text:
    (Nos. 53754, 53778, 53803 cons.
    THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. JAMES J. CHRASTKA, Judge, et al., Respondents.—THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. MILTON S. WHARTON, Judge, et al., Respondents.—THE PEOPLE ex rel. BERNARD CAREY, State’s Attorney, Petitioner, v. EDWARD H. MARSALEK, Judge, et al., Respondents.

      Opinion filed December 1, 1980.

      Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Lawrence H. Spector and Rimas F. Cernius, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (John E. Horn, Assistant Public Defender, of counsel), for respondents.
    Harry F. Swanger, of St. Louis (Ross Briggs and Joel Green, of counsel), for amicus curiae Illinois Collaboration on Youth.
    Steven Lubet and Harvey Grossman, of Chicago, for amicus curiae the Roger Baldwin Foundation of the American Civil Liberties Union.
    Francis X. Grossi, Jr., and H. Elizabeth Kelley, of Katten, Mu chin, Zavis, Pearl & Galler, of Chicago (Kathleen C. Yannias, of counsel), for amici curiae John Howard Association and Chicago Law Enforcement Study Group.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

These are three consolidated cases in which judges of the circuit court of Cook County held unconstitutional section 5 — 12 of the Juvenile Court Act (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12) and denied the State’s petitions to proceed thereunder. We granted the State’s petitions for leave to file original petitions for writs of mandamus. (See 73 Ill. 2d R. 381; Ill. Const. 1970, art. VI, sec. 4(a).) For the reasons which follow, the petitions are granted, and the writs shall issue.

On October 31, 1979, section 1 of Public Act 81 — 1104 became law and simultaneously went into effect. The law, which added section 5 — 12 to the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) is commonly referred to as the Habitual Juvenile Offender Act and provides as follows:

“(a) Any minor having been twice adjudicated a delinquent minor for offenses which, had he been prosecuted as an adult, would have been felonies under the laws of this State, and who is thereafter adjudicated a delinquent minor for a third time shall be adjudged an Habitual Juvenile Offender where:
1. the third adjudication is for an offense occurring after adjudication on the second; and
2. the second adjudication was for an offense occurring after adjudication on the first; and
3. the third offense occurred after January 1, 1980;
and
4. the third offense was based upon the commission of or attempted commission of the following offenses: murder, voluntary or involuntary manslaughter; rape or deviate sexual assault; aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm to the victim; burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings; home invasion; robbery or armed robbery; or aggravated arson.
Any minor adjudged an Habitual Juvenile Offender shall be committed to the Department of Corrections until his 21st birthday, without possibility of parole, furlough, or non-emergency authorized absence from confinement of any sort. Provided, however, that the minor shall be entitled to earn one day of good conduct credit for each day served as reductions against the period of his confinement. Such good conduct credits shall be earned or revoked according to the procedures applicable to the allowance and revocation of good conduct credit for adult prisoners setving determinate sentences for felonies.
For purposes of determining good conduct credit commitment as an Habitual Juvenile Offender shall be considered a determinate commitment, and the difference between the date of commitment and the minor’s 21st birthday shall be considered the determinate period of his confinement.
Any minor prosecuted as an Habitual Juvenile Offender shall have a right to trial by jury.
Nothing in this section shall preclude the States Attorney from seeking to prosecute a minor as an adult as an alternative to prosecution as an habitual juvenile offender.
A continuance under supervision authorized by Section 4 — 7 of this Act shall not be permitted under this section.
(b) Notice to Minor. The State shall serve upon the minor written notice of intention to prosecute under the provisions of this section simultaneously with the filing of any delinquency petition, adjudication upon which would mandate the minor’s disposition as an Habitual Juvenile Offender.
Trial on such petition shall be by jury unless the minor demands, in open court and with advice of counsel, a trial by the court without jury.
(c) Petition and Procedures. A notice to seek adjudication as an Habitual Juvenile Offender shall be filed only by the State’s Attorney.
The petition upon which such Habitual Juvenile Offender notice is based shall contain the information and averments required for all other delinquency petitions filed under this Act and its service shall be according to the provisions of this Act. Except as otherwise provided herein, the provisions of the Juvenile Court Act concerning delinquency proceedings generally shall be applicable to Habitual Juvenile Offender proceedings.
No prior adjudication shall be alleged in the petition, and no evidence or other disclosure of such adjudication shall be presented to the court or jury during any adjudicatory hearing provided for under this section, unless otherwise permitted by the issues properly raised in such hearing. In the event the minor who is the subject of these proceedings elects to testify on his own behalf, it shall be competent to introduce evidence, for purposes of impeachment, that he has previously been adjudicated a delinquent minor upon facts which, had he been tried as an adult, would have resulted in his conviction of a felony. Introduction of such evidence shall be according to the rules and procedures applicable to the impeachment of an adult defendant by prior conviction.
After an admission of the facts in the petition or adjudication of delinquency, the State’s Attorney may file with the court a verified written statement signed by the State’s Attorney concerning any former adjudication of an offense set forth in Section (a) hereof which offense would have been a felony had the minor been tried as an adult.
The court shall then cause the minor to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former adjudication and of his right to counsel at such hearing; and unless the minor admits such adjudication, the court shall hear and determine such issue, and shall make a written finding thereon.
A duly authenticated copy of the record of any such alleged former adjudication shall be prima facie evidence of such former adjudication.
Any claim that a previous adjudication offered by the State’s Attorney is not a former adjudication of an offense which, had the minor been prosecuted as an adult, would have resulted in his conviction of a felony, is waived unless duly raised at the hearing on such adjudication, or unless the State’s Attorney’s proof shows that such prior adjudication was not based upon proof of what would have been a felony.
If the court finds that the prerequisites established in Section (a) hereof have been proven, it shall adjudicate the minor an Habitual Juvenile Offender and commit him to the Department of Corrections until his 21st birthday, without possibility of parole, furlough, or non-emergency authorized absence.” Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705-12.

We initially reject respondents’ contention that mandamus does not lie to review the rulings of the circuit court judges in these cases. This court has previously utilized mandamus as a means for directing a circuit court judge to conduct a hearing which he felt should not be held because of alleged constitutional defects in the statute authorizing the hearing. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544.) Additionally, we have entertained petitions for writs of mandamus where issues of considerable importance to the administration of justice are presented even though all criteria for issuance of the writ are not met. (People ex rel. Carey v. White (1976), 65 Ill. 2d 193, 197.) We are also advised that at least three judges of the circuit court of Cook County have upheld the act now under attack, and the resulting conflict in opinion among the judges of that court further advises that we entertain this petition. People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394, 401.

The first of many alleged constitutional defects in the Act is that it affords inadequate recognition to the right to trial by jury. The alleged defect in the Act is its failure to require that trial by jury be afforded at the proceedings which resulted in the two prior adjudications upon which application of the Act is predicated. Respondents cite Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, by analogy.

The right to trial by jury is not, as a general proposition, constitutionally required in juvenile proceedings (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976; In re Fucini (1970), 44 Ill. 2d 305), and respondents do not argue to the contrary. Given the absence of a constitutional requirement that trial by jury be afforded in all juvenile proceedings, we hold that the legislature has afforded sufficient recognition to the right by allowing trial by jury when the individual is prosecuted as an habitual juvenile offender. The proceedings which result in the two predicate adjudications are, considering the purposes of the juvenile court system, rehabilitative in nature, and the full panoply of constitutional procedural safeguards need not be afforded. Proceedings under the Act, by contrast, result in a disposition, determinate confinement, which has as its purpose the protection of society, in addition to the rehabilitation of the individual. By allowing trial by jury in this instance, the legislature has acknowledged the punitive aspect of the Act. We do not believe, however, that the Act is constitutionally flawed simply because it does not require that trial by jury have been afforded at the two predicate adjudications. These predicate adjudications do not themselves authorize disposition under the Act but are relied upon, in effect, as matters in aggravation, and the absence of trial by jury at these two predicate adjudications in no way affects their reliability as evidence of criminal propensity. Indeed, this was the basis of the court’s decision in McKeiver, wherein it held that trial by jury is not “a necessary component of accurate factfinding.” (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 543, 29 L. Ed. 2d 647, 660, 91 S. Ct. 1976, 1985.) For this reason, we find that Baldasar v. Illinois (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585, does not support respondents’ position. The court there held that uncounseled misdemeanor convictions could not be relied upon as a basis for imposing enhanced criminal penalties, and the basis of the court’s decision was its conclusion that the prior convictions were not reliable indicia of criminal propensity because of the absence of counsel. The element of unreliability is not present here. Predicate adjudications may well have been the result of the findings of a judge rather than a jury, but that alone does not render the prior adjudications unreliable. In either case counsel would have been present unless waived.

We also reject respondents’ contention that the Act violates due process because it allows the question of a prior adjudication to be tried by the court rather than a jury. (See Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12(c).) The question of a prior adjudication under an habitual offender law relates solely to matters in aggravation (People v. Lawrence (1945), 390 Ill. 499, 504-05; People v. Atkinson (1941), 376 Ill. 623, 625) and is therefore susceptible to resolution by the court.

On a point related to the question of the right to trial by jury, respondents argue that the concept of fundamental fairness embodied in the due process clause is violated on the ground that the filing of a petition to proceed under the Act, as well as the impeachment usage of prior adjudications (see Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12(c)), will improperly apprise a jury of those adjudications and potentially influence the jury’s determination of whether the third offense required for disposition under the Act has been committed. As to the question of whether the filing of a petition will prejudice the individual, our reading of the Act convinces us that the prejudice feared will not result if the provisions of the Act are properly applied. The Act explicitly provides, “No prior adjudication shall be alleged in the petition ***.” (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705-12(c).) We do not believe it reasonable to assume that a juror would realize that the filing of the petition itself indicates the existence of prior adjudications; the possibility of prejudice in such a situation is highly speculative. To the extent that an occasional juror may know of the purpose of such a petition, the juror’s ability to remain impartial could be tested by effective voir dire examination, and, if desired, a peremptory challenge of that juror could be exercised. We note, however, that a challenge for cause on due process grounds is not available since the court in Spencer v. Texas (1967), 385 U.S. 554, 17 L. Ed. 2d 606, 87 S. Ct. 648, upheld a recidivist statute which allowed a jury trying a pending charge to hear evidence of past convictions, not for impeachment purposes, but for the purpose of proving that the particular individual before the court fell within the operation of the recidivist statute, so long as the jury was informed of the limited purpose of the statute.

As to the question of whether the individual may be prejudiced by the impeachment usage of prior adjudications, we find no merit to respondents’ argument. We acknowledge that the accused’s credibility will be damaged if he chooses to testify and the prosecution introduces evidence of the prior adjudications in impeachment, but this is the purpose of impeachment regardless of the context in which it is done and the consequences that result. It is improper prejudice with which we are concerned, and if the Act is correctly applied, this will not result. The Act is carefully drafted to avoid unfair prejudice and specifically provides that “no evidence or other disclosure of such adjudication shall be presented to the court or jury during any adjudicatory hearing provided for under this section, unless otherwise permitted by the issues properly raised in such hearing. In the event the minor who is the subject of these proceedings elects to testify on his own behalf, it shall be competent to introduce evidence, for purposes of impeachment, that he has previously been adjudicated a delinquent minor upon facts which, had he been tried as an adult, would have resulted in his conviction of a felony. Introduction of such evidence shall be according to the rules and procedures applicable to the impeachment of an adult defendant by prior conviction.” (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705-12(c).) By providing these safeguards, the Act actually goes beyond those required by the United States Supreme Court in Spencer.

The argument that the Act is an ex post facto law, because adjudications occurring prior to the effective date of the Act are considered in aggravation, is an argument that is foreclosed by the decisions of this court and the United States Supreme Court (Gryger v. Burke (1948), 334 U.S. 728, 732, 92 L. Ed. 1683, 1687, 68 S. Ct. 1256, 1258; People v. Turner (1947), 396 Ill. 221, 223). We also reject the notion that the Act violates ex post facto prohibitions by assigning punitive consequences to prior juvenile adjudications. The Act does not purport to transform the prior adjudications into criminal convictions or to impose sanctions for such a prior adjudication where none existed previously. The Act only allows consideration of prior adjudications for the purpose of establishing matters in aggravation to support the disposition authorized by the Act for a third serious offense. (People v. Hanke (1945), 389 Ill. 602, 604.) Such a limited, albeit significant, usage of prior adjudications does not violate ex post facto prohibitions.

It is also argued that the Act violates due process because it gives prosecutors unbridled discretion in determining whether an individual will be prosecuted under the Act. We do not agree. A cursory analysis of the Act reveals ample guidelines limiting the prosecutor’s ability to petition for disposition under the Act. Most significantly, disposition under the Act is conditioned upon two prior adjudications and an adjudication of one of several specified offenses. Once the factual predicate is established, the prosecutor may petition the circuit court for disposition under the Act or seek to prosecute the individual as an adult. (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12(a).) The discretion to make this type of decision is inherent in the prosecutor and, being limited by statutory guidelines, is not subject to attack. People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 540-43; see also People v. Sprinkle (1974), 56 Ill. 2d 257, cert. denied (1974), 417 U.S. 935, 41 L. Ed. 2d 239, 94 S. Ct. 2650; People v. Handley (1972), 51 Ill. 2d 229; People v. Bombacino (1972), 51 Ill. 2d 17.

The last argument of respondents in which they allege a violation of due process is that the Act creates an irrebuttable and irrational presumption that an individual subject to the Act should be confined until the age of 21 years without regard to age, seriousness of the offense, or other potentially mitigating circumstances. This argument is closely related to, and will be considered with, respondents’ separation of powers argument in which it is claimed that the Act unconstitutionally usurps the function of the judiciary in imposing sentence, as well as the argument that the Act violates the Illinois Constitution by failing to require consideration of the seriousness of the offense and the objective of restoring the individual to useful citizenship (Ill. Const. 1970, art. I, sec. 11). We hold that the constitutional provisions allegedly implicated are not violated simply because the Act mandates confinement to the age of 21.

It is indisputable that the legislature has the authority to define offenses against the People and to determine sentences, and this authority, by definition, enables the legislature to establish minimum sentences. Such legislative action necessarily limits the inquiry and function of the judiciary in imposing sentences, but this alone does not render the legislation violative of the constitutional provisions upon which respondents rely. Any resulting diminution of the judiciary’s role is adequately remedied by the legislature’s clear and comprehensive treatment of the subject, and we cannot say that the means chosen by the legislature is not “ ‘*** reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ ” (People v. Bradley (1980), 79 Ill. 2d 410, 417, quoting Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.) Under the Act, the court is dealing with a juvenile who has allegedly committed three offenses within what is necessarily a short period of time. Significantly, the two predicate adjudications afforded the juvenile the opportunity to have a hearing at which he could present mitigating evidence and at which the trial judge could exercise his discretion in determining the appropriate disposition. Additionally, the two predicate adjudications must have been for offenses which would have been felonies if the individual were prosecuted as an adult (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12(a)), and the third offense must be of a particularly serious nature to warrant the disposition authorized by the Act (Ill. Rev. Stat., 1979 Supp., ch. 37, par. 705 — 12(a)(4)). The legislature could legitimately conclude that an individual who has committed three such offenses has benefited little from the rehabilitative measures of the juvenile court system and exhibits little prospect for restoration to meaningful citizenship within that system as it had heretofore existed. The rehabilitative purposes of the system are not completely forsaken, but after the commission by an individual of a third serious offense, the interest of society in being protected from criminal conduct is given additional consideration. We consider it to be entirely reasonable and constitutionally permissible for the legislature to so provide and to authorize the disposition specified in the legislative scheme it has developed.

We also find no violation of equal protection principles. The apparent predominant purpose of the Act is to protect society from an individual who, having committed three serious offenses, would appear to have gained little from the rehabilitative measures of the juvenile court system. In furtherance of this purpose, the legislature has determined that an individual who is subject to the Act shall be confined until the age of 21. As a result, an habitual juvenile offender may be confined longer than one who is older, and it is alleged that this disparity in treatment adversely affects a juvenile’s fundamental interest in.liberty and is not justified by any compelling interest. We do not agree with either the suggested analysis or conclusion.

First, we question whether the general liberty interest of the individual respondents requires that petitioners demonstrate a compelling interest justifying the disparity in terms of confinement among juveniles prosecuted under the Act. The cases relied upon by one amicus in seeking to invoke a strict standard of review do not support its claim that a compelling interest must be demonstrated here, for they involved specifically identifiable fundamental interests. See, e.g., Harper v. Virginia Board of Elections (1966), 383 U.S. 663, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (voting); Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1110 (procreation).

In any event, we believe that the interest in protecting society from the habitual juvenile offender has, through experience, proved to be as compelling as the interest in protecting society from the habitual adult offender, and the broad authority of State legislatures to deal with adult recidivists is well recognized (Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133; Spencer v. Texas (1967), 385 U.S. 554, 559-60, 17 L. Ed. 2d 606, 611, 87 S. Ct. 648, 651). We do not believe that the fortuitous disparity of the terms of confinement of habitual juvenile offenders which results from the variance in age of such individuals serves to invalidate the means chosen to effectuate the purpose of the Act. “The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.” (Williams v. Illinois (1970), 399 U.S. 235, 243, 26 L. Ed. 2d 586, 594, 90 S. Ct. 2018, 2023.) And as stated in Skinner v. Oklahoma ex rel. Williamson (1942), 316 U.S. 535, 539-40, 86 L. Ed. 1655, 1659, 62 S. Ct. 1110, 1112, “Under our constitutional system the States in determining the reach and scope of particular legislation need not provide ‘abstract symmetry.’ Patsone v. Pennsylvania, 232 U.S. 138, 144. They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience.”

Finally, we believe that the cruel and unusual punishment argument offered by one amicus is foreclosed by the recent decision of the United States Supreme Court in Rummel v. Estelle (1980), 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133. State legislatures have traditionally been allowed wide latitude in setting penalties for State crimes (Williams v. Illinois (1970), 399 U.S. 235, 241, 26 L. Ed. 2d 586, 593, 90 S. Ct. 2018, 2022), and we do not believe that the disposition authorized here rises to the level of cruel and unusual punishment by any stretch of the imagination.

For the foregoing reasons, a writ of mandamus shall issue directing the respondent judges to vacate their orders declaring section 5 — 12 of the Juvenile Court Act unconstitutional and denying the State’s petitions to proceed under that section, and to allow said petitions and proceed accordingly.

Writs awarded.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 53259.
    ELMER E. SCHLESSMAN III, Appellant, v. MAX HENSON, Appellee.

      Opinion filed December 1, 1980.

      Marvin Gerstein, of Kahr & Gerstein, of Champaign, for appellant.
    Vance I. Kepley and Nancy M. Riddle, of Reno, O’Byrne & Kepley, of Champaign, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Elmer E. Schlessman III, brought this personal injury action in the circuit court of Champaign County, charging defendant, Max Henson, doing business as Champaign Motor Speedway, with negligence in design and operation of his racetrack. The circuit court granted summary judgment for defendant because plaintiff had signed an agreement exculpating defendant from liability. A majority of the appellate court affirmed (80 Ill. App. 3d 1139), and we granted leave to appeal. Plaintiff raises issues generally concerning whether the occurrence in question presents factual questions about the exculpatory agreement which preclude a summary judgment procedure and whether the agreement was an adhesion contract that should not be enforced.

On June 4, 1976, plaintiff, who was a participant in numerous amateur stock-car races, was auto racing on defendant’s racetrack when a portion of the upper track embankment collapsed, causing plaintiff’s car to crash. Prior to using the racetrack, plaintiff had signed a document captioned “Waiver and Release from Liability and Indemnity Agreement.” In general, the terms of the agreement provided, inter alia, that, in consideration for use of the racing surface, plaintiff would not hold defendant liable for any injuries plaintiff sustained as a result of defendant’s negligence or- otherwise while plaintiff was using the racing surface. The relevant portion of the agreement reads as follows:

“IN CONSIDERATION of being permitted to enter for any purpose the RESTRICTED AREA (herein defined as the area to which admission for the general public is prohibited, including but not limited to the pit area, racing surface and infield, including walkways, concessions and other appurtenances therein) each of the Undersigned, for himself and personal representatives, assigns, heirs and next of kin, agrees, and on the direct representation that he has, or will, prior to the inception of the racing program, inspect such RESTRICTED AREA and he does further warrant that his participation in the scheduled racing program and his entrance upon the RESTRICTED AREA, constitute an acknowledgment that he had inspected the RESTRICTED AREA and that it is safe and reasonably suited for the purposes of the racing program:
1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the Promoter, Participants, Racing Association, Track Operator, Track Owner, Landowner, and each of them, their officers, and employees, all for purposes herein referred to as RELEASEES, from all liability to the Undersigned, his personal representatives, assigns, heirs and next of kin for all loss or damage, and any claim or demands therefor, on account of injury to the person or property or resulting in death of the Undersigned, whether caused by the negligence of Releasees or otherwise while the Undersigned is upon the Restricted Area ***.”

Plaintiff now contends that the circuit and appellate courts were in error because the collapse of the track embankment culminating in his crash was completely outside the scope of plaintiff’s expectations and the sweeping language in the release. Plaintiff maintains that a question of fact was presented concerning whether the scope of the occurrence was within the terms of the parties’ release and that this question should be decided by the trier of fact and not in a proceeding for summary judgment. He also suggests that the parties did not realize the conditions of the track, which amounted to a mutual mistake of fact, thus preventing application of the release agreement. Plaintiff further contests defendant’s claim that he assumed the risk, which would present a factual question rendering inappropriate the summary judgment procedure. Finally, plaintiff maintains that the release was an adhesion contract and that he should be allowed to present evidence to support this claim.

The appellate court has addressed the validity of exculpatory clauses in contracts with amateur race drivers, absent any legislative limitation thereon. In Morrow v. Auto Championship Racing Association, Inc. (1972), 8 Ill. App. 3d 682, the plaintiff was repairing his car in a pit area of the track when he was seriously injured by another race car careening into that area. In reviewing the relationship of the parties, that court concluded that an agreement signed by plaintiff exculpating defendant was not against public policy. Accord, Tope v. Waterford Hills Road Racing Corp. (1978), 81 Mich. App. 591, 265 N.W.2d 761; LaFrenz v. Lake County Fair Board (Ind. App. 1977), 360 N.E.2d 605.

The racing of automobiles at a high speed in limited areas gives rise to various situations which have resulted in the death or injury to drivers, mechanics and spectators at these events. These accidents may occur because of factors involving mechanical failures, defective design of guardrails, driver error or weather conditions affecting driving surfaces. In sum, a myriad of factors, which are either obvious or unknown, may singly or in combination result in unexpected and freakish racing accidents. Experienced race drivers, such as plaintiff, are obviously aware of such occurrences and the risks attendant to the sport of auto racing. The parties may not have contemplated the precise occurrence which resulted in plaintiff’s accident, but this does not render the exculpatory clause inoperable. In adopting the broad language employed in the agreement, it seems reasonable to conclude that the parties contemplated the similarly broad range of accidents which occur in auto racing.

Nor do we find that the release was signed by plaintiff when the parties were operating under a mutual mistake of fact. The release in question was designed to encompass all claims against defendant based on its negligence, even though the precise cause of the accident may have been extraordinary. The very nature of the parties’ activity requires this result, absent contrary legislation.

We further reject plaintiff’s claim that the release was tantamount to an adhesion contract. The validity of such a contention, as it pertains to exculpatory clauses between private parties, depends on whether there exists a substantial disparity of the parties’ bargaining positions (15 Willis-ton, Contracts sec. 1763A, at 234 (3d ed. 1972)), and whether the agreement is violative of public policy or based on the social relationship of the parties (Jackson v. First National Bank (1953), 415 Ill. 453; Kubisen v. Chicago Health Clubs (1979), 69 Ill. App. 3d 463). Consideration of these factors does not support plaintiff’s position. While it is obvious that plaintiff would not have been allowed to use the racetrack had he not signed the release, plaintiff was under no economic or other compulsion to sign the release in order to engage in amateur auto racing (see LaFrenz v. Lake County Fair Board (Ind. App. 1977), 360 N.E.2d 605), and as previously noted, it has been held that defendant’s exculpatory provision is not contrary to public policy.

Accordingly, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE CLARK

text:
    (No. 53083.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM PHIPPS, Appellee.

      Opinion filed December 1, 1980.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Roger Thompson, State’s Attorney, of Lincoln (Melbourne A. Noel and Donald B. Mackay, Assistant Attorneys General, of Chicago, and Gary J. Anderson, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Fuller, Hopp & Barr, P.C., of Decatur (Richard W. Hopp, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, William Phipps, was charged by information on September 25, 1978, with cruelty to persons (Ill. Rev. Stat. 1977, ch. 23, par. 2368), maltreatment of a mentally retarded person (Ill. Rev. Stat. 1977, ch. 9U/2, par. 15 — 1), and battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 3(a)(1)). It was alleged by the State that the defendant repeatedly struck a retarded resident of the Lincoln Developmental Center with a belt, while the defendant was an employee of the Center. The defendant filed a pretrial motion for discovery in the circuit court of Logan County on November 16, 1978, to request, inter alia, the names and addresses of all persons to be called as witnesses by the State. The State responded with the names and addresses of 20 potential witnesses. The defendant then filed, on January 15, 1979, a motion for additional discovery to request copies of the personnel files of seven potential witnesses who resided at the Center, six of whom were said to be eyewitnesses to the offenses alleged herein. The personnel files were said to contain mental evaluations of each of the seven residents, including intelligence quotients, statements as to the witnesses’ capacity for the truth, and other relevant information. In an order entered on February 14, 1979, the court ordered the State to provide the defendant with copies of all personnel files of prosecution witnesses who are residents of the Lincoln Developmental Center. Thereafter, on March 7, 1979, the State filed a motion to reconsider the order of discovery. In its motion the State represented that the personnel files of the seven potential witnesses were in the possession and control of the Illinois Department of Mental Health and Developmental Disabilities. Moreover, it was stated that the Department had notified the State’s Attorney that the files were confidential and privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 9H/2, par. 810), which became effective January 1, 1979. The State’s motion to reconsider also stated that the State did have in its possession psychological reports based upon psychological examinations of the witnesses, which reports were requested by the prosecution in preparation for trial. The State asked the court to decide whether there existed a conflict between the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 9114, pars. 801 through 817) and Supreme Court Rule 412(a)(iv) (73 Ill. 2d R. 412(a)(iv)) regarding disclosure to the accused. The State also requested the court to decide whether the State could properly turn over the personnel files and the psychological reports without violating the Act.

The court’s order of April 16, 1979, concluded that no conflict existed between the discovery rules and the Act. The court stated that the Act does not forbid the production of the material; it merely gives the patient or his therapist a privilege to prevent disclosure. It was concluded by the court that since every defendant in a criminal trial is guaranteed the right to effective cross-examination, any witness invoking the privilege, or on whose behalf the privilege was invoked, would not be permitted to testify. The State appealed the court’s order. With one justice concurring in part and dissenting in part, the appellate court dismissed the State’s appeal on the ground the State lacked the authority to appeal. 79 Ill. App. 3d 532, 538.

The issue on this appeal is very narrow. It is simply whether the State may take an interlocutory appeal from the trial court’s pretrial order. In our recent decision in People v. Young (1980), 82 Ill. 2d 234, we held “that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” (People v. Young (1980), 82 Ill. 2d 234, 247.) The court stated that “suppressed evidence” is to have a broader meaning than evidence which is illegally obtained. (82 Ill. 2d 234, 242-43, 246.) Thus, the instant inquiry is whether the trial court’s order could be considered to have suppressed evidence.

We think that in its substantive effect, rather than simply its form, the trial court’s order in this case does operate to prevent evidence from being admitted. The court’s order states that no testimony will be permitted to be taken from the witnesses unless the witnesses take the affirmative act of waiving their privilege and turn over the files and reports to the defense. Hence, as presently constituted, the trial would proceed without these witnesses unless some further acts were performed. Evidence is thus being “suppressed” as of the moment. Moreover, there is no intimation in the record as to whether the privilege would be waived by the witnesses; it is likely, however, that, by the time such knowledge is obtained, the trial will have begun and jeopardy will have attached. In Young it was noted that the reason for the newly announced rule is to allow a resolution of issues prior to trial and thus before jeopardy attaches. (82 Ill. 2d 234, 248.) We conclude therefore that the State may appeal the trial court’s order. In People v. Young we waived the certification requirement for cases presently pending in the appellate court. The same waiver applies here. We of course take no position as to the merits of the case. It is for the appellate court to decide the substantive issues in the case.

Finally, an issue was raised in oral argument as to whether the defendant requested the files and reports from the State prior to the effective date of the Act. Since the issue is not properly presented on the appeal to this court, we do not discuss it.

Accordingly, for the reasons stated, the judgment of the appellate court is reversed and the cause is remanded to the appellate court for further proceedings consistent with this opinion.

Reversed and remanded, with directions.


text:
    (No. 52862.
    MARSHALL E. WINOKUR, Appellant, v. EDWARD J. ROSEWELL, County Treasurer, et al., Appellees.—JEROME HUPPERT, Appellant, v. GEORGE W. DUNNE et al., Appellees.—CARL R. HANSEN et al., Appellant, v. GEORGE W. DUNNE, Appellee.

      Opinion filed December 1, 1980.

      Arnold M. Flamm, of Chicago (Prins, Flamm & Susman, Ltd., of counsel), for appellant Winokur.
    Thomas J. Royce, of Chicago, for appellant Huppert.
    James T. Ryan, Special State’s Attorney, of Chicago (Moshe J. Sassover, of Greenberger, Krauss & Jacobs, Chartered, of counsel), for appellants Hansen et al.

    Jerome H. Torshen, Special State’s Attorney, of Chicago (Abigail K. Spreyer, of counsel), for appellees Edward J. Rosewell et al.

    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Henry A. Hauser, Assistant State’s Attorney, of counsel), for appellees Dunne and Beck.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The incumbent members of the Cook County Board were reelected on November 7, 1978, for new four-year terms scheduled to begin on December 4, 1978. A special meeting of the board was held on November 27, 1978, and the board adopted two resolutions increasing the compensation of various Cook County officers and the members of the board, to take effect on December 4, 1978, the date their new terms began.

President Dunne vetoed these resolutions the next day. The board overrode his veto on November 29, 1978. The final appropriation ordinance for the new fiscal year beginning on December 4, 1978, was adopted on February 20, 1979. This ordinance provided for the raises adopted in the resolutions. On February 26, 1979, President Dunne exercised a partial line item veto which had the effect of reducing, but not eliminating, the raises as provided in the resolutions.

Three separate lawsuits arose from these facts. In Winokur v. Rosewell, the circuit court of Cook County, ruling on a constitutional challenge by plaintiff, Marshall E. Winokur, representing the class of taxpayers, held that the raises were valid. In Huppert v. Dunne, another judge of the same court ruled, in a petition for mandamus brought by a member of the board to compel President Dunne and County Board Comptroller Beck to pay the raises authorized, that the board’s action violated section 38 of “An Act to revise the law in relation to counties” (the Counties Act) (Ill. Rev. Stat. 1977, ch. 34, par. 304). The petition for mandamus was accordingly dismissed. The third suit, Hansen v. Dunne, a petition for mandamus and declaratory judgment, prayed for a judgment declaring President Dunne’s partial line item vetoes null and void and for a writ of mandamus directing President Dunne to approve payment of the raises as authorized in the resolutions. The third suit also involved the board’s adoption of an ordinance, on February 5, 1979, to reduce the percentage of votes necessary to override a veto by the president of the board. President Dunne vetoed this measure on February 13, 1979, and the members argue that his action was untimely and, in the alternative, that the prior percentage necessary to override the veto, 80%, is unconstitutional. The appropriate relief was requested. In this suit a third judge of the circuit court of Cook County ruled that the pay raises were invalid on statutory and constitutional grounds and that President Dunne’s line item vetoes were valid. The court also upheld the veto of the ordinance reducing the percentage of votes needed to override a veto and upheld the constitutionality of the higher percentage figure. We granted a direct appeal to this court (see 73 Ill. 2d R. 302(b)) and consolidated these cases.

The first issue, whether the Board’s action can stand in view of section 38 of the Counties Act is easily resolved. Section 38 states:

“The time of fixing the compensation of county officers, which compensation is to be fixed by the county board, shall be at the meeting' of such Board next before the regular election of the officers whose compensation is to be fixed; but in case where such compensation is not fixed, the Board shall proceed, at the next regular or special meeting thereafter, to fix such compensation.” (Ill. Rev. Stat. 1977, ch. 34, par. 304.)

Section 61.2 of the Counties Act (Ill. Rev. Stat. 1977, ch. 34, par. 906) states that “regular” meetings “shall” be held “on the first Monday of December, January, February, March, June, and September in each year *** .” Rule 3 of the Cook County Board, “adopted *** pursuant to the authority granted to the County of Cook as a home rule unit,” states that “[t] he Board of Commissioners shall hold regular meetings on the first and third Monday of each month.”

After the general election, held on November 7, 1978, the board met on November 20 (the third Monday in November), November 27 and November 29. The new term began on December 4. The compensation resolutions were adopted at the meeting of November 27. Defendants Dunne and Beck contend that in view of section 61.2, the November 20 meeting was a special meeting for purposes of section 38. In the alternative, they contend that if salary action is not taken before an election, section 38 allows such action only at the first meeting after the election. If we accepted either argument, the board’s action was illegal. Applying the first analysis suggested, the board’s action was illegal because the November 20 meeting, at which no salary action was taken, was the first special meeting held after the election, and section 38 does not allow salary action to be taken after the first special meeting subsequent to the election. Under the second suggested analysis, the board’s action was illegal because even if the November 20 meeting were to be considered a regular meeting, no action was taken at this meeting. As the defendants argue in their brief:

“The statutory language [section 38] clearly permits only two opportunities to consider a pay raise, once immediately before the election, once immediately after. The use of the word ‘next’ in the statute, together with the singular ‘meeting’ clearly supports this conclusion. Moreover, the use of the alternate ‘regular or special’ results from the eventuality that only a special meeting might be possible under the statutory provisions and rules of the Board relating to meetings.”

Plaintiffs in the Hansen and Huppert cases argue that the board’s Rule 3, as an exercise of the home rule power, overrides section 61.2 and that section 38 allows salary action to be taken at either of two times after an election: either at the first regular meeting after the election or at the first special meeting after the election. Under this analysis, the failure of the board to take action at the meeting of November 20 did not prevent its action at the meeting of November 27.

We decline to resolve this statutory ambiguity at this time, for in Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 393, we held that “acts taken by the governing board of a home rule unit” were to be deemed as an exercise of its home rule power provided under article VII, section 6, of the 1970 Constitution. The salary resolutions here obviously pertain to its government and affairs. (Ill. Const. 1970, art. VII, sec. 6(a); see generally Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643 (1964).) Insofar as these resolutions conflict with section 38, enacted well before the 1970 Constitution, they must prevail. (See Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, 392-93, and cases cited therein.) No case has been cited by the parties or found by us which would support upholding section 38, as defendants Dunne and Beck have urged, as a merely procedural limitation upon home rule units requiring them to explicitly state their opposition to it before enacting a replacement procedure.

We must turn, then, to the contention of plaintiff Winokur and defendants Dunne and Beck that the raises violated article VII, section 9(b), of the Illinois Constitution which reads:

“An increase or decrease in the salary of an elected officer of any unit of local government shall not take effect during the term for which that officer is elected.” (Ill. Const. 1970, art. VII, sec. 9(b).)

This section replaced similar provisions of the Constitution of 1870. See, e.g., Ill. Const. 1870, art. IX, sec. 11; art. X, sec. 10.

The 1870 provisions have been the subject of much litigation, primarily concerning which officials were within its scope. (See e.g., Barnett v. County of Cook (1926), 320 Ill. 227; Peabody v. Forest Preserve District (1926), 320 Ill. 454; People ex rel. Lyle v. City of Chicago (1935), 360 Ill. 25; People ex rel. Ruesch v. Hire (1950), 406 Ill. 341.) These provisions generally were understood to make the public officers’ term of office the dispositive event which prevented further salary adjustments.

Thus, in County of Cook v. Sennott (1891), 136 Ill. 314, it was held that an elected clerk of the probate court taking office in December 1886 for a four-year term could not have his salary increased by legislation taking effect in July 1887. In Peabody v. Forest Preserve District (1926), 320 Ill. 454, it was held that the fees, salary or compensation of a municipal officer “elected or appointed for a definite term of office” shall not be “increased or diminished during such term.” (320 Ill. 454, 463.) In People ex rel. Lyle v. City of Chicago (1935), 360 Ill. 25, 29, it was similarly held that a city council was without authority to change municipal judges’ salaries “during the respective terms for which they were elected.” (360 Ill. 25, 29.) And in Foreman v. People ex rel. McEwan (1904), 209 Ill. 567, a judge elected in 1899 for a six-year term at a salary of $7,000 resigned before his term ended; a special election was held to fill this vacancy after an act to raise the judicial salaries took effect. The court held that the prohibition referred to terms of office and not to when an individual judge was elected. See also Purcell v. Parks (1876), 82 Ill. 346; Wolf v. Hope (1904), 210 Ill. 50; People ex rel. Judge v. Board of Commissioners (1913), 260 Ill. 345; Barnett v. Cook County (1926), 320 Ill. 227; Peabody v. Russel (1922), 301 Ill. 439; Brissenden v. Howlett (1964), 30 Ill. 2d 247.

Plaintiff Winokur and defendants Dunne and Beck primarily rely upon the rationale expressed in People ex rel. Holdom v. Sweitzer (1917), 280 Ill. 436, a case we find inapposite. There a pay raise voted by the General Assembly after the election of certain judges was held inapplicable for the term for which they had been elected. The issue was complicated by the absence of any statutory or constitutional provision stating when the judges’ terms began. The court resolved this complication by holding that the judges’ terms began on the date of their election, and the appellate court, in two cases similar to the one at bar here, has held Sweitzer’s reasoning inapplicable on that basis. See Smith v. County of Bureau (1926), 241 Ill. App. 117; Winokur v. Bakalis (1980), 84 Ill. App. 3d 922, appeal denied (1980), 81 Ill. 2d 600.

Sweitzer involved two constitutional provisions of article VI, sections 16 and 25, of the 1870 Illinois Constitution which were enacted to preserve the independence of the judiciary by insulating it from legislative salary adjustments. (280 Ill. 436, 442; 1870 Proceedings 1015-20; 1058-60.) The court, early in the opinion, explained its reasoning:

“The constitution expressly prohibits the legislature from increasing the salaries of circuit judges, and, in fact, of all State officers, during the terms for which they were elected. The theory of the framers of the constitution was to make the three branches of government, the legislative, executive and judicial, separate and independent of each other, as far as possible. The power to fix the salaries of State officers is in the legislative branch of the government, the duty to enforce acts of the legislature is in the executive branch, and the power to construe the acts of the legislature is in the judiciary. The acts of the officers of each branch, while such officers are in power, should not be made to depend upon or be influenced by the acts of another branch, nor should there be anything in the conduct of either that would even give rise to a suspicion of such a thing as coercion by reducing salaries or a reciprocal interchange of favors by increasing salaries, hence the reason for the constitutional provision putting it beyond the power of the legislature to increase or diminish the salaries of State officers in office and in power.” 280 Ill. 436, 442.

Authors Braden and Cohn point out in their study of the 1870 Constitution, prepared for the delegates to the 1970 constitutional convention, that “in the welter of litigation the principles [involved in the salary-limitation provisions of the 1870 Constitution] sometimes seem to be forgotten.” (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 476 (1969).) These authors differentiate the separation of powers principle justifying a salary limitation from a second principle also justifying such a limitation: “that a man ought not to be able to increase his own salary.” (G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 477-78 (1969).) Utilizing Braden and Cohn’s analysis, we find, from the excerpt of Sweitzer quoted previously here, that the rationale of Sweitzer is grounded upon the separation of powers principle.

It is true that the Sweitzer court stated “that there is just as much reason for a constitutional provision prohibiting an increase in the salaries of officers who have been elected to office and who are sure of holding office but whose terms have not yet commenced, as there is prohibiting an increase in salaries of those actually in office.” (280 Ill. 436, 442-43.) This issue, however, was not briefed by the parties in Sweitzer and conflicts with this court’s holding in Foreman v. People ex rel. McEwan (1904), 209 Ill. 567. Nor does this statement, as applied to officials who necessarily have to vote on their own salaries, because no other branch of government could do so, logically follow from the separation of powers rationale by which it was immediately preceded. Finally, whether State or local officials who necessarily have to set their own level of compensation could set it during a term for which they had been elected, but which would only take effect during a subsequent term for which they also had been elected was an issue not before the Sweitzer court.

Turning to this issue, we note that four years after the 1870 convention, the General Assembly passed the previously discussed section 38 (Ill. Rev. Stat 1874, ch. 34, par. 38). This section, which was not brought to the attention of the court in Sweitzer, is probative of the intent of the 1870 framers as a contemporaneous and long standing construction of the Constitution (see Furlong v. South Park Commissioners (1930), 340 Ill. 363, 369; 2A A. Sutherland, Statutes and Statutory Construction secs. 49.03, 49.04 (4th ed. 1973).) This statute, as noted, provided that county boards could set their own compensation for a new term either before or after the election preceding that term. It is significant, we think, that in the more than 60 years after the Sweitzer decision, section 38 has never been challenged.

In addition, according to salary resolutions submitted on the record in the Winokur case, since 1962 the county board has set its salary at a meeting held after the election for a new term but before it began. Each time several members of the board had been reelected and were, therefore, voting to increase their own salaries.

This custom was apparently found unobjectionable by the delegates to the 1970 constitutional convention. They enacted a provision similar to those types of limitations contained in the 1870 Constitution. It indicated no dissatisfaction with section 38 or with the custom of the Cook County Board, a custom that continued after the adoption of the 1970 Constitution.

Plaintiff Winokur argues that section 9(b) of article VIII of the 1970 Illinois Constitution is similar to the parallel provision in the legislative article (Ill. Const. 1970, art. IV, sec. 11) and that the convention debates concerning that section support his position. Quoting from delegate Laurino, he argues that the constitutional provision protects against legislators running “wild with their own salaries, because it needs an intervening election before it becomes effective.” (4 Record of Proceedings, Sixth Illinois Constitutional Convention 2705 (hereinafter cited as Proceedings.) The remarks of other delegates, however, indicate the difficulty of adopting this construction of section 9(b) on this basis. See, e.g., 4 Proceedings 2889 (remarks of delegate Netsch: “[delegates supporting the provision] want the legislators to be put in a position where they cannot vote themselves a salary increase that would be effective immediately but could take effect only at the conclusion of their term”; remarks of delegate Parkhurst: “Presently section 10 says no changes shall become effective during the term”; 4 Proceedings 2890 (remarks of delegate Elward: “At the present time — and as I read this language, it will be so in the future — members of the Senate would have to wait [for a salary increase] until the end of their term.”) See also Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 221; People ex rel. Cosentino v. County of Adams (1980), 82 Ill. 2d 565.

We cannot conclude from this record that the candidates for reelection 'to the Cook County Board misled the public during the campaigns they waged for office, thereby receiving a false mandate. Nor can we conclude from the facts submitted that the county board’s action evidences anything but an effort to set an appropriate level of compensation.

The practice of the Cook County Board in setting salaries after the election for a new term but before it began has been well-established and, up to now, complaint free. The potential for abuse, such as it is, identified by those who challenge these resolutions, has always existed. Experience with these raises or some future raises may suggest to the electorate or their representatives that further controls upon the discretion of the county boards in setting their salaries are necessary or desirable. Until that time, and in the absence of any evidence indicating something other than an effort to set an appropriate level of compensation, we hold that section 9(b) of article VII of the 1970 Constitution does not prohibit the actions taken here by the Cook County Board.

We also agree with the commissioners that President Dunne’s line item vetoes are void. The parties agree that the Cook County Board president’s veto authority is found in section 61.4 of the Counties Act, which states:

“Such veto by the president may extend to any one or more items or appropriations contained in any resolution making an appropriation, or to the entire resolution; and in case the veto only extends to a part of such resolution making an appropriation, the residue thereof not embraced within the veto shall take effect ***.” (Ill. Rev. Stat. 1977, ch. 34, par. 908.)

From the quoted section of the statute, it can be seen that the extent of the veto power, set out in the first clause, encompasses resolution items or appropriations or may extend to the entire resolution. The second clause explains the consequences of a veto of less than the entire resolution.

Language similar to section 61.4 established the veto power of the Governor of Illinois in the 1870 Constitution:

“Bills making appropriations of money out of the treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and sections, and if the Governor shall not approve any one or more of the items or sections contained in any bill, but shall approve the residue thereof, it shall become a law as to the residue in like manner as if he had signed it.” (Ill. Const. 1870, art. V, sec. 16.)

This constitutional provision was construed by this court to disallow partial line item vetoes in Fergus v. Russel (1915), 270 Ill. 304, 350-52:

“The Governor is authorized to express his disapproval of any item or section contained in any appropriation bill only in the manner provided by the constitution. He must either approve or disapprove of the item as a whole. ***
***
*** The action of the Governor in attempting to veto portions of the various items indicated in the veto message was void and without any effect whatever.”

And historically, a veto authority has not been understood to encompass the power to exercise a partial line item veto, nor is there evidence in the record that any county board president has ever before even attempted to exercise such power. Thus the delegates to the 1970 constitutional convention found it necessary to completely alter the gubernatorial veto provision in order to provide such power. (See Ill. Const. 1970, art. IV, sec. 9(d).) This section now reads:

“(d) The Governor may reduce or veto any item of appropriations in a bill presented to him. Portions of a bill not reduced or vetoed shall become law. An item vetoed shall be returned to the house in which it originated and may become law in the same manner as a vetoed bill. An item reduced in amount shall be returned to the house in which it originated and may be restored to its original amount in the same manner as a vetoed bill except that the required record vote shall be a majority of the members elected to each house. If a reduced item is not so restored, it shall become law in the reduced amount.”

No comparable change has been made in section 61.4.

The plaintiffs in Hansen v. Dunne filed two additional complaint counts for declaratory judgment (Ill. Rev. Stat. 1977, ch. 110, par. 57.1) relating to an ordinance passed which would reduce the percentage of votes needed to override a veto by the president of the board. Although an actual controversy has been alleged because it is contended that President Dunne’s veto of that ordinance was invalid, while President Dunne claims that it was valid, it has not been shown what “personal claim, status, or right” would be affected by this controversy. (See Underground Contractors Association v. City of Chicago (1977), 66 Ill. 2d 371, 375-76; Illinois Gamefowl Breeders Association v. Block (1979), 75 Ill. 2d 443, 450-51; Griffin v. County of Cook (1938), 369 Ill. 380, 398.) Therefore we hold that this is not an appropriate case in which to decide this controversy. A different case would be presented if the validity of some ordinance in which these plaintiffs had an interest depended upon the percentage of votes necessary to override a veto.

For the foregoing reasons, the order of the circuit court of Cook County in Winokur v. Rosewell is affirmed and the cause remanded for entry of an appropriate order; orders of the circuit court of Cook County in Huppert v. Dunne and Hansen v. Dunne are reversed and the cause remanded with directions to grant the relief requested in accordance with this opinion.

Affirmed and remanded in Winokur v. Rosewell; reversed and remanded in Huppert v. Dunne and Hansen v. Dunne.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53204.
    PATRICK CORIELL, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Electro-Motive Division, General Motors Corp., Appellee).

      Opinion filed December 1, 1980.

      John P. McAuliffe and Richard J. Leamy, Jr., of Wiedner & McAuliffe, of Chicago, for appellant.
    Thomas D. Nyhan and Ellis A. Ballard, of Pope, Ballard, Shepard & Fowle, of Chicago (Otis M. Smith and Donald Knapp, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Patrick Coriell, filed with the Industrial Commission an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) alleging a work-related accident while employed by respondent, Electro-Motive Division of General Motors Corp. An arbitrator awarded compensation, but upon review the Commission reversed, finding that claimant failed to prove he sustained accidental injuries arising out of and in the course of his employment. The circuit court confirmed the Commission’s action, and claimant appealed to this court pursuant to our Rule 302(a). 73 Ill. 2d R. 302(a).

Claimant testified that on July 9, 1975, he hurt his back in the area of his left shoulder while swimming during his vacation. He returned to work on July 11 and complained to his foreman of this injury, as a result of which he was put on light duty doing bench welding. He further testified that on Monday, July 14, while setting up his work station he lifted a 55-pound roll of welding wire. As he turned with the wire held about chest high, he stepped on an angle iron, lost his balance, and twisted his back. He felt a sharp pain across his lower back and sat down for some time. What steps claimant then took to inform his employer of this injury are in dispute. Claimant testified that, during his work shift on July 14, he informed his regular foreman, and the foreman of the department to which he had been “farmed out,” that he injured his back lifting the wire. The respondent called the regular foreman and the temporary foreman. Both testified that claimant did not mention the accident to them on July 14. It is, however, undisputed that on the following day he requested permission to visit the medical department at work and while on his way there was stopped by a plant superintendent. His foreman approached and heard claimant say he was going to the nurse because he hurt his back lifting wire. The foreman told him he thought claimant hurt it on vacation. Claimant responded that he hurt it then, too. Thereafter, he was off work for an extended period, was hospitalized for his condition, and underwent a lumbar laminectomy.

Dr. Greenwald, who had performed the laminectomy, was called by respondent and testified that claimant had given a history of low-back pain. He had stated that he initially injured his lower back in a swimming accident in July 1975, reinjured it in mid-July, and was hospitalized by his family physician, Dr. Bass, on July 16, 1975.

Dr. Irwin Barnett was called by claimant and testified that he examined claimant on two occasions. In answer to a hypothetical question posing substantially the same facts testified to by claimant, Dr. Barnett stated it was his opinion that there might or could be a causal connection between the July 14, 1975, work incident and the present state of ill being. On cross-examination respondent’s counsel asked Dr. Barnett a hypothetical question with differing facts. The doctor was now to assume that the hypothetical individual had injured his low back in a swimming accident and to further assume that there was no work accident on July 14, 1975. Counsel for respondent assured the arbitrator that evidence would later be adduced which would support this set of facts, noting that claimant could move to strike this question and answer if at the close of the evidence such facts were not of record. Dr. Barnett was permitted to answer, stating that on these facts it was his opinion that there might or could be a causal relationship between the swimming accident and the present state of ill being.

On redirect examination claimant attempted to further vary the hypothetical. This time the expert was to assume the swimming injury to the low back and also the July 14, 1975, work accident. Respondent’s objection to this question was sustained on the ground claimant could not pose a hypothetical fact impeaching his own testimony. Specifically, because he had testified that he had hurt his shoulder not his low back while swimming, he could not have the doctor assume aggravation of a low-back swimming injury by a work-related low-back injury. At the close of evidence before the arbitrator, claimant did not move to strike the hypothetical question posed by respondent.

A medical report by Dr. Leo Frederick Miller, who examined claimant, was also introduced into evidence by respondent. That report indicated that claimant had given a history of injuring his shoulder while on vacation and a few days later suffering a work incident involving his lower back.

Claimant urges here that the rulings on the hypothetical questions constituted reversible error. We do not agree. The Commission operates under common law rules of evidence: “[T] he rules of evidence shall apply in all proceedings had before the Industrial Commission, either upon arbitration or review” (Rules Governing Practice Before the Industrial Commission Under the Workmen’s Compensation and Occupational Diseases Act, Rule 3 — (5) (1980)); and we are thus guided by ordinary rules of evidence in civil cases.

The hypothetical question put to an expert witness on direct examination should be so framed as to state the facts which the interrogating party claims have been proved and for which there is support in the evidence. (2 Jones, Evidence sec. 14:26, at 651-52 (6th ed. 1972); McCormick, Evidence sec. 14, at 33 (2d ed. 1972). This court has held that counsel propounding a hypothetical question has a right to ask it incorporating only the elements favoring his theory which appear in the evidence. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171; Gus T. Handge & Son Painting Co. v. Industrial Com. (1965), 33 Ill. 2d 201; see 18 Ill. L. & Prac. Evidence sec. 330 (1956).) On cross-examination the opposing party may substitute in the hypothetical those facts in evidence which conform with his theory of the case. (Wirth v. Industrial Com. (1974), 57 Ill. 2d 475.) Because in many instances the opposing party has not had a chance to present his case in chief at that point, the hypothetical question on cross-examination may, at the discretion of the trial court, include facts not yet in evidence if there is an assurance by counsel that such facts will later be established. (Needy v. Sparks (1977), 51 Ill. App. 3d 350; McCormick, Evidence sec. 14, at 33 (2d ed. 1972).) The party whose witness is being cross-examined is protected from a failure to supply those facts in that the trial court or an arbitrator may reserve ruling on the issue until the close of evidence, or admit it, as occurred here, subject to a later motion to strike if the missing evidence is not supplied. (Jamison v. Lambke (1974), 21 Ill. App. 3d 629.) The arbitrator did not abuse his discretion by admitting the testimony in the light of the assurances by counsel for respondent that the new facts in the hypothetical would be forthcoming when respondent’s case in chief was presented. Particularly is this true in a nonjury hearing. If claimant believed those facts were not supplied, his remedy was a motion to strike the objected-to testimony at the close of respondent’s case.

Nor can we say that prejudicial error resulted from the action of the arbitrator in refusing to permit the hypothetical question posed by claimant on redirect examination. Dr. Barnett had already expressed his opinion that he believed a causal connection might or could exist between claimant’s ill being and the low-back injury as claimant testified it occurred. The difficulty is that the Commission apparently did not credit claimant’s testimony, and permitting Dr. Barnett to answer the hypothetical question posed on redirect examination would not have eliminated that problem. The arbitrator’s refusal to permit the answer did not, in our judgment, constitute reversible error.

The only issue remaining is whether the Commission’s decision is against the manifest weight of the evidence. The rule is settled that courts will not overturn decisions of the Commission unless they are contrary to the manifest weight of the evidence even though the court might have arrived at a different conclusion were it deciding the case initially. (United Airlines, Inc. v. Industrial Com. (1980), 81 Ill. 2d 85; Phelps v. Industrial Com. (1979), 77 Ill. 2d 72; Walden v. Industrial Com. (1979), 76 Ill. 2d 193.) It is the function of the Commission to draw permissible inferences from disputed evidence and resolve contested facts. (Long v. Industrial Com. (1976), 62 Ill. 2d 289.) We cannot say that the manner in which it has done so here is contrary to the manifest weight of the evidence.

We accordingly affirm the judgment of the circuit court of Cook County.

Judgment affirmed.


text:
    (No. 52417.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GLENN D. WARMACK, Appellee.

      Opinion filed December 1, 1980.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, and Marcia B. Orr and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Glenn D. Warmack, was charged by information with the murder and attempted armed robbery of Willie D. King. In a jury trial in the circuit court of Cook County, defendant was found guilty of both offenses and sentenced to concurrent terms of imprisonment of 30 to 75 years for murder and 5 to 15 years for attempted armed robbery. On appeal by defendant, the appellate court held that the circuit court had erred in limiting defendant’s impeachment of a prosecution witness, and it reversed the judgments and remanded the cause for a new trial. (73 Ill. App. 3d 783.) The appellate court also held that a prosecutor had made improper comments in his opening argument and that the circuit court had erred in admitting a mug shot of defendant, but the appellate court expressed no opinion on whether this was sufficiently prejudicial to require a new trial. We granted the State leave to appeal.

On May 28, 1976, at approximately 11:20 a.m., Willie D. King was killed in his record store at 5921 South Halsted Street in Chicago. According to Martha Morrow, a woman who was in the store at the time, the killer was a young black man, approximately 18 to 24 years of age, and he approached the store on “a yellowish bike,” wearing a billed blank cap, a dark short jacket, dark pants, and a gold hoop-style earring. At trial, Miss Morrow was shown a dark waist-length jacket, a dark pair of pants, and a black cloth cap with a small bill, and she identified these items as the clothes worn by the killer. She also identified defendant, seated in the courtroom, as the killer.

According to Miss Morrow, defendant had entered the store, asked Willie King for a Fats Domino record, and grabbed her as King began to look for the record. Defendant pointed a gun at King and said, “Don’t move.” Miss Morrow looked up into defendant’s face, and as King turned, defendant shot him once. The bullet entered King’s chest, lacerated King’s heart and a lung, and resulted in massive internal bleeding and death. According to Miss Morrow, defendant said “Money” after shooting King. Defendant then fled from the store, mounted his bicycle, and rode south toward 60th Street.

Martha Morrow further testified that two police officers visited her at her home on May 31, 1976, a few days after the killing. The officers showed her eight photographs of young black men, and she identified one individual pictured as the killer. At trial, she was again shown the eight photographs, and she indicated that the one that she had picked earlier was that of defendant.

On cross-examination, Miss Morrow acknowledged that, of the eight men pictured, only defendant wore his hair in braids; that only defendant’s picture had no name on the back; that she had told a police officer at the scene that the killer was between 5 feet 4 inches and 5 feet 6 inches tall and weighed between 140 and 160 pounds. The record indicates that defendant was 6 feet tall and 157 pounds when he surrendered on June 1, 1976. Defense counsel asked Miss Morrow to estimate defendant’s height, but a prosecutor asked that the jury first be informed “that Mr. Warmack is wearing approximately, my estimation, four inch heels and about an inch platform on the shoes.” At the direction of the court, defendant walked in front of the jury, and Miss Morrow estimated his height to be 6 feet 4 inches or 6 feet 5 inches.

Martha Morrow also acknowledged on cross-examination that she once told the police that the killer wore a leather jacket; that she could not tell if the killer had long or braided hair because he wore a cap but that some hair was hanging from below the bill of the cap; and that the police had actually brought the eight photographs to her home twice on May 31, 1976, but that she did not pick out any on their first visit. Miss Morrow also estimated that defendant was in the store “a minute or more” and that she looked at his face a second or two before he shot King.

On redirect examination, Miss Morrow explained that she first identified herself as Denise Brown and failed to pick out defendant’s picture because she did not want to get involved and because she was afraid of what defendant might do to her.

Prior to the testimony of its next witness, Edna Scott, the State moved to prohibit the impeachment of Scott with her 11-year-old felony conviction of attempted robbery and a 9-year-old misdemeanor conviction of soliciting for prostitution. The State argued that the attempted-robbery conviction lay beyond the 10-year limit enunciated in People v. Montgomery (1971), 47 Ill. 2d 510, and also that the prejudicial effect of evidence of that conviction outweighed its probative value. The State further argued that evidence of either the attempted robbery or solicitation conviction would be improper because of the witness’ rehabilitation. Defense counsel argued in response that both convictions were proper subjects for impeachment and that the passage of 10 years between conviction and a subsequent trial is not alone determinative. Following arguments, the court granted the State’s motion as to both convictions, and it specifically rejected defense counsel’s contention that the solicitation conviction evidenced dishonesty on the part of Miss Scott. Defendant moved for a declaration of mistrial, but the motion was denied. We are concerned on appeal with only the attempted-robbery conviction. Defendant does not question the circuit court’s ruling as to the solicitation conviction, apparently since that offense was not “punishable by death or imprisonment in excess of one year” and did not involve “dishonesty or false statement.” People v. Montgomery (1971), 47 Ill. 2d 510, 516, quoting Proposed Federal Rule of Evidence 609(a).

When called to the stand, Edna Scott testified that she was in a drugstore at 5900 South Halsted Street shortly before the killing. She left the drugstore with the intention of going to King’s record store, but as she approached it, she heard a shot, and a young black man ran out. Miss Scott estimated that the man was 5 feet 9 inches tall, 155 to 160 pounds, and in his 20’s, and she said that he was wearing a black cap, black pants, and a black waist-length jacket. When shown the articles of clothing previously shown to Miss Morrow, Miss Scott identified them as the clothes worn by the man. According to Miss Scott, the man jumped on a bicycle after leaving the store, and he rode south to 60th Street and then east on 60th.

The following day, Edna Scott went to a police station to look at pictures, and she picked out one as that of the man who had run out of King’s record store. She pointed out that the man pictured wore his hair in little braids as did the man who ran out of the store. A couple of days later, Miss Scott viewed six men in a lineup. At trial, she was shown a picture of the lineup, and she circled the head of the person she picked. She then identified defendant as that person.

Ray Luth, an investigator for the Chicago Police Department, was next called by the State to testify. It was Luth and another investigator, James Kehoe, who brought the eight photographs to Martha Morrow on May 31, 1976. Luth explained that, when Miss Morrow was first shown the photographs, she hesitated when looking at defendant’s picture, but she failed to identify any of the men pictured as the killer. Luth and Kehoe left, returned one hour later, and Martha Morrow then identified defendant as the killer. Miss Morrow indicated to Luth, as she had testified, that she did not first identify defendant because she was frightened.

On June 1, 1976, Luth and Kehoe visited Margaret Hoffman, defendant’s aunt, in her home at 604 West 61st Street, approximately three or four blocks from the scene of the killing. Luth testified that he asked Mrs. Hoffman if she had any of defendant’s clothes and if he could have them. Mrs. Hoffman showed Luth where defendant’s clothes were located, and he recovered a black cap, a dark blue waist-length jacket, a pair of black pants, a short-sleeved maroon sweatshirt, and a pair of brown and green suspenders. At trial, Luth verified that the articles of clothing produced by the State for the trial were, in fact, those taken from Mrs. Hoffman’s home.

On cross-examination, Luth acknowledged that the picture shown Martha Morrow, actually a mug shot of defendant, was dated December 4, 1975, almost six months prior to the killing. On re-cross-examination, defense counsel asked if the date on the mug shot meant that the picture was taken in 1975, and Luth responded affirmatively.

Kenneth Hamilton was also called by the State, and he testified that he was in the vicinity of 61st and Halsted or 61st and Union, a couple of blocks east of Halsted, on the morning of the killing. He was wearing orange pants, a green leather jacket, and a black cap. He saw defendant, whom he knew, riding a bicycle near 61st and Union, coming from the north. After exchanging greetings with defendant, Hamilton borrowed defendant’s bicycle but was stopped by police within a minute. The police took Hamilton to the scene of the killing, and witnesses there told police that Hamilton was not the killer.

On cross-examination, Hamilton stated that the bicycle was not black or yellow at all, perhaps with the exception of the seat and handle grips, which may have been black. When Hamilton was brought to the scene, he thought that witnesses were saying that the killer was darker and taller than he, but he indicated at trial that he “wasn’t able to hear that well.”

Following Hamilton’s testimony, the court was presented a stipulation indicating that defendant was 20 years old at the time of the killing and 21 years old at the time of trial. The State also moved for the admission of various exhibits, including the mug shot of defendant. Defense counsel objected to admission of the mug shot on the ground that it included an arrest date of December 4, 1975, thereby indicating an arrest prior to the date of the offenses now charged. The State refused to delete the arrest date, and in support of its effort to have the mug shot admitted, the State cited People v. Maffioli (1950), 406 Ill. 315. The court initially reserved its ruling on the question but later admitted the mug shot over strenuous objection by the defense.

James Kehoe, investigator for the Chicago Police Department and partner of Ray Luth, was the first witness called by the defense. He revealed that Edna Scott had once identified a man by the name of Earl “Mad Dog” Jackson as the killer when shown photographs in a police station.

On cross-examination by the State, Kehoe testified that Miss Scott, after identifying Jackson, wanted to see Jackson in person to make sure that he was the killer. Jackson was not apprehended, and at a subsequent viewing of a lineup, Miss Scott identified defendant as the killer. Kehoe acknowledged, upon further questioning by defense counsel, that Jackson was not in that lineup.

Thomas Bennett, a Chicago police officer, was also called by the defense and testified that Martha Morrow had once said that the killer’s bicycle was black. As noted earlier, Miss Morrow testified at trial that the bicycle was “yellowish.”

John Wesley Gentry was the final witness called by the defense, and he identified himself as the son of Margaret Hoffman and the cousin of defendant. Gentry did not live at his mother’s home, but he estimated that defendant slept there five to seven nights a week. When shown the articles of clothing produced for the trial by the State, Gentry identified a pair of suspenders as his. He said that the pants, jacket and shirt belonged to someone named Ramon, a coworker. He explained that Ramon and he had changed clothes at his mother’s home approximately two days after the killing, and the clothing was left there. Gentry said that he did not know who owned the cap, and he did not think that the clothes would fit defendant.

On cross-examination, Gentry said that Ramon is 5 feet 9 inches tall and 153 pounds, and he estimated his waist size to be 30 inches. Gentry said that he did not bring Ramon to court to verify his ownership of the clothes because no one asked him to do so.

In rebuttal, the State moved to . require defendant to don the clothing it had produced, with the exception of the cap, citing Holt v. United States (1910), 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2, People v. Tomaszek (1964), 54 Ill. App. 2d 254, cert. denied (1965), 382 U.S. 827, 15 L. Ed. 2d 72, 86 S. Ct. 62, and Supreme Court Rule 413(a)(v) (73 Ill. 2d R. 413(a)(v)). The State argued that no self-incrimination problem was present because that privilege only prohibits testimonial compulsion, and it argued that such a demonstration would be relevant to the claim of the defense that the clothing did not fit defendant. Over strenuous objection by the defense, the court granted the State’s request.

Before the jury viewed the demonstration, the State also asked the court to allow an assistant State’s Attorney to hold the pants up to his waist. The attorney was 5 feet 9 inches tall, the same height as Ramon, alleged by the defense to be the owner of the pants. The purpose of this demonstration, according to the State, would be to show the excessive length of the pants on a man of that size, but the court denied the request.

With defendant wearing the pants and jacket and standing in front of the jury box, the court called the jury in, allowing it to view defendant in that clothing. Although the record contains no comment at this time by the court or counsel as to how the clothing fit, defense counsel expressed his opinion in closing argument that the sleeves on the jacket were too long on defendant. Following this demonstration, the State rested its case. A request by defense counsel that he try on the jacket before the jury was denied.

Following its deliberations, the jury returned a verdict of guilty of both murder and attempted armed robbery. Defendant filed a motion for a new trial alleging, inter alia, error in the court’s restriction of the impeachment of Edna Scott, in the admission of defendant’s mug shot, and in requiring defendant to model the pants and jacket produced by the State. The motion was denied, and the court proceeded to sentence defendant to concurrent terms of imprisonment of 30 to 75 years for murder and 5 to 15 years for attempted armed robbery. The appellate court reversed and remanded, and this appeal by the State followed.

The basis of the appellate court’s reversal was its conclusion that, under People v. Ray (1973), 54 Ill. 2d 377, the circuit court committed prejudicial error in prohibiting the defense from impeaching prosecution witness Edna Scott with her 11-year-old attempted-armed-robbery conviction. Under our recent decision in People v. Yost (1980), 78 Ill. 2d 292, 294-95, this conclusion of the appellate court was in error. The appellate court was, as we said in Yost, understandably misled by the decision in Ray.

In Yost, we reviewed the subject of impeachment by prior conviction, and we held that the rule set out in People v. Montgomery (1971), 47 Ill. 2d 510, is the rule to be applied. That rule states, in pertinent part:

“ ‘Rule 609. Impeachment by Evidence of Conviction of Crime
‘(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.
‘(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.’ ” (47 Ill. 2d 510, 516, quoting proposed Federal Rule of Evidence 609(b).)

In People v. Ray (1973), 54 Ill. 2d 377, 383, the court mistakenly quoted a different version of proposed Rule 609(b) which provided that evidence of a conviction would not be admissible for impeachment purposes “ ‘if a period of more than 10 years has elapsed since the date of the release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.’ ” In Yost, we explained that this mistaken quotation in Ray “was a regrettable inadvertency” (People v. Yost (1980), 78 Ill. 2d 292, 296), and we held that no deviation from the Montgomery rule was intended.

Under the Montgomery rule, the impeachment of Edna Scott with her 11-year-old attempted-armed-robbery conviction would not be proper. Although punishable by imprisonment in excess of one year and therefore within Montgomery’s general rule of admissibility, the conviction occurred 11 years before trial, did not result in confinement and therefore lay beyond the 10-year limit. Miss Scott was placed on probation as a result of the conviction, and her probationary period extended to within nine years of the trial in this case. Under Yost and Montgomery, however, and unlike the rule mistakenly quoted in Ray, the expiration date of a witness’ probationary period is not a consideration in determining when the time requirements for admissibility are met. The circuit court therefore properly prohibited this impeachment of Miss Scott, and the appellate court erred in reversing defendant’s convictions on the basis of the circuit court’s ruling on this issue.

Defendant argues that Yost be applied prospectively only, but we find no basis for doing so. Yost did not involve the announcement of a new rule, which would raise the question of retroactivity, but rather the reaffirmation of Montgomery.

Seeking to sustain the appellate court’s reversal of his convictions, defendant contends that he was prejudiced by improper argument by the prosecutor and by certain evidentiary errors. Defendant first argues that he was unduly prejudiced by a comment made by a prosecutor during opening argument which attributed to defendant ownership of the clothing produced at trial; defendant claims that the State never proved this assertion at trial. In response to the argument, the appellate court stated: “Although ownership of the clothing could be inferred from the evidence as brought forth at trial, the prosecutor should not have asserted defendant’s ownership in his opening statement in the absence of specific proof at trial. We trust that such comments will be avoided on retrial.” (73 Ill. App. 3d 783, 793.) The post-trial motion of defendant contained in the record does not mention this question, and we are inclined to hold that the argument is waived. (Cf. 73 Ill. 2d R. 366(b)(2)(iii)-) We are troubled by the holding of the appellate court on this point, however, and we consider it to be in the interest of justice to clarify this matter.

A commonly recognized purpose of opening argument is to inform the finder of fact of what the evidence will show. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 197.) We agree with the appellate court that “[i]t is improper for a prosecutor to comment on what testimony will be introduced at trial and then fail to produce that evidence” (73 Ill. App. 3d 783, 793, citing People v. Rogers (1976), 42 Ill. App. 3d 499), but that simply is not what occurred here. Sufficient evidence was presented from which the jury could reasonably infer that defendant owned the clothing, and such circumstantial evidence was sufficient to support the assertions of the prosecutor in his opening argument. Circumstantial evidence can supply the basis for a conviction (People v. Williams (1968), 40 Ill. 2d 522, 526, cert. denied (1969), 393 U.S. 1123, 22 L. Ed. 2d 129, 89 S. Ct. 1004), and opening arguments need not be limited to a discussion of direct evidence. We hold that an opening argument can include a discussion of matters that may reasonably be inferred from the evidence.

On a point also involving the clothing produced at trial, defendant argues that the circuit court erred in forcing him to model the clothing before the jury. Defendant does not allege a violation of his privilege against self-incrimination, and such an argument would not prevail, since no testimonial compulsion was involved. (See, e.g., Holt v. United States (1910), 218 U.S. 245, 252-53, 54 L. Ed. 1021, 1030, 31 S. Ct. 2, 6; People v. Tomaszek (1964), 54 Ill. App. 2d 254, 262-63; see also 73 Ill. 2d R. 413(a)(v).) He argues that fit of the clothing was not at issue, that the demonstration was not relevant to any other issue in the case, and that the demonstration would only serve to show that defendant was one of many people whom the clothes would fit. On this point, we agree with the appellate court that fit and ownership were at issue and that the demonstration would be of some probative value to the jury in answering these questions. Specifically, we note the testimony of the defense witness Gentry that the clothing belonged to someone named Ramon and would not fit defendant. A demonstration that the clothing fit defendant, though not of itself establishing that defendant wore that clothing at the time and scene of the crimes, would be entitled to some weight, to be considered by the jury in conjunction with other corroborative evidence from which the guilt or innocence of defendant could be determined.

People v. Calloway (1979), 79 Ill. App. 3d 668, relied upon by defendant, does not support his position on this issue. The appellate court there found no error on the part of the trial judge in refusing to allow a defense witness to model clothing recovered near the scene of an armed robbery with which the defendant was charged. Two police officers called by the prosecution testified that defendant wore the clothing during the commission of the offense, but the witness testified that the clothing was actually his and that he had forgotten it. Unlike the present case, however, “fit never in fact became an issue” (79 Ill. App. 3d 668, 674), and the appellate court therefore held that the trial judge properly rejected the defendant’s requested demonstration. .The appellate court also pointed out that its function in reviewing evidentiary rulings is to determine whether the trial court abused its discretion (79 Ill. App. 3d 668, 673), and finding that the demonstration requested “would have little or no probative value as to the issue of who was actually wearing the clothes at the time of the offense” (79 Ill. App. 3d 668, 674), the court found no abuse of discretion on the part of the trial judge. Similarly, we find no abuse of discretion on the part of the trial judge here, since he could well conclude that a demonstration would be of some probative value as to facts in dispute, such as fit.

Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt. We do not agree. Defendant was identified by eyewitnesses in photographic displays, a lineup and at trial, and another witness placed defendant near the scene riding a bicycle. Corroborating physical and circumstantial evidence, such as the recovery from defendant’s residence of the clothing identified as having been worn by the killer, further buttressed the State’s case. Significantly, the defense impeached one eyewitness by showing her prior identification of someone other than defendant as the killer, and the defense ably pointed out other weaknesses in the State’s proof. We cannot say, however, that the efforts of the defense created a reasonable doubt of guilt. At best, the defense raised questions of fact and credibility properly left for resolution by the jury. People v. Miller (1980), 79 Ill. 2d 454, 466; People v. Manion (1977), 67 Ill. 2d 564, 578.

Defendant has also argued that the prosecutor’s questioning of Investigator Ray Luth concerning his visit at the home of defendant’s aunt, Margaret Hoffman, was improper because it was conducted in such a way as to allow the jury to infer the hearsay responses of Mrs. Hoffman. This contention was not raised by objection at trial, by post-trial motion, or in defendant’s initial appellate court brief (73 Ill. 2d Rules 341(g), 612(i)), and it is waived. Our review of the sufficiency of the evidence convinces us that this alleged defect is not the sort of apparent defect “affecting substantial rights” that we may notice although not questioned in the trial court. 73 Ill. 2d R. 615(a).

Finally, defendant has argued that the trial judge erred in admitting defendant’s mug shot bearing an arrest date prior to that of the offenses now in question. The error in revealing a prior arrest is obvious, and we agree with defendant on this point. Evidence of the prior arrest was not relevant to any matter in issue, and it should not have been made available to the jury. (People v. Hawkins (1972), 4 Ill. App. 3d 471, 474-75; People v. Williams (1966), 72 Ill. App. 2d 96, 102.) People v. Maffioli (1950), 406 Ill. 315, cited by the State, involved a mug shot with an arrest date subsequent to the date of the offenses charged, and the picture may well have resulted from the defendant’s arrest for those charges. In reviewing what we believe to be the abundant evidence of guilt, however, we have concluded that this error is harmless. We have considered the totality of the evidence presented and can safely conclude that a trial without this error would produce no different result. In this regard, we especially note that defendant’s allegation of prejudice is somewhat speculative. To hold that this error is reversible would require us to presume that the jury recognized the arrest date for what it was, realized that the arrest date preceded the date of the offenses with which defendant was charged, and then adjudicated defendant’s guilt on the basis of this prior arrest rather than the evidence produced at trial. We do not believe that justice requires that this course be taken. (See, e.g., People v. Butler (1974), 58 Ill. 2d 45, 49 (vague and indirect references to a previous arrest for murder held to be harmless since the possibility of an effect on the jury was speculative).) As the appellate court has capably noted in People v. Scarpelli (1980), 82 Ill. App. 3d 689, 697, the concern of a reviewing court is prejudicial error, and the court need not determine that a trial was devoid of error before affirming a conviction. (See People v. Tranowski (1960), 20 Ill. 2d 11, 17, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290.) It is our judgment that no prejudicial error occurred here.

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

Appellate court reversed; circuit court affirmed.