text:
    (No. 57152.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES ROYSE, Appellant.

      Opinion filed December 16, 1983.

      Louis B. Garippo, of Louis B. Garippo, Ltd., of Chicago (Susan G. Feibus, of counsel), for the appellant.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield (Michael B. Weinstein, Darrell Panethiere, and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

Defendant, James C. Royse, was arrested on January 10, 1980, and charged with unlawful delivery of more than 30 grams of a controlled substance, cocaine (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2)). Defendant was convicted on November 14, 1980, and a motion for a new trial was denied on January 22, 1981. A divided appellate court affirmed the circuit court of Williamson County (107 Ill. App. 3d 326), and we granted defendant’s petition for leave to appeal (87 Ill. 2d R. 315(a)).

Defendant, James Royse, was residing at 238 McNeil, Carterville, Illinois, when he was arrested by agents of the Southern Illinois Enforcement group. Also residing at that address were codefendant, Kevin Young, and his girlfriend, Debbie Clinton. Royse had moved to the 238 McNeil address in November of 1979, and had paid Young $80 a month rent, plus a portion of the utilities. Royse had moved there at the invitation of Debbie Clinton because she felt it would be more economical for three people to share living expenses.

In December of 1979, undercover agents Bruce Townsend and William Mehrtens visited 238 McNeil to inquire about the availability of drugs. The first time agent Mehrtens visited the address was on December 11, 1979, when he purchased four blotter squares of LSD from Young. Mehrtens made arrangements to purchase more LSD two days later. When Mehrtens returned on December 13, 1979, Royse answered the door. Mehrtens and Royse provided conflicting accounts of the subsequent transaction. Mehrtens testified that Royse stated Young was not home, and that Mehrtens told Royse that he had arranged a purchase of LSD for that night. Royse went to the kitchen and returned with the LSD. He took the money and indicated that he would give it to Young. Mehrtens testified at the preliminary hearing that Royse told him it was not his business, that he did not want anything to do with it, and that in the future, Mehrtens should talk to Young.

Royse testified that he told Mehrtens that “he could not help him at all,” and that Mehrtens pressured him to get the LSD. Royse testified that Mehrtens was angry and that Young would also be angry if Royse “blew the deal” that Young had set up. Royse knew that Young was out of work and that Young would be mad if Royse did not get him some money. Royse testified that he went to a cabinet where he had seen Young store some papers. Royse brought papers labeled “LSD” to Mehrtens, and Mehrtens placed $32 on a table in exchange for the four blotter squares of LSD he found in the papers.

Undercover agent Townsend first visited 238 McNeil on December 19, 1979, and he returned there approximately six times between December 19, 1979, and January 9, 1980. At trial, Townsend testified that he and Mehrtens drove to 238 McNeil on January 9, 1980, and that he talked with Kevin Young. Young said he did not have any LSD, but that he had something else that Townsend might be interested in. They went into the kitchen, and Young showed him a white, powdery substance that Young said was cocaine. Young said that he had three ounces available, and that the price was $500 per quarter ounce.

Townsend testified that he and Mehrtens returned to 238 McNeil Street later that day to obtain a “taster” of cocaine. Townsend and Mehrtens returned to Carbon-dale, where they performed a field test that reacted positively for the presence of cocaine. Townsend testified that he did not discuss the deal with Royse or Clinton, although they were present on January 9,1980.

The two agents returned to 238 McNeil on January 10, 1980, at about 12:30 p.m. Mehrtens remained in the car with $4,500 in prerecorded bills while Townsend went into the house. Townsend testified that he asked Royse and Young whether it was “snowing” outside, referring to the availability of cocaine. Townsend testified that Royse and Young replied affirmatively. Townsend further testified that he said someone should come out to the car and count the money, and that Royse sat in the front seat of the agents’ car and counted the money twice. Mehrtens and Townsend both testified that Royse drove away in his car to obtain the cocaine. They indicated that Royse returned with the cocaine and that Royse, Young, Mehrtens and Townsend completed the transaction in the kitchen at 238 McNeil.

Royse’s version of the events leading up to the arrest is quite different from that provided by Townsend and Mehrtens. Royse testified that on January 10, 1980, he was in the back yard when agent Townsend arrived. When he went inside, he saw Townsend talking to Young, but sat down to watch television with Debbie Clinton. Young called out that he “needed someone to count the money.” At that point, Royse realized Townsend was there to buy cocaine, and he said he did not want to get involved. Royse testified that Townsend called him “a chicken sh-” and a “narc,” and that Young threatened to throw him out of the house if he did not help. Royse was unemployed and owed Young $80, so he complied with Young’s request. Royse told Townsend, “This is none of my business and I really don’t want to get involved at all.” When Royse returned to the house, Young gave him a packet of cocaine and told him to drive around for a short time so it would appear that the cocaine had not come from the house. When Royse returned, he threw the cocaine on Young’s scale, claiming he had nothing to do with the deal, and left the room.

Young, Royse and Clinton were arrested after this transaction. Debbie Clinton pleaded guilty to a lesser charge of possessing less than 30 grams of cocaine and did not receive a prison sentence. Young forfeited bond and did not appear for trial. Young was tried in absentia under section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1). Royse was tried jointly with Young and asserted the defense of entrapment. The jury was instructed as to entrapment and accountability.

Before trial, Royse’s lawyer received an offer of employment from the prosecutor. Defense counsel accepted the offer of employment shortly after Royse and Young were found guilty as charged. No conflict-of-interest question was presented on appeal to the appellate court or in this court, but defendant Royse was represented by different counsel at the sentencing hearing. After oral argument, the trial judge made the following statement:

“I believe that the commission was probably facilitated and induced by the codefendant Young. The defendant has no history of prior criminal or delinquent misconduct, and I don’t think such conduct would reoccur in this defendant. I think that his character and attitude, both at trial and today, are such that any future misconduct would be very unlikely, and I find that there are no aggravating circumstances in this case. The deterrent effect of a sentence on a Class X offense, and this Class X offense, I think, is of little or no value as in my opinion the minimum in this case, as counsel has said, is far too great. The defendant in this case has been shown to be an aider and abetter, and as such he is raised to the level of a Class X felon. It is an offensive sentence, it is an unreasonable sentence and it is an unjustified sentence in this case, but it is the required sentence under the prevailing statute. As a result of which I am sentencing the defendant to six years in the custody of the Illinois Department of Corrections.”

We now address the first issue presented for review, whether the trial court erred in denying defendant’s motion for a new trial based on the distinction between the standard of competence for retained and appointed counsel. After defendant Royse was found guilty as charged, defendant’s hew counsel argued a motion for a new trial. While denying the motion, the trial judge stated:

“I have seen cases where counsel has done a worse job than the Defense counsel in this case. Not a lot, but I have seen some in major cases. The problem is, and if this were appointed counsel I would have no hesitancy in deciding that his conduct was so incompetent that this defendant should have a new trial.”

Illinois courts have applied a two-tiered standard in cases where ineffective assistance of counsel is alleged. Representation by court-appointed counsel is constitutionally deficient if the incompetence produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21; People v. Kubat (1983), 94 Ill. 2d 437, 483; People v. Carlson (1980), 79 Ill. 2d 564, 584-85.) In the case of privately retained counsel, reviewing courts have not reversed a defendant’s conviction “unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or a sham.” People v. Torres (1973), 54 Ill. 2d 384, 391.

Illinois is one of the few jurisdictions that has continued to draw a distinction between appointed and retained counsel. (See Annot, 2 A.L.R4th 27 (1980).) However, a recent United States Supreme Court decision has questioned the constitutionality of the two-tiered standard. In Cuyler v. Sullivan (1980), 446 U.S. 335, 344-45, 64 L. Ed. 2d 333, 344, 100 S. Ct. 1708, 1716, the Supreme Court stated:

“A proper respect for the Sixth Amendment disarms [the State’s] contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. *** [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.”

The Cuyler decision involved a claim of conflict of interest, but the opinion did not limit its interpretation of sixth amendment rights to conflict-of-interest questions. The preservation of a two-tiered standard raises the possibility of a denial of equal protection (U.S. Const., amend. XIV, sec. 1; Ill. Const. 1970, art. I, sec. 2 (equal protection of laws made applicable to the States by the fourteenth amendment)) to individuals who choose their own attorneys. Defendants with appointed counsel would be afforded greater sixth amendment rights than those who chose their own attorneys. People v. Long (1973), 12 Ill. App. 3d 974, 979.

This court has not reviewed the two-tiered standard since Cuyler; but our appellate court opinions have interpreted Cuyler to apply the Greer test to both appointed and retained counsel. People v. Lovitz (1981), 101 Ill. App. 3d 704, 710; People v. Talley (1981), 97 Ill. App. 3d 439, 443; People v. Scott (1981), 94 Ill. App. 3d 159, 163; see also People v. Haywood (1980), 82 Ill. 2d 540, 543-44; People v. Carlson (1980), 79 Ill. 2d 564, 584-85.

Irrespective of whether a single standard is constitutionally required by Cuyler, we have determined that a single standard should be followed henceforth in this State and that the standard of People v. Greer (1980), 79 Ill. 2d 103, 120-21, ought to apply to both court-appointed and retained counsel. To the extent that People v. Torres (1973), 54 Ill. 2d 384, is inconsistent with the standard enunciated here, we now overrule it.

We do not agree with the State’s contention that changing the standard for effective assistance of counsel will open the floodgates for frivolous appeals. Trial judges and appellate judges are certainly capable of applying a single standard, rather than the two-tiered approach that was followed in the past. We therefore conclude that the trial judge should have granted defendant’s motion for a new trial, and we now hold that the Greer standard should be applied in this and all future cases involving both retained and appointed counsel.

We now turn to the final three issues raised on appeal, which will be discussed together, since they are closely related. Defendant maintains that he was denied effective assistance of counsel. The right of a defendant in a criminal case to be assisted by counsel is guaranteed by the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV (sixth amendment right to counsel made applicable to the States by the fourteenth amendment); see Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792.) The United States Supreme Court has noted: “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States (1942), 315 U.S. 60, 76, 86 L. Ed. 680, 702, 62 S. Ct. 457, 467.

Although the right to effective assistance of counsel is well established, a defendant is entitled to a fair trial, not a perfect one. (People v. Morris (1954), 3 Ill. 2d 437, 448.) Courts have been reluctant to examine trial transcripts with microscopic detail in order to determine what a more competent attorney would have done under the same circumstances. An overly expansive reading of the right to counsel would transform the appellate courts of this country into a “super-legal-aid bureau.” (Uveges v. Pennsylvania (1948), 335 U.S. 437, 450, 93 L. Ed. 127, 136, 69 S. Ct. 184, 190 (Frankfurter, J., dissenting).) See Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw. U. L. Rev. 289 (1964); cf, Note, Inadequate Assistance of Criminal Trial Counsel: The Standards for Illinois 47 Chi. Kent L. Rev. 218, 225 (1970).

However, the case at bar presents a pattern of incompetence that transcends mere tactical decisions on evidentiary matters. Counsel for defendant objected only three times in the course of a three-day trial, while prosecution witnesses repeatedly gave damaging hearsay testimony, offered their opinions, summarized conversations without adequate foundation, and volunteered incriminating information about other drug transactions that were not the basis for the trial. Defendant asserts that the following are examples of defense counsel’s incompetence: failure to move for a severance of trial from that of the absent defendant Young; failure to argue at the preliminary hearing; failure to move for a directed verdict after the State’s case; failure to move for a mistrial after Deputy Townsend volunteered that defendant had been involved in unspecified other offenses; failure to follow up an attempted impeachment by use of a prior inconsistent statement; failure to object to the prosecutor’s inquiry as to whether defendant planned on calling Debbie Clinton as a witness; failure to object to numerous leading questions and hearsay answers; failure to object to the agents’ summarization of conversations with Young and Royse without specifying who was present and who made the statements; failure to object to agents’ testimony that described what Royse was thinking; and failure to object to Mehrtens’ summary of conversations which occurred outside of Mehrtens’ presence. Some examples are worthy of summarization:

“Q. And then what happened?
A. Mr. Young began to count the money and I entered into a drug related conversation with Debbie Clinton concerning the quality of the cocaine. She assured me that it was, in fact, good cocaine and so forth.
* * *
Q. And you asked him, I believe you said, about a large purchase of LSD?
A. We had been talking about the purchase of LSD; LSD had been purchased there before.
* * *
Q. Jim didn’t say that, Mr. Young said that, isn’t that true?
A. Mr. Young, Mr. Royse and myself were engaged in a conversation, in the house. When I asked how the transaction would go the next day, Mr. Young stated that Jim, referring to Mr. Royse, would go to obtain the cocaine. There was no doubt in my mind but what Mr. Royse knew fully what was going on.
Q. There’s no doubt in your mind. Did Kevin Young consult with Miss Clinton or Mr. Royse about this transaction?
A. Yes, sir. I would say that he did.
* * *
Q. Jim Royse didn’t say ‘Why don’t you come back and do a few “lines” with us?’
A. Not that I recall. No, sir.
Q. Isn’t it true, Mr. Townsend, that until the 10th of January, Jim Royse wasn’t involved in this thing at all, other than being present in the house?
A. By ‘thing,’ I don’t understand what you’re —
Q. This whole negotiated sale of cocaine?
A. I had been advised by other Agents he was involved in separate transactions, which we have not discussed.”

Such unresponsive hearsay became part of the trial record without an objection or motion to strike on the part of defense counsel. There is little doubt that such testimony severely damaged defendant’s chances for an acquittal. Even minimally competent counsel would have objected to hearsay, rambling opinions, and what the agents thought was going on in the mind of the defendant. Although the State and appellate court agree that defense counsel’s performance was hardly commendable, they maintain that it does not equal the sham or farce standard for retained counsel in Illinois. Defense counsel gave a creditable closing statement and did enter three objections during the course of the trial. However, an individual’s guilt or innocence should not be effectively determined at the moment he or she unwittingly chooses an incompetent attorney. The late Justice Dooley noted the crucial role effective representation plays in our judicial system: “The fearless and courageous advocate is as important to the administration of justice as an independent judiciary. Without him all rights are mere abstractions. The outcome of the trial of Socrates, Joan of Arc, and Mary Queen of Scots could possibly have been different had a strong and fearless advocate appeared in their defense.” (In re Madsen (1977), 68 Ill. 2d 472, 494 (Dooley and Clark, JJ., dissenting).) Although defense counsel’s performance may not have been a sham or farce, it did fall below the Greer standard, which now applies to cases involving both appointed and retained counsel.

In reaching this conclusion, we give great weight to the trial judge’s statement that he would definitely have granted a new trial if he did not have to apply the faree-orsham test. The trial judge was able to observe the demeanor of the witnesses and the effect defense counsel’s blunders had on the jury. In view of our disposition of these issues, we need not reach the other issues raised in this appeal.

We therefore conclude that defendant was denied effective assistance of counsel and that the errors of the defense counsel cannot be considered harmless beyond a reasonable doubt. We reverse the judgment of the appellate court and remand the cause to the circuit court of Williamson County for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD

license: Public Domain

text:
    (No. 57433.
    MASON & DIXON LINES, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Edward Clasby, Appellee).

      Opinion filed December 16, 1983.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson, Ian M. Sherman, and Storrs W. Downey, of counsel), for appellant.
    Dowd & Dowd, Ltd., of Chicago (Joseph V. Dowd and Philip J. McGuire, of counsel), for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Edward Clasby, filed a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained while in the employ of respondent, Mason & Dixon Lines, Inc. An arbitrator awarded claimant permanent total disability benefits and medical expenses. The award was affirmed by the Industrial Commission and subsequently confirmed by the circuit court of Cook County. Respondent appealed directly to this court. 87 Ill. 2d R. 302(a).

Petitioner, an obese, 56-year-old truck-loading-dock worker, had been diagnosed in January 1978 as suffering from “uncontrolled diabetes,” a related gangrenous ulcer on his right foot, and arteriosclerosis in both feet. Following hospitalization and treatment which included a strict diabetic diet, insulin and two surgical procedures, petitioner returned to work in February 1979. Except for a four-month leave of absence to care for an injured sister, he continued working until March 1980.

Claimant testified that on March 19, 1980, a wheeled, hand-propelled cart about six feet long, four feet wide, weighing approximately 185 pounds, called a “flat,” and carrying 600 pounds of cargo rolled over Ms right foot and “just barely creased the left one.” He further testified that on March 17 a similar cart carrying approximately 500 pounds of cargo had rolled over his right foot and “leaned” onto his left foot. Claimant asserts that he “mentioned” the matter to his supervisor at the time of the occurrence, but it is clear that he did not fully report any accident to his supervisor until March 27.

Claimant’s supervisor, Robert Sopiarz, testified that he did not hear of any injury until March 27. On that date, however, he witnessed a cart fall on one of claimant’s feet. The supervisor could not recall which foot was involved but testified that claimant exhibited and complained only of his right foot on that date, although claimant testified that he told his supervisor that the right foot was “the worse one.” The supervisor testified that claimant’s right great toe was black on the 27th and that the flesh on the next two toes was eaten away. It is agreed by both parties that several other workers were present when claimant injured and exhibited his foot, but none of those persons was called to testify It is apparently claimant’s position that supervisor Sopiarz was mistaken, and that the episode he recalled as happening on the 27th actually occurred on the 19th.

Claimant completed an accident report on March 27 in which he stated the date of the accident as March 20. However, respondent’s records indicated that claimant did not work on March 20, and claimant testified that he mistakenly stated that date in the report and that he had called in sick on the 20th because his feet were bothering him from the previous day’s accident. Claimant referred only to the singular “foot” and “toe” in the accident report.

Claimant was sent to the company physician, Dr. Edgar Jose Vargas, at the Sunnyside Medical Clinic for an examination on March 27. There, claimant complained of injury to his right foot and told Dr. Vargas that the accident occurred seven days earlier. Dr. Vargas diagnosed claimant’s condition as diabetic gangrene. The following day Dr. Patel, who was also associated with the clinic, saw claimant, and claimant testified he told Dr. Patel he had injured both feet, and that Dr. Patel examined both. On March 29 claimant was admitted to Cabrini Hospital.

On April 3 claimant was transferred to Columbus Hospital, where he apparently reported to the hospital that both feet were injured in an employment accident on March 15, and that his right foot was “slightly dark prior to the accident but soon became totally black.” Claimant later testified that there was no discoloration prior to the accident. The condition of both of claimant’s feet continued to deteriorate, and on May 5 both legs were amputated six inches below the knees.

Dr. Paul D. Belich, who performed the amputation, testified in a deposition that there was a causal relation between the alleged accident and the gangrenous condition of claimant’s feet. He stated that the condition of claimant’s right foot on March 27 could have developed within eight or nine days after any trauma. Although Dr. Belich’s opinion was based on the assumption that no discoloration existed prior to the accident, he testified that any trauma to claimant’s feet could have aggravated a preexisting gangrenous condition and led to the eventual amputation. Although respondent’s medical expert, Dr. William Daniel Barnhart, indicated in his deposition that he believed the amputations were the natural result of the diseased conditions, he conceded that any trauma could have aggravated claimant’s condition.

The arbitrator concluded that claimant sustained injuries to both feet on March 17 and March 19, and that such injuries resulted in the amputation of claimant’s feet. Claimant was awarded $40,279.75 for necessary medical expenses pursuant to section 8(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)) and $266.67 per week for life pursuant to section 8(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)).

The Industrial Commission majority affirmed the amount of the award but concluded that claimant sustained injuries to both feet on March 19, and that no accident occurred on March 17. The dissenting commissioner believed that claimant failed to establish that the March 19 accident also involved his left foot.

Respondent argues here that the Industrial Commission’s conclusion that claimant sustained an injury arising out of and in the course of his employment on March 19 is contrary to the manifest weight of the evidence. Respondent asserts that an accident did not occur on March 19 and that claimant fabricated his story in order to recover for amputations his preexisting diabetic condition made inevitable. Particular emphasis is placed on the fact that claimant stated four separate dates upon which the accident allegedly occurred and that claimant’s supervisor suggested yet a fifth date.

Respondent suggests that claimant initially selected March 20 as the date because he was aware that the blackened condition of his right great toe on March 27 would have taken at least a week to develop if it was the result of trauma. As earlier noted, after it was revealed that claimant did not work on March 20, he stated that March 19 was the date of the injury and in a hospital report that March 15 was the date the accident occurred. When testifying later he stated that two accidents occurred, one on March 17 and the other on March 19.

Our decisions emphasize the established principle that findings of the Industrial Commission will not be set aside unless they are contrary to the manifest weight of the evidence. (Roberts v. Industrial Com. (1983), 93 Ill. 2d 532, 538; Spector Freight System, Inc. v. Industrial Com. (1983), 93 Ill. 2d 507, 514.) The resolution of factual questions, including the determination of witness credibility, is normally the function of the Industrial Commission (Goldsamt v. Industrial Com. (1982), 93 Ill. 2d 115, 121; Archer Daniels Midland Co. v. Industrial Com. (1982), 91 Ill. 2d 210, 216), and the Commission’s findings will not be disturbed merely because the evidence may support more than one plausible conclusion (Zick v. Industrial Com. (1982), 93 Ill. 2d 353, 359-60; Ragler Motor Sales v. Industrial Com. (1982), 93 Ill. 2d 66, 71-72; Benson v. Industrial Com. (1982), 91 Ill. 2d 445, 450).

We agree with the respondent that claimant’s inconsistencies as to the date the accident occurred create credibility questions, but the task of judging that credibility is usually left to the Commission. (Archer Daniels Midland Co. v. Industrial Com. (1982), 91 Ill. 2d 210, 216; Caterpillar Tractor Co. v. Industrial Com. (1947), 397 Ill. 474, 480.) While it is possible, as respondent suggests, that claimant’s testimony could be a deliberate falsification designed to secure compensation for a result which was already inevitable, the Commission expressly determined that claimant’s testimony as to an accident on March 19, 1980, was credible, and, while we might well have found otherwise were we the trier of fact, we cannot now say that the Commission’s finding that an accident occurred to claimant’s right foot on that date is contrary to the manifest weight of the evidence.

Respondent nonetheless contends that the Commission’s finding of injury to claimant’s left foot in the March 19 accident is contrary to the manifest weight of the evidence. It argues that claimant did not complain of injury to his left foot until April 3, more than two weeks after the accident occurred. Claimant’s accident report referred only to the singular “foot” and “toe,” and both Dr. Vargas and supervisor Sopiarz testified that on March 27 claimant complained of injury to the right foot only. The Commission, however, apparently accepted claimant’s testimony to the contrary.

A decision of the Industrial Commission will not be disturbed merely because differing inferences may reasonably be drawn from the evidence. (Walden v. Industrial Com. (1983), 93 Ill. 2d 527, 532; Roberts v. Industrial Com. (1983), 93 Ill. 2d 532, 537-38; Revere Paint & Varnish Corp. v. Industrial Com. (1968), 41 Ill. 2d 59, 63.) While, again, we might not have reached the same conclusion, were we the fact finder, the Commission’s determination that an injury to the left foot occurred is not, in our judgment, contrary to the manifest weight of the evidence.

Respondent’s final argument is that the Industrial Commission’s finding of a causal relation between the accident and the subsequent amputation of claimant’s feet is contrary to the manifest weight of the evidence. Respondent relies on the testimony of Dr. Belich and Dr. Barnhart that the natural progression of claimant’s diabetic condition could have led to amputation regardless of any trauma to his feet.

It is axiomatic that recovery is allowed under the Workmen’s Compensation Act when an employment accident aggravates or accelerates a preexisting disease. (Peoria Motors, Inc. v. Industrial Com. (1982), 92 Ill. 2d 260, 264; Caterpillar Tractor Co. v. Industrial Com. (1982), 92 Ill. 2d 30, 36; Goldblatt Brothers, Inc. v. Industrial Com. (1981), 85 Ill. 2d 172, 177.) That the same consequences of a preexisting disease might have resulted in the absence of an accident is not the test. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17-18.) The appropriate inquiry is not whether the amputation of claimant’s feet would have ultimately been required due to his diabetic condition; rather, it is whether the accident aggravated his condition or accelerated the processes which led to the amputation. Both experts acknowledged that any trauma to the claimant’s feet could have aggravated his condition and hastened the eventual amputation. A finding of a causal relation may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18), and, in view of the testimony of Dr. Belich and Dr. Barnhart, it cannot be said that the Commission’s finding of a causal relationship is contrary to the manifest weight of the evidence.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 57538.
    THE STREAMS SPORTS CLUB, LTD., Appellee, v. DONNA RICHMOND et al., Appellants.

      Opinion filed December 16, 1983.

      McKenna, Storer, Rowe, White & Farrug, of Wheaton (John C. Bartler, Michael F. Dahlen, and William J. Cremer, of counsel), for appellants.
    Thomas B. Cassidy and Cathleen M. Keating, of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Plaintiff, Streams Sports Club, Ltd., brought an action against condominium owner Donna Richmond (hereafter referred to as defendant) and others believed to have some interest in the condominium unit owned by defendant. A breach of contract was asserted, as well as a right to foreclose on a lien that plaintiff claimed arose because defendant refused to pay annual dues to the sports club. In the amended complaint, count I sought foreclosure pursuant to the Illinois Mortgage and Foreclosure Act (Ill. Rev. Stat. 1979, ch. 95, par. 23); count II sought for foreclosure pursuant to article 15 of the condominium declaration; and count III alleged a breach of contract. The circuit court of Du Page County granted defendant’s motion to dismiss, and plaintiff appealed on counts II and III. The appellate court reversed the trial court’s decision with respect to count II and count III (109 Ill. App. 3d 689), and we granted leave to appeal (87 Ill. 2d R 315(a)).

Four issues are presented upon appeal: (1) Is the club’s lien valid and enforceable? (2) Are the terms of the contract between the club and unit owners valid and enforceable? (3) Is the attempted amendment to the contract enforceable? (4) Is the amendment, if enforceable, invalid for failure to comply with the requirements set forth in the condominium declarations?

This is a case of first impression before this court, and arises from the increasingly common method of property ownership, the condominium unit. In the case at bar, the Streams Sports Club, Ltd., is a successor in interest to Shannon, Inc., the developer of a condominium complex in Wheaton. The Streams Sports Club owns and operates recreational facilities adjacent to the condominium complex. The original declaration of condominium ownership was filed in the Du Page County recorder of deeds office on July 5, 1973. The condominium declaration provides, in pertinent part:

“Article 15 Streams Sports Club
15.1 Club Facilities. The Developer intends to form or has already formed a sports club to be located west of this Condominium. This club will be owned by the Developer and operated for profit by the Developer, its assignees, vendees or designees. The intended facilities of such Club may include a club house, food and beverage service, a swimming pool, tennis courts, a private lake landscaped and developed for fishing, boating and other- recreational facilities. The nature of any such intended facilities, improvement or development of such Club and the authority to determine whether any facility or service of such Club shall be continued, altered, changed or terminated are hereby in all respects fully reserved to the title holder, owner and operator of such Club.
15.2 Membership in Club. Each Owner of any Unit in the entire Condominium Development shall, upon acquisition of title, by such Owner, become a member of the Club, without any membership or initiation fee therefor. Each such Owner may exercise and enjoy any and all facilities of such Club as may exist from time to time, expressly subject and contingent upon the continuous compliance by each such Owner with all By-Laws, rules and regulations as the Owner of said Club may adopt from time to time, and the payment of any annual membership fees and such other fees occasioned solely by the use of the facilities of the Club by such Unit member, as may be imposed, in amounts deemed reasonable by such Owner and applicable, generally, to the entire membership for any particular facility or service.
15.3 Termination of Membership or Privileges.
***
All unpaid charges shall be a lien against said Unit, subject, however, to rights of any mortgages on said Unit. The Club shall have the right, in addition to any other remedy, to enforce its lien by foreclosure, and there shall be added to the amount due the costs of suit, fees, expenses, interest at the rate of eight per cent (8%) per annum and reasonable attorneys fees.
* * *
ARTICLE 17 Amendments
17.1 Amendments. The provisions of this Declaration may be changed, modified or rescinded by an instrument in writing setting forth such change, modification or rescission, signed by Owners having at least three-fourths (3/4) of the total vote, and certified by the secretary of the Board, provided, however, that all lien holders of record have been notified either by personal service or mailing by certified mail of such change, modification or rescission and an affidavit by said secretary certifying to same is a part of such instrument.
Notwithstanding the provisions of the foregoing paragraph, if the Act, or this Declaration, or the By-Laws, requires the consent or agreement of all Owners or of all lien holders for any action specified in the Act or in this Declaration, then any instrument changing, modifying or rescinding any provision of this Declaration with respect to such action, shall be signed by all the Owners or all the lien holders or both as required by the Act or this Declaration.
17.2 Notice of Amendment. The change, modification or rescission, whether accomplished under either of the provisions of the preceding two paragraphs, shall be effective upon recordation of such instrument in the office of the Recorder of Deeds of DuPage County, Illinois, provided, however, that no provisions in this Declaration may be changed, modified or rescinded so as to conflict with the provisions of the Condominium Property Act.”

On January 18, 1978, owners of condominium units in the Streams complex recorded an attempted amendment to article 15.2 of the condominium declaration. The amendment attempted to make membership in the sports club voluntary instead of compulsory. However, the record on appeal is devoid of proof that the amendment passed by the necessary three-fourths of the unit owners, whether it was certified by the secretary of the board, or whether all unit owners were notified of the proposed vote. The appellate court held that additional proof was necessary to determine the validity of the amendment and remanded the case to the circuit court. 109 Ill. App. 3d 689, 696.

Defendant Donna Richmond is the beneficial owner of a condominium unit in this complex. Richmond purchased her condominium in February of 1978, and has resided there since that time. Richmond, along with other owners of condominium units, was assessed $216 per year for membership in the sports club. Her total debt on October 1, 1980, was $342.50, and the sports club filed suit on April 10,1981.

We turn now to the first issue, whether the lien is valid and enforceable. Plaintiff argues that the covenant to pay annual dues to the sports club is a covenant running with the land, while defendant maintains that it is a personal covenant. Defendant further argues that since the Streams Sports Club is a successor in interest of Shannon, Inc., the original developer, the covenant is no longer binding on the unit owners. A covenant to pay fees, giving plaintiff a lien on property for unpaid fees, runs with the land. In Mathis v. Mathis (1948), 402 Ill. 60, 66, this court stated that “[wjhere land is conveyed in consideration of a covenant by the grantee to support the grantor, or other persons designated, the covenant runs with the land and is binding upon subsequent owners.” In order for a covenant to run with the land, in the State of New York, three criteria must be met: (1) The grantor and grantee must have intended the covenant to run with the land; (2) the covenant must touch and concern the land; (3) there must be privity of estate between the party claiming the benefit of the covenant and the party resting under the burden of the covenant. Neponsit Property Owners’ Association, Inc. v. Emigrant Industrial Savings Bank (1938), 278 N.Y. 248, 255, 15 N.E.2d 793, 795.

In the case at bar, there is no doubt that the grantor and grantee intended the covenant to run with the land. Covenants should be interpreted to give effect to the actual intent of the parties at the time the covenant was made. (Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 904.) The intent of the parties can best be determined by express contractual provisions. Guhl v. Guhl (1941), 376 Ill. 100, 110.

The declarations that preceded the specific provisions in the contract between the plaintiff and defendant provide, in pertinent part:

“Each grantee of Declarants by the acceptance of a Deed of Conveyance, and each purchaser under any contract for such deed or conveyance, accepts the same subject to all restrictions, conditions, covenants, reservations, liens and charges, and the jurisdiction, rights, and powers created or reserved by this Declaration, and all rights, benefits and privileges of every character hereby granted *** and all impositions and obligations hereby imposed shall be deemed and taken to be covenants running with the land, and shall bind any person having at any time any interest or estate in said land, and shall inure to the benefit of such person in like manner as though the provisions of this Declaration were recited and stipulated at length in each and every Deed of Conveyance.”

We therefore conclude that the parties intended specific contractual provisions to run with the land.

The second requirement for a covenant running with the land is also met, because the covenant clearly touches and concerns the land. The recreational facility that is the subject of this lawsuit is adjacent to the condominium units and is used by the residents of the condominiums. The sports club is part of a common building plan that the defendant was aware of at the time she purchased her unit. Condominium owners can enjoy the benefits of convenient sports facilities and also have the burden of furnishing the $216 annual fee.

Nearly every jurisdiction that has reviewed the question of assessments for condominium recreational facilities has held them to be binding covenants running with the land. (See, e.g., Bessemer v. Gersten (Fla. 1980), 381 So. 2d 1344; Lincolnshire Civic Association, Inc. v. Beach (1975), 46 App. Div. 2d 596, 364 N.Y.S.2d 248; Boyle v. Lake Forest Property Owners Association, Inc. (S.D. Ala. 1982), 538 F. Supp. 765; Rodruck v. Sand Point Maintenance Com. (1956), 48 Wash. 2d 565, 295 P.2d 714; Kell v. Bella Vista Village Property Owners Association (1975), 258 Ark. 757, 528 S.W.2d 651; Birchwood Lakes Community Association, Inc. v. Comis (1982), 296 Pa. Super. 77, 442 A.2d 304; Phillips v. Smith (1949), 240 Iowa 863, 38 N.W.2d 87.) Defendant has attempted to distinguish such authority on the grounds that the associations that levy assessments for recreational facilities were nonprofit entities. Defendant has provided no authority indicating recreational facilities that earn a profit should be treated differently than nonprofit associations. Finally, defendant has not alleged that the assessments have been excessive or that the facilities have not been commensurate with the annual fees.

Our research has detected only one decision with sufficient factual similarity to justify defendant’s position on appeal. In Raintree Corp. v. Rowe (1978), 38 N.C. App. 664, 248 S.E.2d 904, the court held that a covenant to pay country club dues was a personal covenant and did not meet the common law test for a covenant running with the land. Defendant relies heavily on Raintree because of its alleged factual similarity to the case at bar. Although Raintree has not been reversed, it has been distinguished to the point where it has virtually no precedential value to the case at bar. In Four Seasons Homeowners Association, Inc. v. Sellers (1983), 62 N.C. App. 205, 302 S.E.2d 848, the court held that a covenant to pay monthly assessments for recreational facilities in a subdivision was enforceable. The court noted:

“The covenant, however, runs with each lot in the entire subdivision of which defendants’ lots are but a small part. The recreational facilities are in the subdivision, for the ■ use of all .the people who live in the subdivision. It does not matter that the facilities are not adjacent to each lot, it is sufficient that they touch and concern the entire subdivision. Defendants argue that Raintree supports their contention that the facilities do not touch and concern the land. Their reliance on Raintree to support their argument is misplaced. *** This case is easily distinguishable from Raintree because the recreation facilities here are not in a country club, but are actually on the Four Seasons subdivision for the benefit of the lot owners.” 62 N.C. App. 205, 211, 302 S.E.2d 848, 852-53.

Thus, Raintree was limited to the specific facts raised in that case and did not disturb the general principle that a covenant to pay recreational-facility dues touches and concerns the land.

The covenant meets the third part of the Neponsit test. Richmond is obviously in privity of estate with the owners of the condominium because she has resided in the condominium complex since 1978. (See Anthony v. Brea Glenbrook Club (1976), 58 Cal. App. 3d 506, 130 Cal. Rptr. 32.) We therefore conclude that the covenant is not a personal covenant but a covenant running with the land, and its terms are binding on defendant Richmond.

Defendant’s contention that the covenant is an unlawful restriction on alienation of property is without merit. The imposition of a lien for unpaid fees is a reasonable method of enforcing the terms of the covenant. The description of the sports club and the relevant fees were set out in the articles of the condominium declaration giving prospective purchasers adequate notice of their contractual obligations. Defendant’s argument that the sports club is no more useful to condominium residents than a grocery store is also without merit. We must confine our analysis to the express terms of the contract and not engage in conjecture as to what might be beneficial to unit holders if it had been included in the articles of the condominium declaration.

We now turn to the second issue, whether the terms of the contract are enforceable. Richmond maintains that the contract was unconscionable, vague and lacking in mutuality. A contract is unconscionable when it is improvident, oppressive, or totally one-sided (Walter E. Heller & Co. v. Convalescent Home (1977), 49 Ill. App. 3d 213, 219), but mere disparity of bargaining power is not sufficient grounds to vitiate contractual obligations (see First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 419; see also Fort, Understanding Unconscionability: Defining the Principle, 9 Loy. U. Chi. L.J. 765 (1978)). We conclude that the condominium declaration, considered as a whole, is not so one-sided or unfair as to render it unconscionable.

Defendant’s contention that the contract is vague is also without merit. The condominium declaration is extremely specific and is not at variance with industry custom. (See R Kratovil, Real Estate Law secs. 547 to 571 (6th ed. 1978).) The failure to specifically articulate each service which may be provided by the sports club is consistent with the flexibility necessary in the purpose clause of the condominium declaration. The club will be able to modify its services to meet unforeseen circumstances in the future.

We agree with the appellate court’s finding that the contract is not lacking in mutuality. Article 15.4 of the condominium declaration states that the annual dues will be $216 and that subsequent increases must be tied to the consumer price index. Richmond has not argued that the club’s facilities are not commensurate with the income received by annual assessment. The Washington Supreme Court has noted:

“Members may attack assessments deemed to be unreasonable and the result of an abuse of discretion, but the plan of operation does not fail in its entirety merely because such discretion has been vested in the commission.” Rodruck v. Sand Point Maintenance Com. (1956), 48 Wash. 2d 565, 577, 295 P.2d 714, 721.

Since we believe that the sports club can enforce its lien for unpaid dues as a covenant running with the land, we need not reach the alternative theory of whether the club can enforce its lien as a third-party beneficiary to the contract. Similarly, we cannot resolve the final two issues raised in this appeal without additional data. As stated previously plaintiff further contends that the 1978 amendment fails to comply with the provisions of article 17, which provides that the amendment must be signed by three-fourths of the condominium owners, certified by the secretary of the board, and all lienholders of record must have been notified. Plaintiff claims that none of these three requirements have been met. As the appellate court stated, “No evidence was taken to determine whether the amendment was passed by three-fourths of the unit owners. A certification by the secretary of the board would have substantiated this fact, but no certification is attached to the amendment. Also, there is no indication that all lienholders of record were notified. It would appear that the amendment would be valid and defeat the cause of action under any count if passed in accordance with the requirements.” (109 Ill. App. 3d 689, 696.) The record on appeal lacks sufficient proof that the attempted amendment to the condominium declaration was indeed properly made prior to Richmond’s purchase of her condominium. It appears that a valid amendment would defeat the club’s cause of action on all counts, but the record needs to be supplemented by the circuit court in order to accurately resolve this question. We therefore conclude that the appellate court properly remanded the case to the circuit court.

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

Judgment affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 57585.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RUBEN FRIAS, Appellee.

      Opinion filed December 16, 1983.

      Neil F. Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, of Chicago, and Michael E. Shabat, Joan S. Cherry, Bruce A. Cardello, and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.

      James J. Doherty, Public Defender, of Chicago (Andrea D. Lyon, Assistant Public Defender, of counsel), for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

Two armed men shot and killed Alfredo Torres on a street in Chicago on the evening of November 8, 1979, as he left his home to move his automobile which had been parked on the street. As a result of this killing, the defendant, Ruben Frias, was charged by information filed by the State’s Attorney of Cook County with two counts of murder. One count was based on a violation of section 9 — 1(a)(1) of the Criminal Code of 1961, and the other count was based on section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9— 1(a)(1), 9 — 1(a)(2)). Frias was also charged with one count of armed violence based on the felony of murder. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) He was tried separately from a co-offender, Fernando Fernandez.

The jury found Frias not guilty of murder; however, it found him guilty of armed violence based on having committed murder while armed. He was sentenced to 15 years’ imprisonment. The appellate court reversed, holding that the armed-violence conviction was improper because the predicate felony, murder, was an essential element of the armed-violence charge, which was required to be proved by the State in order to sustain the conviction of armed violence. (109 Ill. App. 3d 888.) We granted the State’s petition for leave to appeal.

This court has held that an essential element of a conviction for armed violence is the commission of an underlying felony while armed. In People v. Haron (1981), 85 Ill. 2d 261, 278, we said that “the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony.” Subsequently, in People v. Tiller (1982), 94 Ill. 2d 303, the defendant had been convicted of armed robbery and armed violence based on armed robbery. On appeal, we reversed the defendant’s armed-robbery conviction. Having done that, we then reversed the defendant’s armed-violence conviction because, without the armed-robbery conviction, “there is no underlying felony to sustain the conviction for armed violence.” 94 Ill. 2d 303, 323.

The armed-violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) provides:

“Sec. 33A— 2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Emphasis added.)

Clearly, as this court held in Harón and Tiller, the statute requires that, before one can be convicted of armed violence, he must have committed the predicate felony. Illinois Pattern Jury Instruction, Criminal, No. 11.20 (2d ed. 1981), defines the issue of armed violence. As given in the case now before us, the proposition that the jury was told the State must prove was “that the defendant committed the offense of murder.”

Our decision in Harón and Tiller would appear to control the decision in this case. However, the State has raised questions on this appeal that have not heretofore been considered in connection with the armed-violence statute.

The State argues that in People v. Myers (1981), 85 Ill. 2d 281, this court approved a conviction of armed violence based on a felony which was not charged, that is, aggravated battery. In Myers, although the defendant was not convicted of aggravated battery, he was, nonetheless, charged with armed violence based upon the felony of aggravated battery. We have not held that the defendant must be convicted of the predicate felony. However, before he may be convicted of armed violence based upon the predicate felony, the elements of that felony must be established and it must be proved that the felony was committed while armed.

The State now contends that the appellate court erred when it held that the not guilty verdict as to the murder charge, which the State contends was legally inconsistent with the verdict of guilty of armed violence based on murder, required the reversal of the armed-violence conviction.

The appellate court opinion and the briefs filed by both the State and the defendant demonstrate that the term “inconsistent verdicts” does not carry a clear and precise meaning. This court, in People v. Hairston (1970), 46 Ill. 2d 348, 362, distinguished between logically and legally inconsistent verdicts and held that logically inconsistent verdicts can stand and implied that legally inconsistent verdicts cannot.

The State contends that the implication in Hairston concerning legally inconsistent verdicts is no longer valid. It is the State’s position that this court, in People v. Dawson (1975), 60 Ill. 2d 278, effectively overruled Hairston as to the invalidity of legally inconsistent verdicts. Several decisions of the appellate court have viewed the holding in Dawson in this same light. (See People v. O’Malley (1982), 108 Ill. App. 3d 823; People v. Harris (1982), 104 Ill. App. 3d 833; People v. Jimerson (1979), 69 Ill. App. 3d 403.) In People v. Johnson (1980), 87 Ill. App. 3d 306, 309, although the appellate court stated it agreed with other decisions that held that Dawson impliedly overruled Hairston on the question of legally inconsistent verdicts, the court nonetheless found that, in the case it was considering, there was no legal inconsistency.

Part of the difficulty in resolving the question of whether or not inconsistent verdicts may stand stems from a lack of agreement as to what constitutes legal inconsistency. The appellate court, in the case now before us, while stating that Illinois no longer requires consistency, either legally or logically, in jury verdicts, nonetheless held that where the crime of which the defendant was acquitted was an essential element of the crime for which he was convicted, the conviction cannot stand. 109 Ill. App. 3d 888, 893.

The State points out that the “essential element” test used by the appellate court falls squarely within the definition of “legal inconsistency,” citing People v. O’Malley (1982), 108 Ill. App. 3d 823, 829, which states:

“A legally inconsistent verdict has been defined as follows:
‘Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.’ People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186.”

Further uncertainty is caused by the failure of cases, which are cited as holding that legally inconsistent verdicts can stand, to specify whether the holding is as to all inconsistent verdicts or only as to those that are logically inconsistent. In Dunn v. United States (1932), 284 U.S. 390, 76 L. Ed. 356, 52 S. Ct. 189, which is heavily relied upon in support of this proposition, the court simply stated, “Consistency in the verdict is not necessary.” 284 U.S. 390, 393, 76 L. Ed. 356, 358, 52 S. Ct. 189, 190.

In People v. Dawson (1975), 60 Ill. 2d 278, this court did not distinguish between legal and logical inconsistencies. Although there is language in the opinion from which it may appear that the court was holding contrary to Hairston, the court finally stated: “The ‘inconsistency’ upon which the appellate court reversed the defendant’s conviction of armed robbery was therefore nonexistent, and for that reason the judgment of the appellate court is reversed.” (60 Ill. 2d 278, 282.) Thus the court found no inconsistency, logical or legal, in the verdicts in that case.

We hold that Dawson did not overrule Hairston. In support of the language of Dawson that seems contrary to Hairston, the Dawson court quotes at length from United States v. Carbone (2d Cir. 1967), 378 F.2d 420, following which the opinion cites after a “see also” signal, Dunn v. United States and People v. Hairston. Thus Dawson cites Hairston in support of the language which it is now contended overrules that part of Hairston which implies that legally inconsistent verdicts cannot stand. It is thus apparent that it was not the intention of this court to overrule Hairston insofar as the holding of that case related to legally inconsistent verdicts.

It is appropriate to point out that we are here dealing with verdicts which we deem to be legally inconsistent. We do not find the appellate court’s distinction between legally inconsistent verdicts and a verdict which acquits the defendant of an essential element of an offense of which he is convicted by another verdict to be necessary.

In Hairston, the court considered the effect on the facts of that case of the then-recent holding of the United States Supreme Court in Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189. The court noted that the rationale of Ashe is that “ ‘collateral estoppel’ is embodied in the fifth amendment guarantee against double jeopardy” and that collateral estoppel, as defined in Ashe, means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in a future lawsuit. (People v. Hairston (1970), 46 Ill. 2d 348, 359-60.) However, the court in Hairston stated:

“We see in Ashe * * * no manifestation or command that collateral estoppel is to be applied where separate offenses arising from the same act or transaction are tried in a single prosecution.” (46 Ill. 2d 348, 360.)

United States v. Benfield (8th Cir. 1979), 593 F.2d 815, and Arnold v. Wyrick (8th Cir. 1981), 646 F.2d 1225, also held that the criminal rule of collateral estoppel found in Ashe v. Swenson does not apply to verdicts of guilty and innocent rendered in a single trial.

In Powers v. State (1979), 285 Md. 269, 401 A.2d 1031, cert. denied (1979), 444 U.S. 937, 62 L. Ed. 2d 197, 100 S. Ct. 288, the Court of Appeals of Maryland traces the history in the Federal courts of the effect of inconsistent verdicts. The Maryland court noted that in Dunn v. United States, the Supreme Court held that, under the facts of that case, inconsistent verdicts rendered on a multicount indictment tried in a single trial could stand. The Maryland court pointed out, however, that in Sealfon v. United States (1948), 332 U.S. 575, 92 L. Ed. 180, 68 S. Ct. 237, the Supreme Court held that res judicata applied and that inconsistent verdicts rendered in separate trials could not stand. In that case the defendant had been separately indicted for conspiracy to defraud the United States and for the commission of the substantive offense. While noting that conspiracy and the substantive offense were separate and distinct crimes, the court held that in that case the jury verdict of not guilty in the conspiracy trial was a determination favorable to the defendant of facts essential to the conviction of the substantive offense.

The Maryland court in Powers next noted the admonition of Ashe v. Swenson that before collateral estoppel can be held to bar a subsequent prosecution the court must examine the record of the entire proceeding and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. See Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475-76, 90 S. Ct. 1189, 1194.

Turner v. Arkansas (1972), 407 U.S. 366, 32 L. Ed. 2d 798, 92 S. Ct. 2096, was another case considered by the Maryland court in Powers. In Turner the defendant had been indicted for murder while perpetrating the crime of robbery on Larry Yates. The jury returned a general verdict of not guilty. Defendant was then indicted for the robbery of Yates. The parties had stipulated that the robbery and the murder arose out of the same set of facts. The court stated that, under the law of Arkansas, murder and robbery could not be joined in one indictment and no offense could be tried jointly with murder. The Supreme Court held that the case was squarely controlled by Ashe v. Swenson and collateral estoppel prohibited the defendant’s trial for robbery.

The Maryland court in Powers next pointed out that the Supreme Court cases involving collateral estoppel which it had discussed involved single-count indictments in which the jury initially acquitted the defendant and the defendant was subsequently tried for a related offense having a common issue of ultimate fact essential to the conviction. Those cases did not involve multicount indictments with the inconsistent verdicts being rendered in a single trial. The Powers court recognized that there is a division of authority in cases where a defendant is tried in a single trial on a multicount indictment and the jury renders legally inconsistent verdicts. Some cases have applied collateral estoppel in such instances, while others have not. A thorough discussion of those cases in Powers renders it unnecessary to repeat the discussion here. See Powers v. State (1979), 285 Md. 269, 284-85, 401 A.2d 1031, 1039-40.

In Powers the jury had returned two not-guilty verdicts on an armed-robbery count and an attempted-armed-robbery count, but the jury was unable to agree on a verdict on another armed-robbery count. The trial judge declared a mistrial on the latter count. The Powers court held that, although the verdicts were rendered in a single trial, collateral estoppel should apply. To hold otherwise, the court stated, would totally ignore the fact that on a related count there had been a valid and final judgment of acquittal which determined common issues of ultimate fact essential to the conviction. (Powers v. State (1979), 285 Md. 269, 288, 401 A.2d 1031, 1042.) The court noted that if the defendant were to be retried on the count on which no verdiet had been returned, and if the jury in the second trial were to convict, inconsistent verdicts in successive trials would result. Under the collateral-estoppel principles such a result would be impermissible. In support of this conclusion, the Powers court cited Sealfon v. United States. (285 Md. 269, 288, 401 A.2d 1031, 1042.) Powers v. State is a thoroughly researched, well written opinion, and we find the discussion and rationale contained in that opinion helpful.

We likewise hold that collateral estoppel must be applied in the case now before us. If, for some reason, the defendant in our case would have been or could have been separately indicted and separately tried for the offenses of murder and armed violence based on murder (see Ill. Rev. Stat. 1979, ch. 38, par. 111 — 4), and if the defendant would have been acquitted of the predicate offense of murder, under well-established collateral-estoppel principles, as stated in Sealfon, a subsequent prosecution for armed violence based on murder would be prohibited. If we fail to apply collateral estoppel simply because the legally inconsistent verdicts were rendered in the same trial, as the Powers court stated, we would have to ignore the fact that, in a related count in the same trial, there has been a valid final judgment of acquittal which determined common issues essential to the conviction in both counts.

The Supreme Court, in Ashe v. Swenson, admonished that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnicai and archaic approach of a nineteenth century pleading book, but with realism and rationality. (Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475, 90 S. Ct. 1189, 1194.) Realism and rationality require that collateral estoppel apply to this case even though the legally inconsistent verdicts were rendered in a single trial.

In applying collateral estoppel in such cases, the further admonition of Ashe v. Swenson noted above must be followed. The court must examine the record of the entire proceeding and determine whether a rational'jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. See Ashe v. Swenson (1970), 397 U.S. 436, 444, 25 L. Ed. 2d 469, 475-76, 92 S. Ct. 1189, 1194.

Adding strength to our conclusion is the fact that several trial errors were raised in the appellate court that were not reached. These same errors have been raised in this court. If we were to hold that collateral estoppel does not apply because both verdicts were rendered by a single jury in a single trial, but if we were required to reverse and remand for a new trial on the armed-violence count because of some of the alleged trial errors, a guilty verdict in the second trial of armed violence could not be upheld under Sealfon v. United States.

Summarizing, in this case collateral estoppel would prevent conviction of armed violence if the two counts had been tried separately. It will also prevent conviction of armed violence if the cause is remanded for a new trial on that count alone. Therefore logic would seem to require that collateral estoppel should also apply when the two counts are tried together in a single trial.

In People v. Hairston (1970), 46 Ill. 2d 348, 361, this court, while recognizing that legally inconsistent verdicts could not stand, held that where inconsistent verdicts of guilty are returned, a reversal and new trial on all counts must follow. In People v. Pearson (1973), 16 Ill. App. 3d 543, the appellate court had before it inconsistent findings of guilty and not guilty. In Pearson the defendant had been charged with two counts of aggravated assault and two counts of armed violence. All four counts arose out of the alleged firing of a handgun at two police officers. The defendant was found guilty of each count of aggravated assault and not guilty of each count of armed violence. The court noted the remedy suggested in Hairston but also noted that that suggested remedy applies only where there were inconsistent verdicts of guilty. The appellate court pointed out the provisions of the Hlinois 1970 Constitution prohibiting appeals from judgments of acquittal (Ill. Const. 1970, art. VI, sec. 6) and held that the acquittal judgments stood as valid final judgments. Then, applying collateral estoppel, the appellate court held that a new trial on the charges of aggravated assault alone was barred and required the reversal of the convictions on those charges. People v. Pearson (1973), 16 Ill. App. 3d 543, 549.

We conclude that a similar result must be reached here. Under our constitution there can be no appeal of the acquittal of the charge of murder. That acquittal stands as a valid, final determination of that issue. Since we do not have legally inconsistent guilty verdicts, we cannot follow the suggestion of Hairston that a reversal and a new trial on all counts is the proper remedy. Also, as in Pearson, collateral estoppel prevents the retrial of the armed-violence count alone. To retry the defendant on that charge would unconstitutionally cause the defendant to relitigate an essential element of that crime (murder) of which he had previously been acquitted. The appropriate remedy is therefore reversal of the armed-violence conviction.

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

Judgment affirmed.


author: JUSTICE WARD

text:
    (No. 57687.
    ANDREW J. DWYER et al., Appellants, v. DANIEL R. GRAHAM et al., Appellees.

      Opinion filed December 16, 1983.

    William W. Reedy, of Vella & Reedy, P.C., of Rockford, for appellants.
    William L. Balsley, of Loves Park, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

On June 14, 1973, the plaintiffs, Andrew J. Dwyer, his wife, Ruth M. Dwyer, and their son, Roger, entered into a written “Agreement of Sale” with Daniel R. Graham and David R. Tresemer, who are the defendants. The agreement was prepared by a real estate broker or salesperson, and it is not clear whether she was the agent of the plaintiffs or the defendants. The agreement provided for the sale of certain cement trucks, cement mixers, and ready-mix-cement equipment to the defendants for three lots valued at $3,000 each and a $4,000 note payable on or before January 1, 1974. The agreement provided also for the lease of the plaintiffs’ cement plant in Roscoe to the defendants in consideration of the •payment of rent at the rate of one dollar per yard of concrete delivered to customers of the defendants. The portion of the instrument which is involved here provided:

"4. Rent is to be $1.00 per yard of concrete delivered. Such rent is to include use of office and equipment, building that houses trucks, and land behind building to the end of lot.
5. Purchaser is to have use of rental agreement as long as desired.
6. Seller is to maintain redi-mix plant as long as rental agreement is in effect.”

In the spring of 1977, Tresemer sold his interest in the business to Graham in satisfaction of a $13,884 debt, and Tresemer is no longer a party in this litigation.

On January 20, 1979, the plaintiffs served Graham with a 10-day notice to quit for failure to pay rent. Subsequently, they filed a complaint under the forcible entry and detainer statute (Ill. Rev. Stat. 1977, ch. 57, par. 1 et seq.) for possession of the leased cement plant. Following a jury trial in April 1979, a verdict was entered in favor of Graham.

In November of 1979, the plaintiffs brought this declaratory judgment action in the circuit court of Winnebago County. Excepting what already had been performed, they sought a declaration that the lease was not legally enforceable because it was not reasonably limited as to time and duration and because of an alleged lack of mutuality of obligation. At that time, the plaintiffs filed a jury demand.

A motion to dismiss by the defendant, contending that the question of enforcement of the lease had been litigated in the forcible entry action, was denied. Graham then filed an answer raising the affirmative defenses of equitable estoppel and laches. Asserting that the greater part of the $13,000 consideration was to obtain the rental agreement, the defendant also filed a counterclaim seeking restitution and damages in the event the lease was declared unenforceable.

The plaintiffs’ motion for summary judgment was denied because, in the opinion of the trial court, the “Agreement of Sale” was ambiguous. Their motion to withdraw their jury demand was allowed, and the court, finding that there were no triable issues of fact, denied a subsequent motion by the defendant to file a jury demand.

At a bench trial, Andrew Dwyer testified that he did not read the agreement before signing it and that the parties did not discuss the duration of the lease. Roger Dwyer testified on cross-examination that, after he had expressed reservations concerning the legality of the language involved here, either Graham or Tresemer urged that the language not be changed “since within five years or so [we’ll] know whether [we’re] either going to buy the business or else be out of the business by that time.” Graham also testified that Roger Dwyer had expressed concern about the language. He further testified that he had told the Dwyers that “we did not want to spend $13,000 and be limited to a two-year or five-year lease.” Graham said that Andrew Dwyer responded that no problem existed since he was confident that the purchasers would make so much money within a couple of years that they would buy the cement plant. In response to the question “Was there anything paid for the rental of the buildings and property other than personal property than [sic] the one dollar per yard that’s referred to in that agreement?”, Tresemer stated, “I don’t believe so. That was the agreement.”

On October 30, 1980, the circuit court found that the “Agreement of Sale” was severable into a sale of business assets and a lease of the cement plant premises. The court found that the lease, which was indefinite as to duration, was terminable at will by either the plaintiffs or the defendant, and that, by their conduct, the plaintiffs had terminated the lease. The trial court declared that its ruling on issues raised by the counterclaim was being reserved for further hearing by the court.

The defendant appealed to the appellate court, but the appeal was denied for want of a final judgment, since the circuit court had retained jurisdiction for consideration of the counterclaim. The defendant, in the circuit court, moved for and was granted dismissal of his counterclaim. Graham then appealed, and the appellate court reversed and remanded for a jury trial. (110 Ill. App. 3d 316.) The court concluded that the defendant’s defenses of estoppel and laches must fail because, under the circumstances surrounding the execution of the “Agreement of Sale,” the trial court did not abuse its discretion in finding that the plaintiffs’ delay in bringing this action was not unreasonable and because the defendant had notice that the plaintiffs might later challenge the effect of the language used in the lease. The court, however, considered that a jury trial would be necessary here since reasonable men could differ as to whether the parties intended the lease to be of perpetual duration. The court judged that the defendant’s claim that there would not have been a sale except for the providing of a lease of the cement plant premises was unsupported by the evidence.

We agree with the trial court’s holding in favor of the plaintiffs. The trial court’s view was that what was involved here was a tenancy at will, which was terminated by the plaintiffs.

We consider that, at most, there may have been a tenancy at will. We judge that really no tenancy was created. This does not, however, affect the conclusion of the trial court in favor of the plaintiffs. The result is the same.

There was no real undertaking or promise by the defendants under the “rental agreement.” They were to have “use of rental agreement [sic] as long as desired.” The option given the defendants was unlimited, and the claimed promise was only illusory. Williston states: “One of the commonest kind of promises too indefinite for legal enforcement is where the promisor retains an unlimited right to decide later the nature or extent of his performance. This unlimited choice in effect destroys the promise and makes it merely illusory.” (1 S. Williston, Contracts sec. 43, at 140 (3d ed. 1957).) In the Restatement (Second) of Contracts section 77, comment a, at 195 (1981), it is observed: “Illusory Promises. Words of promise which by their terms make performance entirely optional with the ‘promisor’ do not constitute a promise.” See also Dasenbrock v. Interstate Restaurant Corp. (1972), 7 Ill. App. 3d 295, 302.

The trial judge’s comment was that the instrument relied on here was “bizarre.” It does indeed illustrate what typically is the unwisdom of entrusting the handling of legal affairs to persons other than attorneys or of succumbing to the lure of “do-it-yourself” manuals.

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

Appellate court reversed; circuit court affirmed.


text:
    (No. 57871.
    ANDREW CAMPBELL, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Keystone Consolidated Industries, Inc., Appellant).

      Opinion filed December 16, 1983.

      Robert W. Scott, of Swain, Johnson & Card, of Peoria, for appellant.
    Paul G. Bradshaw and Chester C. Fuller, of Peoria, for appellee.
   CHIEF JUSTICE RYAN

delivered the opinion of the

court:

Claimant, Andrew Campbell, was employed by Keystone Steel and Wire Company. On July 6, 1979, while working on a platform about six feet off the floor, an explosion occurred, spraying the claimant with molten steel on the hands, forearms, left thigh, and buttocks. Claimant either fell, or was knocked from the platform on which he was working as a result of the explosion. The claimant sought benefits under the Workmen’s Compensation Act. Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.

The arbitrator awarded claimant 51% weeks of temporary total disability under section 19(b) of the Act and stated that the disabling condition “is temporary and has not yet reached a permanent condition” (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)), 51% weeks being described as having accrued intermittently from July 6, 1979, to September 4, 1980. On review, the Industrial Commission found petitioner’s temporary disability extended only from July 6, 1979, to August 27, 1979, and not thereafter. The Commission found that the claimant failed to prove that the accident aggravated his preexisting mental condition.

The circuit court of Peoria County found that the decision of the Industrial Commission was against the manifest weight of the evidence. The court reversed the decision of the Industrial Commission and reinstated the award and decision of the arbitrator. The employer has appealed directly to this court pursuant to our Rule 302(a)(2) (87 Ill. 2d R. 302(a)(2)). There is no dispute that the defendant suffered physical injuries as a result of the accident. The question in dispute is whether the accident aggravated a preexisting mental condition, causing the claimant to be temporarily totally disabled after his physical disability had ended.

Following the accident, the claimant was hospitalized and treated for his physical injuries. He was treated by Dr. Robert Martin, the company’s doctor. The claimant was released from the hospital on July 18, 1979. Dr. Martin continued to treat him for his physical injuries, and on August 22 issued a modified work release calling for no use of the right arm because of muscle tightness in claimant’s neck. The claimant returned to work under this restriction on August 27 and was given a job of answering telephones in an office located near the platform where the accident had occurred.

On August 29, 1979, the claimant returned to Dr. Martin complaining of severe headaches and increased back pain. The doctor conducted a neurological examination which he found to be normal and ordered an EEG and a brain scan. On September 6 he discussed the results of these tests with Dr. McLean, a neurologist. The test revealed abnormal EEG findings. On September 7, because of these abnormal findings and the continued complaints about headaches, Dr. Martin told the claimant to go home and not to return to work.

On-subsequent visits, the claimant exhibited and described bizarre behavior to Dr. Martin. Because of this behavior and the persistent headaches, Dr. Martin suggested a psychiatric examination. The claimant agreed to see Dr. Remolina, a psychiatrist whom he had previously seen. Dr. Martin stated that because of the claimant’s refusal to discuss anything about his home life at the time he sent the claimant to Dr. Remolina, he thought that something in the claimant’s home life might have triggered this episode. He later contacted Dr. Remolina and asked if the claimant had been willing to discuss his home life. Dr. Remolina stated that he had hot. Dr. Martin asked Dr. Remolina if it was likely that his home life was a precipitating factor. The psychiatrist stated that it was very likely it could have been a home problem since that was the only thing the claimant was really hesitant to open up about. Dr. Martin, however, refused to state an opinion as to the cause of the mental disability, stating that he had not been trained in psychiatry.

About the same time, the claimant consulted Dr. Hugh McMenamin, a doctor of his own choosing, whose consultation report is dated September 28, 1979. In a letter to Attorney Paul Bradshaw dated October 31, 1979, concerning the claimant, Dr. McMenamin stated he had hospitalized the claimant and made arrangements for Dr. Mortimer Beck to evaluate him. Dr. Beck is a psychiatrist and first saw the claimant on October 30, 1979. His diagnosis was that the claimant was suffering from depressive neurosis. He saw the claimant in the hospital on October 30 and 31 and on November 1 and 2. Following the claimant’s discharge from the hospital, Dr. Beck saw him approximately once a week through December 1979, and then about every two weeks up to the hearing before the arbitrator on September 3,1980.

The employer had the claimant examined twice by Dr. Lalit Salva, a psychiatrist. His examinations were conducted on March 30,1980, and on April 15,1980.

The records of two prior hospitalizations for mental problems were introduced. The first one was dated December 15, 1969, and the second admission was on August 7, 1972. The notes concerning the April 1972 admission state that the patient has a history of psychiatric hospitalization of approximately two months in 1970 and the notes further state that he has been hospitalized for psychiatric reasons several times.

At the hearing before the arbitrator, the claimant introduced Dr. Beck’s evidence deposition. The employer présented Dr. Salva as a witness and also presented the evidence deposition of Dr. Martin. In addition, the employer also called Dr. Beck to testify.

The dispute in this case primarily centers around whether there was or was not a conflict in the professional opinions of the two psychiatrists. The controlling question, of course, is whether the finding of the Industrial Commission that the accident had not aggravated a preexisting mental condition is against the manifest weight of the evidence.

Dr. Salva, testifying for the employer, stated that in his opinion the accident did not cause any emotional impairment in addition to what existed prior to the accident. Although he stated that any injury causes some emotional problems, the permanent aspect of the claimant’s emotional impairment was not caused by the accident. He also stated that he thought the claimant’s fears were exaggerated.

On the other hand, Dr. Beck stated that the claimant had a basic paranoid personality that existed before the accident, but that the accident aggravated it and caused the depressive illness from which he was suffering at the time of the hearing. When Dr. Beck gave his evidence deposition, which was introduced into evidence by the claimant, he had not known that the claimant had been previously hospitalized at least twice for. mental problems. However, when Dr. Beck testified before the arbitrator, after having been called by the employer, he was aware of the claimant’s previous hospitalizations and he changed his diagnosis slightly from what he had testified to at the deposition. He also equivocated, to a certain degree, by saying that the claimant’s condition is probably related to the accident, “I can’t say it’s absolutely related *** most probably. But I cannot be sure of it.”

During Dr. Beck’s testimony, the question arose as to whether the claimant was faking his mental condition. Dr. Beck stated that it was unlikely, but he could not say the claimant was not. He admitted that he had, on a previous occasion, been misled by a patient who claimed to be disabled. Dr. Beck had prescribed the drug Prolixin Decante for the claimant. He stated that the drug would cause a truly sick person to become more organized and less psychotic. If the person were not sick, he would be extremely drugged by the medication and would be sleeping all day, followed by a period of hyperactivity. Dr. Beck stated that he had not noticed any such reactions in the claimant.

However, the claimant testified that he had failed to keep some of his appointments with Dr. Beck “because of the medication he gave me, I would oversleep.” Also, Gale Brooks, a friend who lived with claimant and his family, testified that when claimant would first get his shots of the medication, “he just lays around, it really brings him down, you know, and he sleeps, he sleeps.” She then described what she referred to as the second stage following the medication. “The second stage is he moves. It’s too much energy, he is constantly moving, constantly walking, walking, walking. You can wake up two in the morning and he is going through the house and walking.”

Claimant points out, however, that two days after claimant received a shot of the medication, he was interviewed for about two hours by Shirley Wilson, a private investigator for the employer. She described him as outgoing and stated that he talked about his grandchildren, his puppies with which he was playing, and some construction work that was being done at his house. She noticed no bizarre behavior by the claimant.

Claimant also points out concessions that were made by Dr. Salva, the employer’s psychiatrist, who, in contrast to his previous statement noted above, stated that there was a change in claimant’s basic-personality after the accident which made him less functional. Dr. Salva stated that claimant’s paranoid personality weakened his capacity to tolerate stress initially and that he would be more likely to react to injury than another person would. He also stated that the claimant did react to this injury.

There was a considerable amount of testimony by various persons, including the doctors, concerning claimant’s behavior, both normal and abnormal, about which the experts were requested to express their opinions. Also, Dr. Salva stated that he would not disagree with Dr. Beck’s observations of claimant’s behavior because he had not examined claimant during that period of time. Dr. Salva would only say that he had not observed those manifestations when he had examined the claimant.

The Industrial Commission set forth detailed findings in its decision. The first finding, after describing the accident, summarized Dr. Martin’s testimony concerning claimant’s mental state from the date of the accident until he issued a work release on August 22. The Commission notes that Dr. Martin stated that the claimant was “very relaxed” and in a “very good mental state.”

The second finding notes that claimant returned to work on August 27 following the work release and summarizes Dr. Martin’s testimony that he took the claimant off work on September 7 because of his alleged headaches and the abnormal EEC findings. The finding further states that the doctor noted changes in the claimant’s behavior. He became silent and withdrawn and refused to discuss his family with the doctor.

Another finding of the Commission relates to Dr. Beck’s testimony. The finding discusses Dr. Beck’s original diagnosis and the change in his diagnosis after learning that the claimant had been hospitalized twice before for mental problems. The finding also notes, “Dr. Beck further stated that petitioner’s episodes had an ‘internal periodicity’ of their own, and can occur with or without any external stressful occurrence.”

Another finding of the Commission concerns the injection of the drug Prolixin Decante. It specifically refers to Dr. Beck’s belief that the claimant was not faking his mental condition because if the drug were administered to a normal person, he would be in a drugged condition and sleep all day, following which he would be restless. The finding then refers to Gale Brooks’ testimony as to claimant’s behavior following the injection of the medication and to the claimant’s testimony about missing appointments with the doctor due to oversleeping because of the medication.

The last paragraph of the findings relates to Dr. Salva’s testimony. It states that, in the doctor’s opinion, the accident did not cause the permanent aspect of claimant’s emotional impairment.

Based on these findings, the Commission found that the claimant was temporarily disabled from July 6, 1979 (the date of the accident), until August 27, 1979 (the date he returned to light duty), and that he failed to prove the accident aggravated his preexisting mental condition. We are not at liberty to reverse the Industrial Commission’s findings unless we can say that they are against the manifest weight of the evidence. Westinghouse Electric Co. v. Industrial Com. (1976), 64 Ill. 2d 244, 251; Ferrin Cooperative Equity Exchange v. In dustrial Com. (1976), 64 Ill. 2d 445, 448.

Regardless of how claimant may attempt to minimize the differences in the testimony of the two psychiatrists (Dr. Salva and Dr. Beck), the fact remains that Dr. Salva testified that, in his opinion, the accident caused no emotional impairment in addition to that which existed prior to the accident, while Dr. Beck’s testimony was to the effect that it had. We thus have a conflict in the medical testimony, and this court has repeatedly stated that it is within the province of the Industrial Commission to resolve such conflicts. International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1, 4; Holiday Inns of America v. Industrial Com. (1969), 43 Ill. 2d 88, 89; County of Cook v. Industrial Com. (1974), 57 Ill. 2d 24, 28. 5

The claimant challenges thu^ credibility of Dr. Salva on various grounds and notes several concessions made by the doctor which, it is claimed, lessen the credibility of his opinion that the accident caused no additional emotional impairment. Likewise, the employer emphasizes certain factors which it is claimed impair the credibility of Dr. Beck’s testimony. We have also, on countless occasions, stated that it is the duty of the Industrial Commission to determine the credibility of the witnesses and the weight to be given to their testimony. Veritone Co. v. Industrial Com. (1980), 81 Ill. 2d 97, 104; Riteway Plumbing v. Industrial Com. (1977), 67 Ill. 2d 404, 408.

There is substantial testimony from lay witnesses, as well as from medical witnesses, from which inferences can be drawn that the claimant’s emotional condition was worse after the accident or that it was not. Here, again, it is well established by previous holdings of this court that it is the Industrial Commission that may draw the reasonable inferences from the testimony. A. O. Smith Corp. v. Industrial Com. (1977), 69 Ill. 2d 240, 246.

The Industrial Commission obviously gave considerable credence to the employer’s contention that the claimant was faking. The Commission summarizes in its findings the testimony of Dr. Beck (claimant’s psychiatrist) as to what effect the medication would have on a person who was not ill and then refers to the testimony which showed that the claimant reacted in the very manner the doctor described following the injection of the medication.

Viewing the resolution of the conflicting evidence, the credibility of the witnesses, and the reasonable inferences to be drawn from the evidence in a light favorable to the prevailing party, we cannot say that the decision of the Industrial Commission is against the manifest weight of the evidence.

We must therefore reverse the judgment of the circuit court of Peoria County and confirm the decision of the Industrial Commission.

Judgment reversed; Industrial Commission confirmed.