author: JUSTICE SCOTT JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. MILNER, Defendant-Appellant.
    Third District
    No. 3 — 83—0304
    Opinion filed April 19, 1984.

      HEIPLE, J., concurring in part and dissenting in part.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Thomas C. Milner, appeals following a jury trial in the circuit court of Peoria County which returned verdicts of guilty for the offenses of murder, involuntary manslaughter, aggravated battery of a child and concealment of a homicide. Judgment of conviction was entered for murder and the defendant was sentenced to an extended term of imprisonment for 46 years. A consecutive sentence of five years was imposed for the offense of concealment of a homicide.

The issues presented for review include allegations that: (1) the trial court erred in refusing to suppress defendant’s confession; (2) that evidence of uncharged crimes was improperly admitted over defendant’s objection; (3) that the evidence was insufficient to prove the corpus delicti beyond a reasonable doubt; (4) that defendant’s statement to the police admitting that his son’s death may have resulted from a criminal act was not corroborated by sufficient independent proof of the corpus delicti; (5) that the defendant was improperly sentenced for murder since the jury’s finding of guilt for involuntary manslaughter negated the required mental state for murder; (6) that defendant’s conviction for murder must be reversed since it was not proved beyond a reasonable doubt that defendant knew his acts created a strong probability of death or great bodily harm; and (7) that the trial court erred in refusing to instruct the jury on the issue of negligence.

The evidence indicated that on December 9, 1982, at approximately 7 p.m., several police officers went to an apartment occupied by Annette Robinson and the defendant. Ms. Robinson, the defendant and three children were at home. The police remained in the apartment until approximately 8:30 p.m. when they arrested Ms. Robinson and took her to the police station. The children were placed in protective custody.

While at the apartment the police searched for, but failed to locate, the defendant’s son, Shamar Milner. At one point the defendant attempted to leave to purchase medicine but the police told him it would be best if he remained in the apartment. The defendant was not taken into custody but was asked to come to the police station. The police left the defendant in the apartment after he told them that he would come to the station later.

At approximately 9 p.m. the defendant arrived at the rear door of the police station carrying a duffel bag. The defendant indicated that the bag contained his son, Shamar. The coroner subsequently examined the bag and found the body of a badly decomposed infant. The defendant was read his Miranda rights, and he agreed to talk to the police.

The defendant was taken to an interview room and questioned for 35 minutes. He then accompanied the police back to his apartment and showed them a demolished building where he initially had placed his dead son.

The defendant and the police returned to the station where he agreed to make a written statement which began at 11:13 p.m. At 12:06 a.m. the statement was interrupted when the defendant stated that he was tired and could not answer any more questions. The defendant became emotional and started to cry.

Specifically, the colloquy was as follows:

“Q. Why did you leave [the apartment]?
A. Couldn’t leave him outside.
Q. Couldn’t leave who outside?
A. I’m tired, I can’t answer no more. I couldn’t leave my son outside.”

The police told the defendant that they would take a break to allow him to compose himself. During the break there was general conversation, the defendant was permitted to relax and was offered coffee and cigarettes. The defendant was also left alone for a few minutes.

At approximately 12:15 a.m. the police and their stenographer returned to the interrogation room and the defendant was asked if he felt up to going on with his statement. The defendant replied that he was willing to do so, and he was told that his rights were still in effect.

The interrogation resumed and the defendant was questioned until 12:52 a.m. At this point the police conferred with legal counsel and allowed the defendant to read over his statement.

At 2:21 a.m. the interrogation resumed after the defendant said he felt up to answering a few more questions. The defendant was again told that his rights were still in effect and could be exercised at any time. He was questioned until 2:36 a.m.

The defendant’s statement indicated that around October 15, 1982, he had been trying to teach his 15-month-old son, Shamar, to stand. When the defendant’s initial efforts failed, he tied Shamar to a board to teach him to stand upright. The child began to cry at being restrained so the defendant untied him. However, when the child continued to cry the defendant became angry and shook him two or three times, the last two shakes being hard. The child was then put to bed. During the night the defendant discovered that his son had a fever so he gave him a cool bath and put him back to bed. In the morning the defendant checked his son’s condition and he was dead. The defendant did not tell anyone. He dressed the child and wrapped him in a blanket. He told the child’s mother that he was taking him to his mother’s house.

The defendant took his son’s body to an abandoned building where he laid him down and undressed him. He then burned the child’s clothing. However, three or four days later the defendant recovered the body and brought it back to the apartment where it remained in a bag on a shelf in the bathroom until the police arrived December 9. In the interim the defendant burned incense to mask the odor.

An autopsy indicated there were no signs of trauma, but due to the degree of decomposition, no cause of death could be found. The coroner’s physician testified that a child of Shamar’s age could be killed by shaking; however, there were other possible causes of death as well.

Evidence of defendant’s involvement in what were believed to be other offenses was then admitted over defendant’s objection. Specifically, evidence was elicited which indicated that Shamar’s twin sister had suffered a fractured arm and knees in 1981. The defendant had given the police a statement that another child had jumped off a window ledge onto Tamara, Shamar’s twin sister, thereby injuring her. The defendant also admitted shaking the child hard enough to injure her.

Shirley Terry testified that her son Cory had died in 1975 and that the defendant was the child’s father. Cory had been left in the defendant’s care and that he died when the defendant said the child had fallen off his bed. An autopsy indicated that Cory had died from a brain hemorrhage which could have been caused from a fall, but a more common cause for such an injury would be repeated shaking. The autopsy also revealed several healing fractures of Cory’s ribs which had occurred prior to the alleged fall of the child.

Additional evidence was introduced which indicated that X rays of Tamara revealed a spiral fracture of the humerus and small chip fractures of both knees. The spiral fracture was in the same area as the one found on Cory, which resulted from twisting force, such as holding a child by his arms and shaking him.

Dr. Shipley, a radiologist at St. Francis Hospital, believed that these injuries were the “hallmark” of a battered child.

The X rays taken of Shamar indicated that he had injuries which were similar to those of Tamara and Cory, i.e., healing rib fractures, chip fracture of left scapula.

As previously stated, the defendant’s first allegation of error concerns the trial court’s refusal to suppress the defendant’s confession.

The facts and circumstances surrounding the interrogation of the defendant indicate that the defendant voluntarily presented himself at the police station carrying his son’s body in a bag. The defendant had not been taken into custody when the police arrived at the apartment. The defendant was advised of his Miranda rights, which he indicated he understood. The defendant’s statement to the police after the interrogation had begun, i.e., “I cannot answer no more” was made during a period of time when the defendant was emotionally upset due to his son’s death and that he doubted under those circumstances whether he could go on answering questions. The statement must be examined in the factual context of its utterance. See People v. Aldridge (1979), 68 Ill. App. 3d 181, 385 N.E.2d 396, affd (1980), 79 Ill. 2d 87, 402 N.E.2d 176 (defendant indicated, “I think you got enough” held insufficient to constitute invocation of right to remain silent, but merely reluctance to give details).

We believe the context of the defendant’s statement here is analogous to that of Aldridge in that it was not a request to terminate questioning but an indication by the defendant that he believed he couldn’t continue to answer questions at that time due to his emotional state.

The record indicates that when the defendant was given the opportunity to rest and compose himself, he readily agreed to continue talking to the police. A statement is not to be considered involuntary merely because a defendant is tired. (People v. Byrd (1980), 90 Ill. App. 3d 429, 413 N.E.2d 148; People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d 7.) For these reasons, we believe the trial court’s refusal to suppress the defendant’s confession was correct.

Next, the defendant contends that the trial court erred in admitting evidence of alleged but uncharged incidents of child abuse to defendant’s children. The defendant contends that the injuries suffered by the children were not established to have resulted from child abuse as opposed to natural causes, and in addition, even if the injuries resulted from child abuse, there was an insufficient showing that the defendant was the child abuser.

The defendant correctly argues that evidence of other crimes is inadmissible if it only tends to establish the defendant’s propensity to commit crimes. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

Despite the foregoing policy of protecting the accused against unfair prejudice, several exceptions have been created to the general rule prohibiting evidence of other crimes, i.e., such evidence is admissible if it establishes either motive, intent, identity, absence of mistake or modus operandi. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Although it must be shown that a crime occurred and the accused committed it or participated in its commission, the proof of other crimes need not be established beyond a reasonable doubt. People v. Walters (1979), 69 Ill. App. 3d 906, 387 N.E.2d 1230.

Over defense objection, the trial court admitted evidence that three of defendant’s children, Shamar included, had all on prior occasions been the victims of child abuse at the defendant’s hands, i.e., injuries derived from the children being severely shaken by the defendant. A limiting instruction (Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2d ed. 1981)) was given which instructed the jury that they could consider these other occurrences for the limited and sole purpose of establishing defendant’s design and knowledge. See People v. Holland (1973), 11 Ill. App. 3d 591, 297 N.E.2d 310 (evidence of other crimes admissible to show general scheme of defendant’s continued course of conduct).

Without restating the evidence of alleged child abuse to each child, namely the twins, Shamar and Tamara, and Cory Parker, each had similar injuries and the defendant had admitted shaking Shamar and Tamara hard enough to injure them. Cory’s death occurred without any admissions from the defendant, but the medical evidence tended to contradict the defendant’s version of how Cory died, namely a fall from his bed.

While we are not disposed to say that the evidence established the defendant’s guilt in the other instances of child abuse beyond a reasonable doubt, it is clear that the defendant had an admitted history of either manhandling small children or being the only one present when they died from injuries which were not derived from the defendant’s version of their origin.

The prior instances of child abuse were relevant to prove: (1) recklessness, to sustain the charge of involuntary manslaughter (People v. Garcia (1981), 95 Ill. App. 3d 792, 420 N.E.2d 482; People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181); (2) that allegedly defendant knew his act of shaking Shamar created a strong probability of death or great bodily harm, an element required to sustain the charge of murder (People v. Drumheller (1973), 15 Ill. App. 3d 418, 304 N.E.2d 455); (3) corpus delicti, i.e., that Shamar’s death was caused by a criminal agency put into motion by the defendant (People v. Platter), (4) to exclude possible innocent causes for Shamar’s death (People v. Huff(1963), 29 Ill. 2d 315, 194 N.E.2d 230); (5) common design or purpose (People v. Johnson (1982), 107 Ill. App. 3d 156, 437 N.E.2d 436).

Next, the defendant contends that his convictions for murder, involuntary manslaughter, and concealment of a homicidal death should be reversed because the corpus delicti was not proved beyond a reasonable doubt, i.e., the corpus delicti of a criminal homicide being the fact of death and the criminal agency of another. People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570.

The defendant contends that the only element of the corpus delicti proved by the evidence was the fact of death. The defendant argues that it was not shown beyond a reasonable doubt that the defendant’s shaking of Shamar caused his son’s death. Specifically, the defendant argues that although there was medical testimony that a child of Shamar’s age could be killed by shaking, there was no medical evidence which positively concluded that Shamar’s death resulted from the defendant’s shaking him. However, it is well settled that expert testimony is not required to prove the cause of death. (People v. Jones (1961), 22 Ill. 2d 592, 177 N.E.2d 112; People v. Brown (1967), 83 Ill. App. 2d 411, 228 N.E.2d 495; People v. Davidson (1967), 82 Ill. App. 2d 245, 225 N.E.2d 727.) The corpus delicti may be established despite the inconclusiveness of the medical testimony as to the cause of death. People v. Ellison (1981), 100 Ill. App. 3d 282, 426 N.E.2d 1058; People v. Breehon (1979), 72 Ill. App. 3d 178, 390 N.E.2d 626.

When the facts and circumstances of this case are examined in light of the injuries sustained by the decedent, both prior to and immediately preceding his death, the inescapable circumstantial evidence clearly supports the jury’s determination that the child died as a result of the defendant’s actions. The degree of defendant’s culpability (murder or manslaughter) will be addressed later.

In addition, the defendant’s subsequent actions of concealment, lying about the child’s whereabouts, hiding the body and burning his clothes, clearly support the fact that Shamar died by criminal as opposed to innocent means. People v. Avery (1980), 88 Ill. App. 3d 771, 410 N.E.2d 1093; People v. Lopes (1974), 17 Ill. App. 3d 986, 309 N.E.2d 108; People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350.

For these reasons, we must also reject defendant’s contention that his statement to the police that his son’s death may have been caused from his criminal acts was not corroborated by sufficient independent proof of the corpus delicti. The medical evidence of the decedent’s injuries, while not conclusive standing alone, clearly corroborated the defendant’s statement that his son died as a result of the defendant’s actions. The trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Huff (1963), 29 Ill. 2d 315,194 N.E.2d 230.

Next the defendant contends that the trial court erred in entering judgment on the guilty verdict of murder since the jury’s finding of guilt with respect to the charge of involuntary manslaughter negated the required mental state for murder. (People v. Fox (1983), 114 Ill. App. 3d 593, 449 N.E.2d 261; People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593; People v. Keith (1978), 66 Ill. App. 3d 93, 383 N.E.2d 655; People v. Bolden (1968), 103 Ill. App. 2d 377, 243 N.E.2d 687; People v. Carrico (1923), 310 Ill. 543, 142 N.E. 164; and People v. Kendricks (1984), 121 Ill. App. 3d 442.) The foregoing citations are concerned with cases which hold that a conviction of manslaughter, whether it be voluntary or involuntary, negates a finding that the defendant was guilty of murder. The cases of Keith, Bolden, and Carrico pertain to the offense of involuntary manslaughter. The basic difference between involuntary manslaughter and murder is the mental state which accompanies the conduct causing the homicide. To sustain a conviction for murder there must be sufficient evidence' from which it can be inferred that defendant either intended to kill or knew of the strong probability of death or great bodily harm. Involuntary manslaughter is established when the acts which caused death are done recklessly and a person acts recklessly. (See People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398.) Murder requires specific intent to kill, while involuntary manslaughter is predicated upon evidence showing that an act which caused a death was committed in a reckless manner. The element of recklessness negates any finding of intent necessary to support a conviction for murder.

We note that in the dissent filed in this case there is an attempt to circumvent the rule that a finding of guilt as to the crime of manslaughter is tantamount to an acquittal of the offense of murder by making a distinction between the crimes of voluntary and involuntary manslaughter. As we have previously noted, cases cited by reviewing courts have made no such distinction.

In the dissenting opinion it is further argued that involuntary manslaughter is a lesser included offense of murder and hence the conviction of the lesser offense should be set aside and the conviction of the graver offense, being murder, should be permitted to stand. In support of this argument the case of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, is cited. We question the applicability of King to the instant case. King is concerned with the imposition of consecutive or concurrent sentences for different offenses arising from multiple acts which are incidental to or motivated by some greater criminal objective. The dissent does not argue that two sentences should be imposed but relies on King in arguing that involuntary manslaughter is a lesser included offense of murder and that the sentence imposed upon the charge of murder by the trial court should be upheld.

We acknowledge that the case law on the subject as to whether manslaughter is a lesser included offense of murder has created a murky picture. Some cases have stated that manslaughter is a lesser included offense, while others have referred to manslaughter as a lesser offense, or an offense not being as grave as the offense of murder. In attempting to classify the offenses of manslaughter the language found in the cases has been used quite loosely. Because of the simple fact that murder can be committed only when a person acts intentionally or knowingly, while the commission of manslaughter requires no mental state but is concerned only with conduct, we disagree with the views of the dissent that it is a lesser included offense of murder. (See O’Neill, Murder Least Foul, 72 Ill. B.J. 306 (1984).) The article further states, “It [voluntary manslaughter] is a crime no one could ever deliberately intend to commit, but is rather an after-the-fact characterization of a defendant’s actions. It is a homicide less serious than murder; yet it is not a lesser-included offense ***.” (Emphasis added.)

We are mindful of the recent case of People v. Hoffer (1984), 122 Ill. App. 3d 13. In Hoffer the reviewing court rejected a contention that a manslaughter conviction constituted an implied acquittal of murder. The decision in Hoffer is in conflict with preceding cases. The court in Hoffer attempts to distinguish the case of Stutter since in the latter case an instruction for the offense of murder omitted a requisite element. We are of the opinion that the jury’s verdict in Stutter finding that the defendant was guilty of manslaughter can only be interpreted that the .jury found beyond a reasonable doubt that the defendant had at the time of committing a homicide the requisite elements for manslaughter. Having made this finding, the verdict of the jury negated any possibility that the defendant possessed the specific intent necessary for a conviction of murder. The Hoffer court indicated that in People v. Fox (1983), 114 Ill. App. 3d 593, there is a “silence” as to whether the proper instruction for the offense of murder was given to the jury. The reasoning in Hoffer is strained when it becomes necessary to presume that an erroneous instruction might have been given. The Hoffer court failed to discuss People v. Kendricks (1984), 121 Ill. App. 3d 442, which is in direct conflict with its decision. We have examined all of the authority relied upon by the court in Hoffer and have concluded that the authority cited herein is more compelling and that the defendant’s conviction for manslaughter impliedly results in an acquittal of the charge of murder.

The State further argues that despite the foregoing the verdicts returned in the instant case are not inconsistent since the defendant was charged with separate acts of choking the victim (murder and manslaughter counts) and failing to seek medical attention (manslaughter count alone). We find this argument unpersuasive and directly contrary to the precedents cited.

For the reasons set forth the judgment of guilty for the offense of murder entered against the defendant and the sentence imposed thereon must be reversed and this case remanded for resentencing for the offense of involuntary manslaughter.

We decline to remand defendant’s aggravated battery conviction for resentencing, however, since these acts occurred as the result of the same transaction or occurrence as the involuntary manslaughter. People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.

Finally, the defendant contends that the trial court erred in refusing to give defendant’s tendered instruction on negligence.

We believe the jury was properly instructed based upon the evidence. The issues instruction adequately covered the defense theory in that an instruction which tells the jury that they must find the defendant not guilty if the requisite mental state is lacking is an inverted way of instructing the jury as to the elements of the crime and the State’s burden of proof. People v. Witherspoon (1973), 55 Ill. 2d 18, 302 N.E.2d 3.

The evidence in this case indicated that when the defendant shook his son he was angry, that he was aware of his actions, and with conscious disregard (recklessness) for his son’s safety continued to shake him. This was not a case where the defendant inadvertently dropped his son or negligently injured him. The defendant was aware of what he was doing, despite the fact that he may not have been aware of the consequences of his actions.

The basic difference between involuntary manslaughter and murder is the mental state which accompanies the homicide. (People v. Gresham (1979), 78 Ill. App. 3d 1003, 398 N.E.2d 398.) The jury’s finding that defendant unintentionally killed his son did not establish, as defendant contends, that he acted unintentionally, only that the result of his intentional actions (his son’s death) was unintentional.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed as it pertains to defendant’s conviction for involuntary manslaughter and reversed as it pertains to defendant’s conviction for murder. The case is remanded to the circuit court of Peoria County for resentencing for the offense of involuntary manslaughter.

Judgment affirmed in part, reversed in part.

STOUDER, J., concurs.

JUSTICE HEIPLE

concurring in part, dissenting in part:

I concur with the majority opinion on all issues except for the fifth issue. I do not believe the jury’s finding of involuntary manslaughter negates a finding of the required mental state for murder. Therefore, I dissent.

It must be noted at the outset that the cases cited in the majority opinion on this issue stand for two separate propositions, only one of which is directly relevant to the fifth issue. In People v. Keith (1978), 66 Ill. App. 3d 93, the jury was instructed on both the lesser offense of involuntary manslaughter and the greater offense of murder, but returned a verdict of guilty only on the lesser offense. Under such circumstances, courts recognize the silence of the jury concerning the greater offense as an implicit acquittal of the greater offense. Consequently, double jeopardy bars a retrial on the greater offense. (See Green v. United States (1957), 355 U.S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221.) The above-cited cases do not apply to the instant case. Here, the jury was instructed on both the lesser offense of involuntary manslaughter and the greater offense of murder. However, the jury returned a finding of guilty on both the lesser and greater offense. There was no silence concerning the greater offense, and, thus, no implied acquittal of the greater offense.

The majority opinion also cites People v. Fox (1983), 114 Ill. App. 3d 593, and People v. Stutter (1979), 71 Ill. App. 3d 118. These cases do deal with the question of negation of mental state. However, in Fox and Stutter the defendant was convicted of both voluntary manslaughter and murder. The instant case is distinguishable because the defendant was convicted of both involuntary manslaughter and murder.

In Stutter, the jury was instructed on the elements of the crime of voluntary manslaughter, which is defined in subsection (b) of section 9 — 2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1978, ch. 38, par. 9 — 2(b).) Subsection (b) manslaughter occurs where a defendant knowingly kills an individual and, at the time of the killing, the defendant believed the killing was justified, yet that belief was unreasonable. The jury was also instructed on murder. The appellate court found error because the murder instruction was incomplete. The instruction did not include the element “that the defendant did not believe that circumstances existed which justified the use of force.” Obviously, there is a direct conflict between a finding that the defendant believed the killing was justified (voluntary manslaughter), and a finding that the defendant did not believe the use of force was justified (murder). Consequently, the omission in the murder instruction mandated a reversal of the murder conviction.

In Fox, the jury was instructed on the elements of the crime of voluntary manslaughter, which is defined in subsection (a) of section 9 — 2. Subsection (a) manslaughter occurs where a defendant kills while acting under a sudden and intense passion resulting from serious provocation. The jury was also instructed on murder. Citing Stuller, the Fox court held that the murder conviction must be reversed. The Fox court noted that “the offense of voluntary manslaughter is an acknowledgment by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide.” (People v. Fox (1983), 114 Ill. App. 3d 593, 595.) In a sense, then, the law recognizes an exception to a murder conviction where passion and provocation, or an unreasonable belief that the killing was justified, can be proved. Consequently, where a jury finds a defendant committed voluntary manslaughter and murder, a court may rectify any legal inconsistency resulting from the multiple convictions by setting aside the murder conviction.

A finding of involuntary manslaughter, however, does not, likewise, preclude a murder conviction. In the instant case, the jury was instructed on murder as follows:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.”

The instructions on involuntary manslaughter provided that:

“A person commits the offense of involuntary manslaughter when he unintentionally causes the death of an individual by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

Recklessness was defined as a conscious disregard for a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.

A comparison of the elements of the murder and involuntary manslaughter instructions above reveals that the two crimes are very similar. Indeed, involuntary manslaughter is considered a lesser included offense of murder. (See People v. Ortiz (1978), 65 Ill. App. 3d 525, 531.) The essential difference between the crimes, as charged here, is that the lesser crime is based upon recklessness, while the greater offense requires knowledge of a strong probability. Yet, the difference between recklessness and knowledge of a strong probability has been recognized as having no sharp dividing line and is one of degree. (See People v. Davis (1966), 35 Ill. 2d 55, 60.) A person can knowingly create a strong probability of death or great bodily harm (murder), and at the same time consciously disregard a risk (reckless conduct) that his acts are likely to cause death or great bodily harm (involuntary manslaughter). Thus, the jury could have reviewed the facts of the instant case and consistently and reasonably found that the defendant’s acts were sufficient to satisfy their instructions on murder and also sufficient to satisfy their instructions on involuntary manslaughter.

The defendant was protected from any legal prejudice resulting from multiple convictions by the supreme court’s holding in People v. King (1977), 66 Ill. 2d 551, 566. King held that a defendant cannot be subject to multiple convictions based on the same act, or based on separate acts where an offense is a lesser-included offense of the other. The King court did not state which conviction, the lesser or the greater, must be set aside. Courts have set aside the lesser offense. (See People v. Harris (1982), 104 Ill. App. 3d 833, 841; People v. Dandridge (1981), 98 Ill. App. 3d 1021, 1027.) The trial judge, in the instant case, was apparently aware of the King holding because he only entered the murder conviction against the defendant.

I believe the jury’s findings were factually consistent and the trial court’s decision not to enter the involuntary manslaughter verdict eliminated any legal inconsistencies. A finding of involuntary manslaughter does not preclude a conviction for murder. Therefore, I dissent from the majority’s decision to reverse the murder conviction.


source: Caselaw Access Project

author: PRESIDING JUSTICE STOUDER JUSTICE HEIPLE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY B. ALLEN, Defendant-Appellant.
    Third District
    No. 3-83-0342
    Opinion filed April 16, 1984.
    HEIPLE, J., dissenting.

      Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorney’s Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

On October 14, 1982, defendant, Terry Allen, was charged in the circuit court of Peoria County by information with the unlawful restraint and deviate sexual assault of Christine Ray, pursuant to sections 10 — 3 and 11 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 10 — 3, 11 — 3). On November 5, 1982, the State petitioned to have Allen declared a sexually dangerous person under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1981, ch. 38, art. 105). Two psychiatrists were appointed and ordered to examine and evaluate the defendant. After a probable cause hearing, the criminal charges were dropped. Defendant was then recharged by indictment, the petition to declare defendant a sexually dangerous person was reinstated and defendant waived his right to a jury.

The cause proceeded to a bench trial on March 4, 1983. Both court-appointed psychiatrists testified as well as the alleged victim, Christine Ray. The defense presented no evidence. The court found that the State had proven defendant a sexually dangerous person. We do not agree that the defendant could have been proven sexually dangerous beyond a reasonable doubt based upon the evidence.

The applicable statutory provision, section 1.01, defines sexually dangerous persons as

“All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition *** coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault *** are hereby declared sexually dangerous persons.” (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 1.01.)

These three elements, (1), the one-year provision; (2), a propensity to commit sexual offenses, and (3), demonstrated propensities toward acts of sexual assault, must all be proven beyond a reasonable doubt. (People v. Pembrock (1974), 23 Ill. App. 3d 991, 320 N.E.2d 470.) In this case the psychiatric testimony of the court-appointed psychiatrists, Drs. Colen and Beck, must have been relied upon by the court to establish all of these elements of the offense because Christine Ray’s testimony pertains to only one incident of sexual assault which occurred only a few weeks previous to the filing of the petition and the defendant had no previous convictions. Therefore, the psychiatric testimony must have been used by the trial court to establish that the defendant had had a mental disorder for one year previous to filing the petition, that defendant had a propensity to commit sex offenses and to demonstrate the defendant’s propensity toward acts of sexual assault. This psychiatric testimony was based solely upon statements made by the defendant and therefore the State made its entire case from the defendant’s unwarned statements. This was clearly a violation of defendant’s constitutional right not to be forced to incriminate himself.

Although a procedure under the Sexually Dangerous Persons Act is said to be civil in nature, criminal safeguards apply to the Act because implementation of the Act can result in a substantial deprivation of the defendant’s liberty. (United States ex rel. Stachulak v. Coughlin (7th Cir. 1975), 520 F.2d 931.) Specifically, the right against self-incrimination applies (People v. Capoldi (1957), 10 Ill. 2d 261, 139 N.E.2d 776), and a defendant cannot be forced to make incriminating statements to a psychiatrist during a compulsory examination mandated by the statute. (People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455.) The United States Supreme Court went even further in Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866, in applying the privilege against self-incrimination to a compulsory psychiatric examination which was later used to establish the defendant’s dangerousness by requiring Miranda-type warnings be given and counsel be offered previous to the compulsory examination. We find Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866, directly applicable to the compulsory psychiatric examinations to which this defendant was subjected and which the trial court must have relied upon to establish all three elements which the statute required be satisfied in order to find the defendant a sexually dangerous person. The record clearly shows that defense counsel objected to the admission of the psychiatrists’ testimony on the grounds that the defendant must not be forced to incriminate himself. Dr. Colen never warned the defendant that anything he said might later be used to find him sexually dangerous, nor did Dr. Beck give an adequate warning. Therefore, the trial court could not rely solely upon the defendant’s unwarned statements to the psychiatrists to find the defendant a sexually dangerous person.

We have not lost sight of the fact that Christine Ray, a victim of an alleged assault, testified in this proceeding. However, her testimony, even if sufficient to establish one act, pertained to only one act, which was not adequate to satisfy the multiple-acts requirement of the third element of the statutory definition. Also, no prior convictions were admitted in this case.

For the above reasons we reverse the decision of the circuit court of Peoria County.

Reversed.

ALLOY, J., concurs.

JUSTICE HEIPLE,

dissenting:

Pursuant to section 4 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 4) (hereinafter Act), the defendant was ordered to undergo psychiatric examinations to determine whether he was sexually dangerous. Two psychiatrists testified that based on their examinations, the defendant was mentally ill and exhibited propensities to commit sex crimes. The majority finds that this testimony was inadmissible because the defendant was not given Miranda warnings before the examinations in violation of his fifth amendment rights. I dissent.

The majority opinion proceeds from the erroneous premise that the defendant was compelled to incriminate himself because his statements to the psychiatrists were used to show that he was a sexually dangerous person. Not so. Proceedings under the Act are civil in nature. (Ill. Rev. Stat. 1981, ch. 38, par. 105 — 3.01.) Therefore, a defendant’s statements are incriminating only if they expose the defendant to actual criminal prosecution as opposed to a determination of his civil mental status under the Act.

In People v. English (1964), 31 Ill. 2d 300, 307-08, the Illinois Supreme Court held that a defendant can be compelled to answer questions during a psychiatric examination under the Act so long as he is not forced to make incriminating statements:

“We hold that the privilege against self-incrimination protects defendant from making any statements to the psychiatrists which may tend to incriminate him.
This does not mean, however, that defendant is privileged from submitting to any examination. In People v. Greer, 28 Ill. 2d 107, and People v. Munziato, 24 Ill. 2d 432, we held that the privilege protects only against testimonial compulsion. Thus, defendant can be compelled to submit [to] those parts of the ex-animation which do not call upon his testimonial capacity, even though some of the information obtained may be incriminating; and he can, of course, be compelled to make replies as long as the questions do not require an answer which may tend to incriminate him.” (Emphasis added.)

According to English, a defendant’s privilege against self-incrimination does not extend to a disclosure of his mental condition unless it would also reveal criminal conduct independent of the defendant’s status under the Act. The majority has departed from this rule by defining an incriminating statement as anything which is used to support a finding of sexual dangerousness. If this definition is followed, then a defendant may refuse to answer all questions during an examination on fifth amendment grounds. This is clearly contrary to People v. English (1964), 31 Ill. 2d 300.

United States ex rel. Stachulak v. Coughlin (7th Cir. 1975), 520 E2d 931, does not support the majority’s position. In Coughlin, the court held that in proceedings under the Act, the State must prove its case beyond a reasonable doubt. Although this requirement has been incorporated into the Act, proceedings thereunder remain civil in nature. Ill. Rev. Stat. 1981, ch. 38, par. 105 — 3.01.

Coughlin also held that the privilege against self-incrimination applied to the Act but did not discuss the issue in depth. Instead, the court cited with approval People v. English (1964), 31 Ill. 2d 300, which the majority has now rendered obsolete.

Likewise, Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866, provides no authority for suppressing all unwarned statements made during a psychiatric examination under the Act. Estelle addressed the issue of a defendant’s fifth amendment rights during a compulsory psychiatric examination prior to a death penalty hearing which is a criminal proceeding. Estelle should not be employed as a precedent in civil matters such as the present case.

In my opinion, the lack of Miranda-type warnings prior to the defendant’s examinations should not render incriminating statements inadmissible in this proceeding. Such incriminating statements made by the defendant should be held inadmissible only in subsequent criminal prosecutions. I am aware that in People v. Potter (1967), 85 Ill. App. 2d 151, the court held that such statements would be inadmissible both under the Act and in a subsequent criminal prosecution. However, I would decline to follow Potter insofar as it purports to bar use of the unwarned statements in a proceeding under the Act.

Indeed, in the present case, there is no indication that the defendant made incriminating statements which exposed him to potential criminal prosecution. Therefore, the lack of warnings does not render the psychiatrist’s testimony inadmissible. I would affirm the circuit court’s judgment finding the defendant to be a sexually dangerous person.


author: JUSTICE BARRY

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. MARY JANE PALMER et al., Defendants-Appellants (Frank W. Palmer, Defendant-Appellee). MARY JANE PALMER, Plaintiff-Appellant, v. FRANK W. PALMER, Defendant-Appellee (Fon du Lac Township, Defendant).
    Third District
    Nos. 3-83-0163, 3-83-0177, 3-83-0268, 3-83-0188, 3 — 83—0308 cons.
    Opinion filed April 16, 1984.

      James L. Hafele, P.C., of Peoria, for appellant Mary Jane Palmer.
    Maximilian M. Prusak, of Prusak & Winne, of Peoria, for appellant Fon du Lac Township.
    Robert D. Jackson and Jeffrey W. Jackson, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee State Farm Mutual Automobile Insurance Company.
    James A. Martinkus, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee Frank W. Palmer.
   JUSTICE BARRY

delivered the opinion of the court:

At the heart of the five appeals here consolidated lie the simplicity of the vows of matrimony, the complexities of marriage and a contract entered into by the married couple, and, unfortunately, the bitter litigation that too often accompanies the destruction of the marital union. Mary Jane and her husband, Frank Palmer, were still residing together in their Champaign home on September 12, 1981, despite some marital discord. They travelled together to Peoria on that date to attend a wedding anniversary celebration. That evening, on their way to Frank’s father’s home in East Peoria, while Frank was at the wheel of their 1980 Rabbit auto and Mary Jane was seated in the front passenger seat, Frank exacted from Mary Jane a confession that she had had extramarital relations with her boss. Angry words were exchanged, Frank hit Mary Jane, and the auto hit a bridge abutment on Farmdale Road in Tazewell County. The extent of the physical confrontation between the Palmers subsequent to the accident is a matter of considerable dispute. In any event, Mary Jane had suffered two fractured neck vertebrae, a bent partial dental plate, and a broken leg by the time she was removed from the car and delivered to the hospital for treatment. At the time of the accident the Rabbit was covered by an automobile liability insurance policy with State Farm Mutual Automobile Insurance Company issued in Mary Jane’s name.

A flurry of lawsuits ensued, including an action for the dissolution of the Palmers’ marriage; a suit by Frank against Mary Jane’s paramour for alienation of affections; a suit by Mary Jane against Frank for negligence and battery, later amended to include Fon du Lac Township for negligence; a countersuit by Fon du Lac Township against Frank for indemnity and contribution; and a suit by State Farm against Mary Jane, Frank and Fon du Lac Township for declaratory judgment. The dissolution and alienation of affections actions are not before us. The remaining lawsuits are.

In the suit brought by Mary Jane against Frank, the trial court granted Frank’s motion for summary judgment with respect to the count sounding in negligence, based on Frank’s assertion of the defense of interspousal immunity. With respect to the intentional tort count, the court denied Frank’s motion. In the insurer’s declaratory judgment cause, the court held that, by force of the household exclusion clause, Mary Jane’s auto insurance policy afforded no liability coverage for Frank as a defendant in Mary Jane’s suit against him or for contribution. The trial court certified the case for immediate appeal pursuant to Supreme Court Rules 304(a) and 308(a) (73 Ill. 2d Rules 304(a), 308(a)).

As aforesaid, five appeals are before use for our review. In Nos. 83 — 163, 83 — 177 and 83 — 188, Mary Jane, Frank, and Fon du Lac Township uniformly complain that the trial court erred in declaring that the Palmers’ insurance policy afforded no liability protection for Frank either as a defendant in Mary Jane’s suit or for contribution and indemnity in Fon du Lac’s countercomplaint against Frank. In No. 83 — 268, Frank contends that the trial court erred in denying his motion for summary judgment with respect to the intentional tort count of Mary Jane’s complaint. And in No. 83 — 308, Mary Jane contends that the trial court erred in granting Frank’s motion for summary judgment with respect to her negligence cause of action against him.

We consider in the first instance the issues raised by Mary Jane: (1) whether Frank’s assertion of interspousal immunity bars Mary Jane’s negligence cause of action against him; (2) whether Frank’s waiver of the conflict of interest created by his insurer’s defending him was made with Frank’s knowledgeable consent; and (3) whether State Farm’s “family exclusion” clause in Mary Jane’s liability insurance policy precludes coverage for Frank in the claims filed by Mary Jane and Fon du Lac Township.

Initially, we must reject persuasive arguments advanced on behalf of Mary Jane that the doctrine of interspousal immunity violates constitutional rights and contravenes modern realities. The Illinois legislature has seen fit to retain the defense as a codification of the public policy of this State. (Ill. Rev. Stat. 1981, ch. 40, par. 1001.) Interspousal immunity is not unconstitutional on due process or equal protection grounds (Heckendorn v. First National Bank (1960), 19 Ill. 2d 190,166 N.E.2d 571).

Nor does the doctrine violate the privileges and immunities clause of the Federal Constitution. The right to recover or debar recovery in tort from one’s spouse is not a fundamental “privilege” or “immunity” bearing upon the vitality of the nation such that Illinois must conform its laws to treat all citizens, whether resident or nonresident, equally. Thus, the mere fact that the doctrine of interspousal immunity has been abrogated in the great majority of States on public policy grounds does not, ipso facto, invalidate the statutory defense in Illinois.

Next Mary Jane argues that interspousal immunity applies only during “coverture.” Since she was residing with Frank by force of his intimidation rather than his protection and affection, she contends that coverture did not exist in the marital home. While we certainly recognize the inapplicability of one of the bases for enacting interspousal immunity (i.e., to encourage, promote and maintain marital harmony) to the unfortunate situation giving rise to the negligence cause of action herein, we are not persuaded thereby that “coverture,” as that term is used in “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1981, ch. 40, par. 1001), means anything more than “marriage.” (See Soedler v. Soedler (1980), 89 Ill. App. 3d 74, 76, 411 N.E.2d 547, 548.) Mary Jane and Frank’s marriage, while not harmonious at the time of the accident, had not been dissolved. Since the personal injury negligence cause of action against Frank involved “a tort to the person committed during coverture [marriage],” the interspousal immunity defense was available as a procedural bar to count I (negligence) of Mary Jane’s complaint.

We have reviewed the record on appeal and find that the questions of a possible conflict of interest and Frank’s waiver of that conflict were adequately explored and resolved in the trial court. We have no doubt that Frank intended to use the statutory immunity available to him as a personal defense to Mary Jane’s lawsuit to deprive her of any recovery for her injuries. In this case, State Farm, while agreeing to pay for independent defense counsel selected by Frank, had the same interest as Frank in avoiding Mary Jane’s negligence cause of action. Frank’s waiver of his attorney’s possible conflict of interest and his assertion of the personal defense was made as knowledgeably and as intelligently as could be hoped for under the circumstances. For the foregoing reasons we hold that the trial court correctly granted summary judgment for Frank and against Mary Jane on count I of her complaint, sounding in negligence.

We turn next to Mary Jane’s contention that State Farm’s family exclusion clause is invalid because it is overbroad, in contravention to Illinois public policy, and ambiguous. The clause in question is contained under “Section I — Liability—Coverage A” and the paragraph entitled “When Coverage A Does not Apply.” It reads as follows:

“In addition to the limitations of coverage in ‘Who Is An Insured’ and ‘Trailer Coverage’ THERE IS NO COVERAGE ... FOR ANY BODILY INJURY TO: ... ANY MEMBER OF THE FAMILY OF THE INSURED RESIDING IN THE SAME HOUSEHOLD AS THE INSURED, The term ‘insured’ as used here means the person against whom claim is made or suit is being brought.”

Mary Jane argues that the trial court’s judgment in favor of State Farm is overbroad because it declared noncoverage with respect to Fon du Lac Township’s countercomplaint against Frank. She also contends that the exclusion clause itself is overbroad and ambiguous because it extends to family members residing in the insured’s household without precisely defining the boundaries of a familial relationship. Frank joins Mary Jane’s position, adding that ambiguity can be found by referring to “Section II — Medical Payments — Coverage C” which does not exclude family members.

As conceded by State Farm, the trial court’s declaratory judgment in favor of the insurer extends only to the enforcement of “Section I — Liability—Coverage A.” Liability coverage under the section at issue is specifically and unambiguously excluded with respect to Mary Jane’s direct suit against Frank. The court’s order does not preclude, however, any other recovery which may be available to Mary Jane under other sections of the policy which might apply. Furthermore, Fon du Lac’s inability to recover from Frank’s insurer on its countercomplaint does not preclude it from prosecuting its cause of action against Frank. Any issues respecting insurance coverage other than “Liability Coverage A” are not before us. We reject Mary Jane and Frank’s arguments that the trial court’s order is overbroad.

The contractual exclusion does not violate the public policy of this State. Mary Jane’s public policy arguments are essentially adopted by Fon du Lac Township and were addressed and resolved in favor of State Farm in State Farm Mutual Automobile Insurance Co. v. Suarez (1982), 104 Ill. App. 3d 556, 432 N.E.2d 1204.

In Suarez, as here, the insureds were husband and wife who sought to recover damages from an allegedly negligent third party. In Suarez, the third party, Ingles, was the driver of the car with which the Suarez vehicle collided. Ingles countersued for contribution from Victor, who drove the Suarez car, on grounds that he was partially responsible for his wife’s (Estrella’s) injuries. The Suarez’ policy of insurance contained the same “family exclusion clause” that appears in the policy before us. State Farm, as here, filed a declaratory judgment action denying that the Suarez’ insurance policy afforded liability coverage to Victor for the contribution claim. Summary judgment was granted in favor of State Farm, the court ruling that the clause at issue was clear and unambiguous, not in violation of Illinois public policy and finding further that State Farm was not obligated to indemnify Victor for any judgment obtained by Ingles in the contribution suit.

In our opinion, the Suarez decision adequately disposes of all remaining arguments of merit advanced by Mary Jane, Frank and Fon du Lac Township urging reversal of the trial court’s award of summary judgment for State Farm in the declaratory judgment action. We need not replow the grounds stated in Suarez to affirm the trial court’s judgment. Suffice it to say, we adopt the Suarez reasoning.

The final issue before us in these appeals was advanced by Frank: whether recent amendments to section 1 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1981, ch. 40, par. 1001) — ie., Public Act 82 — 569 and Public Act 82 — 783—are substantive changes which must be applied prospectively so as to require dismissal of Mary Jane’s intentional tort cause of action based on Frank’s interspousal immunity defense.

The statute in effect on the date of the accident stated simply “that neither husband nor wife may sue the other for a tort to the person committed during coverture.” (Ill. Rev. Stat. 1979, ch. 40, par. 1001.) To that sentence, Public Act 82 — 569, reenacted by the 1982 Revisory Act, Public Act 82 — 783 (1982 Ill. Laws 288) added “other than an intentional tort.” Public Act 82 — 569 has an effective date of September 24, 1981. The incident giving rise to Mary Jane’s count II, sounding in intentional tortious misconduct, accrued on September 12, 1981. Mary Jane’s complaint was filed on December 18, 1981. The crux of Frank’s argument on appeal is that the amendatory act affects a matter of substantive law and may apply only to actions accruing subsequent to the date of enactment. We cannot agree.

In Allstate Insurance Co. v. Elkins (1979), 77 Ill. 2d 384, 396 N.E.2d 528, our supreme court concluded “that the effect of the 1953 amendment [codifying interspousal immunity] was not to destroy the cause of action of the injured spouse, but to confer immunity on the tortfeasor spouse, which like a defense based upon the statute of limitations can be waived by the defendant spouse.” (Emphasis added.) (77 Ill. 2d 384, 390, 396 N.E.2d 528, 531.) Subsequent appellate decisions have interpreted Elkins to mean that interspousal immunity is now a procedural, rather than substantive, defense. (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1077, 430 N.E.2d 236, 239; Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 435 N.E.2d 221; Farmers Insurance Group v. Nudi (1982), 108 Ill. App. 3d 151, 438 N.E.2d 1260.) Thus interpreted, Elkins cast doubt on the precedential value of Heckendorn v. First National Bank (1969), 19 Ill. 2d 190, 166 N.E.2d 571, in which the court held that interspousal immunity operated as a substantive, rather than procedural, bar to a widow’s claim against her husband’s estate. In any event, recent appellate decisions have held that claims by third parties for contribution are not barred by the interposition of the interspousal immunity defense by an insurer of the allegedly negligent spouse. Wirth; Larson; Nudi.

In our opinion, these recent appellate decisions, grounded on an interpretation of Elkins to the effect that interspousal immunity is a procedural defense, comport with the public policy underpinning the common law doctrine. If “domestic tranquility” or preservation of marital harmony are to be achieved by enforcing interspousal immunity, then, by construing the statutory defense as procedural and permitting the tortfeasor spouse to waive its effect, the injured spouse may nonetheless recover for injuries and, hopefully, alleviate unnecessary marital stress where the payor of damages may be a third party, as opposed to the tortfeasor spouse himself.

The guidance we find in Elkins and its progeny, however instructive, does not bear directly on the question before us today. The determination of whether a statutory amendment may be applied retroactively or prospectively only is primarily a question of legislative intent. Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 78, 452 N.E.2d 847, 849, citing Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408.

We do not have the benefit of the legislators’ comments to Senate Bill 115 of the 1981 regular session, “An Act relating to inter-spousal torts” (enacted as Pub. Act 82 — 569). Nonetheless, Public Act 82 — 569, section 3, recites “This amendatory Act shall take effect upon becoming law.” We glean from this that the legislature intended an earlier, rather than later, effective date, since the legislators’ silence on an effective date would have dictated a January 1, 1982, effective date. By adding section 3, the legislators ensured that the new law would take immediate effect upon the governor’s signature of approval. (See Ill. Const. 1970, art. IV, sec. 10; Ill. Rev. Stat. 1981, ch. 1, par. 1201.) Inasmuch as interspousal immunity is now generally viewed as procedural, and there is no specific legislative intent to implement the amendatory act on a prospective basis only, we find no error in the trial court’s determination that Mary Jane’s cause of action for intentional tort (count II) survives Frank’s assertion of the immunity defense.

In so ruling, we are not bound by a rigid “procedural” versus “substantive” formula. Modern jurists look beyond the apparent simplicity of semantic dichotomies to achieve a fair and reasonable result. As observed by Justice Mils in Champaign County Nursing Home v. Petry Roofing, Inc. (1983), 117 Ill. App. 3d 76, 79-80, 452 N.E.2d 847, 850:

“Whether retroactive application of legislation is permissible is not dependent on such outmoded distinctions as whether vested or nonvested rights are affected, or whether a statute affects rights or merely affects remedies. Rather, such cases must be decided on the basis of whether basic concepts of justice, fairness and equity militate for or against the retroactive application of the statute to a particular class of persons. Generally, retroactive statutes which courts have declared invalid have been deemed ‘oppressive, impolitic, unjust, arbitrary, do substantial injury, are unreasonable, wanting in equity, [and] inconsistent with “the prevailing views of justice.” ’ (Smith, Retroactive Laws and Vested Rights, 5 Tex. L. Rev. 231, 247-48 (1927).) *** The competing interests of the affected persons must be carefully weighed in order to arrive at a just result. See Smith, Retroactive Laws and Vested Rights II, 6 Tex. L. Rev. 409, 427, 431 (1928); see also Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 242-43, 447 N.E.2d 408, 416 (Ryan, J., concurring).”

In our opinion, the interests and reasonable expectations of the injured plaintiff, allegedly the victim of a battery at the hands of her husband, outweigh the defendant’s expectation that legislation enacted subsequent to the incident but prior to the filing of her complaint would not deprive him of an opportunity to defeat his wife’s direct suit by virtue of the legislative act. Furthermore, our holding today is not inconsistent with the historically cited public policy bases for the doctrine of inter-spousal immunity — the primary one being to promote domestic tranquility and a secondary one being to guard against the danger of collusion by the married parties. As cogently observed by the court in Brandt v. Keller (1952), 413 Ill. 503, 109 N.E.2d 729, neither of these stated concerns can be said to have been served in a situation where, as here, an intentional tort claim arises during the final throes of a marriage. “When one spouse assails another or brings suit, there is not much domestic tranquility left to disrupt. *** [T]he potentiality of collusion, or of the perversion of the administration of justice exists in all litigation, and cannot properly constitute legal grounds for construing a statute.” 413 Ill. 503, 511, 109 N.E.2d 729, 733.

For the foregoing reasons, we affirm the judgments of the trial court with respect to each issue raised in these appeals and remand this cause for further proceedings.

HEIPLE and SCOTT, JJ., concur.


author: JUSTICE SCOTT JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HILTON GARMAN, JR., Defendant-Appellee.
    Third District
    No. 3 — 83—0385
    Opinion filed April 19, 1984.

      HEIPLE, J., dissenting.
    Gary L. Morris, Assistant Corporation Counsel, of Peoria, for the People.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The State appeals the trial court’s order suppressing evidence that was the product of a police stop of the defendant’s car. Also before this court is the State’s motion to file certification that the suppression order totally impairs its ability to prosecute the case. We take the motion with the case and affirm.

The facts of the case, which are not in controversy, were set forth in the testimony of Peoria police officer Sauer at a hearing on the defendant’s motion to quash his arrest. Officer Sauer was on patrol at 10 p.m. on October 14, 1982. Two girls aged approximately nine and 10 flagged down the officer and excitedly told him that a man driving a car had just yelled something at them and asked them to come over to the man’s car. The girls did not know what the man had said but it had startled and scared them. The girls pointed out a moving car as the described vehicle. The officer, without identifying the girls, started after the vehicle they pointed out.

With use of his overhead lights the officer stopped the identified vehicle. After stopping the vehicle the officer noticed the car’s license plates had expired. The officer talked with the car’s driver, Hilton Garman, Jr., the defendant. The defendant denied that he had scared the girls but admitted he had said something to them. The officer testified that he was satisfied that the defendant had not harmed the girls but, after observing the defendant’s action and speech, he arrested the defendant on charges of driving under the influence of alcohol and no valid registration.

At the close of Officer Sauer’s testimony, defense counsel rested. The trial court found that the defense had not met its burden and denied the defendant’s motion. On the defendant’s motion for rehearing and after receipt of further argument and memoranda, the court reversed its original decision and entered an order quashing the defendant’s arrest. The State filed a timely notice of appeal.

We first address the State’s motion to file certification instanter. The defendant in his brief, in addition to addressing the merits, argued that we should dismiss the appeal since the State had not filed the certification required for it to pursue this interlocutory appeal under Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)) and People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501. After the filing of the defendant’s brief, the State filed with this court its certification that the trial court’s suppression order had totally impaired the State’s prosecution of the defendant and its motion to file the certification. We grant the State’s motion and allow the appeal. The filing of the certification properly may be filed in the reviewing court. People v. Kantowski (1983), 98 Ill. 2d 75, 455 N.E.2d 1379.

We now address the substance of the State’s argument. It is the State’s position that before Officer Sauer stopped the defendant’s vehicle, he had an articulable suspicion that the defendant was committing or had committed the offense of disorderly conduct. (Ill. Rev. Stat. 1981, ch. 38, par. 26 — 1(a)(1).) Under the Criminal Code of 1961, “A person commits disorderly conduct when he knowingly: (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 26 — 1(a)(1).) According to the State, the officer had an articulable reason for stopping the defendant based on the girls’ apparent alarm and his concern for the girls’ wellbeing.

Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the fourth and fourteenth amendments to the United States Constitution. Accordingly, such a seizure is justified only if it meets the requirement of “reasonableness.” (Delaware v. Prouse (1979), 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667, 99 S. Ct. 1391, 1396.) Reasonableness is determined by balancing the need for official intrusion against the constitutionally protected interests of the private citizen. In justifying his action a police officer must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 905-06, 88 S. Ct. 1868, 1879-80.

In Illinois this standard has been codified to provide that an identified police officer “may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense” under the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14.

On rehearing, the trial court found that the information available to Officer Sauer, before he stopped the defendant, was insufficient for the officer to have had an articulable suspicion which warranted the stop.

A reviewing court will not disturb the circuit court’s finding on a motion to suppress unless that finding is determined to be manifestly erroneous. (People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.) Based on the record before us we cannot say that the circuit court’s finding was manifestly erroneous. The officer did not know the girls’ identities and knew nothing more of potential wrongdoing by the defendant than what the girls reported to him. While the girls told the officer that they had been startled by the fact that the defendant had yelled to them, they had not understood many of the defendant’s words. Furthermore, the defendant apparently drove away unremarkably when the girls ran from him.

Accordingly, the order of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

At approximately 10 p.m. on a street in Peoria, two young girls, ages nine and 10, were frightened by a lone man in a car who stopped and shouted at them. The stranger drove off after the girls ran away. Very soon after this incident, the girls flagged down a Peoria police officer and told him that a man in a car had stopped, asked them to come over to the car and shouted some words they could not understand. The girls pointed to a car which was moving down the street. The officer pursued and stopped the car. The driver was found to be drunk and without a valid motor vehicle registration. He was arrested and charged accordingly.

The trial court found that the circumstances prior to the stop did not permit the officer to reasonably infer that the defendant had committed or had been about to commit a criminal offense so as to justify the investigatory stop which led to the arrest. The court granted the defendant’s motion to suppress the evidence arising from the arrest. The majority affirms. I dissent.

An investigatory stop is proper when, based on the totality of the circumstances, the detaining officer has a particularized and objective basis for suspecting the person stopped of criminal activity. This test deals with probabilities rather than certainties. The evidence available to the officer must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. United States v. Cortez (1981), 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690.

According to the majority, there are three reasons why the officer had no right to stop the defendant: (1) the officer did not know the girls’ identities; (2) he was relying solely on information provided by the girls and (3) the defendant drove away without doing anything else. These factors are insignificant. They do nothing to diminish the strong probability, based on the circumstances of this case as viewed by a trained police officer, that the defendant had been engaged in the offense of disorderly conduct or was about to engage in even worse activity until the girls ran away and summoned the police.

The important considerations here are the nature of the girls’ complaint, their frightened demeanor, and' the fact that they specifically identified the defendant’s car which was still in sight. The two girls were nine and 10 years of age. The location was a city street. It was 10 o’clock at night. The defendant, who was a stranger, stopped his car by the two girls, asked them to come over to the car, and shouted unintelligible words to them through the car window. They were frightened. Fortuitously, a police car came along almost immediately and these two young, frightened girls flagged the police car and reported the incident to the officer. The majority seems to regard the defendant’s conduct as presumptively innocent. I do not. There is nothing presumptively innocent about a strange man in a car attempting to entice two young girls on a public street at night to approach his vehicle. Such conduct should not be taken lightly and must be investigated when brought to the attention of a police officer.

I find that under these circumstances, the Cortez test permitted the officer to act immediately. He was not obliged to wait, question the girls further while the defendant drove away, and risk the possibility that the girls may not have seen the car’s license number or might not be able to describe the car from memory.

This was a proper investigatory stop. The court’s order granting the defendant’s motion to suppress was manifestly erroneous and should be reversed. The suppression of evidence in this situation represents yet another instance of an overweening judicial concern for the supposed rights of the lawbreaker at the expense of the general public.


text:
    DONALD JOHN PREWEIN, Plaintiff-Appellee, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellant.
    Third District
    No. 3 — 83—0536
    Opinion filed April 19, 1984.
    HEIPLE, J., dissenting.
    David B. Mueller and Timothy J. Cassidy, both of Cassidy & Mueller, and Maximillian M. Prusak, of Prusak & Winne, both of Peoria, for appellant.
    David Uhler, of Belleville, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Peoria County which struck certain affirmative defenses which sought application of comparative negligence principles to an action brought under the Illinois Structural Work Act.

The plaintiff Prewein filed a two-count complaint against the defendant Caterpillar Tractor Company. We are concerned only with count I which was brought under the Structural Work Act. In this count it was averred by the plaintiff that he was injured on December 5, 1979, while employed as an iron worker by the defendant company. Couched in the terms of the Act, it was alleged that he was injured while operating a “mark lift hydraulic hoist,” which he utilized as a support and/or scaffold. The plaintiff alleged that he was injured when the mark lift tipped, causing injuries and that the accident occurred because of various violations of the Act.

The defendant denied that it violated the Act and raised the affirmative defense that the plaintiff was guilty of contributory negligence as the result of acts or omissions on the part of the plaintiff and that if judgment should be entered in favor of the plaintiff, such recovery would be for damages to which plaintiff contributed and that the judgment should be reduced proportionately.

The issue certified to this court pursuant to Supreme Court Rule 308 is whether the doctrine of comparative negligence or fault is applicable to actions brought under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69).

Well reasoned, impressive arguments, both legal and philosophical, were presented to this court as to why the doctrine of comparative negligence should be or should not be adopted in Structural Work Act cases.

In 1981, our supreme court changed long-existing law in our State by holding that in cases involving negligence the common law doctrine of contributory negligence was no longer to be the law in our State, and it was to be replaced by the doctrine of common law negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) Since this decision the cauldron has been boiling. Following this decision our supreme court in 1983 held that equitable principles require that the total damages for a plaintiff’s injuries be apportioned oh the basis of the relative degree to which a defective product and a plaintiff’s conduct proximately caused them. Our supreme court extended the doctrine of comparative negligence to strict liability action. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.

The defendant Caterpillar Tractor Company is now asking that the doctrine of comparative negligence be made applicable to cases brought pursuant to the statutory provisions of the Structural Work Act. The defendant first calls attention to the language of section 69 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 69), which provides in part as follows:

“For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***.” (Emphasis added.)

It is defendant’s argument that the words “directly sustained thereby” should dictate that plaintiff’s recovery should be relegated to those damages which are directly sustained by the defendant’s breach of the Act. If this advocated interpretation is adopted, then there would be of necessity a determination as to the amount of damages directly caused by the defendant. If less than 100% of the damages were directly caused by the defendant then who caused the remaining damages? Under the defendant’s theory it would be the plaintiff. A more precise explanation of the defendant’s argument is that the words “any direct damages sustained thereby” contained in section 69 are indicative of the legislature’s intent to include in the Structural Work Act the principles of comparative negligence or fault.

The words “any direct damages sustained thereby” have been in the Structural Work Act for many years, probably since its enactment in 1907. The exact language was most assuredly in the Act in 1913. (See Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 106 N.E. 236.) We deem it both interesting and noteworthy that during the passage of so many years the courts have never construed the language in question in the manner requested by the defendant. To our knowledge, the language has never been construed, and for reasons hereinafter set forth we will not now do so.

The defendant presents both legal and policy arguments as to why the reasoning in Alvis and Coney are applicable to the adoption of the doctrine of comparative negligence in Structural Work Act cases. Should we accept the arguments of the defendant the result would be to overrule and ignore viable decisions which have interpreted and established the meaning and effect of the Structural Work Act. Our courts of review have ruled that once a wilful violation of the Act has been proved which is at least one proximate cause of injury, concurrent fault is not a defense to liability under the Act. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E .2d 973.) It is also well established that neither contributory negligence nor wilful conduct of the plaintiff has ever been a defense to an action under the Structural Work Act.(Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 225 N.E .2d 67.) The Act was enacted approximately 77 years ago, and while this court recognizes that it has authority to change one of its basic concepts by determining that the doctrine of comparative negligence is applicable in suits brought pursuant to its provisions, we are loath to do so. Our unwillingness is not to be interpreted that we agree or disagree with the defendant’s arguments, but is predicated on different grounds. A question of such magnitude should be addressed by our State legislature or State supreme court. Our supreme court noted in Alvis that our legislature had failed to address the issue before the court and further recognized an observation of Justice Ward in his dissenting opinion in the case of Maki v. Frelk (1968), 40 Ill. 2d 193, 239 N.E.2d 445. That observation was as follows:

“It can be argued that the legislature’s inaction in this area is attributable to its feeling that it is more appropriate, considering the history of the question in Illinois, for the judiciary to act.” 40 Ill. 2d 193, 203.

Justice Ward in Maki made the further significant observation:

“Too, in Molitor v. Kaneland Community Unit District, 18 Ill. 2d 11, at 26, we commented that: ‘when it appears that public policy and social needs require a departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice.” 40 Ill. 2d 193, 203.

We believe that the supreme court, not an intermediate court of review, should determine whether public policy and social needs require a departure from the long-accepted decisions that the doctrine of comparative negligence is not applicable in suits brought pursuant to the Structural Work Act. The supreme court was the forum which addressed the issue of comparative negligence in Alvis and Coney, and we deem it to be logical that it is the proper forum to determine whether the law in those cases should be applicable to Structural Work Act cases. We are of the opinion that there is another compelling reason why such a determination should be made by the supreme court and that reason is that should it be determined that comparative negligence is applicable there will be a uniformity of its application by the trial courts of this State. Unfortunately there still exists in our State a question of what precedential import should be accorded to decisions of the various appellate courts of Illinois. Collateral or horizontal stare decisis (the acceptance by one appellate court of a precedent established by an opinion from another appellate court) has never been fully perfected in our State, the result of which is that on occasions a significant determination by an appellate court has found itself in limbo. The result is that until the supreme court addresses the issue, the law is in a state of flux. See 28 DePaul L. Rev. 571 et seq. (1979).

For the reasons set forth we decline to change the law as requested by the defendant and affirm the judgment of the circuit court of Peoria County.

Affirmed.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

In Roman days, it was common and accepted practice to divine life’s mysteries and to foretell future events from an examination of the entrails of birds. Young noblemen were schooled in the art of translating entrails. No less a personage than Caesar Augustus, himself, was a practitioner of this art of augury. Nowadays, however, this art has passed into disuse. There are no practitioners trained to read chicken livers and other organs of bird viscera.

Modernity, however, has brought us a substitute tool for divining mysteries and future trends. It is called the Illinois Supreme Court. While opinions as to its efficacy are not uniform, some say it is as reliable as bird entrails. Some say it is better. In any event, it is available to us and should not be ignored.

In the area of negligence law, our supreme court has pointed the way with Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, and Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197. Both of these opinions are cited in the majority opinion. Having alluded to them, however, the majority declines to extend them to their logical progression. Illinois is now a comparative negligence State. There is no reason not to extend this doctrine to Structural Work Act litigation.

The purpose of the Structural Work Act is to require a person having charge of the work to conform to specified standards for the protection of workers. Although the Act is silent on the effect of a plaintiff’s contributory fault, Illinois courts have, in the past, rejected contributory negligence as a defense because it sets up an absolute bar to a plaintiff’s claim which would defeat the remedial purpose of the Act. Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156.

Now that the comparative fault has supplanted contributory negligence, a plaintiff’s contributory fault no longer bars his claim. The traditional reasons for disregarding the plaintiff’s conduct are no longer relevant. Comparative fault does not alter the duty owed by a person in charge of the work. It simply reduces the plaintiff’s damages to the extent that his injuries were caused by his own conduct. Application of comparative fault would not defeat the legislative ob-

jections of the Act, nor would it run contrary to common law precedent. This is essentially the same rationale used by our supreme court in applying comparative fault to the field of products liability. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104.

Such pronouncement is not a radical departure from accepted decisions as the majority seems to suggest. Rather, it is a pronouncement altogether consistent with the recent trend of supreme court cases in the area of comparative fault. There should be no reluctance on the part of this court to apply the concept of comparative fault to the Structural Work Act. Accordingly, I dissent.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES WARWICK, Defendant-Appellant.
    Third District
    No. 3 — 83—0497
    Opinion filed April 25, 1984.
    Rehearing denied May 30, 1984.

      Craig M. Armstrong, of Ottawa, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Mark L. Rotert and Leslie J. Rosen, Assistant Attorneys General, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

Following a bench trial the defendant, James Warwick, was found guilty on two counts of official misconduct, one count of attempt (obstructing service of process), and two counts of conspiracy (official misconduct and obstructing service). The court entered judgment on one count of official misconduct (Ill. Rev. Stat. 1983, ch. 38, par. 33— 3(c)), and sentenced the defendant to a three-year term of imprisonment on the Class 3 felony. On appeal the defendant questions whether his trial violated the statutory speedy-trial rule and whether he was properly sentenced. We affirm the conviction but remand for resentencing.

Throughout the course of the events underlying the instant conviction the defendant was a police officer for the city of Streator in La Salle County. Evidence at the trial established that the defendant, with the help of a secretary employed at the La Salle County State’s Attorney’s office, was able to learn of the issuance of search warrants before they were executed. The defendant on at least one occasion informed a Streator businessman that his business was the subject of one of the unexecuted warrants, specifically a warrant to search for gambling paraphernalia.

We first address the issue of whether the defendant’s trial violated the speedy-trial rule. Section 103 — 5(b) of the Code of Criminal Procedure of 1963 in pertinent part provides that “[e]very person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.” Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5(b).

After he was charged in connection with the underlying events the defendant demanded a speedy trial. On December 3, 1982, the defendant, who apparently was not in custody, mailed to the La Salle County State’s Attorney his written demand. On December 8, 1982, the defendant filed his demand with the clerk of the court. The defendant’s trial began on May 16, 1983.

The parties agree that the defendant’s trial began more than 160 days after the date he served the State with notice of his demand for speedy trial. The parties also agree that the defendant’s trial was within 160 days of the date he filed with the court his demand for a speedy trial. The sole question with regard to this issue is when the defendant demanded trial. The defendant argues that the statutory 160-day period began to run when, by mail, he served the People. We disagree.

Neither the statute nor any case of which we are aware specifies what constitutes the demand for trial for statutory speedy-trial purposes. As the fourth district has held, a speedy-trial demand should be designed to communicate the demand to the court by formal motion preserved in the record. (People v. Coleman (1977), 50 Ill. App. 3d 40, 365 N.E.2d 246, appeal denied (1977), 66 Ill. 2d 639.) Notice to the State is also necessary for the statutory period to begin to run. (People v. Jones (1981), 84 Ill. 2d 162, 417 N.E.2d 1301.) Based on our review of relevant material, we conclude that notice to the State without filing with the court does not satisfy the statute’s demand requirement. None of the cases which the defendant cites persuades us otherwise. Notice to the State, although necessary, is not sufficient to preserve the demand in the record. We find that in the instant case there was no demand for trial under the statute until the defendant filed his demand with the court. Consequently, the defendant’s trial was not held in violation of the speedy-trial rule.

We now address the defendant’s argument that the trial court erred in imposing sentence. In sentencing the defendant, the trial court stated for the record how it viewed each statutory mitigating and aggravating factor (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 5— 3.1, 1005 — 5—3.2, respectively), as applied to this case. In mitigation the court found that the defendant’s conduct neither caused nor threatened serious physical harm to another, and that the defendant did not contemplate his conduct might cause such harm. The court emphasized that the defendant had no history of criminal activity, that the defendant’s criminal conduct was the result of circumstances unlikely to reoccur, and that imprisonment of the defendant would entail excessive hardship to his dependents. The court also found that the defendant was particularly likely to comply with the terms of a period of probation. Finally, the court found one additional factor, that the defendant’s character and attitudes indicate he is unlikely to commit another crime, which might be applicable in mitigation.

In aggravation, the court found that the defendant’s conduct caused or threatened the serious harm of official corruption. The court also stressed that by the duties of his office the defendant was obliged to prevent the particular offense committed or to bring offenders committing it to justice; that the offense related to the conduct of public office which the defendant held at the time of the offense; and that the defendant utilized his professional reputation or position in the community to commit or facilitate commission of the offense. The court found perhaps most persuasive the fact that the sentence was necessary'to deter others.

The court made no findings as to the necessity of a sentence of imprisonment as opposed to a sentence of probation or conditional discharge.

The defendant first argues that the court improperly applied the first statutory factor in aggravation. The first statutory factor is that “the defendant’s conduct caused or threatened serious harm.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(a)(1).) The defendant argues that that factor is parallel to the first statutory mitigating factor which states: “the defendant’s criminal conduct neither caused nor threatened serious physical harm to another.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.1(a)(1).) It is the defendant’s position that the first aggravating factor applies only to physical harm and not to societal harm. Accordingly, the defendant argues that because his conduct neither caused nor threatened serious physical harm, the first aggravating factor is inapplicable to his case.

The State, on the other hand, argues that the statute’s term “serious harm” is clear and unambiguous and must therefore be given its ordinary and popularly understood meaning. (People v. Fink (1982), 91 Ill. 2d 237, 437 N.E.2d 623.) The ordinary and popular meaning of “serious harm,” according to the State, encompasses all serious societal harm. We cannot agree.

In our thorough review of cases applying the first aggravating factor we have found no case to specifically invalidate or endorse the defendant’s position. However, the first aggravating factor has been applied by the courts of Illinois only in those cases involving serious physical and/or psychological harm to the victim. Further, the fifth district has specifically interpreted the first aggravating factor, with its reference to causing “serious harm,” to be parallel to the first mitigating factor and its reference to not causing “serious physical harm.” People v. Andrews (1982), 105 Ill. App. 3d 1109, 435 N.E.2d 706, appeal denied (1982), 91 Ill. 2d 572; People v. Thomas (1979), 76 Ill. App. 3d 969, 395 N.E.2d 601.

The reasoning in cases like our People v. Johnson (1982), 107 Ill. App. 3d 156, 437 N.E.2d 436, appeal denied (1982), 92 Ill. 2d 570, negates the State’s argument. In Johnson, we construed “harm” in the first aggravating factor to mean a personal and not a societal harm. In that case the defendant was convicted of attempted rape and deviate sexual assault. On appeal defendant Johnson argued that the trial court improperly applied in aggravation on the attempted rape conviction that the offense threatened serious harm. He argued that the court’s application of the aggravating factor was inappropriate because the use of force in an attempted rape implicitly carries a threat of serious harm. In disagreeing with the defendant Johnson’s theory we stated that “the threat of serious harm is not inherent in the offense of rape.” (People v. Johnson (1982), 107 Ill. App. 3d 156, 161, 437 N.E.2d 436, 440.) Our statement in Johnson is consistent with a determination that the language of the first aggravating factor addresses personal harm. Our statement is, however, inconsistent with a determination that the language of the statute comprises all societal harm.

We find prior interpretations of the first aggravating factor persuasive in this case. Based on our examination of the aggravating and mitigating factors’ purposes and prior applications, we conclude that the legislature did not intend for the trial court in a case such as this to consider in aggravation that the defendant’s conduct caused or threatened serious harm to society. Inasmuch as every criminal offense includes a societal harm and given that the statute allows mitigation only if the defendant’s criminal conduct did not involve serious physical harm to another, we find that the first aggravating factor does not apply to offenses, such as this one, which threaten nonphysical serious harm only to society at large.

The defendant’s second argument concerning sentencing is that the trial court improperly applied in aggravation the factors set out in subsections 4, 5, and 6 of the statute. Those factors are as follows:

“(4) the defendant, by the duties of his office or by his position, was obliged to prevent the particular offense committed or to bring the offenders committing it to justice;
(5) the defendant held public office at the time of the offense, and the offense related to the conduct of that office;
(6) the defendant utilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it.” (Ill. Rev. Stat. 1983, ch. 38, pars. 1005 — 5—3.2(a)(4), (5), (6).)

The defendant relies on the reasoning of People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, and argues that to apply these factors in this case is to improperly consider in aggravation factors implicit in his conviction of official misconduct. The State argues that these factors are not implicit in every instance of official misconduct. We consider aggravating factors 4, 5, and 6 in turn.

We agree with the defendant that the court improperly applied aggravating factor 4 in imposing sentence. The court entered judgment on a finding that the defendant in his official capacity and with intent to obtain a personal advantage for another, had performed an act in excess of his lawful authority. (Ill. Rev. Stat. 1983, ch. 38, par. 33— 3(c).) Implicit in that offense is that by the duties of his position as police officer the defendant was, as the aggravating factor recites, “obliged to prevent the particular offense committed.” Any public officer or employee, by his duties or position, has an absolute duty to prevent the offense of his own official misconduct. That duty does not vary by degrees. We find, therefore, that under Conover the factor is inappropriate for aggravation in the instant case.

We find that aggravating factor 5 may also have been improperly applied in the instant case. The record includes no discussion or determination of whether the defendant “held public office” at the time of the offense. Under section 2 — 18 of the Criminal Code of 1961, a public officer is defined as “a person who is elected to office pursuant to statute, or who is appointed to an office which is estab-

lished, and the qualifications and duties of which are prescribed, by statute, to discharge a public duty for the State or any of its political subdivisions.” Ill. Rev. Stat. 1983, ch. 38, par. 2 — 18.

Our supreme court has held that a policeman is not necessarily an “officer” within the generally accepted legal definition of the term. (Kelly v. Chicago Park District (1951), 409 Ill. 91, 98 N.E.2d 738.) It is not clear from the record whether the defendant held public office. (Midwest Television, Inc. v. Champaign-Urbana Communications, Inc. (1976), 37 Ill. App. 3d 926, 347 N.E.2d 34.) We find, therefore, that aggravating factor 5 does not properly apply to the instant case absent a proper finding that the defendant held public office at the time of the offense.

We find that the trial court properly applied aggravating factor 6 to the instant case. The circumstances under which a public officer or employee uses his professional reputation or community position in committing an offense of official misconduct can very immensely. Aggravating factor 6 would be applied quite differently, for example, to an elected official who absconds with public funds in his custody and to a civil service employee who removes government office supplies for his personal use. The court here properly considered in aggravation the fact that the defendant used his professional reputation or position in connection with the offense. People v. Childs (1981), 101 Ill. App. 3d 374, 428 N.E.2d 185.

Because we are unable to determine how much weight the trial court afforded the improper factors, we must vacate the defendant’s sentence and remand for a new sentencing hearing. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Our remandment makes it unnecessary for us to examine the merits of the defendant’s final argument: that in imposing a sentence of imprisonment the trial court failed to sufficiently consider the defendant’s nature and character. We note that the sentencing court received extensive testimony including evidence of the defendant’s history, work reputation, and family relationships. On remand the trial court should consider those factors in exercising its discretion on whether probation is appropriate. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—1.

Accordingly, we affirm the defendant’s conviction, vacate his sentence, and remand to the circuit court of La Salle County for further proceedings consistent with this opinion.

Conviction affirmed, sentence vacated, cause remanded.

ALLOY, P.J., and HEIPLE, J., concur.