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

text:
    (No. 52621.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANDREW FLATT, Appellant.

      Opinion filed October 17, 1980.

    Rehearing denied November 26, 1980.

      GOLDENHERSH, C.J., and CLARK and MORAN, JJ., dissenting.
    Robert Agostinelli, Deputy Defender, and Michael Filipovic, Assistant Defender, of the Office of State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay and Neal B. Goodfriend, Assistant Attorneys General, of Chicago, and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves the right of the State to appeal from an interlocutory order in a criminal case. Specifically, the question presented is whether the trial court order appealed from was an order “suppressing evidence” and, therefore, appealable by the State by virtue of our Rule 604(a)(1). (73 Ill. 2d R. 604(a)(1).) A similar question is involved in People v. Young (1980), 82 Ill. 2d 234, also decided today. In Young, however, the suppression order was entered before the trial had commenced. In our case, the suppression order was entered after the jury had been sworn to try the issues.

On August 30, 1977, the Peoria residence of Patricia Ring was broken into. According to an investigation conducted by the Peoria Police Department, the perpetrator had entered the house by kicking open a basement door. Several pictures from the kitchen were taken. Also, a large stained-glass window from the living room was removed from the premises. The leaded window had been pried from its casing after the protective plate-glass window was broken and removed. Latent fingerprints and palm prints were taken from the broken plate glass at the scene of the crime by Peoria Police Department Officer Gary Siebenthal. The glass was not taken into police custody and, presumably, it was later disposed of by Ring. In a Peoria Police Department laboratory report dated October 20, 1977, the latent palm print developed from the glass was positively identified by Officer Siebenthal as being defendant’s left palm. Defendant was charged by a Peoria County grand jury indictment on December 6, 1977, with burglary in violation of section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)).

A public defender was appointed for the defendant on December 8, 1977, and the State was ordered to furnish discovery. In its answer for discovery dated December 9, 1977, the State represented, inter alia, that the tangible objects it intended to use at trial were available at the Peoria County State’s Attorney’s office. Due to a conflict of interest, the assistant public defender was granted leave to withdraw on February 20, 1978, and a private attorney, Ronald Halliday, was appointed by the court to represent the defendant. At some point thereafter, Halliday met with Officer Siebenthal and an assistant State’s Attorney at the State’s Attorney’s office for the purpose of obtaining discovery of the physical evidence. The piece of glass from which the prints were lifted was not produced at that meeting. A pretrial conference was also held. The record does not indicate whether the discovery meeting was conducted prior to the pretrial conference. It is clear, however, that the trial judge was not informed during that conference that, as claimed by defendant, discovery was incomplete and that the glass should have been delivered. Instead, defense counsel announced his readiness for trial.

On March 9, 1978, the date of trial, defense counsel presented a motion to produce physical evidence, seeking the broken plate-glass window which allegedly contained the latent print of defendant’s palm. According to the defense, the State’s failure to produce the glass for defendant’s independent examination violated defendant’s constitutional right to confront material evidence presented against him. In view of the late date at which Halliday had been appointed to represent defendant, the State waived its right to challenge the timeliness of the motion. Following arguments by counsel, the trial court granted defendant’s motion to produce. The State informed the court as to the possible unavailability of the glass, and the court indicated that such failure to produce the glass would result in a suppression of fingerprint evidence at the trial. The jury was then impaneled pursuant to the court’s suggestion that the parties proceed with the case until the State determined whether the glass was available for discovery.

Immediately after the jury was sworn, the State advised the court that the glass was unavailable. A proceeding was conducted outside of the presence of the jury. The hearing was apparently held on the State’s motion to reconsider the court’s ruling granting defendant’s motion to produce physical evidence. Officer Siebenthal was called by the State to testify as to the disposition of the plate glass. He stated that the plate-glass window measured 48 by 48 inches and that the piece of glass removed by the perpetrator in order to reach the stained-glass window was approximately one-half that size. He further stated that he lifted the latent prints on August 31, 1977, while the glass was at the scene of the crime; the glass was at no time transported to the Peoria Police Department. Leaving the large piece of glass at the scene was, according to the officer, consistent with departmental procedure followed in burglary cases in order to avoid congesting the department’s property room. It was Officer Siebenthal’s belief that the glass was subsequently disposed of by Ring. No other evidence was presented by either party. The court stood by its earlier ruling, stating that the failure to produce the glass would result in a deprivation of defendant’s due process right to confront evidence presented against him. The court indicated that all fingerprint evidence would therefore be suppressed. The State advised the court that the only motion before the court was one to produce physical evidence. After much discussion among the attorneys and the court, it was agreed that defendant’s attorney would file a motion in limine as a motion to suppress any fingerprint evidence. Noting that this motion was to be made during the trial and having been assured by the State that it would appeal, the court, in view of the procedures outlined in section 114 — 12(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 12(c)), discharged the jury. Thereafter defendant’s motion in limine to suppress the fingerprint evidence was filed. An order was entered, dated March 16, 1978, granting defendant’s motion and terminating the trial pursuant to the State’s motion to file an interlocutory appeal. The appellate court, with one justice dissenting, reversed and remanded. (75 Ill. App. 3d 930.) We granted defendant’s petition for leave to appeal.

In this court, defendant asserts that the appellate court wrongfully entertained an appeal from the March 16, 1978, order. Citing People v. Van De Rostyne (1976), 63 Ill. 2d 364, defendant contends that the order entered was not an order suppressing evidence under Rule 604(a)(1) (73 Ill. 2d 604(a)(1)) since the evidence was neither obtained in an illegal search and seizure nor elicited in an involuntary confession. Citing People v. Alfano (1980), 78 Ill. 2d 434, defendant argues in the alternative that the order was not an order of suppression since the evidence was not obtained in violation of the exclusionary rule. Thus, according to defendant, under either Van De Rostyne or Alfano, the order entered was an order excluding evidence from which the State may not be permitted to appeal by virtue of Supreme Court Rule 604(a)(1).

The Illinois Constitution of 1970 provides in article VI, section 6, that after a trial on the merits in a criminal case there shall be no appeal from a judgment of acquittal, and it further provides:

“The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” (Ill. Const. 1970, art. VI, sec. 6.)

Our Rule 604(a)(1) provides for appeals by the State in criminal cases:

“(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (Emphasis added.) (73 Ill. 2d R. 604(a)(1).)

There has been considerable litigation concerning the nature of the rulings of the trial court that are appealable by the State under this rule, particularly as it relates to orders “suppressing evidence.” In one line of cases, the courts have stated that the appealability of such orders turns on whether the trial judge believes that the effect of his ruling will be to block the prosecution entirely. (People v. Shipp (1968), 96 Ill. App. 2d 364, 366; People v. Koch (1973), 15 Ill. App. 3d 386, 388.) (But see People v. Smith (1972), 5 Ill. App. 3d 642, 643 (right to appeal does not require the State to show it would have insufficient evidence to proceed with the prosecution).) The test enunciated in this line of cases was expressly rejected in People v. Van De Rostyne (1976), 63 Ill. 2d 364, 368. (See also People v. Lara (1976), 44 Ill. App. 3d 116, 124.) In another line of cases, a distinction is made between orders suppressing evidence and mere evidentiary rulings. According to these cases, only the former are deemed to be appealable under the Rule. People v. Thady (1971), 133 Ill. App. 2d 795; People v. Wheatley (1972), 5 Ill. App. 3d 827; People v. Koch (1973), 15 Ill. App. 3d 386, 389; People v. Macaluso (1976), 36 Ill. App. 3d 592, 594; People v. Young (1978), 60 Ill. App. 3d 49, 56.

While we agree that it is suppression orders, as distinguished from evidentiary rulings, that are appealable by virtue of Rule 604, we recognize the difficulty involved in defining that which constitutes an order of suppression. In People v. Thady (1971), 133 Ill. App. 2d 795, the State attempted to appeal from an order suppressing testimony relating to a breath-analysis test. The court held the order to be an evidentiary ruling and not appealable. The appellate court stated that the court’s rulemaking authority was limited by the legislature. Finding only two statutory provisions concerning the suppression of evidence, the court held that the State’s ability to appeal from orders granting motions to suppress was limited to those orders entered pursuant to either section 114 — 11 (involuntary confessions) or section 114 — 12 (illegal search and seizure) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, pars. 114 — 11, 114 — 12). Since the evidence obtained in Thady was neither illegally obtained nor an involuntary confession, and “a rule can have no broader scope than the statute which gave it birth (133 Ill. App. 2d 795, 797), the order was not one from which the State could take an appeal under Rule 604(a)(1).

It is clear that in the Thady case the court was of the opinion that the State’s right to appeal was a narrow one which could not be expanded by a rule of this court beyond the specific statutory language. Thady states that this court was authorized by section 120 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 120 — 1) to make rules for appeals by the State. Although the court in that case acknowledged that section 120 — 1 was repealed, it, nonetheless, felt that the rule-making power was found in the Civil Practice Act, section 2 of which (El. Rev. Stat. 1969, ch. 110, par. 2) granted to this court power “to make rules ‘supplementary to but not inconsistent with’ the Act.” (Emphasis in Thady.) (133 Ill. App. 2d 795, 797.) It therefore considered the scope of the appeal, which this court authorized by our Rule 604, to be limited by statutory provisions. Since the court found only two provisions in the statutes (sections 114 — 11 and 114 — 12 of the Code of Criminal Procedure of 1963) governing suppression of evidence, it considered the scope of review under our Rule 604 limited by those sections. We do not here consider the validity of the reasoning in Thady. Section 120 — 1 of the Code of Criminal Procedure of 1963 has been repealed, and under the 1970 Constitution this court’s authority to provide for appeals from other than final orders is derived not from statutes but from article VI, section 6, of the 1970 Constitution, and this authority is not limited or curtailed by section 2 of the Civil Practice Act. The scope of appeals from orders suppressing evidence as authorized by Rule 604(a)(1) need not therefore be limited by the provisions of sections 114—11 and 114—12 of the Code of Criminal Procedure of 1963.

In his brief, defendant contends that in People v. Van De Rostyne (1976), 63 Ill. 2d 364, this court held, consistent with Thady, that the State’s right to appeal from suppression orders was limited to orders entered pursuant to the two statutory provisions mentioned above. Several appellate court opinions have also interpreted Van De Rostyne in this manner. (People v. Lara (1976), 44 Ill. App. 3d 116, 124; People v. Eddington (1977), 47 Ill. App. 3d 388, 389; People v. Young (1979), 76 Ill. App. 3d 210, 212, vacated and remanded (1980), 82 Ill. 2d 234; People v. Phipps (1979), 79 Ill. App. 3d 532, 536.) (But see People v. Stuckey (1979), 78 Ill. App. 3d 1085.) While we recognize that there is language in the Van De Rostyne opinion which may support such an interpretation, we do not view the Van De Rostyne case as so limiting the State’s right to appeal.

In Van De Rostyne the defendant, charged with driving while intoxicated, filed a motion to suppress the results of a breathalyzer test after the jury had been impaneled. Evidence concerning the method used in administering the test was then taken outside the presence of the jury, and the defendant’s motion was granted. The State informed the court of its desire to appeal from the ruling, and the court declared a mistrial. On appeal, the defendant conceded that the test had been properly conducted but he filed a motion to dismiss, claiming that the court lacked jurisdiction to entertain the appeal. The appellate court denied the motion to dismiss and, addressing the merits of the case, found that the trial court erred in suppressing the breathalyzer-test evidence. On appeal this court held that the appellate court had erred in its finding of appellate jurisdiction to entertain the merits of the appeal. Noting that defendant’s motion to suppress was made subsequent to the commencement of trial, this court found the State’s right to appeal depended on section 114 — 12(c) of the Code of Criminal Procedure of 1963, which deals with motions to suppress illegally seized evidence. It provides that such motions should be made before trial, but it also provides that, under certain circumstances, such motions may be made during trial; it states:

“If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the evidence, the court shall terminate the trial *** without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression.” (Ill. Rev. Stat. 1977, ch. 38, par. 114 — 12(c).)

Since the evidence was not the result of an illegal search and seizure, as is required under section 114 — 12(c), this court in Van De Rostyne held that the procedures set forth in paragraph (c) for interrupting the trial for appellate review of the suppression order would not govern the case. Reluctant to allow the defendant to profit from the erroneous labeling of the motion filed during trial as a motion to suppress, this court vacated the order granting the motion to suppress and declaring a mistrial. This court remanded the cause for trial.

The facts in Van De Rostyne presented a situation where the State, under the procedure set out in section 114 — 12(c), sought to appeal from an order entered pursuant to a motion presented during trial to suppress legally obtained evidence. It is well settled that the precedential scope of a decision is limited to the facts before the court. (See, e.g., People v. Beard (1974), 59 Ill. 2d 220, 225, cert. denied (1975), 421 U.S. 992, 14 L. Ed. 2d 483, 95 S. Ct. 1999; People v. Arndt (1971), 49 Ill. 2d 530, 533.) Thus Van De Rostyne holds only that an appeal from the merits of a court’s ruling on a motion to suppress evidence which was filed during trial may be had only if it is alleged that said evidence was illegally obtained. We therefore cannot accept defendant’s interpretation of Van De Rostyne as defining all appealable suppression orders under Rule 604 as those entered either under section 114 — 11 or section 114 — 12. In People v. Young (1980), 82 Ill. 2d 234, this court has, at this term, rejected this reading of Van De Rostyne and held that. Van De Rostyne and section 114 — 12(c) of the Code of Criminal Procedure of 1963 do not limit the State’s right to appeal from pretrial suppression orders. Inasmuch as the appeal before us was taken from an order entered during trial, further discussion of the appealability of pretrial suppression orders is unnecessary.

At common law, a claim that evidence was obtained by means of an illegal search and seizure had to be raised before trial by means of a motion to suppress or to return the evidence. This requirement arose from a consideration of judicial economy; the court should not be required to interrupt a trial in order to determine the collateral issue of the manner in which the evidence was obtained. (People v. Braden (1966), 34 Ill. 2d 516, 520; People v. Dalpe (1939), 371 Ill. 607, 611; People v. Drury (1929), 335 Ill. 539, 557; People v. Brocamp (1923), 307 Ill. 448, 454.) (See 23A C.J.S. Criminal Law sec. 1060, at 11 (1961).) By virtue of section 114—12(c) (Ill. Rev. Stat. 1977, ch. 38, par. 114—12(c)), the common law rule was relaxed; the court may, in its discretion, conduct a hearing on a motion to suppress even though the motion is filed after trial has begun, providing that it is alleged that the evidence was illegally seized. Thus, the prohibition against filing a motion to suppress during trial has been relaxed so as not to prevail over the constitutional right to be free from unreasonable searches and seizures. (See generally 23A C.J.S. Criminal Law sec. 1060, at 11 (1961).) The Van De Rostyne court correctly held, therefore, that section 114 — 12(c) empowers the trial court to entertain the merits of a motion filed during the trial, and the State may appeal from a suppression order then entered only where the defendant seeks the suppression of illegally obtained evidence. We will later address the question of whether the court’s authority to enter an order on a motion to suppress lawfully obtained evidence filed during trial can be reviewed.

Article VI, section 6, of our constitution grants this court the authority to provide for appeals from other than final orders. We must, therefore, hold invalid any construction of section 114 — 12(c) which holds that that section authorizes the State to appeal from an order entered during trial suppressing evidence. The State’s right to appeal stems from our Rule 604(a) and not from any statutory provision. The legislative grant of authority to file a motion, however, would not unduly infringe upon the inherent rulemaking authority of the judiciary. (See People v. Cox (1980), 82 Ill. 2d 268.) Thus, we view section 114 — 12(c) as authorizing, to a limited extent, the defendant to make a motion to suppress after the trial has commenced. As noted above, this section has relaxed the common law rule requiring such motions to be made before trial. The defendant should not be permitted to preclude the State’s right to appeal by delaying the making of the motion to suppress. Therefore, the State’s right to appeal under our Rule 604(a) should be as broad as the defendant’s right to file motions to suppress under section 114 — 12(c), and the suggested procedure for interrupting the trial for the appeal from an order allowing such a motion, as outlined in that section, is appropriate. In other jurisdictions, the broadening of the prosecution’s right to appeal has generally been from pretrial suppression orders and not from suppression orders entered after the trial has commenced. In fact, the broadening of the right of the defendant to make such motions has followed this pattern. See ABA Standards, Criminal Appeals sec. 1.4 (prosecution appeals) & Commentary, at 39-40 (1970); 8 J. Moore, Federal Practice par. 12.05[2], at 12—32 through 12-34 (2d ed. 1980); 18 U.S.C. sec. 3731 (1976).

Since the right of a defendant to file motions to suppress after the trial has commenced is limited by the provisions of section 114—12(c), the State’s right to appeal from suppression orders during trial is limited to orders entered allowing these motions. However, some review must be given the prosecution of orders entered granting motions to suppress not authorized under section 114—12(c) which should have been made prior to trial. If the reviewing court determines that the motion was not within the ambit of section 114—12(c) and that the court wrongfully considered it during the trial, the State must be permitted a review of the authority of the court to enter the suppression order, even if it did not involve illegally seized evidence and section 114—12(c) of the Code of Criminal Procedure of 1963. The review would not, in such a case, be of the merits of the court’s ruling but rather would concern the trial court’s authority to entertain the motion. This right to review the court’s authority to entertain the motion is based on two policy considerations. First, the State is not permitted an appeal from a judgment of acquittal in a criminal case. Thus, no review would be had of suppression rulings not falling within section 114 — 12(c). Therefore, such rulings would result in inconsistent holdings in the suppression area. Second, it would be manifestly unfair for the State’s case to be substantially weakened due to the erroneous entry of suppression orders during trial. The right of such review, however, does not extend to rulings which do no more than exclude evidence made during trial but must be limited to rulings which substantially impair the State’s ability to prosecute the case as shown by the certificate of the prosecutor following the rationale of our holding in People v. Young (1980), 82 Ill. 2d 234.

We comment finally as to the appropriate remedy to be employed where the reviewing court has determined that the trial court entertained and allowed a motion to suppress that is not authorized by section 114 — 12(c). The order granting the motion to suppress should be vacated and the cause should be remanded for a continuation of the trial. This cannot be done, however, in violation of the proscription against double jeopardy. (See People v. Alfano (1980), 78 Ill. 2d 434, 445-46.) In Alfana the trial was not merely interrupted as provided in section 114 — 12(c), but this court found that the order of the trial court was in fact a judgment of acquittal from which no appeal could be taken by the State.

In our case the court, during trial, erroneously entertained a defendant’s motion to suppress and allowed the same and declared a mistrial so that an appeal could be taken from the order. The defendant should not be permitted to benefit from the declaration of a mistrial which resulted from his untimely motion to suppress. Although the trial court may have abused its discretion in entering an order suppressing the evidence and declaring a mistrial, this action was triggered by the defendant, who may, therefore, be tried anew without violating the proscription against double jeopardy. See United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547; People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527.

We hold, therefore, that the trial court erroneously considered the merits of defendant’s motion. The motion was filed and the order was entered after the jury was sworn. The trial had, therefore, commenced and jeopardy had attached. (People v. Van De Rostyne (1976), 63 Ill. 2d 364, 369.) Since the motion was filed during trial, it could be entertained under section 114—12(c) only if it alleged that the evidence sought to be suppressed was illegally obtained. (Ill. Rev. Stat. 1977, ch. 38, par. 114—12(c).) Defendant does not allege that the evidence was illegally seized. He challenges only the propriety of the State’s use of fingerprint evidence which was unavailable for defendant’s inspection due to the police department’s failure to preserve the glass and to produce the physical evidence pursuant to a pretrial discovery order. By interrupting the trial to determine whether the State should have produced the glass, the trial court dealt with an issue collateral to the determination of defendant’s guilt or innocence. Interruption of a trial for the determination of a motion to suppress based on a collateral issue other than as authorized by section 114—12(c) is impermissible. Without considering the correctness of the court’s ruling, we find that the trial court erred in entertaining defendant’s motion.

Some confusion in this general area has been engendered by the increased use of “in limine” motions. Generally, such motions relate to evidentiary matters and simply seek a ruling of the court prior to the time that an issue arises in front of a jury. The term “in limine” itself is not a word of art insofar as the content of a motion so labeled is concerned. The term simply means “[o]n or at the threshold; at the very beginning; preliminarily.” (Black’s Law Dictionary 896 (rev. 4th ed. 1968).) In our case, although the motion which the court allowed was called a motion in limine, the gist of the motion was to suppress the evidence of fingerprints for the failure to comply with discovery orders. The motion, although designated an in limine motion, should not have been made at the beginning of the trial, but should have been made before the jury was sworn. Accordingly, the judgment of the appellate court and the

order of the circuit court are vacated and the cause is remanded to the circuit court of Peoria County for trial.

Vacated and remanded.

MR. CHIEF JUSTICE GOLDENHERSH,

dissenting:

I dissent. In my opinion, fundamental fairness requires that the defendant’s motion be treated as a pretrial motion to suppress. The record shows that the People failed to comply with an order to produce the glass from which the latent fingerprint was taken. The circuit court was not advised until the day of trial that it was possible that the glass would be unavailable, and it was at that time that the court indicated that failure to produce the glass would result in the suppression of fingerprint evidence at the trial. The defendant did not waive his motion at that point; it was at the suggestion of the court that the parties proceeded with the case without a definitive ruling on defendant’s motion. To treat the defendant’s motion as a motion filed after the trial was commenced, under the circumstances shown here, is to elevate form over substance.

I would, as did the appellate court, treat defendant’s motion as a timely filed motion to suppress the evidence and would, for the reasons stated in its opinion, affirm the appellate court’s judgment.

CLARK and MORAN, JJ., join in this dissent.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 52793.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CRAIG LEE COX et al., Appellees.

      Opinion filed October 17, 1980.

      William J. Scott, Attorney General, of Springfield, and Patrick Walsh, State’s Attorney, of Decatur (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Gary J. Anderson and Larry Wechter, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Woollen, Brown, Hawkins & Basola, of Decatur (Gregory A. Mattingley, of counsel), for appellee Craig Cox.
    Moody & Diamond, of Decatur, for appellee Sharon Stevens.
    Theodore A. Gottfried, State Appellate Defender (Robert E. Davison and David Bergschneider, Assistant Appellate Defenders, of Springfield, of counsel), amicus curiae.

    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr and Myra J. Brown, Assistant State’s Attorneys, and Michele A. Grimaldi and Barry A. Gross, law students, of counsel), amicus curiae.

   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant Craig Lee Cox was charged with the offense of reckless homicide (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 3). Following a bench trial on stipulated facts, defendant Cox was convicted and sentenced to a two-year term of imprisonment. Defendant Sharon L. Stevens was charged with the offense of possession of less than 30 grams of a controlled substance (Ill. Rev. Stat. 1977, ch. 56V2, par. 1402(b)), phendimetrazine, and with the offense of deceptive practices (Ill. Rev. Stat. 1977, ch. 38, par. 17 — 1), it being alleged that she issued a check in the amount of $28.75 with knowledge that it would not be paid by the depository. Defendant Stevens entered a plea of guilty to the charge of possession of a controlled substance pursuant to a plea agreement in which the deceptive practice charge was dismissed, and she was sentenced to a two-year term of imprisonment. All proceedings took place in the circuit court of Macon County. These cases were then consolidated on appeal in the appellate court. (77 Ill. App. 3d 59.) The appellate court reduced the sentence of defendant Cox to a period of 30 months’ probation, with a term of three months’ imprisonment as a condition thereof, and remanded the cause to the circuit court for the imposition of additional conditions of probation. In the case of defendant Stevens, the appellate court reduced her sentence to a two-year period of probation and remanded the cause to the circuit court for the imposition of additional conditions of probation, excluding imprisonment. We allowed the State’s petition for leave to appeal.

The primary issue raised by these consolidated cases is the constitutionality of section 5 — 5—4.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—4.1), which purports to alter the standard of review of a sentence imposed by a trial judge and authorizes a court of review to enter any sentence that the trial judge could have entered. The section provides:

“Appeal — Modification of Sentence. The defendant has the right of appeal in all cases from sentences entered on conviction of murder or any other Glass of felony, however, in all such appeals there is a rebuttable presumption that the sentence imposed by the trial judge is proper. The court to which such appeal is properly taken is authorized to modify the sentence and enter any sentence that the trial judge could have entered, including increasing or decreasing the sentence or entering an alternative sentence to a prison term. However, the appellate court may increase a sentence only in instances where a defendant has filed a notice of appeal and raises the issue of the sentence on appeal.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—4.1.)

The appellate court held that this provision expanded the scope of review of sentences beyond the abuse-of-discretion standard announced in People v. Perruquet (1977), 68 Ill. 2d 149, substituting as the criteria a rebuttable presumption that the sentence was proper, and authorized a court of review to reduce a sentence of imprisonment to one of probation, contrary to our decision in People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552. The appellate court found support for this construction in the 1978 amendments to the Unified Code of Corrections. The court noted that these amendments prescribed the inclusion of additional information in the presentence report (Ill. Rev. Stat. 1979, ch. 38, par. 1005—3—2), enumerated objective factors in aggravation and mitigation to be considered in imposing a sentence (Ill. Rev. Stat. 1979, ch. 38, pars. 1005-5-3.1, 1005-5-3.2, 1005-8-2), and required the trial judge to set forth his reasons on the record in sentencing an offender convicted of a felony (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—1), and the court reasoned that these provisions were designed to develop a comprehensive record of the sentencing proceeding to enable an expanded scope of review. The appellate court concluded, relying upon People v. Choate (1979), 71 Ill. App. 3d 267, that the legislative purpose of eliminating unwarranted disparity in sentencing could only be accomplished if there were a corresponding increase in the authority of reviewing courts to scrutinize that discretion retained by the sentencing judges. The appellate court did not, however, address the question of a conflict between section 5—5—4.1 of the Unified Code of Corrections and Supreme Court Rule 615(b)(4), which provides in relevant part:

(b) “Powers of the Reviewing Court. On appeal the reviewing court may:
***
(4) reduce the punishment imposed by the trial court.” (73 Ill. 2d R. 615(b)(4).)

We initially address the arguments of the parties related to the appropriate standard of review of a sentence and the authority of a court of review to modify a sentence.

The State principally contends that section 5—5—4.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—5—4.1) infringes upon the exclusive power of this court to regulate by rule matters of appellate practice and procedure. The State argues, relying upon the decisions of this court in People v. Perruquet (1977), 68 Ill. 2d 149, People v. Rege (1976), 64 Ill. 2d 473, People v. Bolyard (1975), 61 Ill. 2d 583, and People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, that the provision directly contradicts Supreme Court Rule 615(b)(4) and is therefore unconstitutional. Assuming that the legislature could constitutionally authorize a change in the scope of appellate review of sentences, the State argues in the alternative that the “rebuttable presumption” standard contained in section 5 — 5—4.1 of the Unified Code of Corrections does not in fact expand the scope of review.

Defendants Cox and Stevens, in seeking to sustain the judgment of the appellate court, contend that no conflict exists between section 5—5—4.1 of the Unified Code of Corrections and Rule 615(b)(4). Defendants argue, relying upon language contained in People v. Perruquet (1977), 68 Ill. 2d 149, 153, that our rule does not define the scope of review of a sentence and that section 5—5—4.1 of the Unified Code of Corrections therefore should be considered a complement to our rule rather than in conflict with it. Defendants also argue, assuming the constitutional validity of section 5—5—4.1 of the Unified Code of Corrections, that in defining the authority of a court of review to reduce a sentence, our decisions relied in part upon the statutory provisions then in existence and that we therefore must reexamine this issue in light of the authority granted in section 5—5—4.1 of the Unified Code of Corrections.

Article VI, section 1, of the Illinois Constitution of 1970 states: “The judicial power is vested in a Supreme Court, an Appellate Court, and Circuit Courts.” Judicial power is not defined in the Constitution, but all such power is exclusively and exhaustively granted to the courts. (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 57; People v. Jackson (1977), 69 Ill. 2d 252, 256; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149.) If the power is judicial in character, it necessarily follows that the legislature is expressly prohibited from exercising it. (People v. Jackson (1977), 69 Ill. 2d 252, 256; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149; People v. Bruner (1931), 343 Ill. 146, 157.) It is equally clear that this court possesses the rulemaking authority to regulate the trial of cases (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 58), and the authority to regulate appeals (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 66). Although it is true that the legislature has the power to enact laws governing judicial practice where it does not unduly infringe upon the inherent powers of the judiciary (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 59; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149), where a rule of this court on a matter within the court’s authority and a statute on the same subject conflict, the rule will prevail. (People v. Jackson (1977), 69 Ill. 2d 252, 259; People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 66; see generally L. Bonaguro, The Supreme Court’s Exclusive Rulemaking Authority, 67 Ill. Bar. J. 408 (1979); Note, People ex rel. Stamos v. Jones: A Restraint on Legislative Revision of the Illinois Supreme Court Rules, 6 J. Mar. J. Prac. & Proc. 382 (1973).) “Were this not true, a basic tenet of our democratic form of government would be destroyed, and the relevant constitutional provisions rendered nugatory. It is the undisputed duty of the court to protect its judicial powers from encroachment by legislative enactments, and thus preserve an independent judicial department.” Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149.

We initially note our agreement with the appellate court that the legislature, in enacting section 5 — 5—4.1 of the Unified Code of Corrections, intended to modify the standard of review of sentencing and intended to authorize a court of review to reduce a sentence of imprisonment to one of probation. We hold, however, that the provision is in direct conflict with the decisions of this court which have interpreted the scope of Supreme Court Rule 615(b)(4). In People v. Perruquet, interpreting our rule, we announced that the standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused. (68 Ill. 2d 149, 154.) In People v. Rege, People v. Bolyard, and People ex rel. Ward v. Moran, we determined that Rule 615 does not authorize a reviewing court to reduce a sentence of imprisonment to one of probation. (See People v. Rege (1976), 64 Ill. 2d 473, 482; People v. Bolyard (1975), 61 Ill. 2d 583, 589; People ex rel. Ward v. Moran (1973), 54 Ill. 2d 552, 556.) Rule 615, on its face, addresses itself to the reduction of a sentence, rendering inconsistent that portion of section 5 — 5—4.1 of the Unified Code of Corrections which authorizes a court of review to increase the sentence imposed by the trial court. To the extent that this provision is inconsistent with our rule, and the decisions defining the scope of our rule, section 5 — 5—4.1 of the Unified Code of Corrections infringes upon the exclusive power of this court to regulate by rule matters of appellate practice and procedure. (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 66.) Even if we were to assume, as defendants suggest, that our rule did not address the standard of review of a sentence, section 5—5—4.1 would constitute an unauthorized legislative intrusion upon the manner in which cases are decided. (Otis Elevator Co. v. Industrial Com. (1922), 302 Ill. 90, 94.) Because we have determined that this provision is null and void, we need not address defendants’ argument concerning its impact upon the authority of a reviewing court to reduce a sentence of imprisonment to one of probation.

Defendants Cox and Stevens argue in the alternative that the sentences imposed are excessive and that the trial court abused its discretion in entering their sentences. The facts of these individual cases are adequately developed in the appellate court opinion (77 Ill. App. 3d 59) and will be briefly restated here.

The stipulated facts introduced at defendant Cox’s trial were as follows. On June 9, 1978, defendant was operating a motor vehicle in the parking lot of the “Great Skate” skating rink in Decatur. Two witnesses observed the defendant’s vehicle “fishtailing” while proceeding at a speed of 25 to 30 miles per hour in the parking lot. Defendant’s automobile struck another vehicle in the lot, caromed off the car, jumped a curb, and struck a group of children, one of whom was 13-year-old Sharon Uttinger. Uttinger died as a result of head injuries received from this accident. It was further stipulated that defendant admitted driving the automobile involved and that, in his words, he was “driving in a stupid way.”

At defendant’s sentencing hearing, the court examined the presentence report and noted that the investigating officer recommended against a sentence of probation. Defendant did not have a prior criminal record as either an adult or a juvenile. At the time of sentencing, defendant was employed as a laborer. The State recommended a two-year sentence of imprisonment.

The State called as its only witness Officer J ohn Mickler of the Decatur police department. He testified that 12 persons, in addition to Sharon Uttinger, were injured as a result of this incident and that six of those individuals required hospitalization. He also testified that defendant’s automobile did not stop after the collision but proceeded out of the parking lot and came to rest against a utility pole.

Defendant called Sharon Collins and Larry DeLong, special educators who were acquainted with defendant while he was a student at Eisenhower High School in Decatur. Defendant also called Joe Rickelman, a school psychologist who had conducted an examination of defendant. All three witnesses recommended that defendant be sentenced to probation, and Rickelman recommended a plan for continued education and vocational rehabilitation. Rickelman stated that defendant suffered from borderline mental retardation. In addition, all three witnesses noted defendant’s frustrations as a result of his disability, acknowledged that he was at times emotionally unstable, and DeLong and Rickelman agreed that this instability would be aggravated by consumption of alcohol.

Defendant’s brother, Mark Cox, and his mother, Shirley Cox, also testified on behalf of defendant. Both testified that they would assist defendant in complying with the terms of probation. They informed the court that defendant resided at home and would continue to do so. Mark Cox stated that the defendant was extremely remorseful about the incident and that he had received many threatening telephone calls. Shirley Cox testified that the defendant had been working and that he gave his earnings to her. Both testified that defendant had been driving for two years prior to the incident and had driven responsibly in the past.

Billy Dickerson, defendant’s foreman, testified that defendant was employed as a laborer at McNeely Builders for approximately IV2 months prior to the hearing. He stated that defendant was punctual, able to adapt to his work environment, and that defendant had maintained a good attendance record. He informed the court that defendant would continue in his employment if he were to be granted probation. On cross-examination, he stated that, several weeks prior to the hearing, defendant had accompanied his coworkers to a tavern where defendant had consumed one or two beers. Dickerson stated that defendant did not drive to work.

Defendant testified on his own behalf. He expressed his remorse over the incident and admitted that he had been drinking prior to losing control of his vehicle. With reference to his consumption of alcohol prior to the incident, defendant stated that this was the fault of the individual who sold him the alcohol without first verifying his age. He stated that he had frequently driven an automobile subsequent to the incident, and that his operator’s license had not been revoked. Defendant also stated that he had received threats of physical harm, which referred to the incident at the skating rink. Defendant introduced a letter from an inmate at Vandalia Correctional Center containing a threat of physical harm and reference to the incident for which defendant was charged.

After hearing arguments of counsel, the trial judge discussed the aggravating and mitigating factors presented. He noted that defendant’s emotional instability, his consumption of alcohol, and his misuse of an automobile resulted in the loss of a life and serious injury to others. The trial judge stated his consideration of the defendant’s disability but balanced this consideration against the risk to society that the combination of the aforementioned factors presented. The court reasoned that a term of imprisonment was necessary to prevent further incidents of this type. After consideration of the aggravating and mitigating factors presented, the court found that a term of imprisonment, was necessary for the protection of society.

The appellate court reduced the sentence of defendant Cox to a period of 30 months’ probation, with a term of three months imprisonment as a condition thereof, and remanded the cause to the circuit court for the imposition of additional conditions of probation. The appellate court reasoned that the trial judge, in determining that imprisonment was necessary for the protection of society, had not considered the revocation of defendant’s driver’s license as an alternative means to eliminate the risk of future harm. The appellate court then reassessed the factors presented in aggravation and mitigation and concluded that the term of imprisonment would not stand.

Our review of the record reveals that the trial court carefully considered the evidence presented within the statutory framework prescribed. After consideration of the evidence presented in support of factors in mitigation, the trial judge balanced this evidence against the nature of the offense. We cannot conclude, on the basis of this record, that the trial judge erred in determining that a term of imprisonment was necessary for the protection of society. As we stated in People v. Perruquet (1977), 68 Ill. 2d 149, 159:

“[T] he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed *** depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors ‘which is superior to that afforded by the cold record in this court.’ ”

The trial judge was charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. This task was further complicated in the present case by defendant’s disability, a factor which evokes both empathetic concern and cautious reservation. We have consistently held that it is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the task of sentencing had been ours. (People v. Perruquet (1977), 68 Ill. 2d 149, 156.) We cannot say that the trial judge abused his discretion in the present case.

In the cause of defendant Stevens, the State concedes error in the sentencing procedure. This concession is premised upon the admission by the State that defendant did not present a threat to the public, and the failure of the trial judge to specify on the record that “probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—1.) We also note that the State did not present any evidence offered in aggravation of the offense.

Section 5—6—1 of the Unified Code of Corrections provides in relevant part:

“Sentence of Probation and of Conditional Discharge and Disposition of Supervision, (a) Except when specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstances of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—1.)

In view of this statutory provision, whenever a sentence of imprisonment or- periodic imprisonment is imposed, the record must indicate that the judge is of the opinion that imprisonment is necessary for the protection of the public or that probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice. Substantial compliance with section 5—6—1 may exist even if the judge does not specifically say that “imprisonment is necessary for the protection of the public” or that “probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.” If the record demonstrates substantial compliance with this requirement, then a reviewing court may alter the sentencing judge’s disposition only upon a finding of an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 153.

However, in the case of defendant Stevens, the record does not indicate whether the sentencing judge was of the opinion that she posed a threat to the public or that the imposition of a sentence of probation would deprecate the seriousness of her offense. Accordingly, her sentence must be vacated.

For the reasons stated, the appellate court’s judgment in the cause of defendant Cox is reversed and the circuit court’s judgment is affirmed. The judgment of the appellate court in defendant Stevens’ cause is vacated, and the cause is remanded to the circuit court for reconsideration of the sentence.

Judgments reversed; sentence vacated; cause remanded.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 52109.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL L. BONE, Appellee.

      Opinion filed September 15, 1980.

    Rehearing denied November 26, 1980.

      William J. Scott, Attorney General, of Springfield, and Patrick M. Walsh, State’s Attorney, of Decatur (Donald B. Mackay, Melbourne A. Noel, Jr., Dale M. Bennett, and Thomas E. Holum, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, of the Office of State Appellate Defender, of Springfield, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Michael Bone, pleaded guilty to the offense of aggravated battery in the circuit court of Macon County and was sentenced to probation for a period of two years. Subsequently, by information, it was charged that on July 20, 1977, he had committed the offense of unlawful delivery of PCP and cocaine (Ill. Rev. Stat. 1975, ch. 561/2, par. 1401) and on August 2, 1977, the offense of unlawful calculated criminal drug conspiracy (Ill. Rev. Stat. 1977, ch. 561/2, par. 1405). A report that defendant had violated the conditions of his probation by committing the offenses was filed in the circuit court. The People’s pleading in the proceeding to revoke defendant’s probation, titled “Third Report of Violation of Probation,” charged that defendant committed certain violations of the Illinois Controlled Substances Act, and copies of the informations charging the violations were attached to and by reference incorporated in the report. At the probation-revocation hearing the People presented evidence pertaining to the July 20, 1977, occurrence but offered no evidence concerning the alleged offenses on August 2, 1977. Upon conclusion of the hearing the circuit court, finding that the charges had not been proved, denied the People’s request for revocation.

Approximately three months later a four-count indictment was returned in the circuit court of Macon County charging defendant with two counts of unlawful delivery of a controlled substance (Ill. Rev. Stat. 1975, ch. 561/2, par. 1401), one count of unlawful possession of a controlled substance (Ill. Rev. Stat. 1975, ch. 561/2, par. 1402), and one count of unlawful calculated criminal drug conspiracy (Ill. Rev. Stat. 1977, ch. 56V2, par. 1405). The offenses charged were allegedly committed on August 2, 1977.

Defendant moved to dismiss the indictment on the ground that he had previously been placed in jeopardy for the charges alleged “and that the doctrine of collateral estoppel prevents his conviction therefor.”

The count charging unlawful calculated criminal drug conspiracy was dismissed prior to trial. In a jury trial defendant was convicted of one count of unlawful possession and one count of unlawful delivery of a controlled substance. Following the conviction, a second notice of violation of probation was filed. Defendant moved to dismiss the report on the ground that in the earlier revocation proceeding he had been placed in jeopardy for the same offense. That motion was denied and the circuit court, taking judicial notice of defendant’s conviction for the August 2, 1977, violations, revoked the probation and sentenced him to a two-year term of imprisonment to be served consecutively to concurrent three-year terms imposed for unlawful delivery and possession. The court also ordered that he receive no credit for the time previously served on probation. Defendant appealed, the appellate court reversed both the convictions on the possession and delivery charges, and the order of revocation (70 Ill. App. 3d 972), and we allowed the People’s petition for leave to appeal.

One of the justices of the appellate court concluded that “since the State decided to include both the July 20 and August 2 transactions in the initial petition to revoke defendant’s probation, jeopardy attached, and the State was prohibited from bringing those allegations in a subsequent criminal prosecution or a subsequent petition to revoke probation.” (70 Ill. App. 3d 972, 976.) The second justice, relying on Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189, thought the principle of collateral estoppel was applicable and that it served to bar further prosecution.

The People contend that the prosecution of defendant for the offenses committed on August 2, 1977, was not barred by either double jeopardy or collateral estoppel and that the judgment of the appellate court should be reversed.

In his brief defendant states that he does not contest “well established Illinois law which holds double jeopardy does not exist when properly conducted probation revocation hearings are followed by trials on the same subject matter. See People v. Howell, 46 Ill. App. 3d 300, 360 N.E.2d 1212 (5th Dist. 1977); People v. Vahle, 60 Ill App. 3d 391, 376 N.E.2d 766 (4th Dist. 1978).” He argues that the probation-revocation hearing here “was not conducted in a legitimate manner but rather in a way that offended the principles of fairness and finality that are the embodiment of the double jeopardy clause.” Quoting from the concurring opinion in the appellate court (70 Ill. App. 3d 972, 976-77) he argues that because the People’s conduct was unfair and did not follow the procedure “employed in a legitimate probation revocation, jeopardy attached and the subsequent prosecution was barred.” He argues, too, that because the same witnesses could testify concerning the identification of defendant in both occurrences, the circuit court’s finding constituted a collateral estoppel on that issue. He contends further that because the People included both violations in the petition to revoke probation and offered no testimony with respect to the events of August 2, 1977, res judicata applies.

Res judicata and collateral estoppel are judicial doctrines designed to protect litigants from the burden of retrying an identical cause of action or issue with the same party or privy, and to enhance judicial economy by prohibiting repetitive litigation. (Parklane Hosiery Co. v. Shore (1979), 439 U.S. 322, 326, 58 L. Ed. 2d 552, 559, 99 S. Ct. 645, 649.) There is, however, a difference between the effect of a judgment as a bar to the prosecution of a second action upon the same claim or demand and the effect of a judgment as an estoppel in another suit between the same parties on a different claim or cause of action. (Skolnick v. Petella (1941), 376 Ill. 500, 504.) The former constitutes res judicata and operates as an absolute bar to a subsequent action where a prior judgment rests on the merits, “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” (Cromwell v. County of Sac (1877), 94 U.S. 351, 352, 24 L. Ed. 195, 197. Skolnick v. Petella (1941), 376 Ill. 500, 505.) The latter constitutes collateral estoppel, or estoppel by verdict or judgment (People ex rel. Chicago & Eastern Illinois R.R. Co. v. Fleming (1969), 42 Ill. 2d 231, 235; Hoffman v. Hoffman (1928), 330 Ill. 413, 417) and concludes only “those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” Cromwell v. County of Sac (1877), 94 U.S. 351, 353, 24 L. Ed. 195, 197; Skolnick v. Petella (1941), 376 Ill. 500, 503.

Although the People’s pleading alleged both violations as grounds for revocation of defendant’s probation, the record shows that the testimony at the first revocation hearing related only to the occurrence on July 20, 1977. The circuit court’s finding decided only that there was insufficient evidence to prove the violation charged on that date and made no findings concerning the offense charged on August 2, 1977. No reason is shown for the People’s failure to offer evidence as to the offense charged on August 2, and if the doctrine applies the circuit court order should be held to be res judicata. Unlike the joinder provision in section 3—3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3—3(b)), there is no requirement for compulsory joinder of all grounds for revocation known to the People. We hold that the People were not required to proceed with proof of the August 2, 1977, offenses in the first revocation proceeding, and that on the record before us there is no judgment of the circuit court which is res judicata.

The parties are in agreement that under the holding of Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189, and People v. Grayson (1974), 58 Ill. 2d 260, the doctrine of collateral estoppel can serve to bar the prosecution. The question to be determined is whether an issue of ultimate fact was decided in the prior revocation proceeding which was determinative of the issues in the criminal prosecution for the offenses committed on August 2, 1977. An examination of the record in each case shows that no such issue of ultimate fact was determined. In the proceeding to revoke defendant’s probation no issue of fact was determined relevant to the offenses allegedly committed on August 2, 1977. The failure to prove to the satisfaction of the circuit court that the defendant was sufficiently identified in connection with the transaction which occurred on July 20, 1977, bears no relevance to whether he was involved in the transaction which took place on August 2, 1977. Ashe and Grayson are clearly distinguishable, and collateral estoppel does not apply.

Since there was no further prosecution on those charges this record presents no questions concerning the violations which allegedly occurred on July 20, 1977. We need not and do not consider the effect of the order denying revocation of defendant’s probation on any subsequent proceedings based on those charges.

We note parenthetically that this record demonstrates the wisdom of standard 5.3 of the American Bar Association Standards Relating to Probation (1970), which states:

“A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge.***.”

For the reasons stated the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE UNDERWOOD, MR. JUSTICE WARD,

text:
    (No. 52555.
    FORREST R. CHANEY et al., Appellees, v. THE CIVIL SERVICE COMMISSION et al., Appellants.

      Opinion filed October 17, 1980.

    Rehearing denied November 26, 1980.

      UNDERWOOD, J., specially concurring.
    WARD, J., dissenting.
    William J. Scott, Attorney General, of Springfield (Myra Turner, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Robert G. Heckenkamp, of Heckenkamp & Simhauser, P.C., of Springfield, for appellees.
    James P. Manak, of Glen Ellyn, Fred E. Inbau, of Chicago, and Wayne W. Schmidt, of South San Francisco, California (Richard J. Brzeczek and James B. Haddad, of Chicago, and James A. Murphy, of Peoria, of counsel), for amici curiae Americans For Effective Law Enforcement, and the Illinois Association of Chiefs of Police, Inc.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiffs, Forrest R. Chaney and David Imber, were discharged from their positions as agents of the Illinois Bureau of Investigation (IBI) for refusing to obey an order of the IBI superintendent directing plaintiffs to return to the operation of a tavern in an undercover law-enforcement capacity. Plaintiffs filed grievances with the Civil Service Commission (Commission). A hearing officer for the Commission found that the discharges were warranted, and the Commission adopted that finding. On review, the circuit court of Sangamon County reversed the Commission’s decision and ordered plaintiffs reinstated “with all appropriate benefits, including backpay subject to legal set-offs.” Defendants, the Commission and the Department of Law Enforcement (Department), appealed. The appellate court affirmed, one justice dissenting. (74 Ill. App. 3d 424.) We granted the Commission and the Department leave to appeal. We affirm.

The events precipitating this litigation are recited in detail in the appellate court opinion and will be repeated here in a summarized form and only as is necessary to decide the question presented, whether plaintiffs’ discharges are proper. In 1974, Federal and State officials developed the idea for an undercover law-enforcement plan whereby law-enforcement personnel would operate two businesses or “fronts” for the purpose of detecting criminal activity. A tavern was decided upon as one such front. Plaintiffs, as agents of the IBI, were chosen to operate it. They assumed the names Forrest Randall and David Scott, and they obtained various forms of identification in those names. Under their assumed names, they acted as incorporators of a company through which the tavern would be operated, they obtained a liquor license, they entered into a lease for the premises on which the tavern was located, and they opened a checking account with law-enforcement grant funds. In a letter from the United States Attorney, plaintiffs were assured that their actions in obtaining identification and opening a checking account under assumed names “will not be interpreted by Federal authorities as acts undertaken with intent to deceive or defraud any of the various agencies of the State of Illinois.” To a similar effect is a letter from an Illinois Assistant Attorney General, stating his opinion that plaintiffs’ activities were lawful. Plaintiffs were also assured orally that the Illinois Attorney General and the Cook County State’s Attorney had authorized the project.

After operating the tavern for two days, plaintiffs refused to participate further. They failed to open the tavern on the third day, and they told customers that tax problems necessitated the closing.- They explained to their superiors at the IBI that they refused to continue the operation of the tavern because of a fear for their physical safety and their concern about the legality of the project.

Attempting to allay plaintiffs ’ fears of criminal or civil liability, three meetings were held at which plaintiffs were assured of the legality of the project by representatives of the IBI, the Illinois Attorney General, the Cook County State’s Attorney, the Justice Department, the Internal Revenue Service, and the Bureau of Alcohol, Tobacco and Firearms. Plaintiffs persisted in their refusal to operate the tavern. The superintendent thereupon issued a formal order directing plaintiffs to return to the tavern and to continue operating it. Plaintiffs did not comply with the order, and they were charged with insubordination and subsequently discharged.

In holding that the discharges were improper, the circuit court noted that an IBI rule of conduct allows agents to refuse to comply with orders when compliance would require the commission of an illegal act, and the court ruled that the order directing plaintiffs to return to work was “an unlawful order to continue an unlawful course of conduct and that the agents had a right and duty to refuse to obey said unlawful order.” The court reasoned that plaintiffs had committed perjury (Ill. Rev. Stat. 1975, ch. 38, par. 32 — 2) in obtaining a liquor license for their corpo-. ration by “swearing falsely under oath” and that the use of a liquor license obtained through perjury constituted a separate offense each day the license was used (Ill. Rev. Stat. 1975, ch. 43, par. 183). The circuit court did not indicate what it found to be a false statement on plaintiffs’ application for a liquor license, but it seems to have been referring to plaintiffs’ use of their assumed names.

In affirming the circuit court’s judgment, the appellate court likewise noted that an IBI rule allowed agents to disregard orders requiring the commission of illegal acts. The court also agreed that plaintiffs committed perjury in applying for the liquor license and that each day’s operation under the license constituted a separate offense. The appellate court also held that plaintiffs committed forgery (Ill. Rev. Stat. 1975, ch. 38, par. 17 — 3) in applying for a liquor license under their assumed names because the official who issued the license testified that he would not have done so if he had known the true facts; that plaintiffs committed perjury when they applied under oath for articles of incorporation; and that plaintiffs were in violation of provisions of the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 120(14)) and a local ordinance, which prohibit law-enforcement officials from being interested in the sale or distribution of liquor.

We hold that plaintiffs’ use of their assumed names in obtaining a liquor license was improper under the facts of this case. The license was therefore not properly obtained, and plaintiffs were justified in refusing to operate the tavern thereunder.

By statute in Illinois, a person desirous of assuming another name “may file a petition in the circuit court of the county wherein he shall reside, praying for such relief ***.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 96, par. 1.) The record does not indicate that plaintiffs filed such a petition, and we assume that they refrained from doing so either because they were unaware of the law or to maintain and insure the secrecy of the project. Notwithstanding plaintiffs’ failure to follow this statutory procedure, their use of the names Forrest Randall and David Scott could, in certain circumstances, be recognized as a proper exercise of their common law right to assume a name. In Reinken v. Reinken (1933), 351 Ill. 409, 413, the court held that the statutory provisions governing the assumption of names “are merely permissive, and they do not abrogate the common law right of the individual to change his name without application to the courts.” The court also stated, however, that an exercise of this common law right would be valid only if such action “ ‘does not interfere with the rights of others.’ ” (351 Ill. 409, 413; see also 65 C.J.S. Names sec. 11(1) (1966).) It is this limitation on the common law right to assume a name that leads us to conclude that plaintiffs’ use of assumed names in obtaining a liquor license was improper, since the official who issued the license testified that he would not have done so if he had known who plaintiffs were. Without validly assumed names, the liquor license was not properly obtained, thereby placing plaintiffs’ corporation in violation of article X, section 1, of the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 183) and the local ordinance. Under that section, each day of operation without a valid license would constitute a» separate offense, and under the superintendent’s order to return to the operation of the tavern, plaintiffs would be forced to participate in this continuing illegality. Under the rules of the IBI itself, plaintiffs were not required to do so. The promises of Federal and State prosecutors that plaintiffs’ actions were lawful did not alone render plaintiffs’ actions lawful; an illegality is not made legal because a prosecutor says so. Nothing short of a statutory exemption for undercover law-enforcement activities would, under the facts of this case, remove plaintiffs’ actions from the coverage of the prohibitions of the Dramshop Act.

Because of our disposition of the case, we have no cause to address other issues raised by the parties or discussed by the appellate court, and we express no opinion on the merits of those issues. We do not hold, as the appellate court did, that plaintiffs’ use of their assumed names constituted pequry (Ill. Rev. Stat. 1975, ch. 38, par. 32 — 2). We hold only that the use of those names was improper in this case because of the resulting interference with the local liquor license authority.

For the reasons above stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

specially concurring:

The liquor license was apparently obtained under circumstances constituting noncompliance with both the governing statute (Ill. Rev. Stat. 1975, ch. 43, par. 183) and the local ordinance.

The rules of the Illinois Bureau of Investigation provide that agents may not be compelled to participate in unlawful activities. Solely because the rules so provide, I concur in the court’s judgment.

MR. JUSTICE WARD,

dissenting:

I consider that the majority’s view, which completely overlooks legislative intent, is simplistic. If its reasoning and spirit are followed elsewhere, the efficient operation of law-enforcement agencies could be seriously impeded. That this is so can be seen from the fact that at this very time nationally publicized Federal prosecutions, in which resembling investigative techniques were revealed, have resulted in convictions of Federal legislators.

The majority ignores entirely the legislative intent, in holding that the liquor license was obtained here in violation of the Dramshop Act and of the local ordinance. The United States Attorney, the State’s Attorney of Cook County, and the Attorney General of Illinois had no difficulty in perceiving that the intent underlying the statute and ordinance was to serve other legislative purposes and was not to thwart legitimate and necessarily imaginative activities of law-enforcement agencies.

Too, the plaintiffs, in September 1974, selected assumed names and began fashioning their cover stories. They opened the tavern on April 15, 1975, and closed the operation on April 17, saying that they were concerned about their physical safety and the legality of the project. I think objections on the ground of feared illegality come tardily under the circumstances. The dissenting judge in the appellate court observed: “Upon the actual issue, the record does not support a factual determination that the plaintiffs disobeyed because their acts were deemed illegal, but rather because they believed the operation ill-advised, hazardous and personally objectionable. In effect, they undertook to refuse their assignment for such reasons rather than for the reasons devised for purposes of the present action.” 74 Ill. App. 3d 420, 435.

Considering all of the circumstances, I believe that the Department and the Commission properly considered the conduct insubordinate.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 52904.
    AVON PRODUCTS, INC., Appellee, v. THE INDUSTRIAL COMMISSION et al. (Laura Larsen, Appellant).

      Opinion filed September 15, 1980.

    Rehearing denied November 26, 1980.

      Lewis P. Gaines and Victor F. Ciardelli, of Chicago, for appellant.
    Terrance J. Van Driska and Mark A. Potter, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

This is a workmen’s compensation case in which claimant, Laura Larsen, an employee of respondent, Avon Products, Inc., was found by an arbitrator for the Industrial Commission to have suffered a work-related injury to her left wrist. She was awarded compensation of $479.61 for 4 3/7 weeks of temporary total incapacity and $108 per week for 19 weeks for the loss of 10% of the use of her left hand, the total award amounting to $2,531.61. She petitioned for review by the Commission, which heard additional evidence and affirmed the compensation awards, adding thereto $545 in chiropractor fees as additional medical expenses. The Commission also found that respondent had, “without just and good cause,” failed, neglected and refused payment of weekly compensation and awarded claimant penalties under section 19(Z) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(/)) in the maximum amount of $2,500. It also found that “there has been an unreasonable and vexatious delay by the Respondent herein in the payment of compensation for the period of temporary total incapacity for work” and that, as a result, claimant was entitled to an additional 50% of the amount of temporary total compensation as provided in section 19(k) (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k)). Finally, the Commission assessed against respondent the attorney fees payable by claimant in the amount of $643.88, pursuant to section 16 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.16), which authorizes such action where unreasonable or vexatious delay, intentional underpayment or the presentation of frivolous defenses has occurred. Thus, penalties aggregating $3,383.68 were imposed for what the Commission found was an unjustified delay in making the $479.61 in temporary total compensation payments. Interest on the arbitrator’s award was also ordered paid by respondent. Respondent sought certiorari from the Cook County circuit court, which confirmed the compensation, medical-expenses, attorney-fees and interest awards but reversed the penalties assessed under sections 19 (k) and 19(/). The court found that “the awarding of any penalties in this case was not warranted and not supported by the record.” Claimant appealed to this court (73 Ill. 2d R. 302(a)). While both parties agree that the circuit court should be reversed, claimant seeks reinstatement of the Commission’s award of compensation and penalties while respondent urges that the Commission’s award should be reversed in toto or that, at most, the arbitrator’s award should be reinstated.

It is apparent from the record before us that the award of compensation cannot be said to be contrary to the manifest weight of the evidence. It suffices on this issue to say that while claimant’s testimony contained some inconsistencies, and the medical and chiropractic opinions were not harmonious, it is axiomatic that resolution of conflicting medical opinions and issues of fact are for the Industrial Commission, whose findings will not be judicially disturbed unless against the manifest weight of the evidence. Eagle Sheet Metal Co. v. Industrial Com. (1980), 81 Ill. 2d 31, 36; Inland Steel Coal Co. v. Industrial Com. (1980), 81 Ill. 2d 61, 65.

The nub of this case is whether the penalties assessed by the Commission may stand. The relevant provisions of our Workmen’s Compensation Act, pursuant to which the penalties were imposed, are:

“Sec. 16.
* * *
Whenever the Commission shall find that the employer, his agent, service company or insurance carrier has been guilty of delay or unfairness towards an employee in the adjustment, settlement or payment of benefits due such employee within the purview of the provisions of paragraph (c) of Section 4 of this Act; or has been guilty of unreasonable or vexatious delay, intentional underpayment of compensation benefits, or has engaged in frivolous defenses which do not present a real controversy, within the purview of the provisions of paragraph (k) of Section 19 of this Act, the Commission may assess all or any part of the attorney’s fees and costs against such employer and his insurance carrier.” Ill. Rev. Stat. 1977, ch. 48, par. 138.16.
“Sec. 19(k).
In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act shall be considered unreasonable delay.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(k).
“Sec. 19(1).
In case the employer or his insurance carrier shall without good and just cause fail, neglect, refuse or unreasonably delay the payment of weekly compensation benefits due to an injured employee during the period of temporary total disability the arbitrator or the Commission shall allow to the employee additional compensation in the sum of $10 per day for each day that a weekly compensation payment has been so withheld or refused, provided that such additional compensation shall not exceed the sum of $2,500. A delay in payment of 14 days or more shall create a rebuttable presumption of unreasonable delay.” Ill. Rev. Stat. 1977, ch. 48, par. 138.19(1).

Although the statutory language is not uniform, it is apparent that its intent is to implement the Act’s purpose to expedite the compensation of industrially injured workers and penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due an employee. Similar provisions exist in other jurisdictions. (See 3 A. Larson, Workmen’s Compensation sec. 83.40 (1980).) Penalties for delayed payment are not intended to inhibit contests of liability or appeals by employers who honestly believe an employee not entitled to compensation; they are intended to promote the prompt payment of compensation where due and to deter those occasional employers or insurance carriers who might withhold payment from other than legitimate motives.

The prevailing rule is stated in 3 A. Larson, Workmen’s Compensation sec. 83.40, at 15 — 632 (1980):

“ [G] enerally a failure to pay because of a good faith belief that no payment is due will not warrant a penalty.”

When the employer acts in reliance upon responsible medical opinion or when there are conflicting medical opinions, penalties are not ordinarily imposed. (3 A. Larson, Workmen’s Compensation sec. 83.40, at 15—636 (1980). See also Norgard v. Rawlinsons & New System Laundry (1977), 30 Or. App. 999, 569 P.2d 49.) As long as the insurer “had a legitimate doubt, from a legal standpoint, of its liability, its conduct [refusing payment] was not unreasonable.” Bourgeois v. Brown & Root, Inc. (La. App. 1974), 303 So. 2d 217; see also Mayes v. Genesco, Inc. (Tenn. 1974), 510 S.W.2d 882; Showalter v. Campbell Soup Co. (Minn. 1977), 253 N.W.2d 154.

Our own cases, while indicating that whether the employer’s conduct justifies the imposition of penalties is ordinarily a factual question for the Commission, also consider that conduct in terms of reasonableness.

“While we do not condone unnecessary delay in payment, we cannot say that the delay in these cases was such as to justify a finding of unreasonable or vexatious delay. It is impractical to set a definite time limitation for payment. As was said in the earlier Board of Education case: **** where all legal proceedings have been exhausted and a considerable time has been permitted to elapse thereafter during which the award is not paid, it is incumbent upon the one liable to pay the same to excuse the delay.’ (351 Ill. 128, 132.) The finding of the Commission that the delay in tender was so unreasonable as to justify the application of the sanction of a 50% penalty award is, in our opinion, against the manifest weight of the evidence. We think, however, that employers in compensation cases would be well advised to make payment of awards as soon as practicable to avoid this question and the possible application of sanctions.” Board of Education v. Industrial Com. (1968), 39 Ill. 2d 167, 171.

See also City of Chicago v. Industrial Com. (1976), 63 Ill. 2d 99; Wirth v. Industrial Com. (1976), 63 Ill. 2d 237; Sanchez v. Industrial Com. (1973), 53 Ill. 2d 514.

Examination of the record here indicates that claimant testified her injury occurred on March 1, 1977; her petition for compensation was filed March 24; and she requested the assessment of penalties on April 19, while liability was being contested and long before any award was made. The arbitrator’s October 24 order, as earlier noted, awarded $479.61 for 4 3/7 weeks temporary total disability and $2,531.61 for permanent loss of use of 10% of the left hand. Respondent was found to have provided all necessary medical services, the necessity for the chiropractic services thus being rejected. No penalties were assessed. In seeking review of that order by the Commission, claimant urged that the temporary total disability compensation be increased to 15 4/7 weeks (up to the time of discharge by the chiropractors) with penalties, that the charges for chiropractic services be allowed and the 10% permanent loss of use be increased to 20%. Respondent’s “Summary Sheet for Oral Arguments” indicated it opposed any award for permanent loss of use and made no mention of the award for temporary total disability. Other than adding to it the chiropractor’s charges, the arbitrator’s award of compensation was affirmed by the Commission. Because respondent had not previously paid the $479.61 in temporary total compensation, however, maximum penalties and attorney fees aggregating $3,383.68 were levied as earlier indicated.

Respondent urges that the assessment of penalties by the Commission was contrary to the manifest weight of the evidence. It further argues that the sections of the Act hereinbefore quoted are unconstitutional as confiscatory and violative of due process requirements if held to authorize penalties in the amounts here assessed. We need not consider that argument, however, since we agree that the penalty award is against the manifest weight of the evidence.

Prompt payment of compensation for temporary total disability was obviously a matter of concern to the General Assembly, and properly so, for those payments may represent the sole income of the disabled employee. Our Act does not, however, as do the statutes of some States (see 3 A. Larson, Workmen’s Compensation sec. 83.40 (1980)), require payment of temporary compensation prior to a final determination of liability therefor where reasonable grounds exist to challenge that liability. Given the facts of the differing medical reports, that claimant did not report her injury until the third day after its occurrence, that while she testified that a heavy tray struck her wrist and injured it, neither the Lehigh Clinic records nor the chiropractor’s records indicated she had told them this, contesting liability seems neither unreasonable, without good cause, nor indicative of bad faith on respondent’s part. In our judgment the Commission’s finding to the contrary is against the manifest weight of the evidence. Claimant urges, however, that the absence from respondent’s “Summary Sheet” of any reference to the award for temporary total disability demonstrates that respondent was not acting in good faith. We do not so regard it, particularly in view of the fact that respondent contested liability therefor both prior and subsequent to the filing of the summary. In fact, until this decision becomes final the amount of compensation for temporary total incapacity will not be known with certainty.

The judgment of the circuit court of Cook County is accordingly reversed in part and affirmed in part. The cause is remanded to the Industrial Commission with directions to reinstate the arbitrator’s award plus chiropractor’s fees and interest.

Affirmed in part and reversed in part and remanded, with directions.


author: MR. JUSTICE MORAN

text:
    (No. 52566.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MICHAEL KRUEGER, Appellant.

      Opinion filed October 17, 1980.

      Mary Robinson, Deputy Defender, of the Office of the State Appellate Defender, of Elgin (Patrick M. Carmody, law student, of counsel), for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, Michael Krueger, was convicted of murder and sentenced to 20 to 50 years in the penitentiary. The appellate court affirmed (74 Ill. App. 3d 881), and we granted defendant leave to appeal.

Defendant contends that the police violated his Miranda rights by continuing to interrogate him after he requested counsel.

Prior to his trial for the murder of James Finnegan, defendant moved to suppress certain inculpatory statements made to three Rockford police officers soon after his arrest. A hearing was held on defendant’s motion, during which it was revealed that defendant was arrested on the evening of November 4, 1976, pursuant to a sworn statement which defendant’s girlfriend, Sharon Sularz, had given to the Rockford police. Her statement recited the details surrounding an incident in which defendant caused Finnegan’s death by stabbing him several times with a knife while the two were struggling in a car during the early morning hours of August 28, 1976. Prior to being questioned by Detective Donnelli, Detective Otwell and Sergeant Galvanoni, defendant was given the full Miranda warnings. Defendant stated that he understood his rights and, at 8:20 p.m., signed a written waiver-of-rights form.

Defendant first answered questions about several burglaries, unrelated to the stabbing incident, and stated that he had been involved in nothing else. After being questioned about the stabbing, however, defendant signed a statement implicating himself in Finnegan’s death. All three officers testified that defendant made no request relating to his Miranda rights during this time period. On cross-examination, however, each officer testified that defendant did make a response when they started to question him about the stabbing. According to Detective Donnelli, defendant said, “Wait a minute. Maybe I ought to have an attorney. You guys are trying to pin a murder rap on me, give me 20 to 40 years.” Detective Otwell testified that defendant raised partially up out of his chair and said, “Hey, you’re trying to pin a murder on me. Maybe I need a lawyer. ” Lastly, according to Sergeant Galvanoni, defendant said, “Just a minute. That’s a 20 to 40 years sentence. Maybe I ought to talk to an attorney. You’re trying to pin a murder rap on me.” Detective Otwell replied to defendant that the news media, not the police, had said it was murder; that only two people knew what had happened and one of them was dead. When defendant asked the officers how they knew the stabbing was not done in self-defense, the officers said they did not know and that was why they wanted to talk to him about it. Shortly thereafter, defendant gave a written statement admitting that he had stabbed Finnegan and describing the circumstances surrounding the incident.

According to defendant’s testimony, at the time the officers asked him about the stabbing incident, he indicated to them that he thought he should have an attorney.

On cross-examination, he admitted that the officers’ account of the conversation was accurate. The cross-examination continued as follows.

“Q. Why did you continue talking to them after you say you said, T think I should have an attorney’?
A. Have you ever been interrogated by three Rockford Police Detectives?
Q. No, I haven’t, but I want to know why you continued talking to them.
A. Because I believed it was self-defense. I still do. They wanted a statement of what happened to clear it up. I wanted to get it off my chest, so I gave them a statement.
Q. But you know you had a right to have an attorney there if you wanted one, didn’t you?
A. Yes, I did.
Q. You ever insist on having an attorney contacted?
A. I asked for an attorney before I began the statement, and I saw that it was not going to get me anywhere, so I just ceased on that line, because I just knew I wasn’t going to get an attorney anyways.
Q. Did it occur to you not to talk any further?
A. Yes, but it occurred to me I might be up all night and be badgered by these three detectives.”

At approximately 9 a.m. the next morning, the same three officers sought to question defendant further about the incident. Defendant was asked if he still understood his rights. He replied that he did and that he would talk to the officers. Defendant then told the officers more about the incident.

The circuit court denied defendant’s motion to suppress the written and oral statements, finding that the statements were made voluntarily, that defendant understood his rights, and that his rights were not violated. In the appellate court, the defendant argued, in part, that his statements were obtained through interrogation which was continued after he had requested counsel. The appellate court, in affirming the conviction, held that defendant’s mention of an attorney did not constitute a request for counsel under Miranda.

The combined arguments of the parties in this court ask us to decide, first, whether defendant invoked his fifth amendment right to counsel, and, second, assuming defendant did invoke such right, (a) whether his written statement was the result of continued “interrogation,” (b) whether he thereafter waived his right to counsel, either before his written statement or before his oral statement the following morning, and (c) whether the admission of the statements into evidence was harmless error.

The right to counsel involved here is an adjunct of the fifth amendment privilege against self-incrimination. This right must be made known to a suspect prior to custodial interrogation as part of the warnings which the United States Supreme Court adopted in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The Miranda warnings are prophylactic safeguards designed to guard against infringement of the privilege against self-incrimination. Statements made by a suspect as a result of in-custody interrogation are not admissible to establish his guilt unless the court finds that the suspect waived his Miranda rights prior to making the statements.

The facts that a suspect’s statements were voluntary, that he made them with a full understanding of his Miranda rights, and that he initially made a voluntary, knowing and intelligent waiver of his rights, are not always sufficient. Despite these conditions, if a suspect “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” (Miranda v. Arizona (1966), 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612.) Thus, even if a suspect initially waived his rights and agreed to talk to authorities, he reserves the right to cut off questioning later by requesting or invoking his right to an attorney.

Defendant’s remark was variously described at the hearing on the motion to suppress as “Maybe I ought to have an attorney,” “Maybe I need a lawyer,” and “Maybe I ought to talk to an attorney.” Miranda’s “in any manner” language directs that an assertion of the right to counsel need not be explicit, unequivocal, or made with unmistakable clarity. We do not believe, however, that the Supreme Court intended by this language that every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel. The record establishes that defendant is a person of normal intelligence, that he fully understood his Miranda rights, and that he effectively waived his rights before questioning and agreed to talk with the officers. The interrogation lasted for only a short while. There is no indication that defendant was under any coercion or duress other than that inherent in every custodial setting. Only when the questioning switched from burglaries to the stabbing incident did the defendant exhibit some hesitation, as indicated by the indecisive remarks quoted earlier. According to the evidence, none of the officers considered defendant’s comment referring to an attorney to be a request for counsel. Although the officers’ subjective beliefs that defendant’s comment was not a request for counsel are not to be given undue emphasis or weight, the officers must be allowed to exercise their judgment in determining whether a suspect has requested counsel. (See Miranda v. Arizona (1966), 384 U.S. 436, 486 n.55, 16 L. Ed. 2d 694, 730 n.55, 86 S. Ct. 1602, 1634 n.55.) Here, the officers appear to have acted in good faith in not judging defendant’s remarks to be an indication that he desired an attorney. Their apparently genuine belief that defendant did not desire counsel helps to distinguish this case from others relied upon by defendant. See Maglio v. Jago (6th Cir. 1978), 580 F.2d 202; State v. Nash (1979), 119 N.H. 728, 407 A.2d 365; People v. Superior Court (1975), 15 Cal. 3d 729, 542 P.2d 1390, 125 Cal. Rptr. 798; People v. Munoz (1978), 83 Cal. App. 3d 993, 148 Cal. Rptr. 165.

Under the present facts, we find such belief to have been reasonable. We hold that the officers did not violate defendant’s Miranda rights, for, in this instance, a more positive indication or manifestation of a desire for an attorney was required than was made here. We have carefully reviewed each of the cases from other jurisdictions cited by defendant and find them all to be distinguishable on their facts; none compel a result different from that reached here. Furthermore, defendant testified at the hearing that he believed the act was committed in self-defense and that he talked to the officers because he wanted to “get it off [his] chest,” thus belying the assertion of a desire for an attorney. The record does not support acceptance of defendant’s testimony and argument that he, in effect, felt it would have been futile to make a more explicit request for an attorney. Defendant’s reliance on United States v. Womack (9th Cir. 1976), 542 F.2d 1047, 1051, is misplaced, for there the court’s refusal to find a waiver of the right to counsel, even though defendant signed a waiver-of-rights form, was based on defendant’s having twice previously been refused counsel after requesting it.

In sum, while we are sensitive to the requirement that authorities refrain from interrogation whenever a suspect invokes his right to counsel, we find that defendant’s remarks here did not constitute an invocation of such right. We note that defendant offers no separate reason for us to find his oral statement inadmissible. Thus, our holding applies to both the written and oral statements.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.