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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BRITZ, JR., Defendant-Appellant.
    Fourth District
    No. 4—83—0404
    Opinion filed July 18, 1984.
    Modified on denial of rehearing September 6, 1984.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Murder.

Sentence: 25 years.

Because of grave error in the way the jury was selected, we must reverse the conviction and remand this case for a new trial.

I. The Facts

On Saturday, June 9, 1979, at approximately 5:30 a.m., two Springfield residents living in the vicinity of a local gasoline service station heard a single gunshot, and then saw a young white man run south down an alley. Bernard Ebel described the man he saw as being 17 to 21 years of age, medium build, with black or dark hair over his ears. He said that the man was clad in black pants and a white sport shirt with blue bands around the sleeves. Ebel stated that he could not make an identification because he saw only a side and back view of the individual.

Harold Martin was standing in his backyard feeding pigeons when he saw an individual attired in a manner similar to the person seen by Ebel. He saw the man’s face for a few seconds. He estimated that the person he saw was 5 feet 7 inches or 5 feet 9 inches tall and 18 or 19 years old. He noticed that the individual was wearing high-heeled boots and had either wet or greasy hair which was slicked back and parted on the left side.

Shortly after the sighting, Martin began to drive to work and passed the gas station. On his way by he noticed a man whom he later discovered was Timothy Meisner. Meisner was lying on the pavement at the station next to a van. Martin tried to awaken the man, but when he touched him the man’s arm fell to his right side, revealing a spot of blood. At this time police were called, and Martin and Ebel assisted them in making a composite sketch of the person they had seen running down the alley.

Dr. Grant Johnson, a pathologist, was called to the scene at approximately 6:20 a.m. and found Meisner lying on his back in front of the passenger side of a van. An air hose, hubcap, and screwdriver were found near the tire on the driver’s side of the van. Johnson also found a wallet between Meisner’s arm and chest with an identification card but no currency. No bullet casings were found at the scene of the crime.

Dr. Johnson eventually performed an autopsy on Meisner which determined that the victim had been shot with a single .22-caliber bullet, the bullet having passed through the upper portion of the right arm and major internal organs before coming to rest in the lower left portion of his chest. The entrance wound was minimal, leaving blood around the wound on Meisner’s T-shirt but not elsewhere on his clothing or on the pavement. In Johnson’s opinion, an assailant had shot Meisner from above the shoulder from a distance of three inches to two feet. Johnson felt that the wound was consistent with a scenario in which Meisner was kneeling and the assailant was standing. Johnson was also of the opinion that Meisner would have died within a minute after being shot, but noted that people with wounds inflicted by small-caliber bullets have been known to maintain life functions for a rather long period of time after the original wound. Dr. Johnson was of the opinion that had this happened, it would have been possible for Meisner to have been in one position when shot and then moved to another position before dying.

In the early morning hours of Monday, June 11, two off-duty police officers were driving north on North 3rd Street in Springfield. They saw defendant John Britz. Both thought that he resembled the composite sketch of the person who had been seen fleeing the shooting scene two days earlier. They turned the car they were in around, but by the time they made the turn the defendant was gone. The officers continued to drive around Lincoln Park and soon saw Britz walking up a hill near a lagoon. At this point they identified themselves to him and called for an on-duty detective to come out in a squad car and question the defendant. Two detectives responded and told the defendant that he bore a striking resemblance to the composite sketch of the murder suspect in the Meisner case. After further questioning, Britz told them that he had just been released from Memorial Hospital in Springfield after a drug overdose. After determining the defendant’s identity, one of the detectives gave him a ride to his destination at 2:45 a.m.

Later that same day, defendant contacted the Youth Services Bureau in Springfield. Although he spoke with several counselors during the course of the day, the defendant later called one of them — Cheryl Penman — and told her that “somebody had been murdered and that he had done this.”

At this point, the investigation in the Meisner homicide began to focus on Britz. Springfield Detective Marcia Lange-Kemph went to Penman and asked her to consent to the use of an eavesdropping device on one of the telephones at the Youth Services Bureau. Penman consented. On July 3, 1979, Lange-Kemph executed an application for a court order which authorized the use of an eavesdropping device to overhear and record telephonic conversations between defendant and Penman. The authorization allowed the use of the eavesdropping device from 5 p.m. on July 3, to 4:59 p.m. on July 13. The device was installed on the telephone of another counselor at the Bureau. The scheme developed between Penman and the police was that whenever Britz telephoned the Bureau’s answering service and asked to speak to Penman, she would return the defendant’s call over the taped phone and engage him in conversations designed to elicit information about Meisner’s death. Throughout this period, Detective Lange-Kemph coached Penman on how to draw information from the defendant.

Twelve conversations between defendant and Penman were recorded between July 6 and July 12. In each of these conversations, defendant repeatedly denied complicity in Meisner’s death. At all times during these conversations, Penman told the defendant that she was truly concerned about him and advised him to confide in her and get anything that was bothering him off his chest. At various points throughout these conversations Penman also appealed to the defendant’s masculinity, at one point telling him that she found him sexually attractive and thought that his involvement with the police was exciting. The final conversation lasted from 7:45 p.m. to 8:20 p.m. on July 12. It ended with Penman urging the defendant to talk to the police and the defendant agreeing to meet her at the police station to accomplish this purpose.

Britz had contacted the police twice earlier on July 12 to discuss the murder of Timothy Meisner. He was advised of his constitutional rights only before the third interview that day. The first appearance was an unexpected stop at the detective bureau, where defendant spoke with Detectives Lange-Kemph and Moss from 9:10 a.m. to 11 a.m. Following this conversation, the defendant went with the detectives to his father’s junkyárd. He gave the police a tour of the junkyard and led them to an area where he indicated he had had target practice with a .22-caliber weapon. The officers gathered certain items they thought might be connected with the murder. The second contact on July 12 came around noon, when the defendant telephoned the officers from the junkyard and told them he knew of someone who might have information that would be useful to them in their investigation. The third meeting came after the final phone call to Cheryl Penman. Penman, Detectives Lange-Kemph and Tolley and Police Chief DeMarco met defendant at the detective bureau between 10:30 and 11:30 p.m. Lange-Kemph advised Britz of his Miranda rights, which he said he understood and wished to waive.

At this point defendant told detectives that he had seen a man who resembled the composite of the murderer at the home of a friend. Lange-Kemph asked defendant if he knew the man’s name, to which defendant responded that he did not. Lange-Kemph replied, “That’s a lot of bull.” She indicated that she knew defendant had paid a friend of his $50 to tell police that someone other than the defendant was involved in the homicide. When faced with this revelation, defendant admitted that it was true.

Britz then told the detectives that on the night of the murder he had been at the home of his cousin. Lange-Kemph again questioned the veracity of the alibi, and the defendant admitted that it was untrue. At this point the defendant became defensive, stating, “You’ll have to prove it.” He asked to be left alone with Penman, and the detectives left the two in the interrogation room. Britz then ingested a pill which he claimed was “star acid.” When the detectives returned to the room, defendant told them there were only two people who knew what had happened when Meisner was murdered. He said that he was one of the people and that “him” — gesturing toward the ceiling — was the other. He asked if he was free to go and the detectives explained that since he had come to the station voluntarily, he was free to leave voluntarily. He then left.

On July 13, defendant was arrested on a charge of theft based on a complaint filed by his father. At approximately 12:20 p.m. on July 14, the defendant (who was now incarcerated in the county jail) asked to speak to Detective Lange-Kamph and Chief DeMarco. The interview took place in DeMarco’s office. Britz was orally advised of his rights by Lange-Kemph, who then presented him with a written statement of those rights. She read the statement to him, and the defendant read it to himself. Britz indicated that he understood his rights and executed a written waiver. Defendant then gave an inculpatory statement in which he said that he felt he had committed the murder. He recalled being at the Clark station in the early morning hours of June 9, hearing one shot, and carrying some kind of weapon. He also recalled running south down an alley toward 3rd Street, then under a viaduct, and finally in a northwesterly direction towards the Sangamon River. He talked to police for approximately one hour and then was returned to jail.

On July 14, the defendant, still in jail on the theft charge, asked to talk further with detectives. The request came at 8 a.m., and the defendant then talked with Detectives Tolley and Lange-Kemph and Chief DeMarco. Lange-Kemph orally admonished defendant of his Miranda rights and furnished him a written document enumerating those rights. Britz read the document, said he understood its contents, and signed a written waiver. During the interview that followed, defendant told the officers several details about his commission of the crime and what he did afterwards. He said that on June 9 he was angry and under the influence of PCP, an animal tranquilizer. He said that he approached the gasoline station from the rear and walked towards the men’s restroom on the west side. He saw a van parked near an air pump and a man putting air into one of the tires. He stated that he walked up behind the man and shot him once with a .22-caliber revolver from a distance of four to six feet. He removed the victim’s billfold, taking money out of it, and then dropped the wallet near the body. After this, defendant jumped over a fence which bordered part of the service station. He then reiterated his previous statement concerning the route he took following the crime, including his eventually ending up at the Sangamon River, where he said he threw the pistol he had used into the water.

Chief DeMarco asked the defendant if there was any doubt in his mind that he shot Meisner, to which defendant replied, “[N]o, I did it.” From this point on, defendant was considered to be in custody on a murder charge.

Shortly after the defendant finished giving his statement to the police at the station, Chief DeMarco suggested that he return to the scene of the crime "with the detectives and reenact the crime. At the crime scene, Lange-Kemph again admonished defendant of his constitutional rights, which Britz said he understood and wished to waive. He then reenacted the crime. During this reenactment, he provided more details to the statement he had given previously. He indicated that Meisner was kneeling next to his truck when shot and then fell face down with his arms outstretched. The reenactment lasted from approximately 10 a.m. to 11:30 a.m., at which point defendant was returned to jail. Based on the facts known to the police at this time, the defendant was charged with murder, but those charges were dropped approximately one month later.

There was no further contact between the defendant and police for three years. At this point, the police obtained a search warrant based on a statement given by the defendant’s brother which inculpated the defendant in the Meisner murder. On June 9, 1982, police officers, pursuant to the search warrant, went to the defendant’s father’s junkyard and removed two spent .22 projectiles from an inside wall of a trailer. On September 9, 1982, defendant told police that he had shot a bullet from a pistol into the wall of the trailer. At about 2 p.m. on September 9, 1982, defendant telephoned police at headquarters and asked to meet with Detective Daily. Daily spoke briefly with Britz and his wife at the detective bureau and then went with the defendant and his wife to the junkyard owned by defendant’s father. Britz agreed to meet with the detective later in the evening, at which time he gave a statement, following Miranda warnings, in which he again stated his alibi that at the time of the homicide he was at a garage owned by his cousin, talking on the phone with Cheryl Penman. Defendant stated that his brother, who had given the police the information upon which the search warrant had been based, was in and out all night long and came back to the garage at approximately 5:30 or 6 in the morning and said something about a kid that had been killed. Britz told police that he may have been a witness to the homicide and that he was willing to testify against his brother. Based on the further information and the two spent .22 projectiles, the defendant was charged by complaint with Meisner’s murder and incarcerated on September 23, 1982.

On October 6, while still incarcerated on the murder charge, defendant telephoned Detective Pennell at home and asked Detectives Pennell and Daily to come talk with him at the jail. The detectives arrived at 6:55 p.m. and spoke with defendant in a room at the jail. Pennell told Britz about his rights and provided him with a written waiver which defendant signed.

Using the reverse side of the rights waiver as an easel, defendant drew a picture of the crime scene and asked Pennell to play the part of Timothy Meisner in order for him to illustrate how he committed the murder. Pennell kneeled on the floor and pretended to fill the tire of a van with air. Britz walked behind Pennell and using his finger, which he stated was a .22-caliber weapon, pretended to shoot Pennell in the upper portion of his right shoulder. Britz further stated that he took currency from Meisner’s wallet and looked at the identification card in it before dropping it next to the body. He indicated that he ran south into the alleyway next to the station and then to his father’s business at 3rd and Carpenter about seven or eight blocks away. Pennell left the room momentarily, at which point Britz told Detective Daily, “Al, I didn’t mean to kill him. I didn’t mean to kill him.” The interview concluded at approximately 10:20 p.m.

Britz’s trial "began in April of 1983. Voir dire was conducted on April 25, 1983. The first issue raised by defendant concerns the manner in which voir dire was conducted by the trial court and is the issue which we deem dispositive in this appeal. We now turn to it.

II. Voir Dire

Prior to the actual process of selecting the jury, defense counsel proposed a list of 50 questions which he sought to have the court ask during voir dire. The questions which were proposed may be categorized into four general topics. These are: whether the prospective jurors had a relationship with anyone in law enforcement; whether the prospective jurors were acquainted with any members of the victim’s family; whether any of the prospective jurors were acquainted with each other; and whether the prospective jurors were willing to accept the trial court’s instructions regarding the State’s burden of proof and were willing to presume the defendant innocent until proven guilty. Three of the questions are quoted in their entirety:

“48. Do you understand that John throughout this trial, throughout the presentation of the evidence, throughout the jury selection, into the jury room and through deliberations, is presumed to be innocent of these charges?

49. Do you understand that neither John nor his attorney have to prove anything? The law does not require the defendant or his attorney to produce any evidence whatsoever.

50. If you believe at the conclusion of all the evidence in this case, and after I have instructed you as to the law which you must apply, that if the prosecution has not proved each and every element of the offense or offenses beyond a reasonable doubt, can you and will you return to this courtroom with a verdict of not guilty?”

In this appeal, the defendant argues that the court’s refusal to propose these questions — or questions similar in nature — was reversible error.

We agree.

The voir dire examination of jurors is controlled by Supreme Court Rule 234 (87 Ill. 2d R. 234). The rule vests broad discretion in the trial court and specifically contemplates the consideration of inquiries submitted by the parties. The rule forbids the submission to the venire of questions directly or indirectly concerning matters of law or instructions.

In our opinion, the manner in which defense counsel’s efforts at participating in voir dire was handled by the court requires us to reverse defendant’s conviction.

Although the record is replete with occasions on which the defense attorney was forfended from participation in voir dire, only one example need be included to establish the tone adopted by the trial court.

“MR. LOCHER: Judge, would you please inquire of [the prospective juror] as to whether or not she has any relatives in law enforcement?

THE COURT: No-no.

[PROSPECTIVE JUROR]: Friends.

MR. LOCHER: May I approach the bench, please?

May we approach the bench? Jerry.

THE COURT: Wait a second.”

A recess was then declared during which the following colloquy occurred:

“MR. LOCHER: May it please the Court; counsel.

Judge, I respectfully renew my motion to voir dire the jury as the attorney for John Britz.

It’s apparent from the voir dire examination that’s taken place up to this point that very little is going to be elicited in the way of information about these prospective jurors that will enable me to determine whether or not they’re biased or any prejudice they might have.

* * *

I have submitted based on the initial ruling of this court prospective questions which I respectfully submit to the court will assist me in determining whether or not these jurors are going to be fair toward my client and give us a fair trial. I would ask that those questions — all of those questions be asked.

* * *

And I submit that it denies us a right to a fair trial, and I object to this procedure, and I’d ask for permission to conduct the voir dire on the part of the defendant.

THE COURT: Motion denied; same ruling. I disagree with you entirely, Mr. Locher.

The Court is not an arbitrator. The court is the Judge.

MR. LOCHER: Uh-huh.

THE COURT: And I am attempting and I think doing the job.

Motion denied.”

While we are convinced that the manner in which the trial court conducted voir dire would by itself require us to grant defendant a new trial, we note that relevant authority pertaining to the three proposed questions previously alluded to would lead us to the same conclusion. In People v. Zehr (1982), 110 Ill. App. 3d 458, 442 N.E.2d 581, the appellate court held that three virtually identical questions should have been asked by the trial court when submitted by defense counsel. The failure to do so was held to be reversible error. There the State had argued, as it does here, that the questions were properly refused as going to matters of law or instructions. The appellate court found otherwise, characterizing the inquiries as going to the heart of a particular bias or prejudice which would likely operate to deprive a defendant of his right to a trial by an impartial jury. We hold likewise, noting that our supreme court has placed its imprimar tur on the holding of the appellate court in People v. Zehr (1984), 103 Ill. 2d 472.

Consequently, we hold that the manner in which the trial court conducted itself during voir dire was arbitrary and demonstrated a clear-cut abuse of judicial discretion. Additionally, at least three of the questions submitted by the defense "attorney — (1) concerning the presumption of defendant’s innocence; (2) about the absence of any burden of proof on the defendant; and (3) about the State’s burden of proof — should have been asked under the dictates of Zehr. Since the questions were not posed and the subject matter not otherwise probed, we are compelled to reverse the defendant’s conviction and remand this cause for a new trial, to be had in a manner consistent with the directives set down in this opinion.

III. Admissibility Of Statements

The defendant in this appeal raised numerous issues concerning statements which he gave to the police and which were introduced at his trial. We turn now to the questions of their admissibility. The first argument raised by the defendant is that .the inculpatory statements which were given to the police by him in 1979 were not voluntarily made, since at the time he was under the influence of Cheryl Penman. In his opinion, the influence of Penman was so pervasive that the statements were improperly found to be voluntary by the trial court, and thus the trial court’s ruling that the statements were admissible at trial was in error.

It is well established that a statement must be voluntarily made in order to be admissible at trial. (People v. Rhoads (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512.) In making a determination concerning the voluntary nature of a statement, a court of review must examine all of the relevant circumstances surrounding the making of that statement. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The test to be applied is whether the statement has been made freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant’s will was overcome at the time he confessed. (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466; People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870.) The primary factors to be examined in determining the voluntariness of a statement go to the nature of the interrogation which leads to the statement. Factors to be examined include the duration of the defendant’s detention prior to making the statement, the disregard of rudimentary necessities of life, deprivation of counsel, deception restricting the accused’s constitutional rights, as well as the accused’s age, education, emotional characteristics, and experience in criminal matters. The inquiry is, however, tinctured with the general rule that the finding of a trial court that a statement was voluntary may not be disturbed unless it is contrary to the manifest weight of the evidence.

Turning to the cases previously cited, we note that in Hester a murder confession given by a 14-year-old of subnormal mentality, who had been held for 12V2 hours during which there had been intermittent interrogation but not Miranda warnings, and during which he had been consistently admonished to get it off his chest, was held admissible. Similarly, in Wipfler, a chief of police, whom defendant admittedly trusted as a friend and father figure, admonished the defendant that “ ‘if someone did something wrong he should be a man and admit it.’ ” (68 Ill. 2d 158, 164, 368 N.E.2d 870, 871.) Following this admonition, the defendant was interrogated and eventually confessed.

On appeal, Wipfler claimed that the police chief’s counseling to tell the truth, when viewed as part of the total interrogation process, was coercive to the point of having compelled him to confess, especially in light of the chief’s special position of trust in relation to the defendant. The supreme court held to the contrary, noting that the existence of the close relationship between the police chief and the defendant, coupled with the admonition to tell the truth, was but another factor to be considered in the totality of the circumstances surrounding the confession and did not render the subsequent confession per se involuntary. However, in Wipfler the court also went on to note that the police chief participated in the interrogation process only to a very minimal degree. He had merely told the defendant to tell the truth if he had done something wrong but did not discuss the particular crimes with which the defendant had been charged. Further, he did not act as an interrogator, nor was he engaged in a scheme with the police in an effort to soften the defendant for interrogation. However, in this case it is clear that the youth counselor, Penman, participated in the interrogation of the defendant up to and including the day of July 12, when defendant made his first statement to police. In this instance her participation was of a nature contemplated but not present in Wipfler, and as such it is our opinion that the statement given on July 12 should have been suppressed.

Following his argument concerning the statement of July 12, the defendant then simply asserts that all the statements given in 1979 should have been suppressed as a result of Cheryl Penman’s involvement with him. We disagree. We find little or nothing in the record to indicate that the statements made throughout the year of 1979 were in any way the product of the first statement on July 12.

In People v. Green (1972), 9 Ill. App. 3d 280, 292 N.E.2d 65, the defendant made four statements, the first exculpatory, the last three inculpatory. A motion to suppress was filed, and the court excluded the first statement while admitting the last three. The appellate court held that the illegally obtained statement did not taint the other three, because the defendant was not under consistent pressure and was removed in both time and place from the original surroundings where he gave the exculpatory statement. Moreover, the court was willing to look at the first statement and find that it was not a confession. The court felt this was important because, since there was no confession on record, the defendant did not or could not feel compelled to repeat the confession in an effort to boost his credibility. Similarly, in this case, it is clear that Penman’s attempts at eliciting information from the defendant ended at the same time as the authorization for the eavesdropping device, July 13. The day before, Britz had given an exculpatory statement which was not believed by the police. On July 14 and 15 defendant did confess to the crime. However, during this period there is no record evidence that Britz was in any way influenced by Penman. Britz was in custody during this time on another charge but was not being pressured to discuss the Meisner murder. Further, in each instance he volunteered to discuss the case with police while he was incarcerated. Since the eventual confessions given on July 14 and 15 were sufficiently attenuated by lapse of time, repeated admonitions and other factors, the statements made on July 14 and 15 were properly admitted.

IV. Post-Indictment Statements

Defendant was ultimately charged by complaint on September 23, 1982, with the murder of Timothy Meisner. On October 2, 1982, the defendant, while incarcerated, asked to speak to detectives concerning the Meisner case. Britz was read his constitutional rights and advised that he had an attorney, had the right to have his attorney present, and that no conversations should be had without his attorney present. At this point the defendant waived his right to an attorney, saying he wanted to talk about the Meisner homicide. He then asked if his attorney could be there and whether he might be released if he gave a statement. Detective Pennell told the defendant that he would not let the defendant go if he made a statement and that it was unlikely that his attorney would come to the jail under the circumstances. At this point the defendant then agreed to talk about the homicide but went on to implicate his brother in the actual murder, indicating that he himself might have been there only as an eyewitness. Later in the same session, Britz said that he might have killed Meisner but that he was so intoxicated on narcotics that he did not clearly remember the events of the evening. Still later, he asked that he be given truth serum in an effort to find out whether he was involved in the crime. Pennell refused the request for administration of truth serum and admonished Britz that if he wanted to talk to anyone else in the future, he should do it through his attorney.

On October 6, 1982, defendant again asked to speak to Detective Pennell at the Sangamon County jail. Pennell, along with Detective Daily, read the defendant his Miranda warnings. There followed a three-hour interrogation during which defendant made several incriminating statements, including reenacting the crime using Pennell as the victim, and indicating that he did not intend to kill the deceased.

In this appeal, defendant argues that the facts are insufficient to support the finding of a knowing and voluntary relinquishment of his sixth amendment right to counsel prior to an interrogation had subsequent to the filing of charges. Britz argues that this calls for the suppression of the statement given October 6, 1982. The State responds that since the defendant voluntarily reinitiated his contact with the police on October 6, he relinquished his prior request to have counsel present and thereby waived the presence of counsel at the October 6 meeting.

In Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, the Supreme Court held that the police may not reinitiate custodial interrogation once a defendant has cut off questions by invoking either his right to remain silent or to have his attorney present. The court noted that such a request is of a continuing nature “unless the accused himself initiates further communication, exchanges, or conversations with the police.” (451 U.S. 477, 485, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885.) In this case it is clear that defendant reinitiated the conversation with police on October 6, 1982, and at no time made an affirmative request for counsel. Under these circumstances, we find a knowing and voluntary waiver of counsel on this date, and therefore hold that the ruling that the statements were admissible was not error.

V. Evidentiary Rulings

Prior to trial, the State moved in limine to bar the defense from introducing the contents of 12 tape recordings taken from the office phone of Cheryl Penman between July 3, 1982, and July 12, 1982. The State’s position was that the contents of the conversations in which defendant continually denied his guilt of the crime constituted self-serving declarations not qualifying under any of the hearsay exceptions. The court ruled that the defense could show that defendant’s conversations with Penman were recorded but it could not present the contents of those conversations because they were hearsay. In this appeal, the defendant urges that the 12 tape-recorded conversations should have been admitted as nonhearsay, since they were offered to prove the effect that Cheryl Penman had on the defendant’s state of mind and his eventual decision to make incriminating statements to the police. We agree.

Much of the confusion at trial and many of the arguments in the parties’ briefs before this court center on the application of the state-of-mind exception to the hearsay rule. The confusion is quite understandable, since the statements were not hearsay and therefore the state-of-mind exception had no bearing on their admissibility.

Our supreme court had the occasion to address the concept of hearsay evidence in People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738. The court noted that testimony must meet two criteria before it may be deemed hearsay and therefore generally inadmissible. “ ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” (28 Ill. 2d 116, 121, 190 N.E.2d 738, 741, citing McCormick, Law of Evidence sec. 225; see also Cleary, Handbook of Illinois Evidence sec. 31.1 et seq.) Obviously, if the particular evidence fails to meet either of the criteria, it is not hearsay and is admissible.

In the case sub judice, it is apparent that the 12 tape recordings were not being offered for the truth of the matters asserted. Whether Britz was being truthful in his protestations of innocence had no bearing on the purpose for which the tapes were offered — the alleged involuntary nature of his eventual confession to the police. This was a proper purpose, since the question of voluntariness may be presented to the jury as a matter going to the weight to be attached to the words. (Townsend v. Sain (1963), 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745.) Since the defendant was entitled to present to the jury the question of the voluntary nature of his statements to the police, we hold that he should have been allowed to play the tapes made between July 3, 1982, and July 12, 1982, which reflected upon his state of mind at the time that later statements were given.

The penultimate issue raised by defendant in this appeal was that the trial court erred in refusing to grant defendant’s motion in limine, which would have prevented the introduction of two spent .22-caliber bullets which had been removed from the interior wall of a trailer owned by defendant’s father. In denying the motion, the trial judge noted that the slugs had “no probative value” but that he would not preclude their introduction, since in his opinion the defendant would be able to point out their lack of probative value in closing argument.

Krail Lattig, a firearm and tool mark examiner of the Illinois Bureau of Scientific Services, testified about the slugs. He said that he could determine if two different bullets had been fired from the same weapon, even if the weapon was not available for his examination, by comparing the bullet’s class characteristics (comprised of caliber and rifling), and the bullet’s individual characteristics. Lattig testified that he compared the two bullets removed from the trailer with the bullet removed from Meisner’s body. He found that all three bullets had six lands and grooves, with a one-to-one ratio, and a right-hand twist. The bullets from the trailer were both .22-long rifle, but the bullet from Meisner was in such a bad state that the examiner could not determine whether it was a .22-long or .22-short. Based on his examination, Lattig testified that all three bullets could have been fired from the same weapon. He was, however, unable to make conclusive findings with respect to all three bullets because those extracted from the trailer were largely devoid of individual characteristics due to the fact that they were composed of soft lead and had been extensively damaged by impact. Lattig could also find no individual characteristics on the two bullets from the trailer that would preclude the possibility that they were discharged from the same weapon as the bullet found in Meisner’s body.

Defendant’s position here is that since relevant evidence is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable, and that the slugs, by admission of the trial court, do not do so, their introduction was error. We disagree.

In our opinion, the relevancy of the bullets to the crime at hand is at least as great as the admittedly minimal relevancy of blood samples which were introduced in People v. Gillespie (1974), 24 Ill. App. 3d 567, 321 N.E.2d 398. In Gillespie, evidence was introduced at trial that dried blood found at the scene of a burglary was determined to be human, Type A, with a positive Rh factor. Blood samples taken from the defendant tested to be Type A, Rh positive, with a positive rheumatoid arthritis factor. There was also testimony as to the population frequencies of the blood type. In Gillespie, the defendant argued that the probative value of the blood sample was so minimal that the evidence should not have been introduced due to the fact that a huge numerical group of people shared the common characteristics. On appeal the court recognized that such evidence did not have great probative value, but nonetheless approved its admission since the blood in question exhibited particular characteristics differentiating it from blood generally.

Here, the bullets shared common characteristics in that all three showed six lands and grooves, a one-to-one ratio, and a right-hand twist. Both had been fired from a .22-caliber weapon, although the expert could not determine whether it was a .22-long or short. Further, testimony was adduced that the defendant had fired a .22-caliber pistol into the wall of the home from which the slugs were removed. Under these circumstances, we find that the apparently offhand comment by the trial court that the evidence had no probative value is simply not supported by the record. Hence, their admission was not error.

VI. Prosecutorial Comment

Finally, we briefly address defendant’s last argument that the State’s Attorney created prejudicial error by arguing that defendant’s attorney had sought to create a smoke screen by putting the victim or the police on trial since the law and the facts were against him, and that the defendant's theory that he had confessed under duress while intoxicated was a red herring. We find that the comments were not error and were within the bounds of proper argument.

■ Generally, prosecutorial comment — couched in terms of specific trials and not intended to distract a jury’s attention from the facts before them — will not be found to be error. The record here offers some rebuttal to the defendant’s theory that he had confessed under duress while intoxicated, since several witnesses testified that the defendant was coherent at the times he gave the statements. Further, a closing argument, including the comment that the defense was attempting to create a “smoke screen” or pull off a “snow job,” was specifically approved by our supreme court in People v. Emerson (1983), 97 Ill. 2d 487, 499, 455 N.E.2d 41, 46.

Under these circumstances, there was no error in the State’s closing argument.

Reversed and remanded for a new trial.

TRAPP and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY JUSTICE WEBBER,

license: Public Domain

text:
    YELLOW FREIGHT SYSTEMS, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Howard Ohnesorge, Jr., Appellant).
    Fifth District (Industrial Commission Division)
    No. 5—84—0103WC
    Opinion filed October 3, 1984.
    WEBBER, J., specially concurring.
    Scheele, Serkland & Boyle, Ltd., of Chicago (Stephen M. Cornelius, of counsel), for appellant.
    Stephen L. Corn and Rochelle A. Funderburg, both of Craig & Craig, of Mattoon, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The claimant, Howard Ohnesorge, Jr., appeals from an order of the circuit court reducing the computation of his average weekly-wage under section 10 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.10) (hereafter the Act). The respondent, Yellow Freight Systems (hereafter YFS), cross-appeals from that part of the circuit court’s order granting benefits for permanent partial disability.

The facts in the instant case are not disputed. The claimant, Howard Ohnesorge, Jr., began working for YFS in September of 1977 and was injured on December 17, 1978. The claimant was one of 40 extra workers who worked on the docks when needed by YFS. His salary was $9.38 per hour, comparable to permanent full-time workers. The claimant generally worked every weekend and two or three days during the week. However, there were weeks when he worked a full five days and weeks when he did not work at all. The claimant was on call to work every day of the year except for the holidays. His actual earnings at YFS during the year preceding his accident were $5,344.04.

During this time, the claimant was also self-employed as a farmer. His estimated income from farming was $20,000 per year.

On December 17, 1978, the claimant was working for YFS unloading a dumpster when he fell approximately 10 feet, injuring his head. The claimant subsequently lost his sense of smell and suffered an impaired sense of taste.

On the basis of the above-cited facts, the arbitrator found that the claimant’s average weekly wage was $348.25 based on an annual wage of $18,109. The arbitrator awarded the claimant $232.17 for 3®/? weeks for temporary total disability. The arbitrator found no permanent disability.

The Commission awarded total temporary disability of 3% weeks at the rate set by the arbitrator. In affirming the arbitrator, the Commission found that the claimant was a “regular part-time dock worker” under Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 287 N.E.2d 701. The Commission additionally found that the claimant had suffered a 10% permanent disability.

The circuit court found that the claimant was not a regular part-time worker under Vaught and, therefore, reduced the claimant’s average weekly wage to $102.77 per week based on the annual wage of $5,344.04 actually earned by the claimant in the preceding year. The court confirmed the award of benefits for 10% permanent disability. It is from this order that the parties now appeal.

The claimant asserts on appeal that, because he was a regular part-time employee under Vaught, the Commission correctly computed his annual wages based upon the annual earnings of the full-time dock workers at YFS. Thus, he contends, the circuit court erred in reducing his average weekly rate to the average wage that he actually earned. YFS argues that because the claimant worked only intermittently on an “on call” basis, his benefits should be computed based on his actual annual earnings.

Under section 8 of the Act, compensation for temporary and permanent incapacity is based upon a percentage of a claimant’s “average weekly wage computed in accordance with Section 10.” (Ill. Rev. Stat. 1977, ch. 48, par. 138.8.) Section 10 establishes the methods for computing a claimant’s annual salary, which, when divided by 52 weeks, results in an average weekly wage. Thus, a claimant’s average weekly wage is computed by reference to the provisions of section 10.

The Illinois Supreme Court in Vaught, however, determined that the Act did not expressly provide a basis for computing the annual wage of a “regular part-time” worker. The court found instead that the annual wage of a regular part-time worker should be computed on the basis of the annual salary of the full-time employees in the same grade as a claimant.

The issue before this court, then, is whether the annual wage of the claimant in the instant case should be computed based upon the principles of Vaught or upon the provisions of section 10(a).

We find that the circuit court erred in setting aside the Commission’s award of benefits under Vaught. The supreme court based its definition in Vaught of a “regular part-time worker” on the following factors: (1) the work was regular on weekends; (2) the work was not intermittent; (3) the work existed through the year; (4) the pay rates were the same for full- and part-time workers; (5) the full- and part-time employees were not distinguishable other than the number of hours worked; and (6) the full- and part-time workers were subject to the same risks. The claimant in Vaught was a welder who “moonlighted” by working every weekend for 13 years as a cabdriver.

In the instant case, it is clear that the claimant’s work existed throughout the year. Further, the full- and part-time employees were not distinguishable other than the number of hours worked. Both full- and part-time employees made approximately $9.38 per hour. Finally, because part-time workers performed the same job as full-time dock workers, both groups were subject to the same risks. The question then is whether the claimant’s work was so irregular and intermittent that he was not a regular part-time employee. The claimant apparently worked approximately 570 hours for YFS in the year prior to the accident. He was a part of a recognized part-time work force. He had been employed as a part-time worker for 18 months. It would appear that the claimant’s employment at YFS closely resembled the “moonlighting” dealt with in Vaught.

The respondent YFS argues that the claimant’s annual wage should be computed under section 10(a), which provided:

“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.” Ill. Rev. Stat. 1977, ch. 48, par. 138.10(a).

In support of its argument, YFS relies on Hasler v. Industrial Com. (1983), 97 Ill. 2d 46, 454 N.E.2d 307. The claimant Hasler worked approximately 37 days during the course of a seven-month period as a wallpaper hanger and painter. She had worked part time for the same employer for five years. In determining Hasler’s annual wage, the court found that she worked continuously during the year preceding her injury. The court, therefore, based her average weekly wage on her actual annual salary, as provided in section 10(a).

However, YFS also argues, contrary to its reliance on Hasler, that the instant claimant worked only intermittently. In support of this argument, YFS relies on K. & R. Delivery v. Industrial Com. (1957), 11 Ill. 2d 441, 143 N.E.2d 56. In K. & R. Delivery, the court found that the claimant’s employment assisting in deliveries was only intermittent. Therefore, the court awarded the claimant benefits under section 10(e). However, under section 10(e), the claimant’s actual earnings are not used as the basis for computing the annual salary Therefore, YFS’ reliance upon K. & R. Delivery and related cases is inapposite.

In the instant case, it clearly cannot be said that the claimant’s employment with YFS was continuous under section 10(a). We conclude that the claimant was a regular part-time worker under the principles set forth in Vaught. We therefore find that the Commission computed the petitioner’s rate properly and find that the circuit court erred in reducing the claimant’s computed annual wage and resulting average weekly wage.

YFS, in its cross-appeal, asserts that the circuit court erred in affirming the Commission’s finding of permanent partial disability based upon the claimant’s impaired senses of smell and taste. Specifically, YFS asserts that the award of permanent disability benefits should be reversed because there was no evidence that the claimant was incapacitated in pursuing his usual employment or that the claimant’s opportunities for future employment were reduced.

Section 8(d)(1) of the Act allows for compensation to be awarded only when the permanent incapacity resulting from a claimant’s injury prevents the claimant from pursuing his usual and customary line of employment. However, section 8(d)(2) provides for the payment of benefits for any serious and permanent injury not covered in sections 8(c) or 8(e) of the Act. The impairment of the senses of taste and smell are unquestionably serious and permanent injuries. The sense of smell is particularly valuable because it enables the individual to sense fire and other dangers present in the workplace and in daily activities. Further, neither loss is provided for in sections 8(c) or (e).

Thus, the complainant’s sensory impairment was compensable under section 8(d)(2). The complainant presented evidence sufficient to establish the existence of the impairment. The Commission’s order was, therefore, not against the manifest weight of the evidence and was properly confirmed by the circuit court.

Accordingly, the judgment of the circuit court of Effingham County is reversed, and the order of the Industrial Commission is confirmed.

Circuit court reversed; Industrial Commission confirmed.

SEIDENFELD, P.J., McNAMARA and KASSERMAN, JJ., concur.

JUSTICE WEBBER,

specially concurring:

I concur in the result reached in the principal opinion on the basis that Ohnesorge was a regular part-time employee under the rationale of Vaught and not an intermittent employee as described in Hasler. All this is more fully explicated in our opinion in Cardiff v. Industrial Com. (1984), 127 Ill. App. 3d 52.


author: JUSTICE WEBBER JUSTICE BARRY,

text:
    PHYLLIS L. CARDIFF, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Prestige Metal Products, Inc., Appellee).
    Second District
    No. 2—84—0119 WC
    Opinion filed September 24, 1984.
    BARRY, J., dissenting.
    Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Ian M. Sherman, of Rooks, Pitts, Fullagar & Poust, of Chicago, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, Phyllis Cardiff, sought workers’ compensation for an injury she sustained while in the employ of respondent, Prestige Metal Products, Inc. An arbitrator awarded her compensation for 174/v weeks of temporary total disability and for 281k weeks of permanent partial disability. The arbitrator awarded Cardiff weekly payments of $20.68, computed pursuant to section 10(a) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)). The Industrial Commission upheld the decision of the arbitrator, and the circuit court of Lake County confirmed the decision of the Commission. Cardiff appeals from the portion of the arbitrator’s decision which determined her weekly compensation payments to be $20.68. We affirm.

The sole issue for review is whether petitioner’s compensation was correctly computed in accordance with section 10(a) of the Act.

On March 16, 1978, Cardiff was hired by Prestige Metal Products, Inc. (Prestige), for part-time employment on an “on-call” basis. Prestige had two distinct grades of employees. Full-time employees worked at least 40 hours per week and were paid wages ranging from $4 to $11 per hour. Part-time employees were hired with the understanding that they would have no guaranteed working hours. Rather, they would be called to work when and if work became available. There could be lengthy periods of time during which these employees would not work at all. The employees in this grade would not know from week to week whether or when they would actually be called to work. Part-time employees all received wages of $3 per hour. Cardiff worked solely as such a part-time employee.

On March 21, 1979, Cardiff was injured while working at Prestige when two of her fingers were crushed in a machine. In determining her compensation award, the arbitrator relied on sections 10(a) and 10(b) of the Act, which provide:

“(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.

(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.” (Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (b).)

The arbitrator determined Cardiff’s earnings during the year next preceding her injury to be $1,075.20 and that her average weekly wage was $20.68.

Cardiff contends that section 10(a) should not be applied in her case because she did not work for Prestige for a full year preceding her injury on March 21, 1979. She claims that even though she was hired on March 16, 1978, she was not called to work until April 24, 1978. On this basis she argues that she was not employed by Prestige until April 24, 1978, less than a year before her injury. However, this argument ignores the fact that Cardiff was hired as an “on-call” employee. She was eligible to be called to work from the moment she was hired. The fact that she was not called immediately did not diminish her “on-call” employee status as of March 16, 1978. It is clear, then, that Cardiff was employed by Prestige for the year preceding her injury.

Cardiff next contends that even if she had worked for the full year preceding her injury, section 10(a) is still inapplicable because she was a part-time employee. She relies on Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 287 N.E.2d 701, for the proposition that, as a part-time employee, she was not “continuously” employed during the year preceding her injury as required under section 10(a).

In Vaught, the court dealt with a petitioner who had been employed as a weekend taxi driver for many years and who had other, unrelated full-time employment during the week. He was injured while working as a taxi driver. The court felt that section 10(a) was inapplicable to this situation because the petitioner was not “continuously” employed for the full year preceding his accident. Under such circumstances the court concluded that “the legislature failed to expressly provide a basis for computing the annual earnings of an employee who works regularly, but only on a part-time basis.” The court went on to compute the petitioner’s annual earnings by basing them upon what a full-time taxi driver’s wages would be.

The petitioner here, Cardiff, argues that her wages too must be based on the wages of the full-time Prestige employees. However, this argument ignores the recent decision of our supreme court in Hasler v. Industrial Com. (1983), 97 Ill. 2d 46, 454 N.E.2d 307. There the court computed a part-time employee’s compensation on the basis of section 10(a). In Hasler, as here, the court dealt with an employee who worked different hours, days, and weeks during the year, depending upon the availability of work. She did not work every week of the year, and she worked in this capacity for a single employer in the year preceding her accident. Based upon these facts, the court found that she was “continuously” employed and that section 10(a) was applicable in determining her compensation.

We believe the supreme court’s holding in Hasler is controlling here. The facts involved in the present case are virtually indistinguishable from those in Hasler. Also, the court in Hasler distinguished Vaught and other cases relied on by petitioner here. Those cases dealt with claimants who had two employers in the year preceding their injury. Further, here, as in Hasler, the annual wages of the claimant were determinable and were actually determined by employer records.

More importantly, the application of the Vaught holding to the present case would create an anomalous result. The arbitrator found that Cardiff earned approximately $1,075 during the year preceding her injury, and under section 10(a) she would be compensated on this basis at $20.68 per week (her average weekly salary for the previous year). Under the computation method that Cardiff contends is applicable, she would receive $200 per week or nearly 10 times her average weekly wage. As the supreme court stated in Hasler,

“We believe that the purpose of the Act is to compensate, or “make whole,” an injured employee, not to provide a windfall. To hold otherwise would create a situation in which it is more advantageous, financially, to be injured than to be employed.” 97 Ill. 2d 46, 52, 454 N.E.2d 307, 310.

We are aware of our opinion in Yellow Freight Systems v. Industrial Com. (1984) 128 Ill. App. 3d 47, but we are of the opinion that it is not in conflict with our holding in the instant case.

Our case here and Yellow Freight Systems demonstrate once again the difference between cases falling under the rule of Hasler and those under the rule of Vaught. In Hasler the supreme court held specifically that the claimant was not an intermittent employee.

“In the instant case, claimant was not engaged in two occupations; she worked for the same employer for five years preceding the injury. Her annual wages were clearly determined. Further, we agree with the Commission that the record does not indicate claimant’s employment was temporary or seasonal. She performed both interior and exterior work on buildings, and was employed certain months during all seasons. Claimant was therefore ‘continuously’ employed only by respondent, and the fact that she did not work for him every day does not render that employment intermittent.” (Hasler v. Industrial Com. (1983), 97 Ill. 2d 46, 50, 454 N.E.2d 307, 309.)

The court then applied section 10(a) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)) in calculating benefits.

In Vaught, the supreme court pointed out that the claimant was moonlighting, i.e., working two jobs, and therefore apparently was not expressly covered by the Act. The court was compelled to fashion a remedy.

In our case the claimant was working for a single employer, as in Hasler, and was therefore working continuously under section 10(a) even though she did not work every day. Yellow Freight Systems, like Vaught, represents the moonlighting situation.

We reiterate that we believe this case is controlled by Hasler and that Yellow Freight Systems is controlled by Vaught and all are reconcilable on that basis.

We note in passing that with the 1980 amendments to section 10 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.10) cases such as this one and Yellow Freight Systems are unlikely to recur.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., McNAMARA and KASSERMAN, JJ., concur.

JUSTICE BARRY,

dissenting:

I agree with my colleagues that Cardiff was employed by Prestige Metal Products, Inc. (Prestige), for more than a year preceding her injury, and that she was hired and worked as a part-time worker on an “on call” basis. However I disagree with the conclusion that for the purpose of rate computation the subsection to be applied is what was then subsection (a) of section 10 of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)) (the Act).

Cardiff was injured more than a year after being hired and was engaged to fill in at $3 per hour for any grade of Prestige employees in job grades that ranged from $4 an hour to $11 an hour. It is unquestioned that she was not engaged or classed as a full-time employee. The evidence of the crushing by a machine of two of her fingers caused the arbitrator to award her 60% loss of use of the left middle finger and 30% loss of use of the ring finger, amounting to some $589, as well as some temporary total compensation, based upon actual earnings for the year prior, applying section 10(a) of the Act. The arbitrator’s decision was affirmed by the Commission “based on the election of the plaintiff not to file [a] summary setting forth any claim of error in the arbitrator’s decision.” The Commission additionally awarded accrued interest to the petitioner as provided in section 19(n) of the Act (Ill. Rev. Stat. (1979), ch. 48, par. 138.19(n)).

As I view the Act and the precedents of our supreme court, the Vaught decision is controlling. The court said in Vaught that “the legislature failed to expressly provide a basis for computing the annual earnings of an employee who works regularly, but only on a part-time basis,” and found that Vaught was not continuously employed, found section 10(a) did not therefore apply, and computed Vaught’s rate accordingly. (Vaught v. Industrial Com. (1972), 52 Ill. 2d 158, 166, 287 N.E.2d 701, 705.) Cardiff also was hired as and worked as a regular part-time-class employee, and her rate should be calculated in the same manner. Moonlighting or the fact that an injured person had one or several employers was not controlling.

I disagree with the majority that Hasler is controlling. The overriding distinction is that Hasler was a full-time-class employee. She worked for the same employer for five years. She worked as an inside/outside painter/decorator, much like the typical construction employee, when work was available, that is, wherein it is the custom to operate for part of the whole number of working days in each year. I believe the supreme court determined that Hasler was a full-time-class employee and chose to find that Hasler was therefore “continuously” employed and so indicated, applying subsection (a) of section 10. The supreme court’s precedent in K. & R. Delivery, Inc. v. Industrial Com. (1957), 11 Ill. 2d 441, 143 N.E.2d 56, is inapposite. In K. & R. the part-time delivery helper was not considered “continuously” employed. He was one of several such helpers, some of whom had other work, and some not. The rationale of K. & R. would seem to apply to employee Cardiff. And, under the precedents, to try to define “continuous” in terms of the number of employers does not give any clear meaning to the word.

It is obvious that the specific and lone legislative purpose of including “continuous” in subsection 10(a) was to identify, define and limit, initially, the annual wage of the usual employee who works full-time for more than a year next preceding the injury. The remaining subsections of section 10 attempted to be applicable to the unusual employment situations. The legislative purpose is reflected thereby to compensate the industrially injured in a limited, generally exclusive fashion, so as to not be a burden upon society. It was well defined in Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, 119 N.E.2d 224, where the court declared:

“The Workmen’s Compensation Act is a humane law of remedial nature, and wherever construction is permissible its language is to be liberally construed to effect the purpose of the act. [Citations.] The purpose of the act is that the burdens of caring for the casualties of industry should be borne by industry and not by the individuals whose misfortunes arise out of the industry, not by the public. Every injury sustained in the course of the employee's employment, which causes a loss to an employee, should be compensable. [Citations.] (2 Ill. 2d 590, 596, 119 N.E.2d 224, 228.)

In fulfilling that purpose, and while amending the Workers’ Compensation Act in at least every biannual session in modern times, the legislature has considered that the compensation rate should not exceed the employee’s average weekly wage (e.g., section 8 (b)(1)), but did not choose to provide for a different scale of rates for moonlighters, nor for moonlighters that have more than two jobs. Nor did the legislature guide us in determining how to categorize the various employments a person might have, that is, which of several part-time jobs might be considered the primary job. And, I believe it can be said with some certainty that worker’s compensation insurance company underwriters will not recommend premium reductions based upon the number of moonlighters or part-time employees hired. More likely premium increases per hour of work might be expected because part-time employees are less experienced.

Simply put, the Act did not provide differently for moonlighters. All employees similarly situated are the subjects of the same risks. When one is injured and temporarily out of the employment market, that person is not available to work, to earn dollars, nor is he/she available to seek other employment, whether or not a moonlighter. When one suffers some permanent injury, that person has less to offer any employer in the future.

In the instant case the arbitrator determined that Cardiff was temporarily unavailable for work for 174/? weeks, and that she should be compensated for the permanent loss of use of two fingers to the extent of 281/2 weeks at the rate of $20.68 per week. I would find that because Cardiff contracted to work for $3 per hour she should be limited by that agreement; that her award should be computed pursuant to section 10(e), but limited as aforesaid; that the circuit court should be reversed and the Commission’s decision set aside except for that part of the Commission’s awarding interest due under section 19(n) of the Act; and I would remand for a new decision as directed hereby. To rule that the compensation for the substantial loss of use of two fingers is satisfied by an award of $589 is not fulfilling the purpose of the Act. Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, 119 N.E.2d 224.


author: JUSTICE JOHNSON JUSTICE ROMITI,

text:
    FANNIE THOMPSON, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (4th Division)
    No. 83—1805
    Opinion filed October 11, 1984.
    ROMITI, J., dissenting.

      James D. Montgomery, Acting Corporation Counsel, of Chicago (Jerome A. Siegan and Robert J. Dargis, Assistant Corporation Counsel, of counsel), for appellants.
    John B. Cashion and Martin B. Forbes, both of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Fannie Thompson, sued defendants, the city of Chicago and Thomas Daley, for injuries she sustained when struck by an unmarked Chicago police car driven by Daley. The jury returned a verdict in her favor in the amount of $62,510. Defendants raise the following issues for review: (1) whether the trial court erred in directing a finding that Officer Daley was not executing or enforcing a law at the time of the accident and erred in failing to direct a finding that Daley was executing or enforcing a law at the time of the accident, and (2) whether the trial court committed prejudical errors regarding the jury which denied defendants a fair trial.

Wé affirm.

At trial, plaintiff, 60 years of age and a diabetic, testified that on the evening of November 30, 1979, she intended to go to a leather coat sale at the International Amphitheatre in Chicago, with her three daughters and one of her grandchildren. They traveled to the Amphitheatre by taxicab and exited the cab between 42nd and 43rd streets and Halsted .Street. They crossed the street, and while walking through the parking lot they noticed 50 to 65 teenagers running. Plaintiff and her relatives started walking back toward Halsted Street. She did not hear any shots, sirens, screams or any other noises. Plaintiff instructed one of her daughters to pick up the grandchild, and the next thing she remembered was a car hitting her in the back from the rear. She never saw the car approach. She was under the car up to her shoulders. She felt pain in her head, shoulder, back, legs, arms and abdomen. At the time of the accident, plaintiff weighed 250 pounds.

Plaintiff was taken to Michael Reese Hospital. On the next day, her spleen was removed. She remained in the hospital for two weeks, but returned a week later.. Plaintiff described the treatment she received in the hospital. She stated that since the accident she cannot stand for long periods of time, and she cannot do her own housework as she once did.

Thomas J. Daley, a Chicago police officer, was called as an adverse witness. On the evening of November 30, 1979, he was assigned with his partner, Ralph White, to patrol the International Amphitheatre, where a rock concert was scheduled. Daley and White were in uniform and in an unmarked police car which was equipped with a siren and flashing headlights. When Daley drove into the parking lot between 8 and 8:30 p.m., he observed a disturbance near a gate in the north wall of the building. Daley saw about 100 youths and two ushers by a door. He thought the ushers were in danger. Daley drove forward, then stopped the car and radioed for assistance. Daley activated a siren which sounded for 60 seconds while the car moved forward. After people began running, the car was hit with bottles, wood and bricks, although Daley did not see bottles or bricks hitting the car. He observed another unmarked police car approach the scene. He did not activate the flashing headlights. It was Daley’s intention to back out of the range of the thrown objects. He backed up 30 to 40 feet at about 10 miles per hour. Neither the front nor the back windshield of the car was damaged. Daley never felt the car hit anyone, but he heard a woman yelling and screaming. She told him there was a woman under the car. Daley observed that the tire was on top of plaintiff’s left thigh. He then drove the car off her leg.

Dherem Paul, a physician, testified that he treated plaintiff before and subsequent to her accident. He examined pertinent medical records and stated that the accident on November 30, 1979, caused her ruptured spleen.

Mitchell Krieger, also a physician, testified that he first examined plaintiff on January 7, 1980. She complained of pain in her low back area. Krieger had plaintiff admitted to a hospital for diagnosis and therapy. Her principal problem was low back pain. According to Krieger, this condition seemed to be causally related to the accident.

Hallie Mays, plaintiff’s daughter, accompanied her mother to the Amphitheatre on November 30, 1979. As she, her sisters, her daughter and plaintiff were walking through the parking lot, she saw people running toward them. Mays told her mother, “Let’s not go any further.” They turned around and Mays began talking. She was addressing her mother, but when she received no response she turned and saw her mother on the ground and a car running over her; the tire was on her mother’s legs. Mays shouted to the driver to stop the car. After the driver observed plaintiff under the car, he moved the car. Just prior to the accident, Mays did not hear any noises.

Ralph White, Officer Daley’s partner, testified that when he noticed the disturbance in the Amphitheatre he radioed for assistance. Daley turned on the siren for a few seconds, and they heard a noise coming from behind which sounded momentarily like that of a shotgun blast. White “hit the floor” and Daley put the car in reverse.

Paul Garry was on duty as an usher on the evening of November 30, 1979. He was working as a cashier with Steven Mrowczynski. They were seated inside an automobile. People were trying to get inside the Amphitheatre without paying. He saw people throwing objects which he could not identify. Garry’s attention was attracted toward plaintiff by the sound of bottles breaking and objects thrown. Just before the accident, Garry saw people running; then he saw the car move backward and then slide. He saw plaintiff in a crouching position, but he did not see her being hit by the car.

Steven Mrowczynski substantially corroborated Garry’s testimony. Before the accident, Mrowczynski saw people throwing rocks and bottles. Just before she was hit, plaintiff was bending over and pushing a child out of the way.

Plaintiff’s counsel then read to the jury the life expectancy for a woman of plaintiff’s age and race, which was 21.2 years. Plaintiff then rested.

Defendant called plaintiff as its first witness. She stated that she did not see the car hit her and that she was trying to get out of the way of the people who were running when she was injured.

Arnold Sikler, a police officer, was assigned to investigate the accident and arrived within a few minutes of being informed of the occurrence. It was snowing.

Joseph Botwinski, Jr., a police officer, received the report of a disturbance at the Amphitheatre on the night in question. When he arrived, he observed 100 to 120 youths trying to enter the building. They were throwing objects toward the police car which ultimately struck plaintiff. Botwinski heard the car’s siren. He saw the car back up and he saw three individuals to the left and behind the car, but he did not see the impact.

Officer Daley again described the circumstances of the accident.

Marc Pomerantz, a physician, reviewed plaintiff’s medical records. He stated that there is no definite proof that adults who have lost their spleens have increased incidence of infection. Patients who are overweight frequently suffer low back pain.

The trial court ruled that, as a matter of law, Officer Daley was not executing or enforcing a law at the time the accident occurred.

At 12:30 p.m. on May 10, 1983, the jury retired to begin its deliberations. Later that day, at 5:10 p.m., the trial court advised attorneys for plaintiff and defendants that he had received two communications from the jury. The first communication stated:

“We the jury request the following information to be given to us for consideration to reach a verdict: (1) First Michael Reese Admittance; (2) Hospital report for fall out of bed; (3) Diagram of the parking lot.”

The judge’s response was:

“You have heard in full all the evidence. The items you request are not a part of this — are not a part of the evidence in this case. You should refer to the instructions and not give guess or speculate.”

The second communication stated:

“With regard to the special interrogatory, should there be no answer, can there be an award to the Plaintiff?”

The judge’s response was:

“You heard all arguments from Counsel on this issue. I cannot, under the law, give you any answer to your question. You must decide the case without an answer to your question from me on this point.’’

The special interrogatory stated as follows:

“Prior to and at the time of the occurrence, was THOMAS J. DALEY guilty of negligence which was a proximate cause of the injury to the plaintiff.”

At 7 p.m., the trial judge called the jury from its deliberations. He asked the foreman whether the jurors were having difficulty reaching a verdict. The foreman gave the judge a note which stated:

“We have reached a deadlock on the special interrogatory as to the guilt of Thomas J. Daley. Need advice as to how to proceed.”

The court asked the foreman whether there was a chance the jury could reach a unanimous agreement if given additional time. The foreman responded that “the possibilities are remote” and “the probability is the impasse undoubtedly will remain.”

The foreman affirmed that the jury had reached a verdict but had not answered the special interrogatory. The judge asked for and received the verdict. Counsel for defendants asked for a mistrial on a theory that looking at the verdict precluded the jury from changing it. This motion was denied. In open court, the trial judge directed the jury to continue its deliberations until it reached a unanimous decision.

After further deliberation, the jury answered the special interrogatory in the affirmative. The judge then stated that he would talk to the jury outside the presence of both attorneys because “when I talk, I don’t want either one of you here because I don’t want to give anybody ideas.” When counsel returned to court, the jury was polled. The jury found for plaintiff and against defendants in the amount of $65,800, which was reduced to $62,510 because of plaintiff’s contributory negligence of 5%. Defendants appeal.

The first issue raised by defendants is whether the trial court erred in directing a finding that Officer Daley was not executing or enforcing a law at the time of the accident because the jury easily could have found that the officer was involved in executing or enforcing numerous laws and ordinances. Defendants claim that Officers Daley and White were not merely on duty but were “virtually under siege” when they arrived on the scene. They took immediate action to break up the crowd and to protect private property and the ushers. They never abandoned this purpose even though they momentarily believed they had been fired upon.

In the instant case, the standard for determining whether the trial court erred in directing a finding in plaintiff’s favor is whether all the evidence, when viewed in its aspect most favorable to defendants, so overwhelmingly favors plaintiff that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 2— 202) provides that “[a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence.” This provision does not necessarily include all the activities of a public employee during all of his hours on duty. To construe this section as affording immunity from liability except for wilful and wanton negligence during all the time a public employee is on duty is unwarranted by the language used by the legislature. The immunity granted a public employee for his negligent acts extends only to the act or omission done while in the actual execution or enforcement of a law and not to every act or omission done while on duty as a public employee. Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 33, 282 N.E.2d 144, 147.

At trial, plaintiff conceded that Officer Daley did not deliberately cause her injuries. Thus, to recover, plaintiff had to establish that Daley was not executing or enforcing a law when she was injured. Daley testified that there was a disturbance involving approximately 100 youths, that he thought the ushers were in danger, but that when he backed up his vehicle he was trying to get out of the way of flying debris. In our opinion, the trial court properly determined that, as a matter of law, Officer Daley was not in the act of enforcing or executing a law at the time the accident occurred. Although Officer Daley may have had a general intent to protect private property and the ushers, his act of reversing the vehicle was an act of getting out of the way, not an act of executing or enforcing any law. Since we hold that the trial court properly directed a finding that the police officer was not executing or enforcing a law, it necessarily follows that the trial court did not err in failing to direct a finding that the police officer was executing or enforcing a law at the time the accident occurred.

Next, defendants complain that the trial judge committed prejudicial error regarding his conduct with the jury, the cumulative effect of which denied them a fair trial. They find objectionable that part of the closing argument of plaintiff’s counsel in which he stated that Officer Daley was an agent of the city, and if he was negligent, the city was negligent. Plaintiff’s counsel said: “We want the City of Chicago to be liable in this case so that the City will be responsible to pay the judgment.”

Defendants admit that they did not object to these remarks when they were made. We do not understand, nor do defendants explain, how these remarks prejudiced them, since no claim is made that the remarks misstate the law or unnecessarily inflame the jury. In our opinion, the statements merely reflect plaintiff’s position.

Defendants argue that the trial court coerced the jury’s verdict. They contend that the jurors were less reluctant to hold the city liable because they reached a unanimous decision on the general verdict. However, the jury also inquired whether plaintiff could still recover if Officer Daley were found not guilty of negligence. Defendants note that the jury returned the special interrogatory answered in the affirmative 30 minutes after they were advised by the trial court to continue deliberations until they reached a unanimous decision. Defendants complain that the instruction contained no warning that no individual juror should relinquish his or her conscientiously held conviction. They claim that the instruction had the effect of unduly pressuring the holdout juror to heed the majority for the mere purpose of returning a decision. Defendants cite United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, for the proposition that any influence which emphasizes the importance of agreement to the exclusion of the dictates of individual conscience is inherently coercive and prejudicial.

We disagree with defendants’ contention. The general verdict was not coerced — the jury had already decided the general verdict when the trial judge inquired as to whether they were having difficulty. Also, in our opinion, the special interrogatory was not coerced.

We have examined the remarks made by the trial judge in instructing the jury to continue deliberating on the special interrogatory. We cannot infer that because of their earlier inquiry they felt coerced to answer affirmatively when instructed to continue deliberations. The jury deliberated for 30 minutes before reaching a decision. Although it may have been a better practice to caution the jurors not to abandon conscientiously held beliefs for the sake of a unanimous decision (cf. People v. Prim (1972), 53 Ill. 2d 62, 75, 289 N.E.2d 601, 609 (jury deadlocked on verdict), cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731), we do not believe that the absence of such a warning constitutes reversible error in the instant case.

Finally, defendants argue that prejudicial error occurred when the trial court talked to jurors outside the presence of counsel after the verdicts were read and before the jury was polled, and they cite United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, for the proposition that communications between the judge and jury during deliberations outside the presence of counsel are presumptively prejudicial. In our opinion, that case is inapposite because the communication between the judge and jury occurred after the jury’s deliberations and after the verdicts were read and not before or during deliberations. We note that defendants did not object when the trial judge said he would speak to the jurors outside the hearing of counsel.

In conclusion, we hold that the trial judge did not commit prejudicial error regarding his conduct with the jury.

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

Affirmed.

LINN, P.J., concurs.

JUSTICE ROMITI,

dissenting:

Because I believe the trial court erred in finding as a matter of law that Officer Daley was not executing or enforcing the law at the time of the accident, I must respectfully dissent.

Viewing all the evidence in its aspect most favorable to defend- ' ants establishes the following chain of events. Officers Daley and White, two uniformed Chicago police officers, were assigned in their unmarked police car to patrol the area near the International Amphitheatre, the scene of a rock concert. They saw a group of approximately 100 people who were trying to storm the Amphitheater without paying. Arrayed against this bottle-throwing mob were two ushers. Officer Daley believed these ushers to be in physical danger and after radioing for assistance he drove his car toward the group with his siren on. He specifically testified that in doing so his intent was to disperse the crowd, rescue the ushers, and prevent property damage. The officers came under attack. Their car was struck by bottles, bricks, and other objects, including one which struck the car with such force as to cause them to believe they were being fired upon. Officer Daley backed up his vehicle in an attempt to get out of range of these missiles. At this point the plaintiff was run over by the vehicle.

The majority appears to concede that Officer Daley was acting to enforce the law when he drove the police car toward the mob. But because the officers then came under attack and were forced to retreat, the majority holds that as a matter of law this momentary retreat was not part of that law enforcement function. This construction defies logic and does not comport with the directive of our supreme court to give to the phrase “the execution and enforcement of any law” its plain and commonly accepted meaning. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 33, 282 N.E.2d 144, 147.) The trial court’s action prevented the jury from determining whether they believed the facts of the accident to be in accord with our best-case summary of the' defendants’ evidence as outlined above and then determining whether the officer was acting to enforce the law at the time of the accident. This despite the fact that such a determination is ordinarily one for the fact finder to make after consideration of all the facts and circumstances presented in the case. Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 35, 282 N.E.2d 144, 148-49; Anderson v. City of Chicago (1975), 29 Ill. App. 3d 971, 977, 331 N.E.2d 243, 248.

I would reverse and remand the cause for a new trial at which defendants would have the opportunity to have the fact finder determine this critical issue.


author: PRESIDING JUSTICE BUCKLEY

text:
    RAUL M. CASAS, Plaintiff and Counterdefendant-Appellant, v. LIBERTY SAVINGS & LOAN ASSOCIATION OF CHICAGO, Defendant and Counter-plaintiff (Robert Evan Daniels, Defendant and Counterplaintiff-Appellee).
    First District (First Division)
    No. 84—0068
    Opinion filed October 9, 1984.
    J.S. Nottingham, of Chicago, for appellant.
    Daniel A. Aljinovic, of Aljinovic & Perisin, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

The subject of this appeal is a judgment entered by the circuit court of Cook County in behalf of Robert Evan Daniels, third-party plaintiff, in an action against Raul M. Casas, a counterdefendant. Now, Casas contends that the trial court erred when it refused to admit into evidence his exhibit of a certified chain of title.

According to the common law record, on August 7, 1978, Raul M. Casas filed a complaint against Liberty Federal Savings & Loan Association (hereafter Liberty) which alleged, inter alia, that it wrongfully refused to honor a cashier’s check issued by it on the order of Robert Evan Daniels in the amount of $3,800 when Casas presented it for payment on April 19, 1978. Liberty filed a timely response, and after further pleadings were filed, Casas was granted a summary judgment in the amount claimed.

However, Liberty filed a third-party complaint against Daniels to enforce the indemnification terms included in the stop payment order executed by Daniels. A summary judgment for $3,800 was granted against Daniels and for Liberty on June 17, 1979. By that same order, execution on both the Casas and Liberty judgments was stayed until further order of court, and Daniels was granted leave to file a third-party complaint against Casas.

Subsequently, Daniels filed his complaint which alleged, inter alia, that Casas knowingly sold him a mechanically defective 1971 Jaguar XKE, although prior to sale Casas assured him that it was in good condition. Daniels sought $16,000 in damages. After that complaint was amended and other pleadings were filed, a bench trial was held. Eventually, judgment was entered for Daniels in the amount of $1,774.31. It is from this judgment that Casas appeals.

While Casas has included a transcript of the hearing on his post-trial motion, he has not provided a verbatim transcript of the trial proceedings, a factual stipulation by the parties or a certified bystander’s report as required by Supreme Court Rule 323. (87 Ill. 2d R. 323.) A post-trial motion is not a substitute for a report of trial proceedings. (Saint Joseph Hospital v. Downs (1978), 63 Ill. App. 3d 742, 380 N.E.2d 529.) The burden is on the appellant to present a record of sufficient completeness in order to question the evidence pertaining to issues raised at trial. (Investors Shelter Corp. v. Chernick (1978), 58 Ill. App. 3d 446, 374 N.E.2d 786.) Where the record is lacking, a reviewing court will indulge every presumption favorable to the judgment or order appealed from. (Schranz v. I.L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 412 N.E.2d 1378.) Here, the record on appeal is not sufficient for this court to determine the correctness of the circuit court’s decision, and the presumption of correctness applies.

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

Affirmed.

McGLOON and CAMPBELL, JJ., concur.