author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES DAVIS, Defendant-Appellant.
    Second District
    No. 2—83—0026
    Opinion filed August 21, 1984.
    William R. Beu, of Rockford, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Andrea Becker, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, James Davis, appeals from an order of the circuit court of Winnebago County revoking his conditional release under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1981, ch. 38, par. 105—10) and committing him to the Department of Corrections pursuant to the terms of his original commitment as a sexually dangerous person. Since we conclude that defendant was denied a fitness hearing erroneously prior to commencement of the revocation hearing, we reverse the order of the trial court and remand with the direction that defendant’s fitness be determined.

Defendant was granted a conditional release on October 16, 1980. Thereafter, the State filed on January 15, 1982, a petition to revoke his conditional release. Psychiatric examinations of defendant were ordered and completed, but on August 20, 1982, the court granted the State’s motion to deny defendant a fitness hearing. Defendant then tendered an offer of proof that Drs. Carl Hamann and J.G. Graybill would testify that defendant was unfit to stand trial.

At a hearing on the petition to vacate the conditional release held on October 28, 1982, the principal State witnesses were three young girls who testified defendant approached them on July 7, 1982. The girls were returning from a garage sale and were walking with traffic on Blackhawk Road in Cherry Valley. The car approached from behind them while they were walking, slowed and then briefly stopped. Two men were in the car, one of whom leaned out of the window closest to the girls. Elizabeth Hirth, an 11-year-old in the sixth grade, stated she was asked, “Do you want a ride?” by the man leaning out the passenger window of a green car. Upon hearing the question, she ran away from the car. On the day of the hearing, Elizabeth did not recognize defendant in the courtroom.

Stephanie Putzstuck, an SVz-year-old fourth-grader, did identify defendant at the hearing and stated defendant reached out of the car and touched, but did not grab, her arm. Rebecca Hirth, 91/2 years old and a fourth-grader, also testified she and Stephanie were touched by defendant. Both Putzstuck and Rebecca testified that after the incident they ran to the Hirth residence and that the car turned around in the Hirth driveway and drove away in the opposite direction.

Betty Hirth, the grandmother with whom the Hirth grandchildren lived, testified she walked out of her garage between 5 and 6 p.m. on July 7, 1982, heard talking and then a scream from down the road. A green Buick LaSabre then turned around in her driveway with one man hanging out the window. Her daughter followed the car and obtained its license plate number. In about one-half hour, the sheriffs deputy phoned the Hirths and requested them to come to the Kishwaukee Forest Preserve. There, Betty Hirth identified defendant as one of the men in the car, although she thought defendant was the driver of the car.

Winnebago County sheriffs deputy David Fiduccia went to the forest preserve on July 7, 1982, pursuant to a radio transmission, and in conjunction with Cherry Valley police department officers located a Chevrolet automobile. He found defendant sitting on a picnic table 10 to 15 feet from the river and found defendant’s brother lying on his back naked along the shore. The two were apparently talking. Fiduccia asked defendant to have his brother come out of the river. Defendant then “staggered” toward the river and put one foot in the water before police officers grabbed him. Fiduccia testified Becky Hirth and Stephanie Putzstuck identified the two men at the forest preserve. Defendant testified he was at the forest preserve on July 7, 1982, but denied talking to or seeing any girls. He did admit traveling in a car on Blackhawk Road.

While defendant asserts the trial court erred in denying him a fitness hearing, the State contends this court need not decide that issue because the record discloses no bona fide doubt about defendant’s fitness. Fitness for trial requires that a defendant have the ability to understand the nature and purpose of the proceedings and to assist in his own defense. (People v. Murphy (1978), 72 Ill. 2d 421.) The law presumes a defendant to be fit (Ill. Rev. Stat. 1981, ch. 38, par. 104—10), and the determination as to whether a bona fide doubt has been raised rests largely within the trial court’s discretion. (People v. Murphy (1978), 72 Ill. 2d 421.) A defendant can be fit for trial although his mind may be otherwise unsound. (People v. Lang (1979), 76 Ill. 2d 311; People v. Murphy (1978), 72 Ill. 2d 421.) The mere fact that a defendant has suffered some mental disturbance or in the past has required psychiatric treatment does not necessarily raise a bona fide doubt as to his fitness. (People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.) The above rule is especially true when a defendant manifests to the court and to his counsel a coherence and lucidity inconsistent with a claim of unfitness. People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.

The State cites as the best evidence of defendant’s fitness his direct and cross-examination testimony concerning his actions on the day of the incident. His trial attorney stated that “my client does want to tell the court that he did not do that.” On direct examination, defendant stated he had heard all the prior testimony in the revocation proceeding and that he remembered “very clearly” July 7, 1982, the date of the incident. He remembered he had gone to the Kishwaukee Forest Preserve and on cross-examination admitted he drove down Blackhawk Road to the forest preserve. Defendant testified his brother was driving the car and denied seeing or speaking with any girls or children. At the forest preserve, defendant said his brother took his clothes off and put the clothes on the ground. Defendant denied running from the police officer at the forest preserve, but instead stated he went to the river to help someone get his inner tube. While at some points during defendant’s testimony he was not completely responsive to the questions asked, he did demonstrate awareness of the day in question and recalled his own actions and the actions of others.

Another factor suggesting defendant’s fitness is the absence of any statements by his counsel in the record that defendant was unable to cooperate in his defense. Statements by counsel of his client’s uncooperativeness are indicative of unfitness. (People v. Johnson (1984), 121 Ill. App. 3d 859, 460 N.E.2d 336.) In contrast to the absence of uncooperativeness here, the court in Johnson found a bona fide doubt existed based in part upon the fact that counsel alerted the court that the defendant would not cooperate with him, that the defendant had not spoken to him for a long time, and that defendant “only smiled when counsel tried to explain his rights and other aspects of the case to him.” (121 Ill. App. 3d 859, 861, 460 N.E.2d 336, 338.) Even if defendant’s counsel did assert defendant’s uncooperativeness, that claim would be somewhat belied by defendant’s subsequent decision to testify in the instant case.

A defendant’s demeanor at trial also is relevant to a determination of his fitness. (People v. Johnson (1984), 121 Ill. App. 3d 859, 460 N.E.2d 336.) The only comment of the trial judge regarding defendant’s fitness is his statement that defendant was “retarded” or “borderline retarded.” The trial judge also made special efforts to direct defendant toward the proper exit after court proceedings terminated and admonished defendant not to speak in court without consulting first with his attorney. These facts could be construed to imply that the trial judge believed defendant was not able to understand the nature of the court proceedings without at least some aid.

The primary evidence of defendant’s unfitness was from two psychiatrists who were ordered by the court to examine defendant to ascertain whether he was fit to stand trial. Graybill stated he examined defendant on July 22, 1982. Defendant then knew that he had been confined to the Menard psychiatric section for 15 years and had been given a conditional discharge. Graybill decided defendant was not oriented as to time, was distractable and was confused regarding the offense preceding his confinement, did not know why he was in jail or the name of his attorney and had “absolutely no knowledge of the court process in spite of the fact that he had been to court previously.” Based upon these observations, Graybill concluded defendant was unfit to stand trial. A similar conclusion was reached by Hamann, who stated that defendant was distractable, was not oriented to the correct time and date, and took a long time to recall events and to answer questions. Hamann also stated defendant “could not explain the various functions in the court process despite his previous court appearances.” Therefore, Hamann concluded “with reservation” that defendant was not fit to stand trial.

Also indicative of defendant’s unfitness is his prior treatment for medical disability. (See People v. Johnson (1984), 121 Ill. App. 3d 859, 460 N.E.2d 336.) However, defendant has a long history of treatment for his mental condition; this factor is less suggestive of defendant’s fitness than are his demeanor at trial and his cooperativeness with counsel. Those two factors are indicative of defendant’s fitness at the time of trial, while defendant’s history of mental treatment is only truly indicative of his mental condition in the past.

Considering the above factors, we conclude the record indicates that a bona fide doubt was raised about defendant’s fitness. The findings of the two psychiatrists were that defendant was unfit for trial. The State’s citation to People v. Thomas (1969), 43 Ill. 2d 328, for the statement that psychiatric reports are not conclusive even as to the existence of a bona fide doubt is inapposite. There, the supreme court held that the defendant was erroneously denied a fitness hearing, even though the psychiatric report indicated he was fit to stand trial. Since the psychiatric reports here concluded defendant was unfit for trial, Thomas is distinguishable and thus, we address the remaining issues raised by defendant.

Defendant contends that the incident did not constitute a violation of any of the terms of his conditional release. The substantive provisions governing the conditional release of an individual following commitment as a sexually dangerous person are codified within the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 105—10.) Upon granting a conditional release, “the court may enter an order permitting such person to go at large subject to such conditions and such supervision by the Director [of the Illinois Department of Corrections] as in the opinion of the court will adequately protect the public.” (Ill. Rev. Stat. 1981, ch. 38, par. 105—10.) Additionally, that section states that “[i]n the event the person violates any of the conditions of said order, the court shall revoke such conditional release and re-commit the person pursuant to Section 5 — 6 — 4 of the Unified Code of Corrections under the terms of the original commitment.” (Ill. Rev. Stat. 1981, ch. 38, par. 105—10.) The terms listed in defendant’s conditional release are: (1) defendant must live with his sister; (2) must stay there between sundown and sunrise every day; (3) must participate in all programs of a local mental health center; (4) must report to a qualified parole counselor no fewer than three times each month; (5) must take any medication required by the Director or the mental health center; and (6) must comply with any additional conditions set up by the Director. Neither party has cited any conditions imposed by the Director in addition to those contained in defendant’s conditional release order.

In its petition, the State charged that defendant was guilty of disorderly conduct by offering a ride to and touching the girls, that defendant and his brother were later found in the forest preserve with his brother naked in the river, and that defendant ran into the river after being approached by police officers. Such conduct, the petition stated, “constitutes a material and direct violation of the Court’s order with respect to the conditional release of the defendant.”

The State acknowledges that defendant’s conduct did not violate a specific condition of the release order, but challenges defendant’s conclusion that therefore revocation was improper. Relying upon this court’s decision in People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661, the State argues a defendant’s conduct need not violate a specific condition to warrant revocation. In Patch, a defendant who was released under the Sexually Dangerous Persons Act was charged with a deviate sexual assault. Rejecting the defendant’s argument that such conduct did not violate the specific conditions of his release order, the Patch court stated:

“We do not agree, however, that a conditional release pursuant to Section 9 can only be revoked for a violation of a specific condition expressed in the order. It is implicit, in any reasonable interpretation of the Act, that a conditional release could be revoked if the person adjudged sexually dangerous committed an additional sex offense during the period of his release.” (9 Ill. App. 3d 134, 137, 293 N.E.2d 661, 664.)

While the defendant in Patch was charged with conduct more opprobrious than the conduct attributed to defendant here, the fact that the defendant’s conduct constituted a ground for revocation despite not violating a specific condition in his order makes Patch determinative of the case at bar. Adoption of defendant’s position would place too high a burden on the court to list every possible action which would justify recommitment. We agree with the trial court’s statement that the conduct involved here is clearly violative of the spirit if not the letter of the release order.

Because we conclude defendant's conduct violated his release order, defendant’s argument that the trial court lacked jurisdiction to revoke his release because no term of the order was violated is without merit. Even if considered, defendant’s argument is unpersuasive. Contrary to his contention, the committing court has continuing jurisdiction to consider petitions by the State concerning a violation of the release order. Under defendant’s construction of the court’s jurisdiction, any conduct not violative of a specific condition would not trigger the court’s jurisdiction, and thus, any action taken by the court under those circumstances would be void. Such a construction of the statute would be too restrictive of the court’s power and would insulate released persons from recommitment unless their conduct violated the specific wording of the release order. Finally, contrary to defendant’s assertion, the record indicates that defendant’s involvement in the incident was proved by a preponderance of the evidence.

The last issue presented by this appeal is whether the trial court erred in denying defendant a fitness hearing prior to conducting the revocation proceeding. We analyze this question on the basis of whether the denial of a fitness hearing violated defendant’s due process rights under the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2) and the Federal Constitution (U.S. Const., amend. XIV, sec. 1). Both parties agree that the issue has not been decided by an Illinois court. Defendant emphasizes that section 5—6—4(c), which governs revocation proceedings, provides that the evidence on the revocation issue “shall be presented in open court with the right of confrontation, cross-examination, and representation by counsel.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(c).) Since the intelligent exercise of those rights depends upon the mental capacity of the defendant, defendant contends, a fitness determination is necessary to ensure the protection of a defendant’s rights.

The State rejects the conclusion that a fitness hearing was required by the facts here. Nowhere in the procedures provided for in the Sexually Dangerous Persons Act, the State argues, is a fitness hearing mentioned. Rather, fitness hearings are provided for in article 104 of the Code of Criminal Procedure of 1963, titled “Fitness for Trial, To Plead or to be Sentenced,” which suggests a fitness hearing is limited to trials. The State notes that a proceeding under the Sexually Dangerous Persons Act is not a trial or a criminal proceeding, but rather is civil in nature. (People v. Studdard (1972), 51 Ill. 2d 190.) While the reasonable-doubt standard of proof applies to sexually dangerous persons proceedings, other elements of the criminal process, such as admonitions regarding the right to a jury trial, a right to appeal and the consequences of a guilty plea are not constitutionally required. People v. Pembrock (1974), 23 Ill. App. 3d 991, 320 N.E.2d 470, affd (1976), 62 Ill. 2d 317.

The State argues the reasoning employed by the Pembroek court supports the trial court’s action here. While noting that both proceedings under the Sexually Dangerous Persons Act and criminal proceedings may result in a loss of liberty, the Pembroek court differentiated them on the basis that unlike criminal proceedings, commitments contain no inference of moral blameworthiness and are not intended as punishment. The supreme court affirmed the appellate court in Pembroek on the ground that the reasonable doubt standard should be applied to sexually dangerous persons proceedings. People v. Pembrock (1976), 62 Ill. 2d 317.

In another case pertinent to the facts here, the supreme court in People v. Olmstead (1965), 32 Ill. 2d 306, rejected the defendant’s argument that a person accused under the Sexually Dangerous Persons Act was mentally incompetent to stand trial and to waive his right to a jury trial. Defendant argues the case supports his position here on appeal because rather than holding that fitness hearings were inapplicable to proceedings under the Sexually Dangerous Persons Act, the court instead reviewed the record and found evidence that the defendant had the mental capacity to stand trial and to waive his right to a jury trial.

Olmstead does provide some support for defendant’s position. The defendant in Olmstead contended the fact that he was charged under the Sexually Dangerous Persons Act necessarily rendered him incompetent to waive certain rights. By not concluding the question of defendant’s fitness was irrelevant to those proceedings, the supreme court implicitly stated that defendant’s fitness should be ascertained. However, Olmstead involved an original commitment proceeding, while here defendant’s argument pertains to a revocation of a conditional release. The natures of the two proceedings are different. For example, in the original commitment proceeding, a defendant must be proved guilty beyond a reasonable doubt, while here the State need only prove the violation of a conditional release by a preponderance of the evidence. Application of the preponderance standard suggests revocation proceedings are more in the nature of a civil commitment. In fact, the trial court specifically rejected defendant’s request for a fitness hearing on the basis that the revocation proceeding was analogous to an involuntary civil commitment which does not require a fitness determination. Therefore, we find Olmstead not dispositive of the case at bar.

This issue can be analogized to the rights which a parolee or a probationer enjoys prior to the revocation of his parole or probation. The Uniform Code of Corrections consistently refers to probation and conditional release as similar sentencing alternatives. For example, section 5—1—18 of the Uniform Code of Corrections defines probation using the term conditional release: “ ‘Probation’ means a sentence or disposition of conditional or revocable release under the supervision of a probation officer.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—1—18.) Section 5—5—3, which concerns dispositions, lists both periods of probation and terms of conditional discharge as appropriate dispositions for certain felonies and misdemeanors. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.) Furthermore, article 6 of the Uniform Code of Corrections is titled “Sentences of Probation And Conditional Discharge” and sections 5—6—1, 5—6—2, and 5—6—3 use probation and conditional discharge almost interchangeably. Also, section 5—6—4 concerning violations, modifications and revocations of probation and conditional discharges provides that defendants free on either method of release possess the rights of confrontation, cross-examination and representation by counsel. Finally, the State under section 5—6—4(c) must prove violations of probation and conditional discharge orders alike by a preponderance of the evidence. Based upon the statutory similarities between probation and conditional discharges, and because of the absence of case law interpreting conditional discharge revocations, we analyze cases interpreting revocation of probation proceedings as directly analogous to the conditional discharge revocation presented in the case at bar. We also examine parole revocation cases, for a parolee enjoys the same due process rights at a parole revocation proceeding as he does at a probation revocation proceeding. See People v. Isringhaus (1976), 38 Ill. App. 3d 535, 347 N.E.2d 834.

The United States Supreme Court discussed the rights of parolees in parole revocation proceedings in Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593. There, the Supreme Court held that a parolee is entitled to certain rights prior to his parole revocation:

“They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole.” (408 U.S. 471, 489, 33 L. Ed. 2d 484, 499, 99 S. Ct. 2593, 2604.)

While stating a revocation of parole was not part of the criminal prosecution, the court did conclude that a parolee’s liberty is similar to that enjoyed by the populace at large and therefore is deserving of fourteenth amendment protection.

Subsequent to Morrissey, the Supreme Court in Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756, held that the probationer was entitled to both a preliminary hearing to determine whether there was probable cause to believe that he had violated his probation and a final hearing prior to the ultimate decision whether his probation should be revoked. The Gagnon court also concluded a State was not under a constitutional duty to provide counsel for indigents in all cases and that the need for counsel should be determined on a case-by-case basis. Consistent with the Morrissey and Gagnon courts’ recognition that the full panoply of rights due a defendant in a criminal proceeding does not apply to parole and probation revocations, Illinois courts have held that Supreme Court Rule 402 admonitions (People v. Beard (1974), 59 Ill. 2d 220) and the discovery rules referred to in Supreme Court Rule 411 (People v. DeWitt (1978), 66 Ill. App. 3d 146, 383 N.E.2d 694, aff’d (1979) , 78 Ill. 2d 82) are not applicable to probation revocation proceedings. A defendant is entitled, however, as part of minimal due process to a meaningful opportunity to be heard (People v. Lee (1980) , 88 Ill. App. 3d 396, 410 N.E.2d 646), and to a statutory right to appointed counsel. People v. Baker (1981), 101 Ill. App. 3d 1114, 428 N.E.2d 1188, affd on other grounds (1983), 94 Ill. 2d 129.

Our research has uncovered only one Illinois decision in which a defendant’s fitness was considered prior to a probation revocation proceeding. In People v. Matschke (1980), 83 Ill. App. 3d 1000, 1003, 404 N.E.2d 1047, the defendant filed on the day preceding the revocation hearing a motion for a competency hearing accompanied by two affidavits “each reciting an examination at an unspecified time and an opinion that defendant was unable to understand the state of the charges and was unable to assist bounsel.” (83 Ill. App. 3d 1000, 1003, 404 N.E.2d 1047, 1049.) The trial court found no facts presented by the affidavits which raised a bona fide doubt about defendant’s fitness, and the appellate court concluded the trial court in so ruling did not abuse its discretion. At the sentencing hearing, the defendant again presented a motion for a competency hearing and the court heard testimony from the defendant’s psychiatrist as well as from two psychiatrists appointed by the trial court. In examining the trial court’s determination that the defendant was competent to be sentenced, the reviewing court ruled the lower court’s decision was not against the manifest weight of the evidence. Matschke did not expressly hold that a defendant is entitled to a fitness evaluation prior to a revocation-of-probation proceeding. Nevertheless, the court’s consideration of the defendant’s competency motions prior to the revocation and sentencing hearings is persuasive support for the existence of defendant’s asserted right to a fitness hearing in the instant case and is in conflict with the trial court’s conclusion here that fitness determinations are inapplicable to proceedings for revocations of conditional discharges.

Several other State courts have considered the question of a defendant’s competence in relation to a probation or parole revocation proceeding. In Pierce v. Department of Social & Health Services (1982), 97 Wash. 2d 552, 646 P.2d 1382, the Supreme Court of Washington held that constitutional due process requires a parole board or hearing officer to order a competency hearing prior to the final revocation proceeding. Such an evaluation is necessary, the Pierce court stated, “whenever a parolee’s competence is called into question at a revocation proceeding.” (97 Wash. 2d 552, 560, 646 P.2d 1382, 1386-87.) In contrast to its conclusion that due process requires a fitness determination at the dispositional phase of the revocation proceeding, however, the Pierce court stated the defendant is not entitled to a competency hearing at the earlier portion of the revocation proceeding at which the defendant’s alleged probation violation is considered.

The court in Hayes v. State (Fla. App. 1977), 343 So. 2d 672, likewise concluded a defendant is entitled to a competency hearing during a probation revocation proceeding. Finding a probation revocation hearing similar to a criminal proceeding in that “the defendant’s liberty is at stake, and his ability to assist in his own defense may be determinative of the outcome of the revocation hearing” (343 So. 2d 672, 673), the Hayes court reversed the order of the trial court who, like here, “was under the impression that there was no authority for him to conduct a competency hearing in a probation revocation proceeding.” Hayes v. State (Fla. App. 1977), 343 So. 2d 672; see also Commonwealth v. Edward (1982), 303 Pa. Super. 454, 450 A.2d 15 (reviewing court remanded cause for reconsideration of whether defendant was competent to participate in a revocation hearing); Commonwealth v. Megella (1979), 268 Pa. Super. 316, 408 A.2d 483 (revocation of probation and subsequent resentencing of a defendant who is incompetent is a violation of due process).

Apart from decisions involving probation revocation proceedings, this court’s recent decision concerning the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.1 et seq.) (the Act) also supports granting a fitness hearing to defendant in the instant case. In People v. Beckler (1984), 121 Ill. App. 3d 436, 459 N.E.2d 672, the defendant pleaded guilty to burglary and theft charges, and was placed under the supervision of a licensed treatment program pursuant to the Act. When the treatment center informed the court that the defendant was unacceptable for the program, the court without a hearing terminated the supervision and entered judgment on the earlier guilty pleas. This court examined section 9 of the Act and determined that the statute created a liberty interest incapable of extinction absent a proceeding held with procedural due process safeguards. In reaching this conclusion, this court likened the defendant’s status to that of a probationer:

“Defendant’s status as a person under the supervision of a licensed program is akin to that of a probationer. Thus, we believe that the individual subject to termination should be accorded the following rights: (1) written notice of the reasons the individual cannot be further treated; (2) an opportunity to be heard and to present witnesses; (3) disclosure to him of the evidence against him; and (4) the right to confront and cross-examine adverse witnesses.” 121 Ill. App. 3d 436, 441, 459 N.E.2d 672, 675-76.

We similarly believe a defendant has a constitutional liberty interest in his conditional discharge which cannot be extinguished absent due process. “Where a State statute creates a right and specifies that that right may be forfeited only upon the misconduct of an individual, then that individual has a liberty interest which requires that procedural due process be accorded the individual in the determination whether the misconduct has occurred.” 121 Ill. App. 3d 436, 439, 459 N.E.2d 672, 674.

In considering what process is due a defendant on conditional release, we hold that a defendant is entitled to a fitness hearing prior to the revocation proceeding if his competency is questioned by the court or the parties. Section 5—6—4(c) specifically provides that in determining whether a defendant has violated the conditional release order, “[t]he evidence shall be presented in open court with the right of confrontation, cross-examination, and representation by counsel.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(c).) The intelligent exercise of these rights is prevented if a defendant is unfit. In light of this fact, we find unpersuasive the distinction drawn by the court in Pierce v. State Department of Social & Health Services (1982), 97 Wash. 2d 552, 646 R2d 1382, that a parolee is entitled to a competency determination at the dispositional phase of the revocation proceeding, but not earlier when the court determines whether the parolee violated his order. (Cf. People v. Burnside (1977), 52 Ill. App. 3d 524, 367 N.E.2d 733 (trial court erred in not holding a competency hearing 'prior to trial even though the defendant’s fitness was determined prior to sentencing).) The Pierce court itself recognized the danger inherent in its holding, acknowledging “the possibility that the incompetent parolee might possess information which would prove him innocent but which he is unable to communicate to his attorney ***.” (97 Wash. 2d 552, 559, 646 P.2d 1382, 1386.) This danger is especially significant where, as here, the State has granted a defendant a statutory right to counsel in probation and conditional discharge revocation proceedings. See Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(c).

What prompted the Pierce court to deny the defendant a competency hearing at the initial stage of the revocation proceeding was its concern that the parole board would have no means of exercising its control over the parolee until he regained fitness, thereby allowing the parolee to remain free as a danger to society because of his unfitness. Such a situation would not occur under the Illinois statutory scheme. Upon the filing of a conditional discharge revocation petition, a defendant would file a motion with the court for a fitness hearing. If after the hearing the trial court determines that the defendant is in fact unfit, and if the defendant’s disability is mental, the court may order him placed for treatment in the custody of the Department of Mental Health and Developmental Disabilities or any other appropriate public or private agency. (Ill. Rev. Stat. 1981, ch. 38, par. 104—17(b).) The person supervising the defendant’s treatment must file with the trial court within 30 days of the entry of the order to undergo treatment a report indicating his opinion whether the defendant has a substantial probability of obtaining fitness within one year from the unfitness determination. (Ill. Rev. Stat. 1981, ch. 38, par. 104—17(e).) If no substantial probability exists, the defendant can demand a discharge hearing conducted by the court without a jury. (Ill. Rev. Stat. 1981, ch. 38, par. 104—25.) At the hearing, the State and the defendant may introduce evidence relevant to the question of the defendant’s guilt of the crime charged. Absent a request by the defendant for a discharge hearing and upon a finding by the trial court that there is not a substantial probability that the defendant will be fit within one year, the State has three options under section 104—23. (Ill. Rev. Stat. 1981, ch. 38, par. 104—23.) One of these options is to request the court to remand the cause to the Department of Mental Health and Developmental Disabilities for a hearing, after which, if the defendant is committed, the trial court dismisses the charges with leave to reinstate them.

Based upon the foregoing procedures which govern a defendant once he is determined to be unfit, an unfit defendant would not be allowed to remain free as a danger to society. Rather, that defendant generally would receive treatment until such time as he was fit to proceed with the revocation proceeding. Since a defendant under the Illinois procedures could not evade the revocation process merely by asserting unfitness, we find unpersuasive the Pierce court’s rationale for denying a parolee a competency determination prior to the commencement of the revocation process. More importantly, we conclude the availability of a fitness hearing prior to revocation of a defendant’s conditional discharge is essential to preserve a defendant’s statutory rights of representation, cross-examination, and confrontation.

Because the trial court in the case at bar erroneously concluded that fitness hearings were inapplicable to conditional release revocation proceedings, we reverse the order of the trial court and remand this cause for a determination of defendant’s fitness.

Reversed and remanded.

SEIDENFELD, P.J., and HOPF, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE G. VANDIVER, Defendant-Appellant.
    First District (4th Division)
    No. 82—3109
    Opinion filed August 23, 1984.
    Rehearing denied September 13, 1984.
    Frazin & Fisher, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Defendant, Ronnie G. Vandiver, was charged by indictment with the murder of Goldie Hibbs. Following a bench trial, defendant was found guilty of murder and was sentenced to 40 years in the Illinois Department of Corrections.

On appeal, defendant claims that (1) the State failed to prove him guilty of murder beyond a reasonable doubt, (2) the trial court abused its discretion by allowing the use of two interpreters for a deaf-mute witness and thereby violated defendant’s sixth amendment right to confront witnesses against him, and (3) the trial court erred in admitting evidence of an aggravated battery to which defendant had pleaded guilty.

We affirm the decision of the trial court.

Facts

Testimony adduced at trial established that on November 14, 1981, defendant was employed as a bouncer at a Cicero, Illinois, tavern called the Hollywood Lounge. After going out for the evening with his aunt and uncle and having a few drinks, he reported for work at 2 a.m., had a few more drinks, played some pool, and talked for a while with the barmaid and the tavern’s owner, Travis Tidwell.

At approximately 5 a.m., while some of the customers in the bar were dancing, an older man named Goldie Hibbs, who had been dancing by himself, bumped into a table, knocked over a glass, and fell to the floor. Hearing the thud, defendant moved around the end of the bar and saw Tidwell help Hibbs to his feet and take him outside through the side door. Defendant followed, along with several other patrons of the bar.

The key witness for the State was Timothy Justice, a 27-year-old deaf-mute, who testified by means of two interpreters. He stated that, as he sat with two women at a table near the back door, he became aware of a commotion as several of the bar’s patrons moved toward the spot where Hibbs had fallen. He then saw defendant and another man drag Hibbs out the door near him. Justice testified that he watched through the door as defendant and the other man beat and kicked Hibbs repeatedly, causing such severe bleeding from his nose that Justice could see blood splattering out of Hibbs’ head and little spots of blood on defendant’s clothing. The two men then dragged Hibbs to the back alley, where defendant continued to kick and beat him. According to Justice, the entire episode lasted approximately one-half hour. Hibbs was later found in a nearby carport, dead from injuries received in the beating.

A second witness for the State, Terry Schroeder, testified that after defendant and Tidwell had taken Hibbs outside, Tidwell returned alone shortly thereafter. Approximately five minutes later, defendant and the other patrons re-entered the tavern. As defendant walked up to the bar, he flexed his muscles, and another man patted him on the back. Both witnesses particularly noted defendant because he was the only person who did not wear a jacket when the crowd went outside. Both clearly saw his clothing, which consisted of blue jeans and a dark tee shirt with a plant design, but Schroeder did not see any blood on defendant after the first fight.

A short time later, defendant was playing pool with a Mexican man, Orlando Cruz, when a fight between them broke out. Defendant struck and kneed Cruz in the face and hit him over the head with a pool cue, causing severe bleeding. Cruz called the police, but defendant slipped out the back door and went home, where he was awakened shortly thereafter by the police and taken to the police station for questioning. The dark tee shirt and blue jeans were subjected to tests for blood and blood type.

Defendant’s version of the incident with Hibbs differed significantly from that of both Justice and Schroeder. His story was corroborated by Schroeder and was not directly contradicted by Justice up to the point at which the victim was taken outside. At that point, defendant testified, Tidwell laid Hibbs down on the grass, but he got up again. Defendant inquired if he wanted a cab; Hibbs said he did not and began walking toward the alley, whereupon defendant went back into the bar. According to defendant, the only fight he had that evening was with Cruz during a game of pool. The only blood found on his clothing matched that of Cruz, not Hibbs.

The only other witness was Dr. Robert Kirchner, deputy medical examiner of Cook County, who testified that Goldie Hibbs’ face and head displayed fractures and abrasions consistent with being struck by a fist, while the fatal wound, a laceration of a major artery to the back of the head, had resulted from Hibbs’ head striking against concrete or being struck with a heavy object. He testified to heavy bleeding from Hibbs’ fractured nose, which was borne out by photographs taken at the scene, and acknowledged that although blood on the assailant’s clothing would be consistent with Hibbs’ wounds, such an occurrence was purely conjectural, and it was just as likely that an assailant’s clothing would show no traces of the victim’s blood.

Following closing argument, the trial court orally presented detailed findings of fact, pronounced defendant guilty of murder, and entered its sentence. Thereafter, defendant filed this appeal.

Opinion

I

Defendant’s first claim on appeal is that the State failed to prove him guilty beyond a reasonable doubt. Specifically, defendant maintains that the amount of alcohol drunk by Timothy Justice, the State’s chief witness, on the night of Goldie Hibbs’ death rendered him an unreliable witness whose credibility was highly overvalued by the trial court. Defendant claims that, instead of providing necessary corroboration of the single eyewitness, all the other evidence in the case tends to negate Justice’s story.

While we agree that there are discrepancies between the details as remembered by the various occurrence witnesses, we do not agree that these discrepancies are of such magnitude to cause us to substitute our judgment for that of the trial court. Differences in the estimates of the duration of the fight, in the location of the door outside of which the fight took place, and the sighting of blood on defendant’s clothing after the first fight were all conflicts in the evidence for the trier of fact to resolve. People v. Rodriquez (1981), 100 Ill. App. 3d 244, 426 N.E.2d 586.

Defendant finds further support for his reasonable doubt argument in Justice’s own testimony concerning the number of drinks he had consumed that evening and his possible bias as a witness for the State, as well as in the long hours of conference Justice had had with the assistant State’s Attorney. We note that the record discloses that on cross-examination defense counsel consistently attempted to increase the number of drinks Justice admitted to consuming at various bars during the evening of November 13-14, while Justice usually admitted to drinking fewer. Phrases such as “another half dozen drinks” or “six, eight, ten” more drinks often were incorporated into defense counsel’s leading questions. Justice repeatedly said he could not remember exactly how many drinks he had had at each bar but consistently maintained that he was not drunk, and the amount of corroborated detail he remembered tends to support his ability to perceive and recall.

Further, the long conferences with the assistant State’s Attorney did not reflect a desperate attempt by the State to bolster Justice’s memory, but rather resulted from the necessity of reviewing his testimony through a sign language interpreter who was more skilled in translating straight English than she was in Justice’s language, American Sign Language (ASL). Finally, although defense counsel questioned Justice at length concerning his possible bias and motive for providing the State with evidence to convict defendant in return for leniency in his own pending case in the same court, he could draw no actual connection, and the trial court found no bias.

Conflicts in evidence are to be resolved by the finder of fact, and a reviewing court will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of a defendant’s guilt. (People v. Rodriquez (1981), 100 Ill. App. 3d 244, 426 N.E.2d 586.) Where a case is tried without a jury, the determination of the credibility of the witnesses and the weight to be given their testimony is for the trial judge, and this court will not substitute its judgment for that of the trial court, who saw and heard the witnesses. (People v. Henson (1963), 29 Ill. 2d 210, 193 N.E.2d 777.) The positive testimony of one credible witness is sufficient for a conviction even though it is contradicted by the defendant. People v. Holt (1962), 25 Ill. 2d 313, 185 N.E.2d 160.

In the instant case, the testimony of Schroeder substantially supported that of Justice in that defendant’s actions upon returning to the bar were consistent with those of a man who has won a fight. Both men testified to a number of the patrons surging out the door of the bar in the wake of defendant and Tidwell and remaining outside for a significant period of time. Although discrepancies appear, “[i]t is rare, indeed, when all details of any related experience will fit as a perfect whole without minor inconsistencies.” (People v. Neukom (1959), 16 Ill. 2d 340, 347, 158 N.E.2d 53, 57.) Even though defendant maintains that Justice was too drunk to remember anything accurately, the fact finder’s evaluation of the' credibility of an individual witness, including one allegedly drunk, was not so unreasonable or improbable as to raise a reasonable doubt of defendant’s guilt. See People v. Neukom (1959), 16 Ill. 2d 340, 347, 158 N.E.2d 53, 57.

The trial judge’s detailed findings of fact amply demonstrate that he carefully weighed all the factors here argued by defendant, including the possible bias of the State’s chief witness, and found them insufficient to destroy his conclusion that Justice was a witness worthy of belief. Accordingly, we affirm the trial court’s finding that defendant was proved guilty beyond a reasonable doubt.

II

The second issue raised by defendant on appeal is the alleged violation of his sixth amendment right to confront witnesses against him, which allegedly occurred when the trial court permitted the use of two interpreters for a deaf-mute witness. After reviewing the testimony of the witness and the extensive voir dire of the two interpreters, we find no error in the dual interpreter system allowed by the trial court.

The basis for defendant’s claim of error was the use of a “chain” of interpreters to transmit questions to and answers from Timothy Justice. Both interpreters were officially approved by the court, and each served a different function. The first interpreter, who was not deaf herself, knew ASL but was far more proficient in translating spoken English into its direct word-by-word sign language equivalent. Although she had gained most of her experience by translating spoken English into standard word-for-word signs for her deaf parents, she had taken some additional training in ASL and was an official court interpreter. The second interpreter was herself deaf and had had such extensive training in ASL that she also served as a teacher of ASL. Although the first interpreter knew some ASL, she was not nearly as strong in that conceptual language as was the second interpreter. Further, Timothy Justice, the deaf-mute witness, was very strong in ASL but did not know direct word-for-word translation of English into signs at all. Therefore, although the second interpreter was able to communicate easily with Justice, her own deafness made it imperative that some efficient method be found to communicate to her the attorneys’ questions and the colloquies between counsel and the court so that she could translate them to Justice.

The first interpreter served that function. She signed to the second interpreter the word-for-word English spoken by the other participants in the trial; the second interpreter converted the words into ASL concepts understandable by Justice, who then signed his responses back to her in ASL, whereupon she verbalized his answers in English.

The problem defendant is here claiming impaired his right to confront the witness arose because Justice’s answers were two steps removed from defense counsel’s questions. At times, the second interpreter repeated or rephrased a question without first informing the court what Justice’s original response had been. When defense counsel objected strongly, she stated that Justice’s answer demonstrated that he had not understood the question so she had rephrased it and asked it again. After being admonished by the court to relay his nonresponsive answer without rephrasing the question, she did so. Nevertheless, defense counsel indicated his frustration at not being able to follow the signed questions and answers and claimed that such an “inexact science” had no place in the courtroom.

While we sympathize with defendant’s frustration, we note that both civil and criminal codes provide for the use of interpreters for non-English-speaking participants in a trial, be they parties or witnesses. (Ill. Rev. Stat. 1983, ch. 110, par. 8—1402; Ill. Rev. Stat. 1983, ch. 38, par. 165—11; see People v. Woodall (1970), 131 Ill. App. 2d 662, 264 N.E.2d 303.) Testimony of a deaf witness may be secured by whatever means are necessary and best adapted to the case, which is a matter within the discretion of the trial court. Harrison v. Thackaberry (1911), 248 Ill. 512, 94 N.E. 172.

“[A] witness’ inability to speak does not *** violate the defendant’s right to cross-examine witnesses so long as [the witness] is able to communicate the facts by other methods and otherwise meets the test of legal competency; i.e., that he can observe, recollect, and appreciate the moral duty to tell the truth.” People v. Spencer (1983), 119 Ill. App. 3d 971, 979, 457 N.E.2d 473, 479.

Cases from other jurisdictions, cited with approval in Spencer, have found no error in allowing testimony of a deaf-mute witness who could communicate through gestures only her brother understood, or a deaf-mute child who was understood only by her teacher because of her youth and inexperience with standard sign language. Therefore, although in the present case the court’s dual interpreter solution to the problem of communicating with a witness was unique, it was neither an abuse of discretion nor a violation of defendant’s right to confront witnesses against him.

Ill

Finally, defendant claims that the State’s detailed questioning of various witnesses concerning the second fight was highly prejudicial and deprived him of a fair trial. We note that both attorneys mentioned the second fight in their opening statements, and defendant did not object when either Justice or Schroeder began to describe that fight. Defendant himself testified to his conviction for aggravated battery for the fight over the pool game, and even during his cross-examination, his counsel made no objection to any questions concerning the second fight until the subject of blood on the pool cue was introduced. Because the issue of blood on defendant’s clothing was a material issue, the judge overruled the objection, and the questioning about the second fight continued without further objection. Under these circumstances, we find that defendant has waived the issue for purposes of review. People v. Fain (1976), 41 Ill. App. 3d 872, 355 N.E.2d 61.

In light of the foregoing analysis, we find no error on the part of the trial court and accordingly affirm defendant’s conviction of murder.

Affirmed.

JOHNSON and ROMITI, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT T. NASEEF, Defendant-Appellee.
    Third District
    No. 3—83—0633
    Opinion filed August 24, 1984.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This case comes to us on the State’s certification that a suppression order of the trial court substantially impairs its ability to prosecute. The relevant order excluded from evidence certain statements of the defendant, Robert T. Naseef. The State argues that the court erred in excluding the defendant’s statements. We affirm.

The defendant was ticketed for driving under the influence of alcohol. (Ill. Rev. Stat. 1983, ch. 951/2, par. 11-501(a).) When the defendant was in the arresting officer’s squad car, the officer, Randy Reagan, requested that the defendant take a breath analysis test. He also informed the defendant of the consequences of refusing to take the test. According to the officer, the defendant declined to consent to the test. The officer then transported the defendant to the police station. According to the officer, as he and the defendant entered the station, he again asked if the defendant wanted to take the breath test. The defendant again stated he did not want to take the test. The defendant and the officer continued to the breath test room.

After sitting briefly in the room, the defendant asked to go to the restroom. In the restroom, Officer Reagan observed the defendant using breath spray. The officer confiscated the spray bottle and told the defendant that if he decided to take the test he could not have anything in his mouth at the time. The defendant then announced that he would submit to the test. The test showed that the defendant’s breath alcohol level was greater than 0.10, at which concentration the Illinois Vehicle Code sets out a presumption that one is under the influence of alcohol. Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.2(b) (3).

Prior to his trial, the defendant filed a motion to suppress the result of the breath analysis test and all of his statements. The court denied the motions. The defendant then filed a motion in limine in which he prayed, inter alia, that the court exclude evidence that he had refused the breath test. Following a hearing on the motion in limine, the court excluded any evidence that the defendant had refused the breath test. The State appeals from that order.

On appeal the State argues first that the defendant’s refusal was admissible under section 11—501.2(c) of the Illinois Vehicle Code. The statute provides that “[i]f a person under arrest refuses to submit to a chemical test under the provisions of Section 11—501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol *** was driving ***.” Ill. Rev. Stat. 1983, ch. 951/2, par. 11-501.2(c).

The State argues that the plain language of the statute provides for admissibility of a refusal and that it makes no exception for a refusal followed by a consent. The State further argues that the defendant’s later consent should go only to the weight to give the prior refusal. Additionally, the State contends that the legislative purpose of the statute was to admit all competent evidence bearing on the question of the defendant’s intoxication. According to the State, the defendant’s statements constitute admissions of guilt and are, therefore, competent evidence which should have been admitted.

Alternatively, the State argues that even if the trial court properly held that an accused’s initial refusal of a breath analysis test is inadmissible when he subsequently consents to take the test, then the defendant here did not consent to take the test. More specifically, the State asserts that the defendant’s uncooperative act of using breath spray so clearly interfered with the objective results of the test that it constituted a refusal.

The defendant argues in response that the legislature intended that a refusal be admitted only in lieu of test results. In the defendant’s view, since he did ultimately consent to take the test, he did not refuse as contemplated by the legislature. Additionally, the defendant points out that Officer Reagan made persistent and repeated attempts to have the defendant take the breath test. He argues, then, that it would be fundamentally unfair to allow the State to present evidence both of the defendant’s initial refusals and of the ultimately acquired test results.

We first address the issue of whether a defendant’s initial refusal of a breath test is admissible under section 11—501.2(c) when the defendant later consents and completes the test. The issue appears to be one of first impression in Illinois.

The foremost consideration of a court’s construing a statute is to give effect to the intent of the legislature. (People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.) In ascertaining the legislative intent, a court of review considers the language used, the evil to be remedied, and the object to be obtained. People v. Dednam (1973), 55 Ill. 2d 565, 304 N.E.2d 627.

The Illinois General Assembly, as part of its program to deter drinkers from driving, enacted an “implied consent” law (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1), to which the instant statute is related. The Illinois implied consent law and its companion provisions are similar to the State statute which the United States Supreme Court upheld in South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916.

The Illinois statutes, like the statute in Neville, declare that any person operating a vehicle on public highways in the State is deemed to have consented to a chemical test for alcohol content in his blood if he is arrested for driving while intoxicated. While a State can force a person suspected of driving while intoxicated to submit to a blood alcohol test under an implied consent statute (South Dakota v. Neville (1983), 459 U.S. 553, 559, 74 L. Ed. 2d 748, 756, 103 S. Ct. 916, 921), under the Illinois statutes, a suspect is allowed to refuse to take a chemical test for intoxication. However, the statutes discourage refusal by providing that if a person under arrest refuses to submit to a test, his refusal shall be admissible in court against him. Ill. Rev. Stat. 1983, ch. 951/2, par. 11-501.2.

The Illinois Vehicle Code’s provision for admission in a criminal proceeding of a defendant’s refusal to submit to a chemical examination for intoxication was added by Public Act 82—311, sec. 1, effective January 1, 1982. Public Act 82—311 also struck the Code’s prior provision that a defendant’s refusal was inadmissible in a criminal proceeding such as the one here. Ill. Rev. Stat. 1981, ch. 951/2, par. 11—501(h).

The legislature enacted the statute in question as part of its continuing effort to curb the public safety threat of drunk drivers. The statute attempted to achieve that end by more readily providing evidence of drunkenness. With the provision in question the legislature not only allowed the criminal trial use of evidence of refusal, it also sought to encourage or to compel affected drivers to submit to chemical tests. As between those two alternatives provided by the statute, the State prefers that a suspect take the test, because the inference of intoxication arising from a positive chemical test is far stronger than that arising from a refusal to take the test. See South Dakota v. Neville (1983), 459 U.S. 553, 74 L. Ed. 2d 748, 103 S. Ct. 916.

Chemical test results are certainly more probative of a defendant’s intoxication than is evidence of a defendant’s refusal to be tested. Furthermore, the State’s interest in having an affected driver submit to a chemical test does not end upon his initially declining to submit. We conclude that the legislature intended to present a driver, as an incentive to submit, with the continuing option to prevent admission of evidence of his refusal to be tested by actually completing a test.

From our examination of the statute in question and the objective sought to be achieved, we conclude that the legislature intended the words “refuses to submit” and “refusal” to refer to instances where a suspect refuses to take a chemical test and does not complete a test. We do not believe that the legislature intended that a “refusal” exist, for purposes of the statute, where a suspect initially declines to take the test but ultimately agrees to take and does complete the test.

We now address the State’s argument that the defendant, by his use of breath spray immediately before taking the test, did not consent to take the breath analysis examination. The State relies on People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459, in which the defendant initially refused, then subsequently decided, to submit to a breath test for intoxication. Following his decision to submit, defendant Schuberth was instructed to blow on the tube leading to the machine for measurement. The defendant sucked rather than blew on the tube, and no readings were obtained from the test attempts. The Second District held that the defendant’s verbal consent together with his physical conduct constituted a refusal to submit to a breath test for purposes of the Illinois implied consent law.

Schuberth is distinguishable from the instant case. This defendant’s “non-cooperation” did not rise to the level of defendant Schuberth’s. The record includes no evidence that prior to his use of the spray the defendant had been instructed not to use a product such as breath spray. Further, the defendant apparently complied with all of the instructions he received from the officers regarding the test. Most importantly, this defendant did complete a test that yielded readings on his blood alcohol level. We note that the State offers no support for its assertion that the defendant’s use of the spray interfered with the objective results of the breath analysis test. We will not presume such a fact. Based on the record, we do not find that the defendant’s use of breath spray prior to completing the breath analysis test constituted a refusal for purposes of the instant statute.

Lastly, we address the point raised in the State’s reply brief. The State there requests this court to hold that the defendant’s statements of refusal may be admitted in rebuttal if the defendant argues at trial that his use of breath spray tainted the breathalyzer results. It would be improper for us to so hold since there is no actual controversy. “A court will not declare the rights of parties on a state of facts which has not arisen and which may never arise or on a matter which is future, contingent, and uncertain.” Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098.

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

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE STAMOS

text:
    FRED A. RICHMAN et al., Plaintiffs-Appellants, v. THE CHICAGO BEARS FOOTBALL CLUB, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—2188
    Opinion filed August 28, 1984.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Howard A. London, of counsel), for appellants.
    Kirkland & Ellis, of Chicago (John T. Hickey, Jr., and John W. Roberts, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs, purchasers of Chicago Bears (Bears) season tickets for the strike-shortened 1982 football season, brought this action to recover prejudgment interest and interest earned by the Bears from the time of the cancellation of four Bears home games to the time the purchase price of plaintiffs’ tickets to the games was refunded to them. The trial court granted the Bears’ motion for summary judgment and dismissed plaintiffs’ amended complaint with prejudice. Plaintiffs appeal.

Prior to the commencement of the 1982 football season, plaintiffs purchased and paid for season tickets entitling them to admission to all Bears home games played during the 1982 season. Four of the home games, scheduled for October 3, October 10, October 24, and November 7, were not played because of the players’ strike. These four games were not officially cancelled until the strike was settled on November 16, 1982, and one of the games was rescheduled and played in Tampa, Florida, on January 3, 1983.

By letter dated November 26, 1982, the Bears offered season ticket holders the option of receiving either a refund of $12.50 per ticket for each of the four cancelled games, or a credit toward the purchase of 1983 season tickets. Plaintiffs chose the latter option. The Bears began paying refunds to those season ticket holders who requested them on or about December 10, 1982.

Plaintiffs filed suit on behalf of themselves and all Bears season ticket holders to recover income earned and prejudgment interest on the funds held by the Bears. The Bears answered, denying any unjust enrichment, and moved for summary judgment. The trial court granted the Bears’ motion for summary judgment and dismissed the amended complaint with prejudice on the grounds that there was no legal basis for awarding prejudgment interest and that the Bears had not wrongfully withheld plaintiffs’ refunds and therefore had not been unjustly enriched. Plaintiffs appeal from this judgment.

Plaintiffs argue on appeal that they are entitled either to damages for lost use of their money or to restitution measured by the income earned by the Bears as a result of their wrongful retention of plaintiffs’ funds. Plaintiffs contend that the Bears profited at plaintiffs’ expense by retaining and using money that should have been refunded to plaintiffs, and therefore that the Bears were unjustly enriched and should be required to make restitution.

In support of their contention, plaintiffs cite sections 150 and 156 of the Restatement of Restitution, arguing that under these provisions plaintiffs were entitled to a refund when the games were can-celled. Plaintiffs also contend that the Bears’ failure to present any scheduled game would have constituted a breach of contract but for the doctrine of impracticability, which plaintiffs argue had the dual effect of discharging the Bears’ obligations under the ticket agreement while entitling plaintiffs to an immediate refund of their ticket payments. Therefore, plaintiffs claim, the Bears should be required to make restitution for any profits they might have made from use of plaintiffs’ money.

An examination of the documents contained in the record does not reveal that the Bears were under any contractual obligation to their season ticket holders to present games on dates certain. Because plaintiffs’ season tickets were purchased before the Bears’ 1982-83 schedule had been determined, there could have been no such agreement. Additionally, any obligation on the part of the Bears to present games would not have been discharged by the players’ strike, but rather would have been suspended until settlement of the strike. (See Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 64 N.E.2d 477, cert, denied (1946), 327 U.S. 804, 90 L. Ed. 1029, 66 S. Ct. 968.) In any event, the record shows that when the four home games finally were officially cancelled on November 16, the day of the settlement of the players’ strike, the Bears promptly offered and began paying refunds to their season ticket holders. In light of these facts, we cannot say that the trial court erred in its determination that the Bears did not wrongfully withhold plaintiffs’ funds.

Plaintiffs also argue that, instead of promptly refunding the price of plaintiffs’ tickets after the failure of each scheduled game to be played, the Bears improperly retained the funds for at least seven weeks after the date of the first scheduled game, thereby breaching their duty to make restitution and entitling plaintiffs to receive prejudgment interest calculated from the time of the breach. Plaintiffs concede that there is no statutory authority in Illinois for an award of prejudgment interest, but argue that a court may award interest if it finds that such an award is warranted by equitable considerations, citing City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 413 N.E.2d 394, Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 449 N.E.2d 65, Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, and Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 399 N.E.2d 1295.

These decisions reaffirm the rule that interest is not recoverable absent a statute or agreement providing for it (Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 546, 449 N.E.2d 65; City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 576, 413 N.E.2d 394), and that, while equity may award prejudgment interest even though not within the precise terms of the statute (82 Ill. 2d 571, 579), such an award must be justified by unique factual circumstances. The cases cited by plaintiffs show that the few instances in which the courts have found that such circumstances exist are not comparable with the instant case. In each of the cases cited by plaintiffs, the defendant was an office of State or municipal government, and the circumstances giving rise to the award of interest involved illegal or unconstitutional actions by the defendants which adversely affected the plaintiffs’ rights. In Allphin, the city “withheld an inappropriate amount of tax, in violation of the law.” (82 Ill. 2d 571, 580.) In Shell Oil Co., excess taxes were collected and held in a protest fund for over a year, and the court approved an award of interest because there was statutory authority for the payment of interest income from a protest fund to a taxpayer (Shell Oil Co. v. Department of Revenue (1983), 95 Ill. 2d 541, 548) and because the State had withheld funds which the taxpayer “had no legal duty to pay as taxes” (95 Ill. 2d 541, 547) and which at no time became the. property of the State (95 Ill. 2d 541, 548). Similarly, in Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 362, the court approved an award of interest because without it there would have been an unconstitutional taking of private property without just compensation. Finley v. Finley (1980), 81 Ill. 2d 317, 332, 410 N.E.2d 12, also cited by plaintiffs, deals with postjudgment interest on child-support payments and is inapplicable here.

In a factual situation such as that of the instant case, involving a contractual relationship between nongovernmental parties and lacking the unique factual circumstances of the cases cited by plaintiffs, the Illinois courts have held that an award of interest not provided for by statute or by agreement requires an element of bad conduct. (Steward v. Yoder (1980), 86 Ill. App. 3d 223, 226, 408 N.E.2d 55.) The record in the instant case contains no evidence of bad conduct on the part of the Bears. The uncontested affidavit of the Bears’ treasurer, attached to their answer to plaintiffs’ amended complaint, shows that the four strike-delayed home games were not officially can-celled until November 16, 1982, and that the Bears offered full refunds 10 days later. It does not appear from these facts that the Bears are guilty of wrongfully withholding plaintiffs’ funds. Therefore, there is no basis for an award of prejudgment interest, and we find that the trial court correctly granted the Bears’ motion for summary judgment.

The decision of the circuit court is affirmed.

Affirmed.

DOWNING and BERLIN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    ERICA DOUGLAS, a Minor, by Linda Kelly, her Mother and Next Friend, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Defendant-Appellant.
    First District (5th Division)
    No. 83—1654
    Opinion filed August 24, 1984.

      Kralovec, Marquard, Doyle & Gibbons, of Chicago (Nancy Jo Arnold, of counsel), for appellant.
    David S. Pochis, Ltd. & Alan D. Katz, Ltd., of Chicago (Alan D. Katz, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Minor plaintiff, Erica Douglas, by her mother, brought suit to recover damages for personal injuries which she sustained on March 22, 1979, when struck by a window pane in a mobile school unit owned and operated by defendant, the board of education of the city of Chicago. By plaintiff’s election, the case proceeded to trial on a theory of res ipsa loquitur. After hearing evidence, the trial court entered a directed verdict for plaintiff as to liability. The case was then submitted to the jury on the issue of damages only, and an award in the amount of $30,000 was returned. On appeal, defendant argues that the trial court (a) failed to make the necessary findings for a case under res ipsa loquitur, (b) erred in directing a verdict for plaintiff as to liability, (c) erred in barring evidence concerning one of the requisite elements for such a case, and (d) erred in excluding the testimony of two witnesses tendered by defendant. We affirm.

Plaintiff called James Dwyer, principal of the school, as an adverse witness at trial. Dwyer testified that at the time of plaintiff’s injury, the school was comprised of a central building and 12 mobile units or “temporaries,” which were from 10 to 20 years old. The units were built from a partition-type material which Dwyer described as “a thin sheet of steel, part of a cheap lath board,” and each contained three rectangular glass windows 24 to 36 inches, encased in metal. Dwyer identified the incident report bearing his signature.

According to the report, plaintiff was sitting in her seat just below the window in the mobile unit when a 27- by 34-inch metal encased frame of glass fell from a height of approximately 56 to 58 inches on top of her. Plaintiff received a long, deep cut on her forehead and a number of minor cuts on her face from the broken glass. The report states that the occurrence was witnessed by plaintiff’s teacher, Beth Smith, with whom Dwyer conferred when he arrived within five minutes of the occurrence. Dwyer noticed broken glass and blood on the floor. The metal casing was still attached to some of the broken glass.

Plaintiff testified, confirming Dwyer’s testimony that she was sitting at her desk when the whole pane of glass became detached from the mobile unit and fell, striking her in the head.

After plaintiff rested, Dwyer testified for the defendant. He stated that at the time of the occurrence, only part of the playground surrounding the mobile units had been fenced in. He also testified, over plaintiff’s objections, that he had received repeated reports of vandalism to the mobile units taking place after school hours, reports of break-ins and of bottles and other debris found in the area. During a conference outside the presence of the jury, the trial court ruled that he would allow evidence of vandalism only to the extent that it was directly related to the mobile unit in which plaintiff was injured, and only insofar as it was restricted to a short period of time prior to plaintiff’s injury. Dwyer then continued his testimony, stating that he could not recall reports of vandalism relating specifically to the subject mobile unit. He did state, over plaintiff’s objections, that several of the mobile unit windows had been covered with mesh to prevent break-ins. At the close of testimony, the court ruled that all of Dwyer’s testimony which had been objected to be stricken. After hearing arguments of counsel, the court then granted plaintiff’s motion for a directed verdict as to liability.

Defendant first argues that the trial court erred in holding that the doctrine of res ipsa loquitur applied to plaintiff’s case and in directing a verdict in plaintiff’s favor on liability without specifically finding that the requisite elements for a case under the doctrine were present, and also erred in barring defendant’s evidence relating to one such element.

The doctrine of res ipsa loquitur allows proof of negligence by circumstantial evidence in cases where the direct evidence concerning the cause of injury is primarily within the knowledge and control of the defendant. Whether the doctrine applies in a given case is a question of law to be decided by the court. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449, 207 N.E.2d 305.) The party seeking to avail himself of the doctrine must demonstrate that he was injured (1) in an occurrence that would not have occurred in the absence of negligence, (2) by an instrumentality or agency under the management or control of defendant, and (3) under circumstances indicating the injury was not due- to any voluntary act or neglect on the part of the one claiming the doctrine. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 272, 443 N.E.2d 569.) Like any other proof, however, proof under the doctrine may be explained or rebutted by the party opposing it, and whether the circumstantial evidence of negligence under res ipsa loquitur has been overcome by defendant’s proof is a question of fact to be determined after weighing the evidence. Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 449-50.

We believe that each of the necessary elements was present in the case now before us. As stated by the court in Metz:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care.” Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 448-49.

In determining the requisite degree of control in a case under res ipsa loquitur, relevant authorities have also rejected the application of a rigid standard and recognized that “exclusive control” is not necessary to the inference. Rather, the control that must be established is “that necessary to support an inference that the defendant was negligent,” the key question being “whether the probable cause is one which defendant was under a duty to the plaintiff to anticipate or guard against.” (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274, citing Restatement (Second) of Torts, Explanatory Notes sec. 328 D, comment G (1965).) In the instant case, it is undisputed that an entire window pane encased in its metal frame fell from the wall, striking plaintiff, a school child who was sitting at her desk. Under these circumstances, we find that the trial court did not err in applying doctrine of res ipsa loquitur. Nor do we find merit in defendant’s claim that the trial court erred in restricting its proffered evidence of vandalism on the subject premises. In response to repeated objections by plaintiff’s counsel, the court restricted defendant’s evidence to such incidents of vandalism occurring specifically to the mobile unit in which plaintiff was injured and within a reasonable proximity to the occurrence. Defendant argues that its evidence should not have been so restricted, because it was relevant not only to the issue of causation but also to rebut the presumption of its exclusive control over the injury-causing instrumentality.

As previously noted, the exclusivity of defendant’s control over the subject premises is not an absolute prerequisite, but merely one way of proving his responsibility. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274.) Further, our review of the record shows that the testimony which defendant sought to introduce was overly broad and of a speculative nature, and was therefore properly excluded. Despite numerous opportunities afforded by the trial court, defendant failed to set forth evidence of any act of vandalism related to the particular mobile unit or the window pane involved in the occurrence, and failed to proffer any evidence, either physical or circumstantial, which would rebut the presumption of its exclusive control over the subject unit. We therefore find that the trial court’s granting of a directed verdict as to liability was proper. See Wimberley v. Material Service Corp. (1973), 12 Ill. App. 3d 1051, 299 N.E.2d 425, appeal denied (1973), 54 Ill. 2d 596.

Finally, defendant argues that the trial court improperly excluded the testimony of two of the school’s engineers as a sanction for a perceived failure to answer discovery requests. As defendant admits, the record is unclear as to the facts preceding the trial court’s ruling which defendant now contests. We need not reach the appropriateness of the sanction, however, because we find that defendant was afforded several opportunities to bring in the subject witnesses for the purpose of making an offer of proof but chose not to do so. Defendant claims that such a formal offer was not necessary because the trial court was aware that these witnesses would have testified as to inspections that they had made of the subject premises. The record does not contain, however, any representations as to the nature of the purported inspections, their frequency or timeliness, or what said inspections did or .did not disclose with respect to the falling out of the subject window. Nor does the record contain any written statements, notes of interviews, court reporter statements or any other materials on which an offer of proof could be based. The trial court thus offered defendant’s counsel the right to make an offer of proof with its witnesses in court, subject to cross-examination, specifically reserving the right to change its own ruling with regard to the testimony. Defendant did not represent that its witnesses were unavailable to come to court, but simply chose not to bring them in for the purpose of an offer of proof. Under these circumstances, defendant should not be heard to complain on appeal. See Volvo of America Corp. v. Gibson (1980), 83 Ill. App. 3d 487, 404 N.E.2d 406.

Based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.