author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD JACKSON, Defendant-Appellant.
    First District (4th Division)
    No. 80—2897
    Opinion filed December 8, 1983.

      James J. Doherty, Public Defender, of Chicago (Philip E. Mullane, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Richard Jackson, appeals his convictions for murder, attempted murder and armed robbery (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(a), 8 — 4(a), 18 — 2(a)). After a jury trial, defendant was sentenced to concurrent terms of 60 years for murder, 60 years for armed robbery and 30 years for attempted murder. He raises the following issues for review: (1) whether the trial court committed reversible error when it denied his motion for severance; (2) whether the trial court’s exclusion of jurors resulted in a jury which did not represent a fair cross section of the community and violated his sixth amendment right to a jury trial; (3) whether the State’s closing argument deprived him of a fair trial; (4) whether the trial court erroneously permitted the State to introduce evidence of Robert Ray’s prior out-of-court statements to enhance his credibility; (5) whether he was denied his sixth amendment right to call witnesses and due process of law when the trial judge prevented him from calling Officers Bartkiewicz and Ridges, and Dr. Schlenker; (6) whether the attempted murder conviction should be reversed because the jury was improperly instructed on the elements of murder; and (7) whether the trial court erred in imposing extended-term sentences for the offenses of murder, armed robbery and attempted murder.

We reverse and remand for a new trial.

Defendant Jackson and Dennis Emerson were jointly indicted and tried for the murder of Delinda Byrd and the attempted murder of Robert Ray. Before trial, defendant made a motion for severance. He argued that his defense was antagonistic to that of Emerson because the latter intended to present evidence that they were both at Ray’s place of business shortly before the incident. The trial court denied the severance motion.

Edward Barry, a Chicago firefighter, testified that he received a call about a fire at 69th and Racine Avenue in Chicago, Illinois, around 4 a.m. on August 13, 1979. When he arrived at the scene, a man who was covered with blood told him that a woman was trapped in the rear of the building. She died in an air shaft before firemen could rescue her. The fire started in a rear apartment and traveled toward the front where a cocktail lounge was located.

Robert Ray testified that in August 1979 he operated a lounge, the Centaur, at 1154 West 69th Street, in Chicago, and lived in an apartment directly behind the lounge. Ray first became acquainted with Dennis Emerson, also known as Dennis Jackson, in 1975. He also knew Emerson’s brothers, Richard Jackson and Ricky Jackson, who helped Ray at the lounge. Delinda Byrd was Ray’s girlfriend.

The lounge was open on Sunday, August 12, 1979. Around noon, Emerson telephoned to say that he would come by. He called three or four times that day to say he would stop by but he did not arrive until after the lounge closed at 2 a.m. When Emerson arrived with Richard Jackson, they walked through the lounge to the kitchen of the apartment. While they were conversing, Byrd arrived. Emerson drew a gun and told Byrd and Ray to lie on the floor. They obeyed, lying face down. Emerson tied their hands with electrical cord while Jackson aimed a gun at them. Emerson asked Ray how to get in to the cash register and where he kept his guns. Ray heard Emerson open the cash register and saw him with the guns. Emerson searched Ray and Byrd and took money from her. Emerson hit Ray in his back. Jackson gave Emerson “a shears” and the latter stabbed Ray and Byrd with it. Emerson went into Ray’s bedroom. After he came out, Ray smelled smoke and saw his bed on fire. Emerson and Jackson threw Ray and Byrd into the bedroom and closed the door.

Ray loosened his hands, opened the window, and fell into the air shaft; Byrd followed. Ray broke through a window into the lounge and ran out the front door. He asked someone to call the fire department. He was hospitalized for nine days with a collapsed and punctured lung and he suffered from smoke inhalation. In a photographic lineup, Ray identified Emerson and Jackson.

On cross-examination, Ray stated that he never borrowed money from Emerson. He admitted that Emerson’s sister once asked him for money but he did not give her any.

Robert Stein, chief medical examiner of Cook County, performed an autopsy on Delinda Byrd. Her death had been caused by stab wounds and by burns over 90% of her body.

John Ridges, a Chicago police sergeant, investigated the Byrd homicide. On August 13, 1979, Ridges showed a photographic lineup to Ray who identified Jackson and Emerson. On August 18, 1979, he arrested Jackson at his mother’s residence.

James Griffin, a Chicago policeman, was on duty on August 13, 1979, and arrived at the lounge at about 4:16 a.m. He talked with Robert Ray and then went to an address on South Sangamon Avenue, where Jackson’s mother lived, and searched the premises. The suspects were not there. Griffin returned to the lounge and recovered pieces of electrical cord.

The prosecution rested and defendant called Daniel McWeeny, a Chicago policeman, as his only witness. McWeeny investigated the Byrd homicide. He spoke to Ray at the hospital on August 13, 1979. He testified that no money and no weapons were recovered in the case. The medical examiner told McWeeny that the cause of Byrd’s death was a knife wound that penetrated the lungs.

Defendant rested and Emerson called Ricky Jackson as a witness. Ricky testified that Emerson had loaned $5,000 to Ray in 1975 so that the latter could furnish a lounge. Ricky assisted Ray at the lounge and worked for him until April or June of 1979. Ricky claimed that he bought marijuana from Ray and also sold it for him. Before Emerson was released from jail, Ricky asked Ray about the $5,000. On August 12-13, 1979, Emerson and Richard Jackson lived with their mother in a house on Sangamon Avenue.

Dennis Emerson testified in his own defense and admitted to prior convictions. He originally met Ray because he wanted to purchase marijuana from him. He loaned $5,000 to Ray and asked his sister and Ricky, his brother, to get the money. A week after his release from prison on July 24, 1979, Emerson visited Ray at the lounge to ask about the money. He denied committing any of the crimes with which he was charged. On August 12, 1979, his brother Richard had a cast on his arm. He, Richard and Ricky spent the day at their mother’s house.

At the close of the trial, the jury found Emerson guilty of murder, attempted murder, armed robbery and aggravated arson, and Jackson guilty of murder, attempted murder and armed robbery and not guilty of aggravated arson.

At the close of the death penalty hearing, the jury recommended a death penalty for Emerson but not for Jackson. Jackson was sentenced to 60 years for murder, 60 years for armed robbery and 30 years for attempted murder, the sentences to run concurrently. Defendant Jackson appeals.

The first issue raised by defendant is whether the trial court erred in denying his motion for a severance. In his brief, defendant merely states that his defense was antagonistic to that of his code-fendant Emerson.

Defendant’s argument has no merit. Defendants jointly indicted are to be jointly tried and separate trials are required only when the defenses are so antagonistic that a fair trial can be achieved only through severance. (People v. Dorsey (1980), 88 Ill. App. 3d 712, 717, 410 N.E.2d 1132, 1135.) In the instant case, there was no showing before trial that Jackson’s defense would be antagonistic to that of Emerson, and at trial Emerson testified that he and Jackson were at their mother’s house when the crime was committed. We conclude that the trial court did not err in denying defendant’s motion for a severance.

Next, defendant argues that the trial court’s exclusion of jurors resulted in a jury which did not represent a fair cross section of the community and violated his sixth amendment right to a fair trial. The jury did not represent a fair cross section because persons who felt they could not impose the death penalty were excluded. Defendant contends that such persons are an identifiable and a sizeable portion of the community and their exclusion denied his right to a fair, representative jury. During voir dire, the trial court asked jurors whether “under no circumstances for religious or personal feelings *** would they possibly vote for *** the death penalty.”

The precise issue raised by defendant was addressed by our supreme court in People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218. In that case, the court stated that the right to trial by jury or the right to a representative jury does not include the right to be tried by jurors who have stated that they will refuse to follow the death penalty law. (94 Ill. 2d 378, 402.) Accordingly, we hold that the trial court did not err in excluding from the jury those persons who stated they would not follow the death penalty law.

The next two issues raised by defendant were raised by his code-fendant, Dennis Emerson, in the latter’s appeal of his death penalty and resolved in Emerson’s favor by our supreme court.

Defendant contends that the prosecution’s closing argument deprived him of a fair trial. Defendant states that the whole tone of the prosecutor’s rebuttal argument was calculated to make the jury believe that the defense lawyers were deliberately presenting false evidence in an attempt to free two guilty murderers. For example, the prosecutor said of defendants, “their lawyers have come into Court and laid down a nice smoke screen, a smoke screen composed of lies and misrepresentations and innuendo”; that defense lawyers Fisher and Morrissey were “just like all the defense lawyers, ladies and gentlemen, they are all the same *** what they do is this, if there is a victim, what they are going to do is dirty up the victim.” The defense lawyers “want to walk Richard Jackson out of the courtroom, they want to walk his brother out of the courtroom, they want to put them back on the street.”

Our supreme court has found these statements improper. It stated:

“Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. [Citations.] It is not clear whether the assistant State’s Attorney was suggesting that the defense attorneys were guilty of lying or misrepresenting facts or whether he was suggesting that the defense presented consisted of testimony which was composed of lies and misrepresentations. It is clear, however, that statements to the effect that all defense attorneys try to ‘dirty up the victim’ and that the defense attorneys want to walk the defendants out of court and put them back on the street improperly shift the focus of attention from the evidence in the case to the objectives of trial counsel. Furthermore, a comment concerning the trial tactics of ‘all’ defense attorneys cannot be said to be based on the evidence and does little to help the jury resolve the issues in the case.” (People v. Emerson (1983), 97 Ill. 2d 487, 497-98.)

The court also found that the prosecution’s argument purported to charge counsel with fabrication of a defense bordering on subornation of perjury. (97 Ill. 2d 487, 499.) Accordingly, we hold that the prosecution’s closing argument deprived defendant of a fair trial.

Defendant argues that the trial court erroneously permitted the prosecution to introduce evidence of Robert Ray’s prior out-of-court statements to enhance his credibility. On redirect, the trial court permitted the prosecution to ask Ray the following:

“[MR. TRAINOR]: And Mr. Frazin also asked you if you told the uniformed police officers that talked to you on the street that night if the Jackson brothers had come to your tavern, do you remember him asking you that?
[THE WITNESS]: Yes.
[MR. TRAINOR]: And you told that uniformed police officer that the Jackson brothers had come to your tavern and had stabbed you and Delinda, isn’t that right?
MR. MORRISSEY [defense attorney for Jackson]: Objection.
MR. FRAZIN [defense attorney for Emerson]: Objection.
THE COURT: Overruled. Both of you opened that up.
[MR. TRAINOR]: Did you not?
[THE WITNESS]: Yes.
[MR. TRAINOR]: And what two Jackson brothers did you tell the police stabbed you and Delinda?
[THE WITNESS]: Dennis and Richard.
MR. MORRISSEY: Objection, a continuing objection. I never mentioned the beat officers at all.
THE COURT: You mentioned several officers, overruled. You opened it up.
MR. TRAINOR: And this was moments after the crime occurred, is that right?
[THE WITNESS]: Right.
[MR. TRAINOR]: And this was moments after you got out of the burning building, isn’t that right?
[THE WITNESS]: Yes.
[MR. TRAINOR]: So the first police officers you saw, you told who stabbed you and Delinda, isn’t that right?
[THE WITNESS]: Yes.”

The trial court also permitted the prosecution to ask James Griffin, a Chicago policeman, the following questions on redirect examination:

“MR. QUINLI'VAN: Did Mr. Ray tell you who had committed those acts?
[THE WITNESS]: Yes, he did.
[MR. QUINLIVAN]: Would you tell the jury who Mr. Ray said committed the acts minutes after you arrived?
MR. MORRISSEY [defense attorney]: Same objection. Continuing objection for the same reasons as raised yesterday at sidebar.
THE COURT: Same ruling as yesterday. Proceed.
THE WITNESS: He related to me at that time that a Dennis Jackson and a Richard Jackson were the offenders in this incident.”

During closing argument, the prosecutor repeatedly emphasized Ray’s prior consistent statements which corroborated his testimony at trial.

A witness may not testify as to statements he made out of court for the purpose of corroborating his testimony given at the trial relative to the same subject. However, to rebut a charge or an inference that the witness is motivated to testify falsely or that his testimony is of recent fabrication, evidence is admissible that he told the same story before the existence or before the time of the alleged fabrication. (People v. Clark (1972), 52 Ill. 2d 374, 389, 288 N.E.2d 363, 371.) In People v. Emerson (1983), 97 Ill. 2d 487, our supreme court rejected the prosecution’s argument that the prior out-of-court statements of Ray were properly admitted, stating that the “only prior consistent statement relevant under the circumstances would be one concerning the actions of the two perpetrators, and it did not open the door to a gratuitous corroboration of Ray’s testimony concerning the identity of his attackers.” (97 Ill. 2d 487, 500.) The supreme court found that the motive for testifying falsely existed prior to the time when the statements attributed to Ray were made and the statements should not have been admitted. (97 Ill. 2d 487, 501.) The court made the following conclusion:

“The evidence of guilt consists solely of Ray’s testimony. Defendant made no inculpatory statements, as previously noted, no fingerprints were found, and there was no evidence that any of the proceeds of the robbery were in defendant’s possession. Defendant denied any participation in the offense, and his testimony, if believed, would supply the motive for Ray’s having charged him with the offense.
Where guilt or innocence depends entirely on the credibility of an accuser and the defendant, no error should be permitted to intervene. ‘Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial.’ (Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517.) Here, the record fails to show affirmatively that the improperly admitted testimony and the improper oral argument were not prejudicial.” (97 Ill. 2d 487, 501-02.)

Accordingly, we hold that the trial court erroneously permitted the prosecution to introduce evidence of Robert Ray’s prior out-of-court statements.

Defendant contends that he was denied his sixth amendment right to call witnesses and due process of law when the trial judge prevented him from calling Officers Bartkiewicz and Ridges and Dr. Sch-lenker.

Defendant wanted to call Officer Bartkiewicz to impeach the credibility of Officer Daniel McWeeny. During cross-examination, defense counsel for codefendant Emerson asked Robert Ray whether he told McWeeny or any other policeman that when he answered the doorbell he was met by two men who pulled guns. Ray said no. During cross-examination, Emerson’s defense counsel asked McWeeny whether Ray told him that when he answered the bell he was met by the two offenders who pulled weapons. McWeeny denied saying that to Bartkiewicz. The latter would have testified that in his police report McWeeny informed him that Ray said he was met at the door by the two armed offenders.

In our opinion, the testimony of Officer Bartkiewicz was irrelevant and collateral to the issues of the instant case. (People v. Schott (1976), 39 Ill. App. 3d 266, 273, 350 N.E.2d 49, 55.) McWeeny’s credibility was a collateral issue since he did not observe the crime. Therefore, we hold that the trial court did not err in refusing to allow defendant to call Officer Bartkiewicz.

Defendant wanted to call Chicago police officer John Ridges and Dr. Schlenker of Billings Hospital to establish that three weeks prior to the crime he was treated at a hospital where a cast was placed on his right hand and arm. Dr. Schlenker was his treating physician and Officer Ridges arrested him. Defendant requested a continuance after Officer McWeeny testified in his case-in-chief. The trial court denied the motion because the testimony of Ridges and Schlenker would have been irrelevant.

Testimony is relevant when it tends to prove a disputed fact or render a matter in issue more or less probable. (People v. Stokes (1979), 75 Ill. App. 3d 813, 819, 394 N.E.2d 681, 686.) The testimony of Ridges and Schlenker would not have been relevant because the issue at trial was the identities of the offenders, and the fact that defendant may have had a cast on his arm would not tend to prove or disprove identity. Furthermore, codefendant Emerson testified that defendant had a cast on his right arm on the night of August 12-13, 1979. Rejection of evidence is not prejudicial where substantially the same evidence is admitted at some subsequent stage of the trial. (People v. Limas (1977), 45 Ill. App. 3d 643, 648, 359 N.E.2d 1194, 1198.) Therefore, we hold that the trial court did not err in denying defendant’s motion for a continuance thereby excluding the testimony of Officer Ridges and Dr. Schlenker.

Defendant argues that his attempted murder conviction should be reversed because the jury was improperly instructed on the elements of murder and the jury could have concluded that he could be found guilty even if he only intended to do great bodily harm. Attempted murder requires a specific intent to kill, whereas murder may be committed where the offender inflicts great bodily harm or knows that his acts are likely to cause death or great bodily harm. Defendant contends that the jury was confused about the elements of attempted murder by the instructions defining murder.

Defendant’s argument is without merit. Defendant was charged with the attempted murder of Robert Ray and the murder of Delinda Byrd. It was proper for the trial court to instruct the jury as to the elements of both crimes. We have examined those instructions and find that they correctly stated the law. Therefore, we hold that the jury was properly instructed on the elements of murder.

Since we have decided above that the prosecution’s improper arguments and the admission of Robert Ray’s prior out-of-court statements constituted reversible error, we need not address defendant’s final argument that the trial court erred in imposing extended-term sentences.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE MAYA et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1176
    Opinion filed December 6, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
    Joseph A. Ettinger and Rick M. Schoenfield, both of Ettinger & Schoen-field, Ltd., and James J. McGraw, of Jerome Kornfeld & Associates, both of Chicago, for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendants, George and Mario Maya, were charged with possession, delivery and possession with intent to deliver cocaine and metha-qualone. They were tried and although convicted of possession with intent to deliver cocaine and methaqualone, judgment was entered only on the cocaine-related offense. Both defendants wilfully absented themselves from trial just prior to closing argument, and the court revoked their bail bonds. Mario’s $10,000 cash bond deposit was released by court order to the attorneys who had represented him and his brother, George, at trial based upon a purported oral agreement between defendants and their counsel, Kevin P. Bolger, Martin Schachter and Vincent Davino (defense trial counsel). A $3,000 attorney’s lien filed by attorney Joseph Ettinger, for services indirectly related to the instant trial, was ordered paid out of the proceeds of George’s $10,000 cash bond deposit, the balance being forfeited to the State. The State appeals from the circuit court’s disposition of these bail bond deposit proceeds.

The issue presented is whether the circuit court erred in releasing Mario’s bond deposit to defense trial counsel and subjecting George’s bond deposit to the $3,000 attorney’s lien. For reasons which follow, we affirm in part, vacate in part and remand for further hearings.

On the third day of trial, after both sides had rested and just before closing arguments were to be heard, defendants absented themselves from court. Counsel searched the building, but were unable to find them. The court then directed counsel to proceed with closing argument, which they did. On the State’s motion, the court thereafter revoked defendants’ bonds and issued warrants for their arrest. The circuit court declared George’s bond forfeited subject to Ettinger’s lien, without objection by the State. Mario’s bond was not declared forfeited, however, because defense trial counsel claimed this money as attorney fees. The State objected to this claim upon Mario’s bond because Mario was not present to sign the bond refund form. The court reserved consideration of awarding the proceeds as attorney fees because defendants’ disappearance “[had taken] everybody by surprise.”

At the sentencing hearing, defense trial counsel advised the court that they had not seen or heard from their clients for two weeks since they had absented themselves from trial. The State revealed the FBI, the Drug Enforcement Administration and the Chicago police department were also unable to locate them. After hearing matters in aggravation and mitigation the circuit court sentenced each defendant to 12 years’ imprisonment, and continued warrants for their arrest.

Ettinger and defense trial counsel again informed the court that an attorney’s lien had been filed against George’s bond and that defendants had agreed orally to pay them the proceeds of Mario’s cash bond as attorney fees. The State argued that the court should not award counsel the cash deposit absent some acknowledgment by defendants of the agreement. Thereafter, the court released Mario’s $10,000 cash deposit to defense trial counsel, but indicated that it would reconsider the award should defendants later contest it. The court again declared George’s bond deposit forfeited to the State, subject to the $3,000 attorney’s lien. The State’s subsequent motion to reconsider these rulings was denied.

The State contends that section 110 — 7(h) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(h)) is controlling, which provides, in part: “If the accused does not comply with the conditions of the bail bond the court *** shall enter an order declaring the bail to be forfeited. *** If the accused does not appear and surrender *** within 30 days *** of the forfeiture *** the court shall enter judgment for the State ***.” The State notes that the supreme court found similar language in an earlier version of the statute to be mandatory and left no room for the exercise of discretion by the trial court (People ex rel. Swanson v. Sullivan (1930), 339 Ill. 146, 152, 171 N.E. 122), and suggests that the same result obtained in People v. Nicholls (1977), 45 Ill. App. 3d 312, 359 N.E.2d 1095, aff’d in part, rev’d in part (1978), 71 Ill. 2d 166, 374 N.E.2d 194. Since the purpose of bail is to ensure a defendant’s presence at trial, not to create a fund from which costs and attorney fees may be satisfied, the State asserts that when bail money is used to satisfy such obligations the foregoing purpose is undermined and maintains that courts have been very careful to preserve such money inviolate, citing Gende v. Flemming (1977), 55 Ill. App. 3d 659, 371 N.E.2d 191, and A-1 Lithoplate, Inc. v. AFS Publishing Co. (1978), 66 Ill. App. 3d 560, 384 N.E.2d 395.

Ettinger, after arguing that the State waived the issue of propriety of that portion of the court’s order concerning his lien by failing to object to it when the order was originally entered on February 19, 1982, insists that section 115 — 4.1(a) of the Code is controlling, rather than section 110 — 7(h). Section 115 — 4.1(a) provides that where a defendant refuses to appear for trial, the court may commence trial without him as long as he is represented by retained or appointed counsel. Section 115 — 4.1(a) goes on to provide that: “The court, at the conclusion of all proceedings, may order the clerk of the circuit court to pay counsel such sum as the court deems reasonable, from any bond monies *** posted by the defendant ***” which the court did in the instant case. To do otherwise, Ettinger asserts, would chill attorney-client relationships and discourage experienced attorneys from practicing criminal law.

Defense trial counsel assert that Mario orally assigned his bond money to them in October 1981, in exchange for their services “before, during, and after trial,” and gave them his bond slip at that time. They maintain that his “long-standing acquiescence” in their retention of the bond slip lends additional credibility to their representations. They assert that assignments may be oral, citing Leslie E. Keeley Co. v. Hargreaves (1908), 236 Ill. 316, 86 N.E. 132, and that even if the purported assignment were to be found invalid, by accepting their services defendants impliedly promised to compensate them for their services, citing People v. Willey (1980), 85 Ill. App. 3d 749, 407 N.E.2d 1115, and People v. Brown (1982), 107 Ill. App. 3d 742, 438 N.E.2d 250. Finally, defense trial counsel contend that section 110 — 7(f) (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f)) authorizes such disbursement.

A fair analysis of both sections 110 — 7(h) and 115 — 4.1(a) reveals that they each bear upon the circumstances presented in the instant case. When defendants wilfully absented themselves from trial and failed to appear and surrender themselves to the court within 30 days, their bond money was subject to forfeiture under section 110— 7(h). Section 115 — 4.1(a) authorizes the court “*** to pay counsel such sum as [it] deems reasonable, from any bond monies *** posted by the defendant ***” where a defendant fails to appear for trial or absents himself during trial. It was within the court’s power, therefore, to compensate Ettinger and defense trial counsel for their services from those monies prior to forfeiture where the circumstances qualify.

The State attempts to reconcile the statutes by creating two different categories of “absent defendants”: those who never appear for trial and those who absent themselves after trial has commenced. The State suggests that the court may award fees to attorneys who represent defendants who fall into the first category but not the second. The distinction is justified, the State insists, because privately retained counsel presumably have been paid before the case comes to trial, whereas appointed counsel must look to defendant’s bond money for their compensation. This distinction is untenable. Neither cited authority nor logic supports such a dichotomy in compensation. Privately retained counsel may also rely upon defendant’s bond money for their compensation as much and as often as appointed counsel. Further, subsection (f) makes no such distinction; either may represent defendant at trial and both are entitled to compensation under this provision.

Section 115 — 4.1(a) allows defendants to be tried in absentia and authorizes a court to compensate attorneys who represent those so tried from bond money, if reasonable. In construing a statute, effect must be given to the legislature’s intent considering the statute in its entirety, noting the subject it addresses and the legislature’s apparent objective in its enactment. (Gill v. Miller (1982), 94 Ill. 2d 52, 445 N.E.2d 330.) Whether a defendant has a retained or appointed counsel does not affect whether he will flee before or during the trial; nor should that circumstance affect compensation of either.

Assuming, arguendo, that sections 110 — 7(h) and 115 — 4.1(a) were deemed irreconcilable, in our opinion section 115 — 4.1(a) would take precedence. When two statutes conflict, the more specific statute controls that which is more general. {Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 429 N.E.2d 1214; Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522, 322 N.E.2d 454; People ex rel. Myers v. Pennsylvania R.R. Co. (1960), 19 Ill. 2d 122, 166 N.E.2d 86.) In the context of this case, section 115 — 4.1(a) is considerably more specific than section 110 — 7(h). For example, section 115 — 4.1(a) applies only to noncapital felonies; section 110 — 7(h) applies to all types of cases from murder to traffic tickets. Section 115 — 4.1(a) applies only to. a defendant’s absence at the time of trial; section 110 — 7(h) applies to a defendant’s failure to comply with any condition of the bond. Section 115 — 4.1(a) applies specifically to the payment of attorney fees in cases where a defendant is tried in absentia, the precise situation in the case at bar; section 110 — 7(h) makes no reference to a trial in absentia. In the present instance, therefore, section 115 — 4.1(a), being more specific than section 110 — 7(h), is controlling here.

The State correctly argues that where two statutes conflict, the more recent is deemed to take precedence over the earlier {Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 290 N.E.2d 886; 2A Sutherland, Statutory Construction sec. 51.02 (4th ed. 1973)); however, contrary to the State’s claim, section 115 — 4.1(a) is the more recently enacted section, for purposes of the present case. That section became effective on September 26, 1979. Section 110 — 7(h) had not been amended since July 1, 1978, when the word “paragraph” was substituted for “subsection.” Subsection (a) of section 110 — 7 was amended effective July 1, 1982, but has no relevance to the instant case. Further, the amendment to subsection (a) does not render section 110— 7(h) more recent for purposes of this case because the amendment came after the trial court’s ruling on February 19, 1982. In any event, the fact that portions of the old subsection were repeated in the amending act is to be regarded as a construction of existing law rather than an enactment of new law on the subject. Apex Motor Fuel Co. v. Barrett (1960), 20 Ill. 2d 395,169 N.E.2d 769.

Lastly, the State urges that even if this court regards section 115 — 4.1(a) to be controlling, the $10,000 attorney fee award was improper nevertheless because the circuit court failed to determine whether or not such fees were “reasonable.” We agree. In awarding fees, the court must consider factors including, but not limited to, the time spent and services rendered, the attorney’s skill and experience, the complexity of the case, trial costs, and overhead expenses. (People v. Johnson (1981), 87 Ill. 2d 98, 106, 429 N.E.2d 497; People v. Hill (1983), 117 Ill. App. 3d 778, 453 N.E.2d 1341.) Because these factors were not considered here, the attorney fee awards must be vacated and the cause remanded to the circuit court for hearing with regard to the foregoing factors.

For the reasons aforestated, we affirm all but the amounts awarded for attorney fees; vacate the attorney fee awards; and remand for hearings as to their reasonableness.

Affirmed in part; vacated in part; and remanded for further hearings.

DOWNING, P.J., and STAMOS, J., concur.


author: PRESIDING JUSTICE WILSON

text:
      In re VINCENT RAMON RIVERA, a Minor-(The People of the State of Illinois, Petitioner-Appellee, v. Vincent Ramon Rivera, Respondent-Appellant).
    First District (5th Division)
    No. 82—1900
    Opinion filed December 9, 1983.

      James J. Doherty, Public Defender, of Chicago (Thomas N. Swital and James Reddy, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This appeal presents a question not previously addressed by this court: whether a minor who has twice been adjudicated a delinquent and who is thereafter charged in a delinquency petition with having committed the offense of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1) may be subjected to the provisions of the Habitual Juvenile Offender Act (the Act). (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12.) The background of this case is as follows.

A petition for adjudication of wardship was filed alleging that the respondent was delinquent because

“[0]n or about March 10, 1982, at Cook County, Illinois, [he] committed the offense of Burglary in that he, without authority knowingly entered a part of a building, the property of Denise Seay, with the intent to commit therein a theft, in violation of Chapter 38, Section 19 — 1(a).”

The State served respondent with a petition and notice of intent to prosecute him as a habitual juvenile offender. (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12.) A jury trial was conducted as allowed by the Act, and the jury found respondent “delinquent in that he committed the offense of burglary.”

Respondent filed a motion in arrest of judgment on the ground that the delinquency petition did not allege the commission of an offense for which he could be adjudged a habitual juvenile offender. The trial court denied the motion and entered an order committing respondent to the Juvenile Division of the Illinois Department of Corrections.

On appeal, respondent reiterates his argument that he was neither charged with, nor found to be delinquent based upon an offense for which he could be prosecuted as a habitual juvenile offender. The relevant segment of the habitual juvenile offender statute provides:

“(a) Any minor having been twice adjudicated a delinquent minor for offenses which, had he been prosecuted as an adult, would have been felonies under the laws of this State, and who is thereafter adjudicated a delinquent minor for a third time shall be adjudged an Habitual Juvenile Offender where:
1. The third adjudication is for an offense occurring after adjudication on the second; and
2. the second adjudication was for an offense occurring after adjudication on the first; and
3. the third offense occurred after January 1, 1980; and
4. the third offense was based upon the commission of or attempted commission of the following offenses: murder, voluntary or involuntary manslaughter; rape or deviate sexual assault; aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm to the victim; burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings; home invasion; robbery or armed robbery; or aggravated arson.” Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12(a).

There is no issue raised here concerning the requisite elements set forth in subparagraphs (a)l through (a)3. Respondent’s contention is that subparagraph (a)4 is not satisfied since the burglary offense with which he was charged was not based upon the commission of “burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings.” Respondent’s argument is premised on the fact that he was specifically alleged to be delinquent for having committed the offense of burglary in violation of section 19 — 1(a) of the Criminal Code of 1961, which explicitly excludes from its definition the offense of residential burglary.

I

The first question we must address is the State’s claim that respondent waived appellate review. In its brief, the State has characterized the issue on appeal as raising an “alleged pleading defect.” The State then argues, in reliance on People v. Walker (1980), 83 Ill. 2d 306, 415 N.E.2d 1021, that respondent waived the right to appellate review of his prosecution as a habitual juvenile offender because (1) he did not contest the adequacy of the petition at trial; (2) he participated in a jury trial under the Act; and (3) the defense he raised was insufficient identification of him as the offender, not inability of the State to prove that the burglarized premises was a residential dwelling.

We find that the State’s contention is faulty since it is premised upon its inaccurate interpretation of the issue. Respondent has not challenged the sufficiency of the delinquency petition to charge him with the underlying offense of burglary in violation of section 19 — 1(a) of the Criminal Code of 1961. His contention is that by definition, burglary and residential burglary are mutually exclusive crimes, and that prosecution as a habitual juvenile offender is available only where a delinquency petition charges the underlying offense of residential burglary in violation of section 19 — 3(a) of the Criminal Code of 1961.

In any event, we would find the State’s argument that respondent waived appellate review by failing to make a timely objection to be without merit. Error is preserved by either objection at the proper time or by the filing of a post-trial motion (People v. Mathes (1981), 101 Ill. App. 3d 205, 210, 427 N.E.2d 1269). Here, respondent raised the issue in a motion in arrest of judgment which “opens the entire record for examination and reaches any defect apparent therein.” (People v. Beauchemin (1979), 71 Ill. App. 3d 102, 109, 389 N.E.2d 580.) Moreover, attacks on the trial court’s jurisdiction to try an accused for an offense are not waived by failure to make an appropriate objection in the trial court. People v. Greer (1964), 30 Ill. 2d 415, 417, 197 N.E.2d 22.

II

The State’s second argument is that the Habitual Juvenile Offender Act is “solely an enhanced penalty provision for recidivist juvenile offenders and does not in any way define or classify a particular offense that is proscribed by Illinois law.” Accordingly, the State contends that after respondent was adjudicated a delinquent for the third time, albeit based upon the offense of burglary, he could then be subjected to the enhanced penalty provided for in the Act if either at the trial or at the dispositional hearing, the State introduced evidence that the burglarized premises was a “home or other residence.”

In support of its argument, the State relies on People v. Hayes (1981), 87 Ill. 2d 95, 429 N.E.2d 490. In Hayes, our supreme court held that in order to invoke the enhanced sentencing statute to elevate retail theft (under $150) from a Class A misdemeanor to a Class 4 felony (Ill. Rev. Stat. 1981, eh. 38, pars. 16A — 10(1),(2)), it is not necessary for the prosecution to either plead or prove at trial the enhancement element, i.e., a prior theft conviction. The court in Hayes stated that the only requirement was for the sentencing court to have found beyond a reasonable doubt, after notice to the accused and an opportunity to refute the allegation, that the accused did have a prior retail theft conviction. 87 Ill. 2d 95, 98.

We believe that the State’s reliance on Hayes is misplaced. The enhancement portion of the retail theft statute does not alter the elements of that offense. Rather, it merely increases the sentence which the trial court may impose upon a defendant who has a prior retail theft conviction. The State is correct that the result of the Habitual Juvenile Offender Act is to enhance the penalty which may be imposed upon a recidivist juvenile offender. However, the holding in Hayes would only apply to alleviate the need to plead or prove at the trial the fact of the two prior delinquency adjudications. We decline to interpret Hayes to mean that within the Habitual Juvenile Offender Act the State may charge a minor with delinquency based upon one crime, but then, without amending the delinquency petition, proceed to prove the commission of an unrelated felony which also happens to be enumerated in the Act.

In the instant case, respondent was charged in the delinquency petition with the underlying offense of burglary. The jury was instructed only on the elements necessary to prove burglary, and the verdict was “delinquent based upon burglary.” It is clear that if respondent had been prosecuted as an adult, he could not have been charged with “burglary” but convicted of “residential burglary.” Residential burglary, a Class 1 felony, is not a lesser-included offense of burglary, a Class 2 felony. (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 1, 19 — 3.) As stated in People v. Barkenlau (1982), 105 Ill. App. 3d 785, 790, 434 N.E.2d 856, “[0]ne may not be convicted of an unindicted offense which is not a lesser-included of the offense with which he is charged.” That principle should apply equally to respondent.

The adjudication of the circuit court finding respondent to be delinquent based upon burglary is affirmed, and the cause is remanded for reconsideration of the disposition to be imposed.

Affirmed and remanded.

LORENZ and MEJDA, JJ., concur.

      Section 19 — 1 of the Criminal Code of 1961, as amended effective January 1, 1982, states:
      “Sec. 19.1 Burglary, (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, house-trailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4 — 102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19 — 3 hereof.
      (b) Sentence.
      Burglary is a Class 2 felony.”
      Section 19 — 3, which was added to the Criminal Code of 1961 also effective January 1, 1982, establishes a distinct offense for burglary of a residence and increases the penalty as follows:
      “Sec. 19 — 3(a). Residential burglary. A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.
      (b) Sentence. Residential burglary is a Class 1 felony.”


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY SPENCER, Defendant-Appellant.
    First District (5th Division)
    No. 82—2994
    Opinion filed November 28, 1983.

      James J. Doherty, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was convicted and sentenced to eight years for rape. He contends on appeal that (1) he was denied his constitutional right to confront witnesses against him because the complaining witness could not be adequately cross-examined; (2) the trial court erred in allowing the State to establish the elements of the crime by asking leading questions of the complaining witness; and (3) he was not proved guilty beyond a reasonable doubt.

At trial, Edith McConnell (Edith), the 13-year-old sister of the complaining witness Diane McConnell (Diane), testified that when she left for school on the morning of September 16, 1981, Diane was in the apartment and the house was neat. When she returned home between 4 and 5 p.m., a chair in the kitchen was overturned, the couch cover and pillows were on the floor, and the radio and television were playing loudly. Diane was shaking and appeared frightened, her hair was in disarray, and her nightgown was open. Diane, who is mute, indicated by gestures that she had been raped. When asked what happened, Diane pointed to her vaginal area, west toward the Cabrini-Green housing project, then to her (Edith), then to her (Diane’s) child who was in the apartment with her. She (Edith) asked if Diane meant that a boy had done this to her and that he was one of her (Edith’s) friends from the project, and Diane nodded her head yes. Diane then pointed east toward her own apartment, and she (Edith) asked whether the boy was one who had accompanied her to Diane’s apartment; Diane nodded yes. Edith explained that she went to Diane’s apartment with defendant a few days earlier to pick up Diane’s child, and Diane saw defendant at that time. She had never taken any other boy to Diane’s apartment. Edith further testified that Diane indicated to her through gestures that defendant gained admittance by knocking on the door and asking for her (Edith). The police took Diane to the hospital, and while she (Edith) was alone at approximately 8 p.m. she heard a knock on the door, peered out, and saw defendant standing on the porch. Two officers approached him and, when defendant tried to flee, a struggle ensued during which defendant dropped a gun and then ran away. Edith also testified that Diane is 31 years old and lives in her own apartment with her child and boyfriend and is able to move about the neighborhood by herself.

When Diane McConnell was called to testify, the trial court explained for the record that because of her inability to speak, Diane would be using a blackboard containing letters of the alphabet, numbers, colors, picture symbols for simple concepts such as house, and anatomically correct dolls in testifying. Diane then indicated through gestures, pointing to the board, and reenactment using the dolls, that she was at her mother’s apartment with her son on the afternoon of September 16 when she heard a knock on the door. When she opened it, defendant entered and asked to see Edith, but she (Diane) indicated to him that Edith was not home. Defendant then pushed her onto the couch and had sexual intercourse with her; the intercourse was against her will. She further indicated that defendant was wearing a gray coat and a hat, but she could not give any clear, consistent answers when asked what time defendant arrived and left or how long he stayed, and gave conflicting answers on how she was dressed at the time and whether she had seen defendant prior to the incident. Upon further questioning, Diane demonstrated her understanding of the difference between intercourse and rape by making pushing and choking gestures when asked to explain the distinction.

Brandy Brown testified that she lived next door to the apartment where the rape occurred and was acquainted with Diane. Between 1:30 and 2 p.m. on the date in question, she heard Diane’s son screaming, then the volume on the television set in that apartment was turned up very loud. At about 3 p.m., she (Brown) went out to get her mail and saw Diane standing in the doorway of her apartment. She asked Diane what was wrong because she looked upset, dazed, and her eyes were watering, but Diane did not respond. Later, Edith told her that Diane had been raped, and when she (Brown) went next door, she noted that there were chairs overturned and the couch cover was on the floor.

Officer Jones testified that when he arrived at the scene, the apartment was disheveled and Diane appeared to be in shock. He transported her to the hospital, then went to defendant’s apartment and told his mother the police wished to speak to him. Defendant came to the police unit in Cabrini-Green at 10:40 that night and was wearing, among other items of clothing, a gray sportcoat and a cap.

Detective Stabnick testified that she interviewed Diane at the hospital that night with the aid of Brown, who acted as an interpreter because she (Stabnick) could not understand Diane’s gestures. During this interview, Diane indicated that defendant raped her. Stabnick further testified that she and her partner went to the apartment where the rape occurred at approximately 9 p.m. that night and, as they approached, they saw defendant standing at the door and asked his name. Defendant fled, but there was no struggle and defendant did not drop a gun.

It was stipulated that tests conducted on Diane at the hospital were positive for the presence of spermatozoa.

Ernestine Gideon, a defense witness, testified that defendant came to her apartment at approximately 10 a.m. on the date in question and, after speaking to her for 15 minutes, went next door to visit his girl friend. Defendant returned to her apartment for 15 minutes at noon, then went back to his girl friend’s home. She saw him again at 3 p.m., but did not know where he was in the interim. Gideon further testified that her apartment is less than one block from the apartment where the rape occurred.

In rebuttal, it was stipulated that shortly after being taken into custody and after being read Miranda warnings and acknowledging his understanding of them, defendant stated to an assistant State’s Attorney that he knew Diane and Edith; that he went to their apartment at 2 p.m. on the date in question looking for Edith; that when Diane indicated that Edith was not home, he left and returned to his apartment; and that he knocked at their apartment door at approximately 9:30 that night “looking for a haircut” but fled when he saw the police.

Defendant testified in surrebuttal that he did tell officers he stopped at Diane’s apartment, but denied telling them what time he was there. He further stated that he arrived at the apartment at 9 a.m. but only stayed two or three minutes and did not touch Diane. From there, he went to Gideon’s house and stayed until 9 p.m. As he was passing near Diane’s apartment on his way home, two officers attempted to stop him, and he ran because he thought they would arrest him for a curfew violation, although he acknowledged that he was 17 years old at the time and it was only 9 p.m. He explained that officers frequently harassed young men out after dark in the area surrounding the housing project. When he arrived home, he learned that the police wanted to speak to him, and immediately went to the police unit in the project. Defendant admitted that he met Diane before the date in question but denied raping her.

Opinion

Defendant first contends that he was denied his right to confront witnesses against him because the complaining witness’ mild to moderate retardation and inability to communicate verbally prevented him from cross-examining her adequately. In support thereof, he cites People v. White (1968), 40 Ill. 2d 137, 238 N.E.2d 389, wherein the sole witness to a theft was a nursing home patient who could hear but could not speak. In reversing the defendant’s conviction, which was based solely on her testimony, the court noted that there were “grave doubts” as to the witness’ competency and susceptibility to influence, and that the only way she could communicate was to raisé her knee if her answer was yes, and remain still if her answer was no. The court further stated that “[t]he witness had no means of originally communicating an accusation. She was unable to state what she saw nor could she describe the [article stolen] or the person who took it.” (40 Ill. 2d 137, 139, 238 N.E.2d 389, 390.) The court ruled that, under those circumstances, the defendant’s right to cross-examine the witness was violated. .

It is defendant’s position that the instant case is similar to White, relying on a letter from Dr. Kaplan, a staff psychiatrist at the Psychiatric Institute of Cook County, who examined Diane and expressed his opinion that she was on the borderline between mildly and moderately retarded. Kaplan further stated that while Diane was able to communicate “a reasonably adequate description of the alleged crime,” when questioned thereon she “gave confusing and conflicting responses,” and it was therefore his impression that she “would not be able to be adequately cross-examined in court.” Defendant also relies on the trial court’s statement at the close of trial:

“It should be noted, at this time, that the victim *** is a mild to moderate retarded adult who cannot talk or use a known sign language. She can understand questions. And when questions are phrased in a simple forthright way, she can answer them by referring to a board, which contains all the alphabets, numbers, days of the week, months, and so forth. It should be noted that she can best answer leading questions, which call for a yes or no answer. Compound questions will either not be answered, or the answer may be confusing. Questions that call for a verbal response are beyond the ability of the victim to answer, and tend to frustrate her. *** The direct and cross examination of the victim took most of an afternoon, and she seemed to tire out towards the end. So that her alertness was better at the start than at the end.”

Defendant argues that the foregoing shows that he could not adequately cross-examine Diane because she was less alert, and therefore inattentive, during the examination. He further contends that her inability to speak made it difficult to discredit her and that the trier of fact was less able to observe her demeanor.

We find the circumstances of this case described by defendant readily distinguishable from White. Initially, we note that the trial court conducted pretrial hearings regarding her competency to testify (no transcripts of which were provided) and had considered Dr. Kaplan’s opinion, but reserved ruling on her competency until after she had testified. In ruling that she was competent, the court specifically relied upon the criteria set forth in People v. Seel (1979), 68 Ill. App. 3d 996, 1004, 386 N.E.2d 370, 376; that is, it determined that she had the “ability *** to receive correct impressions from [her] senses; [the] ability to recollect these impressions; [the] ability to understand questions and express answers; and [the] ability to appreciate the moral duty to tell the truth.” This determination is within the sound discretion of the trial court, and may be arrived at either through conducting a preliminary inquiry or observing the witness’ demeanor and ability to testify during trial (People v. Luigs (1981), 96 Ill. App. 3d 700, 421 N.E.2d 961) and will not be disturbed absent a showing that it abused its discretion (People v. Fugate (1979), 77 Ill. App. 3d 103, 395 N.E.2d 1199).

Here, while defendant does not expressly purport to challenge the trial court’s ruling as to competency, he implicitly attacks that ruling by his reliance on White, wherein the court expressed “grave doubts” about the witness’ competency, as well as his reliance on the facts that Diane was retarded; that a psychiatrist found her answers “confusing and conflicting”; and that Diane appeared to tire toward the end of her testimony. However, these facts are immaterial to the question of competency. We have repeatedly held that a witness suffering from mental impairment such as retardation (People v. O'Neal (1977), 50 Ill. App. 3d 900, 365 N.E.2d 1333) or senility (People v. Scott (1982), 108 Ill. App. 3d 607, 439 N.E.2d 130) is legally competent to testify so long as he has the capacity to observe, recollect, and communicate. Thus, defendant may not rely merely on the fact that Diane was retarded; she is presumed competent, and he has the burden of showing that she was not. (People v. Davis (1976), 43 Ill. App. 3d 603, 357 N.E.2d 96.) In this regard, defendant points to nothing in the record from which we could conclude that her mental capacity affected her legal competency; to the contrary, Diane’s ability to remember details, such as defendant’s clothing, what he said, what he did, and to communicate those facts despite her handicap, clearly support the trial court’s determination.

It is further our view that defendant’s reliance on Dr. Kaplan’s opinion that Diane could not be adequately cross-examined because her answers were sometimes “confusing and conflicting” is misplaced. That is not the test of competency, as we recently noted in People v. Scott (1982), 108 Ill. App. 3d 607, 610, 439 N.E.2d 130,133:

“The record indicates that although the complainant’s testimony was at times unresponsive and confusing in response to questions asked of him, he had the capacity to observe, recollect and communicate. Thus, he was competent to testify and any inconsistencies in his testimony merely affected his credibility and the weight to be accorded his testimony.”

In the instant case, the conflicts and inconsistencies noted in the record go to relatively minor matters. It is apparent that Diane has difficulty with time concepts; that is, she became confused when asked what time something happened or how long someone was present. She also had difficulty answering questions which were phrased in the negative; when asked if she had seen defendant on a prior occasion, she would say yes; when asked “you never saw defendant before” she would answer no. Under those circumstances, it is difficult to tell whether she was answering the question or expressing her agreement with the idea contained therein. However, as noted in Scott, these problems go to her credibility, not her competency.

We are similarly unpersuaded by defendant’s argument that because she was tired toward the end of her testimony, when cross-examination occurred, she was “inattentive.” If that were the criteria of competency, many witnesses would not qualify, since anyone on the stand for several hours will be more tired when they finish than when they began. Furthermore, there is nothing from which we could con-elude that Diane was “less attentive” because of fatigue, as defendant suggests. She answered each question asked of her to the best of her ability, and defendant, in his brief, does not cite one instance from the record to demonstrate this asserted “inattentiveness.”

Defendant also relies on Diane’s inability to communicate verbally in analogizing the instant case to White; however, here, unlike the witness in White, Diane was able to do much more than indicate yes or no; she could demonstrate what happened by using dolls and other aids and by reenactment, and was able to describe what defendant was wearing and to identify him. Thus, she clearly had a greater capacity for communication. Unfortunately, we have not discovered, nor have the parties cited, any Illinois case which considers the effect of a witness’ inability to communicate verbally; however, we have considered cases from other jurisdictions which have addressed this issue.

In Burgess v. State (1951), 256 Ala. 5, 53 So. 2d 568, the only witness to a murder was a deaf and mute woman who knew no sign language. The court found no abuse of discretion in permitting her to testify where the evidence indicated that she was otherwise competent, and rejected the defendant’s argument that he would “be put to great disadvantage in cross-examination to test the witness’ credibility.” (256 Ala. 5, 8, 53 So. 2d 568, 571.) A similar result was reached in Hyman v. State (Ala. App. 1976), 338 So. 2d 448, in which an otherwise competent deaf and mute 10-year-old witness was permitted to testify over the defendant’s objection that he would be placed at a disadvantage in cross-examination. Finally, in State v. Galloway (1981), 304 N.C. 485, 284 S.E.2d 509, the complaining witness in a rape prosecution was deaf and mute. In considering the defendant’s contention that her testimony should have been stricken, the court noted:

“The general rule appears to be that deaf and mute persons are not incompetent as witnesses merely because they are deaf and mute if they are able to communicate the facts by a method which their infirmity leaves available to them and are of sufficient mental capacity to observe the matters as to which they will testify and to appreciate the obligation of an oath.” (304 N.C. 485, 493, 284 S.E.2d 509, 514-15.)

It went on to explain:

“Society has recognized the necessity for a means of communication under such circumstances, and the method employed here [a sign language interpreter] was proper in every respect. Indeed, we know of no other practical method by which a trial could be conducted under these circumstances. *** Any confusion arising from the use of sign language to communicate with a deaf and [mute] witness goes to the weight, and not the admissibility, of the evidence. To hold otherwise would allow this defendant and others to commit crimes against persons born deaf and [mute] with impunity.” (304 N.C. 485, 494, 284 S.E.2d 509, 515.)

We find this reasoning persuasive, and hold that a witness’ inability to speak does not render her incompetent to testify or violate the defendant’s right to cross-examine witnesses so long as she is able to communicate the facts by other methods and otherwise meets the tests of legal competency; i.e., that she can observe, recollect, and appreciate the moral duty to tell the truth. In the instant case, because Diane was able to communicate by other means and was otherwise competent, we reject defendant’s contention that his constitutional right to confront witnesses was violated.

Defendant next asserts that the trial court improperly allowed the State to ask the complaining witness leading questions in establishing the essential elements of the crime. In particular, he objects to the following exchange:

“Q. He put his penis on your vagina?
A. (Witness gestures; no audible response.)
Q. She’s nodding affirmatively.
* * *
Q. Did he have sex with you? Did he enter your vagina?
A. (Witness gestures; no audible response.)
Q. Indicating, the witness pointed affirmatively.”

The allowance of leading questions is within the discretion of the trial court, and its decision will not be reversed unless it abused that discretion and the defendant has been substantially injured as a result. (People v. Williams (1976), 37 Ill. App. 3d 1006, 347 N.E.2d 368.) In the instant case, Diane had already demonstrated what happened, using anatomically correct dolls, prior to responding to the above questions. Furthermore, it is obvious, given her physical disability, that it was frequently necessary to employ questions requiring a yes or no response, and that the above questions were asked in clarification of what she had already sought to demonstrate. We believe that, under these circumstances, there was neither an abuse of discretion nor any injury to defendant. See People v. Luigs (1981), 96 Ill. App. 3d 700, 421 N.E.2d 961 (similar question found proper when asked in clarification).

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt. Specifically,, he argues that various inconsistencies in the testimony render it incredible.

The clear and convincing testimony of a complaining witness is sufficient to sustain a conviction for rape, even though contradicted by the defendant (People v. Szudy (1982), 108 Ill. App. 3d 599, 439 N.E.2d 137), and, while we will carefully examine the evidence (People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5), it is the function of the trier of fact to determine the credibility of the witnesses and the weight to be given the evidence (People v. Thomas (1981), 96 Ill. App. 3d 443, 421 N.E.2d 357), and we will not encroach on that function but will reverse only where the evidence is so unsatisfactory, unreasonable, or improbable as to create a reasonable doubt of the defendant’s guilt (People v. Edmond (1979), 76 Ill. App. 3d 540, 395 N.E.2d 106).

In the instant case, defendant points to several inconsistencies in the complainant’s testimony, particularly in regard to how she was dressed at the time, and what time defendant arrived, what time he left, and how long he was there. However, it is our view that these inconsistencies were minor, and therefore affected only Diane’s credibility and the weight to be given her testimony. The trier of fact found her credible, despite these inconsistencies, and we will not substitute our judgment thereon. (See People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5.) Defendant further posits that because Diane indicated that she had never seen him before, her identification of him must have stemmed from her sister’s suggestion that he was the assailant. We fail to see how this is material, since Diane positively identified defendant in court. Moreover, while it appears that Diane became confused when asked whether she had seen defendant on a prior occasion, not only her sister, but defendant himself, stated that they had met prior to the incident. Thus, the record does not support defendant’s contention that Diane’s identification was based on suggestion by Edith. Immediately after the rape, Diane indicated to Edith that her assailant was a friend of Edith’s who had been to her home. It was only then, based on the fact that defendant was the only male friend she had ever taken to her sister’s home, that Edith suggested defendant’s name to her. Therefore, we do not believe that the testimony in question was so impossible or improbable as to raise a reasonable doubt as to defendant’s guilt.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE MEJDA

text:
    ANTIOCH MISSIONARY BAPTIST CHURCH, Plaintiff-Appellee, v. EDWARD J. ROSEWELL, Cook County Treasurer and Ex-Officio Collector, et al., Defendants-Appellants.
    First District (5th Division)
    No. 82—1737
    Opinion filed December 2, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Thomas J. McNulty, and Henry P. Wolff, Assistant State’s Attorneys, of counsel), for appellants.
    Clarence J. Crooks, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendants, various officials charged with collecting real property taxes in Cook County, appeal from the judgment of the circuit court which found that certain real property owned by plaintiff, the Antioch Missionary Baptist Church, qualified for the exemption from tax provided by section 19.2 of the Revenue Act of 1939 (111. Rev. Stat. 1981, ch. 120, par. 500.2) “for the period commencing May 11, 1976 through December 31, 1980, inclusive.” The sole issue for review is whether the trial court erred in so finding. For the reasons which follow, we reverse the judgment of the circuit court.

The evidence considered by the trial court consisted entirely of documents; no trial testimony was presented. Accordingly, our review is not limited by the usual manifest weight of the evidence standard, but extends to an “independent decision on the facts.” (Delasky v. Village of Hinsdale (1982), 109 Ill. App. 3d 976, 980, 441 N.E.2d 367.) Plaintiff’s pastor, the Reverend Wilbur Daniel, testified in his evidence deposition that the property in question was acquired by the plaintiff on May 11, 1976. Plaintiff’s church property abuts the purchased property. Plaintiff kept the property boarded up for about a year. Plaintiff later applied to the city of Chicago for funds to rehabilitate the property. This process took about two more years. In 1980, a contractor began work and finished in the spring of 1981. During this entire time the property was vacant. The property is now utilized as a senior citizens’ housing center.

Section 19.2 of the Revenue Act of 1939 provides an exemption for property “used exclusively for religious purposes ***.” (Ill. Rev. Stat. 1981, ch. 120, par. 500.2.) “[A] statute which exempts property from taxation should be strictly construed in favor of taxation and *** a party claiming an exemption has the burden to prove clearly and conclusively that he is entitled to the exemption. [Citation.] In determining whether an exemption is applicable, every presumption is against the intention of the State to exempt property from taxation.” (Telco Leasing, Inc. v. Allphin (1976), 63 Ill. 2d 305, 310, 347 N.E.2d 729.) The supreme court has interpreted the phrase “used exclusively” in a similar and related context in Skil Corp. v. Korzen (1965), 32 Ill. 2d 249, 204 N.E.2d 738. In that case the court held that “evidence that land was acquired for an exempt purpose does not eliminate the need for proof of actual use for that purpose. Intention to use is not the equivalent of use.” (32 Ill. 2d 249, 252, 204 N.E.2d 738; see also Illinois Institute v. Skinner (1971), 49 Ill. 2d 59, 64, 273 N.E.2d 371, and cases cited therein.) In the instant case, the only evidence concerning the use of the property indicated that it was not used for any purpose but in fact was boarded up and vacant between 1976 and 1980.

Accordingly, plaintiff failed to meet its burden of showing that the property was actually used for an exempt purpose during those years. We therefore must reverse the judgment of the trial court.

Reversed.

WILSON, P.J., and SULLIVAN, J., concur.


author: JUSTICE LORENZ

text:
    MELVIN BLOCK et al., Plaintiffs-Appellants, v. PIELET BROTHERS SCRAP AND METAL, INC., Defendant-Appellee (Caterpillar Tractor Company et al., Defendants).
    First District (5th Division)
    No. 82—2264
    Opinion filed December 9, 1983.
    Michael D. Gerstein, of Chicago (Joseph A. Tere and William J. O’Con-nor, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Hugh C. Griffin, and William D. Frazier, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

In their interlocutory appeal from the trial court’s order dismissing their amended complaint for damages, plaintiffs present the following issues: (1) whether section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)), which operates to bar loss of consortium and society claims of a spouse or child arising from a work-related injury violates the due process and equal protection clauses of the constitution of the United States and State of Illinois and is therefore unconstitutional; and (2) whether a common law right of action for loss of society, training, guidance and companionship of a parent exists for a minor child against a third person who has negligently injured that parent.

The following facts are pertinent to the disposition of this appeal.

Plaintiff Melvin Block was injured on or about February 26, 1979, in the course of his employment as a truck driver with defendant Pielet Brothers Scrap and Metal, Inc. (Pielet). He and a co-worker were engaged in the removal of a load of junk cars when the cars tipped and fell upon him from a forklift truck being operated by the co-worker. Following the accident, plaintiff filed a claim for workers’ compensation against Pielet.

Plaintiff instituted the instant action on May 27, 1980, against the John Doe Corporation, alleging that it was engaged in the business of manufacturing, assembling, distributing, selling and otherwise placing into the stream of commerce an unreasonably dangerous forklift truck which had proximately caused plaintiff’s injuries. Later he amended his complaint adding the manufacturer and its related companies Caterpillar Tractor Company (Caterpillar), as additional defendants. Subsequently, by agreed order entered on February 13, 1981, Caterpillar continued as a defendant, while the other Caterpillar-related corporations were dismissed, without prejudice.

He filed a second amended complaint on February 23, 1981, naming Nagle-Hart, Inc. (Nagle-Hart), the distributor of the forklift truck as an additional defendant. Count III was added by plaintiff’s spouse, Marsha, individually, and as mother and next friend of Diane, William, Ralph, Carol and Daniel Block (the children) and sought a cause of action for loss of consortium and for the loss of plaintiff’s society on the children’s behalf against defendants Caterpillar and Nagle-Hart. This count remained pending against the manufacturer (Caterpillar) and the distributor (Nagle-Hart). In count IV they sought the same relief against employer Pielet.

Pielet’s motion to dismiss count IV of the second amended complaint on the grounds that (1) the loss of consortium claim of Marsha Block and the loss of society and companionship claim of the children against Pielet were barred by the exclusive remedy provision of section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) and (2) that a child’s loss of parental society and companionship is not a recognized cause of action in Illinois was granted September 2,1982.

Plaintiffs appeal from the entry of this order.

Opinion

Section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) provides in pertinent part as follows:

“No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." (Emphasis added.)

In the present case, plaintiffs contend that the provisions of section 5(a) are unconstitutional as they act to extinguish the common law and statutory rights of third parties who otherwise might be entitled to recover damages against an employer for an employee’s injuries.

Conversely, Pielet contends that section 5(a) is a constitutional “exclusive remedy” of the Workers’ Compensation Act, which acts to extinguish the common law and statutory rights of any person entitled to recover damages from an employer for injuries received by an employee in a work-related “accident.”

Initially, we consider plaintiff’s argument that section 5(a) is unconstitutional as applied to spouses and dependent children of an injured employee. In Bloemer v. Square D Co. (1972), 8 Ill. App. 3d 371, 290 N.E.2d 699, a case similar to the present case, the wife of an injured employee brought an action for damages sustained by her for loss of consortium, allegedly caused by the defendant-employer’s negligence. The employer had previously paid benefits to the injured employee as provided by the Workmen’s Compensation Act.

The trial court’s denial of the wife’s consortium claim was affirmed by the appellate court which held that section 5(a) of the Act was a bar to recovery by a wife when as here the injury to the husband giving rise to the loss of consortium was compensable under the Act. 8 Ill. App. 3d 371, 373.

In arriving at the decision, the Bloemer court followed the prior holdings of Duley v. Caterpillar Tractor Co. (1969), 44 Ill. 2d 15, 253 N.E.2d 373, and Moushon v. National Garages, Inc. (1956), 9 Ill. 2d 407,137 N.E.2d 842.

In Duley v. Caterpillar Tractor Co. (1969), 44 Ill. 2d 15, 253 N.E.2d 373, a woman was fatally injured in the course of her employment upon being struck by a forklift truck. Her husband, in his capacity as administrator of his wife’s estate, brought a wrongful death action against the defendant employer.

Our supreme court affirmed the trial court’s denial of this action. The plaintiff, as his wife’s sole surviving beneficiary, had previously proceeded against the defendant before the Industrial Commission, resulting in a $500 burial expense compensation award. The supreme court held that the plaintiff was barred by section 5(a) from any further relief under the Act.

The court further held that the prohibition of additional actions is consistent with the legislative purpose of the statute in that “ ‘[t]he act was designed as a substitute for previous rights of action of employees against employers and to cover the whole ground of the liabilities of the master ***.’ ” 44 Ill. 2d 15,18, 253 N.E.2d 373.

Furthermore, the court concluded that while the Act fixes limits upon the amounts to be recovered, it is sustained as a legitimate exercise of the legislature’s police power for the general welfare in that it takes away existing rights of action of the employee while extending the liabilities of the employer. 44 Ill. 2d 15, 18, 253 N.E.2d 373. See also Matthiessen & Hegeler Zinc Co. v. Industrial Board (1918), 284 Ill. 378, 382-83, 120 N.E. 249.

In considering the question of whether section 5(a) violated either the Constitution of the United States or the Illinois Constitution, the Duley court cited Moushon v. National Garages, Inc. (1956), 9 Ill. 2d 407, 137 N.E.2d 842, as previously determining this issue when it considered the constitutionality of section 5(a) where no remedy for permanent injury was provided in the Act. “By the Workmen’s Compensation Act, the legislature required the employer to give up certain defenses and required the employee to give up certain recoverable elements of damage of a common-law negligence action; and this we have held many times is a reasonable exercise of the legislature’s police power for the promotion of the general welfare. [Citations.] This court has never considered one to have such a vested right in the common-law rules governing negligence actions as to preclude the legislature from substituting a statutory remedy of this type for the common-law remedy.” 9 Ill. 2d 407, 412,137 N.E.2d 842.

We find that the reasoning of the court in Moushon and Duley, determining the constitutionality of section 5(a) to be dispositive of the constitutional issues raised by the plaintiff.

Next, plaintiffs urge this court to once again consider the question as to whether a child has the right to bring suit for the loss of companionship and safety of his/her parent.

This same issue was considered and disposed of by this court in Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148, wherein the appellate court affirmed the holding of the lower court which dismissed an autistic child’s action for the loss of consortium, companionship and society of her injured father.

Following Koskela, Illinois courts have continued to refuse to recognize such a cause of action for children. Mueller v. Hellrung Construction Co. (1982), 107 Ill. App. .3d 337, 437 N.E.2d 789; McNeil v. Diffenbaugh (1982), 105 Ill. App. 3d 350, 434 N.E.2d 377.

In the present case, plaintiffs strongly urge this court to expand Hlinois law in the area of family relationships by the recognition of this cause of action. To do so, however, would be in direct opposition to the Koskela court which stated, “the determination of whether a child should be granted this cause of action is one of legislatively determined public policy.” (Koskela v. Martin (1980), 91 Ill. App. 3d 568, 571, 414 N.E.2d 1148.) Accordingly, we agree with the Koskela court that such an expansion in the law of family relationships should be made by the legislature which could better weigh the merits of the proposed change against other considerations — such as double damages recovery, increased litigation, remoteness of damages as well as possible adverse effect on the family of separate or segregated awards to children.

For the foregoing reasons, this court refuses to recognize the common law cause of action for loss of services, companionship, society and affection of a parent by a minor child, against a third person, who had negligently injured that parent.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


author: JUSTICE LINN

text:
    EDWARD C. HOWELL et al., Plaintiffs-Appellants, v. STEPHEN S. BLECHARCZYCK et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—2478
    Opinion filed December 1, 1983.
    Rehearing denied January 5,1984.

      Chris J. Heaney and Mary Mathewson, both of Jacobs, Buikema, Malak, Heaney & Hiskes, Ltd., of South Holland, for appellants.
    Ronald G. Zamarin, Daniel S. Hefter, and Victoria S. Stender, all of Isham, Lincoln & Beale, of Chicago, for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, a group of candidates who represented the Concerned Citizens Party (C.C.P.) in a recent municipal election, instituted a libel action in the circuit court of Cook County against defendants, the board of directors of the Hazel Crest Forum, a volunteer, nonpartisan citizens’ group organized to promote fair elections in the village of Hazel Crest, Illinois. The trial court granted defendants’ motion for judgment on the pleadings, whereupon plaintiffs filed a two-count amended complaint, count I charging defendants with libel per se by pleading that the Forum’s published statement had damaged plaintiffs in their profession or calling, and count II adding an allegation of special damages. The trial court dismissed the amended complaint with prejudice.

Plaintiffs now appeal, maintaining that the trial court erred in dismissing their complaint because (1) the challenged statements were libel per se, therefore negating the necessity of pleading special damages, (2) they were statements of fact and therefore not protected under the first amendment, (3) the words used were not susceptible to a nondefamatory interpretation under the innocent construction rule, and (4) the electorate’s right to be protected from malicious falsehoods outweighs the defendants’ right of free speech.

We affirm the decision of the trial court.

Facts

This action arose out of events that occurred during the 1981 village election campaign in Hazel Crest, Illinois. Plaintiffs were candidates slated by the C.C.P., while defendants were officers of the Hazel Crest Forum. The Forum, a nonpartisan, volunteer organization formed with the assistance of the League of Women Voters, encouraged people to run for local office, provided opportunities for candidates to express their views to large gatherings of voters, and obtained pledges from the candidates to conduct fair, honest, and dignified campaigns.

One of the Forum’s major activities was its sponsorship of several “Candidates’ Nights,” public meetings at which voters were given an opportunity to hear the various candidates speak on several issues of local importance. As a condition of participation in any of the Forum-sponsored activities, all candidates, including plaintiffs, signed a “Candidate Fair Campaign Pledge,” which read as follows:

“The purpose of this pledge is to insure that each candidate who participates in the Forum conducts a fair, honest and dignified campaign.
I, [candidate’s name], pledge the following:
1. to address the campaign and all issues objectively and with factual information.
* * *
4. to file a copy of all campaign materials intended for distribution with the Forum Board of Directors prior to distribution.
I pledge to conduct my campaign honestly, and I understand that any violation of this pledge will be made public by the Forum.”

On April 6, 1981, the Forum, in accordance with the closing line of the pledge, distributed the following flier, which contained the language at issue in this case. After summarizing the nonpartisan goals of the Forum and noting the first and fourth conditions of the pledge quoted above, the publication continued,

“On March 25, 1981, at the St. Anne’s Church Forum, Kathleen Witt, incumbent candidate for Trustee, said, ‘We have to keep our community a desirable community for all the people, so that we can draw from the Chicago Metropolitan area a fair representation of the homebuying public, that is, in case you are interested, about 8 white buyers and 2 black buyers.’ (Verbatim transcription from Official Forum Tapes)
The C.C.P. flyer of 4-3-81 states, ‘President Kauchek and Trustee Witt are on record as proposing an 8 to 2 ratio. In practice their suggestion would create a village home buyers quota system allowing 8 whites and 2 minorities out of every 10 home buyers coming into the Village.’
The Forum feels that this statement in the C.C.P. literature is an inaccurate rendition of the statement made, which constitutes a violation of condition #1 of the ‘Pledge.’
On April 4, 1981, the C.C.P. did distribute a flyer to the Residents of Hazel Crest without filing this material in accordance with condition #4 of the Candidates Fair Campaign Practices Pledge.”

Following the election defeat of four of the five named plaintiffs, the C.C.P. filed this suit, alleging in their amended complaint that the Forum committed libel per se by charging plaintiffs with twice violating their oath and thus damaging them in their profession or calling. The trial court agreed with defendants that the Forum flier was not actionable and therefore dismissed the case with prejudice. This appeal followed.

Opinion

I

“An action based on libel per se requires a serious charge of incapacity or misconduct in words so obviously and naturally hurtful that proof of their injurious character is dispensed with.” (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185, 1188.)' Of the four commonly accepted categories of statements that qualify as libel per se, two are pertinent to this appeal: unfitness or láck of integrity in performing the duties of an office or employment, and lack of ability in a business, trade or profession. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 371 N.E.2d 874.) Plaintiffs’ claim that they were prevented from successfully pursuing their chosen “Profession or calling,” i.e., elective political office, because of the Forum’s allegedly false charges is, apparently, a blend of the two stated categories; because of the Forum’s statements that the C.C.P. candidates twice violated their campaign pledge, the electorate perceived those candidates as people who violate their oaths and therefore as unfit for election to public office.

Charges of dishonesty in some form have been the subject of several suits alleging libel per se. (Britton v. Winfield Public Library (1981) , 101 Ill. App. 3d 546, 428 N.E.2d 650; Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 292 N.E.2d 138; Wade v. Sterling Gazette Co. (1965), 56 Ill. App. 2d 101, 205 N.E.2d 44.) Despite the abusive language at issue, the statements in all three cases were held to be “ ‘harsh criticism of plaintiff’s actions in a single case rather than an assault on his character in general.’ ” (Costello v. Capital Cities Media, Inc. (1982) , 111 Ill. App. 3d 1009, 1014, 445 N.E.2d 13, 17, quoting Brit-ton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 550, 428 N.E.2d 650, 653.) Such criticism traditionally has been held to be capable of being read innocently and therefore is not libel per se.

In contrast, an editorial predicting “two more years of the Costello brand of lying leadership” from a newly elected county board chairman has been found to be not just criticism of conduct in a particular instance and therefore reasonably capable of innocent construction, but rather an actionable assault on his character, as were words that implied that “ '*** the plaintiff was generally a dishonest person or one who could not be believed under oath. ***’ ” (Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 221, 292 N.E.2d 138, 142, quoting Wade v. Sterling Gazette Co. (1965), 56 Ill. App. 2d 101, 205 N.E.2d 44.) Plaintiffs in the instant case argue that the language in the Forum’s flier is not criticism of their actions in a single instance and therefore capable of innocent construction. Instead, plaintiffs claim that their portrayal as people who could not be believed under oath constitutes the same type of general assault on their characters as that deemed libelous in Costello, Delis, and Wade. We agree, and we therefore initially find the statements that plaintiffs twice violated their oaths to be actionable on grounds of libel per se because they impute to plaintiffs such a basic lack of integrity and honesty that the natural reaction of the electorate would be to find them unfit for office.

II

Our inquiry and analysis do not end here, however. “Libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.” (New York Times v. Sullivan (1964), 376 U.S. 254, 269, 11 L. Ed. 2d 686, 700, 84 S. Ct. 710, 720.) We have a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open ***.” (376 U.S. 254, 270, 11 L. Ed. 2d 686, 701, 84 S. Ct. 710, 721.) Candidates for public office, having “thrust themselves to the forefront of particular public controversies *** have voluntarily exposed themselves to increased risk of *** defamatory falsehood ***.” (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 345, 41 L. Ed. 2d 789, 808, 94 S. Ct. 2997, 3010.) “ ‘It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrage. * * * [A]nyone claiming to be defamed by the communication must show actual malice or go remediless. ***’ ” (New York Times v. Sullivan (1964), 376 U.S. 254, 281, 11 L. Ed. 2d 686, 707, 84 S. Ct. 710, 728.) The question thus becomes whether the Forum’s flier forfeits its constitutional protection by the alleged falsity of two of its statements and by its alleged defamation of the candidates of the C.C.P.

Neither factual error nor defamatory content automatically removes the constitutional protection from criticism of official conduct. (New York Times v. Sullivan (1964), 376 U.S. 254, 273, 11 L. Ed. 2d 686, 702, 84 S. Ct. 710, 722.)

“The First Amendment precludes liability based on the utterance of defamatory opinions. As the Supreme Court stated in Gertz v. Welch, ‘Under the First Amendment there is no such thing as a false idea. *** [However,] there is no constitutional value in false statements of fact.’ For any statement to be actionable it must depict false facts in a defamatory light. *** Opinion qua opinion cannot provide the basis for an actionable claim. A cause of action will accrue, however, if a statement implies the existence of undisclosed ‘facts’ which are both false and defamatory.” Ollman v. Evans (D.D.C. 1979), 479 F. Supp. 292, 293.

It is clear from the above holding that an author’s opinion based on disclosed facts will not give raise to a cause of action. Further, even if the stated opinion is based on disclosed facts carefully and narrowly selected to support the opinion, such admittedly “biased” journalism is afforded the same constitutional protection as writing thought of as “balanced.” 479 F. Supp. 292, 294.

In their publication, defendants quoted both the original statement made by the village trustee and plaintiffs’ published interpretation. Defendants’ statement that plaintiffs’ version was an inaccurate paraphrase is clearly pure opinion, as is their conclusion that by publishing the flier containing the paraphrase, plaintiffs violated their fair campaign pledge. Although an opinion implying alleged undisclosed defamatory facts is actionable, all the facts supporting defendants’ opinion are disclosed. We therefore find defendants’ first challenged statement to be nonactionable as a matter of law.

In the second statement labeled by plaintiffs as defamatory, defendants claimed that plaintiffs failed to file a piece of campaign literature prior to distribution and thereby violated the fourth condition of the pledge. While this statement is clearly one of fact, not protected opinion, we find that it, too, is nonactionable as a matter of law.

“[Cjonstitutional guarantees require *** a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (New York Times v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726.) This standard, subsequently extended to cover public figures as well as officials (Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975), applies to “anything which might touch on an official’s fitness for office ***. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation ***.” Garrison v. Louisiana (1964), 379 U.S. 64, 77, 13 L. Ed. 2d 125, 134, 85 S. Ct. 209, 217.

Mere failure to check their own files would not necessarily establish that the Forum knew their publication was false. (New York Times v. Sullivan (1964), 376 U.S. 254, 287, 11 L. Ed. 2d 686, 710, 84 S. Ct. 710, 730.) “[T]he publisher must act with ‘ “high degree of awareness of ... probable falsity.” ’ ” (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 332, 41 L. Ed. 2d 789, 801, 94 S. Ct. 2997, 3003, quoting St. Amant v. Thompson (1968), 390 U.S. 727, 731, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1325.) Because this case is before us on the pleadings, the allegation of the complaint must be judged against these requirements.

A motion to dismiss admits only well-pleaded facts, not conelusions of law or conclusions of fact unsupported by allegations of specific facts upon which the conclusions are based. (Grabavoy v. Wilson (1967), 87 Ill. App. 2d 193, 230 N.E.2d 581.) The complaint at issue discloses that although plaintiffs asserted that the Forum’s published statement concerning violation of the fourth condition of the signed pledge was untrue and that plaintiffs “were not guilty of such breach or violation,” that assertion was not supported by any specific facts in the complaint; consequently, the motion to.dismiss did not admit the conclusion that the statements were false. Similarly, the motion to dismiss does not admit the existence of actual malice because there were not facts alleged from which malice could be implied or presumed. Without such facts, a simple allegation that defendants did not believe their statements, had no reasonable grounds for believing them, and published them with reckless disregard for the truth does not operate as an admission of malice. 87 Ill. App. 2d 193, 200-01, 230 N.E.2d 581, 584-85.

Accordingly, for the reasons set forth we find the complaint to be insufficient to state a claim on which relief may be granted, and we affirm the trial court’s dismissal of both counts. Our discussion of the constitutional protection afforded political debate also disposes of plaintiffs’ final issue.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.