author: CHIEF JUSTICE RYAN

text:
    (Nos. 56536, 56569 cons.
    CATERPILLAR TRACTOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Clyde A. Hoshor, Jr., Appellee).

      Opinion filed May 27, 1983.

    Rehearing denied September 30, 1983.

      Forrest D. Serblin, of Peoria, for appellant.
    Jay H. Janssen, Jerelyn D. Maher, and Kenneth L. Ott, of Peoria, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Clyde A. Hoshor, Jr., filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injuries arising out of and in the course of his employment with Caterpillar Tractor Company (Caterpillar) in East Peoria. Following three hearings, an arbitrator for the Industrial Commission awarded him 200 weeks of lost time benefits, which represents 40% permanent partial disability, $60 for medical expenses to purchase support stockings, and 125 weeks of temporary total disability benefits. The Industrial Commission affirmed the arbitrator’s finding that the claimant had sustained an accidental injury relating to his employment, affirmed the award of 125 weeks of temporary total disability benefits, but set aside the arbitrator’s award of 40% permanent partial disability. Instead, the Commission ordered Caterpillar to provide the claimant with physical and mental rehabilitation.

After the circuit court of Tazewell County confirmed the decision of the Industrial Commission, Caterpillar appealed from the Commission’s finding that a causal connection existed between the accident and the claimant’s injury. The claimant appealed from the provision of the Commission’s order which vacated the award of permanent partial disability. These appeals have been consolidated for our review on direct appeal to this court under Rule 302(a) (73 Ill. 2d R. 302(a)).

The claimant testified that he went to see Dr. William Mosiman, his family physician, on December 2, 1975, concerning lower abdominal pain and a backache which the claimant had been experiencing for several days. Dr. Mosiman prescribed medication, and the claimant returned to work. The next day, December 3, 1975, the claimant was operating a buffing machine when a piece of the spinning buffing pad, which weighed about two ounces or less, broke loose and hit him on the left side of his abdomen slightly above the belt line. The impact left a slight abrasion which began to scab the next day and healed within a few days. The claimant did not seek first-aid treatment, but he informed a trainee foreman of the occurrence. He finished his shift and continued to work for the next week.

On December 13, 1975, the claimant reported to Caterpillar’s first-aid office complaining of back pain. He did not relate his pain to a work injury. On December 15, he again saw Dr. Mosiman, and the next day he was admitted to Proctor Community Hospital to determine the cause of his back and abdominal pain. Intravenous pyelograms revealed the existence of a tumor-like enlargement in the claimant’s retroperitoneal space, which is located behind the peritoneal cavity, which contains the large interior organs of the abdomen. Dr. Stuart Roberts, a surgeon, evacuated a hematoma from the claimant’s retroperitoneal space on December 26, 1975. The pathologist’s report did not reveal evidence of a malignancy. On February 22, 1976, the claimant was again hospitalized for edema in his left leg. Dr. Roberts performed a second surgical operation on March 9, 1976, which resulted in the removal of a benign fibrous tissue and a benign lymph node from the claimant’s inferior vena cava, the main vessel returning blood from the lower extremities. Additionally, Dr. Roberts also removed adhesions in the same area which had been causing a small bowel obstruction. After the second operation when malignancy had finally been eliminated as a cause, Dr. Roberts questioned claimant about a trauma. Claimant then told the doctor for the first time about the incident at work.

On November 17, 1976, the claimant was released for work by his doctor and returned to work at Caterpillar. Because of the existence of edema in his legs, he was assigned to train as a power-truck operator, which would enable him to sit during work. After one day, however, he did not return to this position because he claimed his legs throbbed and he was unable to perform the job. The claimant’s present medical problems, which allegedly stem from the accidental injury, are bilateral varicose veins and mild swelling of the legs.

Testifying for the claimant, Dr. Roberts said that the industrial accident of December 3, 1975, probably caused the hematoma in the retroperitoneal area. He ruled out a spontaneous occurrence, because of the absence of certain conditions that would usually accompany such an occurrence. He also noted that spontaneous hematoma is unusual in a young, healthy boy. The hematoma, moreover, was localized in an area which precisely corresponded to the spot on the claimant’s abdomen which was struck by the buffing pad. Dr. Roberts concluded that the cause of the hematoma was the trauma to the abdomen, regardless of how minor the blow might appear to have been.

Dr. Roberts classified the blow received in the accident as a blunt trauma, since the buffing pad did not penetrate the abdomen. Although the piece of the buffing pad weighed two ounces and could not have exerted significant force, Dr. Roberts said it was not unreasonable to conclude that the trauma was the cause of the retroperitoneal hematoma. He had observed from actual practice that an apparently insignificant trauma which occurs without recognition is often proved to be a satisfactory explanation of the cause of an abdominal hematoma.

Dr. Roberts testified that the hematoma could not have preexisted the industrial accident. When examined by Dr. Mosiman on December 2, 1975, the claimant had an elevated white blood count. Upon admission to the hospital on December 16, 1975, the claimant also had a high white blood count, but it was not as high as on December 2, 1975. A high urinary white blood count indicates a urinary tract infection, but a hematoma which affects the urinary tract would result in the existence of red blood cells rather than an elevated white blood count. This indicates that the trauma to the abdomen which occurred on December 3, 1975, did not cause the elevated white blood count. In this case, the hematoma was cult, ed and was not infected. Since it was not infected, it could not have caused an elevated white blood count. The backache and lower abdominal pain which were experienced by the claimant prior to the accident are frequently symptomatic of a urinary tract infection. For these reasons, Dr. Roberts concluded the hematoma did not antedate the industrial accident.

On cross-examination, however, Dr. Roberts stated that the retroperitoneal area would ordinarily be protected from a blow to the abdomen by an object that only weighed two ounces. Since a blow from a two-ounce object does not exert much force, the abdominal wall and bowel area would protect the retroperitoneal space.

Dr. Roberts testified that although a spontaneous retro-peritoneal hematoma is unusual, it could spontaneously occur without the presence of a trauma. He admitted that the backache and lower abdominal pain which had been reported by the claimant to Dr. Mosiman a day prior to the industrial accident could suggest the presence of a retro-peritoneal hematoma. However, he believed that the presence of a urinary tract infection provided the better explanation of this pain. Because of these statements, the employer contends that Dr. Roberts’ testimony is equivocal about whether the claimant’s work injury caused the growth in the retroperitoneal space.

Dr. Robert Pflederer, who testified on behalf of Caterpillar, reached a different conclusion from Dr. Roberts. Dr. Pflederer, an internal medicine and nephrology specialist, concluded that a spinning projectile which only weighed several ounces, such as a buffing pad, could only cause an abrasive trauma upon impact, not a blunt one. He concluded, therefore, that the buffing pad could not have exerted sufficient force to push back the abdominal walls and the bowels thereby causing damage in the retroperitoneal space. Dr. Pflederer based this opinion on the theory that a superficial, nonpenetrating wound to the surface of the abdominal area is so far removed from the retroperitoneal space that it would be impossible for it to cause a retro-peritoneal hematoma.

Further testifying* Dr. Pflederer stated that the retro-peritoneal space is well protected. It is not located in the abdominal area but, rather, is behind the peritoneal cavity. If a blunt trauma were the cause of this hematoma, it would be necessary for the trauma to have been sufficiently severe to tear blood vessels and injure tissue. Although a person who is thrown from an automobile or falls from a high building might receive sufficient impact to cause such an injury, Dr. Pflederer concluded that the superficial abrasive trauma which was suffered by the claimant would not be sufficient.

Dr. Pflederer noted that claimant’s symptoms were present for five days prior to his accident at work. He reasoned that if there were an underlying abnormality, and a trauma superimposed on it, evidence of this condition would exist at the site of the trauma. Instead, the wound scabbed and healed. No bleeding abnormalities occurred and no discoloration in the superficial skin and muscle areas of the abdomen appeared. Under these circumstances, Dr. Pflederer concluded that the contention that the trauma caused bleeding and damage of tissue in the retro-peritoneal space “doesn’t fit.”

Dr. Pflederer also noted that back pain is often associated with a retroperitoneal hematoma. It is, therefore, significant that the claimant had back pain prior to the industrial accident. Retroperitoneal hematomas often occur spontaneously and are typically described as idiopathic. They frequently result from a tumor or neoplastic process which occurs somewhere else in the body Dr. Pflederer concluded, therefore, that the disability did not result from a work-related injury, but was instead from a preexisting disease.

It seems highly unlikely that the slight impact from the two-ounce fragment of the buffing pad could cause claimant’s injury Dr. Roberts, himself, testified that the impact from the buffing pad would probably be slight. The claimant did not associate the buffing pad incident with the hematoma until after the doctors questioned him about any possible trauma. Logic would seem to support Dr. Pflederer’s opinion that such a slight impact could not have been the cause of the hematoma. However, Dr. Roberts, in a somewhat equivocal manner, stated that he thought the impact from the buffing pad could cause the injury. Furthermore, the Industrial Commission found that there was a causal connection between the work-related accident and claimant’s condition. Under the well-accepted principles announced by this court on many occasions, we cannot say that this determination is against the manifest weight of the evidence.

The Commission is the judge of the credibility of the witnesses and the weight to be given to their testimony. It is for the Commission to decide which of the two conflicting medical opinions given in this case is to be accepted. This is true even though the testimony of one of the doctors may have been equivocal. Also, the Commission is at liberty to attach more credence to the testimony of the treating physician than to the testimony of one who merely expresses an opinion based on a hypothetical question. (International Vermiculite v. Industrial Com. (1979), 77 Ill. 2d 1, 3; County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18; Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 408.) Under these accepted principles, it was the Commission’s prerogative to accept Dr. Roberts’ testimony and to give it weight and to reject the opinion of Dr. Pflederer. The Commission having done so, its decision is not manifestly erroneous.

The fact that Dr. Roberts, at one point, couched his opinion as to causation in language such as “it is reasonable to presume” does not deny the Commission the right to consider his opinion. In reading Dr. Roberts’ entire testimony, it is plain that it was his opinion that however slight the impact may appear to have been, it, nonetheless, was the cause of the hematoma. Although, at times, he was equivocal, his entire testimony reflects this to be his opinion. His testimony therefore was not speculative or inconclusive. We conclude that the opinion which Dr. Roberts expressed on direct examination that the industrial accident caused the retroperitoneal hematoma satisfied the claimant’s burden of proof.

We next consider whether the Industrial Commission’s determination that the claimant’s disability had not reached a permanent condition and its order that Caterpillar should pay for vocational rehabilitation were against the manifest weight of the evidence. The Commission entered an award under section 19(b) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)) which affirmed the arbitrator’s award of 125 weeks of lost time benefits but set aside the arbitrator’s award of 40% permanent partial disability. Instead, the Commission ordered Caterpillar to provide the claimant with physical and mental rehabilitation.

Claimant appealed from that part of the Commission’s order which set aside the award for permanent partial disability and which ordered the employer to provide vocational rehabilitation. Claimant contends his condition had stabilized as of May 3, 1978, the date of the last hearing before the arbitrator. He was receiving no active treatment and was taking no medication. Likewise, he had no further appointments with the doctor. His condition had stabilized so far as the permanent nature of his injury would permit. Temporary total disability compensation is to be awarded for the period of time between the injury and the date the employee’s condition has stabilized. (McKay Plating Co. v. Industrial Com. (1982), 91 Ill. 2d 198.) Claimant argues that since his condition had stabilized and had not changed as of the date of the last hearing before the arbitrator on May 3, 1978, the arbitrator’s award of 125 weeks of temporary total disability (from the date of the injury to the date of the last hearing) was correct.

Caterpillar contends that if there was a causal connection between the accident at work and the claimant’s condition, his condition had stabilized as of November 17, 1976, when his doctor released him to return to work and when he did in fact return to work for one day. There may be evidence in the record from which such an inference can be drawn, but there is also evidence in the record that supports the inference that his condition had stabilized as of the date of the last hearing before the arbitrator on May 3, 1978. On the date of the first hearing before the arbitrator (February 8, 1977) claimant testified that he had attempted to go back to work on November 17, 1976, but because of the pain in his legs he could not stand it and did not return to work. He also testified that on that date, although he was not taking any medication, he was still under the doctor’s care. On the date of the last hearing before the arbitrator (May 3, 1978) the claimant testified that he was no longer being examined by the doctor and that he had no further appointments with the doctor for the condition of his legs. He also described for the arbitrator the condition of his legs at that time. The award of 125 weeks of temporary total disability by the Industrial Commission is not against the manifest weight of the evidence and should be affirmed. The finding of the Industrial Commission that the claimant’s condition has not stabilized is contrary to the manifest weight of the evidence and should be set aside.

The claimant also contends that it was error for the Industrial Commission to enter an award of rehabilitation. We agree. It appears that the claimant did not request that the employer be directed to provide rehabilitation, and there is absolutely no evidence in the record to support such an award. Claimant disclaims any justification or need for such an award under the facts of this case. Considering all of the factors in this case, we find that the award for rehabilitation was contrary to the manifest weight of the evidence. (See Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489.) The judgment of the circuit court of Tazewell County is affirmed in part and reversed in part. The cause is remanded to the Industrial Commission to review the award of the arbitrator for permanent partial disability. In addition to the 125 weeks for temporary total disability heretofore awarded to the claimant, the Commission is directed to enter an award in favor of the claimant for permanent partial disability.

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


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 56828.
    MAXINE HASLER, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Robert Wease, Appellant).

      Opinion filed June 17, 1983.

    Rehearing denied September 30,1983.

      Dukes, O’Rourke, Stewart, Martin & Helm, Ltd., of Danville (John F. Martin, of counsel), for appellant.
    Charles W. Hendrix Law Office, P.C., of Champaign (Charles W. Hendrix, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Maxine Hasler, sought workmen’s compensation for an injury she sustained while in the employ of respondent, Robert Wease. An arbitrator found that she was totally and permanently disabled, and awarded her compensation in accordance with section 10(e) of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(e)). The Industrial Commission modified the decision of the arbitrator, finding that claimant was temporarily totally disabled. It further determined that her earnings base should be computed pursuant to section 10(a) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)). The circuit court of Champaign County reversed the decision of the Commission on the grounds that, as a matter of law, section 10(e) governs the computation of claimant’s award. Respondent brought a direct appeal to this court. 73 Ill. 2d R. 302(a).

The sole issue for review is whether claimant’s compensation should be computed in accordance with section 10(a), or section 10(e), of the Act.

On July 7, 1979, claimant was employed by respondent as a painter and wallpaper hanger. On that date, while returning with respondent from a job site, their vehicle collided with another automobile resulting in claimant’s injuries.

At the hearing before the arbitrator, claimant testified that her employment varied with respect to the number of days she worked. She indicated that certain months were “more busy” than others. Her hourly wage was $6, and she normally worked eight through nine hours a day.

On cross-examination, claimant stated that she had been employed by respondent for five years preceding the injury. She was not engaged in any other employment. When asked whether she worked every day, claimant responded: “I worked about every day, yes. Every day that we had work, yes.” She further stated that she worked for respondent every month but not every week. Claimant subsequently indicated that respondent had work for her “most of the time.”

Additional evidence showed that claimant worked seven months, and earned $1,624.72, during the year next preceding the injury. With the exception of certain medical reports, no evidence was produced during the hearing before the Commission.

Section 10 of the Act provides, in relevant part:

“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.
(e) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.” Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (e).

Claimant contends that section 10(a) is inapplicable because she was not continuously employed by respondent for a full year preceding the injury. She alleges that she worked “intermittently,” and cites a number of cases which indicate that section 10(e) should be used to determine the basis of compensation where the employment is intermittent. (K. & R. Delivery, Inc. v. Industrial Com. (1957), 11 Ill. 2d 441; Mielke v. Industrial Com. (1942), 379 Ill. 462; Stellwagen v. Industrial Com. (1935), 359 Ill. 557; Ruda v. Industrial Board (1918), 283 Ill. 550.) We agree with respondent that these cases are distinguishable.

In K. & R. Delivery, Inc., the claimant was employed full time and also held a part-time job. The injury was sustained during the course of the part-time employment. In determining that claimant’s compensation should be computed in accordance with section 10(e), this court noted that claimant was not continuously employed by respondent for a full year preceding the injury. The evidence indicated that he may have worked only seven days, and that he did not work all year for the same employer. Further, because of the nature of the employment, the annual earnings were not determinable.

Similarly, in Stellwagen, the claimant was engaged in two occupations. He worked three days a week for the city' of Chicago, and also performed “odd jobs,” such as home repairs, for respondent. He sustained an injury during the course of the latter employment. Claimant’s compensation was computed pursuant to section 10(e) because he did not work for respondent “continuously” during the year preceding the injury. There was no evidence of what claimant’s actual earnings were for that year, nor how long he had been employed by respondent.

Ruda is also distinguishable from the present case. There, section 10(e) was applied to determine claimant’s compensation because he was engaged in an occupation (slate-roofing) which did not operate all year, and he had not worked for respondent for a full year.

In the instant case, claimant was not engaged in two occupations; she worked for the same employer for five years preceding the injury. Her annual wages were clearly determined. Further, we agree with the Commission that the record does not indicate claimant’s employment was temporary or seasonal. She performed both interior and exterior work on buildings, and was employed certain months during all seasons. Claimant was therefore “continuously” employed only by respondent, and the fact that she did not work for him every day does not render that employment intermittent. But cf. Mielke v. Industrial Com. (1942), 379 Ill. 462 (wherein paragraph 10(e) was applied under similar facts because the parties stipulated that this paragraph would apply).

In our view intermittent employment, within the meaning of section 10(e), is that which is temporary, part-time, or seasonal. This conclusion is supported by the more recent decisions in Friddle v. Industrial Com. (1982), 92 Ill. 2d 39, and Vaught v. Industrial Com. (1972), 52 Ill. 2d 158. In Friddle, the decedent had both a full-time and a regular part-time job, and was fatally injured during the course of his part-time employment. In determining that section 10(e) was inapplicable for purposes of computing his compensation, this court stated:

“Paragraph (e) protects the part-time employee ‘where the working days are intermittent’ (Ruda v. Industrial Board (1918), 283 Ill. 550, 554; K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441) and the employment is temporary (Vaught v. Industrial Com. (1972), 52 Ill. 2d 158; K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441, 446). One aim of paragraph (e) is to provide an earnings base for seasonal employees such as construction workers. 2 T. Angerstein, Illinois Workmen’s Compensation sec. 1799, at 373 (rev. ed. 1952).” (Emphasis added.) (92 Ill. 2d 39, 44.)

Intermittent employment was described as “the work of a free-lance practical nurse who is employed occasionally in a temporary capacity or a general construction worker hired on a temporary basis when a particular job becomes available, or such seasonal employment as cotton picking, fruit picking, and general farm work or forestry. See generally 2 A. Larson, Workmen’s Compensation sec. 60.22 (1981).” 92 Ill. 2d 39, 45.

The court in Friddle also determined that section 10(a) was inapplicable because the decedent was not “continuously” employed by respondent. Significantly, the employment was not considered continuous because, unlike in the instant case, decedent also worked for another employer. For the same reason, section 10(a) was held inapplicable in Vaught. Further, although the claimant in that case did not work every day of the year, section 10(e) was not applied to compute his compensation.

Sound policy considerations support the application of paragraph (a) in the instant case. This paragraph, because it is based on a claimant’s actual earnings, represents the most accurate method for computing a disability award. Perhaps for this reason it has been held that paragraph (a) should be applied if possible, and paragraph (e) should be employed only as a last resort. Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 164; see Friddle v. Industrial Com. (1982), 92 Ill. 2d 39, 43.

More importantly, the application of paragraph (e) in the instant case would create an anomalous result. As previously related, claimant earned approximately $1,600 during the year preceding the injury, and she would be compensated for this amount under paragraph (a). Under the computation method prescribed in paragraph (e), claimant’s rate of compensation is $9,600. Consequently, she would be awarded an amount almost six times greater than her actual earnings. We believe that the purpose of the Act is to compensate, or “make whole,” an injured employee, not to provide a windfall. To hold otherwise would create a situation in which it is more advantageous, financially, to be injured than to be employed.

For the above-stated reasons, the judgment of the circuit court of Champaign County is reversed, and the order of the Industrial Commission is confirmed.

Circuit court reversed; Industrial Commission confirmed.


text:
    (No. 56886.

      In re W.W., a Minor, Appellant (The People of the State of Illinois, Appellee).

      Opinion filed May 18, 1983.

    Rehearing denied September 30, 1983.

      G. Joseph Weller, Deputy Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Theodore J. Floro, State’s Attorney, of Woodstock (Phyllis J. Perko and William L. Browers, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
   JUSTICE MORAN

delivered the opinion of the court:

After a history of delinquency not relevant to this appeal, the circuit court of McHenry County adjudicated the respondent, W.W., delinquent and adjudged him a ward of the court. At a subsequent dispositional hearing, respondent was committed to the Department of Corrections. The appellate court affirmed the committal by order (103 Ill. App. 3d 1203) pursuant to Supreme Court Rule 23 (73 Ill. 2d R. 23). Thereafter, upon the State’s motion, the appellate court assessed State’s Attorney fees for defending the appeal against respondent in the amount of $50. We granted respondent’s petition for leave to appeal.

There is but one question presented: Can a minor be assessed State’s Attorney fees as costs for an unsuccessful appeal?

The State moved for the assessment of its attorney fees against respondent under section 8 of “An Act concerning fees and salaries ***,” which provides in relevant part:

“State’s attorneys shall be entitled to the following fees ***:
For each case of appeal taken *** to the Supreme or Appellate Court when prosecuted or defended by him, $50.
All the foregoing fees shall be taxed as costs to be collected from the defendant, if possible, upon conviction. But in cases of inquiry into the mental illness of any person alleged to be mentally ill, in cases on a charge of paternity and in cases of appeal in the Supreme or Appellate Court, where judgment is in favor of the accused, the fees allowed the State’s Attorney therein shall be retained out of the fines and forfeitures collected by them in other cases.” Ill. Rev. Stat. 1979, ch. 53, par. 8.

The allowance and recovery of costs, being unknown at common law, rests entirely upon statutory provisions which must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173.) In Nicholls, a criminal defendant challenged the appellate court order assessing State’s Attorney fees as costs on appeal. This court found basic authority for assessing prosecution costs against criminal defendants in the criminal costs statute, which provides:

“When any person is convicted of an offénse under any statute, or at common law, the court shall give judgment that the offender pay the costs of the prosecution.” (Ill. Rev. Stat. 1975, ch. 38, par. 180 — 3.)

After quoting this statute, section 8 of the fees and salaries act (Ill. Rev. Stat. 1975, ch. 53, par. 8) and two sections in “An Act to revise the law in relation to costs” (Ill. Rev. Stat. 1975, ch. 33, pars. 22, 25), this court said: “[These] statutory provisions, when read together, indicate a legislative scheme which authorizes the assessment of State’s Attorneys’ fees as costs in the appellate court against an unsuccessful criminal appellant upon affirmance of his conviction.” 71 Ill. 2d 166, 174.

Respondent asserts there is no provision similar to the criminal costs statute in the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) which would authorize an assessment of unsuccessful appeal costs against minors. He also notes that the appellate court previously has refused to impose court costs, or State’s Attorney per diem fees, on minors for this very reason. In re J.M.S. (1981), 92 Ill. App. 3d 1141; In re G.B. (1980), 88 Ill. App. 3d 64, rev’d on other grounds (1981), 88 Ill. 2d 36.

The State argues section 8 alone provides sufficient authority to assess such costs. It emphasizes the statutory language which provides that State’s Attorneys are entitled to fees “[flor each case of appeal taken *** to the Supreme or Appellate Court” and that “[a]ll the foregoing fees shall be taxed as costs to be collected from the defendant, if possible, upon conviction.” (Emphasis added.) The State points out the legislature provided three specific instances in which State’s Attorneys were to obtain their fees from fines and forfeitures collected in other cases. Those concern cases inquiring into the alleged mental illness of any person, cases on a charge of paternity and cases of appeal in which the State does not prevail. The State stresses the legislature failed to include as an exception cases on appeal from delinquency proceedings in which the State prevails.

Relying on the rule of statutory construction that an expression of certain exceptions in a statute is to be interpreted as an exclusion of all others, the State maintains the legislature did not intend to exempt juvenile delinquents from payment of statutory State’s Attorney fees. This contention, however, ignores the well-established rule that statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation. Our courts will read nothing into such statutes by intendment or implication. Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 220; Summers v. Summers (1968), 40 Ill. 2d 338, 342; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 375-76.

Even if a statute has remedial features but is in derogation of the common law, it will be strictly construed when determining what persons come within its operation. (Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 82-83; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 376.) Moreover, such statutes will not be extended any further than what the language of the statute absolutely requires by its express terms or by clear implication. Walter v. Northern Insurance Co. (1938), 370 Ill. 283, 288-89; 73 Am. Jur. 2d Statutes sec. 288 (1974).

In strictly construing section 8 in favor of the minor, we do not find a clear legislative expression in its language imposing State’s Attorney fees for an unsuccessful appeal against minors. In addition, there is no juvenile costs statute similar to the criminal costs statute which, when read with section 8, would indicate a legislative scheme authorizing assessment of such costs. Nor do we believe such an assessment is clearly implied from the provisions in section 8.

Section 8 specifically provides that State’s Attorney fees are to be taxed as costs and collected from the “defendant,” if possible, upon “conviction.” In In re Beasley (1977), 66 Ill. 2d 385, 389, this court said juvenile proceedings are not criminal in nature. As such, a minor is neither “convicted” nor considered, a “defendant” or an “accused.” Nor is a proceeding under the Juvenile Court Act denominated a “conviction.” (In re R.R. (1979), 75 Ill. App. 3d 494.) Rather, such proceedings are to be administered in a spirit of humane concern for the minor and to promote both the welfare of the minor and the best interests of the community. Ill. Rev. Stat. 1979, ch. 37, par. 701-2; In re Beasley (1977), 66 Ill. 2d 385, 389.

We do not believe assessing a minor $50 for an unsuccessful appeal would further the purposes and policy expressed in the Juvenile Court Act. Nor do we find the legislature, through section 8, necessarily intended such an assessment. As this court said in Nicholls: “In light of present-day county budgeting and accounting procedures, the provisions of section 8 (Ill. Rev. Stat. 1975, ch. 53, par. 8) relating to State’s Attorney fees may appear to be a relic of another era which might well merit the attention of the legislature.” (People v. Nicholls (1978), 71 Ill. 2d 166, 179.) Under these circumstances, we will not extend this provision by intendment or implication to assess State’s Attorney fees on appeal against minors.

For the reasons stated, the appellate court’s order assessing State’s Attorney fees against the respondent is vacated.

Order vacated.


author: JUSTICE UNDERWOOD JUSTICE SIMON,

text:
    (No. 54329.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LUIS GARCIA, Appellant.

      Opinion filed June 17, 1983.

    Rehearing denied September 30, 1983.

      John T. Theis, David R. Donnersberger, and Eva Field, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat and Dean R Karlos, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, Luis Garcia, was convicted of four counts of murder, four counts of attempted murder, 10 counts of armed violence, eight counts of armed robbery and five counts of aggravated battery. Defendant was also convicted on a single count each of rape, aggravated kidnaping, deviate sexual assault, taking indecent liberties with a child, and conspiracy. The State sought the death penalty and, after a sentencing hearing, the same jury determined that defendant was eligible for the death sentence and that there were no mitigating factors sufficient to preclude imposing that penalty. Although the trial court then sentenced defendant to death on his murder conviction, it did not impose any sentences on defendant’s other convictions. The death sentence was stayed by the trial court as required by our Rule 609(a) (73 Ill. 2d R. 609(a)), and defendant appealed directly to this court pursuant to section 4(b) of article VI of our constitution of 1970 as implemented by section 9—1(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(i)) and our Rule 603 (87 Ill. 2d R. 603).

The 36 crimes for which defendant was convicted in this cause were committed during a period of only several hours. The testimony introduced at trial indicated that on January 7, 1980, defendant and an accomplice, Roger Llaguna, entered a small grocery store on Wabansia Avenue in Chicago at approximately 6:30 p.m. William and Aida Pagan, the owners of the store, were in the sales area of the establishment, as was an employee, Miguel Hernandez. Also present was a neighborhood resident, Juan Jiminez. Mr. Hernandez testified that Llaguna, who was armed with two handguns, proceeded alone to the rear of the sales area, where he immediately shot both William Pagan and Juan Jiminez twice. Autopsies revealed that William Pagan had actually received three bullet wounds and that Juan Jiminez had suffered two bullet wounds. Llaguna then returned to the front of the store and shot Miguel Hernandez in the head, neck and back. As he was falling to the floor, and just before losing consciousness, Mr. Hernandez saw defendant, who was armed with one handgun, shoot Aida Pagan.

Another witness, Melvin Crawford, testified that he was about to enter the Pagans’ grocery store at approximately 6:45 that evening when he encountered a man with two guns leaving the store. That individual, whom Mr. Crawford later identified as Roger Llaguna, asked as to what Mr. Crawford was looking at; Mr. Crawford responded that he had not seen anything and, after backing away a short distance, ran down the street.

Upon their arrival, Chicago policemen found Miguel Hernandez, who was bleeding profusely, sitting on a carton at the front of the store. Aida Pagan was found lying across William Pagan, her husband, and next to Juan Jiminez, both of whom appeared to be already dead. Although she was lapsing in and out of consciousness, Mrs. Pagan was able to indicate that they had been attacked by two Latinos. Aida Pagan was declared dead on arrival when transported to a hospital, as were William Pagan and Juan Jiminez. The police also found that the store’s cash register, which Mr. Hernandez testified had contained “folding money,” was devoid of currency. A description of a car which had pulled away from the store just after the shootings was obtained by investigators from two neighbors who had heard gunshots. This description was later included in a city-wide police radio broadcast.

After leaving the store, which was located at 3022 West Wabansia, defendant and Llaguna apparently went to the Lincoln Tavern, located at 1858 West Wabansia. They entered the tavern at approximately 7:15 p.m. and, after seating themselves near the middle of the bar, ordered beer from the barmaid, Dorothy Oszkandy. The only other occupants of the bar were Christine Mroz, Walter Lesniak and Dorothy Oszkandy’s 10-year-old daughter, Denise. Christine Mroz, who had moved to the United States from Poland only four years earlier, was related to the owners of the tavern and lived with her relatives in living quarters which were connected to the tavern. She often sought to improve her command of the English language by talking with patrons of the tavern. That evening she was conversing with Walter Lesniak, a regular customer in the tavern. They were seated near the cash register, which was located at the front of the tavern. Miss Mroz concluded her conversation with Mr. Lesniak soon after defendant and Llaguna arrived and returned to her living quarters, passing through the rear of the tavern where Denise Oszkandy was watching television. Shortly thereafter, Clara Satha, an elderly woman who was also a regular customer, entered the tavern and joined Mr. Lesniak at the bar. Defendant then approached the front of the tavern and, after glancing out the window, turned and said, “This is a stick-up.” Brandishing a handgun, defendant warned Dorothy Oszkandy not to reach for a gun and ordered her to give him the money in the cash register. Defendant also ordered Walter Lesniak and Clara Satha to place all of their money on the bar. When Mrs. Oszkandy turned slightly to check on her daughter, defendant shot her in the side and then shot Walter Lesniak in the side. In response to defendant’s repeated demand, Mrs. Oszkandy staggered to the cash register and managed to place the money onto the bar before losing consciousness.

Meanwhile, Roger Llaguna had ordered Denise Oszkandy to join her mother behind the bar and she had begun to do so when defendant shot Mrs. Oszkandy. Llaguna then pulled Denise back and forced her to accompany him through the passageway leading to the adjoining living quarters. Denise Oszkandy testified that they encountered Christine Mroz in the dining room. After Miss Mroz rose from her chair, Llaguna fired three shots at her, causing her to fall to the floor. An autopsy later revealed that Miss Mroz died of a gunshot wound to the head.

Defendant and Roger Llaguna then left the tavern, taking Denise Oszkandy with them in their car. After ordering her to keep her head down, they drove to an unoccupied basement where both men sexually assaulted her and engaged in a number of deviate sexual acts, including inserting the barrel of a handgun into her vagina. Denise Oszkandy was then forced back into the car.

Officer Richard Spiegel, a Chicago policeman, testified that he and his partner were patrolling in an unmarked squad car when they received a radio message which updated an earlier broadcast describing the car seen leaving the scene of the grocery store murders. The supplementary broadcast informed them of the abduction of Denise Oszkandy. They proceeded to join in the search and, upon arriving in the neighborhood of the crimes, spotted a car that matched the description and which police later discovered was driven by defendant. The plainclothes officers signaled a marked patrol car to follow them, and when those officers momentarily spotted a little girl’s head pop up between the figures of the other two occupants of the suspicious car, they attempted to stop that car. A high-speed chase ensued during which Roger Llaguna fired several shots at the police.

Defendant, after losing control and crashing the car into a parked vehicle, jumped out and attempted to run away. Officer Spiegel, who had been shot in the leg while leaving his own car, shot defendant in the hand, causing him to fall to the ground, where he was placed under arrest. At the time of his arrest, defendant was unarmed, but a fully loaded .38-caliber Rohm revolver was found on the driver’s side of the front seat in the car which he had been driving. Roger Llaguna, who had fled into an alley, was killed while engaging in a gun battle with the police officers who pursued him. Police investigators recovered a Smith & Wesson .357-caliber magnum revolver next to Llaguna’s body. Denise Oszkandy, who had not sustained any injuries in the crash itself, was found in the car driven by defendant and was taken to a local hospital for examination and treatment.

At trial, a ballistics expert testified that while some of the firearm evidence recovered at the grocery store and the tavern was unsuitable for analysis, the identifiable evidence conclusively demonstrated that Aida Pagan had been shot both by the .357 Smith & Wesson revolver recovered from Roger Llaguna and the .38 Rohm revolver recovered from the driver’s seat in the crashed getaway car. In addition, the expert was able to state that William Pagan and Juan Jiminez had both received at least one wound each from the .38 Rohm revolver, which had also been used, in his opinion, to shoot Dorothy Oszkandy. The physical evidence also showed that Christine Mroz had been shot with the Smith & Wesson .357 revolver.

Defendant, attacking both his convictions and the imposition of the death penalty, raises a number of issues pertaining to his trial and sentencing hearing. We consider first the challenges to the fairness of defendant’s trial, detailing additional factual matters not set forth above where necessary. Prior to trial, the defendant unsuccessfully moved for an order suppressing any reference to pretrial identification of defendant both by Miguel Hernandez, the only surviving witness to the grocery store killings, and by Walter Lesniak, one of the victims at the tavern. Defendant also sought to suppress any in-court identification by those same witnesses claiming that the identification evidence constituted the product of procedures on the part of the police which were “unnecessarily conducive to irreparable mistaken identification.” The testimony at the hearing on the motion to suppress identification testimony by Walter Lesniak indicated that while he was receiving treatment in a hospital emergency room, Mr. Lesniak was told by a police officer that Denise Oszkandy had been safely recovered and that two suspects had been apprehended. Mr. Lesniak had also seen a newspaper article concerning the shootings, accompanied by a large photograph of defendant, but because he was not wearing his glasses and only glanced at the item in a cursory fashion, had not learned any details of the incident. Either one or two days after the shootings, Mr. Lesniak was visited in the hospital by Officer Curtis, who showed Mr. Lesniak a lineup photograph depicting five individuals, including defendant. Both Officer Curtis and Mr. Lesniak testified that Officer Curtis left without having discussed the incident immediately after Mr. Lesniak identified one of the individuals in the lineup. When asked at the hearing if the person he had identified in the lineup photo was the same person who had appeared in the newspaper photograph, Mr. Lesniak stated, “He looked a little bit different. Uh, the picture I saw in the Tribune, uh, was very — . Well, he was disheveled and, well, dirty, et cetera, et cetera.”

The trial court sustained objections to numerous questions by defendant’s attorney concerning conversations between Walter Lesniak and police officers while Mr. Lesniak was in the hospital emergency room, the length of time that Mr. Lesniak had been in the tavern prior to the shootings, the description of the assailants which Mr. Lesniak had given police at the time of the incident, and the type of medication which Mr. Lesniak was receiving at the time of the photographic identification. At the close of the hearing, defense counsel stated for the record that he considered the questions which he had sought to ask important because of the fact that Mr. Lesniak had seen the newspaper photograph of defendant, but he declined to offer any argument on behalf of the motion and rested on the testimony of Officer Curtis and Walter Lesniak.

The hearing held pursuant to the motion to suppress the identification testimony of Miguel Hernandez was complicated by the fact that Mr. Hernandez, who spoke no English, was forced to testify through an interpreter. It is apparent from the record that the translation process created confusion at times on the part of Mr. Hernandez and the examining attorneys both during the suppression hearing and, despite the substitution of a different interpreter, at trial. On its face, the testimony of Mr. Hernandez, who was the only witness at the suppression hearing, seems somewhat ambiguous and inconsistent. That testimony revealed that he was visited by a police officer in the hospital when he first regained consciousness five days after being shot and that the officer had shown Mr. Hernandez a photograph of five persons. Mr. Hernandez stated that he had pointed out one of the individuals when asked if he could identify the person that had shot him. After a number of intervening questions concerning the length of the officer’s visit and the nature of their conversation, Mr. Hernandez stated that he had taken the photograph into his own. hands when viewing it and that while he was holding it, the officer had pointed to defendant and asked if he was the person who had come into the grocery store. On cross-examination, Mr. Hernandez testified that he had pointed out his selection to the policeman and that the policeman had not told him which man to pick out.

In his attack on the trial court’s denial of the motions to suppress the identification testimony of Miguel Hernandez and Walter Lesniak, defendant argues that he was denied a fair hearing on the motions and, in any event, that the trial court erred in their denial. Defendant, referring us to People v. Robinson (1970), 46 Ill. 2d 229, asserts that the hearings were unfair because the trial judge precluded defense counsel from making an effective inquiry into the reliability of the witnesses’ identification testimony by sustaining objections to questions designed to reveal whether there was any independent basis for the identifications. This argument, however, misapprehends the allocation of the burden of persuasion in a suppression hearing. Our decisions have made clear that the defendant must first establish that the pretrial identification procedure was unnecessarily suggestive and that the evidence will then be suppressed unless the State is able to show by clear and convincing evidence an independent basis of reliability. (People v. McTush (1980), 81 Ill. 2d 513, 520; People v. Blumenshine (1969), 42 Ill. 2d 508, 511. See People v. Bryant (1983), 94 Ill. 2d 514, 520.) The inquiry prescribed in Blumenshine and repeated in Robinson, mandating consideration of such factors as how well the witness was able to observe the criminal act, the accuracy of any description furnished by the witness, and whether the witness had been previously acquainted with the defendant, is relevant only to evaluate the independent basis of reliability. (See People v. Bryant (1983), 94 Ill. 2d 514; People v. Hopkins (1973), 53 Ill. 2d 452.) The questions which defense counsel was precluded from asking were simply not relevant to the issue of whether the identification procedure had been unnecessarily suggestive, and the trial judge did not deny defendant a fair hearing by sustaining objections to those inquiries.

In addition, we cannot agree that the trial judge erred in denying defendant’s motions to suppress. It is well established that a trial court’s ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Holloway (1981), 86 Ill. 2d 78; People v. Conner (1979), 78 Ill. 2d 525; People v. Williams (1974), 57 Ill. 2d 239, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506; People v. Clay (1973), 55 Ill. 2d 501.) The testimony presented at the hearing concerning Walter Lesniak’s identification contains no indication of any suggestive conduct on the part of the police. Nor can we say from our review of the testimony of Miguel Hernandez that the trial court erred in resolving the contradictions in his testimony by determining that defendant had failed to sustain his burden of proving suggestive conduct. Although defense counsel established at both hearings that defendant was in custody at the time the photographic identifications were made, he did not argue then or now that the procedures employed were unnecessary. Nevertheless, we consider it appropriate to add that while we ordinarily disapprove of using photographic-identification procedures when a defendant is in custody and available for an in-person lineup identification, a lineup was not feasible here. (See, e.g., People v. Kubat (1983), 94 Ill. 2d 437, 471-72; People v. Williams (1975), 60 Ill. 2d 1, 9.) Walter Lesniak and Miguel Hernandez were both hospitalized with serious gunshot wounds, and under such circumstances, it was not improper for the police to conduct a photographic-identification procedure.

As another basis for arguing that his trial was unfair, defendant asserts that the trial court failed to conduct a proper hearing to determine whether Denise Oszkandy, who was 11 years old at the time of the trial, was competent to testify. After calling her to the witness stand, the prosecutor proceeded to ask her to spell her name and give her age. Defense counsel then requested a conference outside the hearing of the jury which the trial judge denied after asking her a few questions of his own, inquiring as to her age, the name and location of her school and her grade level in school. The judge also asked her whether she knew the difference between telling the truth and telling a lie and whether she knew the consequences of telling a lie in court. Denise responded that she knew the difference between telling the truth and telling a lie, and that, “If you tell a lie and if you’re in court, you go to jail.” It is the degree of a child’s intelligence, rather than mere chronological age, that determines a child’s competence, and “[i]f the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent.” (People v. Davis (1957), 10 Ill. 2d 430, 436, cert. denied (1957), 355 U.S. 820, 2 L. Ed. 2d 35, 78 S. Ct. 25. See also People v. Edwards (1973), 55 Ill. 2d 25, 33, cert. denied (1974), 415 U.S. 928, 39 L. Ed. 2d 486, 94 S. Ct. 1438; People v. Brown (1972), 52 Ill. 2d 94, 104-05; People v. Ballinger (1967), 36 Ill. 2d 620, 622, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.) There is no rigid formula which is applicable to a determination of competency, and the record reflects that the trial court was satisfied by Denise’s responses to his questions that she was competent to testify. Decisions as to the competency of a witness are reviewable, but in light of the trial court’s opportunity to take into account the demeanor of the witness, this court has held that such determinations will be overturned only when it appears that the trial judge has abused his discretion. (People v. Brown (1972), 52 Ill. 2d 94, 105; People v. Ballinger (1967), 36 Ill. 2d 620, 622; People v. Davis (1957), 10 Ill. 2d 430, 437.) This court has approved findings of competency based upon much weaker evidence than we have here (see, e.g., People v. Ballinger (1967), 36 Ill. 2d 620), and in our judgment, the trial judge did not err in permitting Denise to testify.

Defendant next argues that he was not proved guilty beyond a reasonable doubt of rape and that the trial court’s failure to direct a verdict of not guilty on that charge prejudiced his right to a fair trial on the other charges. In support of the charge of rape, the State introduced the testimony of Denise Oszkandy, Officer Donna McDermott, and Dr. Luisito Evangelista. At trial, when questioned about the nature of the assault upon her by defendant and Roger Llaguna, Denise stated unequivocally that both men had inserted a finger into her vagina and that Roger Llaguna had also placed a gun barrel into her vagina. She also said that defendant had tried to insert his penis into her vagina, and when asked whether he had done so, repeated, “He tried to.” The prosecutor did not question her further on the matter. Officer McDermott, who was assigned to take her to the hospital, described the disheveled and shaken condition in which she found Denise upon arriving at the scene of defendant’s capture. In addition, Officer McDermott testified that she asked her if she was all right and that Denise had replied, “Yes, and I didn’t want to do it, but they made me, I was scared.” When asked what had happened to her, Denise Oszkandy had again replied, “I didn’t want to do it, but they made me, I was scared.” When asked for his conclusion, Dr. Evangelista, who examined her at the hospital, stated: “There is some either hard object or penis being pushed into the vagina with a kind of trauma.” He added that Denise had asked, “Did I commit sin?” Although Dr. Evangelista stated that there was vaginal tenderness and swelling, as well as slight bleeding, the State did not present any evidence as to the presence of semen.

Although defendant was not sentenced on the rape conviction, a fact which would ordinarily preclude its consideration on appeal (see, e.g., People v. Dixon (1982), 91 Ill. 2d 346, 352), we may address the issue because defendant’s challenge to finalized convictions arising out of the same trial are properly before us. (People v. Scott (1977), 69 Ill. 2d 85, 88; People v. Lilly (1974), 56 Ill. 2d 493, 496.) Under Elinois law, it is clear that one of the elements which must be proved to sustain a rape conviction is penetration of the female sex organ by the male sex organ. (Ill. Rev. Stat. 1979, ch. 38, par. 11—1. See People v. Harper (1972), 50 Ill. 2d 296, 300; People v. Stagg (1963), 29 Ill. 2d 415, 417.) In our judgment, the evidence simply fails to establish penetration to any degree. Denise’s testimony indicates that she was able to articulate the fact of penetration with regard to other aspects of the sexual assault upon her, and we think it significant that she insisted that defendant only tried to achieve penetration, rather than stating that it had occurred. Officer McDermott’s testimony fails to show any act of penetration, and the medical evidence is also inconclusive on that point in light of the fact that the traumatic injuries observed by Dr. Evangelista were completely consistent with the insertion of the gun barrel. Consequently, we find that the trial court erred in failing to direct a verdict of not guilty on the charge of rape.

Despite the faulty rape conviction, we cannot agree with defendant that the trial court’s failure to direct a verdict on that charge inflamed the jury and vitiated defendant’s right to a fair trial on the other charges. The evidence presented by the State in support of the rape charge concerned only one part of a course of conduct and one aspect of a broader sexual assault upon Denise; indeed, the evidence presented on the rape charge would also have served to support defendant’s conviction of taking indecent liberties with a child. (See Ill. Rev. Stat. 1979, ch. 38, par. 11—4.) Because the jury undoubtedly would have heard the same evidence even if defendant had not been charged with rape, we consider the failure to direct a verdict to be harmless error beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

Another ground upon which defendant challenges his convictions concerns the trial court’s refusal to call Carmen Hernandez as a court’s witness. Prior to trial, defense counsel, accompanied by an investigator from the public defender’s office, visited the Hernandez residence for the purpose of interviewing Miguel Hernandez. Mr. Hernandez testified that he had admitted the two men into his home because he initially thought that they represented an insurance company and he denied telling defense counsel that he had lost consciousness immediately after being shot and that defendant had remained just inside the front door of the store. Carmen Hernandez, who was married to Miguel Hernandez, was called to testify by defendant. She stated that she had not been at home when defense counsel and the investigator arrived to interview her husband but that when she arrived at home to find them there, she had translated a conversation between defense counsel and Miguel. Her testimony as to the substance of that conversation corroborated Miguel’s testimony on the matter.

After Carmen Hernandez was excused as a witness, defense counsel sought to examine Thomas Hickey, his investigator, for the purpose of impeaching her testimony. A conference was held in chambers to determine the propriety of allowing Thomas Hickey to testify. Upon being informed that defense counsel had been surprised by Carmen Hernandez’ corroboration of her husband and that Mr. Hickey was being called only to impeach her, the trial judge told defense counsel that he would not be allowed to impeach his own witness. Defense counsel then argued that Carmen Hernandez should be considered a court’s witness and open to impeachment. The trial judge disagreed, but did allow defendant to make an offer of proof as to Mr. Hickey’s testimony.

Defendant’s contention that the trial court erred in failing to call Carmen Hernandez as a court’s witness and in failing to permit her impeachment by Thomas Hickey’s testimony is without merit. As this court recently noted, one of the requirements for calling a court’s witness is that the witness’ testimony will directly relate to a material issue. (People v. Pastorino (1982), 91 Ill. 2d 178, 191. See also People v. McKee (1968), 39 Ill. 2d 265; People v. Moriarity (1966), 33 Ill. 2d 606; People v. Siciliano (1954), 4 Ill. 2d 581, cert. denied (1955), 349 U.S. 931, 99 L. Ed. 1261, 75 S. Ct. 774.) Under the circumstances here, it is clear that Carmen Hernandez’ testimony related only to the collateral issue of her husband’s credibility and not to the innocence or guilt of defendant. The trial court did not err in denying defendant’s belated request in chambers to characterize her as a court’s witness. Furthermore, although we have since amended our rules to allow a party to impeach his own witness (see 87 Ill. 2d R. 238), and therefore decline defendant’s invitation to adopt Rule 607 of the Federal Rules of Evidence (Fed. R. Evid. 607), the trial judge correctly applied the long-standing prohibition against impeachment of one’s own witness which'was still in force at the time of trial. See, e.g., Smith’s Transfer Corp. v. Industrial Com. (1979), 76 Ill. 2d 338, 349; Rockwood v. Poundstone (1865), 38 Ill. 199, 201. See generally 3 J. Wigmore, Evidence sec. 896 (1940). Cf. Wisniewski v. Shimashus (1961), 22 Ill. 2d 451.

Defendant’s final challenge to his convictions rests upon his assertion that the trial judge displayed a “predetermined” and “unsympathetic” attitude toward him and his counsel which’intimidated counsel, causing the defense to be both hurried and limited. Although the trial judge criticized defense counsel on several points when the jury was not present and occasionally evinced a brusque manner toward both the prosecution and defense, the record does not reflect any prejudicial attitude or conduct on his part. Furthermore, the record lends no support to an argument that defense counsel was intimidated or that they conducted their defense effort in other than a deliberate and resolute manner.

We turn now to a consideration of those points on which defendant challenges his sentence of death. Raised first is defendant’s contention that the Illinois death penalty statute is unconstitutional because it does not provide the jury with any guidance as to what weight to assign the various factors in aggravation and mitigation. (See Ill. Rev. Stat. 1979, ch. 38, par. 9—1.) Defendant also argues that the statutory language directing the court to impose the death penalty if the jury determines unanimously that “there are no mitigating factors sufficient to preclude the imposition of the death sentence” (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(g)) is unconstitutionally vague. An extended discussion of these arguments is unnecessary because this court has already held that neither the language employed nor the absence of specific weights in connection with the factors renders the statute unconstitutional. People v. Brownell (1980), 79 Ill. 2d 508, 534, cert. dismissed (1980), 449 U.S. 811, 66 L. Ed. 2d 14, 101 S. Ct. 59. See also People v. Lends (1981), 88 Ill. 2d 129, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307.

Defendant also urges that the statute’s failure to require juries to employ a reasonable-doubt’standard when finding that there are no mitigating factors sufficient to preclude the death sentence violates his right to due process. We note at the outset that our opinion in People v. Free (1983), 94 Ill. 2d 378, considered this issue to be resolved in People v. Brownell (1980), 79 Ill. 2d 508. (94 Ill. 2d 378, 421.) In any event, defendant’s argument misapprehends the nature of the sentencing hearing provided under Illinois law. Due process requires that the State prove defendant’s guilt beyond a reasonable doubt (see In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068), and our statute also requires the jury to find beyond a reasonable doubt that one or more of the statutory aggravating factors are present before a defendant becomes eligible for the death sentence (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(f); cf. Gregg v. Georgia (1976), 428 U.S. 153, 196-97, 49 L. Ed. 2d 859, 887-88, 96 S. Ct. 2909, 2936). During the sentencing stage of a criminal proceeding, however, society is no longer concerned exclusively with a defendant’s culpability; rather, the focus is legitimately broadened to include other considerations such as the offender’s character and propensities. (See Gregg v. Georgia (1976), 428 U.S. 153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932, quoting Pennsylvania ex rel. Sullivan v. Ashe (1937), 302 U.S. 51, 55, 82 L. Ed. 43, 46, 58 S. Ct. 59, 61.) The differing purpose of the sentencing phase of criminal proceedings has been held to justify a departure from the traditional rules governing evidentiary matters. (See, e.g., People v. La Pointe (1981), 88 Ill. 2d 482; People v. Adkins (1968), 41 Ill. 2d 297.) Convicted defendants are not entitled to any particular sentence, and because the only purpose of the aggravation and mitigation phase is to insure that the sentencing body exercises its discretion in an informed manner (People v. Jones (1982), 94 Ill. 2d 275), we do not consider it necessary or desirable to inject a reasonable-doubt standard into the balancing process. The Supreme Court has approved sentencing schemes which, like that established by the Hlinois statute, provide for a balancing of aggravating and mitigating factors without employing the reasonable-doubt standard. (See Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909; Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960.) We agree with the decisions of our appellate court and courts in other jurisdictions which have held that due process does not require the State to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. State v. Bolder (Mo. 1982), 635 S.W.2d 673, State v. Schad (1981), 129 Ariz. 557, 633 P.2d 366; People v. Frierson (1979), 25 Cal. 3d 142, 599 P.2d 587, 158 Cal. Rptr. 281; State v. Pierre (Utah 1977), 572 P.2d 1338, cert. denied (1978), 439 U.S. 882, 58 L. Ed. 2d 194, 99 S. Ct. 219; People v. Perez (1981), 101 Ill. App. 3d 64; People v. Peddicord (1980), 85 Ill. App. 3d 414; People v. Mays (1980), 80 Ill. App. 3d 340. See also State v. Pritchett (Tenn. 1981), 621 S.W.2d 127; State v. Watson (1978), 120 Ariz. 441, 447, 586 P.2d 1253, 1259, cert. denied (1979), 440 U.S. 924, 59 L. Ed. 2d 478, 99 S. Ct. 1254.

We have considered the cases cited by defendant in support of his argument that due process requires using the reasonable-doubt standard throughout the death sentence hearing. With the exception of Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, and Gardner v. Florida (1977), 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197, those cases all concern the applicability of the reasonable-doubt standard at the guilt phase of criminal proceedings and do not provide support for defendant’s position. Although Woodson and Gardner involve reversals of death sentences, they, too, are inapposite. In Woodson, the Supreme Court held that North Carolina’s mandatory death penalty for first-degree murder violated the eighth and fourteenth amendments. This holding rested on the North Carolina statute’s failure to provide for the individualized consideration necessary to arrive at a reliable determination that the death sentence was appropriate in each case: Similarly, the question of whether the reasonable-doubt standard should be applied to jury findings concerning aggravating and mitigating factors was not an issue in Gardner, where the Supreme Court held that a Florida court’s imposition of the death penalty based on confidential information in a presentence report not made available to the defendant violated due process. No decision of the Supreme Court requires that Illinois apply a reasonable-doubt standard in all phases of a sentencing hearing, and we are unpersuaded that our statute providing otherwise is invalid.

Defendant urges that the Illinois death penalty statute is constitutionally infirm as applied to the facts in this cause, arguing that it provides that the death penalty may be imposed upon defendant despite the fact that his convictions were based on accountability and there was no evidence that defendant actually killed or intended the death of another person.

The sentencing jury found defendant eligible for the death penalty under section 9—1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(3)). Section 9 — 1(b) provides in relevant part:

“Aggravating factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
3. the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to Subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts.”

Because the jurors were instructed that they could return guilty verdicts on the charges if they found that defendant had actually committed the crimes or, alternatively, if they found that he was legally responsible for the conduct of the perpetrator under the Illinois accountability statute (see Ill. Rev. Stat. 1979, ch. 38, pars. 5 — 1 through 5 — 3), defendant claims that the general verdicts of guilt returned against him cannot be regarded as a finding that he personally committed the murders. Defendant also contends that the evidence, even when viewed in the light most favorable to the State, does not support a finding that he either committed or intended the murders, but establishes only that he participated in a series of felonies. Citing En mund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368, as well as our own recent decisions in People v. Jones (1982), 94 Ill. 2d 275, and People v. Tiller (1982), 94 Ill. 2d 303, defendant argues that the imposition of the death penalty in his case is disproportionate to the offenses for which he was sentenced and thus violates the eighth amendment.

We note initially that we cannot agree with defendant’s unqualified statement that he was convicted on the basis of accountability. Rather, the most that can be said is that the general verdict returned by the jury fails to reveal whether the jury found him guilty of actually killing anyone or whether he was convicted on the basis of accountability. Even if we were to assume that defendant’s murder convictions rested in part or completely on a theory of accountability, the imposition of the death sentence under the circumstances present here was permissible. This court has already held that the death penalty may be constitutionally imposed for murder convictions based on accountability (People v. Ruiz (1982), 94 Ill. 2d 245), and defendant’s citations to our recent decisions in Jones and Tiller are inapposite. The death sentences which we reversed in those cases were imposed in violation of Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368, because it was clear in each instance that the murder convictions for which those death sentences had been imposed resulted from deaths not caused or intended by the defendants. In holding that a death sentence could not constitutionally be imposed following a conviction for felony murder when the defendants had not intended the victims to be killed, the Supreme Court stated in Enmund:

“[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty on one such as Enmund who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed. We have concluded, along with most legislatures and juries, that it does not.” (Emphasis added.) 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376-77.

As this court recently reiterated, it is well established that a fact finder may infer the intent to take a life from a defendant’s acts and the circumstances surrounding the commission of the offense. (People v Ruiz (1982), 94 Ill. 2d 245, 263. See also People v. Jones (1979), 81 Ill. 1, 9-10; People v. Koshiol (1970), 45 Ill. 2d 573, cert. denied (1971), 401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209 (partially overruled in People v. Nunn (1973), 55 Ill. 2d 344, 349); People v. Coolidge (1963), 26 Ill. 2d 533.) Viewed in the light most favorable to defendant, the uncontroverted evidence presented at trial concerning defendant’s conduct at the grocery store, coupled with the physical evidence, clearly demonstrates that defendant intended that lethal force would be employed. (Cf. Enmund v. Florida (1982), 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 1151, 102 S. Ct. 3368, 3376-77.) The methodical execution of the grocery store shootings and robbery, with Roger Llaguna moving immediately to kill any potential witnesses in the rear of the store while defendant held those persons in the front at bay before shooting one of them himself, coupled with the defendant’s lack of hesitation when shooting Dorothy Oszkandy and Walter Lesniak at the tavern, leads us to conclude that the circumstances here are completely different from those in Jones or Tiller, where the defendants were not shown to have planned or participated in the murders for which their death sentences were reversed.

We next consider defendant’s argument that his death sentence must be reversed because the jury was improperly and inadequately instructed at the sentencing hearing. In support of this assertion, defendant contends that an instruction tendered by the State and given at the hearing was defective in that it failed to inform the jurors that they could consider mitigating factors other than those listed in the statute and presented to them by the court. Defendant additionally argues that the trial judge erred in refusing to give an instruction tendered by the defense describing aggravating and mitigating factors. The pertinent part of the instruction actually given provided:

“Aggravating factors are those facts or circumstances which provide reasons for imposing the death penalty. Aggravating factors include, but need not be limited to, the required statutory aggravating factor in the previous instruction.
Mitigating factors are those facts or circumstances which provide reasons for imposing a sentence less than the death penalty. (Mitigating factors may include:)
* * *
6). any other factors or circumstances that provide for imposing less than the death penalty.”

In our opinion, this instruction clearly informed the jurors that their consideration need not be limited to the statutory examples of mitigating factors. Defendant’s instruction contained the same language directing the jury to consider any other mitigating facts and, because it was substantively identical in that respect, the trial judge’s refusal to give the instruction did not constitute error.

In addition, we note that although defense counsel objected to certain aspects of the State’s instruction, the ground upon which it is now challenged was not brought to the attention of the trial judge. This court has consistently held that specific objections waive all grounds not specified and “one may not raise on appeal a question which was not properly presented to the trial court.” (People v. Curry (1973), 56 Ill. 2d 162, 170. See also People v. Free (1983), 94 Ill. 2d 378, 419; People v. Pastorino (1982), 91 Ill. 2d 178, 192; People v. Lewis (1981), 88 Ill. 2d 129, 149; People v. Holloway (1981), 86 Ill. 2d 78, 91.) An exception to the waiver doctrine is provided by our Rule 615(a) (73 Ill. 2d R. 615(a)), but that exception is expressly limited to cases in which the plain error affected substantial rights. (Cf. People v. Szabo (1983), 94 Ill. 2d 327, 354-55.) Our decisions have held that while the plain error doctrine may come into play when reviewing a sentencing hearing involving the death penalty (People v. Szabo (1983), 94 Ill. 2d 327, 355), issues which were waived will be addressed only when the evidence is closely balanced. (People v. Carlson (1980), 79 Ill. 2d 564, 576; People v. Howell (1975), 60 Ill. 2d 117, 121; People v. Pickett (1973), 54 Ill. 2d 280, 282-83.) A review of the evidence presented in aggravation and mitigation disposes of any contention that this evidence was closely balanced.

The other two instructions which defendant claims were improperly refused would have instructed the jury to consider the objective of restoring the offender to useful citizenship when determining the appropriate sentence, in accordance with article I, section 11, of the 1970 Illinois Constitution. In People v. Gaines (1981), 88 Ill. 2d 342, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285, the defendant attacked his death sentence on the grounds that the death penalty statute violated article I, section 11, of the 1970 Illinois Constitution by failing to require the sentencing body to make a determination that there was no rehabilitative potential and that no such finding was made. As was true in Gaines, defendant failed to present any evidence which would support a finding of rehabilitative potential. Accordingly, although the trial judge’s characterization of defense counsel’s proposed instructions on rehabilitative potential was unwarranted, the judge’s refusal to give the instructions, if improper, was at most harmless error. Cf. People v. Ellis (1973), 53 Ill. 2d 390, 395-96; People v. Nelson (1968), 41 Ill. 2d 364, 367; People v. Muniz (1964), 31 Ill. 2d 130, 138.

Defendant claims that his sentencing hearing was also tainted by inflammatory remarks made by the prosecutor. During his closing argument, the prosecutor told the jurors that they should disregard defense counsel’s assertion that the court would sentence defendant to life imprisonment without parole if they voted against the death penalty; rather, argued the prosecutor, defendant would find a way to get out on parole and kill again. This court has held that a resulting death sentence must be reversed when a prosecutor’s remarks in a death sentence hearing diverted the jury’s consideration away from a strict consideration of aggravating and mitigating factors. (People v. Szabo (1983), 94 Ill. 2d 327; People v. Walker (1982), 91 Ill. 2d 502.) Comments concerning the availability of parole, however, when invited and in the absence of any indication of an effect on the sentencing jury, do not require reversal. (People v. Walker (1982), 91 Ill. 2d 502, 515; People v. Myers (1966), 35 Ill. 2d 311, 335, cert. denied (1967), 385 U.S. 1019, 17 L. Ed. 2d 557, 87 S. Ct. 752.) Defense counsel’s assurances to the jury that the trial judge would sentence defendant to life imprisonment without the possibility of parole served to invite the prosecutor’s comments. Consequently, the prosecutor’s closing argument provides no basis for reversing the death sentence.

In its brief, the State draws to our attention the fact that defendant was sentenced only on his murder conviction and requests that we remand the cause in order to allow the trial court to sentence defendant on his other convictions. The record offers no explanation as to why sentences on those convictions were not imposed and, as we noted above when addressing defendant’s challenge to his rape conviction, judgments of criminal conviction are generally not reviewable until finalized by the imposition of a sentence. As is true in conjunction with a conviction or convictions which are properly before us, we may remand the cause for sentencing. People v. Scott (1977), 69 Ill. 2d 85.

For the reasons stated, we reverse the circuit court’s judgment of conviction on the rape charge, affirm the judgment on all of the other convictions, as well as the imposition of the death sentence, and remand the cause with directions to impose sentences on those convictions for which no sentence was imposed. It is further ordered that the sentence of death be executed on Wednesday, November 16,1983.

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

JUSTICE SIMON,

dissenting:

I would vacate the sentence of death rendered against the defendant and remand for a new sentencing hearing because the Illinois death penally statute is unconstitutional and because of prejudicial remarks made by the prosecutor at the death penally hearing.

I continue to adhere to the position that I stated in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). The Illinois death penalty statute is unconstitutional because it “contains no directions or guidelines to minimize the risk of wholly arbitrary and capricious action by the prosecutor in either requesting a sentencing hearing or in not requesting a sentencing hearing.” (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 559 (Ryan, J., Goldenhersh, C.J., and Clark, J., dissenting).) A majority of the justices presently sitting on this court has, at one time or another, and most recently on November 13, 1981, when People v. Lewis was filed, recognized that the statute is unconstitutional. I believe that the importance of the issue to the public and to the defendant requires that I adhere to the beliefs I expressed in Lewis and refuse to follow the doctrine of stare decisis in this matter as my colleagues did in that case.

For this reason, I would declare the statute unconstitutional, vacate the sentence of death, and remand for the imposition of an alternative sentence.

Even if the statute were constitutional, the prosecutor’s prejudicial remarks about the possibility of parole at the defendant’s death sentencing hearing require that we vacate the sentence of death and remand for a new hearing. This court allowed the prosecutor to argue, over objection, that the defendant, if given life imprisonment without parole, would “find a way to get a parole and *** be out on the street again and he’ll kill again.”

We have held that the prosecutor must not interject extraneous issues into the death penalty hearing which, through prejudice or confusion, divert the jury’s attention from a careful consideration and weighing of the aggravating and mitigating factors in the defendant’s case. People v. Szabo (1983), 94 Ill. 2d 327, 363-67; People v. Walker (1982), 91 Ill. 2d 502, 513; see also People v. Davis (1983), 95 Ill. 2d 1, 62-63 (Simon, J., dissenting).

In Szabo we vacated the sentence of death because the prosecutor referred to the possibility of parole in his closing argument. (94 Ill. 2d 327, 365-67.) The prosecutor made comparable comments in this case, but the majority, holds that the comments were invited by defense counsel’s reference to the option of a life sentence without possibility of parole. Yet in Szabo we held that precisely the same type of reference to sentencing options did not warrant the prosecutor’s prejudicial and inflammatory reference to the possibility of parole:

“The possible terms of parole should not have been interjected by either counsel in informing the jury of the sentencing alternatives available to the court. However, the State’s Attorney could not use defense counsel’s statements as a convenient springboard to suggest to the jury that a possible decision 'made by some bureaucrat with very little standards’ could allow Szabo to be free again some day in the future. The comments of the State’s Attorney were not invited by defense counsel’s reference to the court’s sentencing alternatives. Such highly prejudicial remarks on the part of the prosecuting attorney inevitably diverted the jury’s attention from considering the aggravating and/or mitigating factors as they properly reviewed the character and record of the defendant and the facts and circumstances surrounding the offense.” (94 Ill. 2d 327, 366.)

The majority offers no explanation for its retreat from Szabo and the decision we made there to clearly limit prejudicial rhetoric in penalty hearings.

I believe all judges appreciate the seriousness of a death sentencing hearing. It “is not intended to provide a soap box on which counsel can prey upon the fears of the jurors that the the defendant may soon walk the streets again in search of another victim.” (People v. Szabo (1983), 94 Ill. 2d 327, 367.) I see no reason why this court should not continue to heed the warning it gave in Szabo concerning the limits of rhetoric in death penally hearings.