text:
    (No. 57880.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM H. LONG, Appellee.

      Opinion filed December 16, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, and Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Sue Augustus, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Defendant, William H. Long, was convicted of burglary and sentenced to a term of three years’ imprisonment following a bench trial in the circuit court of Fulton County. Before trial, defendant moved to suppress evidence on the ground that his detention and arrest were without probable cause, a warrant, or consent, and therefore in violation of rights guaranteed to him by the Illinois and United States constitutions. The trial court, after hearing testimony, denied the motion and allowed the evidence, having found that no illegal detention or arrest occurred before police officers had reasonable grounds to believe defendant had committed a crime. The appellate court, in a Rule 23 order (87 Ill. 2d R. 23) finding that an illegal stop by the police had occurred, reversed and remanded for a new trial (110 Ill. App. 3d 1207). We granted the State leave to appeal under our Rules 315 and 612(b) (87 Ill. 2d Rules 315, 612(b)).

The central issue before us is whether the trial court’s finding that there was no illegal stop constituted manifest error. The evidence presented at the hearing on defendant’s motion to suppress shows the following.

On November 18, 1981, Deputy Sheriff Curtis Pierce reported at 8 a.m. for duty with the Fulton County sheriff’s office in Lewistown. Upon arrival, he was informed that Keith Electric Company had been burglarized during the early hours of the morning. Several items, including a safe, had been taken from the Canton business.

At approximately 10 a.m., Pierce received a call reporting that a safe had been found in some weeds adjacent to a rural road. On a gravel road in Joshua Township, Pierce met Denny Pollitt, who had found the safe and called Pierce. Pollitt explained that he discovered the safe that morning while running traps. He added that he had been hunting in the area the night before, but had not seen the safe at that time. Pollitt led Pierce through the weeds to the safe. Pierce noticed a large amount of what appeared to be dried blood on the safe and observed that the safe seemed to have been hidden. Also noting a broken handle on the safe, and that a plate was missing from the bottom of the safe, he concluded that someone had tried to break into the safe. Pierce saw no marking on the safe that identified its owner.

Thinking that the person whose blood was on the safe might have been cut badly enough to require stitches, Pierce called the sheriffs office and requested that the local hospital be contacted concerning anyone who might recently have received stitches. Pierce than asked Pollitt whether he had noticed anything suspicious in the area. Pollitt replied that he had seen a small car and a pickup truck with stock racks earlier.

As the two men talked, a track drove by. Pierce decided to follow it for two reasons. First, he testified, the truck had stock racks like the one Pollitt had seen earlier. Second, they were on a dead-end road with one house near the end. He thought that the people in the truck might live in the house, and he planned to ask them whether they had seen or heard anything suspicious during the night. Pierce acknowledged that at this point, he had no reason to suspect that the truck’s driver or passengers had committed any crime.

Pierce followed the truck for approximately one quarter of a mile. During this time, he could riot see who drove the track or how many passengers it carried. The truck passed the one house on the road and continued on into a lane leading into a field.

Pierce neither activated his squad car’s Mars lights, sounded the siren, nor signaled the truck to stop in any manner. However, the truck pulled over to the side of the lane and stopped. Pierce testified that he pulled in behind the track, got out of his squad car, and, planning to ask the occupants if they had seen anything suspicious, approached the driver’s side of the track.

Pierce then realized that he recognized the occupants of the truck. William Long, the defendant, had been driving, and riding with him were Denise Henderson, her small daughter, and Greg Lawver. Denise Henderson and her daughter sat in the middle, and Lawver was on the passenger side. Pierce noted that Lawver was moving his hands beneath a coat that lay across his lap. When Pierce asked to see Lawver’s hands, Lawver raised them up, exposing a large, unstitched fresh cut on the palm of one hand.

Pierce asked defendant for some identification and his driver’s license. When defendant replied that he did not have his driver’s license, Pierce requested that he come back to the squad car. Pierce ran a computer check by radio and learned that defendant had a valid driver’s license. The license check took three or four minutes. When it was complete, Pierce told defendant, who had remained outside the car, that he could go back to his truck. Pierce did not ask defendant any of the questions he had planned earlier regarding the safe and possible suspicious sights or sounds during the night. He testified that, when he first followed the truck, he thought the occupants might live in the house on the road, but when he recognized defendant and the other passengers, he realized that they did not live there.

Pierce next asked Lawver to step back to his squad car. At the hearing, Pierce stated that because of the cut on Lawver’s hand, he suspected a connection between Lawver and the safe that Pollitt had found. Lawver sat on the passenger side of the squad car while Pierce ran a computer license check on him. After advising Lawver of his Miranda rights, Pierce asked him where he had been the night before, how he had cut his hand, and what he knew about the Keith Electric Company burglary.

While Pierce was talking to Lawver it appears that the owner of the property which they were on approached. When Pierce asked him if the occupants of the truck had permission to be on the property, the owner said they did not. Lawver had earlier told Pierce they had permission to be there.

While Lawver was being questioned, Sergeant Daniel Daly, also of the Fulton County sheriff’s office, arrived in response to a request from Pierce. Daly, who was aware of the Keith burglary, entered Pierce’s squad car and listened for several minutes to the conversation with Lawver. The two police officers then stepped out of the car while Pierce briefed Daly on what he had discovered so far. Pierce explained to Daly that the safe found nearby was smeared with blood and that Lawyer had a fresh cut on his hand. Pierce also told Daly that the owner of the premises said he had not given defendant or Lawyer permission to be there, contrary to Lawyer’s earlier statement.

At this time, Daly went to the truck and asked defendant to come back to his squad car. Defendant was read his Miranda rights, asked where he had been during the early hours of November 18, and asked whether he had burglarized Keith Electric Company. Defendant made a statement as to his whereabouts and denied involvement in the burglary.

Daly left defendant in the squad car while he went back to the truck and spoke with Denise Henderson. When asked what she knew about the Keith Electric Company burglary, Henderson responded that defendant and Lawyer had told her that they had burglarized the business. She indicated that they had hidden the safe in the weeds nearby and now had returned to try to open the safe. She explained, however, that when they arrived and saw Pierce standing near the safe, they did not stop.

Daly returned to his squad car, questioned defendant further, and eventually confronted him with Henderson’s story. Defendant continued to deny participation in the burglary. However, Daly placed him under arrest.

That afternoon, in the Fulton County sheriff’s office, Denise Henderson signed a form consenting to a search of the apartment that she shared with defendant. Deputy Sheriff James C. Hill followed her to the upstairs apartment, where she directed him to a closet containing several items reportedly taken from Keith Electric Company. Hill seized these items, which included a portable television set and a box of snacks.

In his pretrial motion to suppress, defendant requested the exclusion of all physical evidence discovered as a result of the allegedly illegal stop, as well as the statements later obtained from Lawver and Henderson. In support, he cited the right to be free from unreasonable search and seizure that is guaranteed by the fourth amendment to the United States Constitution and by article I, section 6, of the 1970 Illinois Constitution. The State has responded that if, under the facts presented, defendant was seized at all within the meaning of the fourth amendment, the seizure was a permissible investigatory stop, well within the rule of Terry v. Ohio (1968), 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

Before the decision in Terry v. Ohio, it was considered that the restraint of any person that amounted to seizure for fourth amendment purposes was invalid unless probable cause requirements were met. (See Florida v. Royer (1983), 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324.) With Terry v. Ohio, however, the United States Supreme Court recognized a limited exception to the probable cause requirement, which was intended to allow police to briefly detain a person for investigatory purposes and, if necessary for safety, to search that person for weapons. In Terry, the court explained that the exception to the probable cause requirement would arise in cases where police conduct could be deemed reasonable because the governmental interest justifying the seizure outweighed the intrusion on the individual’s fourth amendment interests. (392 U.S. 1, 20-23, 20 L. Ed. 2d 889, 905-07, 88 S. Ct. 1868, 1879-81.) During the years since Terry, courts have used this balancing test to measure the legality of countless brief detentions by police, but the basic tenets justifying the Terry exception have remained unchanged. See United States v. Place (1988), 462 U.S. 696, 703, 77 L. Ed. 2d 110, 118, 103 S. Ct. 2687, 2642-48.

The Terry court provided further guidance by stating that an analysis of whether an officer’s conduct was reasonable requires a dual inquiry. The conduct constituting seizure or search must have been “justified at its inception, and *** reasonably related in scope to the circumstances which justified the interference in the first place.” (392 U.S. 1, 20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879.) To make these determinations, a court should consider whether the facts available to the police officer would warrant a man of reasonable caution to believe that the police action was appropriate. An objective standard applies, so the police officer seeking to justify the intrusion “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880. See also People v. Smithers (1980), 83 Ill. 2d 430, 434; People v. Tassone (1968), 41 Ill. 2d 7, 10.

These principles have been codified in our Code of Criminal Procedure of 1963:

“A peace officer *** may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 107-14.)

(This provision was added to the Code in 1968 following the Terry decision (see 1968 Ill. Laws 218; People v. Lee (1971), 48 Ill. 2d 272, 278-79).)

In construing the above language, this court has further defined the reasonableness standard for police conduct in the Terry-stop context. In People v. McGowan (1977), 69 Ill. 2d 73, 78, this court stated that, viewed as a whole, the situation confronting the policeman must be so far from the ordinary that any competent officer would be expected to act quickly. The facts supporting the policeman’s suspicions need not meet probable cause requirements, but they must justify more than a mere hunch. And, in People v. Smithers (1980), 83 Ill. 2d 430, 439, this court warned that the facts should not be viewed with analytical hindsight, but instead should be considered from the perspective of a reasonable officer at the time that the situation confronted him.

Turning to the facts before us, we first must determine at what point in time the defendant here was “seized” within the meaning of the fourth amendment and, more specifically, Terry v. Ohio. In cases like this where courts have considered investigatory stops, analysis has most frequently focused on whether the search or frisk accompanying the stop was permissible in scope. That a stop did occur, in such cases, is usually not questioned, so the reviewing court ordinarily has no need to determine if or when a seizure occurred. (E.g., Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889; Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Seymour (1981), 84 Ill. 2d 24; People v. Smithers (1980), 83 Ill. 2d 430; People v. McGowan (1977), 69 Ill. 2d 73; see also 3 W. LaFave, Search and Seizure sec. 9.2(g), at 46-48 (1978 & Supp. 1983).) As a result, existing case law is unclear regarding what, precisely, constitutes a stop.

The Terry court did observe, however, that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” (392 U.S. 1, 19 n.16, 20 L. Ed. 2d 889, 905 n.16, 88 S. Ct. 1868, 1879 n.16.) Four members of the Supreme Court more recently have added that an officer does not violate the fourth amendment by merely approaching a person in public, asking him if he will answer questions, questioning him if he will listen, or introducing his answers as evidence in a criminal prosecution. (Florida v. Royer (1983), 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (opinion of White, J., joined by Marshall, Powell, and Stevens, JJ.).) Two other members of the court also have explained that “characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices.” (United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (opinion of Stewart, J., joined by Rehnquist, J.).) Indeed, to the contrary, citizens have a duty to cooperate with law-enforcement officials who investigate a crime (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 133). Police questioning during such investigations does not in itself constitute a fourth amendment violation. See People v. Miller (1980), 89 Ill. App. 3d 973, 977; see also Ill. Rev. Stat. 1981, ch. 38, par. 31 — 8.

Before applying these principles to the case at bar, we note defendant’s contention that an initial, unjustified stop occurred when Deputy Pierce continued to follow the truck past the one house on the road. Defendant maintains that when he pulled over and stopped the truck it was at Pierce’s behest. Defendant’s theory is that all evidence seized after and as a result of this stop must be excluded.

The State, on the other hand, claims that, if a Terry stop in fact occurred, it was not effected when defendant first stopped the truck and underwent the driver’s license check. Instead, the State argues, the earliest time at which a stop might be found is when Sergeant Daly summoned defendant into his squad car (that is, sometime after Pierce had completed the license check and allowed defendant to return to his truck). The State’s position is that the police officers by this time could articulate facts sufficient to justify a Terry stop. Therefore, according to the State, evidence discovered after and as a result of this later detention was permissibly obtained. Under the State’s view, then, the trial court correctly denied defendant’s motion to suppress.

The trial court specifically found that Pierce did nothing to cause the truck to stop. The court stated: “They were, based upon this record, *** free to drive away, had they decided to do so.” We agree with the trial court’s finding that no stop occurred when, in his squad car, Pierce followed defendant’s truck and defendant voluntarily pulled over to the side of the road. A reviewing court will not disturb a trial court’s finding in a hearing on a motion to suppress unless the trial court’s finding was manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 165; People v. Clay (1973), 55 Ill. 2d 501, 505.) Here, where the officer merely followed defendant, without activating the light or siren on his squad car, we cannot find that the trial court’s determination constitutes manifest error. Nor do we think Pierce intruded upon defendant’s fourth amendment interests when he approached the truck to question the occupants. Finally, Pierce was certainly justified in running the license check when defendant failed to produce a driver’s license. Since Pierce then allowed defendant, without condition, to return to the truck, it is clear that no Terry stop occurred at this point.

As defendant returned to the truck, Pierce asked Lawver to come back to his car. Defendant maintains that even if no illegal stop had occurred up to this point, he was unjustifiably detained in the truck while Pierce questioned Lawver in the squad car.

The evidence presented at the hearing below does not support defendant’s position. Questions that might arise concerning Pierce’s conversation with Lawver, of course, are not before this court. With respect to defendant, Pierce neither requested him to wait for Lawver, nor in any way prevented his departure. That defendant opted to wait for his companion does not bear on the legality of Pierce’s conduct. We agree with the trial court that while Pierce questioned Lawver, the defendant still was free to drive away if he chose to do so.

We also agree with the trial court that when Daly later directed defendant to his squad car, the detention that resulted was not illegal. By this time, Daly knew that a safe had been taken in the early morning hours from Keith Electric Company. He was also aware that a safe had been found in a rural area later that morning by a hunter who had not seen the safe when he was in the area the night before. Daly by now knew that a pickup truck with stock racks had been seen in the area earlier and that a pickup truck with stock racks, driven by defendant, had now returned to the vicinity where the safe was found. Daly, moreover, knew that Lawver’s assertion that the occupants of the truck had permission to be on the land had been denied by the owner of the premises. Finally, Daly at this point was aware that the safe found nearby was smeared with blood, while Lawver, who rode in the truck with defendant, had a large cut on one of his hands.

These facts, which Daly could have stated when he directed defendant to his squad car, need not work together to meet a probable cause requirement. They need only meet the lesser test of Terry v. Ohio. The relevant inquiry is whether a man of reasonable caution would find Daly’s action appropriate, or, stated another way, whether Daly could point to specific and articulable facts, which together with reasonable inferences, reasonably warranted the intrusion. Answering this question affirmatively, we find that the requirements of Terry were met in this case. Under these circumstances, the governmental interest in questioning suspects near the scene of a recently committed crime outweighs the intrusion on defendant’s fourth amendment interests.

In its brief, the State argues alternatively that, even if defendant were stopped impermissibly, the evidence obtained in the later search of the apartment was nevertheless admissible. The State contends that the police inevitably would have discovered this evidence anyway, and that, therefore, it should not be suppressed. Because we hold that no illegal stop occurred, we do not reach this issue.

The judgment of the appellate court is reversed, and the judgment of the circuit court of Fulton County is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 57903.
    BRANDT TRUCK LINES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Alan Slagell, Appellee).

      Opinion filed December 16, 1983.

      Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago (Howard S. Fleishman, of counsel), for appellant.
    Roger D. Lapan, of Bloomington, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Alan Slagell filed a claim against his employer, Brandt Truck Lines, Inc., under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.). The arbitrator awarded 25V7 weeks of compensation for temporary total disability, 90 weeks’ compensation for permanent partial disability caused by the 45% loss of use of the left leg, and $5,202.50 for necessary medical expenses. The arbitrator’s award was approved by the Commission and confirmed by the circuit court of McLean County The employer raises two issues on appeal: Were Slagell’s injuries causally related to the accident? Did the arbitrator err by basing her findings on a medical report which she had previously excluded from evidence?

On January 18, 1978, as claimant was getting out of the truck he had been driving for his employer, he fell six feet onto ice-covered asphalt. He immediately reported the accident to his supervisor. He was examined and Xrayed that night at a local hospital. According to hospital records, he complained of pain in the left knee and thigh. No prior history of left hip or shoulder pain was noted.

Claimant’s testimony conflicted with some of the other evidence. Claimant’s family physician, Dr. Grant A. Zehr, testified that he examined claimant on February 9. Claimant mentioned prior hip pain but did not mention any recent injury to his hip. Because he suspected degenerative joint disease, Dr. Zehr referred claimant to an orthopedic specialist, Dr. Thomas A. Eskestrand. Dr. Eskestrand’s report mentions a history of prior hip pain but no recent injuries to the hip. Dr. Eskestrand diagnosed premature degenerative arthritis of the left hip. On cross-examination, claimant testified that he had no history of hip pain .prior to the accident, and that if the doctors’ reports stated that he had told them of prior hip pain, those reports were incorrect.

In February 1979 the claimant was examined and Xrayed by another orthopedic specialist, Dr. Mark B. Coventry at Mayo Clinic in Rochester, Minnesota. Claimant returned to Mayo Clinic in May 1979. At that time, he was admitted to St. Elizabeth’s Hospital, where Dr. Coventry. performed a surface replacement of the left femoral head (hip replacement).

At the hearing, the claimant offered the expert testimony of Dr. Gordon Shultz. In response to a hypothetical question, Dr. Shultz testified that the claimant’s hip condition would not appear on an X ray for seven months after the injury was suffered. Dr. Shultz was then informed that he was looking at an X ray taken one day after Mr. Slagell’s accident. Dr. Shultz responded affirmatively when asked whether a preexisting condition affecting the hip could have been aggravated by an accident such as the one the claimant suffered.

The employer argues that the various doctors’ statements, and in particular Dr. Shultz’ testimony, established that claimant’s condition must have existed at least seven months prior to the accident, and that therefore the hip condition is not causally related to the accident and is not compensable. We do not agree. Although Dr. Shultz may have been inaccurate with regard to whether the accident was the original cause of the hip injury, he unequivocally stated that the accident could have been an aggravating factor. Nothing in the record contradicts this statement. The employer offered no expert to testify that the fall could not have aggravated preexisting conditions or that the surgery would have been required if claimant had not fallen. Work-related injuries which aggravate preexisting conditions are compensable in Illinois. O’Neal Brothers Construction Co. v. Industrial Com. (1982), 93 Ill. 2d 30, 39.

Whether compensable injuries are due to work-related aggravation of a preexisting condition is a question of fact for the Industrial Commission to decide. (Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99; Republic Steel Corp. v. Industrial Com. (1980), 82 Ill. 2d 76, 86; Ross v. Industrial Com. (1980), 79 Ill. 2d 258, 261.) The Industrial Commission is frequently confronted with inconsistent evidence. We will not overturn the Commission’s findings of fact unless they are against the manifest weight of the evidence. (City of Streator v. Industrial Com. (1982), 92 Ill. 2d 353, 363; Odie v. Industrial Com. (1982), 88 Ill. 2d 514, 520.) The Commission, as trier of fact, considered all the evidence and decided how much weight to give it. It is the Commission’s obligation to evaluate the demeanor and credibility of the witnesses. Claimant’s testimony regarding his condition before and after the accident supports the inference that any preexisting condition was aggravated by the accident. (Cf. Pulliam Masonry v. Industrial Com. (1979), 77 Ill. 2d 469, 471.) The X rays taken after the accident, and Dr. Shultz’ testimony, are medical evidence in support of the Commission’s finding. Since this finding is not against the manifest weight of the evidence, we will not disturb it.

The employer next suggests that the Commission erred by considering a rejected exhibit. At the hearing, claimant offered a medical report contained in a letter from Dr. Coventry to claimant’s attorney, under Industrial Commission Rule 16. The arbitrator rejected the exhibit because it was not a hospital record. The letter referred to a fracture of the femoral head. In her findings of fact, the arbitrator listed a fracture of the femoral head.

Because there is ample evidence in the record to support the Commission’s finding, any error in considering this evidence was harmless. “Failure to observe the formal, technical rules of procedure or evidence which apply to trials in court is not fatal to an award which is just upon the merits.” (Liquid Carbonic Co. v. Industrial Com. (1933), 352 Ill. 405, 410.) The award is not against the manifest weight of the evidence, and we affirm the judgment of the circuit court.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 57914.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DONALD REAGAN, Appellee.

      Opinion filed December 16, 1983.

    RYAN, C.J., took no part.
    Neil F. Hartigan, Attorney General, of Springfield, and Gary L. Peterlin, State’s Attorney, of Ottawa (Michael B. Weinstein and Michael V. Accettura, Assistant Attorneys General, of Chicago, and John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Peter A. Carusona, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In indictments returned in the circuit court of La Salle County, defendant, Donald Reagan, was charged with three counts of attempted murder and three counts of armed violence. In a jury trial defendant was acquitted of attempted murder but convicted of three counts of attempted voluntary manslaughter and three counts of armed violence. Defendant was sentenced to three concurrent terms of eight years on the armed-violence convictions. Holding that there is no crime of attempted voluntary manslaughter, the appellate court reversed (111 Ill. App. 3d 945), and we allowed the People’s petition for leave to appeal (87 Ill. 2d R. 315).

The opinion of the appellate court contains an adequate statement of the facts, and they need not be restated here. The sole question presented by this appeal is whether under the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 1 et seq.) there is an offense of attempted voluntary manslaughter based on an imperfect self-defense as defined in section 9 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2).

The Criminal Code of 1961 in pertinent part provides:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b).)
“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).

The People agree that attempt requires the specific intent to commit an offense. They contend, however, that the appellate court misconstrued the statute in holding that a conviction under section 9 — 2(b) would require that the defendant intend an unreasonable belief. They argue that “the more logical interpretation is that a defendant must intend to kill but that his intent must be accompanied by the subjective (yet unreasonable) belief that the killing is justified. It is for the jury to decide both the intent and the question of whether the accompanying belief is reasonable or unreasonable ***.”

We do not agree. As the court said in People v. Viser (1975), 62 Ill. 2d 568, “[tjhere is no such criminal offense as an attempt to achieve an unintended result.” (62 Ill. 2d 568, 581.) The requirement of the attempt statute is not that there be an intent to kill, but that there be an intent to kill without lawful justification. If, as suggested by the People, defendant at the time of the shooting believed the circumstances to be such that if they existed would justify the killing, then there was no intent to commit an offense.

We agree with the appellate court that “there is no crime of attempted voluntary manslaughter under section 9 — 2(b). To commit an attempted voluntary manslaughter, the defendant could not merely have an intent to kill, for that is not a crime. [People v. Barker (1980), 83 Ill. 2d 319.] The defendant would have to specifically intend to kill with an unreasonable belief in the need to use deadly force in self-defense. As the State concedes, it is impossible to intend an unreasonable belief. If a defendant intended to kill with the knowledge that such action was unwarranted, he has intended to kill without lawful justification and could be prosecuted for attempted murder. In the case at bar, the defendant intended to defend himself. Although his belief in the need to defend himself or in the need to use deadly force was unreasonable, his intent was not to commit a crime. His intent was to engage in self-defense, which is not a criminal offense.” 111 Ill. App. 3d 945, 950-51.

Citing Sachs, Is Attempt to Commit Voluntary Manslaughter a Possible Crime? 71 Ill. B.J. 166 (1982), the People argue:

“Logic requires that where a person commits acts which could be construed as voluntary manslaughter when the victim dies, then he could be guilty of attempt to commit voluntary manslaughter if the person injured survives.” (71 Ill. B.J. 166, 171.)

Although this argument has surface appeal, it fails to take into account the long-established requirement that conviction for attempted offenses requires proof of specific intent. It has long been recognized that voluntary manslaughter is not an offense involving specific intent. (See Moore v. People (1893), 146 Ill. 600; People v. Alejos (1983), 97 Ill. 2d 502.) We have examined the authorities cited by the People which hold that an attempt to commit a crime, if the action is taken with the degree of culpability required for the commission of the offense, constitutes the attempted offense. Those holdings, with one exception, rest upon attempt statutes similar to that proposed in the Model Penal Code (Model Penal Code sec. 5.01, Proposed Official Draft 1962) which contained provisions substantially different from section 8 — 4 of the Criminal Code of 1961. In State v. Harper (1944), 205 La. 228, 17 So. 2d 260, the Supreme Court of Louisiana held that either an intent to kill or an intent to inflict great bodily harm was sufficient to support a conviction for attempted manslaughter. This is clearly contrary to the rule long established in this jurisdiction.

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

Judgment affirmed.

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


author:
JUSTICE UNDERWOOD
      JUSTICE SIMON,

text:
    (No. 57985.

      In re EUGENE LEE ARMENTROUT et al., Attorneys, Respondents.

      Opinion filed December 16, 1983.

      MORAN, J., took no part.
    SIMON, J., concurring in part and dissenting in part.
    Mary M. Conrad, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Sidney Z. Karasik, of Chicago, for respondent Eugene Lee Armentrout.
    Benedict Schwarz II, of Schwarz & Golden, Ltd., of West Dundee, for respondent Charles E. Petersen.
    William J. Harte, Ltd., of Chicago (William J. Harte, of counsel), for respondents Kim Edward Presbrey and William H. Weir.
    Dennis A. Berkson, of Chicago, for respondent Jay Robert Grodner.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Pursuant to our rules establishing the Attorney Registration and Disciplinary Commission (73 Ill. 2d Rules 751 through 771), its Administrator filed a complaint against Eugene Lee Armentrout, Charles E. Petersen, Jay Robert Grodner, Kim Edward Presbrey, William H. Weir, and William John Truemper, Jr. At the time of the incidents alleged in the complaint, respondent Armentrout was Kane County’s State’s Attorney and respondents Petersen and Grodner were his assistants. Respondents Presbrey, Weir and Truemper were in private practice. The complaint alleged that each respondent had violated DRs 1 — 102(A)(4), (5) and (6) of the Illinois State Bar Association’s 1970 Code of Professional Responsibility and was guilty of conduct tending to defeat the administration of justice and to bring the courts and legal profession into disrepute.

The Administrator charged Armentrout with overseeing a plan to forge signatures on petitions seeking a statewide advisory referendum on whether taxing and spending ceilings should be established for State and local governments. He was also charged with falsely notarizing the forged petitions. The Administrator charged Petersen with forging voter signatures and with actively recruiting Grodner, Presbrey, Weir, and Truemper to assist in this effort. The latter four respondents were so charged. Throughout the briefs and the record the respondents have referred to their acts of forgery as “roundtabling.” They explain that this term connotes a group of people gathered at a table who circulate petitions to one another. Each person signs a name obtained from a phone book or voter registration list and then passes the petition on to the person sitting next to him, who does the same.

The hearing panel found that all respondents knowingly engaged in fraudulent activities contrary to justice, honesty and good morals and that the legal profession was disparaged as a result. The panel recommended that respondent Armentrout be suspended for 18 months, that respondent Petersen be suspended for six months, and that the remaining respondents be reprimanded. Armentrout and Petersen filed exceptions to the recommendations, as did the Administrator, who urged disbarment for Armentrout, a two-year suspension for Petersen, and censure for the others. The Review Board concluded that the respondents’ forgeries on the petitions undermined our democratic system of government and that their fraudulent activity brought the legal profession into disrepute. That board recommended disbarment for respondent Armentrout, an 18-month suspension for respondent Petersen, six-month suspensions for respondents Grodner, Presbrey and Weir, and censure for respondent Truemper. Respondents Armentrout, Petersen, Grodner, Presbrey, and Weir filed exceptions to the Review Board recommendations. Respondent Truemper did not except to the recommendation, and on April 20, 1983, this court severed Truemper from the instant action and censured him.

The evidence established that in 1978 the Governor had proposed that Illinois voters consider the following question in an advisory referendum: “Shall legislation be enacted and the Illinois Constitution be amended to impose ceilings on taxes and spending by the State of Illinois, units of local government, and school districts?” For the referendum to appear on the ballot, the State Board of Elections ruled that written petitions signed by 589,416 registered voters were required to be submitted by August 21, 1978. The Kane County State’s Attorney’s staff, at the direction of respondent Armentrout, participated in a statewide effort by those supporting the Governor to obtain the necessary signatures. At first, they collected voter signatures legitimately by canvassing Kane County fairgoers. This effort produced about 10,000 signatures, but was apparently deemed an inadequate showing of support from Kane County, because shortly after the county fair ended, the Governor telephoned respondent Armentrout at his home and personally requested that respondent collect at least 10,000 more voter signatures. Armentrout testified that he subsequently received approximately 20 telephone calls from several of the Governor’s election campaign staff members and others, including a mailgram bearing the Governor’s name, all emphasizing the political significance of the request. Armentrout testified that one campaign staffer suggested that the additional signatures could be collected by “roundtabling.”

On August 15, 1978, shortly after receiving the telephone call from the Governor, respondent Armentrout solicited Petersen’s help in complying with the Governor’s request for additional signatures. Armentrout had been elected State’s Attorney in 1976, was 39 years old, and had been in practice for 15 years at the time of the incidents in question. As State’s Attorney, he had employed respondent Petersen as an assistant State’s Attorney upon the latter’s graduation from law school in 1977. Petersen was 27 years old and had been an assistant prosecutor for approximately one year when he became involved in the roundtabling scheme. These two respondents discussed roundtabling as the means necessary to obtain the requested 10,000 signatures by the August 21 deadline. They acknowledged to each other that roundtabling was illegal but rationalized that it would be acceptable in this instance because they would be forging signatures only to ensure that a purely advisory referendum would appear on the ballot.

At Armentrout’s behest, Petersen contacted respondents Grodner, Presbrey and Weir and asked that they meet him at Patrick’s Pub in Aurora. Grodner had worked for Armentrout as a student intern during his last year of law school and, after graduating, was hired as an assistant State’s Attorney. He had been licensed to practice for approximately three months and was 26 years of age when the roundtabling incidents occurred. Respondents Presbrey and Weir had been in private practice for approximately 14 months; the former was 27 years old and the latter 31 when they became involved. Respondents Grodner, Weir and Petersen had attended the same law school, and Presbrey and Petersen were long-time close friends.

Before this group met at Patrick’s Pub, they handed petitions to passersby outside the shopping center where the pub was located. Upon retiring to the pub, Petersen told the others that Armentrout needed to obtain thousands more voter signatures and that roundtabling would be necessary to meet his quota. The group discussed the illegality of roundtabling, but Petersen repeated the rationale that Armentrout had previously offered to denigrate the significance of the forgeries. While eating and drinking beer at the pub, Petersen, Grodner, Presbrey, and Weir signed names to a petition that were clearly not those of Illinois voters, such as cartoon character names, in a light-hearted spirit.

The following day, August 16, the roundtabling project proceeded in a more serious vein. Respondent Petersen and Jeff O’Brien, an investigator from the State’s Attorney’s office, were in Aurora working on a case and stopped at respondent Presbrey’s home. While watching television and drinking beer, Petersen and Presbrey, as well as Mrs. Presbrey and Jeff O’Brien, roundtabled approximately 10 petitions by signing names that appeared in the telephone book.

When Petersen submitted these petitions to Armentrout at the State’s Attorney’s office the next day, August 17, Armentrout chastised him for using the telephone book to roundtable. Armentrout advised against this because the petitions forged at the Presbrey home contained last names that all began with the same letter, which could arouse suspicion. Armentrout then obtained lists of registered voters for subsequent roundtabling.

Petersen arranged the next roundtabling session for Friday evening, August 18, in a law office where he engaged in a part-time private practice. He again recruited the help of respondents Grodner, Presbrey and Weir, as well as that of his roommate and another friend. Petersen also had pizza and beer delivered to the premises. Several other friends and relatives of various group members happened upon the scene and, influenced by the party atmosphere that had developed, lent their assistance. The group used the voter lists obtained by Armentrout to forge names on numerous petitions and spent approximately three hours doing so. Afterward, Petersen telephoned Armentrout to arrange to deliver this latest group of forged petitions, and they agreed to meet the following Saturday morning, August 19, at the Kane County courthouse. It was also agreed that, because they had not yet met their quota of 10,000 signatures, Petersen would ask those who were still at his office to meet Saturday morning at the courthouse for one final roundtabling session. Respondents Grodner and Weir, as well as some of the other participants, agreed to do so.

At the August 19 courthouse meeting, respondents Petersen, Grodner, Weir and several others forged signatures on approximately 60 petitions. On this occasion, Armentrout added the county name to many of the petitions and “corrected” some of the addresses shown for the forged signatures so that they would be acceptable to the State Board of Elections. He also falsified the jurats on the petitions. Using his own notary stamp, but pressing very lightly so that his name would not appear on the page, he forged signatures as notaries, including that of a deceased friend. On Sunday, August 20, he submitted all of the petitions respondents had roundtabled to the Republican county chairman for eventual submission to the Board of Elections. The record does not reveal the total number of roundtabled petitions submitted.

In 1979, a special State’s Attorney commenced a grand jury inquiry into the activities of the respondents. Respondent Weir was granted immunity from prosecution and testified before the grand jury. Respondent Grodner also testified under an immunity grant, but he later waived immunity when faced with possible perjury charges. Following the inquiry, the special prosecutor filed informations against Armentrout, Petersen, Grodner and Presbrey. Armentrout pleaded guilty to two violations of section 29 — 12 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 29 — 12) and was fined $2,000. Petersen also pleaded guilty to two violations of section 29 — 12 and was fined $1,500. Grodner and Presbrey each pleaded guilty to one violation of the same section, were placed on supervision for six months, and their records later expunged. Grodner paid a $1,000 fine; Presbrey was fined $100. Considerable publicity attended these criminal proceedings.

All respondents admit that they roundtabled and that they were aware of the illegality of their acts. Respondent Armentrout admits that he instigated the project, forged notary signatures, and otherwise tampered with the petitions. All respondents urge this court to reduce the recommended sanctions based on the mitigating evidence they submitted, which consisted in large part of testimony and affidavits of numerous judges, public officials, lawyers, and citizens regarding respondents’ good character and fitness to practice law.

At the time of respondents’ misconduct, the Illinois State Bar Association Board of Governors had adopted a code of professional responsibility. Included in the code were DRs 1 — 102(A)(4), (5), and (6). Those rules provided: “(A) A lawyer shall not: *** (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law.” (Illinois Code of Professional Responsibility DR 1— 102(A)(4), (5), (6) (Illinois State Bar Association 1970).) This court subsequently adopted verbatim DRs 1— 102(A)(1) through (5) in our rules (79 Ill. 2d R. 1 — 102), but did not adopt DR 1 — 102(A)(6) (79 Ill. 2d R. 1 — 102, Committee Commentary).

There can be no doubt that respondents violated DR 1 — 102(A)(4). Acts of forgery most certainly involve “dishonesty, fraud, deceit, [and] misrepresentation” and are contrary to the bar’s fundamental obligation of honesty. (In re Lamberis (1982), 93 Ill. 2d 222, 228.) Respondent Armentrout argues, however, that because no specific individual was victimized by his misconduct, no fraud occurred, an argument which is, in our judgment, devoid of merit. Fraud encompasses a broad range of human behavior, including “ '*** anything calculated to deceive, *** whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture.’ ” (Regenold v. Baby Fold, Inc. (1977), 68 Ill. 2d 419, 435, citing People ex rel. Chicago Bar Association v. Gilmore (1931); 345 Ill. 28, 46; In re Alschuler (1944), 388 Ill. 492, 503-04; Black’s Law Dictionary 594 (5th ed. 1979).) Too, this court has previously disciplined lawyers even though their fraudulent misconduct did not harm any particular individual. In re Lamberts (1982), 93 Ill. 2d 222, 229.

Armentrout also argues that his guilty plea to the criminal information should not be considered determinative of whether his conduct was fraudulent because, he states, one of the charges was void. However, the decision whether to impose discipline does not rest on whether a respondent has been convicted of criminal charges — it is determined by whether the lawyer’s conduct contravenes professional standards. “The purpose of the criminal prosecution is not the purpose of a disciplinary proceeding. Punishment is not the object. The object of such an inquiry is to determine whether the attorney is a proper person to be permitted to practice his profession. [Citations.] The attorney is being disciplined not because of his conviction but because of the conduct. [Citation.]” (In re Andros (1976), 64 Ill. 2d 419, 423.) It cannot, in our judgment, be seriously contended that the conduct here does not come within the prohibitions of DR 1 — 102(A)(4) against “dishonesty, fraud, deceit, or misrepresentation.” It is clear, too, that the inevitable effect of the widespread publicity regarding the respondents’ misconduct and the ensuing criminal proceedings was to bring the legal profession into disrepute. While the immediate and major impact is upon those directly involved, the ripples, as with a stone cast into a pond, affect the whole.

One other aspect of the argument in this case requires comment. Speaking generally, the respondents, other than Armentrout and Petersen, have freely acknowledged the fraudulent and dishonest nature of their acts, characterizing them as “stupid,” or stemming from perverted senses of loyalty to a supervisor or friendship, or both. They concede they have damaged the reputation of the legal profession and brought it into disrepute. Respondent Armentrout, however, and, to a somewhat lesser extent, respondent Petersen, while admitting the dishonesty of their actions, urge that they involved “political” rather than “moral” turpitude and, consequently, did not diminish public confidence in the legal profession. This contention apparently stems from the premise that normally immoral and unlawful conduct somehow becomes less so when committed in a political context, and they classify the nonbinding tax-limitation referendum as “a political gimmick.” They emphasize the absence of harm to any individual, and then make the remarkable suggestion that we should take judicial notice of what is asserted to be the widespread use of roundtabling. While some of these arguments may conceivably be considered in mitigation, they are totally irrelevant on the issue of guilt. We do not know whether roundtabling is frequently used or not, but we do know that it will not be discouraged by excusing those who engage in it. The forging of names on the petitions, whether represented as being voters or notaries, was illegal, dishonest and deceitful and known to be so by all of the respondents. It certainly became no less wrong because occurring in the context of a political campaign.

While there is no doubt that disciplinary action is required, the precise sanction to be imposed is not so easily resolved. The fundamental purpose of proceedings such as these, is, of course, “to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public.” (In re LaPinska (1978), 72 Ill. 2d 461, 473.) Predictability and fairness require that there be reasonable consistency in the sanctions imposed for similar types of conduct. (In re Saladino (1978), 71 Ill. 2d 263, 275; In re Clayter (1980), 78 Ill. 2d 276, 283; In re Levin (1979), 77 Ill. 2d 205, 211.) Fraudulent misconduct has customarily received a more severe sanction than censure. (In re Nowak (1976), 62 Ill. 2d 279, 283; In re Sherre (1977), 68 Ill. 2d 56, 62; In re March (1978), 71 Ill. 2d 382, 400.) There are, however, in this case varying levels of culpability, and application of the same sanction to all respondents would be completely inappropriate as the Administrator, Review Board, and hearing panel have all recognized. We have found no closely resembling case either in this State or elsewhere. The recommendations of the Administrator, which are of importance to us (In re Hall (1983), 95 Ill. 2d 371, 376), have remained constant at all stages of these proceedings: disbarment for Armentrout, two years’ suspension for Petersen, and censure for the remaining respondents. We agree that censure is appropriate for all respondents other than Armentrout and Petersen. Weir and Presbrey were young lawyers with less than two years’ experience at the bar. Neither made any special effort to involve his friends and relatives, nor did they organize any roundtabling sessions. They both apparently participated in their subordinate roles out of a misguided sense of loyalty and friendship and make no effort to justify their conduct. Both have experienced considerable humiliation, Presbrey having pleaded guilty and paid a fine as a result of his conduct. They undoubtedly were influenced by the fact that Petersen, an assistant State’s Attorney, and Armentrout, the State’s Attorney, approved the project. There appears little reason to be concerned about their future conduct in the profession. Respondent Grodner, the youngest of the three, was an assistant State’s Attorney at the time of the episode but had been admitted to practice only three months. He, too, did not organize any roundtabling sessions or recruit others, and he played a minor role. While we regard his participation while an assistant State’s Attorney as an aggravating factor, his comparative inexperience, coupled with the fact that he pleaded guilty and paid a substantial fine, serves to in some degree mitigate his offense. Too, it seems apparent that his participation resulted from the request of his supervisors, and he, also, was undoubtedly influenced by their approval of the project. While that fact does not excuse his participation in an obviously improper activity, it is a substantial consideration.

Something more than censure, however, is required in the case of Petersen. While he, too, acted at the request of his supervisor, he was effectively second in command of the project. It was he who actively enlisted the assistance of his friends and his subordinate in the fraudulent activities, and he organized the roundtabling meetings. Too, he had served as an assistant State’s Attorney since leaving law school in 1977. He was substantially more experienced and shared the responsibility of the office to a greater degree than Grodner. While less egregious than Armentrout’s, his secondary leadership position in this unlawful scheme requires his suspension from the practice of law for a period of six months. Only his youth and his previously unblemished reputation dissuade us from a longer suspension.

Finally, we consider the circumstances regarding then State’s Attorney Armentrout. He was a mature, experienced lawyer and the chief law-enforcement officer of Kane County. He was under no illusions as to the roundtabling procedure suggested to him, for he and the Governor’s staff member had discussed the interspersion of the fraudulent petitions among the legitimate ones so as to make their detection less likely. He deliberately sought to conceal his participation in the round-tabling scheme by pressing his notary seal so lightly that his name was not identifiable. It was at his instigation and on the basis of his rationalization that his subordinates and their friends undertook the roundtabling project and jeopardized their professional careers. While he was a precinct committeeman, loyal to his party and active in its affairs, it is difficult to understand how he could have considered the potential benefits to his political career from this project could possibly justify the unlawful methods used. For one who so lightly regards his own oath of office and fundamental concepts of honesty and integrity, as well as the effect of his actions upon the professional careers of others, we cannot fault the Administrator for recommending disbarment. We must, however, weigh these factors against those mitigating factors which may properly be considered. (In re Howard (1977), 69 Ill. 2d 343, 355.) They include the fact that Armentrout was convicted and fined for the misconduct. He did not seek reelection as State’s Attorney, and what was a promising political career has apparently been terminated. He has, as the hearing panel found, suffered substantial financial and professional loss. To be weighed, .also, are the opinions of the many judges, lawyers and citizens praising his professional and community service and who, although aware of the misconduct, affirm their belief that it represents an isolated mistake in judgment which will not be repeated. These factors, considered with respondent’s previously unblemished record, persuade us that suspension for two years is the appropriate sanction.

Respondents Armentrout and Petersen suspended; respondents Grodner, Presbrey and Weir censured.

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

JUSTICE SIMON,

concurring in part and dissenting in part:

The majority acknowledges that the conduct of the respondents was flagrant, and since it involved acts of forgery, their conduct constituted dishonesty, fraud, deceit and misrepresentation. I concur in those observa- ■ tions. I dissent, however, because I do not believe the sanctions imposed were sufficient in view of the serious nature of the misconduct. Tampering by members of the bar with any aspect of our voting process deserves neither leniency nor indulgence.

The respondents’ conduct was planned and designed to mislead the officials in charge of voting procedures. They knowingly submitted fictitious names with the purpose of having them accepted by election officials as valid signatures of registered voters. The issue here is not, as the respondents would have us believe, whether the tax referendum in connection with which the fictitious names were submitted was important. Neither is it whether any one was hurt by their mischief, as the respondents contend should be asked. Rather the issue is whether the respondents intended to and did subvert the voting process, and whether they intended to and did mislead election officials into believing that signatures the respondents knew were fictitious were genuine.

The Hearing Board found:

“The intent of the respondents was to defraud, and the action of Eugene Armentrout in affixing a notary seal in a manner which would conceal his own name is particularly reprehensible.”

The Review Board evaluated the seriousness of the respondents’ fraud and deceit as follows:

“Collectively and individually, the conduct of the Respondents undermine our democratic system of government. In our society, each person has equal power in our government based on his willingness to take part in the franchise process. Securing petitions to place a proposition on the ballot is a fundamental part of our electoral process. When one person or a group of persons participates in that process in such a way that fraudulently dilutes the strength of all others, it undermines the democratic system.
The thousands of fraudulent signatures manufactured by the Respondents helped to endanger a free society and tends to encourage skepticism on unwarranted occasions. When some of the participants in the fraud are lawyers; one being the chief lawyer of the county, two being assistants to the chief lawyer of the county, it brings the profession of the practice of law into serious disrepute.”

Our responsibility here is not only to impose an appropriate sanction on the respondents for their fraudulent and deceitful conduct, but also to vindicate the sanctity of the voting machinery and to declare that the bar will not tolerate any tampering with it. In my judgment, the sanctions imposed are not severe enough to accomplish these ends or, in view of the high offices at least Mr. Armentrout and Mr. Petersen occupied, to improve public confidence in the bar, which is a significant, though admittedly not the only, reason for disciplinary proceedings. In many instances attorneys have been disbarred or have received suspensions of three years or longer because of fraudulent conduct in converting clients’ funds. (In re Feldman (1982), 89 Ill. 2d 7 (disbarment); In re Smith (1979), 75 Ill. 2d 134 (disbarment); In re Stillo (1977), 68 Ill. 2d 49 (disbarment); In re Snitoff (1972), 53 Ill. 2d 50 (disbarment); In re Anglin (1970), 46 Ill. 2d 261 (five-year suspension).) I do not understand why the fraudulent and deceitful conduct in which the respondents engaged here should be regarded as less serious or should be sanctioned any less severely.

In fact, it seems to me that a higher standard of responsibility and respect for the law should be expected of lawyers who are public officials than of their less visible brethren at the bar. Should we who have been honored with public office not be expected to set an example for them and for the public generally? Should we not be held to a higher standard of scrutiny? And, if we fall short, should we not be expected to answer more fully for our shortcomings?

Based on these observations, I dissent because after spelling out at length the egregiousness of the respondents’ conduct, I believe that the majority concludes by imposing sanctions which are woefully inadequate and which indicate that public officials are not required to conform to higher standards then others, perhaps not even to standards as high as those demanded of others. Rather than reassuring the public that erring public officials will be held fully accountable for their misconduct, I fear that the sanctions the court has applied here will create the contrary impression.

With respect to Mr. Armentrout, the court points out in mitigation that he was convicted and fined for his conduct. This is not a mitigating consideration, for frequently we disbar those who have been convicted of crime and sentenced to serve prison terms for their misdeeds. The majority points out that Mr. Armentrout’s promising political career has been terminated, a factor which I would regard as irrelevant. The majority also places emphasis on the large number of favorable testimonials he received from judges and other officials concerning his character and accomplishments. I believe that the distinction Mr. Armentrout had achieved in his political career and his public life as a lawyer should be regarded, if anything, as an aggravating rather than a mitigating factor. Because of his important public position, Mr. Armentrout enjoyed the acquaintance of the judges and other highly placed public officials who testified or submitted letters in his favor. These officials might not have known or been willing to lend their support to lawyers who were more anonymous or less highly placed than Mr. Armentrout. As I suggested above, based on his visibility and the trust society placed in him as the highest legal officer of Kane County, we were entitled to expect more from Mr. Armentrout than he gave us. Not only did he fail to protect the election machinery against subversion, he sabotaged it himself in a calculated manner.

The majority laments that Mr. Armentrout has suffered substantial financial and professional loss, but is that not what frequently happens to those who are caught up in the disciplinary web because of their misconduct?

Mr. Armentrout’s offense was a serious one and the sanction imposed by the majority fails to recognize its gravity. As a State’s Attorney he was supposed to enforce the law, but instead, he not only callously violated it and our professional canons, but recruited other law enforcement officers to assist him in that endeavor. In addition, he took steps to conceal the fraud by warning his assistant, Charles E. Petersen, against using a telephone book for the purpose of copying names because of the ease of detection of that form of roundtabling. He then suggested to Petersen that names be copied off voters’ lists instead of from telephone books. I believe Mr. Armentrout should be disbarred.

So far as Mr. Petersen is concerned, he too must answer as a public official. In addition to that violation of his public trust, he acted as the organizer and manager of the roundtabling operation, arranging the times and places for the activity and soliciting others to engage in it. I believe that the Administrator’s recommendation of a two-year suspension is more appropriate to the gravity of Mr. Petersen’s conduct than the six-month suspension the majority has decided upon or the 18-month suspension recommended by the Review Board.

With respect to Mr. Grodner, I disagree with the majority that the fact that he had been admitted to practice for only three months when the roundtabling took place should serve as a mitigating factor. It must be apparent to all who examine this situation that one does not require a legal education or admission to the bar to know that what the respondents were doing was improper. The majority points out also in mitigation that Grodner was complying with the request of his superiors, but I am under the impression that the defense that “I was only following orders” was discredited both at the Nuremberg and the Watergate trials. I do not think it is asking too much of licensed attorneys to exhibit the good judgment to say “No” when they are importuned to engage in dishonest pursuits. Instead, Grodner and his co-respondents appeared to treat the activity in which they engaged as a joke. Grodner, too, occupied public office, and even if only for a short time, it was long enough to know that as a prosecutor he was expected to uphold the law, not violate it. The sanction of censure recommended for him by the Administrator is inappropriate, for it overlooks the obligation he undertook when he assumed the prosecutor’s office. I believe the Review Board’s recommendation that he be suspended for six months was a proper disposition.

I am agreeable to the imposition of censure as the sanction for the other respondents, not because their offenses were not serious, but rather because this court has already imposed censure on John Truemper, Jr., whose participation appears to have been generally of the same nature as that of Kim Edward Presbrey and William H. Weir. None of them were public officials.


text:
    (No. 57801.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT SANDERS, Appellee.

      Opinion filed December 16, 1983.

      Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat, Marie Quinlivan, and Stephen Erhard Eberhardt, Assistant State’s Attorneys, of Chicago, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Daniel D. Maynard, Laura N. Jasinsky, Charles R. Saulsberry, of Winston & Strawn, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The principal issue raised by this appeal is the construction and application to be given to the Illinois statute which prohibits husband and wife from testifying in criminal trials as to any communication or admission made one to the other or as to any conversation between them (Ill. Rev. Stat. 1981, ch. 38, par. 155 — 1). More precisely, the question is whether the privilege established by the statute is destroyed when the communication, admission or conversation in question is in the presence of children of the spouses (including a child of one of the spouses who is not the child of defendant) who are old enough to understand the content of the conversation. A secondary issue is whether the plain error rule (87 Ill. 2d R. 615) should be applied to the admission of testimony about two conversations between spouses which may not have occurred in the presence of children but where no objection was advanced when all that was said in them was repeated in a third conversation which took place a few hours later and concerning which testimony was admissible.

A murder conviction of the defendant, Robert Sanders, in a jury trial in the circuit court of Cook County based in part upon the testimony of his wife was reversed by the appellate court (111 Ill. App. 3d 1). We allowed the State’s petition for leave to appeal (87 Ill. 2d R. 315(a)).

During pretrial discovery the defense filed a motion in limine to prevent the defendant’s wife, Beverly Sanders, from testifying about conversations she had with her husband, the defendant. Shortly after it was filed, the public defender’s office, which had been representing the defendant, was replaced by other appointed counsel, who represented the defendant at trial. Defendant’s new attorney did not seek a ruling on the motion in limine, and that motion was never ruled upon. Neither did defendant’s attorney object at trial to the wife’s testimony.

She testified to three conversations with her husband which implicated him in the murder of which he was convicted. In the first conversation, which occurred the day before the murder, she testified the defendant told her while one or more of her children was .present that he was going to rob the murder victim. The second conversation occurred in their bedroom in the early morning hours of the next day. During this conversation, at which no one else was present, the defendant gave his wife a ring and a watch which the woman who lived with the murder victim identified at trial as the victim’s. The third conversation took place later that day. The defendant told her, she testified, that he had robbed the murder victim after striking him with a brick and tying him up. He also told her that he got the watch and ring during the robbery. This conversation, she said, was in the presence of their children.

The State argues that communications between spouses are privileged only when intended to be confidential. In this case the State contends the confidentiality of the first and third conversations was destroyed by the presence of their children. It contends that the second conversation was not confidential because the defendant must have expected that his wife would display the watch and ring he gave her by wearing them in public, and that he did not therefore intend his act to be confidential. The defendant argues that the record does not clearly show that their children were in the immediate presence of his wife and himself in a position to hear their first and third conversations, and that during the second communication he acted in reliance upon the expectation that what transpired would be confidential.

The starting point for our decision is the interpretation given in People v. Palumbo (1955), 5 Ill. 2d 409, to the statute relating to the admissibility of interspousal communications (Ill. Rev. Stat. 1981, ch. 38, par. 155— 1). This court, in Palumbo, rejected the argument advanced by the defendant there that the statute covered all conversations between spouses, holding instead that the statutory privilege, like the similar common law privilege, applied only to conversations which were of a confidential character. The problem is to determine under what circumstances conversations between spouses are to be regarded as confidential in character. This court, in Palumbo, adopted the standards announced by the Supreme Court in Wolfle v. United States (1934), 291 U.S. 7, 14, 78 L. Ed. 617, 620, 54 S. Ct. 279, 280, a holding which the court 41 years later in Trammel v. United States (1980), 445 U.S. 40, 63 L. Ed. 2d 186, 100 S. Ct. 906, said remained undisturbed, by adopting language from Wolfle which teaches the following: There is a presumption that interspousal communications are intended to be confidential. But if, because of the circumstances under which the communication took place, it appears that confidentiality was not intended, the communication is not to be regarded as privileged. In this regard, communications made in the presence of third persons are usually not regarded as privileged because they are not made in confidence. In Palumbo the communication testified to by the wife was regarded as not privileged because the entire conversation took place in the presence of a third person who, according to the wife, was trying to purchase narcotics from the husband, who was the defendant in the case.

We agree with the appellate court’s conclusion that the evidence establishes that the third conversation took place in the presence of her sons, Robert who was 13, and two others who were 10 and 8 at the time. On cross-examination the wife repeated her direct testimony, which is quoted at length in the appellate court opinion, that the three children were present during the third conversation when the following exchange took place:

“Q. Did you know anything about Curtiss Lovelace?
A. Only what my husband had told me.
Q. You say he was bragging when he told you this?
A. Yes.
Q. He wasn’t nervous, was he?
A. Not until he found out the man was dead.
Q. When he first told you was he nervous or bragging?
A. Not nervous.
Q. Pacing around the room?
A. No, he wasn’t.
Q. Excited?
A. No.
Q. Who was present when this conversation occurred?
A. Robert, Albert and Pee Wee.
Q. They were all there?
A. Yes.”

Following this exchange there was another reference during her cross-examination to the presence of the wife’s oldest son:

“Q. And that day of the events that you have testified to, October the 14th, that day you had just finished a fight with your husband, right?
A. Yes.
Q. Did he threaten your son, Robert, in any way at that time?
A. No.
Q. But during all of these conversations, Robert, your son, was present, right?
A. Yes, he was.”

The question presented in this case is whether the communications fell outside the ambit of the statute’s protection because of the presence of the children. We have found no Illinois case holding that the confidentiality of a conversation between a husband and wife is preserved when it takes place in the presence of children. The appellate court appears to have exhaustively researched the subject and concluded, as we do, that the great weight of authority is that the presence of children of the spouses destroys confidentiality unless they are too young to understand what is being said. (See, e.g., Master v. Master (1960), 223 Md. 618, 166 A.2d 251; Freeman v. Freeman (1921), 238 Mass. 150, 130 N.E. 220; Fuller v. Fuller (1925), 100 W. Va. 309, 130 S.E. 270; McCormick, Evidence sec. 80, at 166 (2d ed. 1972); 97 C.J.S. Witnesses sec. 271, at 777 (1957).) Nothing in the record indicates that Robert, then 13 years old, was not old enough or sufficiently bright to understand the conversation at which he was present, particularly inasmuch as the wife’s testimony indicates that some of it was directed to him. In these circumstances, under the rule followed in this State, his presence rendered the conversation ineligible for the protection of the statutory privilege.

The defendant argues that this court should recognize a privilege, which he concedes does not presently exist in Illinois, between parents and children which would include conversations between spouses at which their children are present. Courts in a few other jurisdictions have cloaked communications between parent and child with a privilege. (In re Agosto (D. Nev. 1983), 553 F. Supp. 1298; People v. Fitzgerald (1979), 101 Misc. 2d 712, 422 N.Y.S.2d 309.) The source of all privileges currently applicable in Illinois, with the exception of the attorney-client privilege which has a long-standing common law existence, is statutory. (See Ill. Rev. Stat. 1981, ch. 51, par. 5.1, Ill. Rev. Stat. 1981, ch. 38, par. 104 — 14 (physician-patient); Ill. Rev. Stat. 1981, ch. 51, par. 48.1 (clergymen); Ill. Rev. Stat. 1981, ch. 91½, par. 810 (therapist-client); Ill. Rev. Stat. 1981, ch, 111, par. 5533 (accountants); Ill. Rev. Stat. 1981, ch. 51, par. 5.2 (rape crisis personnel-victims); Ill. Rev. Stat. 1981, ch. 48, par. 640 (public officers, regarding unemployment compensation).) We decline, therefore, to introduce an additional privilege by judicial authority which would be applicable to communications between parents and children. Even if we were to initiate this type of privilege, to assist the defendant here we would have to extend it to children of only one spouse, for Robert, the oldest and presumably the most discerning of the children and who was privy at least to the third conversation, was the son of the wife and not the defendant. The statute by its terms does not contemplate such a stretch. Were we to recognize such a privilege under our judicial authority, it would be impossible to contain it logically from spreading to conversations with other relatives in whom a person might normally confide, or even to close friends.

Moreover, we are constrained not only by the legislature’s lack of interest in extending an interspousal communications privilege to communications between parent and child, but also by the fact that evidentiary privileges of this sort exclude relevant evidence and thus work against the truthseeking function of legal proceedings. In this they are distinct from evidentiary rules, such as the prohibition against hearsay testimony, which promote this function by insuring the quality of the evidence which is presented. The privilege at issue here results not from a policy of safeguarding the quality of evidence at trial but from a policy of promoting family harmony independent of what might occur in a trial at some future date. The Supreme Court in Trammel v. United States (1980), 445 U.S. 40, 50, 63 L. Ed. 2d 186, 195, 100 S. Ct. 906, 912, has stated:

“Testimonial exclusionary rules and privileges contravene the fundamental principle that ‘ “the public ... has a right to every man’s evidence.” ’ United States v. Bryan [(1950), 339 U.S. 323, 331, 94 L. Ed. 884, 891, 70 S. Ct. 724, 730.] As such, they must be.strictly construed and accepted ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ Elkins v. United States [(1960), 364 U.S. 206, 234, 4 L. Ed. 2d 1669, 1695, 80 S. Ct. 1437, 1454] (Frankfurter, J., dissenting).”

See also 8 J. Wigmore, Evidence sec. 2285, at 527-28 (1961).

The expansion of existing testimonial privileges and acceptance of new ones involves a balancing of public policies which should be left to the legislature. A compelling reason is that while courts, as institutions, find it easy to perceive value in public policies such as those favoring the admission of all relevant and reliable evidence which directly assist the judicial function of ascertaining the truth, it is not their primary function to promote policies aimed at broader social goals more distantly related to the judiciary. This is primarily the responsibility of the legislature. To the extent that such policies conflict with truthseeking or other values central to the judicial task, the balance that courts draw might not reflect the choice the legislature would make.

The defendant argues, however, that inasmuch as the Federal courts have recognized the right of privacy to be of constitutional dimension in the context of certain func-' tions which are intimately associated with the family, we should hold that communications of a confidential nature between a parent and his child enjoy an evidentiary privilege under the Constitution which did not exist under the common law. The defendant points out that in In re Agosto (D. Nev. 1983), 553 F. Supp. 1298, and People v. Fitzgerald (1979), 101 Misc. 2d 712, 422 N.Y.S.2d 309, courts have recognized the sort of constitutionally based privilege sought to be invoked here.

We need not decide here, and we do not decide, whether the decisions in In re Agosto or People v. Fitzgerald were sound, for the question in both of those cases was whether a parent or a child could be compelled against his will to testify against the other. (See also In re A and M (1978), 61 App. Div. 2d 426, 403 N.Y.S.2d 375 (same).) The testimony in the instant case, by contrast, was given by the defendant’s wife, without protest and apparently of her own free will, after she was approached and requested to give it by an assistant State’s Attorney.

We find this difference to be significant. Both Agosto and the New York courts, in holding that a constitutional privilege protected the communications there at issue, relied heavily on conjecture that a family member who is forced to testify against her will would face the unpleasant choice of aiding the criminal conviction of a loved one, perjuring herself on the stand, or risking a citation for contempt of court for refusing to testify, and the belief that the harshness of this choice has the effect of sundering the family relationship. (In re Agosto (D. Nev. 1983), 553 F. Supp. 1298, 1309-10, 1326; In re A and M (1978), 61 App. Div. 2d 426, 432-33, 403 N.Y.S.2d 375, 380.) Such a fear is without foundation where, as in this case, the witness who is a family member volunteers her testimony; the voluntariness of the act is strong evidence that the choice the witness faced was an easy one for her to make. We conclude that even if the Constitution bestows a privilege on communications between a parent and a child, an issue which we do not decide here, that privilege may be waived by the testifying witness acting alone. Compare United States v. Penn (9th Cir. 1980), 647 F2d 876, 882 (rejecting a challenge to a child’s voluntary testimony based on due process, on which the right to privacy depends).

Although they were the subject of the motion in limine which was never ruled upon, no objection was advanced at trial when the wife testified about the first and second conversations. Under Palumbo the Illinois statute preventing testimony by either spouse concerning confidential communications between them creates only a privilege, and a privilege may be waived by the holder of it, in this case the husband. (See Comment, Marital Privileges, 46 Chi.-Kent L. Rev. 71, 82-83 (1969).) Therefore, in order to affirm the appellate court’s reversal of the conviction, we would have to conclude that the court properly applied the plain error doctrine (87 Ill. 2d R. 615) in holding that testimony regarding the first two conversations was improperly admitted. We believe the appellate court erred in reaching that conclusion.

The plain error doctrine is properly applied only when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case (People v. Jackson (1981), 84 Ill. 2d 350, 359; People v. Pickett (1973), 54 Ill. 2d 280, 283), or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is (People v. Baynes (1981), 88 Ill. 2d 225, 233-34, 244; People v. Roberts (1979), 75 Ill. 2d 1, 14). The third conversation which we conclude, as the appellate court did, was properly admitted, incorporated substantially all of what was said in the first two conversations. The defendant, in the third conversation, discussed the robbery of the murder victim, said he hit him over the head with a brick, displayed several items of clothing taken from the victim, and referred to the watch and ring he had given his wife earlier that day. Thus, even conceding that no one overheard the first two conversations and that they were privileged and should have been excluded had timely objections been made, in practical effect they did no more than duplicate the incriminating content of the third conversation which was properly admitted. For that reason, the testimony which narrated the defendant’s conversation and conduct during the first two conversations was not prejudicial. It added nothing to the third conversation that was needed by the prosecutor to implicate the defendant, and after the third conversation was in evidence, the evidence as to the defendant’s guilt was no longer closely balanced.

Nor do we regard any errors that might have been made concerning the admissibility of the first and second conversations as depriving the accused of the substantial means of enjoying a fair and impartial trial (People v. Roberts (1979), 75 Ill. 2d 1, 14, citing People v. Burson (1957), 11 Ill. 2d 360, 370-71; see People v. Whitlow (1982), 89 Ill. 2d 322, 342), as the admission of polygraph evidence does (see People v. Baynes (1981), 88 Ill. 2d 225, 244). As we have noted, the husband-wife testimonial privilege operates not to purge a trial of unreliable evidence but to withhold relevant and often highly reliable evidence from the trier of fact. The decision whether to apply the plain error doctrine where the evidence is not close is one of grace. (People v. Roberts (1979), 75 Ill. 2d 1, 14; People v. Burson (1957), 11 Ill. 2d 360, 370-71.) We believe it should not have been applied here, for the fairness and impartiality of the trial was not substantially compromised by the errors, if any took place. See People v. Roberts (1979), 75 Ill. 2d 1, 14-15.

The defendant has raised a number of other issues, none of which were considered by the appellate court because of its erroneous reversal of the conviction on the ground of improper use of privileged communications. The judgment of the appellate court is reversed and the cause is remanded to that court for disposition of the issues raised by the defendant but not reached by its original decision. See People v. Simpson (1977), 68 Ill. 2d 276, 284.

Reversed and remanded, with directions.