author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

text:
    (No. 51902.
    SEARS, ROEBUCK & COMPANY, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Betty Stas, Appellant).

      Opinion filed Feb. 22, 1980.

    Rehearing denied March 28, 1980.

      RYAN, J., dissenting.
    Scheele, Serkland & Boyle, Ltd., of La Grange (James C. Serkland, of counsel), for appellant.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Daniel P. Socha and Frank C. Rowland, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

An Industrial Commission arbitrator awarded compensation to claimant, the widow of Richard Stas, as a result of Stas’ death on February 10, 1974. After hearing additional testimony, the Commission affirmed the arbitrator’s decision, but the circuit court of Cook County reversed. Claimant has appealed directly to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

While this cause was pending before us, respondent filed a motion to dismiss. In support of its motion, respondent maintains that claimant failed to file a timely notice of appeal from the circuit court judgment and that, consequently, this court is without jurisdiction.

Supreme Court Rule 303(a), governing appeals from final judgments of the circuit court in civil cases, states:

“[T] he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the motion.” (73 Ill. 2d R. 303(a).)

Section 68.3(1) of the Civil Practice Act, in turn, governs motions after judgment in nonjury cases and provides:

“[A]ny party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1977, ch. 110, par. 68.3(1).)

For purposes of the foregoing provisions, workmen’s compensation cases are treated in the same manner as other civil cases. Brady v. Industrial Com. (1970), 45 Ill. 2d 469, 472.

The circuit court judgment in favor of respondent was entered on December 14, 1978; a notice of appeal was filed February 13, 1979. Respondent admits that, during the intervening time period, it received notice of a motion for rehearing, but states that it never received a copy of the motion, and that no written motion for rehearing was ever filed with the circuit court clerk. In this regard, respondent correctly points out that a notice of motion, without the accompanying written motion, is insufficient to toll the running of the time for appeal. Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)) requires that a motion to set aside a final order, judgment or decree be filed within 30 days after entry thereof. Kollath v. Chicago Title & Trust Co. (1975), 62 Ill. 2d 8, decided under section 50(5), held that a notice of motion alone, filed within the 30-day period, did not satisfy such requirement. There, in ruling that the circuit court lacked jurisdiction to entertain plaintiff’s oral motion, presented more than 30 days after dismissal of the case, this court relied on the fact that plaintiff had failed, within the specified time, to seek a vacation of the order of dismissal. 62 Ill. 2d 8, 10.

Claimant'concedes that a written motion for rehearing was not filed. In contrast to Kollath, however, claimant and respondent appeared before the circuit court on January 12, 1979, within 30 days after entry of judgment, and claimant, at that time, orally moved for a rehearing. The court excused claimant from filing a written motion for rehearing and set arguments on the motion for January 31, 1979. After respondent expressed concern over the effect of the order, the court assured respondent that it was not granting claimant’s motion, but merely agreeing to hear arguments on the motion. The court further indicated that the effect of its ruling would be to stay the running of the appeal time until January 31, 1979. Respondent did not object to the claimant’s failure to file a written motion. Moreover, in response to the court’s reference to the time for appeal, respondent stated, “I’ll have no quarrel with the staying at this time.” Thereafter, at the January 31, 1979, hearing, the circuit court denied claimant’s motion for rehearing. Claimant filed a notice of appeal on February 13, 1979.

While the actions and proceedings surrounding the motion below are not a model of proper civil procedure, respondent’s acquiescence served to cure any errors that may have occurred. With the approval of the court and the assent of respondent, and within 30 days after judgment, as required by section 68.3(1) of the Civil Practice Act, claimant moved orally for a rehearing. One effect of the foregoing was to prevent the December 14 judgment from becoming final until 30 days after the court’s order disposing of the motion. Claimant thereafter filed the notice of appeal within the requisite time period. Under the circumstances, respondent’s motion to dismiss is denied.

Stas was employed by respondent, Sears, Roebuck & Company, as a shop technician, repairing gear cases. On October 31, 1973, he entered Lutheran General Hospital, where he was placed in the Alcoholic Rehabilitation Center. There, a program was designed for the treatment of Stas’ alcoholism. It included sessions with a therapist, and was to involve the participation of his family and his employer. As his treatment progressed, an appointment was made for approximately 1 p.m. on November 16, 1973, when Stas was to meet with his therapist and Herb Grunde, his supervisor at Sears. Shortly before the scheduled conference, however, Stas suffered a myocardial infarction and, at approximately 12:50 p.m., was transferred to the hospital’s emergency room. On December 8, 1973, he was released from the hospital and returned home. Stas went back to work on February 4, 1974, but, under doctor’s orders, was limited to light work for half days only. Grunde testified that when Stas returned to work on February 4, 1974, he looked greatly improved and moved faster than he had prior to his hospitalization, but the claimant testified that, although Stas said on his first day back at work that he was happy to have resumed employment, he appeared to be tired during the remainder of the week. On Friday evening, February 8, claimant noticed that her husband appeared very tired, his color was grayish, and he had very little appetite. On Saturday, Stas slept late, had little appetite and rested most of the day. That evening he complained to claimant that his left arm was bothering him. He asked for some Bromo Seltzer, which claimant prepared for him. Stas got up at 2 a.m. on Sunday, February 10, and told claimant, who also awoke, that he ached all over. When Stas thereafter awoke again, rubbing his left arm, claimant urged him to go to the hospital, but he refused. After getting dressed, he appeared very restless. That afternoon, claimant decided to call Dr. Veratella. She described the symptoms to the doctor, and he told her to bring Stas in on Monday morning. Claimant later found Stas unconscious in bed. He was taken to the hospital, where he was pronounced dead on arrival.

There is no dispute that Stas died from a heart attack on February 10, 1974. The death is compensable under the Act if the decedent’s employment was a causative factor, and the employment need not be the sole causative factor or even the principal causative factor. (Johnsmanville Corp. v. Industrial Com. (1975), 60 Ill.. 2d 221, 226; Republic Steel Corp. v. Industrial Com. (1962), 26 Ill. 2d 32, 45.) Additionally, the fact that the decedent’s last heart attack did not occur while the employee was actually engaged in the performance of employment duties does not preclude a finding that the employment was a causative factor in the death. (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357; Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240; Sohio Pipe Line Co. v. Industrial Com. (1976), 63 Ill. 2d 147, 152.) Nor does a preexisting heart condition render an award of compensation against the manifest weight of the evidence where the Commission may legitimately have inferred from the the evidence that the employee’s occupational activity was a causative factor in the death. Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240.

Claimant sought to establish the necessary causation by showing that the February 10, 1974, heart attack was caused in part by the November 16, 1973, heart attack, and that employment-related activity and stress were a causative factor in the November 16 attack. When employment activities create a higher than normal degree of stress, and that stress contributes to the employee’s death, the necessary causation is established. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 19; Wirth v. Industrial Com. (1974), 57 Ill. 2d 475, 481.) We do not find the claimant’s means of establishing causation impermissible, and the Commission’s finding that causation was proved will not be set aside unless contrary to the manifest weight of the evidence (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357-58).

Dr. David Fisher, claimant’s medical expert, stated that, in his opinion, there was a direct relationship between Stas’ death and his November 16, 1973, myocardial infarction. In support of his opinion that the two events were directly related, Dr. Fisher testified that the initial infarction resulted in a scarring of the heart which, particularly during the first year, made the heart more vulnerable to another attack because of its lessened ability to respond with muscular activity.

Respondent did not rebut this testimony at the arbitration hearing, but, on review before the Commission, it offered the opinion of Dr. Gerry Albin Smyth that Stas’ death and his myocardial infarction on November 16, 1973, were not causally related. On cross-examination, however, Dr. Smyth admitted that the damage resulting from the initial heart attack lessened Stas’ chances of surviving the second one.

Dr. Fisher provided competent testimony from which the Commission could have found that Stas’ death from this heart attack was causally related to his November 16 heart attack. Although Dr. Smyth contradicted Dr. Fisher on this point, the resolution of this conflicting medical testimony was a matter for the Commission (Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168, 177), and its finding of a causal relationship between the two heart attacks clearly was not against the manifest weight of the evidence. We need only determine, then, whether the earlier heart attack arose out of and in the course of Stas’ employment.

The 46-year-old Stas commenced work for Sears in 1958 or 1959. The evidence reveals that he had a drinking problem for 10 years prior to his entering Lutheran General Hospital and that the problem had intensified during the last 5 years. Claimant testified that, in late September or early October of 1973, Grunde asked her to meet with him to discuss Stas’ problems at work. During their meeting, Grunde said he thought Stas was an alcoholic, that he needed help, and that Sears would send him to Lutheran General Hospital for the help they thought he needed. According to claimant, Grunde also stated that if Stas did not get help for his problem, the company would take steps to terminate his employment “by means of a medical termination or otherwise.”

Claimant also testified that, during the two months prior to her conversation with Grunde, Stas was tense and nervous about work; that he smoked more, shook, had little appetite, and was impatient with family members. About mid-October, Stas stopped going to work. Then, late in the month, he told claimant, “I think I am going to take what Herb wanted me to do. I am going to go to. the Lutheran General.”

Upon entering the hospital, Stas underwent tests for three or four days and then was sent to the Alcoholic Rehabilitation Center. He remained there until Friday, November 16, 1973, the day of his heart attack, which, claimant was told, was very severe. On the day preceding the heart attack, the family had met with a therapist at the hospital to discuss Stas’ case. A meeting was scheduled between Stas and Grunde for 1 p.m. the next day.

Grunde testified that, a few weeks prior to Stas’ hospitalization, he “had some very firm conversations” with Stas regarding drinking and, about a week before Stas entered the hospital, told him if he did not get help, he would undoubtedly lose his job because of increasing absenteeism and decreasing quality of performance. Following this last conversation, Stas was away from work for about a week, then called one morning and asked Grunde to get him help. Grunde testified that he called a person employed in the Sears Group Insurance Department and, subsequently, received a call from a person at Lutheran General Hospital who told Grunde to have Stas report to the hospital on October 31, 1973. Grunde informed Stas that the arrangements had been made, told him when to report, and offered to take him to the hospital. After Stas had entered the hospital, Grunde talked to Miss Payne at the Rehabilitation Center on two occasions, once for a progress report on Stas, and once to arrange a counseling session.

Virginia Payne, a therapist at Lutheran General’s Alcoholic Rehabilitation Center, testified that she concluded after her initial interview with Stas that he was an alcoholic. With Stas’ agreement, she assisted in setting up a treatment program which included the involvement of Stas’ family and his employer. Sessions were held with Stas’ wife and children, but, Ms. Payne stated, just prior to the scheduled session with Grunde, Stas was transferred to the emergency room of the hospital. Payne could not recall whether she had talked to Stas in the 24-hour period prior to the scheduled session with Grunde. In describing a typical reaction to a meeting with the employer, she stated that the patient is typically “pretty frightened,” and that “[i] t would be surprising if they [weren’t].” During redirect examination, she said that a meeting of the type scheduled for Stas and his employer could be a stressful situation.

Dr. Fisher stated that, in his opinion, Stas’ myocardial infarction on November 16, 1973, was related to anticipation of the session scheduled with Grunde at 1 p.m. According to Dr. Fisher, the stress which Stas underwent caused overactivity of the adrenal gland and a resultant out-pouring of adrenalin which, in turn, prompted a rise in blood pressure and a concomitant increase in the rate of the heart beat. The body’s demand for oxygen increased in response to an active heart muscle and, because of a lack of sufficient oxygen, a portion of the heart muscle died and became scarred. Alcoholism, Dr. Fisher continued, causes the heart muscle to become flabby and soft, and more vulnerable to various' stimuli. He opined that Stas had arteriosclerosis, with a narrowing of the vessels which impaired their ability to supply blood to the heart.

Respondent called Dr. Nelson J. Bradley, a physician and psychiatrist who was chairman of the Department of Psychiatry at Lutheran General Hospital and medical administrator of the Alcoholic Rehabilitation Center. Dr. Bradley disclosed that, on admission, Stas’ electrocardiogram was normal. Presumably because of alcohol, there was evidence of damage to Stas’ central nervous system, he suffered from mild hypertension, his coping ability was poor, his defenses were down, and he was unable to deal with demands. Withdrawing Stas from alcoholism involved administering progressively smaller dosages of Valium over a period of several days until November 11, 1973, at which time Valium was discontinued. Stas’ heart attack, according to Dr. Bradley, was caused by the “total damage to the body” resulting from the excessive, prolonged use of alcohol. Dr. Bradley stated that “the heart [not the liver] is now the number one worry in the field of alcoholism.”

On cross-examination, Dr. Bradley admitted that a person with a history of hypertension is more prone to heart attacks and that the toxic effects of alcohol reduce the heart’s ability to withstand external stress. He admitted further that a person in the alcoholic rehabilitation program can experience anxiety, apprehension or tension prior to the first meeting with the employer, and that a feeling of stress, anxiety or tension can increase adrenalin output.

On review before the Commission, respondent presented the testimony of Mark Goodrich and Dr. Smyth. Goodrich, a training assistant with Grant Hospital’s Alcoholism Training Institute, felt that stress and anxiety are present throughout the alcoholic rehabilitation process, but that the presence of the employer, rather than adding to the stress, is a comforting and soothing factor for the alcoholic.

Dr. Smyth testified that alcohol has an adverse effect on the heart, and that it raises both the pulse and blood pressure. In the opinion of Dr. Smyth, there was no relationship between Stas’ myocardial infarction on November 16, 1973, and the meeting that was to take place with the employer that day. He stated, however, that stress produces increased adrenalin flow and, on cross-examination, that adrenalin injected into the system constricts the blood vessels, thereby increasing demands on the heart.

' Exhibits evidenced that, under respondent’s medical and employee-benefit plans, alcoholism is looked upon as any other illness. However, respondent’s concern with alcoholism, as with other illnesses, is limited to the effect it may have on an employee’s attendance and job performance. Stas entered Lutheran General Hospital under an alcoholic-treatment program subscribed to by respondent for its employees. While respondent claims Stas’ entrance into the program was voluntary, claimant argues that it was as the result of threats, duress, and coercion by respondent.

For Stas’ participation in the rehabilitation program to have been within the course of employment, it must have had a purpose related to his employment, i.e., his participation must have directly or indirectly carried out respondent’s purposes or advanced its interests.

We note that respondent established the alcoholic-rehabilitation program for its employees whose job performances became affected by their drinking. It was in the respondent’s interest to forestall, minimize or eliminate that effect and to increase employee productivity by making the program available. Respondent’s sponsorship is apparent in that the company made all arrangements for an employee’s entrance into the program, and included the cost within the package of employee benefits. That the respondent exercised persuasive pressures to gain Stas’ participation is evident in the testimony of both claimant and Grunde, for, minimally, Grunde strongly encouraged Stas to enter the program. These factors are sufficient to support a finding that Stas’ participation in the program was within the course of his employment with respondent.

Respondent points out that there was no direct evidence that Stas in fact experienced stress over the prospect of meeting with Grunde. Both Ms. Payne, Stas’ therapist, and Dr. Fisher expressed independent opinions as to the stress-inducing nature of a first meeting between the employer and the patient-employee. Dr. Bradley, respondent’s witness, also admitted to the possibility of anxiety prior to such a meeting. This accompanies evidence that Stas underwent periods of stress prior to the time in question, and was more susceptible to stress than the normal person. A medical witness can testify in terms of probabilities as to the cause of the heart attack; such testimony is not objectionable as being inconclusive or speculative. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) It is within the province of the Commission to decide questions of fact and to draw reasonable inferences from the evidence. Johnson Outboards v. Industrial Com. (1979), 77 Ill. 2d 67, 71-72; Bruno v. Industrial Com. (1964), 31 Ill. 2d 447, 448-49.

The Commission may well have determined that the rehabilitation program and the stress resulting from the scheduled session with the employer combined to cause Stas’ heart attack. Both factors were connected with his employment and presented risks greater than those to which the general public is exposed. (See County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) We cannot say that the Commission’s decision was contrary to the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Cook County is reversed and the award of the Commission is reinstated.

Judgment reversed; award reinstated.

MR. JUSTICE RYAN,

dissenting:

The majority of this court appears to me to have strained in order to reach a desired result. Although the awarding of compensation to a widow for the death of her husband may indeed be laudable, I fear that the placing of responsibility on the employer in this case may discourage the continuance of employer-sponsored rehabilitation programs. It is true that Sears may have derived some indirect benefits from the rehabilitation of its employees. It cannot be denied, however, that the primary beneficiaries of such a program are the alcoholics who have, through its use, been rehabilitated. There are, no doubt, many Sears employees who are leading productive lives today because of this program. I, for one, do not want to discourage employers from instituting or continuing activities which are so benficial to the employees. A death award under the present provisions of the Workmen’s Compensation Act is not insubstantial. Such an award could very well convince an employer that it is to its benefit not to attempt to rehabilitate its employees, but to discharge them. For this reason I dissent from the majority holding.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (Nos. 52368, 52472 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MIGUEL VALDEZ, Appellant (Robert A. DeVito, Director of Mental Health and Developmental Disabilities, Appellant).

      Opinion filed Feb. 1, 1980.

    Rehearing denied Mar. 28, 1980.

      James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellant Miguel Valdez.
    William J. Scott, Attorney General, of Springfield (Alan E. Grischke and John J. Posch, of Chicago, Special Assistant Attorneys General), for appellant Director of the Department of Mental Health and Developmental Disabilities.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Eisen-Stein, and Wesley H.H. Ching, Assistant State’s Attorneys, of counsel), for the People.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

On May 3, 1978, following a bench trial in the circuit court of Cook County, defendant, Miguel Valdez, was acquitted by reason of insanity (Ill. Rev. Stat. 1977, ch. 38, par. 115—3) of the murders of Lecia Agsaoay on April 3, 1977, and Dr. Jesus Lim on April 4, 1977. On May 11, 1978, in a hearing held pursuant to section 5—2—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—4(a)) defendant was found in need of mental treatment and remanded to the Department of Mental Health and Developmental Disabilities (hereafter the Department). The Department placed defendant for care and treatment at the John J. Madden Mental Health Center. Apparently in response to a notice dated November 1, 1978, that the Department was “considering granting [Valdez] off-grounds privileges to start December 15, 1978, in the company of his wife,” the State’s Attorney of Cook County, pursuant to section 5—2—4(d) (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—4(d)), requested a hearing. Defendant filed a “Petition for Discharge or Release to Isaac Ray Center.” On November 29, 1978, the Department notified the court that it had decided against recommending off-grounds privileges. We note parenthetically that neither of the notices given by the Department is contained in the record.

The circuit court overruled defendant’s objection that by reason of the notice of November 29, 1978, the matter was moot, and conducted an evidentiary hearing. Following the hearing the court entered an order in which it found that housing defendant with patients who receive only short-term treatment whereas he was in need of long-term care involving extensive psychiatric treatment was of “possible detrimental effect to [defendant’s] treatment.” The court ordered that the Department establish a treatment plan for defendant to provide individual treatment from a qualified psychiatrist for at least two sessions per week, each session to be not less than 45 minutes in length; counseling by a psychologist — mental-health specialist, familiar with his case, for a period of not less than 30 minutes each day, three times each week; and family and group therapy. The court also ordered that within 90 days of the entry of the order, the Department publish a memorandum directed to all of its units setting forth procedures and regulations to be followed in all cases in which the Department receives into its custody, care and control a patient committed under section 5—2—4 of the Unified Code of Corrections. Defendant and the Department appealed. We allowed direct appeal (73 Ill. 2d R. 302(b)) and consolidated the appeals for argument and opinion.

The testimony showed that defendant was assigned to one of eight pavilions at Madden, each of which provided residence for 28 persons. The pavilion to which he was assigned was staffed by one psychiatrist, a staff nurse (one nurse on each of three shifts), a social worker and an activity therapist. The individual involved in the therapy testified that although defendant, because of his acquittal, was considered “a special case,” he was seen by the psychiatrist only once each week for approximately 15 minutes and by the mental health specialist social worker only once each week for 15 to 30 minutes. During the 11-month period of his residence in that pavilion, it had been headed by three different psychiatrists, none of whom had established an active treatment program for defendant. Although he attended group therapy sessions, defendant did not participate in discussion. The testimony indicated that the effect of the group therapy was lessened because the pavilion to which defendant was assigned had a rapid rate of patient turnover and defendant was the only long-term-care patient residing in the pavilion.

The transcript contains conflicting professional opinions as to whether defendant had improved during his period of residence at Madden. Apparently he was continued on drug therapy to reduce the effects of his paranoia. Although his wife visited often, no family group therapy was instituted for him.

Dr. Robert A. Reifman, a psychiatrist and director of the Psychiatric Institute of the circuit court of Cook County, testified that defendant should be treated “on a deep therapy basis” which would involve seeing a psychiatrist once or twice each week.

Dr. James L. Cavanaugh, clinical director of the Department of Psychiatry at Rush-Presbyterian Hospital, testified that defendant’s treatment program should include “ongoing psychopharmacological treatment,” group therapy, and family psychotherapy, and that if he were under the care of the Isaac Ray Center at Rush-Presbyterian Hospital “we would start out by seeing him two times a week, definitely.”

At the time of the murders of which defendant was acquitted by reason of insanity, section 5—2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005—2—4(b)) provided that in the event of such acquittal the circuit court “shall enter an order finding the defendant to be in need of mental treatment and hospitalizing the defendant in the custody of the Department of Mental Health and Developmental Disabilities for an initial period not to exceed 12 months from the date of such order. The order of the court shall be in the form of and shall produce the same effects and subsequent review proceedings as an order of hospitalization under the Mental Health Code of 1967 ***.” Release from such commitment was governed by the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 91½, par. 1—1 et seq.), which provided for discharge upon the order of the superintendent of the hospital where the acquitted was placed. Ill. Rev. Stat. 1975, ch. 91½, par. 10—4.

Effective August 1, 1977, section 5—2—4 was amended to provide that in the event of such acquittal a hearing was to be held under the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 91½, par. 1—1 et seq.) to determine whether the defendant was in need of mental treatment. If found to be in need of mental treatment the court was to enter an order so specifying. The initial order for admission is for an indefinite period of time subject to the provision that such period of commitment shall not exceed “the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—4(b).) The statute provides that when the defendant is no longer in need of mental treatment, or in the event that he continues to be in need of mental treatment, release or discharge is appropriate, under specified conditions, the superintendent must give written notice not less than 30 days prior to such release to the State’s Attorney of the county where the criminal proceeding took place and to the court which found the defendant mentally ill and in need of mental treatment. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(d).) The statute further provides:

“(h) If the court finds that the defendant is no longer in need of mental treatment it shall order the superintendent to discharge or release the defendant.
(i) If the court does not so find, it may order the superintendent not to discharge or release the defendant, or may order discharge or release under such conditions *** which reasonably assure the defendant’s satisfactory progress ***.
(j) The court may subsequently modify the conditions for release or discharge of a defendant who continues to be in need of mental treatment, including remanding him to a facility, when in its judgment such modification is appropriate to reasonably assure either the defendant’s satisfactory progress in treatment or his safety and the safety of others. ***” Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 2-4(h), (i), (j).

Defendant contends that although the hearing was held, and the order appealed from entered, subsequent to the effective date of the amendment of section 5 — 2—4, the circuit court erred in applying the amended provisions. He argues that those provisions became effective subsequent to the date of the commission of the offenses of which he was acquitted and that the retroactive application of the changes violated established principles of statutory construction. He contends further that the provision for judicial review of the Department’s decision to release defendant deprived him of equal protection of the law. He argues that had he been involuntarily committed on any other basis, he would be subject to discharge when, in the judgment of the Department, he no longer was subject to involuntary admission (Ill. Rev. Stat., 1978 Supp., ch. 91½, par. 3—902), and that the distinction creates an unreasonable classification violative of the equal protection clauses of the Illinois and the United States constitutions.

We consider first defendant’s contention that the circuit court erred in applying the provisions of section 5—2—4, as amended effective August 1, 1977. We do not agree. As the court said in Sipple v. University of Illinois (1955), 4 Ill. 2d 593, 597:

“It is well established that a statute is not retroactive just because it relates to antecedent events. [Reynolds v. United States, 292 U.S. 443; Cox v. Hart, 260 U.S. 427.) As stated by Judge Briggle in United States v. Bradley, 83 Fed. 2d 483, 484, ‘Authority is abundant to support the proposition that an act is not retroactive merely because it involves facts which antedate the passage of the act.’ ”

The occurrence which invoked the provisions of the statute was not the commission of the offenses with which defendant was originally charged; the statute was invoked by his acquittal by reason of insanity. Furthermore, the amendment did not affect any right which defendant had acquired as of the effective date of the change (People v. Anderson (1973), 53 Ill. 2d 437), and the circuit court correctly applied the statute as amended.

We consider next defendant’s contention that the statutory provision for judicial review of the Department’s decision to release him deprived him of equal protection of the law. We have examined the authorities cited in support of the argument (Baxstrom. v. Herold (1966), 383 U.S. 107, 15 L. Ed. 2d 620, 86 S. Ct. 760; Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845; Reynolds v. Sheldon (1975), 404 F. Supp. 1004; Wilson v. State (1972), 259 Ind. 375, 287 N.E.2d 875; Humphrey v. Cady (1972), 405 U.S. 504, 31 L. Ed. 2d 394, 92 S. Ct. 1048) and find that they did not involve the precise issues presented here. Simply stated, the first question presented is whether defendant, acquitted by reason of insanity and committed under the provisions of section 5 — 2—4 of the Unified Code of Corrections, was deprived of equal protection because the statute provides for judicial review of the decision of the Department to release him, whereas if he were committed under the provisions of the Mental Health Code, no such judicial review would be required. The second question presented is whether an unreasonable classification was created because the statute provides for such review only during the maximum period of time that defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole, had he been convicted of, and received the maximum sentence for, the most serious crime for which he had been acquitted by reason of insanity.

We find persuasive the holdings of the courts of appeals in United States v. Ecker (D.C. Cir. 1976), 543 F.2d 178, and Powell v. Florida (5th Cir. 1978), 579 F.2d 324, involving, respectively, statutes of the District of Columbia and Florida. The courts of appeals rejected the contention made by defendant here, holding that the dangerousness demonstrated by the acts committed in the perpetration of the criminal offenses justified the additional safeguard provided in the statutory provisions for judicial review. We agree, and hold that the requirement for the hearing does not serve to deprive the defendant of equal protection of the law.

In support of his contention that the statute creates an unreasonable classification, defendant argues that the maximum sentence period is irrelevant to the reason for his commitment and that it is irrational to require judicial review only until he is eligible for parole. As the court said in Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506:

“Traditional equal protection analysis, applicable in this case, requires us to determine whether the classification of defendants bears a rational relationship to a legitimate State purpose. (S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 76.) ‘A statute classifying persons or objects is not unconstitutional because it affects one class and not another, provided that it affects all members of the same class alike and provided that the classification is not arbitrary, but based upon some substantial difference in circumstances properly related to the classification.’ ” 67 Ill. 2d 506, 512.

The Governor’s Commission For Revision Of The Mental Health Code Of Illinois (1977), after discussing United States v. Ecker and the statute there involved (D.C. Code sec. 24 — 301(d)(1) (1973), noted that the provision allowing for judicial review was based on previous determination of manifested dangerousness, and said:

“[T] he period of such judicial supervision should be related to the seriousness of the act involved as expressed in the sentence authorized by statute. Thus, under its recently enacted proposal, the period of judicial review terminates when the defendant would have become eligible for parole had he been sentenced to the maximum period provided by law for the offense proved.” (Governor’s Commission For Revision Of The Mental Health Code Of Illinois 47 (1977).)

Apparently the General Assembly found this to be persuasive, and as we said in Garcia v. Tully (1978), 72 Ill. 2d 1:

“Whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. (Schreiber v. County of Cook (1944), 388 Ill. 297; Stewart v. Brady (1921), 300 Ill. 425.) If there is a reasonable basis for the classification and it bears a reasonable and proper relation to the purposes of the Act, the classification is not unreasonable. Williams v. City of Chicago (1977), 66 Ill. 2d 423; People ex rel. County of Du Page v. Smith (1961), 21 Ill. 2d 572; Crews v. Lundquist (1935), 361 Ill. 193.” (72 Ill. 2d 1, 10-11.)

We hold that the provision does not violate the equal protection clause of either the Constitution of the United States or the Illinois Constitution of 1970.

The Department contends that the circuit court was without jurisdiction to order the implementation of a specific court-designed treatment plan for defendant. It argues that the circuit court’s order violates the doctrine of separation of powers, that the powers of the court are limited to determining whether or not the discharge should be granted, and that the General Assembly has delegated to the Department the exclusive authority to make clinical decisions concerning defendant’s treatment. It argues, further, that the circuit court’s order directing the Department to issue a memorandum to all its units setting forth the procedures and regulations governing the admission and treatment of persons committed to its care following an acquittal by reason of insanity was without any basis in law or equity, and is therefore void.

In support of its contention that the circuit court was without jurisdiction to order the implementation of a specific court-designed treatment plan for defendant, the Department, citing People ex rel. Pauling v. Misevic (1964), 32 Ill. 2d 11, and People v. Nunes (1965), 58 Ill. App. 2d 55, argues that the power of the courts over insane persons is derived only through legislative enactments and must be exercised in strict conformity with the governing statutes. It argues that the circuit court was authorized to choose between only those dispositions expressly authorized in the statute.

The rationale of the cases upon which Pauling and Nunes relied was that the State, as parens patriae, exercised the same control over insane persons as was formerly exercised in England by its king. The English courts of chancery, in the absence of statutory enactment, did not have jurisdiction over insane persons. When those earlier cases were decided, the Illinois Constitution provided that the circuit court had “original jurisdiction of all causes in law and equity” (Ill. Const. 1870, art. VI, sec. 12), and it was held that the equity jurisdiction of the court did not, in the absence of legislative action, extend to insane persons. The Constitution of 1970 provides that the “Circuit Courts shall have original jurisdiction of all justiciable matters***” (Ill. Const. 1970, art. VI, sec. 9), and the rationale of Pauling is no longer applicable.

Having determined that the circuit court had jurisdiction, we consider whether in entering its order it correctly construed the statute. Section 5—2—4(b) provides in pertinent part:

“Not more than 30 days after admission and every 60 days thereafter so long as the initial order for admission remains in effect, the superintendent shall file a treatment plan with the court. Such plan shall include an evaluation of the defendant’s progress and the extent to which he is benefiting from treatment.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—4(b).)

Section 5—2—4(i) provides that if the court does not find, following a hearing, that the defendant is no longer in need of mental treatment, “it may order the superintendent not to discharge or release the defendant, or may order discharge or release under such conditions proposed by the superintendent or imposed by the court which reasonably assure the defendant’s satisfactory progress in treatment or habilitation and for the safety of the defendant and others. The court shall consider terms, conditions and supervision which may include, but need not be limited to, notification and discharge of the person to the custody of his family, community adjustment programs, periodic checks with legal authorities and the Department of Mental Health and Developmental Disabilities, and out-patient care and utilization of local mental health facilities.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005—2—4(i).) There would appear to be little reason for the inclusion of the foregoing statutory provisions if it were not for the purpose of enabling the circuit court to monitor the progress of the treatment being rendered a defendant acquitted by reason of insanity.

The Department argues that “under the statute the circuit court may only (1) modify its original order, or (2) order the patient discharged.” We have searched the Department’s brief in vain for an explanation of what modification is permissible under the statute and the nature of the alleged statutory limitations on the power to modify the original order. We are not confronted here with an assertion by the Department that its facilities do not enable it to conform with the order, or the contention that compliance with the order will not be beneficial to defendant. Simply stated, its position seems to be that the court is without authority, either by reason of its lack of statutory authority, or by reason of the doctrine of separation of powers, to direct the Department as to the manner in which it is to perform its duties. We do not agree. The record amply supports the circuit court’s findings and demonstrates the wisdom of providing for judicial review of the treatment of those acquitted by reason of insanity, and we hold that the court did not err in the entry of its order.

We consider next the contention of the Department that the order of the circuit court directing it to publish a memorandum to all its units regarding the admission and treatment of persons committed to its care following an acquittal by reason of insanity was without any basis in law and void ab initio. We need not and do not consider the question whether the circuit court had jurisdiction to require the Department to issue this type of memorandum. The issue before the circuit court was the adequacy of the course of treatment furnished defendant. The scope of the inquiry, as delineated by the statute, extends only to this defendant and not to the general practices and procedures of the Department. We hold, therefore, that in entering that portion of its order the court erred.

For the reasons stated, the order directing the Department to issue the memorandum is vacated and in all other respects the order of the circuit court is affirmed.

Affirmed in part and vacated in part.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 51824.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LESTER RONALD ALDRIDGE, Appellant.

      Opinion filed January 23, 1980.

    Rehearing denied March 28, 1980.

      Richard J. Wilson, Deputy Defender, and Charles M. Schiedel and Donald T. McDougall, Assistant Defenders, of the Office of the State Appellate Defender, of Springfield, for appellant.
    William J. Scott, Attorney General, of Springfield, and C. Joseph Cavanagh, State’s Attorney, of Sangamon County (Donald B. Mackay and Stuart H. Shiffman, Assistant Attorneys General, and Marc E. Towler, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Lester Ronald Aldridge was found guilty of murder by a jury in the Sangamon County circuit court and was subsequently sentenced to imprisonment for a term of not less than 90 nor more than 120 years. The appellate court affirmed (68 Ill. App. 3d 181), and we allowed leave to appeal.

Defendant here urges that it was a violation of his rights to assistance of counsel and to due process, presumably based on the sixth and fourteenth amendments of the United States Constitution, for the police to interrogate him in the absence of counsel and that his confession should therefore have been suppressed. Furthermore, he asserts that the trial court’s admission of the confession was against the manifest weight of the evidence, which he contends demonstrated that he . neither knowingly nor voluntarily waived his rights and confessed. We disagree with both contentions and affirm.

On January 17, 1976, Vicki Jo Leka was found dead from multiple gunshot wounds in a rural area of Sangamon County. Some two months later, upon seeing the defendant shooting a firearm out of the driver’s window of an automobile, two Sangamon County deputy sheriffs arrested and searched him. After determining that evidence seized during that search linked the defendant to the shooting of Ms. Leka, a detective interviewed the defendant in the presence of his attorney on April 26. Four days later, three officers stopped the defendant in his car on a street in Springfield. With the defendant’s consent, the officers searched his car and home, and took him to the area where Ms. Leka’s body had been discovered. Defendant was there questioned, and there is disputed testimony that he was threatened with force should he attempt to flee from the scene. Questioning was resumed upon return to the sheriff’s office but was terminated when defendant’s counsel arrived and advised his client not to answer. The testimony is controverted as to whether the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, were given to the defendant on this date. However, there is no indication from the record that the defendant requested and was denied the assistance of counsel or that any evidence was obtained from this interrogation. F oil owing continued investigation, the defendant was arrested and incarcerated on June 14.

Defendant maintains that during June 28 questioning by the sheriff and other officers in the Sangamon County jail he repeatedly requested and was denied the assistance of counsel and that the investigating officers attempted to compel him to confess to the homicide. The officers, however, denied that defendant requested counsel or that they sought to compel a confession. Moreover, one officer testified that defendant declined the assistance of counsel when offered to him.

Because the defendant’s allegedly poor personal hygiene was provoking hostile reactions from other inmates and because he was drinking more than his share of coffee and smoking cigarettes in excessive quantities, defendant was, on June 29, placed alone in a cell in the “deadlock” area of the jail, where he remained for two days. While there his consumption of coffee and cigarettes was limited to amounts which are disputed, and he, as well as some other inmates, had no blankets or sheets for their mattresses. Upon release therefrom, he was transferred to the detention section until August 6, when he was returned to the general jail population.

On July 1 defendant’s counsel sought to enjoin the sheriff and his deputies from questioning defendant in the absence of his attorney. The trial judge denied an injunction but noted that the hearing thus held had apprised the officers that the defendant had an attorney and did not want to be questioned further about the homicide without the assistance of his counsel.

No further questioning by the officers occurred for more than a month. On August 2 defendant informed a jailer of his desire to confess to the crime of murder with which he had been formally charged four days previously. After the investigative officers had been assembled, the defendant signed a form declaring that he was knowingly and willingly waiving his right to counsel and that his decision to make a statement and answer questions was not induced by promises, threats, pressures or coercion of any type. Even after being reminded of the previous court proceeding wherein the defendant’s attorney requested that he be contacted prior to any further questioning of his client, the defendant declined an offer by the officers to contact his counsel. Defendant was also orally advised of his Miranda rights before he proceeded with his statement. During his confession defendant several times indicated a reluctance to discuss the details of the killing. In response to questions at the close of this session, the defendant again indicated that the officers were there at his request, that they had not threatened, promised, or coerced him in any way, and that his statement was voluntarily given.

On September 8 a motion to suppress this confession was filed, followed by a hearing at which psychological testimony and reports concerning the defendant’s fitness for trial and ability to voluntarily and knowingly waive his Miranda rights were presented. Testimony was also given by the investigative authorities who had observed the defendant at the time of his confession. The trial court ruled that defendant had knowingly, understandingly and voluntarily waived his right to counsel at the time of the August 2 confession.

Defendant urges that his confession should have been suppressed because his right to counsel was waived in the absence of the attorney whom defendant had retained and whose assistance had been requested earlier at all subsequent questioning of the defendant by police officers. It is well established, however, that the right to the assistance of counsel during interrogation may be subsequently waived despite an initial request therefor. (People v. Morgan (1977), 67 Ill. 2d 1, 5, cert. denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Kelley (1973), 10 Ill. App. 3d 193, 197; see also People v. Medina (1978), 71 Ill. 2d 254, 263; People v. Washington (1977), 68 Ill. 2d 186, 194, cert. denied (1978), 435 U.S. 981, 56 L. Ed. 2d 72, 98 S. Ct. 1631.) As was said in Watson v. State (1977), 35 Md. App. 381, 386, 370 A.2d 1149, 1152, “The right to have counsel present during an interrogation is a right of the defendant and not a right of defendant’s counsel.” To hold as irreversible an initial request for counsel “ ‘would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.’” (People v. Morgan (1977), 67 Ill. 2d 1, 5, cert. denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; quoting Michigan v. Mosley (1975), 423 U.S. 96, 102, 46 L. Ed. 2d 313, 320, 96 S. Ct. 321, 325-26.) That his retained counsel was neither notified nor present when the defendant chose to forgo the assistance of counsel does not compel the invalidation of this waiver if otherwise voluntarily and knowingly made. (See Brewer v. Williams (1977), 430 U.S. 387, 405-06, 413, 51 L. Ed. 2d 424, 441, 445, 97 S. Ct. 1232, 1243, 1246; People v. Morgan (1977), 67 Ill. 2d 1, 6, cert. denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Kelley (1973), 10 Ill. App. 3d 193, 197; see also Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L.J. 1, 95 (1978).) In order to establish a valid waiver of the right to counsel, however, the State must prove “ ‘an intentional relinquishment or abandonment of a known right or privilege. ’ ” (Brewer v. Williams (1977), 430 U.S. 387, 404, 51 L. Ed. 2d 424, 439, 97 S. Ct. 1232, 1242, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023; see also People v. Medina (1978), 71 Ill. 2d 254, 263; People v. Washington (1977), 68 Ill. 2d 186, 194, cert. denied (1978), 435 U.S. 981, 56 L. Ed. 2d 72, 98 S. Ct. 1631; People v. Turner (1973), 56 Ill. 2d 201, 205.) Moreover, this court has repeatedly emphasized that a determination regarding the voluntariness of a confession by a trial judge who has seen and heard the witnesses will not be disturbed on review unless found to be contrary to the manifest weight of the evidence. People v. Medina (1978), 71 Ill. 2d 254, 258; People v. Wipfler (1977), 68 Ill. 2d 158, 171; People v. Higgins (1972), 50 Ill. 2d 221, 225, cert. denied (1972), 409 U.S. 855, 34 L. Ed. 2d 100, 93 S. Ct. 195; People v. Johnson (1970), 44 Ill. 2d 463, 469-70, cert. denied (1970), 400 U.S. 958, 27 L. Ed. 2d 266, 91 S. Ct. 356.

The record here establishes that the confession was made more than a month after defendant had indicated he did not want to be questioned in the absence of his attorney, clearly distinguishing this case from those in which interrogation producing a confession closely follows the request for counsel. (Compare People v. White (1975), 61 Ill. 2d 288, with People v. Turner (1973), 56 Ill. 2d 201, 207, and People v. Henenberg (1973), 55 Ill. 2d 5, 12.) Also, defendant’s wish not to be questioned without counsel present had been respected by the authorities during that substantial interval, and it was only after defendant told a jailer that he wanted to talk to the sheriff that the officers again conferred with him. In addition to meeting with defendant only after he had requested they do so, the officers advised him of his Miranda rights and he signed a form waiver; additionally, it was testified, the officers offered to contact his retained counsel, an offer which defendant declined. In our opinion there is ample evidence on which the trial court could properly have found that the State had met its burden of proving that the defendant intentionally relinquished a right known to him, and the court’s finding clearly was not contrary to the manifest weight of the evidence. People v. Morgan (1977), 67 Ill. 2d 1; People v. White (1975), 61 Ill. 2d 288.

Defendant further asserts that the police actions, when coupled with his alleged mental illness, compel the conclusion that his waiver of the right to counsel and his confession were involuntary.

We do not find the psychiatric evidence so persuasive. Dr. Phillip Bornstein, a licensed psychiatrist, originally found the defendant to be unfit for trial and incapable of making a voluntary waiver of his Miranda rights at the time of his confession. By the time of the suppression hearing, however, and after examining the defendant in subsequent consultations, Dr. Bornstein changed his opinion and concluded that the defendant was fit for trial. On the basis of a psychological evaluation performed at the request of defendant’s family in March of 1977, the psychologist’s report finding the defendant unfit to stand trial was admitted into evidence without objection. After periodic consultation conducted during the pretrial period another licensed psychiatrist, Dr. E. Zilinskas, consistently found that the defendant was competent when the crime was committed, was fit to stand trial, and had changed his defense on the advice of counsel. This conflicting psychiatric evidence is readily distinguishable from the compelling evidence of insanity presented in Blackburn v. Alabama (1960), 361 U.S. 199, 208, 4 L. Ed. 2d 242, 249, 80 S. Ct. 274, 281, relied upon by defendant. When considered with the testimony of the officers who had observed the defendant at the time his confession was made and who testified that the defendant appeared to comprehend the Miranda warnings read to him and did not seem to be particularly nervous, confused or incompetent when confessing to the killing, it is clear that the trial judge’s findings that the defendant had knowingly and voluntarily waived his right to counsel and that the confession was admissible were not contrary to the weight of the evidence. See People v. Hester (1968), 39 Ill. 2d 489; People v. Cooper (1975), 30 Ill. App. 3d 326, cert. denied (1976), 425 U.S. 994, 48 L. Ed. 2d 818, 96 S. Ct. 2206; People v. Reed (1972), 8 Ill. App. 3d 977.

Finally, the defendant maintains that the failure of the interrogating officers to heed his attempts to discontinue answering questions concerning details of the murder rendered his confession inadmissible. While a defendant has the right to,terminate an interrogation through an assertion of his right to remain silent (Michigan v. Mosley (1976), 423 U.S. 96, 104-05, 46 L. Ed. 2d 313, 322, 96 S. Ct. 321, 327; Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28; People v. Washington (1977), 68 Ill. 2d 186, 191, cert. denied (1978), 435 U.S. 981, 56 L. Ed. 2d 72, 98 S. Ct. 1631), it does not appear from the record that the defendant did so here. Rather than attempting to terminate the questioning altogether, defendant merely resisted answering questions concerning particular details of the offense to which he had confessed. Throughout the remainder of the 24-minute period, the defendant responded to other questions without apparent reluctance. Clearly the circumstances here reveal no violation of the defendant’s privilege against self-incrimination.

The judgment of the appellate court is accordingly affirmed.

Judgment affirmed.


author: MR. JUSTICE MORAN

text:
    (No. 51888.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN CREACH et al., Appellees.

      Opinion filed Feb. 22, 1980.

    Rehearing denied March 28, 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, of Chicago, and Marcia B. Orr, Joan S. Cherry and Richard Heytow, Assistant State’s Attorneys, of counsel), for the People.
    Edward M. Genson, of Chicago (Jeffrey B. Steinbeck, of counsel), for appellee John Creach.
    Patrick G. Reardon, of Chicago (Edward Burke Arnolds, of counsel), for appellee Thomas Ruppert.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The body of Dolores Irion was found at approximately 7 a.m. on September 25, 1973, lying near the CTA tracks in Evanston. She had died there as a result of receiving multiple stab and gunshot wounds. In connection therewith, defendants, John Creach and Thomas Ruppert, were charged with murder and armed robbery. The circuit court of Cook County adjudged Creach guilty of murder and armed robbery, and Ruppert guilty of armed robbery. The appellate court, in a split decision, reversed the convictions and remanded for a new trial. (69 Ill. App. 3d 874.) We granted the State leave to appeal.

The only contentions made by the State are (1) the defendants were not arrested at their initial confrontation with, the police; (2) even if defendants were arrested at such time, probable cause existed for their arrest; and (3) the appellate court erred in holding that the trial court should have instructed the jury on the affirmative defense of compulsion as to defendant Ruppert. Because of our holding herein, it is unnecessary that we resolve the last stated issue.

Defendants filed a pretrial motion to suppress certain statements and other evidence. At the hearing on the motion to suppress, Evanston police officers Glanz and Birkenheier testified as to facts and circumstances known to them prior to confronting the defendants. According to the officers, Detective Mitchem of the Evanston Police Department told them that he had spoken to Creach’s mother, Dolly Moore, during the day on which Dolores Irion’s body was discovered. Mrs. Moore, who lived next door to the victim in Chicago, told Detective Mitchem that she had had a telephone conversation earlier that day with her son, who was in Ohio.

The officers also testified that shortly after 8 a.m. on the following day, September 26, 1973, they went to the home of Mrs. Moore. She repeated the telephone conversation she had with her son the previous day. In addition, she stated to the officers that she informed her son, during the same telephone conversation, that Dolores Irion had been murdered; that Creach responded that he was in Ohio with a friend, Tom; and that he had last seen Dolores Irion at 1:30 a.m. on September 25, 1973, when he left for Ohio in her 1966 Cadillac. During this telephone conversation Mrs. Moore asked her son to come home immediately; Creach responded that he would. Mrs. Moore described Tom to the officers as a short youth with fair hair. Mrs. Moore also informed the officers that Creach had been living with Irion periodically during the last four weeks, had been driving Irion’s car, and had been taking her to and from work.

The officers also related that the Evanston police had independently confirmed that the victim’s car was missing, that it had rained heavily until about midnight on the evening of September 24, 1973, but that, when the victim’s body was discovered, the clothing was dry, indicating that the victim had not been killed until after midnight. The police knew of no one other than Creach who had seen the victim alive after that time.

Further, while at the home of Mrs. Moore, Officer Glanz was shown a photograph of Creach. The officers told Mrs. Moore that they were going to take the defendants, upon their return from Ohio, to the Evanston police station for questioning. The officers then returned to their squad car to maintain a surveillance over Mrs. Moore’s home. At approximately 9:30 a.m., they observed the defendants approach Mrs. Moore’s home on foot. Officer Glanz admitted that, at this point in time, the officers took the defendants into custody from which they were not free to leave, that they “patted [the defendants’] clothing down,” and then transported the defendants to the Evanston police station.

The trial court found that the defendants were arrested at the time of their initial contact with the police in front of Mrs. Moore’s residence, and that there was probable cause for the arrest of both defendants. It therefore denied the motion to suppress. The appellate court agreed that the defendants were arrested at their initial encounter with the police, but held that probable cause for the arrests was lacking.

The State contends that the defendants were not arrested until after they were transported to the Evanston police station. In support of its position, the State relies principally upon this court’s decision in People v. Wipfler (1977), 68 Ill. 2d 158. We, however, find that case to be factually distinguishable from and inapplicable to the case before us. Rather, we hold the instant case to be controlled by the recent United States Supreme Court decision in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248. Dunaway held that detention for custodial interrogation, regardless of whether it is technically labeled an arrest, intrudes so severely on interests protected by the fourth amendment as to require the existence of probable cause to arrest. The circumstances to which the court applied the traditional probable cause standard were as follows. The defendant was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He would not have been free to leave the custody of the officers. The court expressly declined to apply to this situation the balancing test which it had adopted in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, for judging the propriety of certain fourth amendment “seizures” substantially less intrusive than arrests.

The circumstances in the case at bar are indistinguishable in all pertinent aspects from those in Dunaway. During the hearing on the motion to suppress, Officer Glanz testified that, at their initial encounter with the defendants, he and Officer Birkenheier took the defendants into custody from which they would not have been free to leave, and that the defendants’clothing was patted down. Although Birkenheier was not, at that hearing, questioned about the officers’ initial contact with the defendants, he testified at trial that “We approached the two subjects, identified ourselves, and conducted a frisk.” He stated further that defendants were advised that “They would have to come with us to the Evanston police station. ”

The State points out that the defendants returned from Ohio voluntarily. In this connection, the Dunaway court noted that the lower court had found that the case did not involve a situation wherein the defendant voluntarily appeared at the police station in response to a police request. Regardless of the voluntariness of the defendants ’ return from Ohio, it is clear from the evidence that their transport to the police station was involuntary. (442 U.S. 200, 206, 207 n.6, 60 L. Ed. 2d 824, 831, 832 n.6, 99 S. Ct. 2248, 2252, 2253 n.6.) Finally, it is of no import that this detention of the defendants may have occurred during an investigative, rather than an accusatory stage. (442 U.S. 200, 214, 60 L. Ed. 2d 824, 837, 99 S. Ct. 2248, 2257.) For these reasons we find no merit to the State’s first contention.

The State next argues that, even if, for fourth amendment purposes, defendants were arrested at the time of their initial encounter with the police, probable cause existed for their arrest. Probable cause to arrest exists “when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” (People v. Robinson (1976), 62 Ill. 2d 273, 276. See also People v. Wright (1974), 56 Ill. 2d 523, 528-29, quoting from Brinegar v. United States (1949), 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310-11; Dunaway v. New York (1979), 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 n.9, 99 S. Ct. 2248, 2254 n.9.) This court has stated:

“Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. ” People v. Clay (1973), 55 Ill. 2d 501, 504-05.

We hold that there was sufficient evidence introduced at the hearing on the motion to suppress for the trial court to rule that, at the time that Officers Glanz and Birkenheier took defendant Creach into custody, probable cause existed for his arrest. The officers knew that Creach had been living with the victim, that she most likely had been killed sometime after midnight on September 25, 1973, that Creach had last seen her at 1:30 a.m. on that date, just hours prior to the time' the body was discovered, and that he had unexplainedly left for Ohio in the victim’s car. We conclude that, having these facts in mind, Officers Glanz and Birkenheier were reasonably justified in believing that Creach was responsible for the victim’s death.

The only evidence available as to Ruppert, however, was that he was a short youth with fair hair, was a friend of Creach, and was with Creach in Ohio. This evidence was manifestly insufficient to establish probable cause for the arrest of Ruppert. We note that, with respect to searches, “probable cause particularized with respect to [the] person *** cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.” (Ybarra v. Illinois (1979), 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 342.) Similarly, probable cause to arrest a particular individual does not arise merely from the existence of probable cause to arrest another person in the company of that individual.

As to defendant Creach, we reverse the portion of the appellate court judgment which reversed his conviction, and affirm the judgment of the circuit court. As to defendant Ruppert, the appellate court judgment, reversing his conviction and remanding for retrial, is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part.