author: JUSTICE O’CONNOR

text:
      In re COOK COUNTY GRAND JURY.—(The People of the State of Illinois, Petitioner-Appellee, v. Constantine August Taddeo et al., Respondents-Appellants.)
    First District (1st Division)
    Nos. 82—1178, 82—1179 cons.
    Opinion filed March 21, 1983.

      Santo J. Volpe and Allan A. Ackerman, of Ackerman and Egan, Ltd., both of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Gregory G. Thiess, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County holding Constantine August Taddeo and Joseph Bronge, two grand jury witnesses (hereinafter referred to as defendants), in contempt of court for refusing to testify before the grand jury. For the reasons stated below, we affirm in part, reverse in part and remand for further proceedings.

Defendants were called before the Extended March 1982 Cook County Grand Jury investigating the disappearance of Salvatore Pullia. Both asserted their fifth amendment privilege against self-incrimination and refused to answer the questions asked of them. On April 30, 1982, the State requested a grant of immunity (111. Rev. Stat. 1981, ch. 38, par. 106 — 1) for each witness. Both were granted immunity pursuant to court order.

Appearing before the grand jury with grants of immunity, both again refused to answer the questions put to them. Instead, they objected, stating:

“I respectfully refuse to answer the questions because your inquiry is based upon illegal electronic surveillance obtained by violation of Title 18 of the'United States Code, Section 2510 and the following sections and in particular Section 2515 and . hereby make a claim according to Title 18, United States Code, Section 3504.”

On May 12, 1982, the State presented petitions and affidavits to the circuit court for a rule to show cause for each defendant. They replied both in writing and at the hearing for contempt that they were not in violation of the circuit court’s immunity order because the grand jury questions were based on illegal electronic surveillance. (18 U.S.C. sec. 2510 et seq.; sec. 3504 (1976).) The State argued their contentions were “bare claims” not sufficient to place a burden on the State to disprove the contentions of illegal surveillance. The assistant State’s Attorney also stated:

“On the other hand, your Honor, I can say under oath as an officer of the Court, if need to be sworn in, the State has not applied for nor have they used any eavesdropping devices to obtain any evidence which is the basis for any of the questions for either [defendant].
The State has not been provided with any information from the Federal Government that they have obtained by electronic eavesdropping or wiretapping which is the basis for any of our questioning of [the defendants].”

During the hearing, counsel for defendants acknowledged that the claims were not substantiated, but that they could be verified.

The circuit court found the State’s in-court oral statement adequately met defendants’ claim of illegal electronic surveillance. It then held defendants to be in contempt of court unless they purged themselves by testifying before the grand jury. Upon the representations of counsel that defendants would stand on their claims, the circuit court found them in contempt of court.

An oral motion to vacate the orders on immunity and contempt, the petitions for rule to show cause order and to quash the grand jury subpoenas was denied. Enforcement of the order of contempt was stayed pending this appeal.

Two issues are raised by defendants: (1) whether the statutory scheme for granting immunity in Illinois to “material witnesses” is constitutional; and (2) whether defendants were properly held in contempt of court where the State made an oral, in-court denial of the witnesses’ claims of illegal electronic surveillance.

Defendants argue that section 106 — 1 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 106 — 1), granting immunity to a “material witness,” is unconstitutional, violating the fifth amendment of the United States Constitution and article I, sections 2 and 10 of the Illinois Constitution. It is argued that the granting of immunity to a “material witness” under this statute is not coextensive with the privilege against self-incrimination. (See Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.) Defendants’ position is that the constitutional privilege available to a “person” is not the same as the statutory grant of immunity to a “material witness.”

The immunity statute, section 106 — 1, provides:

“In any investigation before a Grand Jury, or trial in any court, the court on motion of the State may order that any material witness be released from all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce.”

The effect of this grant of immunity is stated in section 106 — 2 (111. Rev. Stat. 1981, ch. 38, par. 106 — 2):

“Such order of immunity shall forever be a bar to prosecution against the witness for any offense shown in whole or in part by such testimony or other evidence ***.”

In Kastigar, the Supreme Court determined that the Federal immunity statute (18 U.S.C. secs. 6001 through 6005 (1972)) was coextensive with the fifth, amendment, stating:

“*** While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. ***.” 406 U.S. 441, 453, 32 L. Ed. 2d 212, 222, 92 S. Ct. 1653, 1661.

It is clear that a grant of transactional immunity is provided for by the language of sections 106 — 1 and 106 — 2. (People ex rel. Cruz v. Fitzgerald (1977), 66 Ill. 2d 546, 363 N.E.2d 835.) A grant of immunity under these statutes, then, results in complete protection against prosecution for the witness. The Illinois immunity statute is, therefore, coextensive with both the United States and Illinois constitutions.

The use of the term “material witness” does not, as defendants appear to argue, disturb the scope of the immunity granted under the statute. Anyone receiving immunity pursuant to this statute will have transactional immunity, protection broader than that required by the fifth amendment. (Kastigar v. United States.) Also, there is no violation of due process and equal protection (see Ill. Const. 1970, art. I, sec. 2) in distinguishing between a “material” or “immaterial” witness. The former has the protection of the statutory immunity, while the latter is protected by the exercise of the fifth amendment privilege against self-incrimination.

Defendants further argue that section 106 — 1 is vague and constitutionally defective because it does not define what constitutes a “material witness” and how such a determination is made. We disagree.

A plain reading of section 106 — 1 reveals that it is the court making the order of immunity that determines a witness is “material.” (Cf. In re Adams (1976), 64 Ill. 2d 269, 356 N.E.2d 55; In re Grothe (1965), 59 Ill. App. 2d 1, 208 N.E.2d 581; Ill. Rev. Stat. 1981, ch. 38, par. 156 — 2 (“material witness” in the Uniform Act to secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings).) In discussing the production of documents subject to a grand jury’s subpoena duces tecum, our supreme court in People v. Dorr (1970), 47 Ill. 2d 458, 265 N.E.2d 601, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527, quoted a pertinent statement made in People v. Allen (1952), 410 Ill. 508, 517, 103 N.E.2d 92, cert. denied (1952), 344 U.S. 815, 97 L. Ed. 635, 73 S. Ct. 9 (47 Ill. 2d 458, 462-63):

“ ‘In litigated cases, materiality can be fixed with a relatively high degree of precision by reference to the issues formulated in the pleadings. No standard of comparable certainty exists with respect to an inquiry by a grand jury. The very purpose of such an inquiry is to uncover matters previously unknown to the investigating agency. It is not necessary that a “cause” or “specific charge” be pending before the grand jury as a condition to its right to command the production of documents. (Hale v. Henkel, 201 U.S. 43; Wilson v. United States, 221 U.S. 361.) Such a requirement, as pointed out in Hale v. Henkel, would sharply curtail the historic function of the grand jury. “[RJelevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.” Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186.
Unless the effectiveness of the grand jury in the administration of criminal law is to be drastically impaired, the most that can be required as a standard of materiality is as precise a statement of a subject under investigation as the circumstances permit.’ ”

In the case at bar, the trial court in camera examined the grand jury foreman before making a determination that defendants were indeed “material witnesses.” In response to this examination, the foreman stated defendants were material to the grand jury investigation and that they were necessary for the conduct of the proceedings. Without delving into the exact nature of the grand jury’s investigation, the trial court was thus able to determine the importance of these witnesses to that investigation. We think the procedure used by the trial court was within the proper exercise of its duties.

Defendants next argue that they were improperly found in contempt of court after they asserted that questions were asked which were the result of illegal electronic surveillance. The refusals by defendants to answer the questions were, as quoted above, based on the protection afforded by Federal statute (i.e., 18 U.S.C. sec. 2510 et seq.) sec. 3504 (1976)). In their brief, defendants argue that these protections can also be found in Illinois law which creates statutory restrictions on eavesdropping. Ill. Rev. Stat. 1981, ch. 38, par. 14 — 1 et seq.) ch. 38, par. 108A — 1 et seq.) see also Ill. Const. 1970, art. I, sec. 6.

Section 2515 implements an exclusionary rule under the strict limits placed on the use of electronic surveillance by title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. sec. 2510 et seq. (1976)). (See Cruz v. Alexander (2d Cir. 1982), 669 F.2d 872, 874, cert. denied (1982), 459 U.S._, 74 L. Ed. 2d 89, 103 S. Ct. 99.) Section 2515 bars from Federal and State courts conversations intercepted by unauthorized wiretapping and evidence derived from such wiretapping. This proscription includes grand jury proceedings. Section 3504 provides a mechanism through which a claim by an aggrieved party that wiretap evidence is being used against him must be affirmed or denied by the government. (18 U.S.C. sec. 3504(a)(1) (1976).) This section was created because it was recognized that while victims of illegal wiretapping may have grounds to suspect such activity, it would be difficult to prove. (669 F.2d 872, 874.) Section 3504, by its terms, applies only to Federal proceedings. 669 F.2d 872, 875; see Vannier v. Superior Court (1982), 32 Cal. 3d 163, 185 Cal. Rptr. 427, 650 P.2d 302; H. Rep. No. 1549, 91st Cong., 2d Sess. 51, reprinted in [1970] U.S. Code Cong. & Ad. News 4007, 4027.

Although defendants principally rely on section 3504 to establish their claims of illegal surveillance, it is clear that Illinois courts are not required to follow the Federal criminal procedure to determine whether evidence has been unlawfully obtained. This does not mean, however, that defendants may not assert these claims in a grand jury proceeding.

Since Gelbard v. United States (1972), 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357, it has been well established that a grand jury witness may refuse to answer questions based on illegal electronic surveillance. The Supreme Court observed that section 2515 “serves not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also ‘to protect the integrity of court and administrative proceedings.’ ” (408 U.S. 41, 51, 33 L. Ed. 2d 179, 188-89, 92 S. Ct. 2357, 2362-63.) The court also noted that a motion to suppress, as a method of enforcing the section 2515 prohibition, “must be made in accordance with the restrictions upon forums, procedures, and grounds specified in sec. 2518(10)(a).” (408 U.S. 41, 61, 33 L. Ed. 2d 179, 194, 92 S. Ct. 2357, 2367.) Section 2518(10)(a) provides that an aggrieved person may move to suppress unlawfully intercepted communication in any trial, hearing or proceeding of any court, Federal or State. 18 U.S.C. sec. 2518(10)(a) (1976).

Illinois has long regulated wiretapping and electronic eavesdropping through statutory schemes. (111. Ann. Stat., ch. 38, par. 14 — 1 et seq., Committee Comments, at 606 (Smith-Hurd 1979).) Article 108A of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 108A — 1 et seq.) entitled “Judicial Supervision of the Use of Eavesdropping Devices” has been modeled after title III of the Federal Omnibus Crime Control and Safe Streets Act. (People v. Satek (1979), 78 Ill. App. 3d 543, 396 N.E.2d 1133, appeal denied (1980), 79 Ill. 2d 628; People v. Monoson (1979), 75 Ill. App. 3d 1, 393 N.E.2d 1239.) The fundamental purpose of these eavesdropping statutes is to prohibit unauthorized eavesdropping and the use of evidence gained by such eavesdropping. (People v. Gervasi (1980), 90 Ill. App. 3d 1117, 414 N.E.2d 91, aff’d in part, rev’d in part (1982), 89 Ill. 2d 522, 434 N.E.2d 1112.) These statutes are considered to be broader in scope than the Federal statutes. People v. Maslowsky (1966), 34 Ill. 2d 456, 464, 216 N.E.2d 669; People v. Satek (1979), 78 Ill. App. 3d 543, 550.

Section 14 — 5 and section 108A — 9 similarly reflect this purpose. Section 14 — 5 provides that “[a]ny evidence obtained in violation of this Article is not admissible in any civil or criminal trial, or any administrative or legislative inquiry or proceeding, nor in any grand jury proceedings; ***.” (111. Rev. Stat. 1981, ch. 38, par. 14 — 5.) Section 108A — 9(a) states “[a]ny aggrieved person in any judicial or administrative proceeding may move to suppress the contents of any recorded conversation or evidence derived therefrom ***.” Ill. Rev. Stat. 1981, ch. 38, par. 108A — 9(a).

We conclude the Illinois statutory scheme provides for a grand jury witness to challenge evidence allegedly obtained through illegal electronic surveillance. To do otherwise would be to emasculate and subvert the clear language of the eavesdropping statutes.

The question then becomes one of procedure: how a claim of illegal electronic surveillance is to be properly raised by a grand jury witness in Illinois.

Section 108A— 9(b) states that a motion to suppress “shall be made before the proceeding unless there was no previous opportunity for such motion.” (111. Rev. Stat. 1981, ch. 38, par. 108A — 9(b).) In People v. Maslowsky, six individuals were served with subpoenas duces tecum directing them to appear before a grand jury. They successfully moved to suppress tape recordings made in violation of the eavesdropping statutes (111. Rev. Stat. 1963, ch. 38, par. 14 — 1 et seq.; ch. 38, par. 108A — 1 et seq., was not in existence at the time) and to quash the subpoenas.

Often, as occurred in this case, a grand jury witness will not have knowledge beforehand of the questions to be asked by a grand jury. Thus, it would be impossible to present a motion to suppress evidence resulting from illegal electronic surveillance prior to appearing before the grand jury. In such an instance, it would be entirely proper to assert the right not to answer questions based upon illegal surveillance. (Gelbard v. United States; 18 U.S.C. secs. 2515, 2518(10)(a) (1976).) Such an assertion would be consistent with the intent of the Illinois eavesdropping statutes.

At this stage of the proceedings, however, to require a motion to suppress, with the attendant reciprocal pleadings and hearing, would impede the progress of the grand jury investigation. Thus, a balance must be struck between the witness’ statutory right not to answer questions based upon illegal electronic surveillance and the interest in unhindered progress of the grand jury’s investigative function. (In re Grand Jury Proceedings (D.C. Cir. 1979), 613 F.2d 1171; In re DeMonte (7th Cir. 1981), 667 F.2d 590.) Moreover, since grand jury witnesses are subject to contempt of court citations, this issue is most likely to arise during hearings instituted by the State in the circuit court. See Gelbard v. United States (1972), 408 U.S. 41, 60, 33 L. Ed. 2d 179, 194, 92 S. Ct. 2357, 2367.

In those hearings, defendants are in the posture of defending themselves in contempt proceedings. We believe that at such hearings the State should be required to affirm or deny the assertions of illegal electronic surveillance. Such an answer should be in the form of an affidavit by a responsible government official. In re Korman (7th Cir. 1973), 486 F.2d 926, 931; see In re DeMonte; In re Grand Jury Matter (3d Cir. 1982), 683 F.2d 66. But cf. United States v. Stevens (5th Cir. 1975), 510 F.2d 1101 (unsworn oral and written denials of illegal surveillance were sufficient).

Requiring such an answer will allow a grand jury witness the opportunity to defend his or her refusal to testify before the grand jury. A denial of illegal electronic surveillance or an admission of authorized surveillance leaves the witness in the position of testifying or facing an order of contempt. After the admission of lawful surveillance, the witness may request limited access to the documents submitted by the government to support its claim. (In re DeMonte (7th Cir. 1981), 667 F.2d 590, 596; In re Lochiatto (1st Cir. 1974), 497 F.2d 803. But cf. In re Persico (2d Cir. 1974), 491 F.2d 1156, cert. denied (1974), 419 U.S. 924, 42 L. Ed. 2d 158, 95 S. Ct. 199 (grand jury witness not entitled to a plenary hearing to test the legality of surveillance).) The Seventh Circuit found that “[djelay in grand jury proceedings will not be appreciably increased” (667 F.2d 590, 599) and noted there is an inherent delay in the contempt hearing itself (667 F.2d 590, 599 n.23). If, in the exercise of the court’s discretion, such a request is granted, any additional hearing should be conducted without delay. (In re DeMonte (7th Cir. 1981), 667 F.2d 590, 599 n.23; In re Grand Jury Proceedings (D.C. Cir. 1979), 613 F.2d 1171, 1176.) If it is discovered that the State engaged in unauthorized electronic surveillance, the witness will not be subject to an order of contempt and the court is not entangled in the illegal acts of government agents. Gelbard v. United States (1972), 408 U.S. 41, 51, 33 L. Ed. 2d 179, 188-89, 92 S. Ct. 2357, 2362-63.

The State contends that its in-court denial, quoted above, was sufficient to respond to the defendants’ bare claims. The State further argues that defendants failed to make a prima facie issue of electronic surveillance. (See United States v. Saade (1st Cir. 1981), 652 F.2d 1126; United States v. Alter (9th Cir. 1973), 482 F.2d 1016.) In order to establish such a prima facie issue, the State contends a grand jury witness must set forth specific facts such as dates of suspected surveillance, the identity, phone numbers and location of persons with whom overheard conversations occurred, and the facts showing some connection between the surveillance and the witness. United States v. Saade (1st Cir. 1981), 652 F.2d 1126, 1138; United States v. Alter (9th Cir. 1973), 482 F.2d 1016, 1026.

We cannot, however, accept the position adopted by the State from these cases. Neither Saade nor Alter is applicable here. The standards cited by the State were made in response to claims made by the respective defendants that their sixth amendment right to effective assistance of counsel was impaired by illegal electronic surveillance. This distinguishing factor in Alter was noted by the Ninth Circuit in the later case of United States v. Vielguth (9th Cir. 1974), 502 F.2d 1257, 1259-60.

The State further argues that the strict requirements found in Alter were identified and followed by the Seventh Circuit in In re Special February 1975 Grand Jury (7th Cir. 1977), 565 F.2d 407. The reference to Alter in that case was in response to the defendants’ argument that the government was required to make a general search of all investigative agencies. The government denied any illegal activity through the affidavits of the attorney in charge of the investigation and the FBI case agent. The court considered these affidavits, based on the personal knowledge of the affiants, to be an adequate response to the bare claims of unlawful wiretapping made by the defendants. (565 F.2d 407, 414.) The court also found the defendants presented an insufficient basis to require a general search of all investigative agencies. 565 F.2d 407, 416.

A general or unsupported claim by defendant requires only a response appropriate to that claim. (United States v. Gardner (9th Cir. 1980), 611 F.2d 770; see United States v. See (9th Cir. 1974), 505 F.2d 845, cert. denied (1975), 420 U.S. 992, 43 L. Ed. 2d 673, 95 S. Ct. 1428; In re DeMonte; In re Special February 1975 Grand Jury; United States v. Stevens.) The specificity of the prosecutor’s denial and the comprehensiveness of the search on which the denial is predicated must be measured against the specificity of the allegations of illegal electronic surveillance and the strength of the support for those allegations. United States v. Gardner; see United States v. Alvillar (10th Cir. 1978), 575 F.2d 1316.

In the contempt hearing below, the State orally denied that the grand jury questions were derived from electronic surveillance. Defendants also claimed the ability to substantiate their claims of illegal electronic surveillance. Upon remand, defendants should be allowed to do so. The State, in turn, should reply with an affidavit consistent with this opinion.

The order of the circuit court of Cook County is affirmed insofar as it granted immunity to defendants. It is reversed insofar as it found defendants in contempt of court, and the cause is remanded with directions to conduct further proceedings consistent with this opinion. The stay of execution originally allowed by the circuit court of Cook County is to remain in effect pending the hearing on remand.

Affirmed in part, reversed in part and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    CHARLES COULTER et al., Plaintiffs-Appellants, v. JOHN SWEARINGEN et al., Defendants-Appellees (Ricky Louck et al., Defendants).
    Third District
    No. 82—440
    Opinion filed March 25, 1983.
    Stuart Lefstein and Samuel S. McHard, both of Katz, McAndrews, Durkee, Balch & Lefstein, RC., of Rock Island, for appellants.
    Burrel Barash and Ronald Henson, both of Barash, Stoerzbach & Henson, of Galesburg, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

This appeal stems from a judgment dismissing certain counts of the plaintiffs’ (the Coulters) complaint which sought to impose liability for common law negligence upon the defendants (the Swearingens) resulting from the permitting of the availability and consumption of intoxicating liquor by a minor while a guest in the home of the defendants and who thereafter drove a motor vehicle into a vehicle operated by the plaintiff, Charles Coulter.

Specifically, Charles Coulter, in count XI of his complaint, alleged that John Swearingen, a minor, gave liquor to Ricky Louck, a minor, who while intoxicated operated his motor vehicle in such a manner as to cause it to collide with Charles Coulter’s tractor, which caused injury. The plaintiff Geri Coulter, wife of Charles, in count XII sought damages for loss of consortium. Charles Coulter in count XIII alleged that the intoxicating liquors given by John Swearingen to Ricky Louck were negligently stored by Vernon and Phyllis Swearingen, parents of John, so that they were accessible. In count XIV Geri Coulter sought damages against Vernon and Phyllis Swearingen for loss of consortium.

The foregoing counts were the target of a motion to dismiss on the grounds that there is no common law negligence action against anyone who supplies intoxicating liquor to another and any cause of action for injuries resulting from a sale or gift of intoxicating liquors is limited to those who are liable under the Dramshop Act. The circuit court of Mercer County agreed with the defendants, thereby granting the motion, and judgment was entered dismissing the complaint as to the defendant Swearingen.

The issue presented in this appeal, reduced to its simplest form, is whether the trial court was correct in holding that John Swearingen, a minor who permitted another minor to drink intoxicating liquor in the Swearingen home, and Vernon and Phyllis Swearingen, parents who permitted accessibility to the liquor in their home, are guilty of common law negligence.

Counsel for plaintiffs presented a strong argument as to why by judicial interpretation this court should hold that section 14 of article VI of the Dramshop Act (111. Rev. Stat. 1979, ch. 43, par. 135) should not preempt the field of liability related to alcohol and that there should be a common law negligence cause of action against social hosts who gave alcoholic beverages to minor and because of the resulting intoxication by the minor, injuries or death occur. The plaintiffs in support of their argument make an analogy to the supplying of alcoholic liquor with the furnishing of firearms, morphine or glue to a minor and where recovery was permitted against the supplier for furnishing the latter items. The plaintiffs cite cases from foreign jurisdictions where defendants were held liable for providing alcoholic beverages to a minor who in a state of intoxication harmed third parties. The plaintiffs further attempt to equate the supplying of liquor to a minor which causes injuries to the attractive nuisance doctrine where a landlord can be held liable for injuries to a minor because of harm resulting from defects or dangerous conditions upon his property. The plaintiffs further remind this court, as other courts have been reminded, that our State constitution provides that there shall be a legal remedy to every person for injuries and wrongs he receives to his person, property, privacy and reputation. See Ill. Const. 1970, art. I, sec. 12.

The issue presented in this appeal and the arguments presented by the plaintiffs are not new to the supreme court and appellate courts of this State. These courts have consistently held that a social host is not liable under common law negligence for injuries sustained by a third party. Our courts have adhered to this position and make no distinction as to whether the intoxicated individual is a corporate defendant, a strong and able-bodied man, or a minor. Our legislature enacted in 1872 what was called the Temperance Bill, the ancestor of our present Dramshop Act. Substantial changes were made in 1874, and throughout the years the Act has been amended a number of times, however, our courts have throughout its history consistently held that it confers the only civil remedies available for injuries and harm resulting from intoxication. Reliance upon section 12 of our constitution has been raised by other parties situated similarly to the plaintiffs in the instant case. Relief sought by such parties by relying upon section 12 has been unavailing in that it has been held “that section 12, like its predecessor section 19 of article II of the 1870 Illinois Constitution, is ‘an expression of a philosophy and not a mandate that a “certain remedy” be provided in any specific form ***.’ (Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 277, 281 N.E.2d 659, 662.)” See Berlin v. Nathan (1978), 64 Ill. App. 3d 940, 950, 381 N.E.2d 1367, 1374.

The landmark case of Cunningham, v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153, provides an in-depth informative history of the Dram-shop Act and the remedies provided therein. In Cunningham, a widow attempted to recover damages against tavern operators when her husband took his own life because of despondency resulting from intoxication. She predicated her suit on the theory of common law negligence. Our supreme court held that there was no common law remedy against the defendants for sale of liquor to intoxicated persons and that the only remedy provided was to be found in the Liquor Control Act (Dramshop Act) and that such remedy was exclusive. Cunningham concluded that there was never a common law action for negligence against the purveyors of intoxicating liquor and in enacting what we now call the Dramshop Act the legislature intended to provide a remedy where it believed none existed. The plaintiffs quarrel with Cunningham’s conclusion by asserting that the court was misled by the lack of precedent for a common law remedy when the Temperance Bill of 1872 was enacted. It is plaintiffs’ theory that in 1872 the legislature could not have intended to abrogate a remedy it did not know about. If we accept the argument of the plaintiffs we must further accept the fact that in 1872 and prior thereto there was a nebulous, unused, and in fact, an unknown, unformulated common law remedy where recovery could be had from a supplier of alcoholic liquor for damages inflicted by an intoxicated person or resulting from the intoxication. The history of the temperance movement as set forth in Cunningham belies the fact that any remedy was available prior to the enacting of the Temperance Bill of 1872. No cases can be cited which show that a common law remedy was invoked. The plaintiffs in Cunningham conceded that the common law provided no remedy for the sale of alcoholic liquor to the ordinary man on the theory it was a direct wrong or on the theory that it was negligence, which provided a legal liability on the seller for damages resulting from intoxication. The enactment of the Temperance Bill of 1872 was the result of the fervor of the temperance reform movement conducted in our State combatting the evils of liquor, the dispensation of which had been unregulated for more than half of a century. The supreme court in Cunningham stated in referring to the 1872 enactment:

“The historical background of the act seems to disclaim any notion that it was intended to complement a common-law remedy against the tavern owners and operators. We would be delving in judicial metaphysics if we were to say that the legislature intended to provide a remedy in addition to a common-law remedy which existed but had not as yet been declared by the courts.” 22 Ill. 2d 23, 28, 174 N.E.2d 153, 156.

We have directed considerable attention to the case of Cunningham for the reason that it is a landmark case pertaining to the Dramshop Act and that it clearly establishes that it (the Act) has preempted the field of liability relating to alcohol.

In the instant case we are confronted with a complaint which sought damages from a minor who permitted another minor to consume intoxicating liquor which led to personal injuries. The complaint also seeks-damages from social hosts, adults who were heads of the household where the liquor was obtained. Does the fact that one defendant is a minor and the others are social hosts present a situation which falls outside the scope of the Dramshop Act and as a consequence recovery would be permitted by an action predicated by common law negligence? Illinois decisions dictate that the answer to this question must be negative.

The question as to “social hosts” has been addressed on several occasions by our reviewing courts and the decisions are contrary to plaintiffs’ position and arguments advanced in support of it. (See Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710 (defendant served alcoholic liquor to guests in her home including a minor" who became intoxicated and injured the plaintiff); Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046 (defendants were social hosts at a fish fry and social guest became intoxicated and injured plaintiff); Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1050, 334 N.E.2d 205 (corporate defendants sponsored a “chicken fry” and invitee became intoxicated and struck a utility pole causing his death); Annot., 8 A.L.R.3d 1412 (1966).) This court was confronted with the question as to whether an employer was guilty of common law negligence when he permitted an employee to become intoxicated on a job site and because of such intoxication the plaintiff, a passenger of the intoxicated employee, was injured in a motor vehicle accident. This court affirmed the trial court’s dismissal of plaintiff’s action. See Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801.

Illinois decisions have also determined that the Dramshop Act is not preempted by alleging that a minor is the tort-feasor or the injured party. The courts have been rigid in denying recovery on the theory of common law negligence. Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710; Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E.2d 112; and Gora v. 7-11 Food Stores (1982), 109 Ill. App. 3d 109, 440 N.E.2d 279.

The plaintiffs argue that there is and should be a judicial trend toward abolishing common law immunities from liability and that the immunity given to those who supply liquor noneommercially represents an undesirable social policy. Plaintiffs ask this court to terminate that immunity. This is not the first request that this court has had on the subject. We have previously denied the request and again do so by again expressing our view that any extension for damages arising from intoxication must come from the legislature, not the courts. Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801.

For the reasons set forth the judgment of the circuit court of Mercer County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: JUSTICE STOUDER

text:
      In re APPLICATION OF COUNTY TREASURER (Canton Union School District No. 66 et al., Intervenors-Appellants, v. Central Illinois Light Company, Objector-Appellee).
    Third District
    Nos. 82—452, 82—492 through 82—495 cons.
    Opinion filed March 22, 1983.
    Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellants.
    Thomas Atherton, of Frings, Bagley, Atherton & Clark, of Pekin, and Linda K. Stanwood and Terry F. Moritz, both of Goldberg, Kohn, P.C., of Chicago, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioners Canton Union School District No. 66, Community College District No. 534, and their boards filed a petition to intervene in five applications for judgment and order of sale for delinquent taxes previously filed against Central Illinois Light Company (hereinafter CILCO). After a hearing on the merits of the petition in the circuit court of Fulton County, it was denied.

A brief history lends perspective to this litigation. In each of the applications at bar, CILCO responded with an objection and paid its property tax under protest. The basis of each objection was that the Department of Revenue had improperly assessed the value of the utility’s pollution control facilities. In Commonwealth Edison Co. v. De partment of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817, the supreme court agreed with CILCO, and the trial court and Department of Revenue reduced the assessments. No notice of the tax objections was given to petitioners. See Ill. Rev. Stat. 1979, ch. 120, par. 675.

Amidst other facets of this and related litigation, the school board, on August 31, 1981, entered into a stipulation in three of the applications at bar. Pursuant to “a settlement of the reclassification” of property in another cause, CILCO agreed, inter alia, to postpone taking steps to collect part of its refund and to accept it in two installments. In return, the school board agreed not to interfere with CILCO’s right to a refund of 1981 taxes. On January 27, 1982, petitioners filed an action against the Fulton County clerk and collector, and CILCO was permitted to intervene. Petitioners alleged that section 21a — 3 of the Revenue Act of 1939 (111. Rev. Stat. 1981, ch. 120, par. 502a — 3) violated a series of provisions of article IX of the Illinois Constitution. CILCO proceeded to pursue summary judgment in the causes at bar. On June 1, 1982, the hearing date of the motions for summary judgment, petitioners appeared in open court and presented their petition to intervene without prior notice. The gravaman of the petition was the same constitutional argument presented in their earlier action against the county officials.

Of the several issues presented for our review, we need only consider whether the application for intervention was timely. A timely application to intervene is required whether intervention is permissive or a matter of right. Moran v. Commonwealth Edison Co. (1979), 74 Ill. App. 3d 964, 393 N.E.2d 1269; Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152; Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382, appeal denied (1977), 66 Ill. 2d 631.

In the cause at bar, the petition to intervene was filed the day uncontested motions for summary judgment were to be heard and approximately 3V2 years after the first of the underlying actions was filed. Counterbalancing this is the fact the county clerk failed to give petitioners notice of the tax objection filings as required by statute (see 111. Rev. Stat. 1979, ch. 120, par. 675). This, in part, was due to the fact that CILCO did not include the college district on its list of tax levying units in two of the underlying causes and failed- to list either petitioner in two others.

Petitioners cite a number of cases in support of their contention that their petition was timely. In Standard Bank & Trust Co. v. Village of Oak Lawn (1978), 61 Ill. App. 3d 174, 377 N.E.2d 1152, the owners and lessees of certain property filed an action against the village as a site plan providing for the development of the property as a shopping center had been denied. The village trustees unanimously voted to defend the municipality’s position, but the plaintiffs prevailed. The composition of the board of trustees was meanwhile partially changed, and a new village president was elected. The new officials voted not to appeal in return for certain concessions, and a group of landowners living near the subject property petitioned to intervene. The trial court found the post-judgment attempt to intervene was not timely. The appellate court found that it was not reasonable to expect the petitioners to foresee the change in position, and only after the decision not to appeal could they know intervention was necessary. The petition was deemed timely.

In Avery v. Garbutt (1974), 19 Ill. App. 3d 1001, 313 N.E.2d 274, the original plaintiffs, sergeants in the Cook County Department of Corrections and a fraternal order of police lodge, sought a declaratory judgment that the defendants did not have the power to hold examinations for the certification and promotion of all ranks of correctional officers. The lodge withdrew as a party plaintiff and the case was settled. Forty-nine days later the petitioners sought to intervene as they were unaware of the lodge’s participation in, or withdrawal from, the action. The trial court denied the petition as it found it had lost jurisdiction. The appellate court reversed and remanded as the court had jurisdiction but, because of its finding otherwise, did not exercise its discretion.

In Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 256 N.E.2d 1, the plaintiffs sought a declaratory judgment that certain provisions of a zoning ordinance were unconstitutional as applied to certain real estate. The trial court voided minimum lot area restrictions and retained jurisdiction. Three and one-half years later, the petitioner, an adjoining landowner, sought to intervene as a building was being constructed in violation of the court’s decree. An earlier stop order issued by the building department had been rescinded, and no further departmental action was forthcoming. The trial court denied intervention. In affirming the appellate court’s reversal and remand, the supreme court noted:

“[T]he construction permit for the building was not issued until almost two years after the 1962 decree had been entered. During this period of nonactivity adjoining landowners had no reason to suspect there would be any violation of the decree. When the construction commenced and violations were observed the appellee began the complaints to the City of Chicago we have described. Over a year was spent in the addressing and consideration of these complaints. The course of action taken was not entirely futile, for the City did issue a stop order for the violating construction, though it was later rescinded. When the appellee determined that his administrative complaints concerning the failure to provide parking facilities would be ineffectual, he filed his petition to intervene in the circuit court without undue delay.” Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 497, 256 N.E.2d 1, 4.

In Standard Bank & Trust Co., the petition to intervene was filed as soon as a previously sympathetic board reversed its position. Neither a sympathetic body nor reversal of position is here present. In Avery, the trial court failed to exercise its discretion. The trial court herein did. In Anundson, no problem was evident for almost two years, an administrative remedy was successfully pursued, and intervention was attempted only when that remedy became ineffective. Here, no administrative remedy was successfully pursued and none could become effective. When the “problem” became evident returns us to the failure to give petitioners their statutory notice.

While petitioners do not contend that they were unaware of the causes at bar, we are not constrained to attribute such awareness to them where this was in part due to CILCO’s failure to comply with its statutory responsibility. Such awareness must be attributed to the school board, however, no later than August 25, 1981. On that date, it entered into the stipulation with, inter alia, CILCO in three of the causes at bar. After the denial of the Department of Revenue’s application for rehearing in Commonwealth Edison Co. v. Department of Local Government Affairs (1981), 85 Ill. 2d 495, 426 N.E.2d 817, on October 19, 1981, the school district and a second school district initiated an original proceeding in the supreme court. This attempt was declined by the court on January 12, 1982. On January 24, 1982, both petitioners filed their constitutional attack in the trial court.

Given this litigious history and the fact that petitioners elected to pursue the constitutional question in an independent proceeding, we do not find the petition at bar was a timely application to intervene. We therefore need not reach the additional issues presented for our review.

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

Affirmed.

BARRY, P.J., and HEIPLE, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAULA FORD, Defendant-Appellant.
    Third District
    No. 82—483
    Opinion filed March 29, 1983.
    Robert Agostinelli and Gary Hicks, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of Ottawa, for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

Following a jury trial on May 17 and 18, 1982, in the circuit court of Fulton County, the defendant, Paula Ford, was found guilty of the offense of unlawful delivery of cannabis. (111. Rev. Stat. 1979, ch. 56V2, par. 705(c).) She was subsequently sentenced to probation for a term of 30 months. The conditions of probation included 63 days of periodic imprisonment to be served weekdays in the Fulton County jail and treatment for alcohol and drug abuse.

The State’s sole occurrence witness, Donna Jean Kurlinkus, testified that she was a Warren County deputy sheriff assigned to the Multi-County Narcotic Enforcement Group. On February 26, 1981, while working as an undercover agent, Kurlinkus told the defendant that she was looking for some cannabis. Following the defendant’s directions, Kurlinkus and the defendant drove to an alley behind 421 North Main Street in Canton, Illinois. The defendant then knocked on a door to an apartment and entered after the door was opened. About three minutes later, the defendant came back to the car and gave Kurlinkus a clear plastic bag containing a brownish leafy substance, later identified as cannabis. Kurlinkus agreed to the price of $35, and gave the defendant the money.

The defendant’s version of the events of February 26, 1981, varied from Kurlinkus’ account. She testified that after Kurlinkus approached her in regards to obtaining some “pot,” the defendant took her to an apartment at 421 Main Street in Canton, Illinois. A person named “Hippie” resided in the apartment. Kurlinkus asked Hippie if he had any pot, and he placed two bags on the coffee table and told Kurlinkus to choose. After the undercover agent chose one, Hippie weighed it and Kurlinkus paid him. The defendant and Kurlinkus left the apartment with the bag. There were no other defense witnesses.

On appeal, the defendant contends that she was denied her constitutional right to a fair trial by the improper comments made by the prosecutor during closing argument. The defendant claims that she was prejudiced by the prosecutor’s improper assertions that the State’s sole occurrence witness was more credible because she was a police officer. She also claims that she was prejudiced by the prosecutor’s inflammatory reference to the children in the jurors’ community.

The State argues that the defendant has waived any alleged errors during closing argument because of her failure to specifically object during the trial to the prosecutor’s comments regarding the credibility of Agent Kurlinkus and to include the alleged error in her post-trial motion. The defendant also failed to include' the alleged error concerning the inflammatory comment in her post-trial motion.

Contrary to the State’s contention, defendant did object to the allegedly improper remarks of the prosecutor during the trial, but then failed to include the alleged errors in the post-trial motion for a new trial. The failure to include the alleged errors in the post-trial motion waives the issues on appeal. People v. Bainter (1981), 102 Ill. App. 3d 1029, 430 N.E.2d 721.

The defendant argues that if the alleged errors were waived, this court should consider them as matters of plain error. (87 Ill. 2d R. 615(a).) Rule 615(a) permits a reviewing court to take notice of errors appearing on the record which deprive the defendant of a fair and impartial trial and, in criminal cases in which the evidence is closely balanced, to consider errors not properly preserved for review. People v. Howell (1975), 60 Ill. 2d 117, 324 N.E.2d 403.

When the outcome of a case depends on which of two witnesses the jury believes to be more credible, the evidence can be described as closely balanced. We cannot, as the State urges, so easily discount the defendant’s story as being obviously implausible. And since the allegedly improper remarks directly deal with the pivotal issue of credibility, we will consider the errors not properly preserved for review in order to determine whether the balance may have been tipped in favor of the State as a result of trial error.

During closing arguments, the prosecution made the following remarks which the defendant characterizes as an assertion that the State’s witness was more credible because she was a police officer:

“Now, on the one hand you have got Donna Kurlinkus. She is a sworn Warren County Deputy, and on the other you have got Paula Ford who, in the words of her attorney, is a drug addict.
BY MR. RAMSEY: Was *** Objection to that, Your Honor.
BY MR. HOMER: Your Honor, Counsel is trying to interject his argument in mine.
BY THE COURT: You may continue.
BY MR. RAMSEY: Counsel is not characterizing the evidence in this case, Your Honor.
BY THE COURT: Well, you can correct it, Mr. Ramsey. You may continue.
BY MR. HOMER: Thank you.
BY MR. RAMSEY: Excuse me, Mr. Homer.
BY MR. HOMER: On the one hand you have got Donna Kurkinkus who, in addition to being a Warren County Deputy, is a person of impecable [sic] credentials versus an individual, Paula Ford, who by her own testimony to you people in her own community didn’t trust.
You have Donna Kurlinkus who is a member of the MultiCounty Drug Enforcement Group, MEG, with eight years of integrity serving in this community versus the Defendant, Paula Ford, who, again, in the words of her attorney, was a member of the drug scene.
* * *
You have the agent, Donna Kurlinkus, a sworn police officer working on assignment to the Multi-County Drug Enforcement Group.
* * *
Why would Donna Kurlinkus, a sworn Warren County Deputy, pull a charade like this and lie and perjure herself for a lousy 15 gram purchase of marijuana?
* * *>>

The prosecutor was certainly aware of the fact that credibility was an important issue in this case. However, a police officer’s testimony is to be evaluated in the same manner as that of any other witness and there is no presumption that such testimony is more credible than that of any other witness. Crook v. Crook (1946), 329 Ill. App. 588.

The manner in which the prosecutor made repeated references to Kurlinkus’ status as a police officer and a sworn deputy was an improper attempt to enhance the credibility of his witness. Although a prosecutor may comment on the credibility of witnesses, the remarks in this case exceeded the boundaries of proper argument.

The defendant next argues that the following statement was made by the prosecutor in order to arouse the sympathy and prejudices of the jury:

“Well, you know, the Judge will instruct you that neither sympathy nor prejudice should influence your decision, and that’s correct, because if we’re talking about sympathies and prejudice when we’re talking about the elicit [sic] business of selling drugs, then I would suggest that the Defense look to the poor, innocent, susceptible children in our community who are tempted and forced by peer pressures—
BY MR. RAMSEY: Your Honor, I’m going to object to this as being prejudicial and outside the scope of the evidence in this case and outside the scope of the information and ask that the—
BY THE COURT: I would limit these comments, Mr. Homer.”

It is clear that the prosecutor was making an inflammatory appeal to the fears of the jury, and such remarks cannot be condoned. (People v. Crossno (1981), 93 Ill. App. 3d 808.) The State contends that these remarks were invited by defense counsel’s argument that Paula Ford, as a drug user, was merely a victim of the system. Although it may have been proper for the prosecutor to argue that a person in the defendant’s position was entitled to no sympathy, his remarks overstepped the bounds of any comment which could be construed as invited by defense argument.

The State makes the final argument that any error which may have occurred was harmless beyond a reasonable doubt. We disagree. Although we would be reluctant to order a new trial based on any one of the errors standing alone, we find that the cumulative impact of the statements may well have prejudiced the jury and constituted a material factor leading to the conviction. (People v. Whitlow (1982), 89 Ill. 2d 322.) Therefore, the defendant should be given a new trial.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HARRIS, Defendant-Appellant.
    First District (2nd Division)
    No. 81—310
    Opinion filed March 29, 1983.

      Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trial, defendant, James Harris, was found guilty of robbery and aggravated battery and sentenced to serve concurrent terms of five and four years, respectively. The issues raised on appeal include whether: the report written by the examining psychiatrist failed to meet statutory requirements; the court abused its discretion in not conducting a fitness hearing; and prosecutorial cross-examination of defense witnesses deprived defendant of a fair trial.

For the reasons hereinafter stated, we reverse defendant’s convictions, and remand the cause with directions to conduct a hearing for the purpose of determining his fitness to stand trial.

At trial, the victim, Santos Davile, testified that at about 9 p.m. on February 25, 1980, he went to a bar located on Belmont and Clark, in Chicago. He bought two beers for two or three women who approached him. At about 3 or 4 a.m. he left the bar with his friend Julio Sanchez. As they were walking toward Sanchez’ car, defendant, another man, and a woman grabbed him. Defendant hit him and took two wallets from him. He was knocked down and struck in the right eye. He had seen both men earlier that evening in the bar.

Investigator John Putney stated that on the morning of February 25, 1980, he interviewed defendant, who told him, essentially, that he had participated in the beating and robbing of the victim.

Boy Lewis testified for defendant. Lewis had been charged in the same information as defendant and pled guilty to robbery for which he received a four-year sentence. Lewis went to the bar in question and met two girls, Cathy and Tina. Cathy told him that the guy she was sitting next to had “a nice piece of paper on him.” She suggested that they “cop him outside.” He called defendant by telephone and told him that he was getting ready to make some money and to meet Lewis on Belmont. He, Cathy, Tina and the victim left the bar together. When they got to the alley, Lewis put the victim’s “lights out.” While they were trying to get into the victim’s pockets, Cathy ran away. Defendant did not participate in the incident. Tina and Lewis began walking east toward Belmont. When defendant was within 15 feet of them, the police arrived and all three were arrested. Lewis admitted that he had lived in the same building as defendant for many years and that they were good friends.

Defendant testified on his own behalf. On February 25, 1980, he received a telephone call from Lewis telling him to go to Belmont and Clark. Defendant changed clothes, took the “el” to the north side, and walked from the “el” station to Belmont and Clark. After about five or 10 minutes, he saw Lewis and a girl down the street. He started walking towards them. When he got close to Lewis, the police came and put him “up against the wall.” He never told any police investigator, including Putney, that he punched the victim and took the victim’s wallet.

The circuit court found defendant guilty of aggravated battery and robbery and hé was sentenced as first noted.

I

Defendant’s notice of appeal was untimely filed on January 30, 1981, approximately 21k months subsequent to the imposition of his sentence. In his petition for a writ of error coram nobis, filed January 12, 1981, defendant alleged, inter alia, that his court appointed attorney failed to file a timely appeal after defendant had so requested. The State concedes that defendant was not to blame for the untimeliness of the notice of appeal and that the appeal should not be dismissed. Both parties have filed briefs on the merits of the controversy. Under these circumstances, upon authority of Supreme Court Rule 606(c) (87 Ill. 2d R. 606(c)), we elect to consider defendant’s late appeal on its merits. People v. Williams (1974), 59 Ill. 2d 243, 320 N.E.2d 13; People v. Brown (1973), 54 Ill. 2d 25, 294 N.E.2d 267.

II

Defendant contends that the circuit court’s failure to conduct a hearing to determine his fitness to stand trial deprived him of due process of law. Due process is violated when one is required to defend himself at trial but is not competent to do so. (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. McLain (1967), 37 Ill. 2d 173, 226 N.E.2d 21.) In the present case, neither party questioned defendant’s fitness to stand trial at anytime before or during the trial. On October 14, 1980, at an intended sentencing hearing, defense counsel advised the court that defendant was unavailable because “*** he had eaten some metal and glass and other things *** and attempted suicide both before and after his trial.” On that date, pursuant to the request of the director of Cermak Jail, defense counsel moved that defendant be given a psychiatric examination because of his suicide attempts. Such an order was entered but was limited to the question of whether or not defendant was mentally fit to participate in the sentencing process. The report filed by the psychiatrist was so limited as well. In the presentence social investigation report filed after trial, it was revealed that: defendant had been treated as an out-patient of Chicago Mental Health Clinic as a child; he had been treated as an in-patient at the Read-Zone Center for two years; his 1980 release from the penitentiary was conditioned on his obtaining out-patient therapy, which was never secured; and on September 10, 1980, after trial, he was “*** put in restraints due to some form of acting out.” Nothing in the record discloses the onset, diagnosis, prognosis or effect of defendant’s mental condition or its possible relevance to his fitness to stand trial or to be sentenced.

Once facts are brought to the attention of the circuit court which raise a bona fide doubt of defendant’s fitness to stand trial, the court must hold a fitness hearing because of the fundamental constitutional nature of the fitness requirement. (People v. Murphy (1978), 72 Ill. 2d 421, 430, 381 N.E.2d 677; Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11.) Where it is shown that at the time of trial certain facts existed which, had they been known to the circuit court at the time of trial, would have raised that bona fide doubt, defendant is entitled to post-conviction relief. (People v. McLain; People v. Andson (1979), 73 Ill. App. 3d 700, 392 N.E.2d 358.) Although the question of whether a bona fide doubt has been raised as to defendant’s competency is usually within the discretion of the circuit court (People v. Stanhope (1969), 44 Ill. 2d 173, 179, 254 N.E.2d 512), under the circumstances presented by this record, we are of the opinion that the circuit court should have ordered a hearing relative to defendant’s fitness to stand trial as part of that ordered to determine his mental fitness for sentencing.

The courts have recognized the hazards inherent in retrospective competency hearings. (See Drope v. Missouri (1975), 420 U.S. 162, 182, 43 L. Ed. 2d 103, 119, 95 S. Ct. 896, 909; Pate v. Robinson; People v. McLain.) Some Federal cases have held, however, that the mere passage of time may not constitute an insurmountable obstacle if there is sufficient evidence in the record derived from knowledge contemporaneous to trial. (United States ex rel. Bilyew v. Franzen (7th Cir. 1982), 686 F.2d 1238, 1247; United States v. Makris (5th Cir. 1976), 535 F.2d 899, 904-05, cert. denied (1977), 430 U.S. 954, 52 L. Ed. 2d 394, 97 S. Ct. 1707; Conner v. Wingo (6th Cir. 1970), 429 F.2d 630, cert. denied (1972), 406 U.S. 921, 32 L. Ed. 2d 121, 92 S. Ct. 1779.) The foregoing approach has not been considered in Illinois State courts as yet. (People v. McLain; People v. Thomas (1969), 43 Ill. 2d 328, 253 N.E.2d 431; People v. Stanhope; People v. Turner (1980), 88 Ill. App. 3d 793, 410 N.E.2d 1151; People v. Hubert (1977), 51 Ill. App. 3d 394, 366 N.E.2d 909.) The salutary effect of judicial economy, trial costs to both parties, stability of judgments and elimination of evidentiary problems related to retrial make the Federal approach worthy of consideration here. In the present case, however, we take judicial notice that the trial judge is deceased. His role in retrospective review would have been vital since he presided throughout the trial and was in the best position to observe and recall defendant’s demeanor. In his absence, we believe that we are obligated to reverse and remand for a new trial.

Ill

Certain issues raised in this appeal may again arise in the retrial of the case, and we consider them here for that reason. Defendant maintains that the psychiatric report as to his fitness for sentencing failed to comply with the statutory requirements. (111. Rev. Stat. 1981, ch. 38, par. 104 — 15(a).) Section 104 — 15(a) provides that a fitness report issued pursuant to court order under section 104 — 13(a) (111. Rev. Stat. 1981, ch. 38, par. 104 — 13(a)) include not only diagnosis and an explanation as to how it was reached, and the facts upon which it is based, but also a description of his mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs defendant’s ability to understand the nature and purpose of the proceedings against him or to assist in his defense, or both. Here, the report received by the circuit court at defendant’s sentencing hearing at 10 a.m. on November 5, 1980, from a staff psychiatrist at the Psychiatric Institute stated:

“Pursuant to Your Honor’s Order, the undersigned psychiatrist examined the above defendant [Harris] on Wednesday, November 5,1980.
Based on the above examination, it is my opinion that this defendant is Mentally Fit for Sentencing. He understands the nature of the charge pending against him, the purpose of the proceedings and is able to assist counsel in aggravation and mitigation proceedings, if he so wishes.”

The report failed to comport with the requirements of law. It failed to render “an explanation as to how [the diagnosis] was reached and the facts upon which it [was] based.” (111. Rev. Stat. 1981, ch. 38, par. 104 — 15(a)(1).) Its conclusory terms precluded the circuit court from independently evaluating its validity and hampered the court’s ability to assess the need or lack thereof of a fitness hearing. Further, the psychiatric examination was apparently hastily performed on the last permissible day. The court possessed the report at defendant’s sentencing hearing at 10 a.m. on the same morning the examination was conducted.

The State argues that this issue has been waived by defendant’s failure to object to the sufficiency of the report at the sentencing hearing. Section 104 — 11(a) expressly provides that the issue of defendant’s fitness may be raised by the defense or State at any appropriate time before, during or after trial. (111. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).) When the circuit court in the proper exercise of its discretion orders a psychiatric examination of defendant, it undertakes a concomitant duty to insure that the resultant report fulfills the requirements of section 104 — 15(a). Otherwise, the purpose of the statute would be defeated and the substance of the examiner’s recommendations would not be amenable to independent judicial scrutiny. Under the circumstances of this case, the error was not harmless, as the State contends. As previously noted, defendant had a history of therapeutic treatment, and recently attempted to commit suicide. These facts underscore the importance of statutory compliance.

Other points of error raised involve alleged prosecutorial misconduct. Although the errors complained of were insufficient upon which to grant a new trial in and of themselves, we trust that the conduct referred to will not be repeated on retrial of the case.

For the foregoing reasons, defendant’s convictions are reversed and the cause remanded for a new trial.

Reversed and remanded for new trial.

DOWNING, P.J., and PERLIN, J., concur.

       This appeal was commenced upon a petition for writ of error coram nobis, a procedure which has been utilized in pursuing post-conviction relief. As noted in point I, we elected to treat this as a delayed appeal permitted under Supreme Court Rule 606(c); however, we regard this point of law, usually raised in post-conviction cases, as properly before us here.


author: JUSTICE LINN JUSTICE JIGANTI,

text:
    SUNSET TRAVEL, INC., et al., Plaintiffs-Appellees, v. ROBERTO LOVECCHIO, Defendant-Appellant.
    First District (4th Division)
    No. 81—1960
    Opinion filed March 24, 1983.

      JIGANTI, J., dissenting.
    Edward R. Theobald, of Boharic and Theobald, and Dorothea Kaplan, both of Chicago, for appellant.
    Pitler & Mandell, of Chicago (Barry L. Powell, Philip L. Mandell, and Barry A. Pitler, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Roberto Lovecchio, was found in contempt of court. He was sentenced to 30 days in jail, but could purge himself and obtain his immediate release by delivering over to Sunset Travel, Inc., one of the plaintiffs, certain airline tickets claimed by Sunset to be its property.

On appeal Lovecchio essentially contends: (1) that he was erroneously found guilty of “direct civil contempt” where, at most, he could be found guilty of “indirect criminal contempt”; (2) that he was erroneously denied his due process rights; and (3) that the 30-day jail sentence sanction was imposed improperly.

We conclude that Lovecchio was guilty of indirect civil contempt; that he was accorded his due process rights; and that the sanction was properly imposed.

Background

On June 9, 1981, incident to the service of certain outstanding traffic violation warrants and incident to a theft investigation, Lovecchio was arrested and his automobile was searched. The police found and inventoried certain business records, including 76 airline tickets, one of which was validated. The airline ticket numbers were recorded by the police. Several hours after the arrest, Lovecchio was released. The business records and the airline tickets were returned to him.

On June 9, 1981, plaintiffs, Sunset Travel, Inc., and Underwater Adventure Tours, Ltd., filed a complaint in the circuit court of Cook County seeking injunctive and other relief against Lovecchio and Sandra Shearer. Plaintiffs charged that Lovecchio and Shearer, with whom they had been associated in a travel agency business, wrongfully and without authority removed certain business records, including airline tickets. Plaintiffs sought return of the business records and the airline tickets. Subsequently, Lovecchio and Shearer were served with a notice to produce the records and airline tickets in court.

Pursuant to the motion to produce, the parties appeared in person with counsel before the trial judge on June 19, 1981. At that time an agreed order was entered enjoining Lovecchio and Shearer in certain respects. Further, Lovecchio and Shearer were directed to prepare and submit an inventory of all business records and documents held by them that were listed in the notice to produce previously served upon them. Further hearing was continued to June 24,1981.

On June 24, Lovecchio and Shearer appeared with counsel and presented their inventory. The inventory failed to include the documentation of the airline tickets in issue. Thereupon, certain testimony relating to the airline tickets was presented. The police officers who previously had arrested Lovecchio testified to their search and inventory of the business records and airline tickets taken from Lovecchio’s automobile. They asserted that all the records including the airline tickets had been returned to Lovecchio upon his release from custody. Lovecchio testified that he last saw the airline tickets in a room in the police station where they had been taken after being removed from his automobile by the police. He had no knowledge as to the tickets after that. He did not know where they currently were. He recalled that the police had questioned him about the tickets. He claimed that the police had returned all the documentary materials that had been taken from his automobile, but he had no recollection of the return to him of the airline tickets.

Following the testimony, an in-chambers conference took place. On returning to the courtroom, the trial judge asserted that he did not believe Lovecchio’s testimony as it related to the airline tickets. The trial judge stated,

“I do not believe Mr. Lovecchio in the slightest degree at this moment in time, predicated on the evidence that I have heard. It is inconceivable to me that the two police officers would lie, that Mr. Milito would lie, and that his supervisor, Mr. Orsi would lie.”

While observing that no contempt finding was being made at that time in connection with Lovecchio’s failure to produce the airline tickets, the trial judge suggested that counsel for plaintiffs submit a petition to find Lovecchio in contempt. The trial judge directed that the proceeding be continued and stated, “You may draft an order insofar as Monday morning is concerned, and I will give Mr. Lovecchio an opportunity to explain to this court once again.” The foregoing comments and action by the trial court took place without objection.

Thereafter, on July 10, 1981, plaintiffs filed their petition seeking contempt findings and the imposition of sanctions against Lovecchio and Shearer for their failure to produce the airline tickets. On July 24, 1981, Lovecchio and Shearer by counsel filed their response and supporting memorandum to plaintiffs’ petition. Lovecchio and Shearer acknowledged the accuracy of the transcript of the June 24, 1981, hearing, and in effect again claimed that they did not have possession or control of the airline tickets and consequently could not produce them. In addition to “impossibility of performance,” Lovecchio and Shearer contended that the airline tickets, being unvalidated (except for one), were of little or no value and their production would be of no economic benefit to plaintiffs.

Hearings on all pending matters resumed on August 3, 1981. Arguments of counsel were presented. At the conclusion of the proceeding the trial judge entered an order finding, among other things, that the evidence presented at various hearings established that Lovecchio, while able to comply with the trial court’s order to produce, had failed to produce certain airline tickets and consequently was in “direct contempt” of court. The trial judge found Lovecchio’s failure to abide by the trial court’s order to be wilful and contumacious; he found further that Lovecchio had not shown any “just reason” for failure to comply with the production order that the airline tickets be delivered to Sunset Travel, Inc. Lovecchio was sentenced to 30 days’ confinement, with the right to immediate release upon purging himself of contempt by producing the airline tickets.

Following denial of a motion to reconsider and vacate the August 3, 1981, order of contempt and sanction, this appeal was taken.

I

Lovecchio first contends that the trial court erroneously found him guilty of “direct civil contempt” where, at most, he could be found guilty of “indirect criminal contempt.” Thus, Lovecchio claims, the contempt finding and sanction must be set aside. We agree with Lovecchio that the trial court would be in error in finding him guilty of “direct civil contempt”; we disagree with Lovecchio that, at most, he could be found guilty of “indirect criminal contempt.” We conclude that Lovecchio was guilty of indirect civil contempt and that the sanction imposed was proper despite what Lovecchio contends was the trial court’s characterization of the contempt as “direct civil contempt.”

Contempt of court has generally been defined as verbal or nonverbal conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of justice into disrepute. Further, contempt of court may result from failure to abide by the terms of a court order or judgment. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50, cert. denied, (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750; County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 319 N.E.2d 472; People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1, cert. denied (1972), 409 U.S. 989, 34 L. Ed. 2d 256, 93 S. Ct. 332; In re Estate of Melody (1969), 42 Ill. 2d 451, 248 N.E.2d 104.) Such allegedly contumacious conduct may, depending on the surrounding circumstances, be tried as direct or indirect contempt.

Contumacious conduct constitutes direct contempt if it is committed in the physical presence of the judge or within an integral part of the court, while the court is performing its judicial functions. The trial judge personally must be aware of the contemptuous conduct; no evidentiary hearing would be required to determine the facts establishing the conduct found to be of a contemptuous character. (People v. Javaras (1972), 51 Ill. 2d 296, 281 N.E.2d 670; but see In re Estate of Melody (1969), 42 Ill. 2d 451, 248 N.E.2d 104.) Since the contumacious conduct is committed in the presence of the court, the contemnor may be adjudged and sanctioned in a summary manner. City of Chicago v. Chicago Fire Fighters Union (1981), 99 Ill. App. 3d 583, 425 N.E.2d 1071.

In a direct contempt setting there need not be any specific showing of intent to be contumacious. The requisite intent becomes evident from the contumacious conduct itself. Thus, only a general intent need be established, and that general intent may be discerned in the contemptuous conduct. Whether a direct contempt has been committed depends upon the act and not the alleged intention of the offending party. A contemptuous state of mind may be inferred from a contemptuous act. Thus, the intent may be inferred from the proof of the surrounding circumstances and from the character of the action of the contemnor. People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50; People v. Haas (1981), 100 Ill. App. 3d 1143, 427 N.E.2d 853; People v. Rodriguez (1980), 91 Ill. App. 3d 626, 414 N.E.2d 1202.

Contumacious conduct constitutes indirect contempt if it is committed out of the presence of the judge and is therefore dependent for its proof upon extrinsic evidence of some kind or upon the establishment of facts of which the court has no personal knowledge. (People v. Harrison (1949), 403 Ill. 320, 86 N.E.2d 208.) Thus, where the contumacious act is not an apparent one and its demonstration depends on proof of facts of which the court has no judicial notice, the contumacious conduct properly is characterized as indirect contempt. Under such circumstances the law requires that the alleged contemnor be granted all due process rights so that he is given a reasonable opportunity to defend against the charge. People v. Skar (1964), 30 Ill. 2d 491, 198 N.E.2d 101; People v. Gholson (1952), 412 Ill. 294, 106 N.E.2d 333.

The record here clearly discloses that the trial judge required and the parties presented evidence on the issue concerning the production of the airline tickets. Lovecchio strongly urged that he had no present knowledge of the tickets or their whereabouts. The proceeding was presented in an adversary manner; witnesses testified, as Lovecchio himself ultimately did.

The determination by the trial judge that there had been a refusal to abide by the court’s production order of June 24, 1981, was dependent on the trial judge’s evaluating and considering the truth or falsity of the evidence presented. It is apparent that the conclusion reached by the trial court on the issue of contempt was based on the extrinsic evidence presented, not on the trial court’s personal knowledge of the events that had transpired. Additionally, the record affirmatively shows the submission to the trial court of a petition seeking contempt sanctions against Lovecchio, the filing of a response and supporting memorandum by Lovecchio, and the detailed testimony and cross-examination of various witnesses, including Lovecchio.

Considering the foregoing, we necessarily agree with Lovecchio that the proceeding involved here was in the nature of an indirect contempt of court. (People v. Siegel (1981), 102 Ill. App. 3d 529, 430 N.E.2d 142.) However, the fact that the trial court mischaracterized as “direct” rather than “indirect” does not mean that the finding of contempt must be abrogated and the sanction revoked. The fact that a trial judge erroneously describes the nature of the conduct in issue is not a satisfactory legal basis for negating the proof of the alleged misconduct and vacating the sanction imposed. See Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217, 220.

II

Lovecchio also contends that reversible error occurred when the trial court allegedly concluded that Lovecchio was guilty of “civil contempt.” Lovecchio asserts that if he were to be found guilty of contempt, the nature of the contempt would be criminal and not civil. We disagree. We conclude that the contempt here was civil in nature.

Civil contempt differs from criminal contempt, not in the character of the contumacious conduct involved, but in the purpose of the citation proceeding. While a criminal contempt proceeding is punitive in nature, having the intent to punish for a past contumacious act, a civil contempt proceeding is coercive in nature, its intent being to obtain compliance with the court’s order or judgment. People v. Denson (1975), 59 Ill. 2d 546, 322 N.E.2d 464.

In Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 208-09, 357 N.E.2d 477, 479, the court, quoting from People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409-10, 173 N.E.2d 417, 418, defined and distinguished civil and criminal contempt as follows:

“Contempt proceedings, while usually called civil or criminal, are, strictly speaking, neither. They may best be characterized as sui generis, and may partake of the characteristics of both. [Citations.] Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citations.] These principles, while seemingly plain and adequate, are most difficult to apply. The line of demarcation in many instances is indistinct and even imperceptible. [Citation.] A further guide may be found in the purpose of punishment. Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In re Nevitt (8th Cir.), 117 Fed. 448, 461, ‘he [the contemnor] carries the key of his prison in his own pocket.’ ”

Civil contempt has been defined as “an attempt by a court to compel compliance with its orders.” (County of Cook v. Lloyd, A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 135, 319 N.E.2d 472, 475.) It is clear that the contempt order entered by the trial court in this case is civil in nature because its purpose was to compel Lovecchio’s compliance with the trial court’s production order.

“A civil contempt decree must provide defendant with the keys to his cell, enabling him through compliance with the terms of the command to purge himself of contempt.” (Continental Illinois National Bank v. Brack (1979), 71 Ill. App. 3d 789, 792-93, 390 N.E.2d 373, 375-76, citing People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736, and Welding Industrial Supply Co. v. Northtown Industries, Inc. (1978), 58 Ill. App. 3d 625, 374 N.E.2d 1002.) Here, Lovecchio was compelled to produce the airline tickets as ordered by the trial court, and by doing so he could obtain his immediate release from custody. The sanction imposed was coercive: it sought to compel obedience to the court’s order for the benefit of the opposing litigant. The sanction was not punitive; it was instituted not to vindicate the authority and dignity of the court but rather to obtain compliance with the court’s order. City of Chicago v. Chicago Fire Fighters Union (1981), 99 Ill. App. 3d 583, 425 N.E.2d 1071; People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 387 N.E.2d 856.

It is thus clear that the contempt proceedings were civil in nature and that the court actually found Lovecchio guilty of “indirect civil contempt.” As noted, the fact that the trial judge incorrectly designated the contempt as “direct [civil] contempt” is not reversible error. The findings and sanction are based on the evidence presented in their support and not on the nomenclature used to describe them.

Ill

As previously set forth, Lovecchio also claims that he could not be found guilty of contempt because he had no intention to act in a contemptuous manner, and additionally that he could not comply with the trial court’s production order because he had no present knowledge of the whereabouts of the airline tickets and was unable to produce them. He asserts that an alleged contemnor cannot be held in contempt when he is unable to comply through no fault of his own. (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 364 N.E.2d 430.) However, the issues of intent and of impossibility of performance are to be decided by the trier of fact based upon the trier’s evaluation of all the evidence presented. The determination of which witness is to be believed is singularly within the province and determinative scope of the trier of fact. (See People v. Randall (1980), 89 Ill. App. 3d 406, 411 N.E.2d 1017.) The trial judge was entitled to disbelieve Lovecchio’s testimony. Further, the trial judge was not obligated to search for a series of potential explanations compatible with Lovecchio’s innocence. People v. Pitchford (1976), 39 Ill. App. 3d 182, 350 N.E.2d 170.

Where, as in this case, the evidence was merely conflicting and where an evaluation of credibility or the weight of the evidence was made by the trial judge, a court of review has no right to substitute its judgment for that of the trier of fact (People v. Droskiewcz (1978), 64 Ill. App. 3d 69, 380 N.E.2d 1014), unless the evidence is so unreasonable, improbable, or unsatisfactory as clearly to require a different conclusion. Our review of the record fails to disclose a legal basis for this court to determine that the conclusion reached by the trial judge on the issue of contempt was erroneous. (People v. Norris (1969), 118 Ill. App. 2d 406, 254 N.E.2d 304.) The finding of contempt was a matter of fact determined by the trial judge and it cannot be disturbed on this review unless the trial court was guilty of a clear abuse of discretion. (Frank B. Hall & Co. v. Payseur (1981), 99 Ill. App. 3d 857, 425 N.E.2d 1002.) Based on the record before us we do not find an abuse of discretion. Necessarily, we conclude that contempt of court was established. People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273.

We are aware that Lovecchio also suggests that since only one airline ticket was validated and had some minimal value, his failure to abide by the trial court’s production order should be excused. Lovecchio asserts that “production [of the airline tickets] would have given no measurable gain to the plaintiff except to replenish its office shelf inventory of blank tickets.” We find no merit in this argument.

IV

Lovecchio also contends that he was denied his due process rights and that as a consequence the contempt findings and sanction must be set aside. We disagree.

The record clearly discloses the filing of pleadings setting forth the charges asserted against Lovecchio. Responsive pleadings and supportive memoranda were filed by Lovecchio. The contest on the issue of contempt was presented in significant detail with a number of witnesses testifying and being cross-examined vigorously by Lovecchio’s counsel. Lovecchio himself testified both as an adverse witness and as a witness on his own behalf. Where the hearings became somewhat informal in nature and an in-chambers conference took place, not only was there no objection voiced to the proceedings but, in fact, Lovecchio’s counsel requested the in-chambers conference. Lovecchio was given adequate notice of the proceedings, a right to respond, a full hearing, and the rights to counsel and to confrontation. (People v. Pincham (1976), 38 Ill. App. 3d 1043, 350 N.E.2d 67.) Our study of the record fails to disclose any basis for a claim that Lovecchio was denied any of his due process rights. See Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 357 N.E.2d 477; People v. Martin-Trigona (1980), 94 Ill. App. 3d 519, 418 N.E.2d 763; In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 364 N.E.2d 430.

V

Additionally, Lovecchio claims that “the court’s sentence of thirty days in jail was improperly imposed since the defendant [Lovecchio] was not afforded an opportunity to present any of the considerable evidence available in mitigation ***.”

We have reviewed the record and find no support for the charge that Lovecchio was denied the right to present evidence in mitigation following the trial court’s finding of contempt. In fact, no request to submit matters in mitigation was made by Lovecchio. Having failed to request a mitigation hearing, defendant is considered to have waived the right to that hearing. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Martin-Trigona (1980), 94 Ill. App. 3d 519, 418 N.E.2d 763.) We also note that matters of mitigation were first raised by Lovecchio in connection with his petition filed on November 6, 1981, seeking bail. We find no merit to Lovecchio’s claim that he was denied a right to present evidence in mitigation following his being found in contempt of court.

VI

We now address the effect of circumstances which developed while this appeal was pending as set forth in motions filed in this court. It would appear that in December 1981 Underwater Adventure Tours, Ltd., filed for bankruptcy protection, and the bankruptcy judge ordered a stay of other proceedings against the debtor. (11 U.S.C.A. sec. 362(a) (1979).) However, on January 13, 1982, the circuit court of Cook County dissolved the injunction it had issued on June 19, 1981, and dismissed the complaint of Sunset Travel, Inc., and Underwater Adventure Tours, Ltd., with prejudice. Thereafter the bankruptcy judge found that the circuit court’s dissolution order of January 13, 1982, was void against Underwater Adventure Tours, Ltd., because of the Federal court’s prior stay order.

We now consider the ramification of these developments.

The dismissal of Sunset Travel, Inc., could have a potential importance in eventual resolution of the contempt proceedings. (People’s Housing Development Corp. v. City of Poughkeepsie (S.D.N.Y. 1976), 425 F. Supp. 482, 495; see also People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 504-05, 387 N.E.2d 856.) However, we do not believe that the matters presented to us justify setting aside the contempt order in this case.

Generally, collateral disputes between third-parties are not affected by bankruptcy proceedings unless settlement of that collateral matter is necessary to completely administer the bankrupt’s estate. (In re Shirley Duke Associates (2d Cir. 1979), 611 F.2d 15, 18.) The record in the present case indicates that the corporations in question were closely related and in fact were basically controlled by the same individual. This interrelationship could result in the eventual determination that the bankrupt’s estate might be affected by the action of Sunset Travel, Inc., and Lovecchio. We therefore do not have before us a sufficient record upon which we might conclude that the trial court properly dismissed the action as to Sunset Travel, Inc.

This case presents a situation where Lovecchio has clearly attempted to frustrate and obstruct an orderly judicial proceeding. He obviously was in possession of the airline tickets which he was commanded to produce, yet he denied such possession despite overwhelming evidence to the contrary. However, this dispute has lingered for almost two years, and we believe that the effects of the contempt sanction may have lessened during the interim. Accordingly for that reason and in view of Lovecchio’s incarceration for three days pending his release on a stay bond, we believe the contempt sanction should be modified to 27 days of work-release weekend incarceration or until the tickets are produced. Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)); cf. City of Park City v. Broston (1974), 24 Ill. App. 3d 442, 448, 321 N.E.2d 15.

The contempt order is therefore affirmed as modified.

Affirmed as modified.

JOHNSON, J., concurs.

JUSTICE JIGANTI,

dissenting:

The trial judge found the defendant, Robert Lovecchio, in contempt of court because he failed to produce the airline tickets. The defendant claimed that he did not have possession of the tickets. The trial court did not believe Lovecchio and neither do we. As the opinion states, Lovecchio “clearly attempted to frustrate an orderly judicial proceeding.”

The effect of the trial court’s order was to place the keys to the jail in the defendant’s pocket. The order provided that the defendant would have the right to immediate release upon purging himself of contempt by producing the airline tickets. However, because the dispute has languished for almost two years, the majority now reasons that “the effects of the contempt sanction may have lessened during the interim.” I fail to understand why the contempt sanction has been diminished by a lapse of time. Lovecchio’s contumacious behavior deserves the sanction originally meted out by the trial court.

       The order of August 3, 1981, sets forth the trial court’s adjudication that Lovecchio was guilty of “direct contempt” of court. However, no reference is made in the order to the effect that the contempt was civil or criminal in nature.

       It appears that Shearer was excluded from responsibility for failure to abide by the order of the trial judge. The contempt findings and sanction were directed to Lovecchio alone.

       A stay of sentence pending appeal was not immediately perfected. In consequence, Lovecchio was confined for three days, after which he was released on bond pending the disposition of this appeal.

       See footnote  above.

       Again we note the court’s order of August 3, 1981, found the contempt to be “direct contempt.” No reference is made to the contempt being civil or criminal in nature.

       In passing we note that the trial court’s sanction of 30 days confinement appears to be punitive in nature; mitigation evidence would only be relevant in a punitive sanction setting. Here, however, Lovecchio could avoid confinement by complying with the trial court’s “coercive” order. It would have been legally sufficient and less confusing if the trial court merely invoked confinement until compliance with the court’s order or the further order of court. It would then have been clear that the nature of the contempt involved was civil (coercive) rather than criminal (punitive). Under these circumstances a sentence for a fixed term would be inappropriate. See City of Park City v. Brosten (1974), 24 Ill. App. 3d 442, 321 N.E.2d 15.