author: JUSTICE HEIPLE JUSTICE SCOTT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELANIE K. SKILES, Defendant-Appellant.
    Third District
    No. 81—610
    Opinion filed May 12, 1983.
    Modified on denial of rehearing July 11, 1983.

      SCOTT, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Tyrone C. Fahner, Attorney General, of Springfield, and Norman K. Rafferty, State’s Attorney, of Hennepin (James E. Fitzgerald, Darrell Panethiere, and Michael B. Weinstein, Assistant Attorneys General, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Melanie Kay Skiles, was originally charged by information with obstruction of justice. Before trial, an information was filed charging the defendant with murder by accountability under sections 5 — 1, 5 — 2, and 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 5 — 1, 5 — 2, 9 — 1). On the first day of trial, the State was allowed to drop the obstruction charge and join, by information, a charge of conspiracy to commit murder, under section 8— 2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 8— 2(a)). A jury convicted the defendant of conspiracy to commit murder and, on an accountability theory, voluntary manslaughter. She was sentenced to concurrent terms of four years’ imprisonment on each guilty verdict. The defendant appeals and asks this court to reverse and remand those convictions, or, in the alternative, order a resentencing.

This case arises from the killing of Henry Nellums. Mr. Nellums, age 64, was shot in the head while sleeping. His stepdaughter, Darlene Nellums, age 14, held the gun and pulled the trigger. The bizarre facts surrounding this case developed in the following manner. On January 3, 1981, at approximately 6:30 a.m., the defendant, Melanie Skiles, age 18, called the police to the house trailer of Henry Nellums in Hennepin because there had been a shooting. Henry Nellums was found in the master bedroom lying on his back across his bed. He had been shot in the head; there was no pulse and the body was cold. The only other occupants in the trailer, when the police arrived, were the wife of the victim, Judy Nellums, and the adoptive daughter of Mr. Nellums, the natural daughter of Judy Nellums, Darlene Nellums. The defendant was Darlene’s friend and had stayed the night as a guest.

During the course of the investigation, the defendant made several statements to the police. On the afternoon of January 3, she told the police that Judy Nellums had discovered the body and that because the room was in a shambles, they presumed an intruder had shot him, although no one heard any shots during the night. Later the same day, the defendant recanted and explained that the defendant and Darlene had returned to the trailer at approximately 2 a.m. on January 3, heard Judy and the victim arguing, heard a shot, and then learned that Judy had accidentally shot Mr. Nellums in a scuffle. The above statements were not offered in evidence.

On January 5, the police recorded two more statements by the defendant. The second statement corroborated the first, and went into more detail. A transcript of these two statements was presented to the jury, and the recordings were also played in their presence. The substance of these statements, which defendant claimed to be “the honest to God’s truth,” is as follows: On January 2, 1981, Darlene confided in the defendant that she and her mother hated her father, and that Darlene wanted to kill him. The record suggests that Henry Nellums had on several occasions abused both Darlene and Judy Nellums. Darlene told the defendant about her previous plans to kill Mr. Nellums. She had thought about shooting him while they were hunting or blowing him up in his truck. Darlene then began talking outright about killing her father. The defendant stated she helped Darlene come up with ideas for killing Mr. Nellums because she wanted to help her friend. They apparently came up with a plan, listed steps of things to do (the list was entered as an exhibit at trial), and began to follow the plan.

At about 10 p.m., after Mr. Nellums was heard snoring, Darlene got her gun, cleaned it, and then took steps to stage a robbery by taking the victim’s wallet. Next, Darlene hid the money, gathered into a bag the wallet and some tape recordings which contained previous plans to kill her father, and at midnight Darlene and the defendant left the house trailer through Darlene’s bedroom window. They walked to a nearby river. While the defendant waited on a landing, Darlene threw the bag and contents into the river. According to the defendant’s latter statement, after the bag was thrown into the river, defendant thought they had to go through with the plan or else Darlene would be in a lot of trouble.

Darlene and the defendant next walked over to a male friend’s house. Before calling on the friend, Darlene hid the gun and knife, which she had been carrying, in the friend’s mailbox. The friend testified that they told him about the plan and showed him the weapons. The friend, intoxicated, did not believe them. After the friend returned inside, they returned to the victim’s trailer. Before entering the trailer, Darlene slit Mr. Nellums’ screen to create the appearance of a robbery. Shortly afterward, Darlene asked the defendant to shoot Mr. Nellums. The defendant absolutely refused and told Darlene she would have to do it herself. Darlene then went into her mother’s room and apparently obtained her mother’s permission to shoot the victim. Darlene returned to her father’s room with the defendant. In the former recorded statement, the defendant claimed that she did not know if Darlene was serious or just “trying to pull [her] leg.” Nevertheless, once in Mr. Nellums’ room, Darlene motioned to the defendant to come closer to Darlene, and asked the defendant to keep talking (apparently to give Darlene support). The defendant stood one or two feet behind Darlene with her hand on Darlene’s back. The defendant told Darlene to remember the freedom she was going to have and wanted, and that if Darlene backed out her father might kill her — that it was her life or his. The defendant told Darlene she was going to have money and freedom. The last word defendant spoke before the shooting was “freedom.” Darlene then shot her father and later hid the gun in the humidifier.

Judy Nellums was not prosecuted. Darlene Nellums was prosecuted as a juvenile, under section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7). Pursuant to a fully negotiated plea of guilty to the concealment of a homicide, Darlene was made a ward of the court and was placed on probation. Darlene, during the course of her proceedings, was entrusted to the care of the Department of Children and Family Services (D.C.F.S.) and was treated by the Illinois State Psychiatric Institute (I.S.P.I.).

On appeal, the defendant presents 11 issues for review. We shall begin by considering, together, several issues which concern Darlene and the victim. These issues allege, the lower court erred as follows: (1) Defense counsel should have been given the address of Darlene so that counsel could have spoken with her. The record, however, does not indicate that defense counsel wished to call Darlene as a witness; (2) Defense counsel should have been able to obtain the mental health record of Darlene compiled by the I.S.P.I. The trial court, besides questioning the relevancy of this information, agreed with the concerned State agencies that the information was confidential and protected by section 1 et seq. of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 911/2, par. 801 et seq.); (3) Defense counsel should have been allowed to introduce evidence tending to show the victim’s state of mind and Darlene’s prior attempts to kill her stepfather. The record indicates that defense counsel was unable to lay the proper foundation required to introduce this evidence; (4) The court should not have granted the State’s motion in limine which restricted defense counsel’s ability to impeach Darlene, if she would have testified. However, Darlene was not called as a witness.

We would like to note briefly that the assistant State’s Attorneys, in their brief, tell this court the disputed mental health report was turned over to the defense, that it is part of the record on appeal, and that we can see for ourselves the irrelevancy of the report. This statement is inaccurate. The report was not given to defense counsel and is not part of the record. Nevertheless, it is not necessary that this court review the report in order to sustain the trial court’s rulings.

The above allegations of error are not well taken. Such evidentiary matters, the proof of which was the ultimate objective of defense counsel’s maneuvering, was duplicative of other evidence available to the jury and immaterial to the charges brought against the defendant. Several times during the trial defense counsel explained to the lower court what would have been proved had the court ruled favorably upon his requests. Counsel claimed he could have shown that Darlene had a long-standing hatred of her stepfather, that Darlene had on previous occasions planned and attempted to kill her stepfather and that Darlene would have killed her stepfather on the night in question whether the defendant had been there or not. Counsel’s reasoning was that if Darlene would have killed her stepfather on her own momentum, the defendant could not have contributed to the murder and thus could not be held liable for conspiracy or accountability.

First, we must note that the evidence presented by the State consisted, in large part, of two recorded, properly obtained, confessions of the defendant in which the defendant described, step by step, the events leading up to, including and after the shooting. The jury was given a transcript and the recordings were played in their presence. The defendant, in her confessions, recounted discussions in which Darlene described her long-standing hatred of her stepfather and the prior plans and attempts to kill him. In light of defense counsel’s theory, it seems no new facts would have been established by introducing the omitted evidence. Furthermore, the record does not show that defense counsel made an offer of proof that the disputed evidence would have contradicted the defendant’s confession. The introduction of the omitted evidence would have in no way changed the facts upon which the jury made its decision. Thus, its exclusion could not have been prejudicial to the defendant. People v. Marmon (1945), 389 Ill. 478; People v. Hairston (1980), 86 Ill. App. 3d 295; People v. Hankins (1967), 90 Ill. App. 2d 51, 58.

Second, the defendant was charged with conspiracy and accountability. Conspiracy requires a showing of an intent and an agreement on the part of the defendant to commit an offense, and an act in furtherance thereof (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 2(a)). Accountability can be founded upon the same proofs. The difference between the two crimes is that accountability requires the commission of an offense, whereas conspiracy does not require the commission of any offense. (Ill. Rev. Stat. 1981, ch. 38, pars. 5 — 1, 5 — 2; People v. Burleson (1977), 50 Ill. App. 3d 629, 636; People v. Gregory (1979), 73 Ill. App. 3d 127, 134.) The elements of these crimes do not require a showing of prior acts, motivations, state of mind and/or intent of the victim and/or accomplice in order to prove the crimes. It does not matter whether the accomplice would have performed the intended offense had the defendant never been born. What matters is the intent, agreement, and actions of the defendant. (People v. Ambrose (1975), 28 Ill. App. 3d 627.) There was ample evidence presented at trial, most importantly the defendant’s own undisputed confessions, for the jury to find that the defendant, with intent to commit an offense, aided and agreed with Darlene to commit an offense and an act in furtherance thereof occurred (thus establishing the conspiracy), and a killing took place (for which the defendant is accountable). Considering this conclusive proof of guilt arising from the confessions, this court cannot reverse the jury’s verdict because of the omission of the disputed evidence. People v. Hankins (1967), 90 Ill. App. 2d 51, 58.

We hold that the evidence which defense counsel sought to obtain and/or introduce at trial was immaterial to the charges brought against the defendant. Since this evidence was immaterial, there could not have been prejudice to the defendant by their exclusion.

We next turn to two of the defendant’s contentions which will require a more precise analysis. The defendant argues that, contrary to the trial court’s finding, conspiracy to commit murder is not an included offense of murder (by accountability) and, therefore, the court should not have allowed the State to add a conspiracy charge to its case on the first day of trial. The propriety of allowing the State to add a charge on the day of the trial does not turn on whether the added charge is, as a matter of law, a lesser included offense of the original charge. The issue is whether the defendant suffered a denial of due process in that the defendant was not given adequate time to prepare her defense. What is a reasonable time for preparation of a case must necessarily depend upon the facts and circumstances and is largely a matter resting in the sound judicial discretion of the trial court, which will be disturbed on review only when it is shown that the discretion has been abused. (People v. Storer (1928), 329 Ill. 536, 539-40; People v. Gore (1972), 6 Ill. App. 3d 51, 55.) There is not a reversible abuse of discretion where the defendant has not been prejudiced by the refusal of the trial court to grant a continuance. The question to be answered is: Did the defendant have sufficient time to familiarize herself with the evidence and prepare a defense? (See Peo ple v. Gore (1972), 6 Ill. App. 3d 51, 56.) If the addition of the conspiracy charge required the State to present a new theory of the case and new evidence, then, the defendant should have been allowed time to familiarize herself with the new theory and evidence. However, after reviewing the criminal informations and evidence, we believe the addition of the conspiracy charge did not change the theory of the case or require the introduction of new evidence.

The defendant was originally charged with the offense of murder by accountability in that with the intent to promote or facilitate the commission of the murder, she solicited, aided, and abetted Darlene in the planning or commission of the offense of murder. This is a very broad charge. The defendant was on notice that the State would try to prove intent and that a murder took place. The defendant was also on notice that the State could prove its case with any evidence which proved the defendant solicited, aided, abetted Darlene in the planning or commission of the offense. Such evidence could have been the verbal support the defendant gave Darlene, the discussions on how to commit the murder, the planning of the murder (these last two facts clearly show an “agreement” to commit the offense which is an element of the conspiracy charge), the assistance in getting the weapon and disposing of the bag, the physical assistance of standing by Darlene at the time of the murder. All and any of these facts were going to be at issue at the trial even before the conspiracy charge was added. The conspiracy information charged that the defendant, with the intent to commit murder, agreed with Darlene to the commission of the offense and performed an act in furtherance of that agreement. All the evidence needed to prove the conspiracy charge was already available to the defendant as part of the accountability charge. There was no new theory of the case. The story was the same. Furthermore, no new factual issues were raised. The defendant should have been familiar with the evidence and prepared to counter the proofs of the State for both charges. There was no reason to allow the defense extra time to review the case. Therefore, the trial court did not abuse its discretion and the defendant was not denied her due process right. The decision of the trial court to add the conspiracy charge is affirmed.

Also, defendant submits multiple convictions and concurrent sentences are inappropriate in this case. The supreme court, in People v. King (1977), 66 Ill. 2d 551, 566, reviewed the issues which arise when a defendant is subject to multiple convictions and concurrent sentences and held that “[pjrejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses *** ‘Act’ *** is intended to mean any overt or outward manifestation which will support a different offense.” If we find there was but one act, then multiple convictions are inappropriate. If we determine there were several acts, then multiple offenses may be appropriate, unless one of the offenses is an included offense of the other. A lesser included offense is one comprised of some, but not every element, of the greater offense. The greater offense will include very element of the lesser offense plus some other elements so that it becomes impossible to perform the greater offense without committing the lesser one. Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9.

The facts of this case permit us to find there were multiple “acts” in the sequence of events which resulted in the death of Mr. Nellums. The conspiracy arose before the shooting, at the time the defendant and Darlene planned the killing and prepared the gun and the scene of the crime. The acts which established the conspiracy also laid the basis for the defendant’s accountability. The defendant became accountable when Darlene shot her stepfather — the shooting was the act which transformed the defendant’s liability from only conspiracy to commit murder to accountability for the killing (the jury later finding the killing was manslaughter).

The question, then, is whether a defendant can be convicted of both conspiracy to commit murder and manslaughter by accountability for separate actions occurring in the same sequence of events or transaction.

Conspiracy is defined by statute as follows:

“A person commits conspiracy when, with intent that an offense be committed, he agreed with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.” (Ill. Rev. Stat. 1981. ch. 38, par. 8 — 2.)

The essential elements of conspiracy to commit murder are intent to commit murder, agreement to do so, and an act in furtherance of the agreement. (People v. Ambrose (1975), 28 Ill. App. 3d 627.) It is not necessary the act result in an offense {Ambrose), or the intended offense be accomplished. (People v. Burleson (1977), 50 Ill. App. 3d 629.) Accountability, on the other hand, requires the commission of an offense, and not just an act in furtherance of an offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 1.) A defendant cannot be accountable for an offense which never occurred. Although a defendant can be responsible for an unintended crime which was the natural consequence of the intended crime. People v. Campbell (1979), 77 Ill. App. 3d 804; People v. Cvetich (1979), 73 Ill. App. 3d 580.

A person is legally accountable for the conduct of another when:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 5-2(c).)

The elements of accountability for manslaughter also include, among others, intent to commit an offense — in this case they intended murder-agreement to do so and an act, plus the commission of an offense. (People v. Bell (1981), 96 Ill. App. 3d 857.) It is possible for all the elements of a conspiracy charge to be included in an accountability charge. Nevertheless, the supreme court has decided that, when determining whether an offense is a lesser included offense of another, the court must not just look to the statutory terms of the offense; rather, the court must also look to the elements of the offenses as expressed in the indictments.

In People v. Stroner (1983), 96 Ill. 2d 204, the supreme court held that conspiracy to commit murder was not a lesser included offense of attempted murder on an accountability theory as charged by the indictment. The supreme court noted that the accountability indictment only charged the defendant with aiding and abetting his accomplice. There was not a specific (allegation of “agreement” between the accomplices. In the instant case, the indictment for accountability also omits a specific allegation of “agreement.” The Stroner holding seems to apply to the instant case. However, upon closer examination, the cases are distinguishable, and our decision shall be based upon different legal grounds. In the instant case, the defendant was convicted of manslaughter by accountability, not attempted murder by accountability. Without determining whether conspiracy to commit murder is a lesser included offense of manslaughter by accountability, we hold, for the following reasons, the conspiracy conviction must be vacated.

It must be noted that accountability is a legal theory whereby a defendant is held responsible for a crime (for example murder) which he personally did not commit, but which was committed by his accomplice. (People v. Boyd (1980), 88 Ill. App. 3d 825, 850.) In the eyes of the law the defendant is the killer and can be given the maximum sentence which could be given to the actual murderer. (Compare People v. Ruiz (1982), 94 Ill. 2d 245 (death penalty upheld where defendants present, even though they did not actually strike the fatal blows), with People v. Tiller (1982), 94 Ill. 2d 303 (death sentence set aside where defendant did not plan or participate in the killings).) If the law places upon the accountable defendant all the liabilities arising from the acts of the accomplice, the law should also afford the accountable defendant the protections which would be afforded the accomplice. Thus, if an accomplice is charged with conspiracy to commit murder and murder, the court cannot properly convict the accomplice of both crimes because the conspiracy charge is the inchoate crime of the murder charge. (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 5; People v. Hill (1980), 78 Ill. 2d 465, 476.) Likewise, the accountable defendant, essentially standing in the shoes of the accomplice, should only be convicted of murder and not also the inchoate crime of conspiracy to commit murder.

Therefore, we hold that the defendant, Melanie K. Skiles, convicted of manslaughter by accountability, and manslaughter being an included offense of murder (People v. Washington (1972), 7 Ill. App. 3d 427), cannot also be convicted of the inchoate crime of conspiracy to commit murder. The conviction for conspiracy to commit murder is vacated.

Defendant separately argues the lower court abused its discretion by not considering the disposition of Darlene’s case at the sentencing hearing. People v. Hobbs (1965), 56 Ill. App. 2d 93, 98, clearly states the rule that on “appeal, it is only under rare and unusual circumstances that a reviewing court will interfere with the discretion of the trial judge in the imposition of a sentence. *** The imposition of sentence is peculiarly within the discretion of the trial court, and unless clearly abused, the reviewing court will not interfere therewith. Accordingly, before an Appellate Court will interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken of the record.. [Citations.]” First and foremost, it must be borne in mind that Darlene Nellums was a juvenile and prosecuted as a juvenile. Melanie Skiles was an adult and was prosecuted as an adult. Melanie Skiles, because of her age, was not eligible for prosecution as a juvenile. Because of this material difference in circumstances, comparison of their respective dispositions is meaningless. Moreover, considering the defendant’s extensive involvement in the killing, and the fact the court sentenced her to a four-year sentence for voluntary manslaughter (the minimum sentence, at the time, was three years, the maximum 15 years), we find there was not an abuse of discretion by the trial judge.

We are also asked to determine whether the trial judge committed prejudicial error when he allowed the State to play the taped confessions which included two of the defendant’s statements of a willingness to take a polygraph examination. The defendant is correct when she states that polygraph evidence cannot be admitted into evidence. (People v. Baynes (1981), 88 Ill. 2d 225, 240.) However, the issue here does not concern polygraph test evidence. No one, at trial, attempted to introduce polygraph test evidence. And, the trial court never suggested that a polygraph test should be taken. This court knows of no bar to the admission into evidence of a defendant’s statement of a willingness to take a polygraph test. Moreover, there is no indication the statements prejudiced the defendant. Apparently, the defendant offered to submit to a polygraph exam in order to support her claim to the investigating police officers that the version of the story she was giving on the tape was indeed, as she also claimed, the “honest to God’s truth.” The first statement was purely spontaneous on the part of the defendant. The second was a “yes” answer to the question “would you be willing to take a polygraph to this statement?” At trial, the defendant never attempted to show that the taped confessions were untrue or incomplete. Furthermore, the State did not single out the statements as a basis for the conviction. They were incidental to the confessions and were heard by the jury in the course of playing the entire tape. Error was not committed by playing the defendant’s statements.

The remainder of the defendant’s allegations of error can be dealt with summarily. The lower court did not err in refusing to instruct the jury on the offense of obstruction of justice because this crime is not an included offense of those charged. (People v. Cramer (1981), 85 Ill. 2d 92.) It was appropriate for the trial judge to add the language of the accountability instruction to the issues instruction. (People v. Comer (1979), 78 Ill. App. 3d 914, 916.) Lastly, defendant’s contention that the prosecutor improperly argued motive to the jury, not being objected to, was not properly preserved in the record for appeal. Moreover, the “real thrust of the evidence adduced and argued by the State, in terms of quantity and persuasiveness, was independent of motive.” People v. Jackson (1974), 22 Ill. App. 3d 873, 879, 318 N.E.2d 239.

The dissenting opinion filed herein brings to mind a colloquy reputed to have occurred many years ago between the Chief Justice of Texas and an Illinois lawyer visiting that State. “Why is it,” the visiting lawyer asked, “that you routinely hang horse thieves in Texas but oftentimes let murderers go free?” “Because,” replied the Chief Justice, “there never was a horse that needed stealing!”

While some might agree that the victim in the instant case deserved to be shot, such premise falls short of a legal justification for the defendant’s conduct.

For the reasons set forth above, we reverse the conspiracy conviction and vacate that sentence. The conviction and sentence for manslaughter is affirmed.

Affirmed in part; reversed in part.

ALLOY, J., concurs.

JUSTICE SCOTT,

dissenting:

Henry Nellums, an avid collector and seller of pornographical material, commenced a weekly incestuous relationship with his adoptive daughter, Darlene Nellums, when she was eight years old. He continued this relationship until Darlene was 14 years of age. Darlene effectively ended Nellums’ incestuous conduct on January 3, 1981, when she shot and killed him. Darlene was prosecuted as a juvenile, made a ward of the court and placed on probation.

Judy Nellums, natural mother of Darlene, was aware of her daughter’s plans to kill her husband, Henry Nellums, and gave her daughter permission to do so shortly before the act was committed. Judy was never prosecuted.

The defendant, Melanie K. Skiles, was 18 when the crime was committed, was aware of Darlene’s intentions, and at Darlene’s request stood behind her when the fatal shot was fired. Melanie, as stated in the majority opinion, was tried and convicted of conspiracy to commit murder and on an accountability theory of voluntary manslaughter. She was sentenced to concurrent terms of four years’ imprisonment on each conviction.

Was the foregoing scenario of events legal? Yes, but fair? No! This observation as to the legality of the defendant Skiles’ conviction is premised upon the assumption that the defendant received a fair trial, which the majority has concluded she received. I disagree with such a conclusion.

Reversible error was committed when the State over defendant’s objection was permitted to introduce evidence of the defendant’s willingness to submit to a polygraph examination regarding two narrative statements which she had made.

The defendant filed a motion in limine requesting the trial court to exclude all testimony regarding a polygraph examination and this motion was allowed. The defendant during trial further requested that all references as to her willingness to take a polygraph examination be deleted from recorded and transcribed narratives which she had made and which the State was attempting to introduce into evidence. This motion was opposed by the State with the argument that the expressions of such willingness to take a lie detector test showed that the defendant’s statements were true.

The jurors heard two recorded narratives given by the defendant and were further given transcripts of the narratives so that the same could be read as the tape was being played.

The jury heard the narrative of the defendant given to the law enforcement officials at 4:46 p.m. on January 5, 1981, a portion of which is as follows:

“S.A. [Special Agent]: Okay, Melanie, as you know, this is the third statement we have taken from you. And each time the statement has been different.
M.S.: Yes.
* * *
M.s.: *** What I am telling you now is the honest to God’s truth and I would take a polygraph test right now and swear to it. And I know it would come out positive.”

At 11:59 p.m. on the same date the defendant gave a second narrative which was also heard by the jury and a portion of which is as follows:

“H.B. [initials of investigator]: Have we promised you anything?
M.S.: No.
H.B.: Okay, would you be willing to take a polygraph to this, to this statement?
M.S.: Yes, yes, I would.”

Almost seven hours later the defendant gave another narrative to a special agent Brignadello, who prefaced the statement with the following remarks:

“H.B.: Melanie, I understand that at this point, you have some things that you would like to tell us that were asked before in a previous statement and were not quite accurate. At this point you would like to tell the complete truth, is that correct?
M.S.: Yes.”

The foregoing narratives listened to and read by the jurors were subject to strenuous objections by counsel for the defendant, however, these objections were overruled. It was the State’s position that the objected-to evidence (defendant’s declarations of a willingness to take a polygraph examination) bolstered the credibility of her narratives. The State’s position is well taken; however, the State was trodding on forbidden ground. The inference from such evidence was that the defendant’s initial stories were false and that the final statement introduced by the State was true and proven to be true by a polygraph examination. Our supreme court, referring to evidence relating to a polygraph examination, has stated, “No other form of evidence is as likely to be considered as completely determinative of guilt or innocence as a polygraph examination.” (People v. Baynes (1981), 88 Ill. 2d 225, 244, 430 N.E.2d 1070, 1079.) In Baynes admission of polygraph evidence was stipulated to by the parties, yet our supreme court held that the use of such evidence rose to the level of plain error and reversed the defendant’s conviction even though it was recognized that the evidence against the defendant was not close. Our supreme court recently reversed a defendant’s conviction where the trial judge, following a guilty verdict, mentioned the possibility of giving the defendant a polygraph examination prior to the time the judge ruled on a motion for new trial, even though the judge stated that he did not want to know the result of the examination or even if one was conducted. (See People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493.) In Yarbrough the prosecutor during hearing on motion for new trial did refer to “certain investigative procedures” as having been “performed subsequent to the trial.” Our supreme court in reversing defendant’s conviction reasoned that the judge could have inferred that the defendant had taken the examination and that the results were not beneficial to him. The same reasoning is applicable in the case before us in that it can be assumed that the jury concluded that the defendant had taken a lie detector test and the results were not beneficial to her.

The precise question presented in this case, to-wit, evidence of a defendant’s willingness to take a lie detector test, has not been precisely addressed in our State; however, other jurisdictions have been confronted with the issue and have held that such evidence constitutes reversible error because it lacks probative value and it is of a self-serving nature. See State v. Carnegie (1969), 158 Conn. 264, 259 A.2d 628, cert. denied (1969), 396 U.S. 992, 24 L. Ed. 2d 455, 90 S. Ct. 488; People v. Rocha (1981), 110 Mich. App. 1, 312 N.W.2d 657; and precisely on all fours with the instant case is State v. Britson (1981), 130 Ariz. 380, 636 P.2d 628.

The majority opinion disposes of the issues regarding the admission of evidence relating to defendant’s willingness to take a polygraph examination by noting that the defendant’s statements to that effect were spontaneous. I quarrel not with the fact that the defendant made the statements during a prolonged investigation by law enforcement officials. Such statements were contained in the narratives both heard and read by the jury. The State could well have introduced into evidence the narratives minus the defendant’s remarks pertaining to her willingness to take a polygraph examination. The State in attempting to “gild the lily” obtained the opposite result in that reversible error was committed which mandates a new trial.

I also differ with that portion of the majority opinion which concludes that no error was committed by the trial court when it ruled that the mental health records of Darlene Nellums, the principal actor, were privileged under the provisions of the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1979, ch. 91V2, par. 801 et seq.).

An assistant to the Attorney General of our State prosecuted this case and presented oral arguments to this court on appeal. I agree with the majority opinion in that this court was informed by the State during oral argument that the mental health report in dispute was given to counsel for the defendant, that it was contained in the record on appeal and hence we could examine it and we would find it irrelevant. I further agree with the observation of the majority that such statement was not true. The defense counsel despite repeated requests never received such a report and the same is not part of the record. I disagree, however, with the majority’s conclusion that the failure to produce the material in the possession of the Department of Mental Health was of no consequence.

The principal actor, Darlene Nellums, who killed her father, agreed to undergo psychiatric treatment as a condition of her probation, and such treatment was ordered by the court. Information obtained from Darlene contained in reports prepared by the Illinois State Psychiatric Institute was filed with the juvenile court and the State’s Attorney. Dr. Lani of the Institute testified as to confidential statements Darlene had made at the juvenile dispositional hearing, a hearing which counsel for the defendant was not permitted to attend. Whether there was material in the psychiatric reports which would have been beneficial to the defendant’s defense was not known to counsel for the defendant, nor to this court. Darlene did not testify at the trial, nor were her whereabouts disclosed to the defendant.

Whether a disclosure would have been beneficial to the defendant is a determination that should have been made by counsel for the defendant. The statutory psychiatrist-patient privilege does not apply to a psychiatric examination made pursuant to a court order. People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455; People v. Lowe (1969), 109 Ill. App. 2d 236, 248 N.E.2d 530.

Presumably the patient in psychotherapeutic treatment reveals the most private and secret aspects of his mind and soul. To casually allow public disclosure of such would desecrate any notion of an individual’s right to privacy. Confidentiality encourages candor from the patient which is necessary for proper treatment; however, in the instant case we have a situation where there must be a determination of which is to be given the most weight, the right of confidentiality or the rights guaranteed to an accused by the sixth amendment of the United States Constitution and the right not to be deprived of liberty without due process of law. As the result of confidential information concerning Darlene having been provided to third parties, it may well be that such acts constituted a waiver of the privilege of confidentiality. (People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592; People v. Givans (1967), 83 Ill. App. 2d 423, 228 N.E.2d 123.) However, a broader solution to the problem should be adopted. When a statutory evidentiary privilege directly conflicts with a defendant’s right of confrontation and due process, the statutory privilege must give way to the fundamental protections of our system of criminal justice. People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727; Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.

It should also be noted that in this case the defendant by her attorney sought but did not receive the known address of Darlene Nellums. At one time the State was directed to supply the address. The State did not promptly comply with this request and ultimately, after being informed by third parties that Darlene did not wish to testify, the court entered an order denying the defendant’s request for the address. Counsel for defendant was denied the right to make his own determination as to whether Darlene did or did not want to testify and such denial was based upon hearsay statements. Whether Darlene did or did not want to testify is immaterial. Her address should have been produced. Her whereabouts could lead to other acquaintances or other people in contact with Darlene which could conceivably enable counsel for defendant to better investigate and prepare her defense. See People v. Bass (1980), 84 Ill. App. 3d 624, 405 N.E.2d 1182, and People v. Szabo (1983), 94 Ill. 2d 327, wherein there is contained an informative dissertation on the importance of compliance with discovery procedure.

For the reasons set forth I believe that the conviction of the defendant should be reversed and a new trial should be ordered.


source: Caselaw Access Project

author: JUSTICE LINDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES R. Mc QUEEN, Defendant-Appellee.
    Second District
    No. 82—418
    Opinion filed June 7, 1983.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Peter J. Dockery and Robert A. Huiner, Assistant State’s Attorneys, of counsel), for the People.
    Thomas O. McCulloch, of Geneva, and Mark E. Kowalczyk, of Kowalczyk & Stogsdill, Ltd., of Glen Ellyn, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

An eight-count indictment charged Charles McQueen, defendant, with murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a)(1), (2), (3)), attempt to commit murder (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 4(a)), aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a), (b) (1)), armed violence (Ill. Rev. Stat. 1981, ch. 38, art. 33A), and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)) resulting from a shooting which left one person dead and another injured. Prior to trial, defendant filed a motion in limine requesting, inter alia, the court to prohibit the State’s introduction of certain evidence found in defendant’s home and certain statements made by defendant because they were irrelevant. After a hearing, the Du Page County circuit court granted this motion with respect to guns, ammunition, two books, and a newspaper clipping found in defendant’s home and defendant’s false statement to police that he did not possess any weapons. The State filed a certificate of impairment and appeals from this pretrial evidentiary order pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)).

At the hearing on defendant’s motion, the State represented that on the day of the offense, defendant telephoned the police which resulted in a meeting between the police and defendant. At that meeting, after being informed he was a suspect, defendant gave police an alibi and stated, among other things, that he had no firearms in his house. In a subsequent search of his house, firearms which ballistic experts said were unrelated to the shootings were found along with ammunition which was the same type and caliber as those recovered from the scene of the crime yet which also fit the firearms found in defendant’s home. Defendant did not have a firearms ownership identification card (FOID). Police also found a book which concerned the subject of telling lies and creating alibis, a book about Son of Sam, and a newspaper clipping regarding the death penalty statute. At this hearing, the State told the court, to allay defendant’s contention that the evidence regarding the firearms would be evidence of other crimes, that it would not tell the jury that defendant did not have a FOID card. At the close of the hearing, the court prohibited the State from introducing the firearms or ammunition, finding that they were unrelated to the charged offense, as well as defendant’s false statements, the two books, and the newspaper clipping.

On appeal, the State argues that defendant’s false statement regarding the firearms was relevant in showing defendant’s consciousness of guilt and thus admissible, and that the firearms and ammunition were admissible because they were found in defendant’s possession and were suitable for the commission of the crimes. The State does not set forth any argument concerning the books or newspaper clipping. Defendant responds by first requesting this court to reconsider its order of September 8, 1982, which found the State’s appeal cognizable under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)).

Supreme Court Rule 604(a)(1) governs the State’s right to appeal interlocutory orders and provides that:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 87 Ill. 2d R 604(a)(1).

Pursuant to this rule, the State may appeal a pretrial suppression order whenever it certifies to the trial court that the order substantially impairs the State’s ability to prosecute the case. (People v. Young (1980), 82 Ill. 2d 234, 247.) The pretrial suppression order need not be premised on evidence illegally obtained; rather, it may concern evidentiary rulings regarding hearsay and relevancy. (See People v. Phipps (1980), 83 Ill. 2d 87; People v. Young (1980), 82 Ill. 2d 234.) Different rules apply where the State seeks to appeal an interlocutory order which resulted from a motion presented once the trial had already commenced. (See People v. Johnson (1983), 113 Ill. App. 3d 367, 447 N.E.2d 502.) Since the substantive effect rather than the form of the trial court’s order determines whether it is a suppression order (People v. Phipps (1980), 83 Ill. 2d 87, 90-91), this court did not err in its September 8, 1982, order finding the State’s appeal cognizable under Supreme Court Rule 604(a) because the effect of the trial court’s order was to prohibit the introduction of certain evidence. See People v. Wallace (1982), 106 Ill. App. 3d 567, 435 N.E.2d 960; People v. Kite (1981), 97 Ill. App. 817, 423 N.E.2d 524.

The cases cited by defendant, People v. Williams (1982), 108 Ill. App. 3d 219, 438 N.E.2d 1311, and People v. Macaluso (1976), 36 Ill. App. 3d 592, 344 N.E.2d 476, concern State appeals from midtrial evidentiary rulings and are thus inapposite.

Prior to analyzing the merits of the State’s appeal, defendant’s contention that this court may only review the trial court’s authority to entertain defendant’s motion in limine, and not the merits of the court order, must be discussed. Defendant misplaces reliance for this proposition on People v. Flatt (1980), 82 Ill. 2d 250, because the supreme court in Flatt addressed a “suppression order” entered after the trial had commenced. The court held that once trial has begun, the State may appeal and challenge only (1) orders suppressing evidence entered pursuant to the provisions of section 114 — 12(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(c)) or (2) the authority of the trial court to entertain a motion not authorized pursuant to the provision of section 114 — 12(c). (82 Ill. 2d 250, 264; see also People v. Johnson (1983), 113 Ill. App. 3d 367, 447 N.E.2d 502 (includes within appealable midtrial orders those which deny admittance of evidence because of a statutory prohibition or the violation of a court rule or some other ground besides recognized rules concerning the admission of evidence).) In the latter circumstances, the appellate court would only be able to review the trial court’s authority to entertain the motion and not the merits of the motion and order. Since the order in the instant case was a pretrial order, Flatt does not apply; rather, People v. Young (1980), 82 Ill. 2d 234, previously discussed, which does not limit the appellate court’s scope of review, applies.

Defendant’s False Statement

The State argues that it did not seek to introduce defendant’s false statement denying possession of firearms to prove the truth of that statement. Rather, according to the State, defendant’s false statement evinces defendant’s consciousness of guilt.

A defendant’s false exculpatory statement may be admissible to establish the defendant’s consciousness of guilt. (See People v. Watson (1982), 103 Ill. App. 3d 992, 431 N.E.2d 1350; People v. Puente (1981), 98 Ill. App. 3d 936, 424 N.E.2d 775; People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153; People v. Wilson (1972), 8 Ill. App. 3d 1075, 291 N.E.2d 270.) The present issue requires a determination of whether defendant’s false statement was “exculpatory” and thus admissible to show his consciousness of guilt.

Although the State did not articulate its rationale for contending that defendant’s false statement was admissible as evidence of defendant’s consciousness of guilt, it appears that defendant’s false statement evinces such a consciousness of guilt. After being made aware that he was a suspect in the shooting of two people, defendant stated that he did not possess any firearms. The subsequent discovery of firearms in defendant’s residence leads to the inference that he lied about his possession of firearms to dispel suspicion concerning his culpability in the shooting. Viewed in this light, defendant’s false statement is relevant to the issue of his guilt.

While the determination of whether evidence is admissible with regard to relevancy is within the discretion of the trial court, whose decision will not be reversed if the record indicates a sufficient basis for the decision and if the court did not abuse its discretion (People v. Gibson (1982), 109 Ill. App. 3d 316, 325, 440 N.E.2d 339, 344; People v. Jones (1982), 108 Ill. App. 3d 880, 884, 439 N.E.2d 1011, 1015; People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628), the trial court in the instant case abused its discretion. The trial court explained that defendant’s false statement should not be admitted because defendant may have lied because he did not possess a FOID card. While it is true that defendant may have lied to cover up his lack of a FOID card, that does not make the evidence irrelevant. Rather, defendant could explain to the fact finder the reason why he lied so as to mitigate any harm. The fact finder would assess this testimony in determining defendant’s guilt or innocence. Thus, since a defendant’s false exculpatory statement is admissible even if it discloses that he committed another crime (see People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153), the trial court erred in prohibiting the introduction of defendant’s false statement and the firearms.

Further, the State argues that the firearms and ammunition are admissible in evidence because (1) they show the falsity of defendant’s denial of possessing firearms and were in defendant’s possession and (2) were suitable for the commission of the charged offense. The State’s first argument has been previously considered and warrants acceptance. With respect to its second argument, the question of the admissibility of the firearms must be analyzed separately from the admissibility of the ammunition.

Firearms

Generally, a weapon found in a defendant’s possession when arrested may be admitted only where the weapon bears a connection with the charged offense. (People v. Brown (1981), 100 Ill. App. 3d 57, 69, 426 N.E.2d 575, 582; see People v. Ostrand (1966), 35 Ill. 2d 520; People v. Jones (1963), 29 Ill. 2d 306.) Often this connection exists where the weapon is “suitable” for the charged offense although no direct evidence links the weapon with the offense. (See People v. Magby (1967), 37 Ill. 2d 197; People v. Johnson (1966), 35 Ill. 2d 516; People v. Goodman (1982), 109 Ill. App. 3d 203, 440 N.E.2d 345; People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831; People v. Pointer (1981), 93 Ill. App. 3d 1064, 418 N.E.2d 1; People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062; People v. Smith (1974), 18 Ill. App. 3d 859, 310 N.E.2d 734.) Thus, where a witness testifies that the defendant used a weapon and the defendant possessed a similar weapon when arrested, that weapon may be introduced as evidence although the witness cannot identify it as the one the defendant used to commit the offense. In effect, the court allows the jury to infer from the defendant’s possession of a suitable weapon that the weapon was the one used to commit the offense. (See e.g., People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831 (victim stabbed with an instrument and testimony indicated that a knife similar in size to defendant’s knife would be suitable for inflicting the injuries permits admission of the knife); see People v. Williams (1981), 96 Ill. App. 3d 8, 420 N.E.2d 710; People v. De La Fuente (1981), 92 Ill. App. 3d 525, 414 N.E.2d 1355; People v. McClinton (1978), 59 Ill. App. 3d 168, 375 N.E.2d 1342.) Although courts in certain cases have said that the mere fact that a defendant possessed a weapon when arrested permits its introduction as evidence of the details of the arrest, these cases usually concern offenses requiring a weapon (see People v. Upshire (1978), 62 Ill. App. 3d 248, 379 N.E.2d 38 (armed robbery); People v. Longstreet (1974), 23 Ill. App. 3d 874, 320 N.E.2d 529 (armed robbery)) or cases where the weapon is relevant to the charge (see People v. Hagen (1978), 63 Ill. App. 3d 944, 380 N.E.2d 954 (loaded revolver recovered in police chase of the defendant from burglarized house admitted in burglary charge where it is probative of the defendant’s intent)). Regardless, however, of the rationale for these cases, since defendant did not have the firearms in his possession when arrested, the household firearms could not be admitted as evidence of the details of his arrest.

In the instant case, the State concedes that expert ballistic tests showed that the firearms found in defendant’s possession were not used to fire the shots at the two victims. Where direct evidence shows that the weapon found in a defendant’s possession was not used in the commission of the offense, normally, it may not be admitted into evidence. (People v. Wade (1977), 51 Ill. App. 3d 721, 729, 366 N.E.2d 528, 534.) Wade presents a fact pattern similar to the present one: the State conceded that ballistic tests showed that the gun sought to be introduced at trial was not the weapon used to commit the offense. Although People v. LeBron (1980), 83 Ill. App. 3d 598, 404 N.E.2d 540, may appear to have reached a contrary result, the appellate court there apparently based its affirmance of the trial court’s admission of a weapon shown not to be the one used to commit the offense because such an introduction was not sufficiently prejudicial. At trial, the actual murder weapon also had been introduced. Furthermore, the defendant, a security guard, was authorized to possess this other gun when arrested. These two factors militated against any prejudicial inference that the weapon found in defendant’s possession showed that he was of bad character, had the propensity to commit the offense or that the gun itself was the one used to commit the offense. Since the firearms sought to be admitted by the State in the instant case are not the ones used to commit the crime, the trial court did not err in prohibiting the State from introducing them when it found that their resulting prejudicial effect would outweigh their probative value, if any. See also People v. Evans (1982), 104 Ill. App. 3d 598, 432 N.E.2d 1285.

Ammunition

The trial court’s order regarding the ammunition deserves separate treatment because some of the ammunition found in defendant's possession was the same caliber as the shells found at the scene of the crime and thus have probative value. The trial court held that unless the State could tie the ammunition found in defendant’s possession with the offense charged through the use of expert testimony, the ammunition could not be admitted. In so doing, the trial court abused its discretion because circumstantial evidence suffices to connect physical evidence with the offense charged. See People v. Cartalino (1982), 111 Ill. App. 3d 578, 444 N.E.2d 662.

Evidence may be admitted at trial which fairly tends to prove the offense charged and circumstances may be put into evidence which tend to make the proposition at issue more or less probable. (People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628; People v. Perry (1980), 81 Ill. App. 3d 422, 429, 401 N.E.2d 1263, 1269, cert. denied (1981), 451 U.S. 983, 68 L. Ed. 2d 839, 101 S. Ct. 2313.) Physical items may be admitted into evidence only where they are connected to the defendant and the charged offense. (People v. Free (1983), 94 Ill. 2d 378, 415; People v. Larson (1980), 82 Ill. App. 3d 129, 140, 402 N.E.2d 732, 741; People v. Fletcher (1978), 66 Ill. App. 3d 502, 514, 383 N.E.2d 1285, 1295.) The proof of the connection may be by direct or circumstantial evidence. (People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628; People v. Fletcher (1978), 66 Ill. App. 3d 502, 515, 383 N.E.2d 1285, 1295.) Whether physical evidence is relevant lies within the discretion of the trial court and its decision will be affirmed absent an abuse of discretion. People v. Miller (1981), 98 Ill. App. 3d 453, 458, 424 N.E.2d 624, 628.

Here the trial court may have confused the issue of whether the ammunition was admissible with the strength of its probative value. (See People v. Free (1983), 94 Ill. 2d 378, 416-17.) Although a jury may find that defendant’s possession of ammunition of the same caliber as that used to commit the charged offense has little probative weight in determining defendant’s guilt, that does not affect the admissibility of the ammunition. Its commonality with that found at the scene of the crime suffices to establish its probative value. For example, in People v. Murphy (1972), 3 Ill. App. 3d 345, 277 N.E.2d 721, the court held that ammunition taken from the defendant’s possession was relevant in connecting that defendant to a gun which the ammunition fit found in a car. (3 Ill. App. 3d 345, 350, 277 N.E.2d 721, 724-25; see also People v. Miller (1981), 98 Ill. App. 3d 453, 424 N.E.2d 839.) In People v. Cartalino (1982), 111 Ill. App. 3d 578, 444 N.E.2d 662, the defendant objected to the introduction of ammunition found in his codefendant’s pocket when arrested three days after the incident for which he was charged. The appellate court found that the ammunition was properly admitted into evidence because the weapon in the case could fire the bullet recovered in the victim’s apartment and the ammunition found in the defendant’s codefendant’s pocket. 111 Ill. App. 3d 578, 586-87, 442 N.E.2d 662, 670.

In the instant case, since defendant possessed ammunition of the same caliber as that recovered from the scene of the crime, it links defendant to the crime. (Cf. People v. Smith (1952), 413 Ill. 218 (error to let the State cross-examine the defendant about ammunition found in his car where another weapon, apparently of a different caliber, had been determined to be the weapon used in the offense).) The jury has the duty to assess this evidence, determine its probative weight, and draw reasonable inferences from it. Therefore, the trial court erred in granting the motion to suppress the introduction of the ammunition into evidence.

In sum, the trial court properly granted defendant’s motion to suppress the books and newspapers found in defendant’s home. While the trial court properly ruled the firearms, which could not have been used to commit the crimes were therefore inadmissible, their relationship to defendant’s false statement renders them admissible to establish the false statement. The ammunition compatible with that found at the scene of the crime was erroneously suppressed.

The order of the circuit court of Du Page County is affirmed in part, reversed in part and remanded.

Affirmed in part, reversed in part and remanded.

SEIDENFELD, P.J., and NASH, J., concur.


author: JUSTICE ALLOY

text:
    THE VILLAGE OF PAWNEE, Plaintiff-Appellant and Cross-Appellee, v. GEORGE H. KNOSTMAN, JR., et al., Defendants-Appellees and Cross-Appellants.
    Fourth District
    No. 4—82—0733
    Opinion filed June 16, 1983.

      Alexandra De Saint Phalle, of Londrigan & Potter, P.C., and Pfeifer & Kelty, P.C., both of Springfield, for appellant.
    Edward F. Casey, of Casey and Casey, of Springfield, for appellee Azzarelli Construction Co.
   JUSTICE ALLOY

delivered the opinion of the court:

The village of Pawnee seeks reversal of the circuit court’s order dismissing, with prejudice, its complaint against Azzarelli Construction Company (hereinafter Azzarelli), for failure to comply with the court’s orders respecting the furnishing of a bill of particulars to Azzarelli. (Ill. Rev. Stat. 1981, ch. 110, par. 37, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 607.) Pawnee filed a motion to vacate the court’s dismissal orders, which was denied, and from the denial of its motion to vacate this appeal is taken. Defendant Azzarelli has filed a cross-appeal, seeking review over the court’s denial of its motion to dismiss Pawnee’s second amended complaint for failure to state a cause of action. Pawnee has filed a motion to strike the cross-appeal as untimely, which we have taken with the case.

The essential background facts must, of necessity, be stated at some length. Pawnee filed its original complaint against Azzarelli, George Knostman, Jr., and Fidelity & Deposit Company of Maryland. The suit grew out of Knostman and Azzarelli’s work on Pawnee’s sanitary sewer system in the early 1970’s. Knostman was hired by Pawnee to plan and supervise the construction of a new sanitary sewer system. Azzarelli was contracted to do the construction on the system, pursuant to Knostman’s plans and specification and under his supervision and control. The counts of the complaint against Knostman alleged that he fraudulently prepared pay estimates without examining the work to determine whether it met contractual specifications, that he negligently designed, supervised and inspected the system, and that he breached his contract to design, supervise and inspect the system. The complaint set forth 11 defects in the system which were alleged to be the result of Knostman conduct. One million dollars in damages were requested, the alleged costs of repairing the sanitary sewer system.

In the counts of the original complaint directed against Azzarelli, Pawnee alleged that Azzarelli was negligent in its construction of the system and that it breached its contract in failing to perform its contract in a workmanlike manner. Pawnee alleged that as a result of Azzarelli’s negligence and breach of contract the system was defective, specifying the same 11 defects set forth in the counts against Knostman. The final count of the original complaint sought recovery against Fidelity, on its bond, for the same defects in the system.

After initial discovery and the filing of motions to dismiss by the defendants, Pawnee amended its complaint several times. Pawnee’s second amended complaint, that is partially in issue before us, was filed on October 24, 1980. It contained two counts against Azzarelli in which it was alleged that Pawnee had a contract with Azzarelli which provided that the construction work would be done according to the plans and specifications prepared and furnished by Knostman. Construction was to be performed under Knostman’s supervision and control. Count IV of the second amended complaint (hereinafter complaint) alleged that Azzarelli breached its duty to construct the system in a skillful and careful manner by constructing it in an unskillful and negligent manner. Count IV further alleged that the result of Azzarelli’s unskillful, careless and negligent construction was a defective system. It specified the following defects:

“A. Numerous joints are open.
B. Infiltration in the system is excessive.
C. Vertical alignment is irregular.
D. Structural failures exists [sic] in certain areas.
E. Grade sags exist in certain areas.
F. Cross connection exists between the sanitary sewer line and a storm sewer line.
G. Certain unapproved materials were used.
H. Certain pipes were placed incorrectly.
I. Sand filter system does not function.
J. Aeration system is inadequate.
K. Chlorination system is inadequate.
L. Existence of seepage through lagoon dikes.”

Count V of the complaint, also against Azzarelli, alleged that the contract between Pawnee and Azzarelli provided that Azzarelli would perform the contract in a workmanlike manner. It also alleges that Azzarelli did not perform the contract in that it did not construct the system in a workmanlike manner, with the result that the system was not fit for the purpose to which it was intended. This was the result of the presence of defects, those being the defects set forth above as A through L.

Azzarelli responded with its motion to dismiss the second amended complaint, which, in pertinent part, argued that the complaint failed to state a cause of action and that conclusions, rather than facts, were alleged. On January 9, 1981, the court (Judge Richard Cadigan) denied Azzarelli’s motion to dismiss, thus upholding the sufficiency of Pawnee’s complaint against it. The court ordered Azzarelli to answer or otherwise plead within 30 days. Three days later, on January 12, 1981, Azzarelli filed a notice of demand for bill of particulars. In pertinent part, the defendant requested the following:

“COUNT IV
1. Furnish legible copies of the 13 pay estimates described in Paragraph 10 of Count IV.
2. Specify the information in each of the pay estimates which is false and untrue.
3. Specify the true facts with respect to the false and untrue information in each of the pay estimates.
4. With respect to claimant’s allegation that this defendant performed its contract in an unskillful and negligent manner, state the date, place and precise conduct which plaintiff contends was unskillful and negligent.
COUNTV
With respect to plaintiff’s allegation that this defendant failed to perform its contract in a workmanlike manner, state the date, place and precise conduct which plaintiff contends constituted unworkmanlike performance.”

No objection was made by Pawnee to this demand for particulars. Section 37(4) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 37(4)) provided:

“If the party on whom a demand for a bill of particulars has been made believes that the party demanding it is not entitled to the particulars asked for, he may move the court that the demand be denied or modified.”

No such motion was presented by Pawnee in response to the demand for a bill.

Discovery proceeded throughout the rest of 1981 among all parties to the action. So far as the record shows, no response was made by Pawnee to the demand for a bill of particulars, nor did Azzarelli make further demand or seek compliance with its original demand until now. Then, on January 18, 1982, slightly over a year after the demand for a bill had been filed, Azzarelli filed a motion to strike counts IV and V of the complaint, as a sanction for Pawnee’s failure to provide the bill, as demanded. It recited that a written request for compliance had been made on November 5, 1981, without result. Hearing on the motion for sanctions was scheduled for February 10, 1982. On February 10, counsel for Pawnee, in the person of Thomas Kelty, filed a response to the demand for a bill of particulars. Pawnee provided copies of the pay estimates requested and indicated the information therein which was false. As to the demand for particulars respecting Azzarelli’s negligent and unworkmanlike performance, the response enclosed “maps, correspondence, copies of photographs, engineering reports, engineering drawings and other documents relating to the condition of the project at various intervals from 1972 through the present date.” Pawnee also offered to make available numerous photographs for inspection and copying. The referenced documentation was apparently brought by counsel to the hearing and preferred to Azzarelli, although because of the court’s ruling, never filed in the record. The trial court rejected the tendered documents as sufficient compliance with the demand for a bill of particulars and ordered the plaintiff to furnish a bill of particulars within 28 days.

It was shortly thereafter, according to affidavits later filed with the court, that Pawnee’s attorney Thomas Kelty assigned the case to his newly hired associate, Robert Jarka, for the purpose of proceeding with discovery and pleading matters. On April 7, 1982, when no further bill of particulars had been filed by Pawnee as ordered on February 10, 1982, Azzarelli filed another motion to strike the counts against it, based upon Pawnee’s failure to file the bill. The motion recited that Azzarelli’s counsel had written to Kelty, for Pawnee, reminding him of the order regarding the bill of particulars. A hearing on the renewed motion for sanctions was set for May 14, 1982, at which time attorney Jarka, for Pawnee, appeared and was given an additional 14 days to comply by filing a bill. No bill of particulars was filed within the 14 days, and on June 2, 1982, Azzarelli filed its second renewed motion to strike counts IV and V, reciting a letter from Jarka indicating he would not have the bill by May 28, the day set in the previous court order. The hearing on the second renewed motion for sanctions was set for June 15, 1982, and on that day, Judge Mann gave Pawnee an additional 14 days to file the bill. Mann also indicated that if the bill was not filed within the 14 days, the second amended complaint would be stricken. When no bill of particulars was filed within the time given, Azzarelli requested that the counts of the complaint against it be stricken. On July 7, 1982, no bill having been filed by Pawnee, the court entered its written order striking counts IV and V.

On July 21, Azzarelli filed a motion to dismiss counts IV and V with prejudice. In support of its motion, Azzarelli recited the history of Pawnee’s failure to furnish the ordered bill of particulars. Hearing on the motion was held on August 16, 1982, and attorney Jarka, for Pawnee, appeared and made no objection to entry of an appealable order dismissing those counts of the complaint with prejudice. An order dismissing those counts with prejudice was entered on August 17, 1982.

Pawnee then filed two motions relating to its complaint against Azzarelli on September 13, 1982. The motions were filed by Thomas Kelty, as Jarka had been removed from the case. The first motion was a motion to reconsider the ruling of February 10, 1982, wherein the court rejected the documents tendered by Pawnee as sufficient compliance with the demand for particulars. The motion contained an assurance that, because of the technical nature of the documents, Pawnee will provide expert testimony to aid the trier of fact in drawing inferences from the documents. The second motion, and the focus of this appeal, was Pawnee’s motion to vacate judgment and rescind orders, directed at the August 16 order dismissing counts IV and V with prejudice and at the July 7 order striking the same counts. The basis for the motion to vacate was the alleged disability of Robert Jarka, the attorney who had been responsible for the case from April 5, 1982, until August 16, 1982. Attached to the motion was Jarka’s affidavit, wherein he indicated that as a result of an alcoholic condition he ignored the court’s orders to comply with the demand for a bill of particulars. He further stated that he concealed his failures from his employer, the firm representing Pawnee. He stated that he did not consult either Pawnee or the partners of the firm regarding discovery, and further that he misinformed the partners of the status of the various sanction motions.

On October 15, 1982, Azzarelli filed its objection to the motion to vacate and the motion to reconsider. The motion recited the lengthy failure of Pawnee to produce a sufficient bill of particulars and asserted that such failure was not the result of the alleged disability of Robert Jarka. Attached to the motion was another affidavit. In this affidavit, Jarka contradicts and denies much of his previous affidavit, which had been offered by Pawnee in support of its motion. In this affidavit, Jarka states that he was coerced into signing the prior affidavit and that he did so without carefully reading it. He denies neglecting discovery in the Pawnee suit and denies concealing the status of the matter from his firm. He states further that he made attempts to obtain the particulars requested by Azzarelli, but contends that he was unable to get them because the village could not supply them. He states that he did fulfill various duties with the firm and did so satisfactorily, blaming the insufficiency of response in this case on the lack of the requested evidence. These post-judgment matters were set for hearing on October 26,1982.

The day prior to the scheduled hearing, Pawnee filed additional documents with the trial court. Included in the submission was a bill of particulars for Azzarelli, along with affidavits from various persons which contradicted specifics of the second Jarka affidavit. The bill of particulars detailed numerous defects in the sanitary sewer system which were the result of Azzarelli’s negligent and unworkmanlike performance. It indicated that evidence concerning the defects is

“contained in the testimony of the officers and employees of the Plaintiff Village and in technical reports prepared by the experts who will be called by Plaintiff to testify as to inferences and opinions derived from such facts concluding that the system as constructed does not meet the plans, specifications or applicable standards.
Overall the expert will give the opinion that work done by Azzarelli Construction Company fell far below the industry standards required of a qualified contractor on a project of this type.”

Affidavits filed on October 25, 1982, from Pawnee specified individual instances of improper construction and workmanship during construction of the sewer by Azzarelli.

Judge Richard Mann heard the motion matters the following day and on October 27, 1982, he denied the motion to reconsider and the motion to vacate. In a letter explaining his decision the judge indicated his belief that Pawnee should have had the requested information available to it from early in the case. He noted that the only movement by Pawnee on the demand for a bill came as a result of the threat of sanctions, and further that the response, being the document submission of February 10, 1982, was defective. He pointed out that the initial delay came at a time prior to attorney Jarka’s participation. He found that the “protracted failure” of Pawnee to comply with the demand could not be blamed solely on Jarka. He opined that Pawnee should not have begun litigation without sufficient facts and evidence with which to proceed, and he noted that Azzarelli had been put to considerable expense because of Pawnee’s delays in complying. He recited the repeated failure of Pawnee and its attorneys to comply with the request for a bill of particulars and he stated the necessity for sanctions.

Pawnee now appeals from the October 27 ruling, denying its motion to vacate the judgments of dismissal with prejudice, as well as from the July 7 order striking the pleadings, the August 16 order striking the complaint with prejudice, and the October 27 order denying the motion to reconsider. Its notice of appeal was filed on November 3, 1982. Azzarelli filed its cross-appeal on November 24, 1982, seeking review over the trial court’s denial of its motion to strike counts IV and V as failing to state a cause of action and failing to allege ultimate facts. A motion to strike the cross-appeal, claiming lack of jurisdiction, has been taken with the case. We move directly to the principal issue of the appeal, and in the process of our analysis we shall address the various motions and side issues advanced by the parties.

The central issue before us is whether the court abused its discretion in refusing to vacate the dismissal, with prejudice, of Pawnee’s complaint against Azzarelli. The dismissal with prejudice was a sanction imposed for Pawnee’s failure to comply with the court orders directing it to respond to Azzarelli’s demand for a bill of particulars. The procedural history of the demand for a bill, and the response or lack thereof, has been set forth in detail previously in this opinion. The Illinois Supreme Court, in Bejda v. SGL Industries, Inc. (1980), 82 Ill. 2d 322, 412 N.E.2d 464, clearly set forth the abuse of discretion standard as that applicable and governing dismissals for failure to comply with an order of the trial court requiring the filing of a bill of particulars. In Bejda the court determined that the power to sanction, by dismissal, was a power inherent in the court’s authority to govern its own business. (82 Ill. 2d 322, 329.) Although the court set forth the appropriate standard to be applied, as well as its origin, the opinion does not delineate the appropriate factors to be considered when reviewing such action by the trial court. The appellate court opinion in Bejda had indicated some considerations (Bejda v. SGL Industries, Inc. (1979), 73 Ill. App. 3d 484, 487, 392 N.E.2d 38), but the Illinois Supreme Court avoided any discussion of them by deciding that there was an abuse of discretion because no bill of particulars was required in that case. Since in the instant case we determine that Azzarelli was entitled to a bill of particulars, we must proceed beyond the supreme court’s opinion in Bejda and determine the appropriate considerations in reviewing the dismissal entered by the trial court. In this area, of necessity, each case must be determined on its own facts and circumstances.

Since dismissal with prejudice is a drastic sanction, it should be utilized only as a last resort, and only where there has been a deliberate, contumacious, or unwarranted disregard of the court’s authority. (73 Ill. App. 3d 484, 487.) Only in response to such behavior is a court justified in dismissing with prejudice and thereby depriving a party of a hearing on the merits of its claim. In the instant case, the record does not establish such contumacious behavior on the part of the village of Pawnee. Contrary to the findings of the trial court, the record indicates that any wilful failure to furnish particulars, as ordered, was largely that of attorney Jarka. Prior to his assuming responsibilities, the village had responded to the demand with its submission of February 10, 1982. At that time, numerous documents, evidencing alleged defects and failures of the system, were proffered by attorneys for Pawnee. That prior effort toward compliance does not indicate a disregard for the court or show contumacious behavior on the part of Pawnee, and the fact that the submission was rejected by the court as inadequate does not detract from the attempt at compliance made by Pawnee and its attorneys at that time. Nor does the fact that the submission occurred almost one year from the filing of the demand for particulars undermine Pawnee’s February 1982 response. It is noted that Azzarelli had made only one attempt to prod Pawnee into submitting the particulars, and that was made in November 1981, almost 11 months from the filing of its demand. During that period, meanwhile, discovery was proceeding among all parties. When further prodded in mid-January 1982 by Azzarelli’s motion for sanctions, Pawnee promptly responded with the documents detailing the system’s insufficiencies. Viewed in perspective, the record indicates that prior to Jarka’s assumption of duties in late February 1982, Pawnee had made efforts at compliance, albeit substantively insufficient. Furthermore, the record also indicates that subsequent to Jarka’s departure, in August 1982, Pawnee, through its counsel, resumed efforts at compliance with the demand for particulars, filing on October 25, 1982, a response, with details of specific defects and affidavits concerning specific construction deficiencies. Thus, it is clear from the record that the failure to respond as ordered, and any disregard for the court’s authority, occurred during the period of time, roughly six months, during which Jarka had responsibility for the case. It is also to be noted that Jarka was appearing at the scheduled hearings, and requested several continuances to obtain the material. There was in his continued adherence to the required appearances at least some effort to comply with the procedures and demands of the court. Admittedly, there was a complete failure to produce the particulars as ordered, but without getting involved in the charges and countercharges surrounding Jarka and his problems, it is noted that he had problems. His final appearance in August, wherein he appeared on behalf of Pawnee and submitted, without objection, to dismissal with prejudice of his client’s case is itself indicative of some impairment of his ability to serve his client’s interests.

Certainly, it cannot be denied that Jarka’s superiors in the firm are responsible for his actions and failures, and it is also true that a party is generally held accountable and responsible for the actions of his counsel. It has been recognized, however, that injustice may result where punishment is visited upon the party for what, in fact, are the acts and omissions of counsel. (People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, 928, 373 N.E.2d 530; Conover v. Smith (1974), 20 Ill. App. 3d 258, 260, 314 N.E.2d 638; Federenko v. Builders Plumbing Supplies, Inc. (1970), 123 Ill. App. 2d 129, 137, 260 N.E.2d 41.) In the case at bar, the record fails to indicate that the failures to comply with the court’s orders were the result of the village’s disregard or lack of diligence. The failures were those of the attorneys representing the village. The unjust result in sanctioning a party severely for the acts of counsel is heightened here, where the real parties in interest are the citizens of the village of Pawnee, and the subject matter is one which implicates vital concerns of public health and safety.

Finally, consideration must also be given to the issue of prejudice to Azzarelli as a result of the failures to comply by Pawnee’s counsel. So far as the record shows, this is not a case where the delay caused by the failures has detrimentally affected Azzarelli’s position on the merits of the claim. The primary prejudice noted by the court was the cost to Azzarelli of repeated appearances. We agree on this, but feel that appropriate sanctions can be fashioned to alleviate this prejudice, while at the same time affording Pawnee a hearing on the merits. Therefore, we find that the court erred in refusing to vacate its dismissal with prejudice of counts IV and V against Azzarelli. That action is reversed. In so concluding, we direct that upon remandment, the circuit court is to enter appropriate sanctions upon Pawnee and its attorneys for their failures to comply with the court’s orders respecting the bill of particulars. Appropriate sanctions should include an assessment of costs and attorney fees incurred with respect to the motions and hearings seeking compliance, as well as an assessment of costs and attorney fees incurred by Azzarelli on this appeal, excluding the cross-appeal. The exact amount of fees and costs shall be determined upon remandment.

Furthermore, we find that the court’s action in striking the pleadings of Pawnee was proper and fully authorized, given the lack of response by Pawnee. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 607, formerly Ill. Rev. Stat. 1981, ch. 110, par. 37.) Upon remandment, we direct that reinstatement of the complaint be granted at such time as Pawnee has adequately responded to the demand for particulars, or to any modified demand, whether as modified by the court, upon objection, or by the parties, upon agreement. In this regard, we make no determination as to the adequacy of the October 25, 1982, response filed by Pawnee. The sufficiency of that offering has not been ruled upon by the trial court, nor has Azzarelli been given an opportunity to present its arguments with respect to that material. We remand for further proceedings at the trial court level.

Having determined that reversal of the dismissal is appropriate and necessary in the interest of justice, we shall nevertheless address other arguments of the parties on the issue. We cannot agree with Pawnee’s contention that the submission of February 10, 1982, was a sufficient and adequate bill of particulars. Under the rules of civil procedure, a party is entitled to a bill of particulars, when the complaint it is asked to respond to is wanting in details. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 607(a).) The effect of a bill of particulars is to limit and restrict the pleader to proof of the particular cause of action or defense mentioned therein. (Hemingway v. Skinner Engineering Co. (1969), 117 Ill. App. 2d 452, 458, 254 N.E.2d 133.) Pawnee’s claims sounded in tort, for negligent construction, and in contract, for unworkmanlike performance. After its first amended complaint was upheld, Azzarelli filed its notice of demand for bill of particulars, requesting, in pertinent part, further detail as to the precise conduct of its agents which was alleged to have been negligent and unskillful. While the rules allow for objections to a demand for particulars (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 607(d)), Pawnee filed no such objection or request to modify. Rather, its initial response was the February 10, 1982, submission of maps, correspondence, photographs and engineering reports. There was no attempt made by Pawnee to specify or detail the relevance of the mass of documents to its complaint or to the demand for particulars. The information concerning Azzarelli’s performance may have been in the documents, but neither Azzarelli or the court had any way of knowing or discerning where or in what way the information given related to Azzarelli’s actions and its quest for more detail in pleading. The submission did not particularize the allegations of the complaint or provide coherent detail thereon. It was insufficient, and the court properly rejected it as such.

Pawnee also argues that since its second amended complaint was sustained on Azzarelli’s motion to dismiss, it is “at least arguable” that Azzarelli was not entitled to receipt of a bill of particulars in the first place. While it may be arguable, the argument was not presented to the trial court. By failing to object to the demand or to seek a modification of the bill of particulars, Pawnee has waived any argument that a proper objection could have been made based upon the sufficiency of its complaint. We would add, in passing, that under our liberal rules of pleading, a complaint may state a cause of action, yet remain so wanting in detail as to entitle the opposing party to a bill of particulars.

We now turn to the issues raised by cross-appeal. Azzarelli’s cross-appeal from the denial of its motion to dismiss the second amended complaint was filed on November 24, 1982, within 30 days after the court’s action in denying Pawnee’s motion to vacate judgment and rescind the dismissal order. Rule 303(a) of the Supreme Court Rules (87 Ill. 2d R. 303(a)) provides for the filing of notice of cross-appeal within 10 days after service upon the party of the notice of appeal, or within 30 days after entry of judgment, “whichever is later.” In the instant case, the cross-appeal was filed within 30 days after the entry of final judgment in the case, that being the October 27, 1982, order denying the motion to vacate. The notice of cross-appeal was timely filed under Rule 303(a). Pawnee’s contention that Azzarelli waived its right to appeal by not filing within 30 days of the denial of its motion to dismiss is not well taken. At that time there was no final judgment in the case. The requisite finality, triggering appellate time limitations, occurred on October 27, 1982. Bitzer Croft Motors, Inc. v. Pioneer Bank & Trust Co. (1980), 82 Ill. App. 3d 1, 16-17, 401 N.E.2d 1340.

It is also established that Azzarelli, as appellee, can sustain the judgment on any basis in the record. (Huber v. Watts (1982), 110 Ill. App. 3d 614, 616-17, 442 N.E.2d 969.) In its attempt to do so in the case at bar, Azzarelli argues that the second amended complaint, in its counts against it, was insufficient (1) in failing to allege that Azzarelli had failed to follow the plans and specifications and (2) in alleging conclusions rather than ultimate facts. The second argument is related to the first, for Azzarelli contends that Pawnee failed to plead breach of Azzarelli’s duty to follow the plans and specifications. The crux of the argument is the alleged failure to specifically or generally set forth Azzarelli’s failure to follow the plans and specifications. Our review of the second amended complaint, however, finds that the allegation of breach is contained therein. Pawnee, in paragraph 8 of count IV, alleges that it had a written contract with Azzarelli to construct the sanitary sewer system, and that among other things the contract provided that the construction should be performed according to the plans and specifications prepared and furnished by Knostman, which plans and specifications were made a part of the contract. The contract and the plans and specifications were specifically pleaded by Pawnee. The duty imposed upon Azzarelli, by contract, was to perform in accordance with the plans and specifications furnished by Knostman. If it performed according to them, and its work was done in a workmanlike manner, then it fulfilled its obligations. The duty by which its conduct is to be judged in count IV, the negligence count, is that set forth in the contract. As to count V, it is true that it does not allege Azzarelli’s failure to follow the plans and specifications, but rather its failure to perform in a workmanlike manner. Either theory for recovery is available to Pawnee. (Georgetown Township High School District No. 218 v. Hardy (1976), 38 Ill. App. 3d 722, 723-24, 349 N.E.2d 88; Robert G. Regan Co. v. Fiocchi (1963), 44 Ill. App. 2d 336, 340, 194 N.E.2d 665.) That Pawnee chose to base its contract claim not on a breach of the plans and specifications, but on the failure to perform in a workmanlike manner, is not a basis for dismissal. There is no insufficiency because of its choice to proceed on that basis, and not on the plans and specifications basis. Count V sufficiently states a cause of action for breach of contract, in failure to perform in a workmanlike manner, and count IV sufficiently states a cause of action for negligence, based upon breach of duties set forth in the contract, including the duty to perform in accordance with the plans and specifications. The contractual basis of the duty is alleged with sufficient particularity. Moreover, as has been often held, justice would not be served by affirming a dismissal of a judgment against a party on the basis of a pleading defect which could be remedied by amendment. (See Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 532, 391 N.E.2d 177; Horwath v. Parker (1979), 72 Ill. App. 3d 128, 135, 390 N.E.2d 72.) The question of the applicability of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, is an argument brought forth for the first time on appeal and not fully or adequately briefed by the parties. Objections on that basis can be made to the trial court, upon remandment, with a full and sufficient treatment given the issue. There is no need for us to decide the matter at this time.

Finally, to conclude matters, we note our denial of the motion to strike the cross-appeal and the denial of the motion to supplement the record on appeal with documents not filed in the court below.

On the basis of our discussion, we reverse the trial court’s decision to deny Pawnee’s motion to vacate the dismissal with prejudice order. The dismissal order is hereby vacated. Sanctions should be imposed, upon remandment, in accordance with the views expressed previously. We affirm the court’s action in striking the pleadings, as a sanction, but direct that reinstatement be granted to Pawnee at such time as it has adequately responded to the demand for bill of particulars.

Reversed, in part, and affirmed in part, with a remandment and directions upon remandment.

SCOTT and HEIPLE, JJ., concur.