid under its employer’s group program. The Industrial Commission affirmed after hearing additional testimony, and the circuit court of Winnebago County confirmed the award. Respondent appealed to this court under our Rule 302(a) (58 Ill. 2d R. 302(a)). The sole issue is whether the determination that claimant suffered accidental injuries arising out of and in the course of his employment is against the manifest weight of the evidence. There is no contention claimant was not injured.

The evidence presented was as follows. Claimant testified before the arbitrator that on May 12, 1975, his job was to operate an elevator and to transport loads at respondent’s plant. His work shift was from 7 a.m. to 3:30 p.m., and he rode to and from work each day with his supervisor, Nathaniel Walker. At 3:20 p.m. he received a call to pick up a load of hinges right away. He rushed to the fourth floor for the load and rode the elevator back to the first floor. As he was leaving the elevator, a stick fell off the load. He reached to grab the load with one hand and the fork which guided the electric truck on which the load was placed with the other hand. As he did so, he accidently pushed a button on the truck which caused the truck to jump. His ankle was caught between the truck and the elevator door. The ankle twisted; claimant straightened it out, rushed to return the truck to the battery shop since it was past quitting time, grabbed his coat, and accompanied Walker to Walker’s car, which was parked in a lot across the street from the plant. Walker testified before the Commission that he did not notice anything unusual about the way claimant walked. Claimant did not talk to Walker on the way home.

Claimant testified that about 20 minutes after he arrived home, he hoed and used other tools in his vegetable garden for about a half hour. His ankle began to swell and hurt. He then purchased some Epsom salts and soaked his ankle for about one hour until friends came to visit. His nephew removed his foot from the soaking solution and twisted the ankle to see if it was out of place. This caused excruciating pain. Claimant continued to soak his ankle and had a few drinks. His friend, James Rogers, then took him to the emergency room at St. Anthony’s Hospital in Rockford. The hospital records indicate he arrived at 10:10 p.m.

Claimant testified he was told he had broken his ankle. A cast was placed on his leg from his hip to his toe. The hospital emergency room report contains a notation that claimant had caught his foot in the elevator door at respondent National Lock Company and a notation that he had a fractured ankle. No mention is made of contusions to other parts of his leg. One medical bill indicates that on August 18, 1975, and on August 25, 1975, over three months after the first visit to the emergency room, claimant received treatment for which he was charged under a billing code for “contusion hip, thigh, leg, ankle.” Two X-ray reports from June and July 1975 indicated a healing fracture of the ankle. A report prepared by the examining physician, Dr. Robert Busch, on February 12, 1976, analyzes the injury to the bones in claimant’s right ankle and foot. It was stipulated that if Dr. Busch testified “he would state after considering all the testimony given today, given as a hypothetical statement concerning the emergency room record and his own findings, that in his opinion the alleged accident of May 12, 1975 could or might be causally related to the condition of ill-being set forth in his report.”

Nathaniel Walker, claimant’s supervisor, testified before the Commission that “Gerry” Rogers called him at about 3 a.m. on May 13, 1975, to tell him that claimant would not be able to go to work that day since he had broken his leg while moving furniture down steps at his daughter’s house. The substance of Walker’s testimony had been presented to the arbitrator through cross-examination of claimant. Claimant testified before the arbitrator that he had asked James Rogers to make the call since claimant had no telephone but did not tell Rogers what to say. He testified he had one daughter who lived with him and that he was not moving furniture when he hurt his ankle.

Claimant testified that on the day following the accident he called respondent’s nurse, who told him that Nathaniel Walker had reported that claimant had hurt himself while moving. Claimant stated he told the nurse he had injured his ankle at work and that she said she would straighten things out. He testified he received insurance forms which were already filled out and which he signed without reading. The nurse testified that claimant inquired about medical leave on the day following the injury, but did not mention an accident at work, and that she told him she would send him insurance forms, but did not ask why he sought medical leave. The nurse further testified on cross-examination that she called claimant a few days later after she had received the emergency room report which indicated claimant had fractured his ankle at work. She stated that claimant told her he thought she knew about the accident. She then filled out a “first report of accident” and sent it to the insurance carrier for further investigation of the occupational injury claim for which insurance coverage ultimately was denied. In the interim, nonoccupational group insurance forms had been sent to claimant.

In essence, respondent argues that claimant fabricated the story that he injured his ankle at work and asserts that he must have injured his ankle and other parts of his leg while moving furniture later in the day. Respondent points to claimant’s activities following the alleged accident, to the supervisor’s report of Rogers’ telephone account of the injury, to the billing from August 1975 under the code for contusions to the hip, thigh and leg as well as ankle, to the medical reports that various bones in the ankle were involved, and to the nurse’s testimony that claimant did not tell her of the accidental injury on the day following the accident. Respondent’s argument is countervailed by claimant’s testimony concerning his injury, by the medical records, and by the nurse’s testimony on cross-examination that during her telephone conversation with claimant a few days after the accident he told her he had presumed she knew he had been injured at work.

The applicable principles of law are clear. Findings of the Industrial Commission will not be disturbed on review unless they are against the manifest weight of the evidence; nor will a court reject permissible inferences drawn by the Commission because different inferences might also have been reasonably drawn (Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517, 524-25; United States Steel Corp. v. Industrial Com. (1976), 65 Ill. 2d 374, 381; Deal v. Industrial Com. (1976), 65 Ill. 2d 234, 237). This rule applies to the finding that there was an accidental injury which arose out of and in the course of employment. See Ferrin Cooperative Equity Exchange v. Industrial Com. (1976), 64 Ill. 2d 445,448-49.

It is the function of the Commission to determine the credibility of witnesses (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 142; United States Steel Corp. v. Industrial Com. (1976), 65 Ill. 2d 374, 381) and to resolve disputed questions of fact (United States Steel Corp. v. Industrial Com. (1976), 65 Ill. 2d 374, 381; Thrall Car Manufacturing Co. v. Industrial Com. (1976), 64 Ill. 2d 459, 463). The fact that it might be inferred that a party has made out-of-court statements inconsistent with his sworn testimony does not per se destroy the probative value of his testimony; it is up to the trier of fact to determine where the truth lies (see Converters, Inc. v. Industrial Com. (1975), 61 Ill. 2d 218, 224). Finally, the uncorroborated testimony of a claimant may support an award. (Atlantic & Pacific Tea Co. v. Industrial Com. (1977), 67 Ill. 2d 137, 141.) A review of the record convinces us that the circuit court did not err in holding that the decision of the arbitrator, as affirmed by the Commission, was not contrary to the manifest weight of the evidence.

Respondent argues that an award cannot stand where the sole support for the award is the claimant’s own testimony which is inconsistent with the claimant’s actual behavior and is repudiated by the record. The cases cited in support of that contention are based upon factors substantially distinguishable from those present here. Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311, 315, was concerned with whether the undisputed accident at work had caused the injury and involved stronger factors militating against an award. The claimant continued to work without complaint for several days following the accident, and an alternate cause of injury was shown through documents and testimony. The behavior of the claimant in Rockford Clutch Division, Borg-Warner Corp. v. Industrial Com. (1967), 37 Ill. 2d 62, 67, was clearly inconsistent with the injury claimed; following the alleged back injury, claimant sought treatment at work for an eye injury but did not mention the back injury to the company nurse, doctor or foreman. In McDonald v. Industrial Com. (1968), 39 Ill. 2d 396, 404-05, the issue was whether claimant had given his employer the requisite notice. The fact that the impecunious claimant paid his own medical bills and did not submit them to his employer was held to be inconsistent with his testimony that he had notified his employer and been told to seek medical care. In Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144, 148, each fact asserted by the claimant was strongly refuted by other evidence.

The conduct of claimant here was not so clearly inconsistent with his testimony, nor was his testimony so unsupported by the record, as to indicate that the decision awarding him compensation was contrary to the manifest weight of the evidence. The judgment of the circuit court is affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 50747.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN BERLIN, Appellee.

      Opinion filed April 3, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Marcia B. Orr, J. Jonathan Regunberg, and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Patricia Unsinn and Richard Steck, Assistant Defenders, and Bernadette Cole, law student, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was convicted of the offense of theft (Ill. Rev. Stat. 1973, ch. 38, par. 16—1(a)). The appellate court reversed (58 Ill. App. 3d 612), and we granted the State leave to appeal.

The defendant testified on his own behalf. On cross-examination, the prosecution elicited the following information from defendant:

“Q. Now, sir, is your name Otis Sanders?

A. Yes, it is.

Q. Your name is not Johnny Berlin?

A. No, it’s not.

Q. When the Police arrested you, you told them

your name was Johnny Berlin, didn’t you, sir?

A. Yes, I did.”

In an earlier motion in limine, defendant’s counsel objected to the prosecution’s questioning of defendant about his true name, which the prosecution had learned during investigation prior to trial. The motion was denied. On redirect examination, defendant’s counsel asked, “Mr. Berlin, did you have any creditors — in other words, did you owe anybody any money?” The prosecution objected immediately and the trial judge sustained the objection, stating, “I don’t know that that would be pertinent, Counsel.” Defendant’s counsel made no response to this ruling.

The appellate court ruled that to allow the prosecution to question the defendant regarding his name was prejudicial error in that it implied that defendant had been involved in prior criminal activity. Furthermore, according to the appellate court, the trial court compounded this error by preventing the defendant from answering his counsel’s question concerning creditors, which allegedly would have served to explain defendant’s use of a different name.

We do not agree that questioning defendant regarding his name served to prejudice him before the jury. There certainly are, and the jury could easily have supposed, any number of innocent reasons for defendant’s having adopted a different name. It is merely speculation to conclude that a jury will automatically associate an assumed name with a criminal background. Nothing in People v. Dukes (1957), 12 Ill. 2d 334, which defendant cites, requires that we hold otherwise. In Dukes, there was no evidence that defendant had ever used an alias, yet the State, in opening statement and closing argument, repeatedly referred to the alias that appeared on the face of the indictment and directly suggested that defendant used an alias for the purpose of concealing his identity because of a prior record of crime. (12 Ill. 2d 334, 342.) This court held that such suggestion was improper and prejudicial.

In contrast, here, it was not improper for the State to inquire as to defendant’s true name or to ask if that name was different from the name defendant gave to police and under which he was indicted, for the State had independent knowledge of such information. The questioning was relevant in that it served to clarify defendant’s true identity. No suggestion was made to the jury that defendant used an assumed name because he had a criminal background. Thus, being relevant and nonprejudicial, the questioning was properly admitted. See generally People v. Jedynak (1941), 377 Ill. 621, 625.

In view of the preceding discussion, we find no reversible error in the trial court having sustained the objection to the earlier-quoted question by defendant’s counsel.

Consequently, the judgment of the appellate court is reversed. In overturning defendant’s conviction, the appellate court found it' unneccessary to consider all of the issues raised by defendant. Because consideration of the remaining issues is now necessary, the cause is remanded to the appellate court with directions to consider the unanswered issues raised by defendant.

Reversed and remanded, with directions.


author: MR. JUSTICE WARD

text:
    (No. 50513.
    THE CITY OF CHICAGO, Appellant, v. THE INDUSTRIAL COMMISSION et al.—(Maria D. Pagan, Appellee.)

      Opinion filed April 3, 1979.

      Van Duzer, Gershon, Jordan & Petersen, of Chicago (John B. Van Duzer and Horace W. Jordan, of counsel), for appellant.
    Thomas G. Cronin, of Chicago (Carolyn C. Whittington, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

On December 23, 1970, the claimant, Maria D. Pagan, was injured in the course of her employment with the respondent, the city of Chicago. She filed an application for adjustment of claim on September 1, 1972. The arbitrator awarded the claimant benefits for permanent and total disability. The award was affirmed by the Industrial Commission, and the circuit court of Cook County confirmed the decision of the Commission. This appeal followed.

On the date of the accident, section 6(c)(3) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.6(c)(3)) provided that a claim for compensation must be filed within one year after the date of the accident, or within one year after the date of the last payment of compensation where any has been paid. Effective July 1, 1975, section 6(c)(3) was amended to enlarge the limitation period from one year to three years. (1975 Ill. Laws 224, 238-39.) The hearing before the arbitrator commenced January 30, 1974, and although his decision was not rendered until August 22, 1975, it is not clear from the record that the claimant, either before the arbitrator or at the hearing on review, contended that the proceeding was controlled by the three-year period established by the amendment. Subsequent to the decisions below, this court filed its opinion in Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, which held that the amendment to section 6(c)(3) was not retroactive. The claimant’s application here is thus governed, as she concedes, by the one-year limitation period in effect at the time of the accident.

The claimant contends, however, that on May 31, 1972, she received a check from the respondent which constituted a payment of compensation and that her claim was therefore timely filed. The claimant also contends that the respondent was in any event estopped to plead the limitation period because of statements allegedly made to her in 1971 by four employees of the respondent that the respondent would pay compensation. In his decision the arbitrator made a finding that the claimant had been paid a sum on account of her injury, but he made no reference to the question of estoppel.

The claimant was employed by the Chicago Committee on Urban Opportunity, an agency of the respondent, as a community representative, a job which entailed house calls. On December 23, 1970, she was driven to an address in Chicago in a minibus owned by the respondent and driven by one of its employees. After the claimant had alighted and was proceeding around the rear of the car, the driver backed the car up, striking the claimant, knocking her to the ground, and allegedly causing an injury to her back.

Following the accident the claimant was taken to the South Chicago Community Hospital for emergency treatment. She was discharged about three hours later, and went home. She returned to her employment January 8, 1971. Between the accident and her return to work the claimant was absent for nine working days. She continued to work for the respondent, performing the same work as before her accident, until May 3, 1972, when she was admitted to Mercy Hospital, where an operation on her back was performed. The claimant stayed in the hospital two months, and did not return to work with the respondent after her discharge from the hospital. An expert witness for the respondent testified that the condition for which the operation on the claimant was performed was a congenital one and not related to her accident.

We turn first to the contention that the respondent made a payment of compensation to the claimant on May 31, 1972. The alleged payment was in the amount of $22.05 and was made by a check delivered to the claimant while she was in Mercy Hospital. An employee of the respondent familiar with the claimant’s work records testified that the payment was for a day of vacation earned that month. The witness testified that under the respondent’s regulations such payments were made without regard to whether the recipient had received a compensable injury. There was no evidence that the claimant had been paid for the days of work she lost while she was hospitalized at Mercy, and she herself admitted on cross-examination that this check was not for workmen’s compensation. The finding of the arbitrator on this point was clearly unsupported by the evidence and cannot stand. International Harvester Co. v. Industrial Com. (1951), 410 Ill. 543; cf. Wise v. Industrial Com. (1965), 32 Ill. 2d 375, 376-77.

The claimant’s evidence with respect to her claim of estoppel consisted of four conversations with employees of the respondent during the period from January through July 1971. Each conversation was initiated by an inquiry on the part of the claimant. None of the employees referred to were called as witnesses by either side, nor was there any evidence offered as to what their duties may have been with respect to claims for compensation.

The first of these conversations, on January 9, was with Mrs. Miller, whom the claimant identified as “chief clerk” of the department where the claimant worked. The claimant testified that she told Mrs. Miller that she had been hurt and had gone to a hospital, and asked whether the respondent was going to pay the bill and to pay her for the time that she was off. Mrs. Miller said that the respondent would “take care.” At Mrs. Miller’s suggestion the claimant then called Mrs. Lyons, an employee understood by claimant to handle insurance matters, and had a similar conversation. A short time thereafter the claimant approached Mrs. Vanna, who had replaced Mrs. Miller, and, after complaining of pains in her back and leg, inquired again whether the respondent was going to pay her for the time she had lost and for the doctor and hospital bills, to which Mrs. Vanna said, “Yes, well take care.” In July 1971, the claimant had a similar conversation with Mrs. Hickman, who had now replaced Mrs. Vanna. Mrs. Hickman also stated that the respondent would “take care” of her. At Mrs. Hickman’s suggestion the claimant spoke again to Mrs. Lyons. The conversation was testified to as follows:

“I called her and I told her that I was still hurt, my leg was almost dead, maybe I need an operation, what they going to do; and she said if you are under treatment we would take care, keep your doctor, go see him.”

During the period when these conversations took place, as the claimant admitted on cross-examination, she was told that the respondent had paid the bill from South Chicago Community Hospital. No medical bills were submitted for payment to the respondent, and there was no evidence that the respondent had paid wages to the claimant for the time when she was absent from work, although she had been paid for two days of sick leave to which she had already become entitled under the terms of her employment.

The extent to which the claimant was being treated by a physician at this time is disputed. The claimant testified that she had been under the care of a Dr. Armando Abadin. Dr. Abadin had left the State, and did not testify. His office records relating to the claimant, which had been obtained by subpoena, did not show any treatment of her except for injuries sustained earlier in an automobile accident, not work-related, which took place August 22, 1970. In her testimony she testified that she had never been treated by Dr. Abadin for that accident.

A letter written for the claimant concerning her accident was sent to the newspaper column “Action Line” on May 24, 1972. It was introduced by the respondent as an admission against interest. The letter stated that the claimant had engaged a Chicago attorney to represent her in a possible suit against the respondent based on a claim that the driver of the city vehicle was inebriated at the time. The letter also stated, “I did not seek restitution for injuries because I was afraid that such would cause CCUO-Model Cities to fire me.” The letter did not mention the conversations with the respondent’s employees to which the claimant had testified; nor did it refer to any belief by her that the respondent had agreed to pay compensation. The claimant admitted in her testimony that no one employed by the respondent had ever threatened to discharge her if she should file a compensation claim.

The question of what circumstances are sufficient to estop a respondent from pleading the limitations period prescribed by section 6(c)(3) of the Act is one which has been before this court several times in recent years.

In some cases an agent of the employer or of its insurance carrier made a misrepresentation regarding a fact which would be pertinent to a decision by the claimant as to whether or when he should file an application. Pope v. Industrial Com. (1973), 53 Ill. 2d 560, is illustrative. There the last payment of compensation had been made in January 1962. In April of that year the respondent mailed the claimant another check which was in payment for medical expenses, although neither the check nor the transmittal letter so showed. Under section 8(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)) such a payment is not the payment of compensation, and therefore does not extend the time in which to file an application. When the claimant’s attorney asked the employer’s insurance adjuster whether the April payment had been for compensation, he was told that it was. If that representation had been true, the claimant would have had until April, rather than January, in which to file her application, which was filed in March. The Commission found that the claimant’s attorney had relied on the adjuster’s false representation, and this court held that the employer was therefore estopped to assert the defense based on the statute of limitations.

A comparable situation was presented in George Young & Sons, Inc. v. Industrial Com. (1977), 66 Ill. 2d 220. There the claimant had received compensation payments following his accident, which took place January 12, 1970, until his return to work on September 2 of that year. On January 29, 1971, a discussion took place between the claimant and a representative of the employer’s insurance carrier in the course of which the latter offered to settle the claim for a specified amount, an offer which was accepted. The agent represented that the amount offered was the maximum to which the claimant would be entitled under the Act. That representation, the court found, was false. The employer was therefore held estopped to plead the limitation period when the claimant failed to file his application until November 1, 1972.

In the present case there was no testimony by the claimant, and there was no other evidence that the respondent made any misrepresentation of fact. The claimant does not assert that she was ignorant of the existence of a time limitation on the filing of claims, or that the respondent failed to advise her of such. An omission of the latter sort, under the decision in Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, would, of course, not in itself create an estoppel.

What the claimant relies on here are statements made to her by several of the respondent’s employees, to whom she spoke at various times in 1971, that the respondent would “take care” of her. We note to begin with that, in view of the time when they were made, these representations might arguably be deemed to relate only to those payments for lost time and medical services which had already occurred, rather than other, future payments in connection with her hospitalization during 1972, an event which had not as yet taken place. In the absence of some misrepresentation of fact, a promise by a respondent to pay compensation does not ordinarily work an estoppel. The limited circumstances under which such an estoppel can arise were considered in Schumann v. Industrial Com. (1975), 61 Ill. 2d 241, Kaskaskia Constructors v. Industrial Com. (1975), 61 Ill. 2d 532, and Molex, Inc. v. Industrial Com. (1975), 62 Ill. 2d 46.

In Schumann the accident to the claimant took place February 6, 1968, but his application was not filed until August 22, 1969. Following his accident he received medical treatment, and beginning some six months after the accident he had several conversations with his employer’s insurance broker concerning hospital and medical biHs. The broker advised him that bills already incurred would be paid by the insurer, and indeed aU such bills submitted to the insurer within one year from the accident were paid.

In March 1969, however, the claimant was told that the insurer would no longer pay medical bills since the time in which to file an application had run. The conversations with the broker had related to medical bills, not to compensation, and since there was no evidence that the adjuster had sought to mislead the claimant on the distinction between the two, this court held that no defense of estoppel had been made out.

Kaskaskia also involved continuing discussions between the claimant and the insurance carrier. For the purpose of calculating the limitations period the base point was March 31, 1972, when the claimant received his last payment of compensation for the accident. The claimant’s application was filed April 3, 1973.

In February 1973, the claimant advised the insurance carrier that he would require further surgery, which he had scheduled for April 10. At some point in March representatives of the insurer called on the claimant to discuss the matter. A written statement from him was taken, but it was not introduced in evidence. The claimant did testify, however, that the representatives had not advised him at that meeting that the limitations period was about to run or that his claim would be disallowed. On March 29, the insurer wrote the claimant a letter, which was not received by him until April 2, 1973, asserting that the claimant’s present complaint did not, in the carrier’s opinion, result from the injury received on June 18, and that no further medical payments or compensation payments would be made.

The court upheld a decision by the Commission granting an award to the claimant. The rationale of the decision is presumably that the respondent’s failure to send its letter of disclaimer until after the limitations period had run, coupled with the immediacy with which the claimant then filed his application, permitted an inference that the silence of the carrier’s agents at the earlier meeting, if not a deliberate act of concealment, was at least designed to create a reasonable expectation on the part of the claimant of a further response in advance of the end of the limitations period.

Molex, too, involved prolonged discussions with the insurance carrier’s adjuster following the accident, which took place February 13, 1971. The application with the Commission was filed October 4, 1972. After the claimant had furnished the adjuster with the report of a doctor by whom he had been examined, the adjuster, on January 5, 1972, offered to settle the claim for a stipulated amount. When the claimant rejected the offer, the adjuster suggested that an examination be made by a second doctor, since it was possible that the carrier might then make a better offer. Such an examination was had and the adjuster then advised the claimant that it was awaiting receipt of the report. It was not until March, after the limitation period had expired, that the adjuster informed the claimant that the second report had been negative and that no further offer would be made. In affirming a decision of the Commission granting an award, this court stated:

“When settlement negotiations are conducted as close to the expiration of the limitation period as they were in this case notice of the termination of negotiations should be given to the claimant a reasonable length of time before the expiration date so that he may have adequate time to prepare and file an application for adjustment of claim.” 62 Ill. 2d 46, 51.

While Kaskaskia and Molex indicate that an estoppel may sometimes arise in the absence of an outright misrepresentation, the circumstances of those cases are distinctively different from those now before us. The conversations with different employees of the respondent to which claimant testified are not the equivalent of a course of negotiation with an insurer over a specific claim for compensation, and they took place at a time far in advance of December 22, 1971, the date when the limitation period was to expire. Before that date, moreover, since the respondent had not paid any compensation, it must have become apparent to the claimant that the respondent had no intention of doing so, notwithstanding any statements previously made to her.

This lack of payment by the respondent, the absence of any promises of payment made later than July 1971, and the failure of the claimant to conduct further inquiry all negate the thesis that the claimant’s failure to file her application within the one-year period was due to reliance upon the respondent’s representations. See Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 372.

Where the evidence permits more than one inference the propriety of the inference drawn is a matter of fact for the determination of the Commission, but where there is no evidence at all on which to base the inference the decision of the Commission becomes mere speculation and cannot stand. See Lawrence v. Industrial Com. (1945), 391 Ill. 80, 85; Kirkwood Brothers Construction v. Industrial Com. (1978), 72 Ill. 2d 454, 459.

A further reason for reversal is that the claimant did not file her application for adjustment of claim until September 1, 1972, well over a year following the date of her last conversation with an employee of the respondent. Section 6(c)(3) of the Act imposes a one-year limitation from the date of the accident, and when the period is extended by virtue of a payment of compensation, a limitation of one year from the last such payment is also established. To permit a longer period when the starting point of the limitation period has been deferred through estoppel would be anomalous. It would eliminate the element of reliance from the concept of estoppel, and it would potentially allow an application to be filed at any time in perpetuity.

We are of the opinion that when an estoppel is held to defeat the operation of the one-year limitation period imposed by section 6(c)(3) of the Act, the application for adjustment of claim must nevertheless be filed no later than one year from the occurrence of the conduct on which the .estoppel is based. That is a position which has been adopted or favorably referred to by other courts. (See Workmen’s Compensation Appeal Board v. Griffith (1977), 28 Pa. Commw. 623, 629-30, 368 A.2d 1371, 1374-75; Tamowski v. Kanarr Corp. (1974), 12 Pa. Commw. 488, 491-92, 317 A.2d 904, 905-06; Palmer v. City of Pittsburgh (1973), 9 Pa. Commw. 526, 531-32, 308 A.2d 179, 182; United States Steel Corp. v. Iwaskewycz (1972), 7 Pa. Commw. 211, 215-16, 298 A.2d 62, 64; Duncan v. Gaffney Mfg. Co. (1949), 214 S.C. 502, 511, 53 S.E.2d 396, 399-400; Annot., 44 A.L.R.Sd 760, 775 (1972).) It is also a position which is not inconsistent with prior decisions of this court (cf. Schumann v. Industrial Com. (1975), 61 Ill. 2d 241; Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 372), except for George Young & Sons v. Industrial Com. (1977), 66 Ill. 2d 220, where a contrary result was reached without discussion. We consider that that decision should not be followed in this regard.

In view of our disposition of this appeal we do not reach the question whether the Commission’s finding of disability was contrary to the manifest weight of the evidence. The judgment of the circuit court of Cook County is accordingly reversed, and the cause is remanded to the Industrial Commission with directions to dismiss the claim.

Reversed and remanded, with directions.


text:
    (No. 50284.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MILTON BURNS, Appellee.

      Opinion filed April 3, 1979.

      William J. Scott, Attorney General, of Springfield, and C. David Vogel, State’s Attorney, of Pontiac (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Robert C. Perry and James G. Condon, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for appellant.
    Curtis W. Myers, of Pontiac, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The defendant, Milton Burns, filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122—1 et seq.) alleging violation of his constitutional rights to due process and equal protection of the law in his trial, together with a codefendant, in the circuit court of Livingston County, which resulted in his conviction of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18—2). The petition also alleged a denial of the right to effective assistance of counsel in his appeal to the appellate court from that conviction. (The only ground of appeal then asserted was that the defendant’s sentence, not less than 50 nor more than 150 years, was excessive. In a Rule 23 order (39 Ill. App. 3d 1073), the sentence was reduced by the appellate court to 15 years to 45 years.) At the post-conviction hearing, the circuit court held that the claim in the petition that the prosecution had improperly withheld a police report containing material favorable to the defendant’s defense of alibi had been waived because the defendant had not raised the point on his appeal to the appellate court. The circuit court held too that this waiver did not constitute ineffective assistance of counsel on appeal, and denied the petition. The appellate court reversed under a Rule 23 order. (52 Ill. App. 3d 1101.) That court had granted Henry Payne, Jr., the codefendant, a new trial in a separate and earlier appeal from his robbery conviction based upon the same discovery issue the defendant sought to raise in his post-conviction petition, i.e. the withholding of the police report. (See People v. Payne (1976), 44 Ill. App. 3d 502.) The appellate court said that the defendant was equally affected by the prosecution’s failure to provide the police report, and that fundamental fairness required that the defendant also be given a new trial. The court, however, stated that the earlier granting of a new trial to the codefendant on his appeal may have been erroneous because the court through oversight did not consider the applicability of the holding of the Supreme Court in United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392. We granted the People’s petition for leave to appeal. 65 Ill. 2d R. 315.

The questions we must consider are whether the defendant was deprived of due process and a fair trial by the prosecution’s failure to produce the police report concerned and whether the issue was waived by the defendant’s failure to raise it on his direct appeal. In order to be entitled to relief under the Post-Conviction Hearing Act, it is necessary that the petitioner have suffered “a substantial denial of his rights under the Constitution of the United States or of the State of Illinois” (Ill. Rev. Stat. 1977, ch. 38, par. 122—1). Our review will therefore be limited to constitutional considerations and will not consider the actual scope of discovery under Rule 412 (58 Ill. 2d R. 412).

Under our Rule 412 (58 Ill. 2d R. 412), the defendant and Payne, his codefendant, had filed identical written motions in advance of trial requesting that the People provide:

“The names and last known addresses of persons who[m] the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements, which the State has in its possession or control ***.
* * *
Any material or information within the possession or control of the State, which tends to negate the guilt of the Defendant as to the offense charged in this cause, or which would tend to reduce the Defendant’s punishment therefor ***.”

The withheld police report included the following statement by investigating officer Curtis Van Note:

“I got a call *** at 7:43 p.m. advising me to go to Simmie’s Store, that there had been a robbery there. As I arrived *** Mrs. Hummel *** said two colored subjs. had just held them up at gun point. *** I met Mr. and Mrs. Vincent W. Entires, who were in the store when this took place. Also in the store was Mama Hummel, who works there. These people told me the following ***. The two Negro subjs. are described as follows,
1. 5’7” to 5’8”, around 30 years old, heavy set, wearing dark pants and a sweater.
2. 5’8” to 5’9”, around 30 years old, 170 to 175 pounds, wearing a full beard and moustache. Had on a dark colored pea coat and dark blue bell bottom trousers.
No one saw the vehicle involved in this nor the direction of travel.
At 9:10 p.m. *** I got a call *** to go back to Hummel’s, that they knew the car and could describe it. After returning to the store, Mama said the car was Buick Electra 225, maroon in color. *** [S]he said Joe Ortega had come into the store after we left and wanted to know what happened. She told him and he said I bet it was the same ones that were here Saturday. She then remembered that two colored subjs. had come to the store Saturday and one of them looked inside and then left. She said this was the type of car they were in.
At 11:10 p.m. I got a call to go to the Joe Speedon house as Mrs. Speedon saw the subjects that did this. She said she had been to the store shopping around 7:30 p.m. and as she was leaving two colored subj. were going in. She described them as the people in the store did. The only car she saw was a light green or creamed colored one which was parked just north of the doors. She thought this car had 75 Ill. plates on it. She said there was no one else in the car.”

The descriptions of the suspects in the report appear to be composite summaries of oral statements by all four eyewitnesses to the robbery. Of the four, only Mama Hummel was not called to testify at trial. The report’s summary of a statement by Mama Hummel seemed to suggest that she believed the robbers were the two persons who had visited the store on the previous Saturday and that the vehicle involved on both occasions was a Buick Electra. When the defendant learned of the existence of the report, which was subsequent to trial but prior to his post-trial motion, a signed statement was obtained from Joe Ortega. In it he said that the defendant and his codefendant, both of whom Ortega had met in the county jail after their trial, were not the men Ortega and Marna Hummel had observed in the store previous to the robbery and who had departed in a brown Buick Electra. While there is a slight inconsistency in the statements by Mama Hummel and Joe Ortega as to the color of the Buick (maroon or brown), it is not sufficient to overcome the favorable impact their testimony might have had at trial.

A witness for the prosecution was a woman who testified she “cased” the store for the robbers and drove their automobile in the escape. She said the auto used was a blue Pontiac. She was not prosecuted for her claimed participation in the robbery. The witness admitted that at the time she made her statement to the police there was a forgery charge pending against her and that it was later reduced to a charge of deceptive practices.

The Supreme Court in Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, announced: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, however, the Supreme Court distinguished a specific request for exculpatory information, as Brady involved, from a general request which “really gives the prosecutor no better notice than if no request is made.” (427 U.S. 97, 106-07, 49 L. Ed. 2d 342, 351, 96 S. Ct. 2392, 2399.) The court used as examples of a general request a request for “all Brady material” or for “anything exculpatory.” The court said:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” (Footnotes omitted.) 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 354-55, 96 S. Ct. 2392, 2401-02.

Here the defendant’s written pretrial motion for discovery material requested, as to persons whom the State intended to call as witnesses, “memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements, which the State has in its possession or control.” Officer Van Note’s report can be considered to have set out a composite summary of oral statements by three persons whom the People called as witnesses. We consider that the request, under these facts, was given with sufficient specificity to warrant application of the Brady test, and that the prosecution’s failure to provide the report was not harmless error.

Because the defendant was not furnished the report, he was denied the opportunity of questioning the witnesses regarding discrepancies between the composite descriptions, what descriptions each gave the police, what they testified to, and the actual physical characteristics of the defendant and Payne. Offered in conjunction with the testimony at trial by the defendant’s three alibi witnesses, evidence of these discrepancies would have been favorable to the defendant and material to the question of his guilt. The report also would have advised him that Marna Hummel had witnessed the robbery and had told the police that the robbers had driven a maroon Buick Electra, which would have contradicted the testimony of the woman accomplice who had said the robbers had driven a blue Pontiac LeMans. Marna might have testified that the defendant was not one of the robbers. The report would have informed the defendant that Mrs. Speed on may have seen the robbers and she might have testified he was not one of them. Her description of the men observed entering the store matched the composite description, which differed from the actual appearance of the defendant and Payne. Ortega, while his testimony alone under the circumstances might not have been impressive, would also have been available as a witness. In light of the holding of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, the failure to provide the defendant with the requested information was constitutional error.

Under the circumstances we consider that the doctrine of waiver should not be applied here so as to preclude consideration of the defendant’s denial of the report. Of course, an appellate court’s determination in the original appeal is ordinarily res judicata as to the issues raised, and issues which could have been raised but were not are deemed waived. (People v. Partin (1977), 69 Ill. 2d 80, 83; People v. French (1970), 46 Ill. 2d 104, 107; People v. Weaver (1970), 45 Ill. 2d 136, 138; People v. Derengowski (1970), 44 Ill. 2d 476, 479; People v. Doherty (1966), 36 Ill. 2d 286, 291; People v. Agnello (1966), 35 Ill. 2d 611, 613; People v. Ashley (1966), 34 Ill. 2d 402, 408.) This court has nevertheless recognized the need to relax strict application of the waiver rule, where fundamental fairness so requires, in post-conviction proceedings (People v. Brown (1972), 52 Ill. 2d 227, 230; People v. Keagle (1967), 37 Ill. 2d 96, 101 ,People v. Hamby (1965), 32 Ill. 2d 291, 294), as well as on direct appeal (People v. Gilbert (1977), 68 Ill. 2d 252, 258; People v. Sprinkle (1963), 27 Ill. 2d 398, 399-400).

The defendant was tried jointly with Payne for the same crime. The two men presented identical discovery motions. Neither gained access to the report until after their trial. The same post-trial motion was filed on behalf of the two, argued, and denied. The appellate court in awarding the defendant a new trial stated that its failure to consider United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392, may have been erroneous; but as we have stated here, we consider that under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, a new trial is proper. We judge that fundamental fairness requires that the waiver doctrine should not be applied in the case of the defendant’s post-conviction petition.

The appellate court’s judgment, which reversed the judgment of the circuit court of Livingston County and remanded the cause with directions that the defendant’s conviction and sentence be set aside and that he be awarded a new trial, is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 50766.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEFFERY F. KNIGHT, Appellee.

      Opinion filed April 3, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Joan S. Cherry, and Bryan B. Lavine, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

In November 1975, the circuit court of Cook County sentenced the defendant, Jeffery F. Knight, to 5 years’ probation following his plea of guilty to burglary and theft. In December 1976, the court, exercising its continuing jurisdiction over defendant, held a probation revocation hearing, found that defendant had violated his probation by committing a burglary in January of that year and sentenced him to 2 to 6 years in the penitentiary. Defendant’s earlier motions to suppress an allegedly involuntary statement and evidence improperly seized had been denied on the ground that motions to suppress were inappropriate at a revocation hearing. The appellate court reversed and remanded, holding that defendant should have been granted an evidentiary hearing on his motion to suppress. (58 Ill. App. 3d 651.) We granted the State leave to appeal.

Defendant’s motion to suppress statements alleged that, after his arrest in February 1976, police had interrogated him without giving him the Miranda warnings. The motion further alleged that the statements were involuntary because police had obtained them through “psychological and mental coercion” and that police had knowingly “confront [ed] the accused with certain material misrepresentations of fact.” His motion to suppress physical evidence consisting of a television set alleged that the evidence was seized as a direct result of defendant’s illegally obtained confession and that police obtained the evidence from defendant’s home “by harassing his wife and threatening to search his home without a warrant, and attempting to coerce consent to search, and performing the search without consent.”

Those motions were denied by the trial judge based upon his belief that “you are not entitled to have motions to suppress anything” at hearings on petitions to revoke probation. When counsel pointed out that allegedly police harassment had accompanied the seizure of the evidence sought to be suppressed, the court indicated that counsel could introduce testimony of harassment during the hearing on the issue of the credibility of the witnesses.

At the revocation hearing Officer Robert Specht testified for the State that while driving home in his own car at 3 a.m. on January 31, 1976, he saw defendant and Jose Ramos, both previously known to him, standing in front of the dry-cleaning establishment which was burglarized. He parked and observed them for 45 minutes, during which time they would hide when a patrol car passed and then re-emerge. Specht left when they walked away from the premises. When Specht next returned to work on February 2, he learned that the cleaners’ had been burglarized on the night of January 30-31.

Specht testified he saw defendant and Ramos on February 4 in the lockup on an unrelated charge. He and his partner, Officer Terrence Hart, spoke with Ramos, who confessed to burglarizing the cleaners’ with defendant and said they had stored the proceeds, a television set, at defendant’s apartment. The two officers then talked with defendant’s wife, who was also at the station, and asked her to surrender the television set, telling her that they could obtain a search warrant if she did not consent. Defendant’s wife agreed to cooperate and the officers accompanied her to her apartment, where she gave them the television set introduced into evidence. Specht further testified that, after returning to the station house, he gave defendant the Miranda warnings and asked him about the burglary. Defendant initially denied culpability, but, when confronted with the television set, he confessed that he had broken the glass door of the cleaners ’ with a lead pipe and stood guard while Ramos stole the television set, which the men took to defendant’s apartment.

The owner of the dry-cleaning establishment identified the television set in question as the one stolen in the burglary.

Naomi Knight, defendant’s wife, testified for the defense that on February 4, at the 14th district station house, Officer Specht threatened to arrest her for burglary if she did not surrender the television set and told her that defendant had given police permission to get the set. Officer Hart then grabbed her by the arm and pushed her out the door, ordering her to go with them and give them the set. When Mrs. Knight asked the officers to get a warrant, they said they did not want to go to all that trouble, and they refused to let her speak to defendant before leaving. At her apartment, Hart pushed her inside and told her to get the television. When he entered the apartment she told him to take the set and leave. Mrs. Knight stated that Ramos had brought the television to her apartment a few days earlier and told her that it was not stolen.

Defendant testified that in the early morning hours of January 31 he and Ramos had stood in front of the cleaners’ waiting for a bus, and that they left when the bus arrived. He observed Specht, with whom he was acquainted, sitting in his car. The next day Ramos brought a television set to defendant’s apartment and asked permission to leave it there, denying that it was stolen. On February 4 defendant talked to Specht at the station house and Specht told him that he, his wife and Ramos would be charged with burglary; defendant, however, made no statement to Specht implicating himself.

Defendant urges here that the revocation of his probation must be reversed outright because the State did not prove that he was on probation at the time of the January 31 burglary, although that fact was not denied. The State’s petition to revoke alleged that defendant had been placed on 5 years’ probation on November 6, 1975, by the same judge presiding at the revocation hearing. The judge’s comments during sentencing clearly indicate that he remembered placing defendant on probation and telling defendant that he would be sentenced to 3 to 9 years’ imprisonment if he violated the conditions of his probation.

It is settled that a trial court may properly take judicial notice of matters of record in its own proceedings. (People v. Davis (1976), 65 Ill. 2d 157, 161.) Similarly, in In re Brown (1978), 71 Ill. 2d 151, this court held that when a minor defendant testified that he was 15 years old at a hearing on a motion to suppress, the court could properly consider the testimony in a subsequent adjudicatory hearing in the same case, although no evidence of defendant’s age was presented at that hearing. (71 Ill. 2d 151, 153.) We believe these holdings are controlling here. In a probation hearing, the trial court is simply exercising its continuing jurisdiction over the probationer. (Ill. Rev. Stat. 1975, ch. 38, par. 1005—6—4; People v. Hunt (1975), 29 Ill. App. 3d 416, 419; People v. Lampkins (1975), 28 Ill. App. 3d 254, 256.) This was, in effect, another hearing in the same case before the same judge, and the contention that the judge could not properly notice the fact that he had previously placed defendant on probation is without merit.

In urging reversal of the appellate court holding that defendant was entitled to a hearing on his motions to suppress the aHeged confession and the television set, the State argues that the issues raised by defendant’s motions, even if resolved in defendant’s favor, would not render the statement or the evidence inadmissible; that defendant’s motions were in any case insufficient to raise these issues properly; and that any error in refusing to grant a hearing on the motions was harmless in light of the testimony subsequently elicited at the revocation hearing.

The issue of voluntariness of the inculpatory statement which Officer Specht testified defendant gave was one which, if resolved in defendant’s favor, would have rendered the statement inadmissible under our recent holding in People v. Peterson (1978), 74 Ill. 2d 478. While indicating that Miranda violations of a technical nature would not preclude use of a confession in revocation proceedings, Peterson held that an involuntary confession by an accused probation violator and its fruits are inadmissible. Defendant’s motion here alleged that the statements were involuntary because police obtained them by means of psychological and mental coercion. The statements held inadmissible in Peterson had been found involuntary in an earlier, unappealed from trial for the same reason. It is true that at the revocation hearing defendant testified that he had made no incriminating statements to police. A defendant is entitled, however, to a hearing on the voluntary nature of an alleged confession even though he denies making it. People v. Gonzales (1968), 40 Ill. 2d 233, 240; People v. Norfleet (1963), 29 Ill. 2d 287, 291:

The appellate court concluded that defendant’s motion to suppress the television set raised the issue of police harassment alluded to in People v. Dowery (1975), 62 Ill. 2d 200, and that this harassment, if demonstrated, would have rendered the evidence inadmissible. Consequently, held that court, defendant was entitled to a hearing on his motion. In Dowery, this court held that the fourth amendment “exclusionary rule” was not applicable to probation revocation proceedings, but in discussing the issue noted the suggestion of several Federal courts that the rule might apply where police harassment of probationers is demonstrated. (62 Ill. 2d 200, 206.) Specifically, the court referred to United States v. Winsett (9th Cir. 1975), 518 F.2d 51, and two other Federal cases. In Winsett that court reasoned:

“[W] hen the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of anew crime; and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceeding may be necessary to effectuate Fourth Amendment safeguards.” 518 F.2d 51, 54 n.5.

The appellate court in this case concluded that the allegations in defendant’s motion regarding police harassment of his wife constituted the kind of “police harassment” alluded to in Dowery, and were sufficient, if proved, to justify suppression. With this conclusion we do not agree. We need not here decide the question left undecided by Dowery — whether the type of “police harassment” described in Winsett would justify entertaining suppression motions in revocation proceedings — for the facts here do not establish the “police harassment of probationers” referred to in those cases. It is true that testimony elicited at the revocation hearing indicated that Officer Specht was acquainted with defendant during the period of his probation, but there was no evidence that he knew defendant was a probationer. Nor did defendant’s motion make any reference to the officer’s prior knowledge of him or his status. Without that essential allegation and proof, the sole basis for considering whether police harassment of probationers justifies extension of the exclusionary rule to probation revocation proceedings never arises.

Defendant’s motion to suppress the' television set, however, also alleged that the set had been seized as a direct result of his involuntary confession. If the involuntariness issue had been resolved in defendant’s favor, the set might have been inadmissible as the fruit of the involuntary statement under Peterson depending on whether the set was seized prior to the statement, as Officer Specht testified, or subsequent thereto. The appellate court concluded that defendant was not entitled to a hearing on this issue because at the subsequent hearing he denied making a confession. This reasoning, however, ignores the holding of Norfleet that a defendant is entitled to contest the voluntary nature of an alleged confession even though he denies making it.

The State contends that defendant’s motions did not contain allegations sufficient to raise these issues properly, and that the trial court therefore correctly denied defendant a hearing on the motions. The fundamental problem with the State’s position is that the motions were not objected to as insufficient at the hearing where they could have been amended, and therefore, under normal principles of appellate adjudication, the objection will be deemed waived. (People v. Curry (1973), 56 Ill. 2d 162, 170.) Furthermore, the trial court’s refusal to grant defendant a hearing on the motions was not predicated on their insufficiency. The court expressly ruled that a motion to suppress was not appropriate at a revocation hearing, and it would have been patently useless for defendant to amend or to make an offer of proof.

Finally, we cannot say that the trial court’s error in refusing to grant a hearing on the motions was harmless in light of the testimony elicited at the revocation hearing. The State reminds us that the trial court allowed defendant to introduce evidence of harassment on the issue of credibility and suggests that the testimony given by defense witnesses at the revocation hearing “would probably have been the same at a suppression hearing.” The State further notes that defendant introduced no testimony substantiating the charge that the alleged statement was involuntary. The difficulty with this argument is that it requires us to assume that all evidence that might have been offered at the suppression hearing was offered at the revocation hearing. While the court indicated that defendant might introduce certain testimony on the issue of credibility, the judge was apparently referring only to testimony bearing on harassment, not to testimony bearing on the voluntary nature of defendant’s alleged confession. In People v. Strader (1967), 38 Ill. 2d 93, 97, where the trial court had erroneously overruled an objection to the introduction of an allegedly involuntary statement, this court refused to presume that when defendant subsequently took the stand he presented whatever evidence he had that the statement was involuntary. The court reasoned:

“Before the defendant testified, the trial judge had already ruled that the issue of voluntariness could not be considered because it had not been raised by a preliminary motion. Therefore the fact that the defendant did not offer evidence upon that issue when he took the stand can hardly be said to establish that his claim was without merit.” (38 Ill. 2d 93, 97.)

We believe that reasoning controls the present situation as well.

Accordingly, we hold that defendant is entitled to a hearing on the voluntary nature of his alleged confession and, if that issue is resolved in his favor, to a hearing on whether the television set was illegally seized as the fruit of that confession. With this modification the judgment of the appellate court is affirmed.

Affirmed as modified.