author: JUSTICE SIMON

text:
    (No. 56259.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AMIL T. CORNILLE, Appellant.

      Opinion filed April 13, 1983.

      Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Ellen M. Flaum and Terence M. Madsen, Assistant Attorneys General, of Chicago, and David Kluever, law student, of counsel), for the People.
   JUSTICE SIMON

delivered the opinion of the court:

The principal issue in this appeal is whether a defendant in a criminal trial is denied due process of law when an expert witness for the State later turns out to be an imposter who presented false testimony about his expert qualifications. We conclude that false testimony of this type violates due process and that a defendant convicted because of it is entitled to a new trial.

Following his conviction of arson in the circuit court of Williamson County, the defendant, Amil T. Cornille, filed a petition seeking post-conviction relief alleging that he had been convicted on the basis of false testimony of this type. After a hearing, the circuit court decided that the testimony in question was false, but denied the petition. The appellate court affirmed in an unpublished Rule 23 order (102 Ill. App. 3d 1209). We allowed Cornille’s petition for leave to appeal.

Nearly two years after the Cornille arson trial a reporter employed by a Chicago daily newspaper interviewed Dennis Michaelson, a consultant in fire investigations who had given crucial testimony for the State at that trial. Mr. Michaelson admitted in the interview that he had lied about his credentials as an arson-investigating expert when testifying at that trial as well as at other arson trials. After publication of the story based upon this interview the authorities began investigating Michaelson’s academic and professional qualifications. These investigations established that Michaelson had given false testimony in several criminal arson trials, including Cornille’s. Charges of perjury were thereafter filed by information against Michaelson in Boone, Cook and Williamson counties. Cornille’s petition for post-conviction relief, which is the subject of this appeal, is based upon Michaelson’s false testimony concerning his credentials as an expert witness. To understand the import of Michaelson’s testimony it is necessary to review the record of Amil Cornille’s trial.

Cornille was charged with committing arson on April 3, 1977, in that he knowingly damaged his home by means of fire with intent to defraud his fire insurance carrier. At trial he testified that on the evening of the fire he was watching television in the living room of his home in Johnston City. A daughter, who was ill, was sleeping on a couch in the same room. His wife and his two other children were away from home, attending religious services.

Shortly before 7:30 p.m., the television and the lights went out and Cornille heard a “crackling and popping” sound. He went to the circuit breaker box in the closet of an adjoining bedroom and placed his hand on it in the dark. Unable to detect any irregularity, but fearful for the safety of his daughter, he awakened her. After exiting with her through the front door, Cornille went to the rear of the house. He looked into the kitchen through the back door, saw flames under the refrigerator, and notified the fire department.

A fireman who arrived at the scene shortly afterward testified that “[t]he fire was in the kitchen area in the rear of the house. The cabinets were involved, the refrigerator was involved and the ceiling was partially involved.” The fire was concentrated on the floor underneath the refrigerator and on the wall behind it, although there were also spot fires in the basement and the attic. After a few minutes the fires were put out and the fire damage was inspected. At the location of the refrigerator, a hole had been burned in the floor through which the basement could be seen. A sizeable wooden floor joist which could be seen in the middle of the hole was charred on the top portion only. The wall behind the refrigerator and the surrounding cabinets were also burned. The ceiling above the refrigerator was slightly singed.

Expert witnesses presented by the parties were in sharp disagreement about the cause of the fire. The State’s theory was that Cornille had set the fire with gasoline, while the theory advanced by Cornille was that the blaze was caused by faulty wiring.

Officials of the Johnston City fire department and investigators for the defendant’s fire insurance carrier testified for the prosecution that they had found no evidence of “beading” or “fusing” on electrical wires in the kitchen area. They stated that these conditions usually are found when a fire is caused by an electrical malfunction. Moreover, the prosecution’s experts testified that there was evidence of “alligator charring” on the floor joist, a pattern which often indicates a rapidly burning fire fueled by accelerants. They also observed that the fire had burned through the floor in a downward direction, a highly unusual circumstance when a fire is not fueled by accelerants.

Mr. Michaelson turned out to be an impressive prosecution witness. In presenting his credentials to the jury, he testified that he had investigated over 1,300 fires in 14 years as a fire investigator; that he had taught numerous seminars and courses for State and local governments on fire-investigation techniques; that he had written extensively in the field; and that he had designed several patented devices for use in fire investigations. In particular, he claimed credit for designing vastly improved equipment for testing samples by the technique of gas chromatography. This equipment allegedly was better able to detect the presence of accelerants than more traditional devices.

In addition to these self-proclaimed professional accomplishments Michaelson offered the following testimony as to his academic qualifications in response to questions by the prosecutor:

“Q. Mr. Michaelson, do you hold any degrees from universities or institutions of higher education?
A. Yes.
Q. And what are those degrees and where were they obtained?
A. I have an associate degree from Wright College in Chicago, I also have a degree, Bachelor’s Degree in Science from Illinois School of Technology, and in addition to that I have about 25 credit hours, post-graduate courses, such as physics, optics and other courses I felt were of interest personally to me or usefulness in my work.
Q. In your degree in Science, was that chemistry?
A. In chemistry, yes, sir.”

Some of Michaelson’s substantive testimony was the same as that of the other prosecution witnesses; he noted the “alligator charring” and the downward burning pattern of the fire and observed that they indicated the possibility of an accelerant-fueled fire. The balance of Michaelson’s testimony, however, was extremely significant, for it provided the crucial link in the prosecution’s case: the accelerant. Michaelson testified that he had taken two samples from the carpeting near the hole in the floor and one sample from the exposed floor joist. He had tested these samples for the presence of accelerants by the use of what he claimed was his special gas chromatography equipment. He determined that the two pieces of carpeting contained traces of gasoline and that the floor joist contained traces of a petroleum distillate which might have been gasoline. On the basis of his test results, not only Michaelson, but the other expert witnesses for the prosecution as well, concluded that the fire was of an incendiary nature and probably caused by gasoline.

The defendant presented expert testimony that substantially contradicted the prosecution’s theory of an incendiary fire. An arson investigator for the State fire marshal testified that he had collected three samples of debris at the scene of the fire, one of which was from the floorboards at the edge of the hole caused by the fire. The investigator took these samples to the Illinois Bureau of Scientific Services in DeSoto, Illinois. A forensic scientist at the Bureau testified that he tested the samples for the presence of accelerants using a gas chromatography technique and determined that the samples contained no traces of accelerants.

The defendant also presented substantial testimony in support of his theory of an electrical fire. He testified that he had purchased the house in February 1977 and from the very beginning the family had experienced electrical problems. The lights and television would flicker off and on whenever the family plugged in electrical appliances. This was corroborated by the testimony of guests at the Cornille residence. Two electric company employees who inspected the home shortly before the fire testified that the electricity meter was broken and that the circuit breaker box was improperly installed.

An electrical contractor and an electrical engineer who inspected the electrical system in November 1977, seven months after the fire, both testified that the wiring in the house fell far short of the requirements of local electrical codes. One observed that “this was the worst wired house I had ever seen.” The electrical receptacles in the kitchen, including the one used by the refrigerator, were screwed directly into the wood paneling and did not have a metal box housing the open connections. The house was wired with telephone hookup wire which is neither voltage nor current rated, and according to these witnesses, the small and improperly insulated wire could have easily overheated and caused a fire. They also testified that wire splices were not properly housed in a junction box or joined with scotch lock. Moreover, the house had an inadequate 30-amp circuit breaker on the refrigerator’s electrical receptacle rather than the customary 15- or 20-amp circuit breaker.

The electrical engineer testified that the downward burn pattern of the fire was not impossible for an electrical fire. He also observed that “beading” and “fusing” do not occur in all electrical fires. He offered his opinion that the wiring defects were the most likely cause of the fire:

“With the 30 amp breakers and the very small wire there is a very good possibility, very good possibility that they had low voltage in the house. And low voltage also means that you demand more current which makes things run hotter. And [the cause] of that extra heat and the low voltage was in [turn] because of the small wire, I would guess that they played an important part in this whole fire.
*** I will say that it was *** this very poor wiring system that *** was the cause of the fire. In fact, it *** was so bad that it is like driving *** a car without brakes. If you keep driving that car you will have an accident. And that house was headed for a fire one time or the other. So, I come to the conclusion this could very well have been the time. The location of the fire was at this receptacle. The fire was underneath the refrigerator, every evidence was there. There was low voltage under the refrigerator which means the thing was running hot.”

The prosecutor recognized that the outcome of the case turned on which experts the jury believed when he noted in his closing argument that “[sjometimes trials like this boil down to *** disputes between experts. Unfortunately, this one maybe has.” In his closing argument the prosecutor referred at least three times to Michaelson’s testimony. He encouraged the jury to believe that testimony by emphasizing Michaelson’s impressive credentials:

“[The defendant’s attorney] asked Mr. Michaelson if he was getting paid for coming down and seeing this. Of course, he was, ladies and gentlemen. Of course he was. He is a professional. He gets paid to come and investigate fires. Completely investigate fires. *** Do you think he is going to lie? Do you think he is going to come up with results just because he wants to continue or he wants to get more jobs with the insurance company? What sort of credibility does he have then? What good does it do to investigate fires if every time he comes into Court it is shown on a prior occasion that he lied. About a prior fire. He has got his professional reputation at stake. And he is an expert. In fires. You heard his credentials. *** You decide what weight is to be given to his testimony.”

The defendant received a sentence of five years. The appellate court affirmed the conviction in an unpublished Rule 23 order, and the defendant began serving his sentence.

Comille’s petition for post-conviction relief alleged that, as a result of Michaelson’s false testimony at the arson trial, Cornille “was substantially denied due process guaranteed him in the Fourteenth Amendment of the Constitution of the United States and in Article I, Section 2, of the Constitution of the State of Illinois.” In support of this petition the defendant presented an affidavit of Lynn Em-merman, the newspaper reporter who interviewed Michaelson and heard him admit to testifying falsely about his professional credentials at the Cornille trial. The record also contains a copy of the Williamson County information which charges:

“DENNIS MICHAELSON committed the offense of PERJURY in that said defendant *** under oath or affirmation in a criminal proceeding ***, People v. Cornille, *** made a false statement, material to the issue in question, being his qualifications as an arson investigator, while testifying that arson had been committed on Apr. 3, 1977, at the home of Amil T. Cornille ***.”

Transcripts from Illinois Institute of Technology, Roosevelt University and Wright Junior College convincingly establish that Michaelson lied when he testified at Cornille’s trial that he had an associate degree from Wright Junior College and a bachelor’s degree in science with a major in chemistry from the Illinois Institute of Technology and that he had taken over 25 credit hours in post-graduate courses such as physics and optics. In fact, the transcripts show that Michaelson had a record of extremely low scholarship; that he had been suspended on several occasions for his lack of academic diligence; and that he had not received an academic degree from any of the schools.

The convincing evidence of Michaelson’s false testimony makes this case unique. Often when defendants seek a new trial based on allegations that false testimony was offered at their trial the principal issue is a factual one: whether the defendant has established by clear and convincing evidence that the testimony was false. These cases often involve the recantation of a witness or other new evidence of questionable reliability. (See, e.g., People v. Bracey (1972), 51 Ill. 2d 514, 519-20.) The defendant in the typical case alleges that this evidence suggests that false testimony occurred at his trial. The inherent unreliability of a person who recants his testimony often makes it difficult for a court to grant a new trial solely upon this basis. See, e.g., People v. Marquis (1931), 344 Ill. 261, 265 (“Those experienced in the administration of criminal law well know the untrustworthy character of recanting testimony”); see also People v. Nash (1966), 36 Ill. 2d 275, 285.

In this case, however, the prosecution admits, and the circuit court found, that Cornille has established beyond doubt that false testimony was given at his trial. Beyond that, the witness who allegedly gave the false testimony has been charged by information with perjury in connection with his testimony at that trial. It is antithetical to our system of justice to refuse to grant a new trial for a defendant when it is convincingly established that he was convicted on the basis of false testimony.

In this connection it is interesting to note the history of one of the other cases in which Dennis Michaelson offered crucial expert testimony for the prosecution. In People v. Alfano (1981), 95 Ill. App. 3d 1026, the defendant, Pietro Alfano, was convicted of aggravated arson and arson with intent to defraud his insurer. There was substantial evidence at trial that the fire in Alfano’s restaurant was incendiary in origin. Mr. Alfano, however, maintained that the fire had been set by an unknown gunman who assaulted him in the restaurant before setting the fire. After relating the same false credentials that he offered at the Cornille trial, Michaelson testified that in testing samples of the clothing that the defendant wore on the evening of the fire he had discovered traces of gasoline.

After the newspaper article revealed that Michaelson had lied about his expert qualifications, Alfano filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) seeking a new trial. The trial court denied the petition without an evidentiary hearing. The appellate court reversed and remanded for an evidentiary hearing, holding that the presentation of false testimony by the State warranted a new trial: “Michaelson’s presentation to the jury as an ‘expert’ witness afforded invalid and undue support to the State’s theory that the defendant was the one who set the fire.” (95 Ill. App. 3d 1026, 1031.) Records of the circuit court of Boone County in cause No. 79 — CF—18 indicate that on May 14, 1982, the court ordered a new trial and on August 16, 1982, the case was dismissed without prejudice on the State’s motion.

It would be anomalous for this court to deny Amil Cornille a new trial, especially when the evidence relating to the cause of the fire appears to be much closer in this case than in Alfano. The prosecution would have us justify this anomaly on the ground that Alfano sought relief under the broad remedial provisions of section 72 while Cornille sought relief under the more limited post-conviction hearing provisions of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.). Under those provisions, Cornille can prevail only by establishing a substantial infringement of his constitutional rights (People v. Martin (1970), 46 Ill. 2d 565, 568), in this case his right to due process of law.

Tb establish a violation of due process the defendant must demonstrate that some action of the State was inconsistent “with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (Hebert v. Louisiana (1926), 272 U.S. 312, 316, 71 L. Ed. 270, 273, 47 S. Ct. 103, 104), and which reflect “the community’s sense of fair play and decency” (Rochin v. California (1952), 342 U.S. 165, 173, 96 L. Ed. 183, 191, 72 S. Ct. 205, 210). “Perjury is the mortal enemy of justice” (People v. Shannon (1975), 28 Ill. App. 3d 873, 878), and it has long been recognized that the deprivation of an individual’s liberty based upon false testimony is contrary to fundamental principles of fairness in a civilized society (see, e.g., Mooney v. Holohan (1935), 294 U.S. 103, 112, 79 L. Ed. 791, 794, 55 S. Ct. 340, 341-42 (per curiam); Napue v. Illinois (1959), 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177). Every major civil and common law jurisdiction has provided some means of redress for persons unjustly convicted on false testimony. (See, e.g., Murray, Convictions Obtained by Perjured Testimony: A Comparative View, 27 Ohio St. L.J. 102 (1966) (reviewing remedies provided by the United States, Great Britain, France, Germany, Spain, and Mexico).) As the Supreme Court observed in granting a new trial under its supervisory authority, “The government of a strong and free nation does not need convictions based upon such testimony.” Mesarosh v. United States (1956), 352 U.S. 1, 14, 1 L. Ed. 2d 1, 10, 77 S. Ct. 1, 8; see also Communist Party of the United States v. Subversive Activities Control Board (1956), 351 U.S. 115, 100 L. Ed. 1003, 76 S. Ct. 663.

Nevertheless, the People contend, and the circuit and appellate courts in this case held, that Michaelson’s false testimony does not rise to the level of constitutional defect because it did not involve sufficient State action to constitute a violation of due process. They claim that his false testimony was merely the act of a private individual for which there is no remedy under the due process clause. (See, e.g., USA I Lehndorff Vermoegensverwaltung GmbH & Cie v. Cousins Club, Inc. (1976), 64 Ill. 2d 11, 18-21.) In support of this argument the People observe that the lower Federal courts have almost uniformly held that it is only the knowing use of false testimony by the prosecution or other agents of the State which violates due process. See, e.g., United States ex rel. Burnett v. Illinois (7th Cir. 1980), 619 F.2d 668, 673-75, cert. denied (1980), 449 U.S. 880, 66 L. Ed. 2d 104, 101 S. Ct. 229; Burks v. Egeler (6th Cir. 1975), 512 F.2d 221, 224-29, cert. denied (1975), 423 U.S. 937, 46 L. Ed. 2d 270, 96 S. Ct. 297.

The People also argue that People v. Frank (1971), 48 Ill. 2d 500, 506, supports a holding that only knowing use of false testimony violates due process. (See also People v. Smith (1968), 41 Ill. 2d 158, 163, cert. denied (1969), 396 U.S. 852, 24 L. Ed. 2d 101, 90 S. Ct. 111.) In Frank the defendant alleged in a petition for post-conviction relief that due process was violated when a police informer testified falsely concerning his identity and his record of prior convictions. This court affirmed the circuit court’s denial of an evidentiary hearing on the petition, noting that it “neither stated nor supported in any way the present suggestion that the prosecution knowingly concealed the informer’s identity prior to trial and knowingly permitted him to testify falsely.” 48 Ill. 2d 500, 506.

Cornille urges that we distinguish Frank and hold that it is a violation of due process whenever false testimony on a material matter occurs at a criminal trial. He claims that the involvement of the State’s adjudicatory processes in Michaelson’s false testimony is alone sufficient State action to establish a violation of due process. Cf. Shelley v. Kraemer (1948), 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (use of State’s judicial process by private persons to enforce racially restrictive covenants is State action violating due process).

In People v. Shannon (1975), 28 Ill. App. 3d 873, the appellate court adopted a position similar to that advanced by Cornille:

“[T]he use of the State’s judicial process to enforce a right of the People, the violation of which is based upon the perjured testimony of a private individual, constitutes State action whether or not the State knew that the testimony was perjured. Known to the State or not, the use of its judicial process to convict and imprison on perjured testimony is a miscarriage of justice which is abhorrent to fundamental fairness and as such is intolerable.” (28 Ill. App. 3d 873, 878.)

Accord, People v. Hilliard (1978), 65 Ill. App. 3d 642, 647; People v. Sims (1972), 4 Ill. App. 3d 878, 880; Riley v. State (1977), 93 Nev. 461, 462, 567 P.2d 475, 476 (“the truth seeking function of the trial is corrupted by *** perjury whether encouraged by the prosecutor or occurring without his knowledge”); People v. Yamin (1965), 45 Misc. 2d 407, 416-17, 257 N.Y.S.2d 11, 22-23; see also Jones v. Kentucky (6th Cir. 1938), 97 F.2d 335, 338; cf. People v. Alfano (1981), 95 Ill. App. 3d 1026, 1031 (relies on Shannon in granting new trial under section 72).

In Shannon the appellate court reasoned that Frank did not require an allegation of “knowing use” to state a violation of due process. (People v. Shannon (1975), 28 Ill. App. 3d 873, 877-78.) Frank’s petition charged “knowing use,” but it lacked specific allegations supporting that charge and thus failed to comply with the pleading requirements of the post-conviction-hearing provisions (Ill. Rev. Stat. 1975, ch. 38, par. 122 — 2). According to the appellate court in Shannon, it was for that reason that this court in Frank affirmed the trial court’s denial of an evidentiary hearing on the defendant’s petition.

In this case, however, we need not adopt the approach of the appellate court in Shannon. The unique situation of an expert witness lying about his qualifications as an expert creates additional indicia of State action which, when linked to the involvement of the State’s adjudicatory processes, makes his conduct a violation of due process, even under the more restrictive approach of the Federal courts.

In several cases courts have held that false testimony by a witness at a criminal trial violates due process even though the State’s involvement in the testimony in those cases did not rise to the level of knowing use. In each of these cases there was some lack of diligence on the part of the State which satisfied the State action requirement.

For example, in Giglio v. United States (1972), 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, a crucial government witness falsely asserted that he had received no promise of leniency in exchange for his testimony. The assistant United States Attorney who was prosecuting the case had no knowledge of the offer of leniency because another assistant had made the promise. The Supreme Court held that the government had a duty to disclose the offer of leniency and to correct the false testimony of the witness. Its failure to do so violated due process “whether the nondisclosure was a result of negligence or design.” 405 U.S. 150, 154, 31 L. Ed. 2d 104, 109, 92 S. Ct. 763, 766; see also People v. McKinney (1964), 31 Ill. 2d 246, 250-51.

A key government witness falsely testified in Imbler v. Craven (C.D. Cal. 1969), 298 F. Supp. 795, aff'd per curiam (9th cir. 1970), 424 F.2d 631, cert. denied (1970), 400 U.S. 865, 27 L. Ed. 2d 104, 91 S. Ct. 100, that he had earned college degrees in both industrial relations and engineering. The witness had a history of felony convictions and State mental hospital commitments and had testified that he had earned the second college degree only one year after his release from prison. The court held that this “reckless use of highly suspicious false testimony” (298 F. Supp. 795, 807) violates due process:

“Due process of law does not tolerate a prosecutor’s selective inattention to such significant facts. It requires that he exercise good faith in prosecuting that case. *** The duty of good faith is not merely a negative one, to omit from one’s case outright lies. It imposes as well an affirmative duty to avoid even unintentional deception and misrepresentation, and in fulfilling that duty the prosecutor must undertake careful study of his case and exercise diligence in its preparation, particularly where he is confronted with facts tending to cast doubt upon his witness’ testimony. The prosecutor’s objective is justice; his role is not that of a mere advocate. The goal of justice is hardly satisfied by less.” (298 F.Supp. 795, 808-09.) <

Other courts have applied negligence or recklessness standards in deciding whether to hold the prosecution responsible for the false testimony of a government witness. See, e.g., Sawyer v. Barczak (7th Cir. 1956), 229 F.2d 805, 810, cert. denied (1956), 351 U.S. 966, 100 L. Ed. 1486, 76 S. Ct. 1025; Wild v. Oklahoma (10th Cir. 1951), 187 F.2d 409, 410; Runnels v. State (Okla. Crim. 1977), 562 P.2d 932, 936, cert. denied (1977), 434 U.S. 893, 54 L. Ed. 2d 179, 98 S. Ct. 270.

These cases teach us that under certain circumstances the prosecutor should not be permitted to avoid responsibility for the false testimony of a government witness by failing to examine readily available information that would establish that the witness is lying. It would have been a simple procedure in this case for the State to have verified Michaelson’s qualifications before he testified at Comille’s trial. As a direct result of its failure to do so, false testimony occurred at the trial, and a fraud was perpetrated on the court and on the defendant. Under the circumstances of this case, it is our view that the State’s lack of diligence creates enough involvement by it in the false testimony to establish a violation of due process.

The prosecution concedes that Michaelson testified on behalf of the People in at least two other criminal trials, and considering that he allegedly investigated over 1,300 fires in his 14-year career as a “fire investigator,” he may have testified in many more. The frequency of his testimony for the State highlights the fact that Michaelson was not merely an occurrence witness whose presence at the trial was determined by his relationship to the facts of the case. The State selected him to offer the jury his expert opinion on the causes of the fire and relied upon the credibility imparted by his expertise to win an otherwise closely balanced case. As the prosecution made the mistake of producing an expert witness who was an imposter, it is only fair to charge it with responsibility for the imposter’s false testimony. Cf. Trapp v. American Trading & Production Corp. (1979), 66 A.D.2d 515, 519, 414 N.Y.S.2d 11, 13 (new trial required in civil case where it was shown that an expert witness had lied about his qualifications as an expert).

Moreover, it is obvious that every party, including the State, has an obligation to verify the credentials of its expert witnesses. It is only on the basis of these credentials that experts are permitted to offer their professional opinions concerning the factual issues disputed in the criminal proceeding. This type of purportedly objective opinion testimony may have considerable influence on the jury, and the rules for qualifying expert witnesses are designed to ensure that only genuine experts will offer it. Pitting the defendant’s protestations of innocence “against the objective test results of an expert is an acceptable contest in an adversary proceeding, but only when all the players are on the official roster, and not when one is a ringer.” (People v. Alfano (1981), 95 Ill. App. 3d 1026, 1031.) We hold that under the circumstances of this case there was sufficient involvement by the State in the false testimony offered by Michaelson to satisfy the State-action requirement of the due process clauses of the State and Federal constitutions.

Once the defendant establishes the condemned use of false testimony, he is entitled to a new trial unless the State can establish beyond a reasonable doubt that the false testimony was immaterial in that it did not contribute to the conviction. (People v. Bracey (1972), 51 Ill. 2d 514, 520; see also People v. Martin (1974), 56 Ill. 2d 322, 325.) We believe that there is a reasonable likelihood that Michaelson’s false testimony concerning his qualifications as an expert might have affected the jury’s decision. Even though the false testimony went only to the issue of his credibility it may constitute reversible error. People v. Galloway (1974), 59 Ill. 2d 158, 164; People v. Coddington (1964), 31 Ill. 2d 468, 471.

The evidence concerning the cause of the fire was closely balanced, as pointed out above, and Michaelson offered the crucial testimony which explained why he knew that accelerants were present at the scene of the fire. His claim of having vastly improved equipment for use in his gas chromatography analysis greatly diminished the persuasiveness of the State forensic scientist who, in using the same diagnostic technique, found no traces of gasoline in other samples of debris.

The prosecutor recognized the importance of this testimony. In cross-examining each of the defendant’s expert witnesses the prosecutor made repeated references to Michaelson’s testimony. Again, in his closing argument the prosecutor highlighted that testimony and emphasized Michaelson’s formidable, but falsified, qualifications as an expert. Under these circumstances we conclude that these false academic credentials reasonably may have had an effect on the jury’s decision.

For all these reasons we hold that Mr. Michaelson’s false testimony about his qualifications as an expert witness violates due process of law guaranteed under both the State and the Federal constitutions, and that the defendant is entitled to a new trial. The judgment against Amil T. Cornille is reversed and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 56607, 56976 cons.
    HARRIS TRUST & SAVINGS BANK, Trustee, Appellee, v. WILLIAM L. DUGGAN et al., Appellees (322 West Oakdale, Inc., et al., Appellants).

      Opinion filed March 25, 1983.
    Rehearing denied May 27, 1983.

      Donald Page Moore, Nancy L. Kaszak, and Richard J. Roddewig, all of Chicago, for appellants.
    Raymond F. Simon and Joseph A. Spitalli, of Chicago (Simon & Spitalli, of counsel), for appellee Harris Trust & Savings Bank.
    Stanley Garber, Corporation Counsel, of Chicago (Jerome A. Siegan and Philip L. Bronstein, Assistant Corporation Counsel, of counsel), for appellees City of Chicago, William L. Duggan, and Stanley Garber.
   JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Harris Trust & Savings Bank (Harris), filed three suits in the circuit court of Cook County against the city of Chicago and William Duggan, Commissioner of the Chicago Department of Inspectional Services. The actions involved the Kellogg mansion properties located in the 2900 block of North Lake Shore Drive. In the first suit, Harris, as trustee of the Helen L. Kellogg trust, sought a writ of mandamus compelling the city to issue demolition permits for the subject property. Harris subsequently challenged, in two separate suits, the validity of a zoning ordinance and landmark ordinance. The trial court ruled in plaintiff’s favor in all three actions, and awarded plaintiff a substantial money judgment. The city and Harris subsequently executed a settlement agreement whereby Harris promised to abandon its money judgment and the city agreed to issue the permits and forgo its right to appeal. Following execution of the settlement agreement, 322 West Oakdale, Inc. (Oakdale), Alderman Martin J. Oberman and Hedwig Braun sought leave to intervene, post-judgment, in the mandamus and landmark cases. The trial court denied intervention. Oakdale was allowed to intervene in the zoning case and appealed the judgment which was entered in plaintiffs favor. The appellate court consolidated the cases and affirmed the judgments of the trial court, holding that the zoning ordinance was unconstitutional and that Oakdale lacked standing to intervene in the mandamus and landmark cases. (105 Ill. App. 3d 839.) Oakdale, Oberman and Braun sought review here of this judgment. In a separate case, No. 56976, the same parties seek review of the denial of their petition challenging the validity of the settlement agreement. We granted leave to appeal and consolidated the cases for purposes of review.

The facts, largely adopted from the appellate court opinion, are not controverted. The subject property includes three contiguous parcels of real estate, each improved with a single-family residence. Upon the death of Helen Kellogg in 1978, the properties became assets of a charitable foundation, created to liquidate and distribute the Kellogg estate assets to various charities. In November of 1978, Harris executed a contract to sell the property for $2.6 million. The contract was subject to the purchaser’s right to develop the property in accordance with R-8 (high rise) zoning. The property was zoned R-8 at the time the contract was executed, and had been so zoned for approximately 18 years.

In February of 1979, Harris applied to the city for demolition permits to raze the mansions. The permits were granted on March 6, 1979, but were revoked the following day. In the letter of revocation, the city indicated that the property was located in an area under consideration for landmark designation. No landmark proceeding was pending at that time.

In April of 1979, Harris filed a two-count complaint seeking a writ of mandamus compelling reissuance of the demolition permits. While this action was pending, the city enacted an ordinance “down-zoning” the property from R-8 to R-5 (medium rise). In October 1979, Harris filed suit seeking a declaratory judgment that the amendatory zoning ordinance was unconstitutional and void. Oakdale sought, and was granted, leave to intervene in this action as a party defendant. In June of 1980, the trial court entered judgment in the zoning case, determining that the amendatory ordinance was unconstitutional. The court held that the property could be used in any manner consistent with R-8 zoning.

The following October, the court entered judgment for Harris in the mandamus case, ordering the city to reissue the demolition permits. The court also awarded Harris in excess of $1 million for the city’s wrongful failure to issue the permits. However, the court stayed execution of its judgment pending a determination as to whether the property would be designated a landmark. The writ was later stayed again pending appeal.

On February 11, 1981, the city council enacted an ordinance designating the subject properties as Chicago landmarks. The following month, Harris notified the Commission on Chicago Historical and Architectural Landmarks (Commission) that it planned to demolish the buildings and the city should either allow the demolition or acquire the property through eminent domain. Harris also waived its right to any administrative hearing and requested the Commission to follow the applicable administrative procedures set forth in section 21 — 64.1 of the Municipal Code of Chicago. The city rejected Harris’ demands and denied an obligation to pay any compensation for the alleged “taking.”

In May of 1981, Harris added count III to its mandamus complaint. This count alleged that the city’s actions regarding the subject property deprived Harris of all reasonable use of the property for two years, and that the property was taken without due process or just compensation. The case proceeded to trial on the theory of inverse condemnation. Harris later amended its prayer for relief under count III, requesting a declaratory judgment that the ordinance designating the property as a landmark was unconstitutional and void.

On September 2, 1981, the court entered judgment for Harris on count III. It determined that the landmark ordinance, together with the city’s refusal to issue the permits, deprived Harris of all reasonable use of the property and constituted a taking requiring payment of just compensation. The court found that $3.65 million would be just compensation, but did not enter the money judgment because the city was unwilling to acquire the property and compensate Harris therefor. Instead, the court entered a declaratory judgment declaring the landmark ordinance unconstitutional and void. The court also awarded Harris $1,037,849.76 under section 5 of “An Act to revise the law in relation to mandamus” (111. Rev. Stat. 1979, ch. 87, par. 5), for the city’s wrongful failure to issue the permits. (As previously noted, this judgment had been rendered in October of 1980, but was stayed pending a determination as to whether the property would receive landmark designation.)

As related earlier, following judgment in this final action, the city and Harris executed a settlement agreement. The city agreed to issue the demolition permits and forgo its right to appeal, and Harris agreed to abandon the money judgment. In September of 1981, shortly after learning of the agreement, Oakdale, Oberman, and Braun sought post-judgment intervention in the mandamus and landmark cases. The petition was denied, and they subsequently filed a separate lawsuit challenging the validity of the settlement agreement. Summary judgment was entered in Harris’ favor, and the appellate court dismissed the appeal.

Further facts will be recited where relevant to a disposition of the issues.

I. MANDAMUS AND LANDMARK CASES (Cause No. 56607)

Oakdale, a not-for-profit corporation with approximately 53 members, Martin Oberman, who was aider-man of the ward in which the Kellogg mansions are located, and Hedwig Braun allege standing to intervene, post judgment, in the mandamus and landmark cases. We agree with the appellate court that the petitioners have not alleged a sufficient interest or injury so as to establish their standing to intervene. It should be kept in mind that intervention was sought after judgments were entered in the mandamus and landmark cases, and also after the settlement agreement had been completed.

Oakdale asserts that it is located 18 feet from the subject property and will be adversely affected by a razing of the mansions located thereon. The relevant portion of Oakdale’s amended petition to intervene states:

“14. Oakdale will also be substantially damaged in that issuance of a demolition permit and the consequent demolition of the Kellogg mansions will adversely affect the character of their neighborhood, remove an appealing and aesthetically attractive group of landmark structures, result in the construction of a new and much larger residential building which will increase traffic, congestion, and crowding in the neighborhood and substantially reduce property values in the area, including, most particularly, the value of the apartment house property owned by Oakdale and the approximately 53 individual apartment owners who are members of Oakdale, reside in the Oakdale building, and are represented in this petition by Oakdale.”

A fair reading of this paragraph indicates that Oakdale is alleging a reduction in property value, and other “injuries,” as a result of the potential construction of a highrise building. As noted by the appellate court, Harris was not seeking, in the mandamus and landmark cases, the right to construct a building. This relief was at issue in the zoning case, in which Oakdale was permitted to intervene. Oakdale fails to allege that demolition of the mansions will in itself decrease the value of its property.

We recognize that, as Oakdale points out, pleadings should be liberally construed. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13; see Ill. Rev. Stat. 1979, ch. 110, par. 33(3)). However, it is well established that absent the necessary allegations of interest in the controversy, and injury as a result of the challenged action, the petitioner lacks standing to require a decision on the merits. Cf. Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371 (wherein an association lacked standing to seek a declaratory judgment because it failed to allege an injury or threat of injury); Walker v. State Board of Elections (1976), 65 Ill. 2d 543 (a party challenging the validity of a statute must be in immediate danger of sustaining a direct injury); see also Warth v. Seldin (1975), 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197.

It is further alleged by Oakdale, in apparent reference to the mandamus case, “that issuance of a demolition permit would cause an immense and irreparable loss to the petitioners by destroying the Kellogg mansions’ unique contribution to the cultural heritage and history of the City of Chicago.” Again, there is no assertion in the petition that Oakdale’s property values will be decreased. Oakdale further alleges that an economic injury is not required to establish standing. Rather, the harm alleged may be environmental or aesthetic in nature. (United States v. Students Challenging Regulatory Agency Procedures (1973), 412 U.S. 669, 37 L. Ed. 2d 254, 93 S. Ct. 2405.) “Aesthetic considerations, although not disregarded, are not controlling ***.” (County of Lake v. First National Bank (1980), 79 Ill. 2d 221, 228 (same principle concerning zoning ordinance).) Further, there must be an injury to an enforceable right or interest which, with respect to an intervenor, must be more than a “general interest” in the subject matter of the litigation. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373; Cooper v. Hinrichs (1957), 10 Ill. 2d 269; Seger v. County of Du Page (1978), 58 Ill. App. 3d 858.) It cannot be said that Oakdale, Oberman or Braun has more than a “general interest” in preservation of the Kellogg mansions. But cf. Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174 (wherein neighborhood property owners were permitted to intervene because they alleged a reduction in their property values as a direct result of a judgment allowing erection of a shopping center near their properties).

Oberman also seeks intervention on the ground that he was deprived of certain rights and duties arising out of his status as alderman in the ward in which the Kellogg property is located. We note initially that aldermanic status alone is insufficient to confer a right to intervention. (University Square, Ltd. v. City of Chicago (1979), 73 Ill. App. 3d 872.) However, Oberman contends that, as a member of both the finance committee and the city council, he was deprived of his right under sections 21 — 62 through 21 — 64 of the Chicago Municipal Code (Code) to review Harris’ applications for demolition permits, and determine whether compensation should be paid. Under the Code, the building department must forward to the Commission applications for demolition of buildings which have been designated landmarks. The application and any recommendations applicable thereto are then forwarded to the finance committee, and ultimately to the city council, which renders the final decision. Oberman asserts that Harris improperly bypassed this administrative process and sought judicial relief.

Oberman cannot seek to intervene as representative of the finance committee or city council. He is only a member thereof, and was not granted authority to act on behalf of those administrative bodies. (See In re Appointment of Special State’s Attorneys v. Grabavoy (1976), 42 Ill. App. 3d 176.) Since the committee and council members cannot act individually, Oberman had no power to act individually. (Cf. Pauly v. County of Madison (1919), 288 Ill. 255 (members of the board of supervisors have no authority to act individually); In re Appointment of Special State’s Attorneys v. Grabavoy (1976), 42 Ill. App. 3d 176 (same)). We therefore hold that, in his individual capacity, Oberman lacked a sufficient interest to intervene, post judgment, in the mandamus and landmark cases.

He also alleges that he was deprived of the right, under chapter 6 — 8 of the Code, to determine the validity of settlement agreements negotiated by the attorney for the city. For the reasons stated above, we do not believe this assertion establishes a right to intervene. It is the duty of the city council, as a whole, to consider settlement agreements. In fact, subsequent to the settlement agreement, the city council passed a resolution indicating that it agreed to allow demolition of the mansions, and development in accordance with R-8 zoning.

Petitioners also briefly allege that they have standing to sue because of their status as taxpayers. Our review of their briefs filed in the appellate court indicates that the issue of taxpayer standing was not raised in that court. It is well established that issues which could have been raised in the appellate court but were not are deemed waived. (E.g., Clore v. Fredman (1974), 59 Ill. 2d 20; City of Lawrenceville v. Maxwell (1955), 6 Ill. 2d 42; cf. Demchuk v. Duplancich (1982), 92 Ill. 2d 1 (legal theories of recovery not previously raised will not be considered by this court).) Consequently, the issue of taxpayer standing in the instant case was not properly preserved for review, and we decline to address it.

We find no merit to the further contention that disposing of certain issues on the grounds of standing, rather than addressing the merits of the claims, violates the fourteenth amendment. The very purpose of the standing doctrine is to assure that issues are raised only by those individuals with a sufficient stake in the outcome of the controversy. (Sierra Club v. Morton (1972), 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361.) It is well established that, where standing is lacking, it is inappropriate to consider the merits of the claims raised. See, e.g., Warth v. Seldin (1975), 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197.

For the above-related reasons, we hold that the trial judge did not abuse his discretion is denying the post-judgment petition for intervention in the mandamus and landmark cases. It is therefore unnecessary to reach Harris’ additional argument that the petition was not timely filed.

ZONING CASE

Oakdale was permitted to intervene in the zoning case, and we therefore address the issue of whether the down-zoning from R-8 to R-5 was unconstitutional and void as applied to the property. Pursuant to a comprehensive study conducted in 1961 on behalf of Chicago, it was determined that the properties fronting Lake Shore Drive, between Belmont and Diversey, including the subject property, should be zoned R-8. The properties were so classified, in accordance with a city policy of allowing the highest density zoning adjacent to the lakefront. A number of high rises in the area were constructed to the allowable limit under R-8 zoning. A hospital and convent, also located within the area, were developed in conformity with R-5 zoning. (The convent property was “down-zoned” from R-8 to R-5 after the subject property was “down-zoned.”) The properties between Lake Shore Drive and Sheridan Road (which runs immediately west of the subject properties) were zoned between R-5 and R-7. The properties on either side of Sheridan Road are in conformance with R-7 zoning.

The Kellogg properties retained their R-8 classification from 1961 until 1979. At that time, as previously noted, an amendatory zoning ordinance was enacted, down-zoning the parcels to R-5. No other property was affected by the ordinance. As a result of the down-zoning, performance under the contract previously referred to did not take place.

A number of witnesses testified concerning the propriety of the amendatory zoning ordinance. Rolf Campbell, a witness for Harris, stated that he was a city planning and zoning consultant. He indicated that the predominant use and trend of development in the subject area is multiple-family, high-rise buildings in conformance with R-8 zoning. In his opinion, an R-5 zoning classification would therefore not be consistent with the predominant use in the area. He further testified that the highest and best use of the subject parcels would be construction of a high-rise. He stated that development of the subject property in accordance with R-8 zoning would have no adverse effect on the community or adjacent properties. He further indicated that the fact that other properties in the area were down-zoned to R-5, after the subject property, did not change his opinion that an R-5 classification would be inconsistent with development in the area. In his opinion, rezoning of the property was not undertaken pursuant to a comprehensive zoning amendment.

On cross-examination, Campbell stated that it may be proper to have more than one residential classification within a given block. On redirect examination, he testified that there should be only one zoning classification in the area in which the subject properties are located.

Terrence O’Brien, a real estate appraiser, broker and consultant, also testified on behalf of Hams. He defined the phrase “highest and best use” as the “use which would yield the greatest net return to a property and its owner.” In his opinion, the highest and best use of the subject properties would be to develop them in accordance with an R-8 classification. In his view, such a development would not have an adverse impact on the value of surrounding properties. The witness agreed with Campbell’s conclusion that the predominant use of the properties between Belmont and Diversey, on Lake Shore Drive, is multifamily construction “similar to an R-8 classification.” He further testified that the fair market value of the property under R-8 zoning is $3.2 million. He valued the property at $1.78 million under an R-5 classification, a difference of $1.42 million.

Dale Park, Jr., an attorney specializing in estate planning and administration, stated that he was the director of the Helen L. Kellogg foundation. He testified that, in anticipation of the proceeds to be realized from the contract executed in 1978, the foundation pledged funds to the University of Notre Dame and Northwestern University. In reliance on the pledge, Northwestern renamed its management school the “John L. Kellogg Graduate School of Management.” Notre Dame created a new learning center and hired faculty to staff it. As a result of the down-zoning and consequent inability to perform under the contract, the foundation is unable to meet these binding pledges.

Harris called Martin Murphy, commissioner of the Department of Planning, as an adverse witness. He testified that, after a study of the subject area, he recommended to the city council that the property not be down-zoned to R-5. In his testimony before the building and zoning commission of Chicago in June of 1979, he had stated that a rezoning from R-8 to R-5 was out of character with the established zoning. He later withdrew his objection because he understood that a comprehensive rezoning of the area was being considered. However, he still did not recommend passage of the ordinance.

Wallace Nelson, a vice-president of the First National Bank, testified that the Kellogg account was assigned to him for supervision in 1971. At that time, Helen Kellogg owned two parcels of the subject property and wished to acquire a third. Pursuant to an appraisal of the parcel, the bank quoted $500,000, the purchase price, as the fair market value of the property. A reason cited for the valuation was the “desirable” R-8 zoning classification.

Further testimony presented by Harris indicated that no attempt was made to sell the property under the R-5 zoning. Lance Morgan, the vice-president of the trust department at Harris, stated no effort was made to sell the property as R-5 because it should be zoned R-8, and was worth more under the latter classification.

Two witnesses testified on behalf of the city. Jerome Jacobson, the deputy commissioner of the Department of Planning, stated that two zoning classifications can exist within one block and be compatible. He also stated that zoning changes were being undertaken throughout the area in order to reduce density. The changes were made pursuant to a general plan. Jacobson estimated that 85% to 90% of the land in the area had been down-zoned, excluding those properties already developed to the maximum density permitted under the ordinance. In his opinion, the subject property should be zoned R-5 in light of the development in the surrounding area and the desire to control congestion.

On cross-examination, Jacobson admitted that the predominant use of the property in the area was in accordance with R-7 and R-8 zoning. He stated that properties in the immediate area currently zoned R-5 were so classified after the subject property. On re-cross-examination, he defined the “highest and best use” of property as that which “best serves the needs of the community and the City itself.”

John McNamara, a real estate broker, appraiser and consultant, stated that the property, as zoned R-5, is worth $1.8 million. Under R-8 zoning, it is worth $3.05 million. He therefore agreed that the subject property is more valuable under an R-8 classification, but stated that the highest and best use of the property is in accordance with R-5 zoning.

On cross-examination, McNamara defined the “highest and best use” of property as “the use to which the property can be put over a period of time, with the greatest amount of monetary return to the owners.” He nevertheless insisted that R-5 zoning represents the highest and best use, contrary to his definition thereof.

Oakdale contends that a zoning ordinance is valid as long as there is any rational basis upon which it can be sustained. Here, the ordinance was allegedly enacted to reduce density in the lakefront area. Oakdale further argues that if the validity of the ordinance is fairly debatable, the city council’s judgment must control. It is asserted that the ordinance does not constitute impermissible “spot” zoning because there has been a systematic down-zoning of properties in the subject area since 1975.

Harris alleges that the ordinance is arbitrary and capricious because it relates only to the subject property (rendering it in nonconformance with existing uses in the area), and it fails to serve any public purpose. It is further argued that the reclassification violated Harris’ vested rights acquired under the original classification. Harris points out that a purchase, a sale and certain charitable donations were undertaken in reliance on the R-8 zoning.

As noted by the appellate court, a zoning ordinance is presumed valid, and the burden is upon the party attacking the ordinance to establish its invalidity by clear and convincing evidence. (Duggan v. County of Cook (1975), 60 Ill. 2d 107, 111.) Factors “which may be taken into consideration in determining validity of an ordinance are the following: (1) The existing uses and zoning of nearby property [citations], (2) the extent to which property values are diminished by the particular zoning restrictions [citations], (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public [citations], (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner [citations], [and] (5) the suitability of the subject property for the zoned purposes ***.” La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47.

We find that these factors weigh substantially in favor of Harris. As previously noted, most of the property within the immediate subject area, fronting Lake Shore Drive, was zoned R-8 and had been so classified since 1961. The ordinance in question affects only the Kellogg property. Although there was conflicting evidence as to whether the rezoning was pursuant to a comprehensive plan, this fact does not, as Oakdale suggests, “require a finding that the reasonableness of the ordinance is debatable.” (12 Ill. 2d 40, 47.) In addition, the trial court found that the harm to Harris outweighed any benefit to the public. The down-zoning precluded the negotiated land sale, substantially reduced the value of the property, and impedes Harris’ fiduciary responsibilities as to its charitable obligations. In terms of the suitability of the property for R-5 zoning, many of the witnesses testified that the highest and best use of the property was development in accordance with R-8 zoning. There was testimony to the effect that construction consistent with an R-8 classification would have no adverse effect upon the community, or the value of the surrounding properties.

It has frequently been said that zoning ordinances must bear a substantial relationship to the public health, safety and welfare. (E.g., La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, quoting Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 179-80.) This is because “a property owner has the right to expect that the classification imposed by the original zoning ordinance will not be changed unless such is required for the public good.” (Garner v. City of Carmi (1963), 28 Ill. 2d 560, 564; Zilien v. City of Chicago (1953), 415 Ill. 488, 493.) The trial court found an undue invasion of Harris’ constitutional rights without a sufficient concomitant benefit to the public. From our review of the record, we are unable to say that this determination was against the manifest weight of the evidence. See La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 309; Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 516-17.

In so holding, we find inapposite Agins v. City of Tiburon (1980), 447 U.S. 255, 65 L. Ed. 2d 106, 100 S. Ct. 2138, and Amdur v. City of Chicago (7th Cir. 1980), 638 F.2d 37, cert. denied (1981), 452 U.S. 905, 69 L. Ed. 2d 406, 101 S. Ct. 3031, cited by Oakdale. Agins involved the question of whether the mere enactment of a zoning ordinance limiting property development constitutes a taking. In determining that it did not, the court noted that, contrary to the instant case, the ordinance did not prevent the best use of owners’ land and, apparently, affected other property.

The court in Amdur relied on the Agins opinion in resolving the same issue. It, too, noted that the ordinance did not prevent the best use of the owner’s land. Further, unlike the instant case, there was no evidence indicating that the owner took any action in reliance on a preexisting zoning classification.

II. SETTLEMENT AGREEMENT (Cause No. 56976)

Consolidated with this case is Oakdale’s separate appeal in cause No. 56976. This appeal again challenges the validity of the settlement agreement entered into between the city and Harris. Oakdale claimed in the trial court that the agreement was void because it was executed without city council approval. The city council later adopted a resolution allowing for demolition of the buildings and development in accordance with R-8 zoning, after which the trial court granted Harris summary judgment. Based upon this action, Harris moved for a dismissal of the appeal, which the appellate court granted.

Oakdale cites no authority in support of the proposition that the appellate court erred in dismissing its appeal. Our attention is directed only to portions of the complaint which, it is asserted, “establishes a cause of action.” The recited provisions basically allege that Harris failed to exhaust its administrative remedies, in the landmark case, prior to instituting a suit in the court for redress.

Because we have found that Oakdale and Oberman lacked standing to intervene in the landmark case, it is difficult to see how they would have standing to attack a settlement agreement relating thereto. In addition, virtually the identical issue was raised by Oberman in cause No. 56607. Indeed, in its petition herein for leave to appeal, Oakdale stated that “[t]he subject matter, the identity of the petitioners, and the key respondents are all identical to those in the pending Kellogg cases.” It appears that the complaint in this case is an attempt to relitigate an issue decided adversely to Oakdale in the prior proceeding. We therefore conclude that the appellate court did not err in dismissing the appeal.

Accordingly, for the reasons stated herein, the judgments of the appellate court in cause No. 56607 and cause No. 56976 are affirmed.

Judgments affirmed.


text:
    (No. 56940.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PATRICK FAUSZ, Appellee.

      Opinion filed March 25, 1983.
    Rehearing denied May 27, 1983.

      Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Alan E. Stumpf, State’s Attorney, of Waterloo (Stephen E. Norris, and Raymond F. Buckley, Jr., of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Goldenhersh and Goldenhersh, P.C., of Belleville (Marvin W. Goldenhersh, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Defendant, Patrick Fausz, was charged by information with the murder of Michael Lux and the attempted murder of James D. Weber. A jury in the circuit court of Monroe County found defendant not guilty of the offenses of murder, attempted murder and involuntary manslaughter, but convicted him of the offense of voluntary manslaughter. The trial court entered a judgment of guilty of voluntary manslaughter and sentenced defendant to a three-year prison term. The appellate court reversed, finding the evidence failed to establish the defendant’s guilt of voluntary manslaughter. (107 Ill. App. 3d 558.) The appellate court also refused to reduce the degree of the offense to involuntary manslaughter under Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615(b)(3)) because the jury had specifically acquitted defendant of that offense. We allowed the State leave to appeal.

The State contends that the appellate court erred by-reversing defendant’s conviction of voluntary manslaughter.

Early in the evening of September 3, 1980, Lux, Weber, and Rodney Godier commenced drinking. At approximately 10:30 p.m., they arrived at a tavern owned and operated by defendant and continued drinking. They overheard defendant tell a patron, Joe Benton, that he was placing two bottles of whiskey, which he had previously borrowed, in Benton’s pickup truck. One of the three allegedly “teased” defendant, suggesting he put the whiskey in Weber’s car instead of Benton’s truck.

Around midnight the three men left the tavern but loitered in the parking lot. Defendant became suspicious and watched them from the door. A tavern patron went out to the parking lot and positioned himself behind Benton’s pickup truck. At one point, Weber approached the truck, but the patron confronted him and Weber walked away.

The trio then got into Weber’s car, backed down the road about 200-300 feet north of the tavern, parked and smoked marijuana for about a half hour. Afterward, Weber drove slowly past the tavern with the lights off and parked in the road just south of the tavern. Weber and Lux then got out of the car and relieved themselves.

At this point, there is some conflict in the testimony. Weber testified defendant came out of the tavern with a pistol, told him and Lux to leave the tavern premises and not return, and then fired four shots. Upon reaching the car, Lux got in holding his back, and started bleeding from his mouth. Weber then sped off. After driving a few miles, Weber saw a pursuing vehicle in his rear-view mirror and as it approached his car, he heard five or six shots fired. Subsequently, Weber drove Lux to a hospital, where Lux was pronounced dead. An autopsy revealed Lux’ death resulted from a gunshot wound in the back.

Defendant testified that he became suspicious when he saw Weber’s car drive slowly past the tavern with the lights off and then stop in the middle of the road. He obtained a pistol, kept on the premises for protection, and went out behind his automobile in the parking lot. He observed Weber approach Benton’s truck and told Weber that all of them should leave and not come back. Weber moved toward defendant but stopped when defendant advised him he had a gun. Weber walked back to his car and defendant went back into the tavern.

Shortly thereafter, defendant observed Lux near Benton’s truck. He again got his gun and went out to confront Lux. Lux ran toward Weber’s car parked in the road. Defendant, thinking Lux had taken the whiskey bottles, told Lux to stop. Lux kept running. Defendant fired a shot into the air and then, in order to scare Lux into stopping, aimed his pistol over Lux’ head and fired a second shot. He then watched Weber’s car speed off.

Defendant and another tavern patron, Joe Falkner, pursued them in Falkner’s car. When they drew near to Weber’s car, defendant fired another shot in the direction of Weber’s car. It struck the left front fender. Shortly thereafter, Falkner and defendant ceased their pursuit.

At trial, the deputy who arrested defendant testified defendant appeared shocked and surprised that anyone had been hurt during the incident. Defendant testified he fired the pistol only to scare Lux and the others in order to get them to stop. He stated he had no intention of hurting anyone and that he never thought he had a right to shoot any of the three individuals. He maintained the shooting of Lux was accidental.

During the conference on jury instructions, the State tendered a voluntary-manslaughter instruction. Defendant objected, contending there was no evidence suggesting the defendant thought he was justified in killing the victim. In response, the State argued that there was testimony that defendant fired his pistol to protect the two bottles of whiskey in Benton’s truck and that this was sufficient provocation to warrant a voluntary-manslaughter instruction. The trial court granted the State’s request and allowed a voluntary-manslaughter instruction.

A person commits voluntary manslaughter if he kills an individual without lawful justification under a sudden and intense passion resulting from serious provocation, or if he intentionally or knowingly kills an individual believing the circumstances justify or exonerate the killing, but his belief is unreasonable. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2.) “The only categories of serious provocation which have been recognized are: ‘substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse; but not mere words or gestures or trespass to property.’ [Citations.]” (Emphasis added.) (People v. Crews (1967), 38 Ill. 2d 331, 335-36. See People v. Free (1976), 37 Ill. App. 3d 1050.) The appellate court in the instant case found no evidence of “heat of passion” or “unreasonable belief” to support a voluntary-manslaughter conviction.

The State asserts voluntary manslaughter is an included offense of murder, the only difference being that it requires a less culpable mental state than murder. It contends the evidence in the instant case would have supported a murder verdict. Consequently, the State argues, where the evidence establishes defendant committed murder, it necessarily establishes defendant committed the included offense of voluntary manslaughter. Essentially, the State’s position is that a defendant charged with murder may be convicted of the included offense of voluntary manslaughter as long as there is evidence to support a murder conviction even though the evidence fails to establish either of the mental states of voluntary manslaughter. The State relies on People v. Pierce (1972), 52 Ill. 2d 7, and People v. Crawford (1944), 387 Ill. 616.

Neither Pierce nor Crawford supports the State’s position. Indeed they support the opposite. Both define voluntary manslaughter as a lesser included offense of the charge of murder, but both require proof of the elements of voluntary manslaughter. In Crawford, this court said that “under an indictment for murder, where a homicide is proved but proof of the requisite element of malice is lacking, a conviction for manslaughter is proper, if justified by the evidence.” (Emphasis added.) People v. Crawford (1944), 387 Ill. 616, 620.

In Pierce, the defendant was indicted for murder but was convicted of voluntary manslaughter. Defendant argued the jury should not have been given instructions on voluntary manslaughter. This court affirmed the conviction, but only after finding “there was ample evidence presented to the jury from which they might conclude that defendant’s actions resulted from an intense passion.” People v. Pierce (1972), 52 Ill. 2d 7, 11.

In the instant case, in reversing defendant’s conviction, the appellate court relied on People v. Newman (1935), 360 Ill. 226, 231-32, where it was said:

“This court has often announced the rule that where the evidence is such that it admits of but one of two conclusions, either that the defendant is guilty of murder or is innocent, the giving of an instruction and form of verdict on manslaughter is improper, and where given at the request of the People amounts to error requiring a reversal of the judgment if the accused be found guilty of the lesser crime. [Citations.]”

The record does not disclose any evidence which would establish defendant acted in the “heat of passion” or that he believed the killing was justified but his belief was unreasonable. The State does not point to any evidence to support the voluntary-manslaughter conviction; instead it argues such evidence is not necessary. We disagree. What was said in People v. Thompson (1973), 11 Ill. App. 3d 752, 756, is applicable here: “In a murder trial, a defendant may properly be found guilty of the lesser offense of voluntary manslaughter, but only if the evidence adduced at trial establishes the necessary elements of that offense.” (See People v. Towers (1974), 17 Ill. App. 3d 467; People v. Smith (1973), 16 Ill. App. 3d 553; People v. Clark (1973), 15 Ill. App. 3d 756.) We hold the reversal of defendant’s voluntary-manslaughter conviction was proper.

The State requests that if the voluntary-manslaughter conviction is not upheld, it should be allowed to prosecute the defendant again for murder. Alternatively, the State asks that we reduce the degree of the offense to involuntary manslaughter under Supreme Court Rule 615(bX3) (73 Ill. 2d R. 615(b)(3)). As previously stated, the jury found the defendant not guilty of murder and involuntary manslaughter. See Ill. Const. 1970, art. I, sec. 10.

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

Judgment affirmed.

JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.


author: JUSTICE WARD

text:
    (No. 55910.
    SHELL OIL COMPANY et al., Appellees, v. THE DEPARTMENT OF REVENUE et al., Appellants.

      Opinion filed March 25, 1983.
    Rehearing denied May 27, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield (Paul J. Bargiel, Special Assistant Attorney General, of Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago, of counsel), for appellants.
    Franklin A. Nachman, of Conklin & Adler, Ltd., and Michael J. Koenigsknecht, of Gardner, Carton & Douglas, all of Chicago, for appellees Shell Oil Company and American Airlines, Inc.
    Arnold T. Aikens and Hans U. Stucki, of Chicago, for appellee United Air Lines, Inc.
   JUSTICE WARD

delivered the opinion of the court:

The question on this appeal is whether a taxpayer whose protest has been upheld is entitled to interest income earned on the erroneously assessed taxes that by order of court were paid into a protest fund and held by the State Treasurer as trustee. We granted the plaintiffs’ petitions for direct appeal under our Rule 302(b) (73 Ill. 2d R. 302(b)).

In 1979, the Department of Revenue, pursuant to statutory provision (Ill. Rev. Stat. 1979, ch. 34, par. 409.1), assessed county retail occupation taxes against Shell Oil Company (Shell) on sales of jet fuel by Shell to American Airlines in 1974, 1975, and 1976. The total tax assessment was in the amount of $1,182,535, and accrued interest of $552,901 was claimed. The Department’s assessment against Shell for sales of fuel in the same years to United Airlines was $1,996,695 in taxes, and $923,895 were claimed as interest. The two airlines, pursuant to provisions in their contracts with Shell, paid the taxes and interest under protest. Shell, American Airlines and United Airlines brought an action on September 26, 1979, against the Department of Revenue, the Director of Revenue and the State Treasurer to recover the taxes paid under protest, pursuant to “An Act in relation to the payment and disposition of moneys received by officers and employees of the State ***” (Ill. Rev. Stat. 1979, ch. 127, par. 170 et seq.) (the Protest Monies Act). On the same day the circuit court of Cook County entered orders enjoining the defendants from depositing any of the protest funds into the State Treasury. The defendants did not file answers to the complaints until June 4, 1980, and the two cases were consolidated on September 28, 1980. On February 6, 1981, the circuit court held for the plaintiffs and granted summary judgment against the defendants and ordered that the monies paid under protest be refunded. No appeal was taken by the defendants.

While these actions were pending in the circuit court, interest was earned on the protest funds through investment by the State Treasurer, who, as trustee, was holding the monies in special funds. The Treasurer, however, instead of crediting the interest earned to the protest funds, deposited the interest in the State’s general revenue fund. When the circuit court entered summary judgment in favor of the plaintiffs, they laid claim to the interest which had been earned on the protest funds during the pendency of their actions. On August 13, 1981, the court held that the plaintiffs were entitled to the interest income earned. Six days later the trial court entered orders directing the defendants to issue credit memoranda in favor of the taxpayers for $244,563.44, the interest earned on the American Airlines protest fund and for $411,579.29, the interest earned on the United Airlines protest fund. The Department of Revenue filed notices of appeal to the appellate court, and we granted the plaintiffs’ petitions for direct appeal to this court under Rule 302(b) (73 Ill. 2d R. 302(b)).

A taxpayer who questions the correctness of an assessment of retailers’ occupation tax may (1) withhold payment of the tax and receive an administrative hearing following receipt of a notice of tax liability from the Department of Revenue; or (2) pay the tax, file a claim for credit or refund, and have an administrative hearing after protesting the Department’s notice of tentative determination of claim (see Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq. (the Retailers’ Occupation Tax Act)); or (3) pay the tax under protest pursuant to the Protest Monies Act and have the circuit court pass upon the protest (Chicago & Illinois Midland Ry. Co. v. Department of Revenue (1976), 63 Ill. 2d 474). (See Chester, View of the Taxpayer’s Attorney on Revenue Litigation, 54 Chi. B. Rec. 173 (1973).) The taxpayer here chose the third option, paying the tax under protest. The plaintiffs succeeded in their protest actions and are now defending the circuit court’s award of the interest earned on the protest funds.

Interest is not normally recoverable, in the absence of a statute or an agreement providing for it. (Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415.) In Lakefront Realty, this court considered for the first time whether interest should be allowed in the case of tax refunds. The court observed that though in some jurisdictions it has been held that, where a taxpayer is entitled to a refund because of an overpayment of taxes, he is entitled also to interest on the refund, it would not allow interest on tax-refund payments in the absence of a statute expressly providing for it. The court stated that “interest, being a creature of statute, is recoverable only by statute or contract, and *** a tax collector, being a mere trustee of public funds collected for specific purposes, has no money to pay interest in the absence of statutory authority to establish a fund for that purpose.” (19 Ill. 2d 415, 423.) Had the taxes here been paid under the second option described above and had the protest been upheld, the taxpayer would be entitled to statutory interest of Vz of 1% per month under section 6 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 445.) The Protest Monies Act, however, does not have a provision for interest on a refund of protested taxes. That the legislature did not include a provision for interest, the defendants argue, shows an intent to deny recovery of interest to a taxpayer who has been successful in a protest action under the Protest Monies Act. Too, it is argued that the allowance of interest would constitute a money judgment against the State in violation of its sovereign immunity.

We do not disagree with the observation that a taxpayer who has successfully challenged an assessment of taxes by way of the Protest Monies Act is not entitled to recover interest on the protest funds simply as a matter of course. We consider, however, that the taxpayer here is entitled to the interest earned by investment of the protest funds.

The circumstances here differ from those in Lakefront Realty in that interest income was actually earned on the protest funds. Payment of the interest income to the successful taxpayer does not present the problem in Lakefront Realty, where no money was available to pay interest on the fund. The case here is not one in which the taxpayer is requesting interest on the protest fund as a matter of course. The taxpayer is simply seeking the income earned from money it was determined it had no legal duty to pay as taxes. The interest income, as it accrued, belonged neither to the State nor to the county for whose benefit the taxes were collected. The Treasurer’s authority, as trustee, to invest these funds did not affect the ownership of the funds or entitle him to keep the interest so earned. Cf Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 207.

Even in the absence of statutory authorization, a court may award interest in a proceeding against the State if equitable considerations warrant it, as long as the effect of doing so does not constitute the entering of a money judgment against the State. (City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 579.) Whether an award of interest would be a money judgment against the State can be determined by examining the source from which the interest money would be paid. In Campbell v. Department of Public Aid (1975), 61 Ill. 2d 1, this court held that the appellate court’s order requiring the Department of Public Aid to make retroactive payments to the plaintiff, even though the appropriations out of which the payments would be payable had lapsed, was a monetary judgment against the State and therefore prohibited. In Campbell it was noted that the record contained “nothing relevant to the availability of funds with which to pay the sums ordered paid.” (61 Ill. 2d 1, 6.) The record here, however, discloses that the interest income earned by the Treasurer is available to pay the taxpayer. An award of the interest income will not result in a money judgment against the State, since the Treasurer will pay the interest generated in his capacity as a trustee. Too, the ultimate source of the interest income is the bank or other entity with which the fund was invested.

At no time did the protest fund become the property of the State. The Treasurer acted merely as trustee of the protest fund (see Ill. Rev. Stat. 1979, ch. 127, par. 172) and, as such, he is not entitled to any income or fee for his services absent statutory authorization. (See Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—1.) The protest action was instituted simply to determine whether the county or the taxpayer was entitled to the funds paid under protest. As previously mentioned, the interest income never belonged to the State. The Treasurer could not deny the taxpayer the right to that income by transferring it to the State’s general revenue fund.

In addition, there is statutory authority for the payment of interest income from a protest fund to a taxpayer. Section 2a of the Protest Monies Act (Ill. Rev. Stat. 1979, ch. 127, par. 172) requires the Treasurer to place money paid under protest in a “special fund to be known as the protest fund.” Section 1 of “An Act relating to certain investments of public funds by public agencies” (Ill. Rev. Stat. 1979, ch. 85, par. 901) described special funds as “public funds” for purposes of the Act. Section 2 states, in part:

“All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or for which such investments or deposits were made, except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (Ill. Rev. Stat. 1979, ch. 85, par. 902.)

Specific statutory direction to credit accrued earnings to the special protest fund appears in section 2 of “An Act in relation to state moneys” (Ill. Rev. Stat. 1979, ch. 130, par. 21), where it is provided:

“All interest received or paid on account of money in the State treasury belonging to or for the use of the State so deposited in banks, shall be the property of the State of Illinois. If any moneys held in special funds in the State treasury, not belonging to the State, shall be deposited in banks pursuant to the provisions of this Act, the interest received thereon shall be credited to the special fund so deposited.”

Although it does not affect our decision here, we note that the legislature has recently amended section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 675) to provide for the payment of interest in cases of refunded real property taxes paid under protest. The amendment reads:

“Such amounts paid under protest and withheld from distribution shall be deposited by the collector in interest bearing accounts. If the final order of a court on the protest results in a payment to the taxpayer of all or a part of the taxes paid under protest and withheld, all or a proportional share of such interest earned during the pendency of the protest by the amount repaid to the taxpayers shall also be paid to the taxpayer. If the final order of a court on the protest results in a payment to the taxing districts of all or a part of the taxes paid under protest and withheld, the interest earned during the pendency of the protest by such taxes paid to the taxing districts shall be paid into the county treasury.” Ill. Rev. Stat. 1981, eh. 120, par. 675.

On this appeal, the defendants have for the first time questioned the authority of the circuit court to order the issuance of credit memoranda in favor of the plaintiffs in amounts equal to the interest earned on the protest funds. The record contains an affidavit of one of the plaintiffs’ attorneys which states that the assistant Attorney General representing the defendants in the circuit court told him that the defendants would not propose any language for the order providing for the payment of interest or suggest any means for payment.

It is axiomatic that questions not raised in the trial court are waived and may not be raised for the first time on appeal. (Snow v. Dixon (1977), 66 Ill. 2d 443, 453; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) The failure of the defendants to question the order for the issuance of credit memoranda was a waiver of any objection to the court’s authority to enter the order. We would note parenthetically that a trial court possesses wide discretion in fashioning an appropriate remedy in revenue cases. City of Springfield v. Allphin (1978), 74 Ill. 2d 117.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CLARK and MORAN, JJ., took no part in the consideration or decision of this case.