author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID JACQUITH, Defendant-Appellant.
    First District (2nd Division)
    No. 83—2063
    Opinion filed November 27, 1984.

      Thomas M. Breen, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Thomas D. Bilyk, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

David Jacquith, defendant, was charged by complaint with driving under the combined influence of alcohol and drugs (Ill. Rev. Stat. 1982, ch. 951/2, par. 11 — -501(a)(4)), improper display of a license plate, improper lane change and disorderly conduct. During a jury trial, at the close of the State’s case in chief, the trial court directed a finding of not guilty of disorderly conduct. The jury found defendant guilty of the remaining charges. Defendant was fined $550. Following sentencing, the trial court entered a finding of probable cause on the State’s affidavit in which it was alleged that defendant refused to take a breathalyzer test. (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1(c).) Defendant appeals his conviction for driving under the combined influence of alcohol and drugs, contending (1) that the State failed to prove beyond a reasonable doubt that defendant was guilty of driving while under the combined influence of alcohol and drugs; (2) that the defendant was denied a fair trial by (a) the admission of speculative evidence regarding drugs and their effects; (b) testimony implying that he chose to remain silent following his arrest; (c) the trial court’s restricting evidence intended to show bias on the part of the arresting officer; and (d) the trial court’s restrictions concerning evidence of blood and urine tests performed at Lutheran General Hospital after defendant left the police station following his arrest. Defendant further contends on appeal that the trial court erred in entering a finding of “probable cause.”

Prior to trial, the State offered two motions in limine. The first requested the trial court to preclude defendant from introducing evidence of a pending Federal civil rights suit filed by defendant and Val G. Jacquith, defendant’s father, against certain officers of the Glen-view police department, unless it was first established that the officers involved in defendant’s arrest had prior knowledge of the civil rights suit and of defendant’s involvement in that suit. The second motion in limine requested the trial court to preclude defendant from introducing evidence of blood tests performed by private physicians subsequent to defendant’s arrest. The trial court reserved ruling on the motions.

At trial, during opening statements to the jury, defense counsel referred to “a previous lawsuit” as well as to a “complete blood test” taken at “Lutheran General Hospital.” Objections to both remarks were sustained.

Glenview police officer William Golden testified: on March 13, 1983, at approximately 3:45 p.m., a Corvette with a “novelty license plate” passed his police car and made four subsequent lane changes. Officer Golden curbed the Corvette and requested defendant’s driver’s license. He had a conversation with defendant and instructed him to remain in his car. While sitting in his squad car, writing a ticket, Golden saw defendant “stumble” out of the Corvette and approach the squad car. Golden smelled alcohol on defendant’s breath and, noticing defendant’s slurred speech, asked him to perform balance, walking, and finger-to-nose tests. Golden had been trained at the police academy in “recognizing drunk drivers” and in administering standard performance tests. Golden described the defendant as unable to balance, staggering, and unable to touch his right finger to his nose. Office Golden arrested defendant, read him his Miranda rights and his “breathalyzer rights.” Defendant stated he would not take any tests.

On direct examination, Officer Golden stated that when he asked defendant if he was under the influence of alcoholic beverages, the defendant “used his right to remain silent.” Defense counsel’s objection was sustained and the jury instructed to disregard the testimony. On cross-examination, Officer Golden clarified his previous testimony, relating that when he asked the defendant if he was under the influence of alcoholic beverages the defendant replied, “No comment.”

Officer Golden had been a police officer for years, and, on the basis of defendant’s hyperactivity, his general appearance, and his speech, Golden concluded that defendant was under the influence of “something” in addition to alcohol. Because of this, Golden requested that defendant submit to a blood analysis which, according to Golden, defendant refused.

Village of Golf police officer Joseph Gilbrick testified to the following: at the time of defendant’s arrest, Gilbrick was driving in his private automobile with a friend, Melissa Stahl, when he saw Officer Golden stop defendant. At the time, defendant was out of his car, waving his arms frantically. When Golden “flagged him down” Gilbrick pulled in behind Golden’s squad car to assist with the arrest. Defendant’s shirt was hanging out, he appeared “messy,” and had a “strong odor of alcohol on his breath.” When Gilbrick asked defendant if he had had any alcoholic beverages, the defendant replied, “a couple.” Defendant made several comments with reference to an alleged Federal court order “prohibiting his arrest.” It was Gilbrick’s opinion, based on his training at the police academy in the areas of drug and alcohol abuse, as well as in making over 100 arrests for “driving under the influence,” that the defendant was under the influence of both alcohol and drugs at the time of his arrest.

The State’s final witness, Melissa Stahl, described defendant’s actions and stated, in contradiction to the police officers, that both officers had to assist defendant in getting out of his car. Initially she denied knowing Officer Golden. On cross-examination, however, she stated she had attended Golden’s wedding.

Defendant testified to the following: no tests were offered to him at the police station following his arrest, he did not refuse the breathalyzer test, and he, in fact, requested any tests which would prove he was not under the influence of alcohol or drugs at the time of his arrest.

Defendant had not consumed any alcoholic beverages or used any drugs on the day of his arrest. He had brunch with his parents at a restaurant called “Great Godfrey Daniel’s” on March 13, 1983, and then visited “his father’s office.” Later he had lunch with his parents at a restaurant called “Hasty Tasty,” after which they visited “Computer Land.” At approximately 3:15 p.m. he left home and picked up his friend Craig Mirsky.

Defendant stated that at the time of his traffic stop his car displayed a University of Kentucky license plate, but that he had his Illinois license plate inside his front windshield. It was his opinion that he performed the field tests without any difficulty. He stated that he had an ulcer and consequently did not drink alcoholic beverages..

Craig Mirsky testified as follows: he was with defendant at the time of his arrest. Defendant had picked him up at his home to go shopping for shoes. Defendant was not under the influence of alcohol or drugs. Defendant had no problem accomplishing the performance of field tests. He heard Officer Golden ask defendant, “Do you think you’re so rich you can sue everybody?”

Defendant’s parents testified as follows: They had gone to brunch with the defendant on the day in question and were with defendant all that day until he left to pick up Craig Mirsky. Defendant was not under the influence of alcohol or drugs. Mrs. Jacquith testified that the defendant did not drink alcoholic beverages because he had an ulcer. Mr. Jacquith stated that while at the police station his son requested to take “any and all” alcohol-related tests.

Defendant further testified that after leaving the police station with his parents he went directly to Lutheran General Hospital in Park Ridge to have blood and urine tests. Although defendant was not allowed to introduce the tests themselves into evidence, Dr. Paul Bolton testified that he worked in the hospital emergency room on March 13, 1983, when he met defendant at approximately 7:30 p.m. In his opinion, defendant was not drunk or under the influence of drugs at that time. He drew blood and took a urine sample from defendant. The trial court sustained the State’s objection to Dr. Bolton’s testimony regarding the result of tests performed by other hospital personnel. Bolton testified that he had training both in medical school and during his hospital residency on the effects of drugs in the human body. In explaining his conclusion that defendant was not under the influence of drugs when he observed him at the hospital, Dr. Bolton described the effects of marijuana, amphetamines and valium. He also discussed the various tests used to detect the presence of drugs in the body.

Dr. Bernard Block testified as follows: He was the defendant’s physician. He had reviewed the pathology reports of blood and urine tests performed on defendant at Lutheran General Hospital on March 13, 1983. It was Dr. Block’s opinion that the defendant was not under the influence of drugs when the tests were performed. He read a list of drugs for which the defendant had been tested: amobarbital, aphro-barbital, barbital, butabarbital, diazepam, and escolorinnol. On cross-examination, Dr. Block testified that phenobarbital and valium are sometimes prescribed for ulcers. Although defendant suffered an ulcer condition about one year earlier, Dr. Block did not recall if he had ever prescribed any medication for defendant’s ulcer.

In rebuttal, the State called Dr. Joerg N. Pirl, a toxicologist employed by the Illinois Department of Health, who testified regarding the tests which could be performed in order to detect the presence of alcohol or drugs in a person’s blood or urine. In Dr. Pirl’s opinion, the tests performed on defendant at Lutheran General were “incomplete.” Over the objection of defense counsel, Dr. Pirl answered several-hypothetical questions by the State regarding the effects on an individual of combinations of alcohol and barbiturates.

Following closing arguments, the jury found defendant guilty of driving under the influence of alcohol and drugs, improper lane change and improper display of a license plate. On July 22, 1983, defendant was fined $500 for driving under the influence of alcohol and drugs, and $25 each for improper display of a license plate and improper lane change. At the same hearing, the trial court entered a finding of “probable cause” with regard to the State’s affidavit that defendant had refused to take a breathalyzer test. Defendant’s motion for a new trial was denied. Defendant appeals his conviction for driving under the influence of alcohol and drugs, and the finding of probable cause by the trial court.

I

Since we find it dispositive of the first two issues raised on appeal, we address initially defendant’s contention that the State failed to prove beyond a reasonable doubt that he was guilty of driving while under the combined influence of alcohol and a drug or drugs. The relevant section of the Illinois Vehicle Code provides:

“Sec. 11 — 501. Driving while under the influence of alcohol, other drug or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
1. The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 105.2;
2. Under the influence of alcohol;
3. Under the influence of any other drug or combination of drugs to a degree which renders such person incapable of safely driving; or
4. Under the combined influence of alcohol and any other drug or drugs to a degree which renders such person incapable of safely driving.” (Emphasis added.) Ill. Rev. Stat. 1982, ch. 95V2, par. ll-501(a).

Defendant was charged under section 11 — 501(a)(4). This section of the statute clearly requires that to convict, the State must prove that defendant was under the influence of both alcohol and another drug or drugs.

Courts are often confronted with the task of weighing conflicting testimony where a person is alleged to be under the influence of alcohol. It is well established that even a layman is competent to testify regarding intoxication from alcohol, since such observations are within the competence of all adults of normal experience. (People v. Bobczyk (1951), 343 Ill. App. 504, 99 N.E.2d 567.) The experience of a police officer and the number of times he has arrested persons charged with driving “under the influence” are important factors in determining the sufficiency of his testimony. (People v. Wheatley (1972), 4 Ill. App. 3d 1088, 283 N.E.2d 279.) The testimony of an arresting officer alone if qualified can be enough to sustain a conviction for driving while under the influence of intoxicating liquor. People v. Fowler (1981), 98 Ill. App. 3d 202, 423 N.E.2d 1356.

In People v. Greenberg (1967), 79 Ill. App. 2d 288, 224 N.E.2d 577, where defendant’s conviction for driving under the influence of alcohol was upheld on review, the State’s case consisted of the testimony of a single police officer who described the defendant’s appearance as follows: strong odor of alcohol, pale face, mussed clothing, bloodshot eyes, unsure balance and walking, slurred speech and erratic behavior. The police officer testified that he had arrested over 40 intoxicated motorists and had observed “thousands” of people whom he believed to be under the influence of alcohol. The appellate court affirmed defendant’s conviction, despite the testimony of a physician that defendant had previously exhibited symptoms of a cerebral concussion which a layman might confuse with the symptoms of intoxication.

Where testimonial evidence is conflicting it is within the province of the jury to determine credibility. (Hamming v. Murphy (1980), 83 Ill. App. 3d 1130, 404 N.E.2d 1026.) Where the guilt or innocence of the defendant depends upon the credibility of conflicting testimony, the finding of the trial court or jury should not be disturbed on review. (People v. Cool (1962), 26 Ill. 2d 255, 186 N.E.2d 254.) Where, however, the record clearly reflects reasonable doubt, it is the duty of the appellate court to reverse. People v. Flores (1976), 41 Ill. App. 3d 96, 353 N.E.2d 131.

Our review of the record in the instant case suggests that if defendant had been charged with only a violation of section 11— 501(a)(2), the testimony of the two police officers, in view of their training and experience, would have been sufficient to support a conviction for driving under the influence of alcohol. The fact that defendant offered conflicting testimony would have presented merely an issue of credibility to be determined by the jury.

Since, however, defendant was here charged specifically under section 11 — 501(a)(4), which declares it a crime to drive under the “combined influence of alcohol and other drug or drugs,” the State was -required to prove beyond a reasonable doubt not only that at the time of his traffic stop defendant was under the influence of alcohol but that he was under the influence of another drug as well.

Although we are unable to find Illinois cases addressing the issue of proving intoxication by drugs while driving, other jurisdictions have dealt with the degree of evidence necessary to sustain such a conviction. In People v. Smith (1967), 253 Cal. App. 2d 711, 61 Cal. Rptr. 557, the court rejected defendant’s contention on appeal that the trial court had erred in allowing a police officer to offer his opinion with regard to whether defendant was under the influence of drugs when arrested. The court stated that scientific evidence is not always necessary to establish whether a defendant is under the influence of a drug; as in other criminal matters, circumstantial evidence can at times support a conviction. The testimony of a police officer who has been qualified by the court as an expert may well be sufficient.

In Smith, the police officer whose testimony was found sufficient to sustain defendant’s conviction was a narcotics officer, had 21k years’ experience, had made between 500 and 600 narcotics-related arrests, and had examined narcotics addicts and observed them in all stages of addiction and debilitation. In addition, he testified that he had previously had 21/2 years of “premedical training.” The officer testified that the defendant had been driving eight miles an hour, causing cars to “back up” behind him, his vehicle was weaving, he was slumped over the wheel, he had slurred speech, and he was drowsy almost to the point of passing out. After stopping the defendant, the officer observed that scar tissue “followed the veins up the defendant’s arms,” his pupils were “pin-pointed” and did not expand or contract when exposed to light, and that, although the defendant claimed to have been drinking, there was no odor of alcohol on his breath.

In Smithart v. State (Tex. Crim. App. 1974), 503 S.W.2d 283, the Texas Appellate Court held that the opinion testimony of a police officer with only a few months of experience was insufficient to support defendant’s conviction for driving while under the influence of drugs.

Other Texas cases involving more experienced police officers have found them competent to testify whether a defendant was under the influence of drugs. In Hudson v. State (Tex. Crim. App. 1971), 453 S.W.2d 147, the court found that an officer who had “many years of experience” and had often dealt with people under the influence of drugs was qualified to testify that defendant was under the influence of drugs.

In the California case and in both Texas cases, the courts weighed the experience of the officers to determine whether they were competent to testify as to a defendant’s being under the influence of drugs when arrested. The principal standard appears to be the officers’ experience with drug users.

In the case at bar, neither Officer Golden nor Officer Gilbrick testified that they had previous experience with narcotics users, nor that they had made any arrests for driving under the influence of drugs. Officer Gilbrick stated only that he had made over 100 arrests for “driving under the influence,” and that he had been trained at the police academy in “the areas of alcohol and drugs.” Officer Golden, who claimed no experience with drug arrests, testified that he believed, based on defendant’s behavior and appearance, that defendant was under the influence of alcohol and “some other influence.” This is not the level of expertise that has been held necessary in those jurisdictions which have addressed the issue of competent evidence to sustain a conviction for driving under the influence of drugs. Yet our record reflects that this was the only evidence here offered by the State.

In our opinion, the testimony of the police officers in the instant case was insufficient to support a finding that the defendant operated a motor vehicle while under the influence of drugs. As heretofore stated, where reasonable doubt is evident, it is the duty of the appellate court to reverse a jury verdict. (See People v. Flores (1976), 41 Ill. App. 3d 96, 353 N.E.2d 131.) Thus, defendant’s conviction for violating section 11 — 501(a)(4) of the Illinois Vehicle Code (Ill. Rev. Stat. 1982, ch. 95V2, par. 11 — 501(a)(4)) must be reversed.

II

Defendant also contends that the trial court erred in entering a finding of probable cause on the State’s affidavit in which it was alleged that defendant refused to undergo a breathalyzer test as required by section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. par. 11 — 501.1). Defendant premises this argument on his claim that “no hearing” was held in this matter; instead, the trial court merely entered its finding of probable cause at the conclusion of defendant’s sentencing hearing.

Our review of the record reveals the following: At the close of defendant’s sentencing hearing, the prosecution answered “ready” on the implied consent hearing. The defendant’s attorney replied, “I thought we had the implied consent [hearing] along with the trial.” The court stated the hearing had not taken place. The prosecution stated it would stipulate to the events at trial. The following colloquy ensued:

“MR. SCHOEN [defendant’s attorney]: If you want a hearing on it, we will.
THE COURT: To dispose of it, we have to have a hearing.
MR. SCHOEN: It was my understanding that we had that evidence, and that the hearing was going in with the trial. That is my understanding.
THE STATE: Judge, I will be very glad — .
THE COURT: If that is your understanding?
THE STATE: I will be glad to stipulate to the evidence at trial. That is fine with me.
THE COURT: Anybody wish to add anything?
MR. SCHOEN: No.
* * *
THE STATE: Other than the facts, Judge, we will enter the form as part of the State’s evidence.
MR. SCHOEN: What form is that counsel?
THE STATE: That is the implied consent form. That is part of the court file.
THE COURT: Just part of the court file. Finding of probable cause.”

From this colloquy it is evident that defense counsel did not request, nor was he denied, a separate hearing on probable cause. Defendant is consequently estopped from assigning this as error on appeal. (People v. Mireles (1979), 79 Ill. App. 3d 173, 398 N.E.2d 150.) Moreover, parties often stipulate that the same evidence offered at trial be considered in a subsequent implied consent hearing. See, e.g., People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.

The issues to be determined at an implied consent hearing are:

“[W]hether the person was placed under arrest for an offense as defined under Section 11 — 501 of this Code ***; whether the arresting officer had reasonable grounds to believe that such person was driving *** under the influence of alcohol, other drug, or combination thereof; and whether such person refused to submit and complete the test or tests upon the request of the law enforcement officer.” Ill. Rev. Stat. 1982, ch. 95V2, par. 11 — 501.1(c).

An implied consent hearing is civil in nature. (People v. Malloy (1979), 76 Ill. 2d 513, 395 N.E.2d 381.) Therefore the State must prove by only a preponderance of evidence that the arrest was made, that the officer had reasonable grounds to make the arrest, and that the defendant refused the test when offered. (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) The fact that defendant has been found not guilty of the underlying offense does not preclude a subsequent finding of probable cause. People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878.

Whether the State has met its burden of proof is a question of fact to be determined by the trial judge. The findings of the trier of fact in this regard will not be overturned on appeal unless such findings are palpably against the manifest weight of the evidence. (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 347 N.E.2d 278.) A judicial finding of fact is not against the manifest weight of the evidence unless from the record an opposite conclusion is clearly evident.

In the instant cause, the evidence adduced at trial adequately supports the trial court’s finding of probable cause, Officer Golden stopped defendant, who allegedly was driving erratically, the evidence established that Golden had reasonable grounds to believe that defendant was driving in a manner or condition prohibited by section 11 — 501, and, according to Golden, defendant refused to take the breathalyzer test. Although defendant contended that he was refused an opportunity to take the test, the trial court found the State’s testimony more credible. From our review of the facts in this case, an opposite conclusion is not “clearly evident.”

For the reasons hereinabove set forth, the defendant’s conviction of driving under the combined influence of alcohol and drugs is reversed, and the trial court’s finding of probable cause that the defendant refused to take a breathalyzer test is affirmed.

Reversed in part; affirmed in part.

HARTMAN, P.J., and STAMOS, J., concur.

      Defendant raises no argument with regard to his other convictions.

      He admitted on cross-examination, however, that he drank carbonated beverages against his doctor’s advice.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    NATIONAL BISCUIT, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Henry E. Mosterd, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—385WC
    Opinion filed October 9, 1984.
    Rehearing denied November 30, 1984.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (Francis J. Lynch, of counsel), for appellant.
    J. Michael Madda, of Chicago (Richard E. Aleksy, of counsel), for appel-lee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Henry E. Mosterd claimed benefits under the Workers’ Compensation Act for injury to his back received while employed at National Biscuit, Inc. (Nabisco). The arbitrator granted payment for medical services and for 2113/t weeks’ temporary total disability. The Industrial Commission affirmed the arbitrator’s decision, but modified it by granting benefits for permanent total disability. The circuit court confirmed. Nabisco appeals, contending that the Commission failed properly to weigh the evidence but rather substituted the arbitrator’s factual determination for its own and that the Commission’s finding that the injury is permanent is against the manifest weight of the evidence.

We conclude that the Industrial Commission did not make an independent evaluation of the evidence and that this failure is dispositive of the case on appeal.

The 53-year-old claimant claimed he was injured on August 30, 1977, when he attempted to move aside a steel platform while at work in the Nabisco plant. Briefly, the evidence shows that claimant has a history of back injuries, having injured his back at Nabisco in 1953 and in 1958, and in car accidents in 1964 and in 1966. He injured his back a third time at work in 1965, for which he received a workers’ compensation settlement representing 71/2% loss of the use of each leg. The accident which is the subject of this claim was the fourth injury claimant received on the job. A treating physician diagnosed claimant’s condition as large defects at L4-L5 with a smaller defect at L3-L4, and spondylosis of the lumbosacral spine with a degenerative disc disease. The doctor further testified that the injury of August 30, 1977, aggravated a previously existing state of lumbosacral spondylosis. In response to a description of claimant’s occupation, the doctor stated that he could do work, but none that required heavy lifting, acute back bending, or protracted walking, standing or straining. Claimant testified that he had been unable to return to work since the accident.

• The principal evidentiary issue was whether claimant had in fact done heavy work on his house and in his yard, particularly during 1978 and a three- or four-week period in 1979. There was a substantial conflict in the testimony. Witnesses for Nabisco testified to having seen claimant doing heavy work, while claimant’s witnesses testified that he had not.

The arbitrator’s decision makes no reference to the conflict in the testimony in finding that the claimant is entitled to temporary total disability for 211% weeks. Inferentially, he must have accepted the testimony of the claimant’s witnesses.

The Commission’s decision refers to the conflicting evidence on the question of whether the claimant had done heavy work around the house after his claimed injury and states:

“All of the testimony presented was conflicting; the Arbitrator heard, and saw the witnesses and was in the best position to determine their credibility. While the Commission may or may not have reached the same conclusion, the Arbitrator resolved the conflict in favor of Petitioner and Petitioner’s son, who both testified Petitioner had not performed the work.” (Emphasis added.)

Our supreme court has most recently stated:

“[I]t is the peculiar province of the Industrial Commission to determine the credibility of witnesses, to weigh the testimony, and to determine the weight to be given to- the evidence. Regardless of whether or not the Commission hears testimony in addition to that heard by the arbitrator, it exercises original jurisdiction and is in no way bound by the arbitrator’s findings. Seiber v. Industrial Com. (1980), 82 Ill. 2d 87, 97; Orr v. Industrial Com. (1970), 47 Ill. 2d 242, 243.” Berry v. Industrial Com. (1984), 99 Ill. 2d 401, 405.

The Commission has original, not appellate, jurisdiction to review evidence taken before the arbitrator and to consider the evidence properly presented to it. (Gray v. Industrial Com. (1979), 76 Ill. 2d 552, 558.) This review is neither a trial de novo nor simply a review of the record, but it is sui generis. (Gray v. Industrial Com. (1979), 76 Ill. 2d 552, 558.) The Commission is not bound by the arbitrator’s findings; it must consider all evidence presented to it and to the arbitrator in reaching a decision. (Gray v. Industrial Com. (1979), 76 Ill. 2d 552, 559; Leason v. Industrial Com. (1973), 55 Ill. 2d 486, 493.) While the arbitrator’s findings are not without legal significance, and are entitled to some consideration, the Commission must resolve disputed questions of fact and draw reasonable inferences from them. Newgard v. Industrial Com. (1974), 58 Ill. 2d 164, 169-70.

While the Commission titled a part of its decision “Findings of Fact and Conclusions of Law,” except as to the ultimate conclusion that claimant is totally and permanently disabled as of August 30, 1977, the Commission has made no findings of law and fact.

Claimant argues that, in the absence of evidence to the contrary, it is presumed that the Commission properly performed its duties. (Cf. Thomas v. Industrial Com. (1980), 78 Ill. 2d 327, 336.) However, the clear language of the decision of the Commission destroys any possible presumption. Claimant in his brief suggests that we should imply additional language so that the statement would read, “We may or may not have reached the same conclusion, depending on the facts and circumstances of the case and our view of the evidence.” There is no basis, however, for adding this language, and even with the additional language it would still be clear that the Commission has failed to conduct its own independent evaluation of the evidence.

The judgment of the circuit court of Cook County confirming the decision of the Commission is therefore reversed. The decision of the Industrial Commission awarding the claimant permanent total disability and medical expenses is vacated and the cause remanded to the Commission for further action consistent with this opinion.

Circuit court reversed; award vacated; cause remanded to the Commission.

BARRY, KASSERMAN, McNAMARA, and WEBBER, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE TOWN OF OTTAWA et al., Appellants, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Third District
    No. 3—84—0158
    Opinion filed November 30, 1984.
    Rehearing denied January 8, 1985.

      Timothy J. Creedon III, of Hoffman, Mueller & Creedon, and Robert Eschbach, of Eschbach & Howarter, both of Ottawa, for appellants.
    James I. Rubin and Ellen M. Babbitt, both of Butler, Rubin, Newcomer, Saltarelli & Boyd, of Chicago, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The town of Ottawa and the village of Naplate appeal from an order of the Pollution Control Board affirming the La Salle County Board’s decision to grant siting approval to a new regional pollution control facility in La Salle County.

On March 15, 1983, States Land Improvement Corporation (States Land) applied to the La Salle County Board for approval of a proposed site for a nonhazardous sanitary landfill. As the site was to be located in unincorporated La Salle County, such approval is required by section 39(c) of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039(c)). Section 39.2 of the Act conditions such approval on six separate criteria which must be met by one seeking approval from the local hearing authority. The only criterion in question in this appeal is whether “the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected ***.” Ill. Rev. Stat. 1983, ch. HV-k, par. 1039.2(a)(ii).

Pursuant to States Land’s application, the 29-member county board appointed nine of its members to act as a hearing committee in this matter. Rules of procedure were adopted for the carrying out of these hearings. The hearing committee would ultimately make recommendations on which the full board would act. Nine separate factual hearings were held. States Land’s principal opposition came from the town of Ottawa and the village of Naplate. Counsel for these municipalities focused primarily on the health, safety and welfare aspects of the proposed design of the landfill. After all testimony was taken, counsel for States Land, the municipalities and all other interested parties were invited to submit proposed resolutions for the board to adopt. States Land submitted a proposed resolution approving the site with various conditions attached. The municipalities’ resolution proposed to reject the site as not meeting several criteria. On August 11, the hearing committee voted 8-1 to adopt the resolution submitted by States Land. Committee member Franzetti, the sole dissenter, proposed the municipalities’ resolution as a minority report to the full board.

The full board met in public session on August 15 to consider the matter. By a 20-7 vote, the adoption of the minority report as the findings of the board was rejected. Member Franzetti then sought to introduce amendments to the board’s findings which would add new conditions to the siting approval. Ultimately, two new conditions were added (Conditions M and N).

On September 12, 1983, a regular meeting of the board was scheduled for 1 p.m. That morning, States Land’s president, Paul De-Groot, telephoned James Hettel, chairman of the county board. De-Groot asked Hettel if he could place some material on the desks of the board members that day. Hettel replied that this could be done. It appears that a DeGroot employee gave a number of copies of a four-page letter to Hettel’s secretary. Hettel had his secretary distribute the letter to the members’ desks. The letter, authored by States Land’s attorney, informed the board that States Land objected to the addition of Conditions M and N, as well as the payment of a $12,500 application fee. Attached was a petition for review to the Pollution Control Board. The plain import of the letter was that if the resolution as originally approved by the hearing officers was not reinstated, an appeal to the Pollution Control Board would then be taken. After a conversation with the county board’s attorney, Hettel instructed his secretary to inform all other attorneys of the receipt of the letter and petition. Counsel for the municipalities eventually arrived at the meeting before discussions on this matter had occurred. At the meeting, the board voted to suspend its procedural rule against reconsidera-' tion. This was done by greater than a two-thirds majority. The board also voted to delete Conditions M and N from the siting approval. These final actions are the principal basis of this appeal.

The statutory basis for the municipalities’ position is section 40.1(a) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. IIIV2, par. 1040.1(a)). This section requires, inter alia, that the Pollution Control Board be satisfied that the procedures used by the local siting authority were in accordance with fundamental fairness. The municipalities argue that the Pollution Control Board should have reversed based on certain allegedly unfair occurrences.

The municipalities charge that the circulation of States Land’s resolution to all county board members at a time considerably before its own resolution was circulated constituted a denial of fundamental fairness. The procedural rule stated only that the applicant and interveners were to file with the hearing officers “a suggested form of Resolution that the party proposes to be adopted by the County Board.” The rules are silent as to time limits and means of circulation. At any rate, the record is clear that the hearing committee had all relevant proposals before it on August 11. The record further reveals that the municipalities’ case was forcefully presented by a dissenter on the hearing committee, as well as by strong public support at the August 15 meeting. It is difficult to imagine how this disparate access was fundamentally unfair or that the municipalities were substantially prejudiced thereby. E & E Hauling, Inc. v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555.

The municipalities next contend that the decision by the county board on September 12 to delete Conditions M and N violated fundamental fairness. The rules adopted by the county board did not allow for reconsideration. The municipalities argue that since the proceedings were adjudicatory, it would not be fair to amend procedural rules once the proceedings had been concluded. The Pollution Control Board characterized the addition or deletion of conditions as legislative, thus concluding that an amendment to the procedures was permissible under the board's rule-making powers.

The characterization of these proceedings does not fit comfortably into any particular niche. They are adjudicatory in the sense that the county board takes evidence on the disputed issue of whether the six statutory criteria are satisfied. However, they are legislative in the sense that imposition or deletion of conditions is “[the] promulgation] [of] policy-type rules or standards” United States v. Florida East Coast Ry. Co. (1973), 410 U.S. 224, 245, 35 L. Ed. 2d 223, 239, 93 S. Ct. 810, 821.

The Pollution Control Board cited Monsanto Co. v. Pollution Control Board (1977), 67 Ill. 2d 276, 367 N.E.2d 684, as authority for its characterization of the proceedings as rule making. There, the court held that the decision to grant a variance from an environmental regulation was quasi-adjudicatory, but the imposition of conditions on the variance was legislative. However, the situation of the county board here is substantially dissimilar to that of the EPA in the Monsanto case. Here, the imposition of Conditions M and N was nothing more than a finding that absent these conditions, the proposed landfill could not satisfy the health, safety and welfare criterion. Similarly, the deletion of these conditions amounted to a finding upon reconsideration that the criterion in question could be met without Conditions M and N. At the least, therefore, the proceedings in question should be characterized as quasi-adjudicatory.

Given this characterization, the question becomes whether fundamental fairness was violated by the allowance of reconsideration. We believe that it was not. It was known at all times that the county board proceeded under Robert’s Rules of Order, which allows suspension of procedural rules by a two-thirds vote. Such a vote was taken with counsel for the municipalities present, but not objecting on the grounds cited above. More importantly, administrative bodies should be free to reconsider their decisions. This is part and parcel of the preference for exhaustion of remedies at the administrative level. (Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 326 N.E.3d 737.) As the Pollution Control Board itself has recognized, “the prejudice to the public by an incorrect decision *** transcends any possible prejudice” to the opponents. (Waste Management of Illinois, Inc. v. Board of Supervisors (1982), Ill. PCB 82—55, rev’d on other grounds (1983), 117 Ill. App. 3d 673.) While not approving of the “ambush” tactics perpetrated by counsel for States Land here, the allowance of reconsideration to delete the Conditions M and N was not so fundamentally unfair as to cause reversible error.

The municipalities’ last procedural objection is that the communications and actions of States Land constituted ex parte contacts with the county board. The contacts in question were the brief telephone call from DeGroot to Hettel and the distribution of the letter from States Land’s attorney without prior notice to opposing counsel. An ex parte contact is one which takes place without notice and outside the record between one in a decision-making role and a party before it. The Pollution Control Board found that no ex parte contacts had occurred. We disagree. While the telephone call was clearly inconsequential, it appears from the record that States Land succeeded in transmitting influential documents without prior notice to opposing parties of either the fact of this communication or the matters discussed therein. Only a belated attempt to notify opposing counsel secured their presence at the September 12 meeting.

However, the occurrence of an ex parte contact does not mandate automatic reversal. The leading case in Illinois is E & E Hauling v. Pollution Control Board (1983), 116 Ill. App. 3d 586, 451 N.E.2d 555. Citing PATCO v. Federal Labor Relations Authority (D.C. Cir. 1982), 685 F.2d 547, the Second District adopted the following standard:

“[A] court must consider whether, as a result of improper ex parte communications, the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment of the agency unfair, either to an innocent party or to the public interest that the agency was obliged to protect. In making this determination, a number of considerations may be relevant: the gravity of the ex parte communications; whether the contacts may have influenced the agency’s ultimate decision; whether the party making the improper contacts benefitted from the agency’s ultimate decision; whether the contents of the communications were unknown to opposing parties, who therefore had no opportunity to respond; and whether vacation of the agency’s decision and remand for new proceedings would serve a useful purpose.” PATCO v. Federal Labor Authority (D.C. Cir. 1982), 685 F.2d 547, 564-65.

A weighing of all relevant factors indicates that the contacts in question do not justify reversal. While the contacts were not grave, at least in the sense of duration or that any novel arguments were set forth, they were clearly unknown to the other parties at the most critical relevant time. They also seemed to influence the agency’s ultimate decision, which ran to States Land’s benefit. However, there was at least some opportunity to respond, although hastily afforded. Given the closeness of the question, we are inevitably drawn to the final factor. The record reveals that it is doubtful that a useful purpose would be served by remand. The county board, both on its own and through the hearing committee, was fully apprised of all relevant arguments. After going into executive session, the September 12 meeting produced a 20-7 majority in favor of deleting the conditions. There is little to suggest that the overwhelming support would be dissipated by further proceedings. Thus, we decline to reverse on procedural grounds.

Finally, the municipalities urge that the finding that the health, safety and welfare criterion was satisfied was against the manifest weight of the evidence. As the Pollution Control Board itself found, the argument that there was a danger to public water supplies from leachate migrating from the landfill was unfounded. Numerous highly qualified experts testified as to the hydrogeology of the proposed site. Although it is not abundantly clear from the record that such damage is impossible, it is clearly not against the manifest weight of the evidence to find that the water supply was adequately protected. Furthermore, the record reveals that the bases for the contentions of unfitness are questionable at best. The lay witnesses who testified as to the existence of buried railroad ties on the site were not particularly credible. The principal expert for the municipalities, Dr. Zimmerman, made only a brief visit to the site. No independent geological tests were taken. The record reveals that both States Land’s and the county’s independent experts were far better informed as to the potential health, safety and welfare aspects of the site. Accordingly, we affirm the Pollution Control Board’s finding that the county board’s decision on this criterion was not against the manifest weight of the evidence.

Finally, we agree with the municipalities that the Pollution Control Board should bear the expense of the report of the proceedings before its hearing officer. The relevant portion of the Environmental Protection Act mandates stenographic recording of proceedings before the Board. Since no specific statutory language places the burden of providing transcription on the seeker of review, the Board is without authority to refuse to pay for the transcript of the record of proceedings. Zurek v. Cook County Police & Corrections Merit Board (1976), 42 Ill. App. 3d 1044, 356 N.E.2d 1079.

Accordingly, we affirm the decision of the Pollution Control Board, but order the Board to reimburse the municipalities for the fee of the reporter.

Affirmed as modified.

SCOTT and STOUDER, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DWAYNE DORSEY, Defendant-Appellee.
    First District (1st Division)
    No. 83—2279
    Opinion filed November 26, 1984.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

The defendant, Dwayne Dorsey, was charged by information with one count of rape, one count of aggravated kidnaping, and one count of robbery. (Ill. Rev. Stat. 1981, ch. 38, pars. 11 — 1, 10 — 2(a)(3), 18— 1(a).) Before trial, defendant filed a motion in limine requesting that, during the State’s opening statement and the State’s direct examination, no reference be made to the victim’s nonidentification of the defendant in both a photographic and lineup confrontation. The court granted defendant’s motion. At trial, defendant objected that the State’s opening statement violated the court’s order in limine, and the court granted defendant’s motion for a mistrial. This appeal followed.

The State raises the following issues: that the trial judge erred as a matter of law by granting the motion in limine and by granting the motion for mistrial.

The record discloses that, prior to trial, defendant filed a motion in limine on July 28, 1983, requesting that no reference be made to the victim’s nonidentification of the defendant in the photographic confrontation made on April 26, 1982, and lineup made on June 16, 1982. The State informed the court that evidence of the police investigation would be presented in the testimony of the victim and the testimony of the police officers who conducted the investigation. The State argued that the evidence was relevant and material because it went to the issue of identification. The State also argued that exclusion of this evidence would foreclose any police testimony into the investigation of this case. After hearing this argument, the court granted defendant’s motion. The court instructed the State to refrain from introducing any evidence relating to the victim’s viewing photographs on April 26, 1982, and the victim’s viewing a lineup on June 16, 1982. In addition, the court ruled that this evidence could be introduced in rebuttal testimony if that door was opened. Under the court’s instructions, the victim could testify that she viewed photographs and that she attended a lineup. The court also decided to allow the State to say the victim had “looked at photographs and looked at a lineup” in their opening statement.

The jury was impaneled and trial was commenced. The State began their opening statement by alluding to the victim’s attack. After the prosecutor stated that “the victim and the police toured the area after the rape looking for the defendant, and then questioned a suspect who was not the rapist,” the defendant objected and made a motion for mistrial. The motion was granted.

The State then offered a certificate of impairment with an offer of proof. The State claimed that: On April 21, 1982, at approximately 1 a.m., a person later identified as the victim was walking home on Drexel Boulevard in Chicago. The defendant grabbed the victim and took her to an abandoned garage, where he forcibly raped her. After the rape, the victim went out to the street and waved down a police car. She gave the police a description of her assailant and toured the area with the police looking for her assailant. They stopped and questioned a suspect. However, the victim said the suspect was not her assailant.

On April 26, 1982, the victim was brought to the Chicago police station at Area 1 Headquarters, where she looked at photograph books of suspects. The defendant’s picture was not among the photographs. On June 16, 1982, the victim viewed a lineup at Area 1 Headquarters. The defendant was not in this lineup. The victim did not identify anyone as her attacker in either the lineup or the photo array. The defendant was arrested on December 7, 1982, after the victim had seen him on the street and had called the police informing them that she might know where her assailant could be found.

In its brief, the State has combined the issues relating to the order in limine and the order for mistrial. For purposes of this appeal, these issues will be discussed separately.

The first issue presented is whether the State may seek an appeal from the pretrial order in limine. Illinois Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)) permits the State to appeal from orders the substantive effect of which results in dismissing the indictment or suppressing evidence. (People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501.) In Young, Rule 604(a)(1) was applied to a pretrial order. In addition, Rule 604(a)(1) has been extended to midtrial rulings where the State determines there has been a substantial impairment to their case. (People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509.) Defendant claims that the State waived its right to appeal by filing an untimely notice of appeal. Defendant argues that neither Young nor Flatt suggests that the State is permitted to proceed to trial after an in limine order is entered and to appeal from such order during trial. If the State felt aggrieved or prejudiced when the in limine order was entered, the State should have sought appropriate relief. The State took no action and elected to proceed to trial. The State now maintains that the subsequent action in the motion for mistrial presents the right to appeal from the in limine order. The State’s position assumes the right to forego or delay taking any action to seek immediate review prior to trial from a claimed adverse in limine ruling and to interrupt a trial and seek review. We are not aware of any cases sanctioning such practice, and we reject the State’s position in this regard. Accordingly, the merits of the trial court’s motion in limine order will not be considered. People v. Flatt (1980), 82 Ill. 2d 250, 412 N.E.2d 509; People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501; People v. Rogers (1984), 123 Ill. App. 3d 780, 463 N.E.2d 211.

The next issue is whether the order granting the mistrial was proper. The State’s position is that the trial court’s order was one of “suppressing evidence” within the meaning of Supreme Court Rule 604(a)(1). The State contends that the evidence concerning the lineup and photo array is relevant to establish the reliability of the victim’s subsequent identification of the defendant on the street and to establish what the police were doing with their investigation of the incident.

The State cites People v. Mormon (1981), 97 Ill. App. 3d 556, 422 N.E.2d 1065, People v. Brown (1967), 86 Ill. App. 2d 163, 229 N.E.2d 922, and People v. Bolden (1982), 58 N.Y.2d 741, 445 N.E.2d 198, to support their contention. In Mormon, the court considered that the victim made no previous identifications at any of the photographic showings relevant to show that her record for reliability was good and sufficient to support a conviction. However, Mormon does not address the issue of the admissibility of negative evidence in the context of identification. In Brown and Bolden, the defendant opened the door on cross-examination of the rape victim to the admission of negative evidence. Since the instant case was declared a mistrial before any witness examination, both Brown and Bolden can be distinguished.

The defendant cites People v. Johnson (1983), 113 Ill. App. 3d 367, 447 N.E.2d 502, as authority for a contrary position. In Johnson, the State appealed from a trial court’s order granting the defendant’s motion to exclude certain testimony except as rebuttal evidence in the event the defendant testified. The appellate court held that the trial court’s order, based wholly on evidentiary grounds and specifically on the relevancy of the testimony on the State’s case-in-chief, was not appealable. (People v. Johnson (1983), 113 Ill. App. 3d 367, 447 N.E.2d 502.) The court, in Johnson, stated:

“*** that a midtrial order ‘suppressing evidence,’ as that term is used in Supreme Court Rule 604(a)(1), is one in which the evidence is suppressed and denied admittance because it was illegally obtained in violation of a constitutional or statutory right, or even though lawfully obtained, its admittance is to be denied because of a statutory prohibition or the violation of a court rule or some other grounds besides the recognized rules concerning the admission of evidence. To hold otherwise and to consider any objection to the admission of evidence on the grounds of relevancy or materiality or hearsay or other such evidentiary basis as a motion to suppress under Supreme Court Rule 604 would, under the mandate of People v. Flatt (1980), 82 Ill. 2d 250, prohibit the trial court from even considering the merits of any objection to the admission of evidence during the course of the trial except where there is also a contention that the evidence was illegally obtained.” (People v. Johnson (1983), 113 Ill. App. 3d 367, 373-74, 447 N.E.2d 502, 506. See also People v. Phipps (1980), 83 Ill. 2d 87, 413 N.E.2d 1277.)

This distinction between “suppressing evidence” and exclusion evidence has been followed in People v. Rogers (1984), 123 Ill. App. 3d 780, 463 N.E.2d 211. In Rogers, the State argued that the trial court’s exclusion of evidence because of a discovery violation amounted to an unauthorized midtrial suppression order. However, the appeal was dismissed on the basis that the order excluding evidence related to discovery. In the instant case, it appears that the trial court’s order relates to the admissibility of evidence based wholly on evidentiary grounds as enunciated in People v. Johnson, and not on suppressing evidence within the meaning of Supreme Court Rule 604(a)(1). We therefore reject the State’s attempt to treat this ruling as “suppressing” evidence, and dismiss the appeal. People v. Benda (1984), 124 Ill. App. 3d 950, 464 N.E.2d 1268.

A question remains as to whether further prosecution is prevented by double jeopardy principles. Defendant maintains that retrial is barred by double jeopardy because the State provoked a mistrial. The test for determining if double jeopardy has attached was stated in Oregon v. Kennedy (1982), 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083. The United States Supreme Court held that:

“But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” (Oregon v. Kennedy (1982), 456 U.S. 667, 679, 72 L. Ed. 2d 416, 427, 102 S. Ct. 2083, 2091.)

The Supreme Court in Oregon also held that intent may be inferred from objective facts. This court has recognized this concept in People v. Rogers (1984), 123 Ill. App. 3d 780, 463 N.E.2d 211. In Rogers, the court stated, “Where a mistrial has been declared on defendant’s motion or is attributable in some manner to the defendant, reprosecution is not barred and the defendant cannot, by his or her own act, avoid the original jeopardy and then assert it as a bar to subsequent proceedings.” (People v. Rogers (1984), 123 Ill. 2d 780, 787, 463 N.E.2d 211, 216.) The court in Rogers further states: “If defendant has either initiated or consented to the declaration of a mistrial, even where the alleged error necessitating the mistrial was the prosecutor’s or the judge’s, reprosecution may be permissible absent prosecutorial or judi-rial overreaching or bad faith.” People v. Rogers (1984), 123 Ill. App. 3d 780, 787, 463 N.E.2d 211, 216; see People v. Palmisano (1984), 124 Ill. App. 3d 770, 464 N.E.2d 1147.

The State contends that the mention of a nonidentification at the time of the occurrence did not intentionally violate the pretrial order. In response, defendant claims he was “taken by surprise” and that the prosecutor’s opening statement violated the in limine order. However, defendant has not established any prosecutorial or judicial overreaching. Therefore, double jeopardy does not prohibit- reprosecution for the same offenses.

The appeal from the orders of the circuit court of Cook County is dismissed and the cause is remanded with directions to proceed in accordance with the views expressed herein.

Appeal dismissed. Cause remanded, with directions.

McGLOON and O’CONNOR, JJ., concur.


author: JUSTICE MILLER

text:
    MICHAEL REED, Plaintiff-Appellant, v. NORTHWESTERN PUBLISHING CO., d/b/a The Commercial News et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0714
    Opinion filed November 30, 1984.

      Richard B. Opsahl, of Rantoul, for appellant.
    Thomas B. Meyer, of Acton, Acton, Meyer & Smith, of Danville, for ap-pellees.
   JUSTICE MILLER

delivered the opinion of the court:

The plaintiff, Michael Reed, brought this action for libel against the Northwestern Publishing Company, publisher of The Commercial News, a newspaper in Danville, and against two of its reporters, Bob Wilson and Carl Young. Wilson and Young are the authors of allegedly defamatory articles concerning the plaintiff which appeared in The Commercial News. The trial court granted the defendants’ motion for summary judgment and later denied the plaintiff’s motion to vacate that order. This appeal followed.

The newspaper articles at issue stemmed from a grand jury investigation of burglaries and thefts allegedly committed by several members of the Danville police department during 1970 and 1971. Testimony on this subject was presented to grand juries in several sessions in 1977 and 1978, and a seven-page report summarizing the testimony and the current grand jury’s findings was released to the public on December 20, 1978. The next day, The Commercial News published two articles about the investigation and the grand jury report, and other articles on the subject appeared later.

The grand jury report referred to the plaintiff by name twice; he had been a member of the Danville police department during the period under investigation, and he was a member again at the time the articles were published. The dispute here arises from the interpretation that the grand jury report received in the pages of The Commercial News. The plaintiff contends that the report referred to him in a neutral manner but that the newspaper articles portrayed him instead as a participant in the misconduct. In ruling on the defendants’ motion for summary judgment the trial court held that the plaintiff, as a police officer, was a public official for purposes of defamation law. Therefore, the court applied to this action the constitutional rule announced in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726, which “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The principal question raised in this appeal is whether summary judgment was properly granted on the issue of actual malice.

I

According to the grand jury report, 34 unsolved burglaries were committed in Danville in 1970 and 1971; evidence was presented connecting about half the burglaries to members of the police department. The burglaries occurred at night, and the targets were commercial establishments; money, liquor, and other items of merchandise were taken. Former and current members of the Danville police department were among the witnesses who testified before the grand juries. Two former officers, Richard Massey and Jack Roland, who were granted immunity from prosecution in exchange for their testimony, admitted that they had taken part in a number of the burglaries. They described several of the occurrences and named other officers who had participated.

The plaintiff’s name was mentioned in the grand jury report twice. The first reference came in the summary of Officer Joseph Miller’s testimony; Miller, at the time of his appearance before the grand jury, was a member of the department, as he had been during 1970 and 1971. At some point during those years Miller began to suspect that police misconduct was occurring, and he and several other officers eventually took part in an internal investigation of the problem. Officer Miller described a police burglary of the local American Legion hall, an occurrence in which Massey and Roland admitted their involvement. The grand jury report said:

“Officer Miller described the Legion burglary of December 21, 1970 and how Massey had fortuitously discovered an open window, failed to call it in, met with Officer Hill and returned to the Legion, leaving Miller posted outside. Miller testified that Massey had previously questioned him concerning whether upon finding a place broken into, would he accept something taken by Officers[.] Massey also asked him what his favorite liquor was; to which Miller replied, ‘Scotch’. After all Officers who initially responded; including: Calvin Norman, Jerry Hill, Jack Roland and Michael Reed, had left, the owner was called to check out the premises. When they left the scene, Officer Miller found a bottle of Scotch under his side of the seat in their squad car.”

The other reference to the plaintiff in the grand jury report came in the summary of the testimony of Lieutenant Edwin McGee, who like Miller had taken part in the police department’s internal investigation. The grand jury report said:

“Lt. Edwin McGee testified as to his responding to the August 25, 1971 burglary at Harding’s Pharmacy where he found Officers Hill and Reed at the scene with Roland and Massey showing up later. His investigation of the scene, specifically including the watch case and shaver display showed nothing to be missing or disturbed, however, when he read the report submitted the next day by Hill, it showed watches, shavers and radios to have been taken along with a large amount of cash.”

On December 21, 1978, the day after the grand jury report was made public, The Commercial News published photographs and two articles relating to the investigation and report. The caption “Current Officers Implicated in Report” appeared under photographs of the plaintiff and of two other members of the Danville police department, Robert Testa and Arnold Yanders, and of a county deputy sheriff, Kenneth Cox. A caption appearing below that said, “Four current law officers — Arnold Yanders, Robert Testa, Michael Reed and Kenneth Cox — were named by grand jury witnesses as joining in at least one or a few of the reported break-ins by policemen.” In an article bearing the headline “Grand Jury Describes Police Burglary Setup,” defendant Bob Wilson referred to the involvement of Roland and Massey in several burglaries and then wrote:

“Massey, Roland and several other witnesses at the grand jury sessions identified other officers involved, too.
They included former policemen Jerry Hill and Richard Moody and current officers Sgt. Robert Testa, patrolman Arnold Yanders, patrolman Mike Reed, and former patrolman Kenneth Cox, who is now a county deputy.”

The article went on to say, “Lt. Edwin McGee also testified about the Harding Pharmacy burglary, saying he came on the scene and found Hill, Roland, Massey and Officer Mike Reed inside but without their flashlights turned on.” An article accompanying this one bore the headline “3 Deny Roles in Burglaries.” It quoted the plaintiff as saying, “I didn’t know a thing about [the police burglaries] and I can’t say anything about it.” This article also said, “Grand jury testimony summarized in the report said Reed was spotted inside a pharmacy with two officers who committed several burglaries.”

On December 23, 1978, The Commercial News published another article by Wilson on the investigation. In summarizing the grand jury’s report, the article identified the plaintiff as one of three officers currently on the Danville police force who had been named as participants in the misconduct. The article also repeated the plaintiff’s denial of any involvement in the burglaries.

Later articles written by defendant Carl Young referred to the presence on the Danville police force of three current officers who had been mentioned in the grand jury report as participants in the misconduct. The officers were not named in these articles, which appeared in The Commercial News on March 6, 10, 28, and 29, 1979. One of these articles concerned a statement made by Jack Roland that his grand jury testimony had not implicated any current officers; the other articles concerned the city’s decision, as part of its investigation of the matter, to have polygraph tests administered to a total of seven current police officers.

The plaintiff commenced this action on December 20, 1979; his second amended complaint comprises six counts, which are based on the articles in the six editions that we have described of The Commercial News. In each count the plaintiff alleged that the various statements concerning his alleged participation in the burglaries and thefts were false and that the defendants had acted with the actual malice required by the New York Times rule, that is, that the defendants had written and published the articles with knowledge of their falsity or with reckless disregard of their truth or falsity. The defendants moved for summary judgment, and the parties submitted a number of affidavits and depositions. The trial judge granted the motion, concluding that there were no facts that would support a finding of actual malice.

II

As a preliminary matter, the plaintiff questions whether he should be considered a public official as that term is understood in the law of defamation. The plaintiff argues that his rank on the police force was not sufficiently high to qualify him as a public official under the standard expressed in Rosenblatt v. Baer (1966), 383 U.S. 75, 85, 15 L. Ed. 2d 597, 605, 86 S. Ct. 669, 676, where the court said that “the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” The plaintiff also relies on the suggestion made in Hutchinson v. Proxmire (1979), 443 U.S. 111, 119 n.8, 61 L. Ed. 2d 411, 421 n.8, 99 S. Ct. 2675, 2680 n.8, that not every public employee should be deemed a public official.

The United States Supreme Court has not had the occasion to decide whether a police officer of relatively low rank is a public official for purposes of defamation law. The plaintiff acknowledges, however, that Illinois courts have considered this question and have determined that a police patrolman is a public official. (See Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060, 444 N.E.2d 1100; Angelo v. Brenner (1980), 84 Ill. App. 3d 594, 406 N.E.2d 38.) Coursey was a decision by the Illinois Supreme Court, which we therefore are bound to follow. (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1.) In Coursey the court held that a city patrolman, though lowest in rank in the police department’s hierarchy, was a public official within the scope of the New York Times rule. A similar result must obtain here.

Ill

As part of his cause of action, the plaintiff must prove that the allegedly defamatory statements were false. (Garrison v. Louisiana (1964), 379 U.S. 64, 74, 13 L. Ed. 2d 125, 132, 85 S. Ct. 209, 215.) In this connection, the defendants argue that the articles accurately summarized and interpreted the grand jury report and therefore were within the scope of the fair comment privilege. Because the alleged libel occurred in the way the newspaper construed a written document, our inquiry may be confined to the report itself in determining the accuracy of the statements and whether the privilege applies.

Under the fair comment privilege, “ 'The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.’ ” (Catalano v. Pechous (1980), 83 Ill. 2d 146, 168, 419 N.E.2d 350, 360, quoting Restatement (Second) of Torts, sec. 611 (1977).) An accurate report is nonactionable unless the sole purpose in publishing it is to harm the person defamed by it. Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 214 N.E.2d 746.

The statements at issue here, purporting to relate the contents of the grand jury report, asserted that the plaintiff had been identified as a participant in the police misconduct that occurred in 1970 and 1971. The articles published in December 1978 mentioned the plaintiff by name as one of three police officers currently serving on the Danville police force who had been implicated in the investigation; articles published in March 1979, though without mentioning the plaintiff by name, repeated the reference to three current officers who had been implicated in the grand jury report. In contrast to those statements, the report itself contained only neutral references to the plaintiff. None of the witnesses mentioned him as a participant in any of the burglaries or thefts. His presence at two of the businesses that were broken into did not establish, imply, or suggest his complicity in the misconduct. We conclude that in describing the plaintiff — first by name and later by reference — as a participant in the burglaries and thefts, the defendants were not accurately reporting the contents of the grand jury report. Those statements were false summaries of the report and therefore were not within the fair comment privilege. Catalano v. Pechous (1980), 83 Ill. 2d 146, 419 N.E.2d 350; Restatement (Second) of Torts sec. 611, comment a (1977).

IV

We turn next to the question whether the trial court properly entered summary judgment on the issue of actual malice. As we have said, in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-80, 11 L. Ed. 2d 686, 706, 84 S. Ct. 710, 726, the Supreme Court held, as a matter of Federal constitutional law applicable to the States, that the first amendment to the United States Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Because the statements at issue here said that the plaintiff had been implicated in criminal conduct, they pertained to his fitness for office and therefore related to his official conduct. Monitor Patriot Co. v. Roy (1971), 401 U.S. 265, 277, 28 L. Ed. 2d 35, 44, 91 S. Ct. 621, 628.

The falsity of a statement does not by itself establish or state a cause of action for defamation; some degree of fault must be shown, even when the subject of the defamatory falsehood is a private individual as opposed to a public official or public figure. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 347, 41 L. Ed. 2d 789, 809, 94 S. Ct. 2997, 3010; see Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 162, 18 L. Ed. 2d 1094, 1115, 87 S. Ct. 1975, 1995 (Warren, C.J., concurring in result) (extending the New York Times rule to persons who do not hold public office but may be considered public figures).) As the malice requirement of the New York Times rule makes clear, a public official must prove that the false statement was the result of more than mere negligence. In attempting to define what is meant by the reckless disregard of the truth or falsity of a statement, the Supreme Court has said:

“[Rjeckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” St. Amant v. Thompson (1968), 390 U.S. 727, 731, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1325.

In an action for defamation, summary judgment may be granted for a defendant when the plaintiff’s affidavits, depositions, and pleadings fail to raise a triable issue of fact. (Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837; Weber v. Woods (1975), 31 Ill. App. 3d 122, 334 N.E.2d 857.) In Hutchinson v. Proxmire (1979), 443 U.S. 111, 61 L. Ed. 2d 411, 99 S. Ct. 2675, the Supreme Court questioned a Federal district court’s suggestion that in applying the actual-malice standard of the New York Times case, summary judgment probably was the rule rather than the exception. The Supreme Court commented:

“Considering the nuances of the issues raised here, we are constrained to express some doubt about the so-called ‘rule.’ The proof of ‘actual malice’ calls a defendant’s state of mind into question, [citation], and does not readily lend itself to summary disposition. [Citations.] In the present posture of the case, however, the propriety of dealing with such complex issues by summary judgment is not before us.” Hutchinson v. Proxmire (1979), 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 422 n.9, 99 S. Ct. 2675, 2680 n.9.

With that dictum in mind, we conclude that summary judgment should not have been entered here. The pleadings, affidavits, and depositions before the trial court on the defendants’ motion for summary judgment posed a triable issue of fact on the question of actual malice. We are mindful that at trial actual malice must be established with “convincing clarity.” (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 285-86, 11 L. Ed. 2d 686, 710, 84 S. Ct. 710, 729.) That determination “is not merely a question for the trier of fact” and is subject to independent appellate review, for it is the presence of actual malice under the New York Times standard that deprives a defamatory statement of its constitutional protection. (Bose Corp. v. Consumers Union of United States, Inc. (1984), _ U.S. _, _, 80 L. Ed. 2d 502, 523, 104 S. Ct. 1949, 1965.) Denominating the issue of actual malice, a question of fact may therefore be somewhat incomplete or misleading. See Bose Corp. v. Consumers Union of United States, Inc. (1984), _ U.S. _, _n.6, 80 L. Ed. 2d 502, 510 n.6, 104 S. Ct. 1949, 1954 n.6 (“In holding that there was a material issue of ‘fact’ (a label we use advisedly) on actual malice, the District Court ***”).

The relevant documents may be recounted briefly. In moving for summary judgment the defendants relied, with respect to the question of actual malice, on the affidavits of defendant Bob Wilson and of Thomas J. Fahey, who was Vermilion County State’s Attorney during the time of the investigation. Wilson, in his affidavit, declared that in conversations “immediately prior to the issuance of the [grand jury] report and for several days thereafter,” he talked to Fahey and to Fa-hey’s first assistant about the report and the officers named in it. Wilson went on to say that from these conversations he learned “that the officers named in the Grand Jury report were involved and/or participated in police burglaries which occurred in the early 1970’s.” Also in his affidavit, Wilson referred to the grand jury’s finding that “[several Officers having a knowledge of police misconduct and peripheral involvement therein are still employed as Danville Police Officers” and then said that at the time he wrote the articles he believed “that Michael Reed was in fact and in truth involved in the police burglary ring which was investigated by the Grand Jury.” Fahey, in his affidavit, recalled making a statement to Wilson “to the effect that the parties named as participants in the criminal actions by the Grand Jury were participants ***.”

Wilson’s declaration of good faith does not preclude a finding of actual malice. The Supreme Court has said:

“The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith.” (St. Amant v. Thompson (1968), 390 U.S. 727, 732, 20 L. Ed. 2d 262, 267, 88 S. Ct. 1323, 1326.)

Fahey’s statement to Wilson that those named in the report as participants were indeed participants did not mean that everyone whose name appeared anywhere in the report was a participant. Fahey’s statement showed only that he believed that the grand jury’s findings were accurate, and it should not be interpreted to mean anything more than that those implicated in the report — “named as participants in the criminal actions” — were culpable.

In opposition to the defendants’ motion for summary judgment, the plaintiff submitted excerpts from a number of depositions, including those of defendants Bob Wilson and Carl Young. Bob Wilson said in his deposition that when the newspaper appeared on December 21, 1978, he “wasn’t particularly comfortable with the paper or with the pictures and the captions.” He was referring to his own article on the grand jury investigation, with the accompanying photographs and captions; he did not know who had written the captions. Wilson said that his uncomfortable feeling related particularly to the plaintiff. Apart from obtaining comments on the story from various officials, Wilson said that he did not do any additional research before writing the December 23 article. That article also referred to the plaintiff, by name, as having been implicated in the investigation.

Defendant Carl Young, in his deposition, said that he “briefly” read the grand jury report when it was released and then once again several days later. He also read Wilson’s articles on the investigation, apparently as they were published. Young suggested that the plaintiff could have called the newspaper if he had a complaint about the articles.

An excerpt from the plaintiff’s own deposition contained the information that on December 20, 1978, he received a telephone call from Wilson, who asked for his comments regarding the investigation. The plaintiff told Wilson that he had not taken part in the misconduct.

The plaintiff also submitted excerpts from the depositions of two of Wilson’s editors, Les Smith and Randy Kirk, who had read the first article, apparently in draft form. Both Smith and Kirk had already read the grand jury report, and in vetting the article they relied on their memories of the report; they did not attempt a point-by-point comparison of the news article and the report. Neither Smith nor Kirk found any inaccuracies in the article. Kirk also said that the newspaper normally receives prompt complaints about serious mistakes in its stories. An excerpt submitted by the defendants from the plaintiff’s deposition showed that the plaintiff did not immediately complain to the newspaper about the articles in question.

This information, coupled with the allegations in the complaint that the defendants had acted with actual malice, was sufficient to raise a triable question regarding the state of mind of the defendants. Wilson’s statement in his deposition that he was uncomfortable with the paper, photographs, and captions when the newspaper appeared on December 21 tends to contradict the assertion of good faith that he made in his affidavit. And despite the uncomfortable feeling and the plaintiff’s denial, Wilson repeated the statement regarding the plaintiff in a later article, without having done any further research. Young read both the report and Wilson’s articles and repeated Wilson’s reference to three current officers who had been implicated. The grand jury report was not confusing or ambiguous. (Cf. Time, Inc. v. Pape (1971), 401 U.S. 279, 28 L. Ed. 2d 45, 91 S. Ct. 633.) In Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837, a newspaper article incorrectly reported that a municipal fire and police commission had found one of its police officers, the plaintiff, guilty of all the charges of misconduct that had arisen from an occurrence. Actually, the commission had not rendered a finding on the principal charge, making immoral suggestions to a teenaged girl, and the plaintiff sued for libel. The trial court granted the defendant summary judgment, but the supreme court held that the plaintiff’s allegations of actual malice, together with the article, which the complaint incorporated by reference, were sufficient to pose a triable question of fact and should have survived the motion for summary judgment. See Catalano v. Pechous (1980), 83 Ill. 2d 146, 419 N.E.2d 350.

Therefore, we reverse the judgment of the trial court and remand the cause for further proceedings. Because of this result, we need not address the remaining issue raised by the plaintiff — whether newly discovered evidence required the court to vacate its order granting summary judgment.

Reversed and remanded.

GREEN and WEBBER, JJ., concur.