author: JUSTICE ROMITI

text:
    TONY GENTILE, Adm’r of the Estate of Anthony Gentile, Deceased, Plaintiff-Appellee, v. GEORGE HANSEN et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—2187
    Opinion filed October 4, 1984.
    Rehearing denied April 8, 1985.

      John Elson, of Chicago, for appellants.
    Del Preto & Miglore and Avrom Greenberg, law student, both of Chicago, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant George Hansen appeals from the order of the Cook County circuit court entered August 10, 1983, which vacated nunc pro tunc a prior Cook County circuit court order of May 13, 1980, dismissing for want of prosecution (DWP) the wrongful death claim of plaintiff Tony Gentile, administrator of the estate of Anthony Gentile. Defendant also appeals from the trial court’s subsequent denial of his motion for reconsideration of the court’s August 10 nunc pro tunc order. Defendant raises three issues for our review:

(1) whether the trial court committed reversible error in vacating the May 10, 1980, DWP order over three years after its entry on the ground that the dismissal order was void;

(2) whether the trial court committed reversible error in vacating the order through the entry of a nunc pro tunc order;

(3) whether the doctrine of laches bars plaintiff from attacking the dismissal order under the facts and circumstances of the case at bar.

We find that the trial court's order vacating the DWP order and denying defendant’s motion for reconsideration are interlocutory orders and dismiss the action for lack of appellate jurisdiction.

Plaintiff’s wrongful death claim, filed October 18, 1974, alleged that Anthony Gentile died as a result of gunshot wounds inflicted by George Hansen. A separate count of the complaint, predicated on a duty to control dangerous weapons, alleged that Richard Hansen was liable for the shooting death of Anthony Gentile because he knew or should have known that George had kept the handgun, with which he allegedly shot Gentile, in the house which Richard and George shared. Richard Hansen was subsequently dismissed from the action and is not a party to this appeal. Consequently, his actions in the case will not be restated here.

In 1974, the only pertinent event in the case was the court’s order of November 21 which stayed discovery proceedings for 90 days as to George and extended by 90 days the time for him to answer or otherwise plead. The court granted this stay and extension because George was then facing prosecution for the murder of Anthony Gentile and had asserted his privilege to be free from self-incrimination as grounds for his refusal to submit to discovery or answer plaintiff’s complaint.

In 1975 George twice obtained substitute counsel, filed nonresponsive answers to plaintiff’s interrogatories which again asserted his fifth amendment right, and obtained another court order which again extended, by 120 days, his time to answer or otherwise plead to plaintiff’s complaint.

In mid-1976 George obtained another court order which extended for 120 days his time to answer and stayed discovery proceedings for the same period. He subsequently made a similar motion for such relief over a year later in 1977, but the record contains no court disposition of this motion.

George took no action in the case during 1978; the court granted several general continuances during this period, and ruled on matters pertaining to Richard Hansen’s dismissal from the action.

In 1979 the case was again continued generally on several occasions. The only indication in the record of George’s participation was a motion in December to stay proceedings as to him because he was serving a sentence based on his conviction of murder and had not yet exhausted his appellate rights to challenge this conviction. The court continued all pending matters for a status report for four months’ time, until May 1980. On May 13, 1980, the court entered its order dismissing the case for want of prosecution. Subsequent to this order, the parties to this appeal took, inter alia, the following action:

18 June 1980 George filed pro se motion to answer
his attorney’s motion to withdraw
19 June 1980 Attorney Schmitt filed motion to with-
draw as counsel for George
19 June 1980 Court granted attorney Schmitt’s mo-
tion to withdraw and ordered George to file pro se appearance or find an attorney to represent him on or before July 31, 1980
2 July 1980 George’s “Motion to Inform the Court
that Defendant Is Incarcerated and Is Making Every Effort to Obtain Another Counsel” filed
12 August 1980 George’s motion for an extension of
time in which to obtain counsel filed
12 August 1980 Court entered agreed order granting
George an additional 45 days to obtain counsel
3 October 1980 Court entered agreed order granting
George an additional 45 days to obtain counsel

The record reflects that the court orders of August 12 and October 3, which granted extensions, were agreed to, and indeed drafted by, plaintiff’s counsel. George was still incarcerated for his criminal conviction on these dates.

Almost three years later, on August 10, 1983, plaintiff filed its motion to vacate the May 13, 1980, dismissal order. The record does not contain a copy of this motion, nor any supporting memoranda which plaintiff may have filed in this regard. On this date, the court also granted George’s substitute counsel leave to file his appearance on George’s behalf. In another order of the same date, the court granted plaintiff’s motion to vacate the DWP order.

On September 2, George again obtained substitute counsel, who motioned the court to reconsider its August 10 order vacating the dismissal order. The trial court apparently denied this reconsideration motion on September 7; a copy does not appear in the record, but is included as an appendix in George’s appellate brief. On September 8, George filed his notice of appeal of the court’s August 10 and September 7 orders.

Neither party to the case at bar has questioned the trial court’s jurisdiction to entertain plaintiffs motion with regard to the dismissal order, nor has either questioned this court’s appellate jurisdiction over the propriety of the trial court’s vacation of this order. Upon due consideration of these questions, which this court may do sua sponte (Peter Fischer Import Motors, Inc. v. Buckley (1984), 121 Ill. App. 3d 906, 909, 460 N.E.2d 346; Buckley v. Chicago Board Options Exchange, Inc. (1982), 109 Ill. App. 3d 462, 466, 440 N.E.2d 914), we conclude that the trial court’s orders from which George appeals were interlocutory in nature and therefore dismiss the cause for lack of appellate jurisdiction.

Generally, a trial court retains jurisdiction over an action until all issues of fact and law have been finally determined and a final judgment entered thereon. (Whitley v. Lutheran Hospital (1979), 73 Ill. App. 3d 763, 766, 392 N.E.2d 729; Griffin v. Billberry (1971), 1 Ill. App. 3d 219, 222, 273 N.E.2d 693.) Once a final order has been entered, the trial court retains residual jurisdiction over the matter for 30 days. (Spears v. Spears (1977), 52 Ill. App. 3d 695, 697, 367 N.E.2d 1004; see III. Rev. Stat. 1983, ch. 110, par. 2 — 1203.) Relief from such a final order after the expiration of this 30-day period may be obtained through a motion pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1401). A motion under this section of the Code is deemed a new action rather than a continuation of the original action in which final judgment was rendered. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401(b); see, e.g., Steinberg’s Department Store, Inc. v. Baysingar (1980), 86 Ill. App. 3d 1140, 1145, 409 N.E.2d 8.) The granting or denial of such a motion is a final and appealable order. 87 Ill. 2d R. 304(b)(3); see, e.g., Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App. 3d 716, 722-23, 413 N.E.2d 457.

Once a trial court loses jurisdiction through the passage of 30 days after the entry of its judgment, it may nevertheless be subsequently revested with jurisdiction over the cause. In order for this doctrine of revestment to apply, “the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. [Citations.]” (People v. Kaeding (1983), 98 Ill. 2d 237, 241, 456 N.E.2d 11 (citations omitted).) By doing so, the “litigants *** revest a court which has general jurisdiction over the matter with both personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. [Citations.]” People v. Kaeding (1983), 98 Ill. 2d 237, 240, 456 N.E.2d 11.

The doctrine of revestment applies to actions which are dismissed for want of prosecution. (See, e.g., Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166, 415 N.E.2d 1060; Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780, 388 N.E.2d 1042.) Conduct which is inconsistent with the dismissal order is any which can be reasonably construed as an indication that the parties do not view the order as final and binding. (See Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 97 N.E.2d 817 (request for leave to amend answer); In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 429 N.E.2d 594 (filing of personal appearance and responsive pleadings); Esin v. Liberty Mutual Insurance Co. (1981), 99 Ill. App. 3d 75, 424 N.E.2d 1307 (appearance, briefing, argument on motion for summary judgment); Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 398 N.E.2d 287 (participation in appeals); Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780, 388 N.E.2d 1042 (request for leave to amend answer); Asumendi v. Fortman (1978), 58 Ill. App. 3d 186, 374 N.E.2d 20 (answer to motion to vacate default judgment, motion to amend complaint).) Once the trial court has been revested with jurisdiction, the party who would benefit from the dismissal order, by appearing before the trial court without questioning the court’s jurisdiction, has waived his right to later argue the validity and enforceability of the order. (People v. Kaeding (1983), 98 Ill. 2d 237, 241, 456 N.E.2d 11; Asumendi v. Fortman (1978), 58 Ill. App. 3d 186, 190, 374 N.E.2d 20; Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 372-73, 256 N.E.2d 56.) Moreover, “[a]s all further proceedings upon the merits of a previously dismissed action are inconsistent with a prior order dismissing the action, it follows that any further proceeding upon the merits of a cause operates to nullify the order of dismissal.” (Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46, 50, 97 N.E.2d 817; see also Slavick v. MichaelReese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 166, 415 N.E.2d 1060; Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780, 782, 388 N.E.2d 1042.) Consequently, a petition to vacate a dismissal order is not strictly necessary although it is desirable to clarify the record (Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 73, 398 N.E.2d 287; Stevens v. City of Chicago (1970), 119 Ill. App. 2d 366, 373, 256 N.E.2d 56), and the granting of such a motion is not a final order and thus an inappropriate basis for appellate jurisdiction. Johnson v. Empire Mutual Insurance Co. (1979), 70 Ill. App. 3d 780, 784, 388 N.E.2d 1042.

In the case before us, neither party considered the May 1980 dismissal order as a final and binding judgment in the action. Both plaintiff and defendant appeared before the court on numerous subsequent occasions more than 30 days following the entry of the DWP order, and both adopted positions inconsistent with the merits of the order since both treated the action as a continuing, viable legal proceeding in plaintiff’s wrongful death action against defendant. Consequently, the trial court was revested with jurisdiction. Furthermore, because the trial court had not yet rendered any final determination disposing of the action, its order which vacated the dismissal order and reinstated the cause to the trial call was an interlocutory order from which appeal was inappropriate. The court’s denial of defendant’s motion for reconsideration was similarly an interlocutory order.

As a concluding comment, we wish to observe that the defendant in this action has yet to file a responsive answer to plaintiff’s complaint. His only actions before the trial court were motions for extensions of time in which to answer and later motions for extensions of time in which to obtain counsel. Not only did plaintiff refrain from attempting to obtain a default judgment against the defendant, he permitted and aided the defendant in his efforts to protect his legal interests by appearing before the court, drafting, and obtaining the court’s approval of orders which extended defendant’s time in which to obtain substitute counsel pursuant to defendant’s written requests to the court, by letter, from defendant’s place of incarceration. By this conduct, the defendant clearly revested the trial court with jurisdiction, and cannot now contend that the dismissal order precludes any further proceedings. As the court stated in Faust v. Michael Reese Hospital & Medical Center (1979), 79 Ill. App. 3d 69, 73, 398 N.E.2d 287:

“Though we cannot applaud the plaintiff’s laxity in failing to vacate the dismissal formally [and in a timely fashion], the re-vesting doctrine is a useful and equitable safety net for parties who engage in this sort of self-help. The rule allows parties, by tacit consent, to regard as undone that which ought not have been done, without fear that an opponent may later resurrect the dead order.”

For the reasons stated, the appeal is dismissed for lack of appellate jurisdiction.

Appeal dismissed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY VALENTINO, Defendant-Appellant.
    First District (4th Division)
    No. 83—2552
    Opinion filed February 21, 1985.
    Rehearing denied March 29, 1985.
    James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Frank Zelezinski, and Beth Herndobler, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Jeffrey Valentino, appeals his convictions, in a jury trial, of murder, robbery, theft, and possession of a stolen vehicle (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a), 18 — 1(a), 16 — 1(a); ch. 951/2, par. 4 — 103(a)(1)). He was sentenced to 30, five, seven, and three years on the respective charges. Defendant raises the following issues for review: (1) whether the trial court erred in admitting evidence of a semen deposit found on the victim’s body; (2) whether the trial court erred in failing to instruct the jury in response to its question about the use of force in robbery; (3) whether he was proved guilty beyond a reasonable doubt of robbery and murder; (4) whether the prosecutor’s remarks during closing argument were prejudicial; and (5) whether he was improperly convicted of both theft and possession of a stolen vehicle.

We affirm in part and reverse in part.

Defendant was convicted of the murder of Melanio Reyes. At trial, Thomas Keane, a Chicago policeman, testified that on June 26, 1981, he was assigned to investigate a homicide on the lakefront. The victim was on the grass near bushes. The upper portion of the body was nude and a multicolored shirt was fastened tightly around the neck. The victim wore socks and shoes, and his pants and underpants were around his ankles.

Larry Perez, 21 years old, testified that shortly after midnight on June 26, 1981, he was on the lakefront with several friends when he saw defendant in an automobile. He and defendant had been friends for five years. When Perez asked defendant where he got the car, defendant said he had just “knocked a gump, a homosexual.” Defendant displayed the victim’s wallet containing credit cards. He also showed how he strangled the victim with a shirt. Derrick Smith corroborated Perez’ testimony. Additionally, Smith testified that defendant admitted taking $10 from the victim.

William Schober, a Chicago policeman, was assigned to locate defendant. On June 30, 1981, at 10:15 p.m., he saw defendant standing on a street corner and signaled to him to approach the police car. After defendant entered the car, he said, “I guess you guys heard about the murder down at the lakefront. *** I did it. I got to get it off my chest. It’s been bothering me.” Schober advised defendant to remain silent and told him he could talk with officers investigating the case.

Chris Grogman, a Chicago police detective, searched defendant’s apartment on July 1, 1981, at 3:30 a.m., pursuant to a consent form signed by defendant. In a blue knapsack in a closet, Grogman found 18 credit cards with the name of Melanio Reyes or his wife.

Mary Ann Furlong testified that she was employed by the Chicago Police Department in the microanalysis crime laboratory. She was qualified as an expert microanalyst. In 1981, she was assigned to the Reyes homicide investigation. A rectal swab taken from Reyes revealed the presence of semen, but not sperm. It is possible to determine blood type from seminal fluid because 80 to 85% of men secrete their blood type in their semen. However, in June 1981, when the rectal swab was taken, it was not standard procedure to perform a secretor test. No such test was made of the victim’s rectal swab.

Robert Stein, chief medical examiner for Cook County, testified that he performed an autopsy upon the victim. The cause of death was asphyxia due to ligature strangulation.

Jeffrey Valentino, 20 years old, testified that on the date in question he was walking toward the lakefront when he observed a man driving a car who waved at him. Defendant ignored the man. He saw the man waving at him two more times, but he continued to ignore him. Eventually, defendant walked away from the lake and through a park where he saw the same man standing in front of a row of bushes. The man’s trousers were unzipped. The man said he wanted to have sex with defendant, but the latter walked away. The man grabbed defendant’s belt; defendant tried to run but fell to the grass. He thought the man was trying to rape and murder him. In the ensuing struggle, defendant tied a shirt around the man’s neck, and then tied a second knot. When the man ceased struggling, defendant took a set of car keys and drove off in the man’s car.

Defendant drove around until he saw a friend, Steven Murphy, who was accompanied by several young men. He told Murphy that he had a “run-in” with a homosexual who was trying to rape him. Defendant said he “knocked out” the man. Defendant allowed Murphy to drive the car. When defendant exited the car, he took a blue knapsack, which belonged to the victim, to his apartment and placed it in a closet.

A few days later when a police officer indicated that he wanted to talk with defendant, the latter entered the police car and admitted that he was responsible for the murder near the lake.

On rebuttal, the prosecution recalled Officer Grogman, who recovered a shirt and pants from defendant’s apartment. Defendant admitted to Grogman that he wore the clothes at the time of the murder. The clothes had no tears or grass stains, dirt, or bloodstains. Defendant also admitted to Grogman that he told friends that if they were caught with the victim’s car they would face a murder charge.

During deliberations, the jury sent to the judge a note asking whether use of force to sustain a charge of robbery means that the intent to rob was the reason for using force. The trial judge instructed the jury to reread the instruction regarding the necessary elements to prove robbery. The jury found defendant guilty of robbery, theft, possession of a stolen vehicle and murder. The trial court sentenced defendant to 30 years for murder, seven years for robbery, five years for theft, and three years for possession, the sentences to be served concurrently. Defendant appeals.

Defendant argues at length that admission of evidence of semen constituted reversible error. He contends that no evidence connected the semen to either him or the offense; therefore, it was inadmissible. Defendant claims that the prosecution predicated its entire theory of the case on the semen evidence and used it as a rebuttal to his self-defense claim. Reference to the semen evidence was also used to exhort the jury to feel sympathy for the victim.

Defendant further contends that the State had a duty to preserve the rectal swab. According to defendant, this duty was not contingent upon a defense request for examination because, if that were so, the duty might not arise until it became impossible of performance. The testimony of Mary Ann Furlong, the microanalyst, fell short of the required showing of rigorous and systematic procedures adequate to the task of preservation. Defendant claims he need show only that there was a reasonable possibility that the lost evidence would have been favorable. He theorizes that positive proof that the semen deposit was not his would have significantly weakened the State’s theory of a “trick” murder based on an act of anal intercourse and would have strengthened his testimony as to self-defense. Alternatively, defendant argues that at the very least he is entitled to a new trial at which the State stipulates that the semen deposit was unrelated to defendant.

Physical evidence may be admitted where there is evidence to connect it to both the defendant and the crime. Proof of this connection may be circumstantial. The basic question in determining the sufficiency of the nexus is one of relevance. (People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628.) In the instant case, evidence of the semen deposit was relevant to show a condition of the body at the time it was found.

We disagree with defendant that admission of this evidence prejudiced him. The jury need not have assumed that the semen was defendant’s to accept the prosecution’s theory of a homosexual “trick” murder. Indeed, the jury need not have made any assumptions as to the donor of the semen in the absence of any other evidence. Defendant himself admitted that there was a homosexual basis for his encounter with the victim. Defendant claimed that the victim made sexual advances and was trying to rape him. Scientific evidence that the semen was not defendant’s would not have made defendant’s theory of self-defense more believable. There was sufficient evidence from which the jury could conclude that defendant intended to kill and did not act defensively. Shortly after the homicide, defendant told acquaintances that he assaulted a homosexual and he confessed to police that he was responsible for the “murder” on the lakefront. We hold that the trial court did not commit reversible error in admitting evidence of a semen deposit.

Next, defendant contends that the trial court’s failure to further instruct the jury in response to its question about the law of robbery was reversible error. During deliberations, the jury sent a note to the judge, asking, “To sustain charge of robbery — does ‘use of force’ mean that the intent to rob was the reason for using force?” The judge responded: “In answer to your note you are directed to reread the instruction beginning ‘To sustain the charge of robbery, the State must prove the following propositions, etc.’ ” The complete jury instructions for robbery provided as follows:

“A person commits the offense of robbery when he takes property from the person or presence of another by the use of force or by threatening imminent use of force.”
“To sustain the charge of robbery, the State must prove the following propositions:
First: That the defendant took an automobile and credit cards from the person or presence of Melanio Reyes; and Second: That the defendant did so by the use of force or by threatening the imminent use of force.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Defendant argues that referral to the original instructions was inadequate to cover the specific point raised in the jury’s inquiry. The jury instructions did not specify that the use of force must be accompanied by an intent to rob and not by some other intent.

It is elemental that no one instruction must state all the law on a particular question but that all the instructions must be read as a whole to determine whether they fairly inform and guide the jury. (People v. Gauwitz (1980), 80 Ill, App. 3d 362, 367, 400 N.E.2d 92, 96.) In the instant case, the instructions concerning robbery properly conveyed to the jury what the situation was. The first instruction informed them that the offense of robbery is committed when property is taken from the person or presence of another by the use or threat of force. The second instruction informed the jury that defendant committed that offense if they found he took property from the victim by threatening or using force. Any ambiguity as to intent arising from the first instruction was clarified by the second. We conclude that the trial court properly referred the jury to the original instructions on the elements of robbery.

Next, defendant contends the State failed to prove beyond a reasonable doubt that force or the threat of force was used for the purpose of accomplishing a taking. He argues that there was no evidence that force was used against the victim for the purpose of depriving him of his car and credit cards. Defendant claims that the taking of the car was merely an afterthought which established theft, but not robbery. According to defendant, the robbery provided the predicate felony for a felony murder charge upon which the jury was instructed. In the absence of special verdicts, it is impossible to determine whether the jury based its murder verdict on a theory other than felony murder. Thus, defendant reasons, his murder conviction should also be reversed.

We disagree with defendant’s contentions. Whether defendant used force to deprive the victim of property was an issue of fact for the jury to decide. A reviewing court will not disturb a jury’s finding of guilt unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt. (People v. Kelly (1976), 39 Ill. App. 3d 988, 992, 351 N.E.2d 419, 422.) In the instant case, there was sufficient evidence from which the jury could conclude that defendant was guilty beyond a reasonable doubt of robbery and murder. Shortly after the homicide, defendant told acquaintances that he had assaulted a homosexual. When he saw a policeman several days after the incident, he admitted he was responsible for a murder. From these admissions, the jury could properly infer that defendant’s claim of self-defense was incredible and that he used force to accomplish a taking. We hold that defendant was proved guilty beyond a reasonable doubt of robbery and murder.

Defendant contends that remarks made by the prosecutor during rebuttal argument were prejudicial error. Defendant complains of statements by the prosecutor that defendant told “whopping lies” at trial, that defendant had five days after the homicide to make up a story, that he concocted and memorized a story, and that his attorney drilled defendant “over and over on this story so he had it perfect.” Defendant claims these improper remarks denied him a fair trial.

It is error to charge defense counsel with using improper tactics to defend his client. Such errors exist when the defense is accused of fabricating its case or of suborning perjury. (People v. Smylie (1981), 103 Ill. App. 3d 679, 686, 431 N.E.2d 1130, 1136.) In the instant case, we interpret the prosecutor’s remarks to mean that defense counsel merely prepared defendant for trial. Moreover, defendant is not entitled to a new trial unless the allegedly improper remarks substantially prejudiced defendant or constituted a material factor in his conviction. (People v. Smylie (1981), 103 Ill. App. 3d 679, 686-87.) In this case, the prosecutor’s allegedly improper remarks did not substantially prejudice defendant nor did they constitute a material factor in his conviction. As stated above, defendant’s admissions constituted sufficient evidence for a finding of guilty.

Finally, defendant argues, and the State concedes, that the trial court erred in entering judgment and sentencing him on charges of theft and possession of a stolen vehicle. The jury found defendant guilty of both offenses and the trial court sentenced him to five years and three years, respectively. In the instant case, possession of a stolen vehicle was a lesser included offense of theft, since both offenses arose from a single act. (People v. Lindsey (1979), 69 Ill. App. 3d 493, 496, 387 N.E.2d 828, 830.) Only one sentence should have been imposed and that one should have been for the greater offense, in this case, the offense of theft. (People v. Lindsey (1979), 69- Ill. App. 3d 493, 497.) Under Supreme Court Rule 615 (87 Ill. 2d R. 615), we reverse defendant’s conviction for possession of a stolen vehicle and vacate the three-year sentence.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed as to the convictions of murder, robbery and theft and reversed as to the conviction based on possession of a stolen vehicle, and the three-year sentence is vacated.

Affirmed in part, and reversed in part and vacated in part.

LINN and ROMITI, JJ., concur.


author: JUSTICE LINDBERG JUSTICE SCHNAKE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY E. DAVIS, Defendant-Appellant.
    Second District
    No. 83—1139
    Opinion filed March 8,1985.
    SCHNAKE, J., dissenting.
    G. Joseph Weller and Nicholas J. Kritikos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Raymond L. Beck, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Larry E. Davis, was convicted of theft by deception (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(b)(1)) after a jury trial. He was sentenced by the circuit court of Winnebago County to a term of five years’ imprisonment. He contends his conviction should be reversed because the evidence failed to show that he obtained the property from the alleged victim by deception. He suggests the evidence may have established the offense of attempt but that he was not so charged.

The evidence showed that in February 1983 defendant had been imprisoned in the Sheridan Correctional Center. He became acquainted with Curtis Lee Cottrell, a Department of Corrections counselor at the prison. He also met Kenneth Sanders, an inmate at Sheridan.

In March of 1983, Cottrell informed defendant that he could obtain defendant’s release from the Department of Corrections through his influence. Defendant was in fact released on May 6, 1983. He had served a little over eight months in prison. He had originally been sentenced to a term of three years.

Immediately following defendant’s release, Cottrell approached defendant, claiming that defendant was indebted to him for his release and demanding repayment. He informed defendant that he had the power to revoke his parole and to send him back to the Department of Corrections and threatened to do so unless defendant gave him $2,000, which was supposedly the amount Cottrell had expended for defendant’s release.

Since defendant could not obtain the money, Cottrell proposed an alternative plan. Cottrell and defendant would approach inmates in the Department of Corrections and propose obtaining their early release for money. Defendant accordingly contacted Kenneth Sanders at Sheridan and obtained the name of Ethel Roberts.

Ethel Roberts was a friend of Kenneth Sanders. She took care of the rentals of his house and apartments while he was in prison. Near the middle of May defendant made a number of phone calls to Roberts advising her that he could obtain Sanders’ release from the Department of Corrections for $4,000.

Roberts knew that defendant was a “phony.” She did not believe he could obtain an early release for Sanders. On the advice of her attorney she contacted the Illinois Department of Law Enforcement (IDLE). Agent Ron Andrei of IDLE came to see her on May 18, 1983.

On Andrei’s advice, Roberts arranged to meet defendant at the Clock Tower Inn in Rockford. She told defendant that she would be with her son-in-law — who would in fact be Agent Andrei.

On May 20, 1983, Andrei picked up Roberts at her house and took her to his office. He briefed Roberts. He would pretend to be her son-in-law, named Michael, and he would be carrying the supposed payment. Roberts was wired with a number of microphones placed on her person. Andrei prepared a white envelope, containing $1,150 from the IDLE “official advance fund,” prerecording the serial numbers of the bills.

Andrei and Roberts drove to the Clock Tower Inn parking lot, parking near an IDLE van which contained the video equipment which was to tape the meeting with defendant. Other IDLE agents were deployed in the area.

Cottrell had driven defendant to the Clock Tower Inn in his automobile. Cottrell stayed in the car, slouching down while defendant left the vehicle and walked into the foyer.

Andrei and Roberts met defendant in the hallway of the Clock Tower Inn. Roberts introduced Andrei as her son-in-law. The three of them went to the area of Andrei’s car in the parking lot. Their conversation was recorded and the meeting at the parking lot was videotaped.

At the parking lot, defendant told Roberts and Andrei that he could obtain a full pardon for Kenneth Sanders from Governor Thompson, through his contact, his uncle Sam Perry, a Federal judge, for $5,000. In his role as Roberts' son-in-law, Andrei pressed defendant for detailed explanations of the process, expressing concern over Roberts’ money.

When Andrei thought he had enough for an arrest he removed his vest, a prearranged signal for other officers in the area to come in and arrest defendant. When Andrei saw Agent Crow drive up in response to the signal, he handed defendant the white envelope with the money. At that point defendant was arrested by Agent Crow. Andrei then took back the envelope from defendant’s hand.

Cottrell was taken into custody at the scene and transported to the IDLE offices for questioning. No criminal charges were brought against Cottrell. An administrative hearing was held at the Sheridan Correctional Center wherein Cottrell was charged with socializing with defendant, failing to report his second income, and falsifying his original application to the Department of Corrections. He was suspended for 30 days and recommended for discharge.

The trial court entered directed verdicts of acquittal on two bribery counts at the close of the State’s evidence. The trial court denied defendant’s motions for directed verdict on the theft by deception charge at the close of the State’s evidence and at the close of all the evidence.

The jury was instructed on the offense of theft by deception. The State tendered the sole instruction given on “deception”:

“The word ‘deception’ means to knowingly create or confirm another’s impression which is false and which the defendant does not believe to be true.”

Defendant’s instructions on the offense of deceptive practices as a lesser included offense were also refused.

The jury found defendant guilty of theft, and the trial court denied defendant’s motion for a new trial. Defendant was sentenced to five years’ imprisonment.

Defendant asserts that the offense of theft by deception under section 16 — 1(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(b)(1)) was formerly the offense of obtaining property by false pretenses (People v. Gordon (1977), 45 Ill. App. 3d 282, 359 N.E.2d 794), and that the sine qua non for the transfer of property is deception. (People v. Jensen (1982), 103 Ill. App. 3d 451, 454, 431 N.E.2d 720, 722.) He maintains that under the earlier form of the offense, reliance on the deception by the victim had to be alleged and proved. (Simmons v. People (1900), 187 Ill. 327, 332.) He acknowledges, however, that reliance need not be separately alleged. (People v. Wurster (1980), 83 Ill. App. 3d 399, 403, 403 N.E.2d 1306, 1310.) Nevertheless, he argues that deception was not the instrumentality by which defendant obtained the money, but, rather, it was the State’s desire to make an arrest. Defendant further contends that no representation of defendant induced the undercover agent to part with the agency’s money. Thus, the thrust of his argument is that the owner of the money must be proved actually to have been deceived. We disagree.

The statute under consideration provides:

“A person commits theft when he knowingly:
* * *
(b) Obtains by deception control over property of the owners; *** and,
(1) Intends to deprive the owner permanently of the use or benefit of the property ***.” Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(b)(1).

As did the defendant in People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306, the instant defendant relies on Simmons v. People (1900), 187 Ill. 327, for the requirement that the State prove there was reliance upon defendant’s false representation in paying over the money to defendant. Simmons involved a prosecution for obtaining the signature to a deed by false pretenses. The supreme court reversed the defendant’s conviction, stating that the “connection” between the pretenses and obtaining the signature must appear either by “a natural connection between them” or by facts properly averred, so the facts will lead to a necessary legal conclusion of the guilt of the defendant. (187 Ill. 327, 331.) We observe, as did the court in Wurster, that Simmons does not compel a reversal in the instant case. Reliance upon the false representation of the accused is not a separate element of the crime of theft by deception that must be specifically alleged. Here, in contrast to Simmons, the connection between defendant’s deception and the paying over of the money, whether by the intended victim or her agent or surrogate the Department of Law Enforcement, is, to use the language of Simmons, “a natural connection.” That is, it is beyond argument that the paying over of the money to defendant was amply proved to have been connected to and the result of his intention and his deception.

Defendant has cited no authority for his contention that the State’s interdiction as a substitute victim to facilitate defendant’s arrest destroys the “natural connection” between defendant’s intentional deception and the paying over of the money. We conclude this argument is without merit. See People v. Gunn (1983), 112 Ill. App. 3d 1011, 1013, 446 N.E.2d 281, 283; People v. Wurster (1980), 83 Ill. App. 3d 399, 403, 403 N.E.2d 1306, 1310.

Nor do we find that People v. Gordon (1977), 45 Ill. App. 3d 282, 359 N.E.2d 794, compels a different result. In Gordon, the court held that there was an implied promise by defendant to pay off the lien on the car purchased from him by the complaining witness. Thus, the court could not find that the defendant had the requisite intent to defraud and it reversed defendant’s conviction. (45 Ill. App. 3d 282, 286, 359 N.E.2d 794, 796-97.) Here, by contrast, defendant’s intent to defraud was proved beyond a reasonable doubt. Indeed, he concedes he could have been convicted of the inchoate offense of attempt. (Ill. Rev. Stat. 1983, ch. 38, par. 8-4.) Finally, People v. Jensen (1982), 103 Ill. App. 3d 451, 431 N.E.2d 720, also concerned the failure of proof of defendant’s intent and, similarly, is inapposite.

As defendant aptly notes, theft by deception (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(b)(1)) was formerly the offense of obtaining property by false pretenses. (Ill. Rev. Stat. 1939, ch. 38, par. 253; People v. Gordon (1977), 45 Ill. App. 3d 282, 359 N.E.2d 794; see People v. Martin (1939), 372 Ill. 484.) Further, the offense of false pretenses and confidence game were distinguishable because confidence game required that the victim have reposed confidence in the defendant, which was not a requirement for the offense of false pretenses (People v. Gould (1936), 363 Ill. 348, 352), from which the statute in the instant case was derived.

Defendant further argues that implicit in the definition of “deception” is reliance by the victim on the defendant’s false representation. The essential elements which must be proved to sustain a charge of theft by deception are that the named person was the owner of the specific property, that the accused knowingly obtained by deception control over that property and that the accused acted with intent to permanently deprive the named owner of the use and benefit of that property. (People v. McBride (1981), 92 Ill. App. 3d 908, 910, 416 N.E.2d 678, 679-80.) Section 15 — 4, defining “deception,” relied upon by defendant for this contention, provides:

“As used in this Part C, ‘deception’ means knowingly to: (a) Create or confirm another’s impression which is false and which the offender does not believe to be true ***.” (111. Rev. Stat. 1983, ch. 38, par. 15 — 4.)

The evidence abundantly demonstrated that defendant created another’s impression which was false and which the offender did not believe to be true, namely, that defendant could procure the release of a person for the payment of money to defendant. It is the offender’s creation of the impression with the offender's knowledge of its falsity that is the gravamen of the offense and not the state of mind of the intended victim, as argued by defendant. There is no reference implicit or explicit in the definition of deception which addresses the state of mind of the victim, nor has the substantive offense been so interpreted. See 92 Ill. App. 3d 908.

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

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE SCHNAKE,

dissenting:

I respectfully dissent.

It is clear that the defendant’s nefarious scheme was thwarted by the effective cooperation of the intended victim and the law enforcement authorities, but because the statute which sets forth the offense of theft by deception employs the words “Obtains by deception,” in my -view the State must prove reliance on the deception by the victim. It could even be more forcefully argued here that there was no deception as defined by the Criminal Code of 1961, but most certainly there was no reliance, either by Roberts or by IDLE agents. Reliance need not be specifically alleged, of course, because it is sufficient to use the plain language of the statute, “by deception.” (People v. Wurster (1980), 83 Ill. App. 3d 399, 403 N.E.2d 1306.) But simple logic demands that reliance be proved.

On the necessity of establishing reliance, the following is found in W. LaFave and A. Scott, Criminal Law sec. 90, at 659-60 (1972):

“Cause and Result (The Element of Reliance)
For false pretenses it is necessary that the swindler’s misrepresentation cause the victim to pass title to his property or money to the swindler. Looking at the matter from the point of view of the victim, the same thought may be expressed thus: for false pretenses it is required that the victim pass title to his property in reliance upon the swindler’s misrepresentation.
Thus if the victim, although he passes title, does not believe the misrepresentations, the crime is not committed. He may pass title, though knowing the defendant to be lying, in order to be able to prosecute him for the crime; but the prosecution for the completed crime (though not for the attempt) must fail for lack of the element of reliance.”

And, in 32 Am. Jur. 2d False Pretenses sec. 51 (1982), we find:

“To establish the crime of obtaining money or property by false pretenses, it must be shown that a misrepresentation by the defendant was relied upon by the party defrauded, and that such person was deceived. If the person defrauded knew that the representation was false, the offense has not been committed. [Citations.]”

In People v. Gordon (1977), 45 Ill. App. 3d 282, 359 N.E.2d 794, distinguished in the majority opinion, where the existence and disclosure of a prior lien on an automobile sold by defendant was in question, the reviewing court, in reversing a conviction for theft by decep- ' tion, stated:

“We conclude that the complaining witness was fully aware of the existence of the lien.” 45 Ill. App. 3d 282, 285, 359 N.E.2d 794, 796.

So here, there was no reliance by the alleged victim.

As suggested by the State in the event that we reverse, defendant should be found guilty of the lesser included offense of attempted theft by deception, as provided by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3). People v. Goolsby (1979), 70 Ill. App. 3d 832, 388 N.E.2d 894; People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409.


text:
    CONSOLIDATED RAIL CORPORATION et al., Plaintiffs-Appellants, v. REPUBLIC STEEL CORPORATION, Defendant-Appellee.
    First District (4th Division)
    No. 83—2466
    Opinion filed December 6, 1984.
    Rehearing denied April 2, 1985.
    Lord, Bissell & Brook, of Chicago (Alvin E. Domash, Hugh C. Griffin, and Paul G. Velbergs, of counsel), for appellants.
    Michael W. Ward, of O’Keefe, Ashenden, Lyons & Ward, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Consolidated Rail Corporation and Indiana Harbor Belt Railroad Company, appeal a decision of the trial court dismissing with prejudice their first amended complaint against defendant, Republic Steel Corporation. The sole issue raised for review is whether the trial court erred in holding that plaintiffs’ complaint failed to allege any possible basis on which a right to indemnity could be proved.

We affirm.

On January 9, 1980, plaintiffs filed suit against defendant. Plaintiffs are railroad corporations transacting business in Cook County. Defendant, a corporation also transacting business in Cook County, owned and maintained property in Chicago which included railroad tracks, roadbeds and switches.

On January 26, 1978, Frederick Morris, an employee of Consolidated Rail Corporation, was injured while performing work for plaintiffs on defendant’s property. Morris made a claim for damages against plaintiffs under provisions of the Federal Employers’ Liability Act (45 U.S.C.A. sec. 51 et seq. (1972)) (hereafter FELA). This Act imposed upon plaintiffs a duty to provide a safe place to work for their employees. Defendant refused plaintiffs’ demand that it take over and pay the claim of Morris. Plaintiffs settled the claim for $15,000.

Plaintiffs claimed that defendant was guilty of negligence and proximately caused Morris’ injuries by carelessly and negligently failing to do the following:

. (1) Exercise ordinary care in furnishing Morris with a reasonably safe place to work;

(2) Exercise ordinary care in using reasonably safe methods in its operations;

(3) Inspect its property;

(4) Properly maintain its property;

(5) Clean up and remove coal, coke and other debris;

(6) Warn Morris of the dangers of working in the area; and

(7) Provide artificial illumination on the property.

Plaintiffs also alleged that they were free of major fault.

Defendant moved to dismiss plaintiffs’ complaint on a theory that under Chicago & Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 208 N.E.2d 573, plaintiffs’ nondelegable duty under FELA to provide Morris with a safe place to work was no less stringent a duty than that alleged for defendant as owner of the premises. Plaintiffs’ complaint alleged no facts which would give rise to greater fault on defendant’s part as compared to that of plaintiffs. Since no cause of action for indemnity exists between joint tortfeasors of equal negligence, plaintiffs’ complaint should be dismissed.

On July 28, 1981, plaintiffs’ complaint was dismissed for failure to state a cause of action, and leave was granted for plaintiffs to file an amended complaint.

Plaintiffs filed their amended complaint on October 19, 1981, and additionally alleged the following:

(1) That defendant as the owner had a duty to maintain the property which was utilized for the storage, transportation and consumption of coal or coke;

(2) Defendant knew or should have known that defendant’s employees were present upon the property at various times while performing work at its request;

(3) Defendant employed a yardmaster who controlled and supervised railroad employees, including Morris;

(4) Morris was injured while under the supervision of that yardmaster;

(5) Plaintiffs’ liability was not occasioned by any major fault on their part, but arose by virtue of their failure to provide a safe place to work on account of defendant’s acts; and

(6) Through its yardmaster, defendant carelessly and negligently instructed Morris to perform certain switching operations and failed to inform plaintiffs that it had not removed coal, coke or other debris from its property.

On September 12, 1983, the trial court dismissed plaintiffs’ complaint with prejudice. Plaintiffs appeal.

Plaintiffs contend that the amended complaint states a cause of action because it alleges that plaintiffs were guilty of only passive or minor technical liability under FELA, and that the active and major fault was that of defendant in failing to properly maintain the property on which it stored, transported or consumed its coal or coke; in using unsafe methods to store, transport or consume the coal or coke; in failing to clean and remove the coal, coke and other debris from its property; and in instructing Morris to perform his work on its property from which it had failed to remove coal, coke and other debris and which it had not properly illuminated. Additionally, pláintiffs insist that the Evans case does not support a dismissal of the amended complaint.

In our opinion, the Evans case mandates affirmance of the trial court decision. In Chicago & Rlinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill. 2d 600, 208 N.E.2d 573, an employee of plaintiff railroad company was injured when he stumbled over a railroad tie while performing switching operations on premises owned by defendant. The employee filed a claim against plaintiff and received a settlement. Plaintiff brought a claim for indemnity against defendant. Our supreme court ruled that it was error for the trial court to grant judgment in plaintiff’s favor. The court stated that where indemnity has been allowed, the conduct of the indemnitor has sometimes been characterized as the primary cause of the harm — active negligence— and that of the indemnitee has been described as a secondary cause-passive negligence. (32 Ill. 2d 600, 603.) In explaining its decision that the complaint be dismissed, the supreme court further stated as follows:

“The breach of duty relied upon to shift the entire cost of the injury from the plaintiff to the defendant must therefore be the defendant’s failure to discover and remove the tie, — a failure to see that the premises were safe for the work that was to be done. But exactly that same duty rested upon the plaintiff.” 32 HI. 2d 600, 605-06.

In the instant case, plaintiffs’ allegations in the amended complaint merely state that defendant had a duty to make the premises reasonably safe for plaintiffs’ employee, which is the same duty that plaintiffs possessed.

A motion to dismiss a complaint is properly allowed where no set of facts can be proved which would entitle a plaintiff to recover. (Ciosek v. Indiana Harbor Belt R.R. Co. (1979), 75 Ill. App. 3d 410, 412, 394 N.E.2d 590, 592.) We hold that in the instant case no set of facts can be proved which would entitle plaintiffs to recover against defendant.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI and ROMEE!, JJ., concur.


author: JUSTICE LORENZ SULLIVAN, J.,

text:
    NORTHTOWN WAREHOUSE AND TRANSPORTATION COMPANY, INC., et al., Plaintiffs-Appellees, v. TRANSAMERICA INSURANCE COMPANY et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—0986
    Opinion filed December 21, 1984.
    Rehearing denied April 2, 1985.

      SULLIVAN, J., dissenting.
    Anthony J. Tunney, of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers, of counsel), for appellant Transamerica Insurance Company.
    Garbutt & Jacobson Associated, of Chicago (John P. McGahey and Edward J. Berman, of counsel), for appellant I.I.A., Inc.
    B. John Mix, Jr., of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendants, Transamerica Insurance Company and I.I.A., Inc., appeal from the trial court’s judgment entered on a $287,428 verdict in favor of plaintiffs. The dispositive issue presented for review is whether the instant appeal has been properly taken so as to invoke our jurisdiction. For reasons hereinafter set forth, we dismiss the appeal for lack of jurisdiction.

On April 10, 1979, plaintiff Northtown Warehouse and Transportation Company, Inc. (Northtown), filed a complaint against defendants Transamerica Insurance Company (Transamerica), I.I.A., Inc., and Kenneth Dickerson. Count I of the complaint alleged that I.I.A., Inc., and Dickerson were agents of Transamerica; that I.I.A., Inc., through its president, Dickerson, agreed with plaintiff that it would obtain a policy of insurance from Transamerica which would cover the same risks which were already covered by a then-existing policy owned by plaintiff on a warehouse located at 4201-65 West Diversey Avenue, Chicago; that as a result of plaintiff’s reliance upon the experience and representation of the defendants, plaintiff took out the suggested policy from Transamerica; and that on January 24, 1979, the roof of plaintiff’s warehouse collapsed as the result of an accumulation of snow, a peril covered by plaintiff’s original “all risk” policy, but not the Transamerica “replacement” policy then in effect on the premises. Damages in the amount of $510,000 were sought against Transamerica and I.I.A., Inc./Dickerson.

Count II alleged that I.I.A., Inc., and Dickerson were employed by plaintiff as advisor and counselor regarding insurance coverage and were experienced in real property peril insurance; that plaintiff had relied upon I.I.A., Inc., and Dickerson’s experience and representations in inducing plaintiff to take out the Transamerica policy; and that as a result of Transamerica’s denial of liability as to the collapse of plaintiff’s roof, plaintiff was damaged.

The answers of both Transamerica and I.I.A., Inc./Dickerson denied the material allegations of plaintiff's complaint.

On March 3, 1980, the trial court granted Transamerica’s motion for leave to file its counterclaim against I.I.A., Inc./Dickerson. On August 14, 1980, the trial court ordered that Transamerica’s counterclaim be stricken. However, on August 28, 1980, the trial court vacated its prior order of August 14 and ordered I.I.A., Inc./Dickerson to respond to the counterclaim. Defendant I.I.A., Inc./Dickerson’s amended answer to Transamerica’s counterclaim was filed on November 15, 1982. On that same day, the trial court sustained I.I.A., Inc.’s, motion to sever Transamerica’s counterclaim from the case in chief because it believed that once the primary issues of the case in chief were resolved, “the Court might be able to resolve the other issue [counterclaim] on his own without the taking of any further evidence.” On November 16, 1982, the trial court allowed I.I.A., Inc., to file its own counterclaim against Transamerica, but also severed it from the case in chief.

The case proceeded to trial on the amended complaint. At the close of plaintiff’s evidence, the court allowed plaintiff’s motion to amend the complaint to conform to the proof so as to join Harry Newberger as a party plaintiff. In addition, the trial court allowed defendant I.I.A., Inc./Dickerson’s motion for directed verdict on behalf of Kenneth Dickerson, leaving only Transamerica and I.I.A., Inc., as party defendants.

Following the conclusion of the trial on November 24, 1982, the jury returned a verdict in favor of the plaintiffs and against both defendants, in the amount of $287,428. The trial court’s judgment on the verdict followed. On March 28, 1983, the post-trial motions of both defendants were denied by the trial court. Defendants individually appeal from the trial court’s judgment entered on the verdict.

Opinion

Our initial inquiry is whether an appeal properly lies from this judgment on the verdict. Before considering the merits of an appeal, the appellate court is duty bound to determine whether the appeal has been properly taken so as to invoke its jurisdiction. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 1109, 403 N.E.2d 704.) “The question of whether a court has jurisdiction is always open, and the court may of its own motion dismiss an action where want of jurisdiction appears.” (Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625, 629, 295 N.E.2d 41.) Thus, if jurisdiction is lacking, the court may dismiss the appeal even though the issue of jurisdiction was not raised by the parties. Prado v. Evanston Hospital (1979), 72 Ill. App. 3d 622, 624, 390 N.E.2d 1270.

The jurisdiction of the appellate court usually depends upon the timely filing of a notice of appeal after the entry of a final judgment. (87 Ill, 2d R. 301; 94 Ill. 2d R. 303(a).) A judgment or decree is final and reviewable if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or some definite part thereof, so that, if affirmed, the trial court has only to proceed with execution. (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 631, 373 N.E.2d 416.) Here, the final judgment challenged by both defendants is the judgment on the jury’s verdict, a judgment which is appealable in an action involving a single party or claim. See 87 Ill. 2d R. 301.

However, where multiple claims or parties are involved in an action, the case is governed by Supreme Court Rule 403(a):

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (Emphasis added.) 87 Ill. 2d R. 304(a).

Rule 304(a) is designed to discourage piecemeal appeals in the absence of just reason, and to remove the uncertainty which exists when a final judgment is entered on less than all matters in the controversy. (Mares v. Metzler (1980), 87 Ill. App. 3d 881, 884, 409 N.E.2d 447.) For a judgment on one claim or party to be appealable, in a multiple party or claim situation Rule 304(a) requires an express written finding that there is no just reason for delay in enforcement or appeal of the claims decided in order for these claims to be appealable. (Petersen Brothers Plasties, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 630, 373 N.E.2d 416.) The Rule includes counterclaims and third-party actions as “claims,” and therefore bars an appeal in the absence of an express written finding where a plaintiff’s claims have been disposed of, but a defendant’s counterclaim or a third-party action remains pending. Chicago Miniature Lamp Works, Inc. v. D’Amico (1979), 78 Ill. App. 3d 269, 272, 397 N.E.2d 138; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 631, 373 N.E.2d 416.

In the instant case, defendants filed counterclaims against each other which were later severed by the trial court from the case in chief. However, this discretionary severance, which resulted in separate trials of the case in chief and the counterclaims, did not act to create separate actions so as to make Rule 304(a) inapplicable. Hence, an express written finding as required by Rule 304(a) was necessary to give the judgment on this verdict appealability. (See Sadler v. County of Cook (1982), 108 Ill. App. 3d 175, 180, 438 N.E.2d 1351.) In this case, defendants essentially request this court to decide the merits of their counterclaims, merits upon which the trial court has not yet passed. Sound judicial policy dictates that appellate courts review the decisions of courts of original jurisdiction, and not decide issues for the first time.

Our careful search of the record before us reveals no express written finding by the trial court. Consequently, we deem the claims involved in the instant action to be part of a single “action,” notwithstanding the severance of the counterclaim from the case in chief. Since the judgment here involved less than all claims and all parties, and no special finding was entered as required by Rule 304(a), this court has no jurisdiction to consider the appeal herein presented. 87 Ill. 2d R. 304(a).

Accordingly, the instant appeal is dismissed.

Appeal dismissed.

PINCHAM, J., concurs.

SULLIVAN, J.,

dissenting:

I disagree with the opinion of the majority that we lack jurisdiction to consider this appeal. The opinion is based upon the conclusion that “the judgment here involved less than all claims and all parties, and no special finding was entered as required by Rule 304(a).”

It is my belief, however, that Rule 304(a) is not applicable and no special finding is required because it applies only where multiple parties and claims are involved in a single action (Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 387 N.E.2d 1129), and the amended complaint and the counterclaim allege separate and distinct causes of action. Chicago Miniature Lamp Works, Inc. v. D’Amico (1979), 78 Ill. App. 3d 269, 397 N.E.2d 138, relied upon by the majority, is not supportive. It involved an appeal from the dismissal of portions of defendants’ counterclaim against plaintiff, and although this court held that it had no jurisdiction because the order was “neither final nor appealable” (78 Ill. App. 3d 269, 270, 397 N.E.2d 138, 139), it also stated that Rule 304(a) was applicable “where a plaintiff’s claims have been disposed of but a defendant’s counterclaim remains pending” (78 Ill. App. 3(1 269, 272, 397 N.E.2d 138, 140), and also in the converse situation where “the counterclaim has been dismissed and it is the plaintiff’s claim that remains” (78 Ill. App. 3d 269, 272, 397 N.E.2d 138, 140). Chicago Miniature Lamp Works, however, did not hold and is not authority for applying Rule 304(a), where, as here, separate causes of action were involved.

It is clear that the order appealed from in Chicago Miniature Lamp Works was not appealable under either Rule 301 or 304 because it lacked finality, in that it did not terminate the rights of the plaintiff and defendant as to all or any part of the controversy between them. (See National Tea Co. v. Gaylord District Department Stores, Inc. (1981), 100 Ill. App. 3d 806, 427 N.E.2d 345.) In the instant case, however, plaintiffs’ judgment is final since it disposes of all of the rights of plaintiffs and defendants as to the controversy between them in the original action, there remaining only the cross-claim between defendants. (Cross-claims are specifically included in the term counterclaim under section 2 — 608 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 608.))

In its counterclaim, Transamerica — while denying any agency existing between it and counterdefendants — sought a judgment from them in the amount of any judgment that might be entered for plaintiffs against it solely on the basis that under the doctrine of respondeat superior, it was liable as principal for the negligence of its agents. Thus, the purported cause of action set forth in the counterclaim was unrelated to and distinct from plaintiffs’ action and, in fact, could not possibly have come into being until such time as a judgment was entered for plaintiffs under the doctrine of respondeat superior. Rule 304(a) not being applicable, the order in question — having finality— was appealable under Rule 301, and since a timely notice of appeal was filed, we have jurisdiction to consider this appeal.

       Justice Kenneth E. Wilson heard the oral argument in this case, and following Justice Wilson’s death, Justice R. Eugene Pincham was substituted, listened to the tapes of the oral argument and read the briefs and record.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BRANSON, Defendant-Appellant.
    First District (1st Division)
    No. 83—1443
    Opinion filed December 31, 1984.
    Rehearing denied February 21, 1985.

      Barbara Kamm, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Richard A. Stevens, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, Larry Bran-son was found guilty of armed robbery (ill. Rev. Stat. 1983, ch. 38, par. 18 — 2) and sentenced to 15 years in prison.

On appeal, defendant contends: (1) the trial court erred in not suppressing a pretrial lineup identification allegedly made in violation of defendant’s sixth amendment right to counsel; (2) the trial court denied defendant’s right to be present at trial and assist in his own defense by failing to take reasonable measures to insure that defendant could hear the proceedings; and (3) the trial court abused its discretion when it refused to appoint experts to examine defendant and when it failed to order a hearing to determine defendant’s fitness to stand trial.

At about 10:30 p.m. on September 21, 1982, complainant Vickie Shinner was robbed at knifepoint by a man who took her purse containing money, a packet of photographs of-her friends, her checkbook with a check cashing card and her wallet.

On September 23, 1982, two days after the Shinner robbery, at approximately 10:45 p.m., defendant and a white woman and another black man were arrested at 1164 North Clark Street in Chicago. Defendant was charged with theft from person for stealing seven dollars from a Chicago police officer. (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1.) A custodial search of the three persons revealed that defendant was carrying the photographs of Vickie Shinner’s friends which had been in her purse on the night that she was robbed. Complainant’s checkbook and check cashing card were found on the woman arrested with defendant.

The next day, while in custody and represented by counsel on the theft charge, defendant was transported to the Area Six police station so he could appear in a lineup conducted as a result of the robbery investigation. At approximately 4:20 p.m., defendant was placed in a lineup with four other black men who were between the ages of 25 and 40, of medium build, ranging in height from 5 feet 10 inches to 6 feet 1 inch and all with some degree of facial hair. At the time of the lineup, defendant had not yet been charged with the Shinner robbery, but after Vickie Shinner picked defendant out of the lineup, he was then charged with armed robbery in the instant case.

Defendant filed a pretrial motion to suppress the identification. There was some question at the pretrial hearing on the motion regarding whether defendant had requested that his attorney be present at the lineup and whether his attorney had been notified of the lineup. At the suppression hearing, defendant testified that he asked police officers to contact his attorney prior to his being placed in the lineup. He also testified that he was viewed twice in the lineup and that a police officer told him that the complaining witness had not picked anyone out of the first lineup.

Detective Frank Kajari, one of the officers who conducted the lineup, testified that prior to the lineup, between 3:15 and 3:45 p.m., defendant’s attorney, Len Maslowsky, had called the Area Six office. Kajari testified that he could not recall if defendant requested his attorney, but he told Mr. Maslowsky on the telephone that a lineup would be held at 4 p.m. and that he could attend if he wished. Although the lineup was delayed for 20 minutes, Mr. Maslowsky never appeared at the lineup. Detective Kajari also testified that Vickie Shinner immediately identified defendant at the lineup.

Attorney Maslowsky took the stand and stated that he was never notified of the lineup. He testified that at 2 p.m. on the day of the lineup he received a telephone call from a police officer who told him that defendant had asked the officer to contact his attorney. When he asked to speak with defendant, he was told that defendant was in transit to the Area Six police station. According to Mr. Maslowsky, the officer said that he would have defendant call his attorney. Two or three hours later, the officer allegedly called to inform Maslowsky that defendant had been identified in a lineup. After hearing this testimony and argument by counsel, the trial court denied the motion to suppress, stating that defendant had no right to counsel at the lineup because he had not yet been charged with the crime for which he was placed in the lineup.

Defendant also filed pretrial motions for the appointment of medical experts to examine defendant and for a hearing on defendant’s physical fitness to stand trial. In response to these motions, Sergeant Gerald F. Blazek, the sheriff’s watch commander at Cook County Hospital, testified for the prosecution that defendant was in the custody of the sheriff’s office while he was in the hospital for renal dialysis treatments. Sergeant Blazek testified that defendant had been repeatedly hospitalized and had previously refused dialysis. The sergeant also stated that on one occasion he had asked defendant why he was back in the hospital and the defendant replied that “it was either a third or fourth time armed robbery charge and he is too old to do any time in the penitentiary, he couldn’t do twelve years or more.” The trial court then denied defendant’s motion for the appointment of expert witnesses to be paid for by the court. Defendant subsequently withdrew his motion for a fitness hearing because he was unable to pay for expert witnesses.

At the next trial date on May 2, 1983, the proceedings were delayed because defendant had been hospitalized for emergency treatment. The assistant State’s Attorney raised the possibility that defendant had intentionally injured himself. In response, defense counsel again requested that experts be appointed to review defendant’s mental and physical condition. When defendant arrived in court, however, there was no indication that he had voluntarily injured himself. The Cook County Hospital medical records librarian testified that defendant had been admitted to the hospital because he had complained of shortness of breath and had undergone dialysis because fluids had collected around his heart. After this testimony the trial court stated that it would not appoint experts because defendant was already being treated by doctors. When defense counsel indicated that defendant was being treated by residents and interns who could not be expert witnesses, the court stated that they could be brought in for whatever reason.

In connection with the pretrial motions regarding defendant’s fitness, the court also heard evidence indicating that the 29-year-old defendant suffered from a hearing disability and that he had been diagnosed as having hypertension, epilepsy and a kidney ailment which required dialysis treatments. In addition, the court had before it medical reports which showed that defendant had previously refused medical treatment and had once attempted suicide. The supplemental record included reports by two staff psychiatrists from the Psychiatric Institute who had examined defendant some four months before trial and found him to be mentally fit for trial. At various times during the pretrial hearings, defendant stated that he could not hear too well, but he did not renew his complaints during the trial.

At trial, complainant Vickie Shinner testified that on the night of the robbery she left a girlfriend’s apartment and was walking toward her car which was parked on the 500 block of Grant Place in Chicago. She was walking west on Grant Place when she noticed a man approaching her. Shinner testified that the man grabbed her by the shoulders and demanded her purse. When she screamed, the man pulled a knife and held it to her throat, threatening to cut her throat if she said another word. With his left hand around Shinner and his right hand holding the knife to her throat, the man walked her up and down one-half of a block before he pushed her up against a fence and then forced her into a gangway between two buildings on Grant Place. At this point, two women came out and yelled that they had called the police. The man then grabbed her purse and ran down the alley.

Complainant testified that she “got a good look” at the man because he had approached her from the front and then walked with her for some distance in an area lit by street lights and lights from houses. The police arrived soon after the man ran into the alley, but were unable to locate him. Vickie Shinner described the man to the police as being a black male, six feet tall, 140-150 pounds, 27 years old, with a beard and wearing a long trench coat. Her description of the assailant was corroborated by the testimony of the two police officers who responded to the call. Detective Paul Carroll, who conducted the lineup along with Detective Kajari, testified that complainant immediately picked defendant out of the lineup on September 24,1983.

Warner Haun testified for the defense that he was walking his dog in the alley on the night of the robbery. He stated that he saw a 5 feet 9 inches bearded black man in a trench coat run down the alley away from him while carrying something in his hand. Haun also testified that, later, he approached the police while they were talking to Vickie Shinner and the two women who had called the police. Haun testified that he overheard Shinner say that she could not recognize the robber’s face because she had been grabbed from behind.

After hearing this testimony and the arguments of counsel, the jury found defendant guilty of armed robbery and the court sentenced him to 15 years in prison.

Defendant’s first contention is that he was denied his sixth amendment right to counsel at the police lineup.

It is firmly established that a person’s sixth and fourteenth amendment rights to counsel attaches only at or after the time adversary proceedings have been initiated by formal charge, preliminary hearing, indictment, information or arraignment. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877; People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, cert, denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) The right of counsel does not arise merely because when the pre-indictment lineup was held, defendant was in custody on an unrelated criminal matter and his right of counsel had attached as to that charge. (People v. Martin (1984), 102 Ill. 2d 412, 422-23, 466 N.E.2d 228, cert, denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334; People v. Agee (1981), 100 Ill. App. 3d 878, 881-82, 427 N.E.2d 244; People v. Earl (1979), 78 Ill. App. 3d 188, 192-93, 397 N.E.2d 97.) Moreover, the right of counsel does not arise because charges are subsequently brought as a result of the lineup. People v. Agee (1981), 100 Ill. App. 3d 878, 427 N.E.2d 244.

Here, at the time of the lineup under question, defendant was in custody and represented by counsel on an unrelated theft charge. The State had not yet initiated formal proceedings against defendant on the robbery charge. Therefore, we find that defendant was not entitled to counsel at the lineup on September 24, 1982. Further, since the right to counsel had not attached, it was not error to proceed with the lineup despite defendant’s alleged request that his attorney be present. People v. Martin (1984), 102 Ill. 2d 412, 423, 466 N.E.2d 228; People v. Lamacki (1984), 121 Ill. App. 3d 403, 414, 459 N.E.2d 1142, appeal denied (1984), 101 Ill. 2d 549; People v. Logan (1983), 117 Ill. App. 3d 753, 759, 453 N.E.2d 1317.

Defendant argues that the two charges were related for the purposes of the sixth amendment right to counsel because evidence seized as a result of the theft arrest led directly to defendant’s being placed in a lineup during the robbery investigation. Since the two charges were related, defendant maintains, his right to counsel had attached as to the robbery charges as well as to the theft charge. We find this argument to be without merit. Courts have found that two charges are not related where they involve different criminal acts committed against different victims at different locations, even though defendant’s participation in the lineup directly resulted from a prior arrest on another charge. People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228; People v. Hall (1983), 117 Ill. App. 3d 788, 453 N.E.2d 1327, appeal denied (1983), 96 Ill. 2d 562, cert, denied (1984), 467 U.S. 1228, 81 L. Ed. 2d 878, 104 S. Ct. 2683; People v. Sanderlin (1982), 105 Ill. App. 3d 811, 434 N.E.2d 279, appeal denied (1982), 91 Ill. 2d 578.

Even assuming, arguendo, that defendant’s right of counsel regarding the robbery charge had attached at the time of the lineup, that would not have affected the admissibility of Shinner’s in-court identification of defendant. The test of admissibility is whether the in-court identification had an independent origin arising from observations of the defendant which were uninfluenced by the allegedly illegal lineup. People v. Agee (1981), 100 Ill. App. 3d 878, 882, 427 N.E.2d 244; People v. Earl (1979), 78 Ill. App. 3d 188, 193, 397 N.E.2d 97; see also People v. Dangerfield (1979), 78 Ill. App. 3d 1046, 1049-50, 398 N.E.2d 57, appeal denied (1980), 79 Ill. 2d 632.

In this case, it is clear that the complainant had ample opportunity to view defendant at the time of the commission of the crime. She testified that she observed defendant as he walked toward her and that she got a good look at him when he grabbed her from the front and then walked up and down a well-lit street with her. Immediately after the incident, she gave the police a detailed description of her assailant which matched the defendant. Although .Warner Haun’s testimony contradicts that of the complainant, his testimony was uncorroborated while hers was supported by the two police officers who arrived at the robbery scene. From this evidence, the trial court reasonably could find that the in-court identification was made independently of the lineup identification and was admissible.

Defendant also contends that he was denied his right to be present at his trial and assist in his own defense where the trial court failed to take reasonable measures to insure that defendant could understand the proceedings despite his hearing disability. Specifically, defendant argues that the court’s failure to take reasonable measures is evidenced by (1) the court’s refusal to appoint medical experts to examine defendant in order to determine the extent of his disability, and (2) the court’s refusal to order amplification of the proceedings.

The Illinois Constitution of 1970, article I, section 8, as well as the sixth amendment to the United States Constitution guarantees an accused the right to be present at his trial and to confront the witnesses against him. See also Ill. Rev. Stat. 1983, ch. 38, par. 104 — 10.

In People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 287, 263 N.E.2d 109, the Illinois Supreme Court set forth the general principles which apply to trials of deaf or blind defendants.

“The general rule in handling the trial of a criminal defendant who is handicapped by deafness, blindness or other affliction is that a trial judge should afford such a defendant reasonable facilities for confronting and cross-examining the witnesses as the circumstances will permit. He need only give such aid to intelligent appreciation of the proceeding as a sound discretion may suggest. The fact of blindness or deafness of the accused may lessen the ability and capacity of the defendant to utilize his constitutional rights, but this will not prevent his being subject to trial. In the proper administration of justice, however, the court should give a person accused of crime a reasonable opportunity to obtain the benefit of his constitutional rights. If he is deaf, such opportunity as may be necessary should be allowed for communication to him of the testimony of the witnesses to insure him a full and fair exercise of his legal rights. The exact manner in which this result should be arrived at must depend on the circumstances of the case and, to a considerable extent, be left to the sound discretion of the court.”

Thus, what constitutes “reasonable facilities” to aid a handicapped defendant in confronting the witnesses against him depends on the circumstances of the case and rests in the sound discretion of the trial court. People ex rel. Myers v. Briggs (1970), 46 Ill. 2d 281, 287, 263 N.E.2d 109. See also Ferrell v. Estelle (5th Cir. 1978), 568 F.2d 1128, 1132.

In the case at bar, the trial court clearly was concerned with the problem of defendant’s hearing disability. Before trial, the court stated on the record that it had been informed by defense counsel that defendant had partial hearing. Defense counsel also stated to the court that defendant seemed to be able to understand in their one-on-one conversations. The court offered defendant a hand interpreter but was informed that he could not read sign language. The trial court observed the defendant while he testified at the pretrial suppression hearing and saw that he was responsive to the questions asked of him. The court also questioned defendant about his ability to hear. In addition, the court instructed witnesses and attorneys to speak loudly and asked the attorneys not to interrupt each other so that defendant could hear. After the trial and the jury had retired to deliberate, the trial judge noted for the record that defendant had been bright and alert throughout the trial and had participated actively in the preparation of his defense by looking over transcripts.

Given the circumstances of this case, we find that the trial court took reasonable measures to insure that defendant was able to understand the proceedings and assist in his defense. Consequently, we cannot say that the trial court’s refusal to have defendant examined by experts paid for by the court or to order amplification of the proceedings was so unreasonable as to constitute an abuse of discretion.

Finally, defendant contends that the trial court abused its discretion in denying his request for an examination by court appointed experts and in failing to order a fitness hearing where there was a bona fide doubt as to whether defendant was mentally and physically fit to stand trial. We disagree.

A defendant has a right not to be tried or convicted while incompetent to stand trial. (Drope v. Missouri (1975), 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896; People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Defendant is unfit to stand trial if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 10.) When a bona fide doubt of the defendant’s fitness for trial is raised, the court has a duty to hold a fitness hearing before proceeding further. Ill. Rev. Stat. 1983, ch. 38, par. 104 — 11(a).

At the outset, we noted that defendant’s motion for a fitness hearing was not denied by the trial court; instead, it was withdrawn by the defendant. However, we will consider the issue, because a court’s failure to order a hearing, sua sponte, where defendant was unfit would constitute a denial of due process. (Pate v. Robinson (1966); 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836.) The critical inquiry is thus whether the facts presented a bona fide doubt that defendant was able to understand the nature and purpose of the proceedings against him and was able to assist in his own defense. People v. Murphy (1978), 72 Ill. 2d 421, 428, 381 N.E.2d 677, 682.

Certain factors are to be considered in determining a defendant’s fitness to stand trial: (a) counsel’s assertion that defendant is unable to cooperate in his defense, (b) prior treatment of mental disability, and (c) defendant’s demeanor at trial. (People v. Johnson (1984), 121 Ill. App. 3d 859, 860, 460 N.E.2d 336; People v. Davenport (1980), 92 Ill. App. 3d 244, 246, 416 N.E.2d 17.) The presence of more than one of these factors indicates that a defendant is unable to understand the nature of the proceedings against him or to assist in his defense. People v. Johnson (1984), 121 Ill. App. 3d 859, 460 N.E.2d 336.

In the case at bar, defense counsel asserted that defendant was unable to cooperate in his defense. However, counsel also stated that defendant seemed to understand their one-on-one conversations. Moreover,. defense counsel’s statements that he believed defendant was unfit and could not cooperate with him are not sufficient to raise a bona fide doubt of defendant's fitness. People v. Dominique (1980), 86 Ill. App. 3d 794, 804, 408 N.E.2d 280, appeal denied (1980), 81 Ill. 2d 603.

Also the fact that defendant had previously attempted suicide and had been placing himself in life-threatening situations by refusing medical treatment did not necessarily raise a bona fide doubt regarding defendant’s fitness to stand trial. (People v. Dominique (1980), 86 Ill. App. 3d 794, 408 N.E.2d 280; People v. Heral (1977), 54 Ill. App. 3d 527, 532, 369 N.E.2d 922, appeal denied (1978), 71 Ill. 2d 599.) In Dominique, the court found that the fact that defendant had been diagnosed as mentally ill some nine months before trial and was taking medication at time of trial to maintain contact with reality did not of itself raise a bona fide doubt of his fitness. (People v. Dominique (1980), 86 Ill. App. 3d 794, 804, 408 N.E.2d 280.) In contrast, the record in the present case reveals that a staff psychiatrist from the Psychiatric Institute had examined defendant four months before trial and found him to be mentally fit for trial. In addition, the court heard evidence which raised the possibility that defendant was malingering and refusing medical treatment in order to avoid being sent to the penitentiary. Clearly, the evidence was not sufficient to raise a bona fide doubt.

Defendant also argues that his physical ailments such as kidney disorders, epilepsy, hypertension and hearing impairment rendered him unfit to stand trial. We find this argument to be without merit. We are not dealing with a defendant such as Donald Lang, who was found to be incompetent to stand trial because he was a visually impaired, illiterate deaf-mute who was unable to communicate with anyone in any recognizable language. (People v. Lang (1984), 127 Ill. App. 3d 313, 468 N.E.2d 1303.) Defendant’s ailments here did cause some delay in the proceedings, but there is no evidence that defendant’s illnesses or the medical treatment he was receiving rendered him unable to understand the proceedings against him. The record clearly shows that despite his disabilities he was able to communicate effectively with his counsel, his custodians and the court.

Here, the trial judge was in a superior position to observe defendant and to evaluate his behavior and ability to understand the proceedings and to cooperate with defense counsel. He properly took into account his personal observation of defendant in determining whether or not a bona fide doubt existed. (People v. Murphy (1978), 72 Ill. 2d 421, 431, 381 N.E.2d 677; People v. Dominique (1980), 86 Ill. App. 3d 794, 804, 408 N.E.2d 280.) As indicated by the trial judge’s comments, it is clear that he felt that defendant took an active role in assisting in his defense. The trial court also observed defendant’s testimony in regard to certain pretrial motions and saw that defendant understood the nature of the charge and the questions asked and that his answers were coherent and responsive. Defendant’s active participation in the case and purposive testimony were inconsistent with his assertion of unfitness to stand trial. (See People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Jenkins (1978), 67 Ill. App. 3d 565, 569, 384 N.E.2d 1348.) The record demonstrates that defendant was able to understand the nature of the proceedings against him and was able to cooperate with defense counsel. We find that the trial court did not abuse its discretion either in failing to order a fitness hearing or in refusing to appoint medical experts to examine the defendant.

The conviction and sentence are affirmed.

Affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.