author: PRESIDING JUSTICE JOHNSON JUSTICE JIGANTI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY R. MARTIN-TRIGONA, Defendant-Appellant.
    First District (4th Division)
    No. 80—3104
    Opinion filed December 16, 1982.
    Rehearing denied January 18, 1983.

      JIGANTI, J., dissenting.
    Paul Bradley, 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.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Anthony R. Martin-Trigona, appeals his conviction for forgery and theft (Ill. Rev. Stat. 1975, ch. 38, pars. 17—3(a), 16—1(a)), and raises the following issues for review: (1) whether the court erred in finding him guilty of theft; (2) whether the court erred in failing to dismiss the forgery counts and in finding him guilty of forgery; (3) whether an indictment may be voted by less than a quorum of informed grand jurors; (4) whether the indictment should have been dismissed because of improper conduct by the prosecutors before the grand jury; (5) whether his prior conviction was improperly introduced into evidence; and (6) whether his sentence was based on improper considerations.

We affirm in part and vacate in part and remand, with directions.

Most of the facts in this case are undisputed. In early 1977, defendant decided to construct 14 townhouses on property he already owned in Champaign, Illinois. The real estate was held as a land trust by the National Boulevard Bank and Trust Company. Defendant employed Gene T. Hardwick as architect, and the latter recommended John Wright as cdntractor. In February 1977, the Bloomington Federal Savings and Loan Association (Bloomington) made a construction loan to defendant of $400,000. The project was insured for $500,000 by the Maryland Casualty Company. The building was partially complete when all but five units were destroyed by fire in June 1977. Defendant decided to complete only the five remaining townhouses, and the construction loan was reduced to 5/i4ths of the original amount, $142,500.

The insurance company paid a partial settlement of $60,000 which Wright used to continue the project. Defendant and Wright disagreed on whether or not to accept the insurance company’s settlement offer of $327,738. Defendant believed the settlement should be for $345,000, but Wright wanted to settle for the lower amount because of cash flow problems. When Wright discounted the remaining work by $18,362, defendant agreed to sign the proof of loss for $327,738. Wright prepared a change order which represented the amount of money needed to finish the building. He wrote on the document that the net balance due to him was $45,125.75. He gave this document to defendant just before defendant signed the proof of loss.

The insurance company issued a draft for $267,738 which represented the remainder of the settlement, payable to the National Boulevard Bank as trustee for defendant, Bloomington and Wright. Wright picked up the draft in Milwaukee, Wisconsin, and delivered it to defendant in Chicago around November 1, 1977. Defendant directed the National Boulevard Bank to endorse the draft to himself so that he could negotiate it at the closing on the construction loan.

Ralph Sackett, a loan officer at the University Federal branch of Bloomington, prepared the final settlement statement after conversations with defendant and Wright. The $267,738 draft was to be split three ways: Bloomington was to be paid about $150,000, the amount necessary to reduce the mortgage to $142,500; Wright was to be paid $42,342, an amount described as including retainage; and defendant would receive the remainder, $72,433.

Defendant, Sackett, Wright and architect Hardwick attended the closing on November 8, 1977. Wright had not finished the building on that date. A dispute arose between Wright and defendant. Defendant said that he only owed Wright $45,000 because that was the net balance due which Wright had listed on the proof of loss. Wright insisted that he was owed an additional $39,000 for retainage. Ten percent had been held back from each pay-out to Wright to be paid when he obtained a certificate of completion from the architect; Hardwick never issued this certificate. Defendant offered to put the disputed amount into escrow and settle the dispute by litigation. Wright refused this offer and refused to endorse the draft. Bloomington would not settle without Wright’s signature on the insurance draft.

After the failure to reach a settlement, defendant typed on the back of the draft “Anthony R. Martin-Trigona, Attorney in Fact for Bloomington Federal Savings and Loan” and “Anthony R. Martin-Trigona, Attorney in Fact for John Wright.” Defendant signed his name and had his signature guaranteed at the National Boulevard Bank. Neither Bloomington nor Wright gave defendant authority to sign on their behalf. Defendant deposited the draft in his personal checking account at LaSalle National Bank in Chicago on November 10,1977.

A $50,000 check dated November 7, 1977, and drawn on defendant’s LaSalle account was returned for insufficient funds the first time it was presented. On second presentment, after deposit of the settlement draft, it was paid. On November 23, 1977, defendant requested a wire transfer of $175,000 to defendant’s personal account in the Connecticut Bank and Trust Company. Defendant used these funds to purchase a 30-day $115,000 certificate of deposit in January 1978, and later, a 7-day $100,000 bank note. Eventually the money wound up in the account of a New Haven radio station which defendant owned. The parties stipulated that all withdrawals from the LaSalle Bank and the Connecticut Bank were written and authorized by defendant and used by him to make payments on various mortgages or loans.

In December 1977, defendant approached Bloomington about a settlement and filed a lawsuit against it and Wright. Defendant never advised Bloomington or Wright that he had negotiated the draft. In April 1978, when Bloomington discovered that the draft had been cashed, it contacted the Cook County State’s Attorney.

Bloomington made a total pay-out on the construction loan of $270,000. When the loan was first made, Bloomington charged $8,000, or two points. This was not reduced when the loan was renegotiated to the amount actually paid. Defendant never paid interest on the loan and never made any mortgage payments. Bloomington instituted foreclosure proceedings, and the property was sold for $115,000. Neither Wright nor Bloomington ever received any proceeds of the settlement draft.

Defendant was indicted on three counts of forgery and four counts of theft. At trial defendant testified that he acted in economic self-defense. He stated that he never intended to defraud or permanently deprive Wright or Bloomington of their share of the proceeds. After doing his own legal research, defendant, a law school graduate, decided that the payees on the settlement draft were tenants in common. His strategy was to gain control of the money, precipitate or file a lawsuit, and let the court decide on the proper distribution of the proceeds. Defendant claimed that there were defects in the building, that Wright had waived the right to his retainage, and that Bloomington should have reduced the points because the original construction loan was reduced.

On rebuttal, defendant’s Federal conviction of mail fraud was received into evidence. And, at the close of this bench trial, defendant was found guilty on all counts and sentenced to the custody of the Attorney General of the United States for three years, the sentence to run concurrently with a sentence imposed by a Federal judge on September 26,1980. Defendant appeals his conviction.

Defendant’s first contention is that the court erred in finding him guilty of theft because he did not intend to permanently deprive Wright and Bloomington of their property. Defendant argues that his endorsement of the draft constituted economic self-defense because Bloomington was billing him for interest every day until the loan was paid. His filing of a lawsuit against Bloomington and Wright in December 1977 was a good faith attempt to settle the dispute. Defendant’s signing of the draft in his own name and the deposit of the insurance proceeds in his own. accounts showed no intent to hide his actions. His use of the money to pay mortgages and for contract purchases of real estate was the best way to keep the money from depreciating. Finally, defendant argues that his indemnity agreement with LaSalle by which he held himself liable for any money due Bloomington' or Wright demonstrated no intent to permanently deprive them of their property.

With regard to intent to permanently deprive an owner of his property, such intent may seldom be proved by direct evidence and therefore must be deduced from acts committed and circumstantial evidence. (People v. Mays (1980), 80 Ill. App. 3d 340, 343, 399 N.E.2d 718, 720.) Whether defendant had the requisite felonious intent is a question for the trier of fact, who has the prerogative to believe or disbelieve defendant’s testimony. People v. Campbell (1975), 28 Ill. App. 3d 480, 484, 328 N.E.2d 608, 612.

In the instant case, the circumstances of defendant’s conduct justify the finding that defendant possessed the intent to permanently deprive Wright and Bloomington of the proceeds of the check. Defendant never informed Wright or Bloomington that he had endorsed the check and deposited it in his own personal checking account at LaSalle, he did not have authority to endorse the check as their attorney in fact, and he transferred the funds at LaSalle to another personal account in a Connecticut bank, from which he made payments on mortgages and loans. Therefore, we hold that there was sufficient evidence to support a finding of guilty beyond a reasonable doubt.

The next issue raised by defendant is whether the court erred in denying his motion to dismiss the forgery counts of the indictment. Modern courts disregard mere technical objections and require only that an indictment fully state the essential elements of the offense charged. (People v. DePratto (1976), 36 Ill. App. 3d 338, 341, 343 N.E.2d 628, 630.) Whether an indictment sufficiently charges an offense does not depend on nice attention to technicalities of pleadings or formulistic recital of allegations. (People v. DePratto (1976), 36 Ill. App. 3d 338, 341.) An indictment that enables a defendant to prepare his defense and sustain a plea of judgment in bar of any further prosecution for the same offense is sufficient to charge a crime. (People v. DePratto (1976), 36 Ill. App. 3d 338, 341.) Not every omission from the allegations of an indictment will prevent it from having the specificity which will enable a defendant to prepare his defense. People v. DePratto (1976), 36 Ill. App. 3d 338, 341.

In the instant case, count I of the indictment charged that Trígona “with the intent to defraud, knowingly delivered to the LaSalle National Bank, a certain draft *** knowing that said draft and order for the payment of money was endorsed in such manner that it purported to have been endorsed with the authority of the Bloomington Federal Savings and Loan Association and with the authority of John A. Wright and knowing that neither had given such authority ***.” Counts II and III charged that defendant with intent to defraud, knowingly endorsed the draft in such manner that it purported to have been made by authority of Wright and Bloomington. Each count included a copy of both sides of the draft. We hold that the indictment was sufficient to enable defendant to prepare his defense because it informed him of the charges against him, and that the trial court did not err in denying the motion to dismiss the forgery counts.

Defendant argues that the trial court erred in finding him guilty on the forgery counts. He contends that a person commits forgery in Illinois when he makes or alters a document as described in the forgery statute (Ill. Rev. Stat. 1975, ch. 38, par. 17—3(a)). The forgery counts do not allege that defendant made or altered a document; therefore, defendant contends, they do not allege an offense under the statute. Defendant further claims that to sustain a conviction for forgery there must be a false writing with the intent that it shall be received as the act of another party. Defendant contends that since he signed his own name and had his signature guaranteed, he did not intend that his writing should be received as the act of another party. Defendant cites as controlling authority Gilbert v. United States (1962), 370 U.S. 650, 8 L. Ed. 2d 750, 82 S. Ct. 1399, which holds that the endorsing of a check in a representative capacity is not forgery even if the authority to sign for another is misrepresented. We reject defendant’s contentions. The Illinois forgery statute differs from the Federal law and provides as follows:

“A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority ***.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 17— 3(a).)

Thus, the common law rule of Gilbert is inapposite because the Illinois forgery statute specifically prohibits the unauthorized making or alteration of a document. (See People v. Young (1974), 19 Ill. App. 3d 455, 311 N.E.2d 609.) We hold, therefore, that the trial court did not err in finding defendant guilty of forgery.

Defendant raises the issue of whether an indictment may be voted by less than a quorum of informed jurors. The grand jury heard evidence on this case between May 1978 and August 1979. On August 3, 1979, 19 jurors were present when the vote to indict was taken. Of the 19, 9 were present on all dates when evidence was presented, and 14 were present when defendant testified on June 27, 1978. Defendant contends that he was deprived of his right to a quorum of informed jurors.

A grand jury consists of 23 persons, 16 of whom constitute a quorum. (Ill. Rev. Stat. 1979, ch. 38, par. 11—2.) If 12 of 16 jurors concur that the evidence before them constitutes probable cause, then the indictment shall be returned in open court. (Ill. Rev. Stat. 1979, ch. 38, par. 112—4(d).) In the instant case, the statutory requirements were fulfilled. We reject defendant’s argument that reads into the statute a requirement that every juror voting on an indictment must have heard all the evidence. As Judge Learned Hand stated in United States ex rel. McCann v. Thompson (2d Cir. 1944), 144 F.2d 604, 607:

“Indeed, the possibility that not all who vote will hear all the evidence, is a reasonable inference from the fact that sixteen is a quorum. Were the law as the relator argues, it would practically mean that all jurors present at the beginning of any case, must remain to the end, for it will always be impossible to tell in advance whether twelve will eventually vote a true bill, and if they do, who those twelve will be. The result of such a doctrine would therefore be that in a long case, or in a case where there are intervals in the taking of evidence, the privilege of absence would not exist. That'would certainly be an innovation, for the contrary practice has, so far as we are aware, been universal; and it would be an onerous and unnecessary innovation.”

In our opinion, defendant was properly indicted by a quorum of grand jurors.

Defendant’s next contention is that the trial court erred in denying his supplemental motion to dismiss the indictment. He alleges that the following acts of the prosecutor prejudiced him before the grand jury:

(1) On May 23, 1978, George Monaco, an assistant State’s Attorney, said that he had asked defendant to come to his office and explain the insurance draft. Although defendant agreed to come the next day, he never appeared.
(2) On May 31, 1978, Bonnie Phemister, an assistant State’s Attorney, told the grand jurors that defendant’s attorney, Paul Bradley, had moved to quash a subpoena.
(3) On June 1, 1978, Phemister told the grand jurors that she was unable to serve defendant with a subpoena and under Illinois law failure to serve defendant prevented the State’s Attorney from obtaining records from Bloomington, the complaining witness.
When a juror asked why Bradley had made no effort to get defendant to testify, Phemister stated that Monaco had contacted defendant to set up appointments which defendant later failed to keep.
Phemister stated that Monaco incorrectly thought that Bradley represented the trust when in fact he represented the beneficiary of the trust, Martin-Trigona, in a motion to quash a subpoena. Phemister stated:
“*** Mr. Bradley indicated that Mr. Martin-Trigona has some kind of a criminal case, appeal or something in Champagne [sic] County and that he has to be in court on that case from time to time, and I want to find out from a State’s Attorney in Champagne [sic] County when that case is up again. If nothing else, we can get somebody down in court on that case and serve him the minute he walks out the door because at least we know he has to show up on that case or risk having a warrant issued if he misses that court date *** fl
When Phemister stated that defendant had not lived at home addresses given to the State’s Attorney, a juror said: “He obviously has nothing to hide. Real easy to get a hold of. Very straightforward. ’ ’
(4) On September 29, 1978, Phemister characterized the insurance proceeds as “stolen.”
Phemister said that the State’s Attorney was unsuccessful in a ex parte hearing in Connecticut to obtain records from the Connecticut Bank and Trust Company. The bank did not object to sending the records requested, but defendant had intervened. Phemister further stated:
“One interesting point: In the Petition that he filed in Hartford, he stated that he was a resident of Middletown, Connecticut. And I think that will be interesting if he runs for office here in Illinois, for the Illinois voters to know that he is a resident of Connecticut because I thought he was a resident of Lake Shore Drive here in Chicago.”
(5) On August 3, 1979, Monaco told the grand jurors that the State’s Attorney had filed a petition in Connecticut for bank records. After the court ordered the bank to turn over the records, defendant appealed. Monaco stated that the appeal had been in the Connecticut Appellate Court “for many months. And I’m told it will be there for many more months.”
Monaco informed the jurors that the charge against defendant would be forging the names of Wright and Bloomington.
(6) Defendant also found prejudicial the following: Phemister’s summary on June 1, 1978 of telephone conversations between herself and Hardwick and Sackett; Phemister’s summary on August 24, 1978 of her conversation with Natale Urso of Westerly Broadcasting Company in Rhode Island; and Phemister’s September 28,1978 analysis of bank records.

Section 114 — 1(a)(5) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1977, ch. 38, par. 114 — 1(a)(5)) provides that the trial court may dismiss an indictment returned by a grand jury which acted contrary to article 112 of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 112—1 et seq.) if the conduct results in substantial injustice to the defendant. (People v. Haag (1979), 80 Ill. App. 3d 135, 139, 399 N.E.2d 284, 287.) The burden is on the defendant to show that the prosecutorial conduct complained of resulted in actual and substantial prejudice to him. (People v. Haag (1979), 80 Ill. App. 3d 135, 140.) In the instant case, defendant merely alleges -without explaining that the prosecutor’s conduct prejudiced the grand jury. We conclude that even if the allegations of misconduct were true, defendant has failed to establish that his due process rights were violated. Therefore, we hold that the trial court properly refused to dismiss the indictment.

Defendant next contends that the trial court erred by admitting into evidence defendant’s prior conviction for impeachment purposes. Prior to the trial in this case, defendant was convicted of mail fraud in the United States District Court for the Central District of Illinois, but, on July 16, 1982, that conviction was reversed and remanded for a new trial by the United States Court of Appeals, Seventh Circuit. The court held that “the trial court’s failure to conduct an appropriate inquiry into Martin-Trigona’s financial ability to retain counsel was reversible error.” (United States v. Martin-Trigona (7th Cir. 1982), 684 F.2d 485, 490.) Defendant argues that the admission of a prior conviction which is constitutionally infirm under Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, is inherently prejudicial (Burgett v. Texas (1967), 389 U.S. 109, 115, 19 L. Ed. 2d 319, 325, 88 S. Ct. 258, 262), and that an infirm prior conviction cannot be used to impeach an accused’s credibility. Loper v. Beto (1972), 405 U.S. 473, 483, 31 L. Ed. 2d 374, 381, 92 S. Ct. 1014, 1019.

In People v. Miller (1975), 27 Ill. App. 3d 788, 327 N.E.2d 253, defendant argued that it was error to use a conviction, subsequently reversed, to impeach him. The court addressed the issue of “[w]hat result obtains when a conviction which is pending on appeal at the time of trial, but is reversed after the conviction, has been used for impeachment purposes?” (27 Ill. App. 3d 788, 791.) The Miller court held that where the prior conviction was not void at the time of its introduction into evidence, it does not constitute reversible error for the State to utilize the conviction for purposes of impeachment even though the prior conviction is later reversed on appeal. 27 Ill. App. 3d 788, 792.

The word, “void” has been defined as having no legal force or binding effect. (Black’s Law Dictionary 1411 (5th ed. 1979.) Defendant’s Federal conviction was voidable, capable of being declared void rather than void because on remand defendant could be found guilty in a new trial. Therefore, we hold that, it was not reversible error for the State to use the Federal conviction for impeachment purposes. Furthermore, as discussed above, there was sufficient substantive evidence from which the trier of fact could infer that defendant was guilty of the offenses alleged.

Finally, defendant contends he is entitled to reconsideration of his sentence because the trial judge considered his mail fraud conviction in reaching his decision. Before imposing a sentence of three years to run concurrently with defendant’s Federal sentence, the trial judge stated that “the defendant has previously been convicted of a felony, and I’m considering that in my sentence.” We agree with defendant. An accused is entitled to a reconsideration of his sentence where the trial court, in imposing the sentence, considered a prior conviction which was later reversed. (People v. Henderson (1981), 95 Ill. App. 3d 291, 297, 419 N.E.2d 1262, 1266.) We, therefore, vacate the sentence and remand this cause to the trial court for a new sentencing hearing.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and vacated in part and remanded, with directions for a new sentencing hearing.

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

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

“[T]he use of convictions constitutionally invalid under Gideon v. Wainwright [(1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792] to impeach a defendant’s credibility deprives him of due process of law.” (Loper v. Beto (1972), 405 U.S. 473, 483, 31 L. Ed. 2d 374, 381, 92 S. Ct. 1014, 1019.) Martin-Trigona’s conviction in the Federal court was reversed because he did not have counsel as required under the holding of Gideon.

A trial judge certainly could not have anticipated that the United States Court of Appeals was going to reverse the matter on the grounds that the defendant had no counsel. That is an unfortunate situation, as the Loper case points out. (405 U.S. 473, 484, 31 L. Ed. 2d 374, 382, 92 S. Ct. 1014, 1020.) However, the evidence was admitted and the issue is whether that admission was harmless error. In my judgment I cannot say that it is harmless, and consequently I believe that the cause should be reversed and remanded.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK J. GORMAN CONSULTANTS, INC., et al., Defendants-Appellants.—(The State of Illinois et al., Counterdefendants-Appellees.)
    First District (3rd Division)
    Nos. 81—1099, 81—1322 cons.
    Opinion filed December 30, 1982.
    Shelly Waxman & Associates, of Chicago, for appellants.

      Tyrone C. Fahner, Attorney General, of Chicago (Leslie J. Rosen, Assistant Attorney General, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

In this consolidated appeal, defendants Patrick J. Gorman, Martin D. Gorman and Patrick J. Gorman Consultants, Inc., appeal from a portion of a trial court order which dismissed their counterclaim against the State of Illinois, the Attorney General and his three named assistants.

The Attorney General originally filed charges in 1976 for violations of “An Act to regulate solicitation and collection of funds for charitable purposes ***” (Ill. Rev. Stat. 1977, ch. 23, par. 5101 et seq.). Since then, this court has issued three decisions in the matter: People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill. App. 3d 331, 376 N.E.2d 665 (liability and injunction prohibiting further solicitation affirmed); People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 387 N.E.2d 856 (supplemental proceedings reversed and contempt citations quashed); and People ex rel. Scott v. Gorman (1981), 96 Ill. App. 3d 289, 421 N.E.2d 228 (award of damages vacated and remanded).

In October 1980, the Gormans filed the present counterclaim. Count II alleged that plaintiffs violated the Federal civil rights act and committed State common law torts. The Gormans sought compensatory and punitive damages in excess of $3,500,000. In its order of dismissal entered on March 31, 1981, the trial court found that the State was immune based on State sovereign immunity and that the prosecutors were “absolutely immune” for any of the alleged acts.

We first address the Gormans’ contention that the Attorney General waived State sovereign immunity by filing suit against the Gormans.

Section 4 of article XIII of the 1970 Constitution abolished the doctrine of sovereign immunity “except as the General Assembly may provide by law.” The General Assembly retained sovereign immunity by enacting legislation which states: “Except as provided in ‘An Act to create the Court of Claims ***’ the State of Illinois shall not be made a defendant or party in any court.” (Ill. Rev. Stat. 1979, ch. 127, par. 801.) Section 8 of the Court of Claims Act provides in pertinent part:

“The court [of Claims] shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation.” Ill. Rev. Stat. 1979, ch. 37, par. 439.8.

Thus, only the General Assembly, and hot the Attorney General, can determine when claims against the State will be allowed. (Seifert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 355 N.E.2d 537; see also Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 386 N.E.2d 885.) And the legislature has determined that sovereign immunity is waived only when suits against the State are brought pursuant to the Court of Claims Act.

To support their claim that the Attorney General has the authority to waive State sovereign immunity, the Gormans rely upon the holding in Marrapese v. State of Rhode Island (D. R.I. 1980), 500 F. Supp. 1207. There, however, the court specifically distinguished Rhode Island law, which contains a broad waiver of immunity, from Illinois law in which the waiver of immunity is carefully controlled by the Court of Claims Act. Accordingly, we find that the trial court properly dismissed the counterclaim against the State because the trial court lacked jurisdiction to determine the validity of the claims against the State.

The Gormans also argue that the trial court erred in finding the prosecutors absolutely immune from liability for any of the acts alleged. Because the counterclaim alleged violations of both Federal and State law, we address both State and Federal grants of immunity to State prosecutors.

In Illinois, pursuant to the doctrine of public official immunity, State officials and employees are fully protected from liability for acts falling within their official discretion. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131; Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868.) Discretionary acts are those which are unique to the particular public office and not merely ministerial in nature. Madden v. Kuehn; People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149.

In this case, the Gormans’ claims all relate to actions alleged to have been taken in the course of the prosecutions for violations of the Act. Section 9(a) of the Act specifically authorizes plaintiffs to prosecute violators and states in pertinent part:

“(a) An action for violation of this Act may be prosecuted by the Attorney General in the name of the people of the State, and in any such action, the Attorney General shall exercise all the powers and perform all duties which the State’s Attorney would otherwise be authorized to exercise or to perform therein.” (Ill. Rev. Stat. 1977, ch. 23, par. 5109.)

Because all of the actions are alleged to have been part of the proseention which is statutorily mandated by the Act, these actions are discretionary in nature. Therefore the counterclaim against the prosecutors was barred by the public official immunity doctrine and thus, properly dismissed by the trial court.

The Gormans contend, however, that along with State common law torts, Federal violations of the Act are involved. They argue that, pursuant to the holding in Imbler v. Pachtman (1976), 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984, plaintiffs are not entitled to absolute immunity and that therefore the State law public immunity doctrine is of no consequence in this case. In Imbler, the Supreme Court held that a prosecutor has absolute immunity in the initiation of a prosecution and in the presentation of the State’s case. The court left open the question whether prosecutors are entitled to absolute immunity for activities conducted by them in their administrative or investigative roles. We need not, however, reach that issue here. With the possible exception of one allegation that plaintiffs provided false information to newspapers (see Butz v. Economou (1978), 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894; Hampton v. Hanrahan (7th Cir. 1979), 600 F.2d 600), the allegations in the counterclaim all charge various ways in which plaintiffs improperly prosecuted and continue to prosecute the Gormans during the initiation of proceedings against them and in the presentation of the case. (Hampton v. Hanrahan; Daniels v. Kieser (7th Cir. 1978), 586 F.2d 64; Heidelberg v. Hammer (7th Cir. 1978), 577 F.2d 429.) Because these activities relate to the quasi-judicial functions of the prosecutors, they were properly afforded absolute immunity for such acts. Imbler v. Pachtman.

The sole claim that could be characterized as an activity outside plaintiffs’ prosecutorial roles is the providing of false information to newspapers. This claim, as well as all the other charges against plaintiffs, fails to contain any specific factual allegations which if proved would establish that any of the prosecutors exceeded their authority. Pleadings which state conclusions and characterize acts rather than state facts are insufficient. (Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) The Gormans therefore failed to state a cause of action for violation of the Federal civil rights act or the commission of a State common law tort.

For the reasons stated, the portion of the order of the circuit court of Cook County dismissing the Gormans’ counterclaim against the State of Illinois, the Attorney General and the three named assistant Attorney Generals is affirmed.

Order affirmed.

McGILLICUDDY and RIZZI, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DIANE KENT, Defendant-Appellant.
    First District (1st Division)
    No. 81—1493
    Opinion filed December 20, 1982.
    Patrick E. McGann, of Alsip, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendant Diane Kent was charged by indictment with the murder of her four-month-old daughter. Count I charged that defendant, in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(a)(1)), knowingly and intentionally killed the baby by feeding the child alcoholic beverages. Pursuant to defendant’s motion at the close of the State’s case, the trial court entered a finding in favor of defendant on this count. Count II charged that defendant violated section 9 — 1(a)(2) of the Criminal Code in that she knew her actions created a strong probability of death or. great bodily harm. Defendant was found guilty on this count and sentenced to 20 years in the Illinois Department of Corrections.

On appeal, defendant contends (1) she was not proved guilty beyond a reasonable doubt; (2) the trial court erred in assessing the qualifications of a defense expert on evidence outside the record'; (3) testimony regarding the results of tests performed on a tissue specimen was improperly admitted; and (4) the trial court erred in denying defendant’s motion for substitution of judges.

We reverse.

At trial, Officer McLaughlin testified that at about 12:30 p.m. on June 23, 1980, he arrived at defendant’s home. Paramedics at the scene stated the infant had no vital signs. Officer McLaughlin and his partner took the baby to Provident Hospital where at 1:15 p.m. the baby was pronounced dead. The deceased was then taken to Cook County Morgue.

Officer Michael Pochordo, a Chicago Police Department detective conducted a follow-up investigation on the baby’s death. On July 26, 1980, Pochordo spoke to Dr. Donoghue, the county pathologist, who told him the baby died of acute alcoholism. He interviewed defendant and her sister the following day at the police station. During the interview, defendant stated she was an alcoholic. Pochordo immediately called assistant State’s Attorney Schwind who interviewed defendant in Pochordo’s presence. On cross-examination, Pochordo testified that Dr. Donoghue initially attributed the cause of death to Sudden Infant Death Syndrome.

Richard Schwind testified that on July 27, 1980, Pochordo informed him of the facts of the baby’s death. He spoke to Dr. Donoghue and defendant’s sister and then interviewed defendant. During the interview, defendant agreed to give a written statement. This statement, given at 1:15 p.m. on July 27, 1980, was read into evidence. The following facts are found in the statement.

Defendant lived with her grandmother, aunt, sister and her sister’s three children. On June 22, 1980, defendant arose at 7 a.m. She fed the baby creamed corn and a bottle of milk. She also gave the baby liquid Tylenol because the baby had a fever. Defendant went to church and returned home at 2:30 p.m. She left again that afternoon, returned home at 9:30, fed the baby milk, and took her for a walk. The baby was sleeping when they arrived home. Thereafter, defendant and her sister’s boyfriend went to a bar where defendant drank four beers. At about midnight, defendant’s brother came to the bar to bring defendant home because the baby was crying. Defendant fed the baby a bottle of milk prepared by her sister. She and the baby fell asleep. At about 2 a.m. on June 23, 1980, the baby was crying, but would not drink the milk defendant tried to feed her. When defendant arose at noon, she lifted the baby. The baby was cold to the touch. Defendant also stated she was an alcoholic and attended Alcoholics Anonymous meetings. Twice daily from the time the baby was three weeks old, defendant gave the baby beer mixed with equal parts of water. She could not recall if she fed the baby beer on June 22 or 23.

Dr. Donoghue, physician, forensic pathologist, and deputy chief medical examiner of Cook County, performed an autopsy on Mary Jane Kent on June 24, 1980. He testified that the deceased weighed 12 pounds and measured 221k inches in length. These measurements indicated the baby was undernourished and suffered growth retardation. Ninety-seven percent of babies the age of the deceased weighed more and were taller than the deceased. Upon performing an internal examination, Dr. Donoghue found petechial hemorrhages on the lung surfaces and pulmonary edema fluid in the trachea. The liver was enlarged and pale tan in color. The stomach contained tan fluid. A microscopic examination of internal organs revealed fat vacuoles in the liver and aspiration of gastric content in the lungs. Aspiration occurred when stomach fluid traveled through the esophagus and trachea into the lungs where the fluid caused chemical damage. Aspiration prevents lungs from absorbing oxygen, thereby causing asphyxiation.

Dr. Donoghue also requested an alcohol determination on muscle tissue he removed from the neck of the deceased. The test is customarily performed on blood samples. However, he initially did not consider alcohol poisoning as a possible cause of death and thus preserved no blood from the body. The muscle tissue was sent to the toxocology lab. Test results revealed 20 milligrams percent ethanol in the tissue. Dr. Donoghue determined death was caused by aspiration of gastric content due to alcohol intoxication. Significant contributing factors were fatty liver and chronic alcoholism.

On cross-examination, Dr. Donoghue testified that the time of death was not ascertained exactly, but death occurred between 3 a.m. and 12:45 p.m. on June 23, 1980. He further testified that decomposition after death produces ethanol. If ethanol is produced post-mortem, it usually is accompanied by a bad odor. No similar odor is present if ethanol is produced from consumption of alcohol. The amount of ethanol found in body organs and fluid varies if ethanol production occurs post-mortem, whereás if ethanol is found in equal levels in different organs, its presence is not caused by decomposition.

Donoghue further testified on cross-examination that he took only one muscle sample and although he took the sample from the neck, several other muscles would have yielded suitable samples. When alcohol is consumed, its concentration first rises in the blood, then in the muscle, and is eventually equalized in all parts of the body. Generally, alcohol is eliminated from the system in 24 hours. The average ethanol level in those who die from alcohol poisoning is about 350 milligrams percent. Dr. Donoghue also stated a fatty liver is a manifestation of malnutrition and Reyes Syndrome. Other significant pathological findings in this case are also commonly found in children who succumb to Sudden Infant Death Syndrome.

Dr. Michael Schaffer, chief toxocologist for the office of the medical examiner of Cook County, supervised the laboratory at the morgue. He testified to the chain of custody of the muscle sample and described the procedures used to test specimens for volatiles. The muscle sample in this case was received by him at 2:49 p.m. on June 23, 1980. The tissue was not frozen. The tests were performed about 24 hours later. The method used to detect alcohol content does not distinguish the cause for presence of ethanol. The tissue sample was buried some time after the tests were performed.

Sofia Dziugas, a laboratory technician in the medical examiner’s office, performed tests on the muscle sample and described the testing procedures. The test was run three times to verify the results. The results were 19.5, 19.6 and 19.8 milligrams percent ethanol.

Dr. Leo Goldbaum, a toxocology expert called by the defense, testified that it is common to submit more than one tissue sample for examination in order to eliminate inaccurate findings due to specimen contamination. Alcohol contamination of specimens may occur when the specimen comes into contact with laboratory equipment from which disinfectant has not been adequately removed. The autopsy table and specimen jars are also sources of contamination. Almost every specimen from a post-mortem examination is contaminated by one or more microorganisms which produce ethanol upon reacting with certain body chemicals. Post-mortem contamination or putrefaction begins immediately, occurs rapidly, and cannot be detected by sight and smell alone. Refrigeration does not totally retard the process of decomposition. Determining whether ethanol is produced ante-mortem or post-mortem is difficult. However, if some specimens have a higher concentration than others, post-mortem contamination is indicated.

Dr. Goldbaum further testified that in cases where death is caused by acute alcohol intoxication, the concentration is about 400 milligrams percent. In adults, 20 milligrams percent alcohol would be an insignificant finding and would not have affected the physical state of the person. The important factor in alcohol’s effect on the central nervous system is the concentration in the body, not the amount consumed or the person’s height and weight. Dr. Goldbaum knew of no studies regarding the effects of alcohol on young people. However, experiments performed on small animals, some of which weighed about 12 pounds, have shown that 20 milligrams percent alcohol had no adverse effects. Further testimony revealed that prescription and nonprescription elixirs, including some medications designed for children, contain alcohol.

Defendant also called Dr. David Petty as an expert witness. At the time of trial, Dr. Petty was a physician and surgeon. He had received a degree in pathology and had been employed as a deputy coroner physician in Cook County for 10 years, during which time he performed over 500 autopsies. Several of Dr. Petty’s articles on cirrhosis of the liver had been published.

Dr. Petty testified that young children have a particularly low resistance to the virus called Reyes Syndrome. Pathological findings in a child who had died from this disease would be a fatty liver, congestion and edema in the lungs, and conjunction and edema of the brain. Malnutrition, alcoholism and various toxic conditions also cause fat vacuoles to develop in the liver. To help determine the cause of fatty liver, a Mallory test is often performed. In this test, liver tissue is stained with a special solution and microscopically examined for the presence of Mallory hyalines (hyaline membranes in liver cytoplasm). Hyalines are present in cirrhotic livers. However, they are not present in fatty livers associated with Reyes or other diseases.

Dr. Petty further testified that the generally accepted practice in testing muscle samples for the presence of ethanol or alcohol is to remove a sample from each of three different muscles. If test results on each sample are identical, the presence of alcohol is caused by alcohol ingestion. Considerable variance in test results would indicate production of ethanol from putrefaction. When death is caused by acute alcohol intoxication, the concentration of ethanol is about 300 to 350 milligrams percent. A low level of alcohol such as that found in the deceased in this case could be attributed to putrefaction.

According to Dr. Petty, blood specimens are preferable to other tissue samples and, if blood is not available, tests are often performed using the vitreous humor. Other tissue samples may be contaminated by bacteria from the skin surface, autopsy instruments, the autopsy table or the hands of the pathologist, but the vitreous humor generally escapes contamination. Dr. Petty knew the medical examiner’s office performed tests on vitreous humor and had been doing so for several years.

Dr. Petty also testified that several elixirs are prescribed for young childrens’ illnesses. Children’s Tylenol is one of these. The volume of alcohol in elixirs varies from 7 to 11 percent. The alcohol content of beer is between 3.2 and 6 or 7 percent. In response to a hypothetical question assuming the facts presented in the case,- Dr. Petty stated there was insufficient evidence to conclude that the deceased died from acute alcohol intoxication. Dr. Petty explained the low level of ethanol in the muscle tissue was within the range found in a person who never consumed alcohol and did not indicate alcohol intoxication. Only eight to ten percent of those who consume large quantities of alcohol develop cirrhotic livers. Cirrhosis takes some time to develop. The fatty liver of the deceased could have been caused by various diseases, and these causes were not excluded by proper testing.

First, defendant contends she was not proved guilty beyond a reasonable doubt. She maintains the evidence adduced at trial did not prove beyond a reasonable degree of medical and scientific certainty that her actions of feeding beer to the baby caused the baby’s death.

In every murder prosecution, proof of death and proof of criminal agency causing death are elements the State must prove beyond a reasonable doubt. (People v. Guthrie (1980), 85 Ill. App. 3d 831, 407 N.E.2d 593; People v. Brown (1978), 57 Ill. App. 3d 528, 373 N.E.2d 459.) Although it is not necessary to prove that defendant’s act is the sole and immediate cause of death (Brown), the State must nonetheless prove that defendant’s act was beyond a reasonable doubt a contributing cause such that death did not result from a cause unconnected with defendant. (Brown, citing People v. Brown (1973), 9 Ill. App. 3d 730, 293 N.E.2d 1.) The means and manner may be inferred from the circumstances proved, but guilt must be so established as to exclude reasonable hypotheses of innocence. People v. Kinzell (1969), 106 Ill. App. 2d 349, 245 N.E.2d 319.

In the case at bar, the evidence was insufficient to prove beyond a reasonable doubt that defendant’s acts were the cause of death. First, all expert witnesses, including the State’s expert witness Dr. Petty, agreed that Sudden Infant Death Syndrome, Reyes Syndrome, and malnutrition would cause the physical conditions found during the autopsy. The fact the deceased was ill with a fever the day before death only supports the theory that death was caused by another aliment. The Mallory test could have conclusively established whether alcoholism, rather than one of the aforementioned diseases, was a significant contributing cause of death, yet this test was not performed. Second, the low level of ethanol in the muscle specimen was not proved to be the result of alcohol consumption. Substantial evidence was presented indicating that ethanol could have been produced by decomposition. The time of death was not ascertained and may have occurred almost 12 hours before the deceased was taken to the morgue. Furthermore, the liquid Tylenol given to the deceased the day before her death had a greater alcohol content than most domestic beers. This substance or possible bacterial contamination of the specimen could have been the cause of the presence of ethanol in the muscle tissue. Third, the only evidence regarding the quantity of alcohol given the deceased over a period of time was defendant’s statement to Schwind that she fed the baby beer mixed with equal parts of water. The amount consumed and its effect were never proved. According to the testimony of Dr. Goldbaum regarding experiments performed on small animals, small quantities of alcohol would have little or no adverse effects. Fourth, defense experts testified that commonly accepted pathological procedures dictate that three muscle samples should be examined to determine the cause of ethanol production and eliminate the possibility of specimen contamination. Failure to follow this procedure in this case leads to the conclusion that the determination regarding the cause of death was mere conjecture.

We recognize that reasonable hypotheses compatible with innocence need not be elevated to the status of reasonable doubt. (People v. Tackett (1980), 91 Ill. App. 3d 410, 414 N.E.2d 748.) However, in this case the evidence that death was caused by a criminal agency is so unsatisfactory that we are compelled to reverse the finding of guilt.

Defendant also contends she was denied a fair trial where the trial court considered matters outside the record in determining the credibility of Dr. Petty. Defendant offered Dr. Petty as both a physician and pathologist. The trial court conducted an in camera proceeding to determine Petty’s qualifications as a pathologist. During the hearing the trial court made the following comments:

“THE COURT: Counsel, those of us that have' been associated with the courts in this country know, and this is common knowledge and I think we all know, that under the time when he worked for the coroner’s office, the office was not run very efficiently, there were many people connected with that office that were not qualified in my opinion. Now, if he is —
MR. McGANN: — Judge, I am going to right now, I will move for a mistrial.
THE COURT: Why? This is common knowledge.
* * *
THE COURT: — you brought in this man. I know what I know about the coroner’s office. Let me say this: If I were the State’s Attorney I would ask him some more questions. In those days there were doctors that used to come in there on a per diem basis that would be practicing and then would just do
one body and go off on their practice.
* * *
THE COURT: Let’s put it this way, my observations of the office was such that at that time he was not, it was not a good office. It was a very politically run office. You have to overcome that little bit of knowledge that I have about the office.”

The trier of fact is limited to considering only evidence presented at trial and cannot base its determinations on private knowledge. (People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143.) In a bench trial, it is presumed the trial court considered only competent evidence, but the presumption may be rebutted by affirmative evidence in the record. (People v. Gilbert (1977), 68 Ill. 2d 252, 369 N.E.2d 849.) The statements of the trial judge in this case clearly indicate that personal knowledge was considered in assessing the credentials and credibility of Dr. Petty. We are left with no doubt that the credibility of Dr. Petty was minimized. Additionally, defendant was burdened with the unfair and perhaps impossible task of overcoming the personal knowledge of the court, which should not have been considered. In this case, defendant was denied a fair trial.

Our decision in this case renders consideration of the other issues raised by defendant unnecessary.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

CAMPBELL, P.J., and GOLDBERG, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HONALTON ALFORD, Defendant-Appellant.
    First District (1st Division)
    No. 81—2456
    Opinion filed December 20, 1982.
    James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant, Honalton Alford, was charged by information with the offenses of attempt murder, armed violence and two counts of aggravated battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4, 33A—2, 12—4(a) and 12—4(b)(1).) After a bench trial, he was found not guilty of attempt murder and armed violence, but guilty of the two counts of aggravated battery. He was then sentenced by the trial court to two concurrent four-year penitentiary terms. Defendant appeals, contending that the trial court committed reversible error by admitting into evidence testimony concerning a shooting incident involving him which occurred five days prior to the offense in question; that he was improperly convicted of two counts of aggravated battery based on the same act; and that, since the trial court was influenced by the existence of two convictions when it rendered sentence, the case must be remanded for a new sentencing hearing.

The following facts were adduced at trial:

The complaining witness, James Jeffries, testified that in the late afternoon of December 2, 1980, he was leaving a grocery store on 58th Street in Chicago when he observed defendant opening the door of a vehicle across the street. Immediately thereafter, defendant turned and fired a gun at the complainant, wounding him in the right arm and side. Complainant was treated at a hospital but was released the same day. According to complainant, he did not know defendant’s name, but had seen him around the neighborhood for approximately 15 years. Five days after this offense, complainant identified defendant as his assailant at the police station.

Louise Harris also testified for the State and said that on November 27, 1980, she and her brother owned a tavern which was located at 237 East 58th Street. At approximately 4 p.m. on that date, she arrived at the tavern to bring her brother dinner and observed defendant drinking. Defendant then got into an argument with another patron and left, stating that he was going to get his gun. A short time later she observed defendant through the tavern’s glass front door. Her brother went outside to speak with defendant, after which Harris’ brother came back inside. They then observed defendant pull out a gun and fire two shots through the glass door. During Harris’ testimony, defense counsel objected to this testimony, arguing that such testimony was irrelevant. The trial court twice overruled defense counsel’s objections.

As stated above, defendant contends that the trial court committed reversible error by admitting evidence of the above-described shooting incident since it occurred five days prior to the offenses in question and since it merely demonstrated the defendant’s propensity toward criminal activity. Defendant also contends that he was improperly convicted of two counts of aggravated battery based on a single act and that the cause must be remanded for resentencing since it is evident that the two convictions for aggravated battery influenced the trial judge in his sentencing decision. Since we are in agreement with defendant’s first contention, we will not consider the latter two.

It is well established that evidence of collateral crimes for which an accused is not on trial is inadmissible if they are relevant merely to establish a propensity to commit criminal acts. (People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288.) The underlying reason for this rule is that such evidence overpersuades the trier of fact, who is likely to convict the defendant merely because it feels that defendant is a bad person deserving punishment, rather than on the basis of facts related to the offense for which he is being tried. (See People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238.) However, there are well-recognized exceptions to this rule; evidence of other crimes will be admitted if relevant to demonstrate knowledge, intent, motive, design, plan, identification, absence of mistake or modus operandi. (See People v. Lindgren.) Such evidence will not be admitted, however, if the basis for establishing the relevance of such evidence is speculative. People v. Spiezio (1982), 105 Ill. App. 3d 769, 772, 434 N.E.2d 837.

The State argues that the testimony of Louise Harris regarding the shooting incident at her tavern was properly admitted since such testimony was relevant to establish a common scheme or modus operandi on the part of defendant. However, the concepts of common design and modus operandi are quite distinguishable. Common design refers to a larger criminal scheme of which the crime charged is only a portion. Modus operandi refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer. A common design is frequently relevant to show the motive for the crime charged while modus operandi is most useful in demonstrating that the accused is the perpetrator of the crime charged. People v. Barbour (1982), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667.

A careful examination of the record reveals no reason to believe that the offense in question and the prior shooting incident were part of a common scheme. Accordingly, we must determine if the shooting incidents share a modus operandi. The State lists several similarities between the crimes. It points out that the occurrences happened approximately one block apart, that defendant was known to be a person from the neighborhood and that only five days elapsed between the crimes. However, to qualify under the modus operandi exception, the State must show that the offenses were so nearly identical in method as to earmark them as the handiwork of the accused. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1000.) We feel that the State has failed to make such a showing, since the incident testifled to by Harris involved defendant firing a weapon into a tavern after having an argument with one of the tavern’s patrons. In the present matter, defendant and the complainant did not engage in an argument prior to the shooting. Accordingly, we find that no proper purpose was served by the admission of Louise Harris’ testimony and therefore the trial court erred in admitting such evidence.

The next determination to be made is whether such error requires reversal. As stated above, defendant was convicted after a bench trial. As the State maintains, as a general rule where a trial is had without a jury there is a presumption that the trial court considered only competent evidence and that presumption can be overcome only where the record affirmatively shows the contrary. (See People v. Gilbert (1977), 68 Ill. 2d 252, 258-59, 369 N.E.2d 849.) After having examined the record, we are of the opinion that the trial court improperly considered such incompetent evidence. We base this conclusion on the fact that the trial court would not have admitted such testimony unless it believed the testimony had some probative value. As stated above, we have held that the aforementioned evidence had no permissible use in the present matter. Where the trial court admits improper evidence over defendant’s objection, as is the case here, such fact negates the presumption that the court did not take into consideration the incompetent evidence. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1002.) For this reason, we must conclude that such evidence was improperly considered.

In further support of this conclusion, we must point out that the trial court made several comments which indicated that it was considering such evidence. In overruling defense counsel’s objections to Harris’ testimony, the trial court stated:

“It need not be the same victim, this is not to show the offense as against — as alleged [sic] perpetrated against Mr. Jefferies, it is being introduced by the prosecution as acts of prior violence or crimes such within a close proximity of time to show a propensity or scheme relative to the modus operandi to commit acts similar to that one charged.”

This statement seems to indicate that, at least in part, the trial court considered such evidence to demonstrate that defendant had a propensity to commit the offense in question. As stated above, this was highly improper. For the reasons outlined above, defendant’s convictions for aggravated battery will be reversed and the cause remanded for a new trial. See People v. Barbour and People v. Spiezio.

The judgment of the circuit court of Cook County, finding defendant guilty of two counts of aggravated battery and sentencing him to two concurrent four-year penitentiary terms, is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for new trial.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE LORENZ

text:
    LAWRENCE D. COOMBS et al., Plaintiffs-Appellees, v. WISCONSIN NATIONAL LIFE INSURANCE CO., Defendant-Appellant.
    First District (5th Division)
    No. 81—2818
    Opinion filed December 23, 1982.
    Rehearing denied February 1, 1983.
    Susan L. Walker, of Chicago (Wildman, Harrold, Allen & Dixon, of counsel), for appellant.
    Barbara J. Coombs, of Rolling Meadows, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

In a pro se complaint, plaintiffs sued defendant Wisconsin National Life Insurance Company (Wisconsin National) to recover medical payments under a contract of insurance. Following a bench trial on September 16, 1981, a judgment for plaintiffs in the amount of $308 was entered. Defendant appeals.

In their complaint, plaintiffs alleged that a physical injury which occurred on December 13, 1977, required extensive dental treatment. They filed a claim with the defendant requesting payment of all bills in excess of the $500 deductible provisions of the policy. Following the entry of judgment, defendant’s motion for reconsideration was denied and it filed a notice of appeal.

Defendant has failed to include in its record on appeal either a transcript of the proceedings on September 16, 1981, which formed a basis for the judgment, or a bystander’s report pursuant to Supreme Court Rule 323 (87 Ill. 2d R. 323).

Rule 323(c) provides that an appellant may prepare a proposed report of proceedings from the best available sources, including recollection, and present it to the trial court for settlement, approval and certification. Rule 323(c), (d) provides that the parties by written stipulation may agree upon a statement of facts and file it in lieu of a verbatim transcript or a court-certified report. 87 Ill. 2d R. 323(c), (d); Amalgamated Trust & Savings Bank v. Conrad Kern Co. (1975), 34 Ill. App. 3d 430, 340 N.E.2d 36.

It is the responsibility of appellant to see that the record is complete, to enable the reviewing court to resolve the questions raised (Cohen v. Washington National Insurance Co. (1971), 2 Ill. App. 3d 149, 276 N.E.2d 6) since the record on appeal binds the parties and also controls the reviewing court in its consideration of the appeal. Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 280 N.E.2d 437.

In this case, defendant merely sets forth in its brief its version of the purported facts and its argument derived therefrom without any citation to the record. Since assertions in an appellate brief cannot serve as a substitute for a proper record (Belcher v. Spillman (1975), 28 Ill. App. 3d 973, 329 N.E.2d 550), we are unable to ascertain the accuracy of defendant’s position.

While it may be true that the failure to provide a report of proceedings may constitute grounds for dismissal of an appeal (Glover v. Glover (1974), 24 Ill. App. 3d 73, 320 N.E.2d 513), absence of such a report has always been regarded as merely depriving a reviewing court of a basis for reaching issues whose merits depend on matters thus omitted, such as issues of sufficiency of evidence (Village of North Aurora v. Aurora Downs, Inc. (1976), 42 Ill. App. 3d 534, 356 N.E.2d 193), or relating to conduct of a hearing (Amalgamated Trust & Savings Bank v. Conrad Kern Co. (1975), 34 Ill. App. 3d 430, 340 N.E.2d 36). Because the reviewing court must presume the circuit court acted properly in the absence of a .contrary indication in the record, affirmance is dictated if the record omits crucial facts.

As the court in La Pierre v. Oak Park Federal Savings & Loan Association (1974), 21 Ill. App. 3d 541, 546, 315 N.E.2d 908, 911-12, stated: “It is a basic principle of appellate practice that a party who brings a cause to a reviewing court must present in the record the proceedings to show the error complained of. [Citation.] [Appellant] has failed to provide this court with a report of proceedings or an acceptable substitute in accordance with Supreme Court Rule 323 (Ill. Rev. Stat. 1973, ch. 110A, par. 323). Accordingly, this issue, and others raised by [appellant] for which the evidence offered at trial would be necessary to our determination, is not subject to review by the court.”

For the reasons stated, we affirm the September 16, 1981, order in favor of plaintiffs.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: PRESIDING JUSTICE JOHNSON

text:
    MARIE FEWER et al., Plaintiffs, v. ARTHUR GRANT et al., Defendants.—(Peoples Gas Light & Coke Company, Plaintiff-Appellant, v. Arthur Grant et al., Defendants-Appellees.)
    First District (4th Division)
    No. 82—168
    Opinion filed December 23, 1982.

      Paul M. Heller, of Wexler & Heller, of Chicago, for appellant.
    Kaplan, Sorosky and Hoffman, of Chicago (Thomas E. Hoffman and Donald G. Weiland, of counsel), for appellee James Flanagan.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Peoples Gas Light & Coke Company (Peoples Gas), appeals an order of the trial court granting attorney fees to defendant, James Flanagan, under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). The sole issue presented for review is whether the trial court abused its discretion in awarding attorney fees.

We reverse.

On March 31, 1976, Marie Fewer and Chicago Title and Trust Company, as trustee, filed a complaint against Arthur Grant to foreclose a trust deed for property located at 6726 South Oglesby Avenue in Chicago, Illinois. The subject property was a three story apartment building. On June 21, 1976, James M. Flanagan was appointed receiver. He filed his first report on July 13, 1976, stating that in his opinion “potential rental income will not offset the cost of repairs, nor cover monthly operating costs.”

On May 2, 1978, Flanagan filed an interim report. The following information was listed on his time sheets: a 10-minute call to the gas company on June 28, 1976 regarding service usage and a 20-minute call to the gas company on November 9, 1976 regarding service usage. Flanagan filed his second interim report on June 30, 1979, and was discharged as receiver.

On January 26, 1978, Peoples Gas filed an amended complaint against Arthur Grant, alleging that he owed money for gas service to the building. On October 15, 1980, Peoples Gas filed a second amended complaint, adding Fewer and Flanagan as defendants. Peoples Gas filed a third amended complaint against the three defendants on April 10, 1981, stating that it had provided service to the building from November 1970 until July 22, 1977 and that $2,466.55 was due. In count II, Peoples Gas alleged the following against Flanagan:

“6. That on July 26, 1976, the Plaintiff supplied said premises with natural gas service at the request of said Receiver; that payments were made on the account, but that on July 22, 1977 all service was terminated because said Defendants had failed to pay the sum of $2,466.55 which remained due and owing at the time.
7. That Defendant, James Flanagan, breached his duty as a court appointed Receiver by doing one or more of the following:
(a) failed to inform and advise the court upon accepting said position that the property in question could not be operated in a profitable manner.
(b) operated the property in question at a loss for more than one year without advising the court or the creditors of same.
(c) failed to notify and advise the Plaintiff, as a creditor, that the property could not be operated in a profitable manner, so as to diminimize the loss sustained by Plaintiff.
(d) failed to fully and completely pay Plaintiff’s bill for services rendered after having collected sufficient rents to pay for same.”

On July 22, 1981, the foreclosure action and the gas company complaint were consolidated.

On July 23, 1981, Flanagan answered the complaint, stating that no funds were available from rents to pay the amount owing and that he never asked Peoples Gas to supply gas service and never paid any amount owed Peoples Gas during his receivership. He asked for costs and attorney fees under section 41 of the Civil Practice Act which provides that “[a]llegations *** made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party *** together with a reasonable attorney’s fee ***.” Ill. Rev. Stat. 1979, ch. 110, par. 41.

On September 18, 1981, Peoples Gas admitted that Flanagan had informed the court of the unprofitability of the building in his report filed July 13, 1976. It filed a fourth amended complaint against the same defendants on October 8, 1981, alleging that Flanagan breached his duties as receiver by failing to continually inform the court that the building could not be operated profitably.

Testimony by Roy Giersch, an employee of Peoples Gas, at a deposition on September 14, 1981, and at a hearing on November 16, 1981, established that an account for gas service for the building was established in the name of Arthur Grant on November 23, 1973. Service was shut off and turned on several times. On July 26, 1976, the gas was turned off. After payment was received July 28, service was reinstated on July 30. The records of Peoples Gas did not indicate who paid or who requested service. On September 7, 1976, gas was again shut off for nonpayment. Service resumed on October 25, 1976, after payment, made on October 22, 1976. Again, gas company records did not indicate who paid the amount owing and who requested that service be resumed. Peoples Gas did not know of the receivership at that time, and all bills were sent to Grant.

At a deposition on September 21, 1981, and at a hearing on January 8, 1982, Lillian E. Carlson, an employee of Flanagan’s, explained that she made the telephone calls to the gas company that were recorded on Flanagan’s time sheets. Her purpose was to check the occupancy of the building and the names of the occupants and not to request service.

On January 8, 1982, the trial court dismissed the case against Fewer. With regard to Flanagan, the court found that the allegations in the third amended complaint were made without reasonable cause, were untrue and were made when Peoples Gas had sufficient means to determine the truth or falsity of its allegations prior to pleading. The court awarded Flanagan attorney fees of $2,156.75 for 24.3 hours at the rate of $80 per hour for defense of count II in the third amended complaint. The court also dismissed count II of plaintiff’s fourth amended complaint against Flanagan. Plaintiff appeals.

The sole issue raised by this appeal is whether the trial court erred in granting defendant Flanagan’s section 41 petition for attorney fees. Under section 41, attorney fees may be awarded for allegations made without reasonable cause and found to be untrue. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) It was enacted to prevent abuse of the judicial process. (Murczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 943, 335 N.E.2d 172, 176.) The statute is penal in nature and may be invoked only in cases falling strictly within its terms. (Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 481, 407 N.E.2d 1013, 1017.) Its application is limited to cases where a party has abused his right to free access to the courts by pleading untrue statements of fact which the party knew or reasonably should have known were untrue. Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 243, 417 N.E.2d 167, 175.

In its third amended complaint, Peoples Gas alleged that it supplied gas service at the request of Flanagan. In an interim report, Flanagan listed telephone calls to the gas company regarding service usage on June 28 and November 9, 1976. An employee of Flanagan’s explained that these calls were to check occupancy of the building and not to request service. We hold that it was not unreasonable for Peoples Gas, based on an examination of the interim report, to allege that the receiver requested service.

Peoples Gas also alleged that the receiver failed to inform the court that the property could not be operated in a profitable manner. However, Flanagan did so inform the court in his first report on July 13, 1976. When Flanagan answered, stating this fact, Peoples Gas admitted that Flanagan was correct, and altered its complaint to allege that Flanagan did not continually inform the court that the building could not be operated profitably. Attorneys are presumed to have due regard for their responsibility as officers of the court, and they are allowed to exercise broad discretion based upon an honest judgment from the facts presented to them. (Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 481, 407 N.E.2d 1013, 1017.) Further, the overriding public policy of Illinois is that potential suitors should have free and unfettered access to the courts. (Evans v. Stoval (1980), 83 Ill. App. 3d 257, 260, 403 N.E.2d 1321, 1323.) We conclude that the allegations in the third amended complaint were not made without reasonable cause. Therefore, we hold that the trial court improperly awarded attorney fees to defendant Flanagan.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Reversed.

JIGANTI and LINN, JJ., concur.