text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM MATTHEWS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—2218
    Opinion filed July 31, 1984.

      Steven Clark and Elizabeth Clarke, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Michael E. Shabat, James J. Bigoness, and Mark L. Lefevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Defendant William Matthews was charged by information with three counts of attempted murder, six counts of aggravated battery, and six counts of armed violence. Following a jury trial, defendant was found guilty of six counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(1)) and was sentenced to 10 years’ imprisonment. Defendant appeals.

Defendant knew Ethel Pugh, one of the complainants, and had been romantically involved with her at various times during the 11 years prior to November 15, 1981. On that date, Pugh began living with another man, Eddie Stinson, with whom she had been romantically involved in the past. Defendant had been seeing Pugh about this time and was unaware of her renewed involvement with Stin-son. Defendant repeatedly attempted to call Pugh but was told each time that she was not at home.

On November 25, 1981, defendant had tried, unsuccessfully, to call Pugh. From the evening of November 25 until 6:15 a.m. the following day, defendant drank a pint and a half of whiskey. After 6:15 a.m. on November 26, defendant drank an additional fifth of whiskey at his home.

On November 25, 1981, Eddie Stinson slept at Ethel Pugh’s apartment. Also in the apartment were Pugh’s four children, one of Pugh’s friends, Devina Green, and Phillip Pugh, Ethel’s brother.

At 8 a.m. on November 26, Stinson heard someone banging on the front door. He went to the door and opened it, whereupon he encountered the defendant standing in the doorway with a baseball bat in one hand and a pistol in the other. Defendant walked past Stinson toward the bedroom where Ethel Pugh was sleeping. Stin-son ran over to the couch to wake up Phillip, and the two went to call the police.

Ethel Pugh got out of bed and opened her bedroom door, where she met defendant standing with the baseball bat and pistol. Defendant put the pistol in his waistband and began beating Pugh with the bat. Danella Brown, one of Pugh’s children, ran into the bedroom and grabbed defendant. He struck Brown with the gun and she left the room. The gun fell to the floor and defendant picked it up and struck Pugh on the head with the butt.

Devina Green had been sleeping on the couch when she heard screams coming from the bedroom. She ran into the bedroom, where she saw defendant beating Pugh about the head and arms with a bat. As Green told Pugh to get up and run, the gun discharged and struck Green in the chest.

As defendant was leaving the apartment, Brown was attempting to call the police. Defendant returned to strike her several more times with the bat. Defendant testified that he did not recall striking Pugh with a bat and did not remember firing his gun.

Following a jury trial, defendant was found guilty on six counts of aggravated battery and was sentenced to three concurrent terms of 10 years’ imprisonment. Defendant then instituted this appeal.

Defendant first contends that a psychiatric fitness report, submitted prior to trial pursuant to court order, failed to meet statutory requirements. Consequently, defendant claims he is entitled to a new trial.

The State argues that this issue has been waived by defendant’s failure to object to the sufficiency of the report before, during, or after trial, and by his failure to raise the issue in a post-trial motion. Section 104 — 11 of the Code of Criminal Procedure of 1963 provides that the issue of defendant’s fitness may be raised at any appropriate time before, during, or after trial. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — ll)(a).) It is not equally apparent that the issue of the adequacy of a fitness report may likewise be raised at any appropriate time. A question as to a defendant’s fitness is fundamentally different than a question as to the statutory sufficiency of a fitness report. Where, as here, no issue is raised as to defendant’s fitness to stand trial and the sole issue is the adequacy of the psychiatric fitness report, we find that the general rule of waiver applies. Under this general rule, defendant’s failure to object during trial and to raise the issue of the fitness report in a post-trial motion resulted in a waiver of the issue on appeal. (People v. Foster (1979), 76 Ill. 2d 365, 380, 392 N.E.2d 6.) We note that defendant exhibited no behavior prior to, during or following trial which could reasonably be construed as raising a bona fide doubt as to defendant’s competency. This fact buttresses our finding of a waiver.

Our decision in People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941, does not dictate a contrary result. In Harris, we granted defendant a new trial because of the trial court’s failure to hold a competency hearing despite evidence which we felt gave rise to a reasonable doubt as to the defendant’s fitness to stand trial. This holding obviated the need to address the defendant’s contention concerning the adequacy of his psychological fitness report. However, in an effort to avoid a second appeal involving this issue, we addressed it. We took this action despite the State’s argument that the defendant had waived the issue by failing to object to the report at trial. A relaxation of the waiver rule in Harris was warranted in light of the fact that the issue being addressed was not controlling and because of our concern that the inadequate fitness report be corrected on retrial. It was these unique circumstances which prompted us to address the issue of the fitness report despite the defendant’s failure to raise the issue at trial. No such unique circumstances are presented in the instant case and we therefore refuse to relax the waiver rule.

Defendant next contends that the trial court erred by giving a non-IPI instruction to the jury concerning the defense of voluntary intoxication. The pattern instruction concerning voluntary intoxication provides that:

“[(An intoxicated) (A drugged)] person is criminally responsible for his conduct unless his [(intoxication) (drugged condition)] renders him incapable of acting [(knowingly) (intentionally)].” (Illinois Pattern Jury Instruction (IPI), Criminal, No. 24-25.02 (2d ed., 1981)

The instruction which was submitted by the State, approved by the court, and given to the jury provided that:

“A person who is voluntarily intoxicated is criminally responsible for his conduct unless the intoxication is so extreme as to suspend all reason and render him incapable of acting knowingly and intentionally.” (Emphasis added.)

Defendant contends that the addition of the highlighted material to the IPI instruction may have misled the jury into believing that the defense of voluntary intoxication consisted of two elements rather than one. Defendant concludes that the jury’s confusion regarding the defense entitles him to a new trial.

Generally, the decision whether to give a non-IPI instruction rests within the sound discretion of the trial court. (People v. Stamps (1982), 108 Ill. App. 3d 280, 298, 438 N.E.2d 1282.) Non-IPI instructions should be given, however, only when there is no IPI instruction which accurately states the applicable law. (108 Ill. App. 3d 280, 298-99.) In the instant case, there is no question that IPI Criminal No. 24-25.02 submitted by defense counsel accurately stated the applicable law concerning the defense of voluntary intoxication. Thus, the trial court abused its discretion by submitting a modified version of the pattern instruction to the jury. However, in allowing the modification, the trial court did not create an erroneous instruction. Indeed, the modification accurately defines the degree of intoxication necessary to sustain the defense of voluntary intoxication as it has been enunciated by reviewing courts. (See e.g., People v. Crosser (1983), 117 Ill. App. 3d 24, 28, 452 N.E.2d 857.) Furthermore, a challenged instruction should not be viewed in isolation; it must be viewed in the context of the entire charge. People v. Housby (1981), 84 Ill. 2d 415, 433-34, 420 N.E.2d 151.

In the instant case, defendant contends that the modified instruction may have prevented the jury from recognizing that his degree of intoxication need only have been such as to prevent him from forming the requisite specific intent to commit the crime with which he was charged. But the definitional and issues instructions on battery and aggravated battery repeatedly note the requirement that defendant must have acted knowingly and intentionally and that he must have been capable of acting knowingly and intentionally. Thus, upon viewing the instructions in their entirety, we find it difficult to say that the jury lost sight of the fact that the level of defendant’s intoxication related to his ability to act knowingly and intentionally. Though we disapprove of the practice of constructing jury instructions from language used by reviewing courts, we conclude that the trial court’s erroneous submission of a non-IPI instruction in this case was harmless beyond a reasonable doubt.

Defendant next contends that Dan ella Brown did not suffer “great bodily harm” and that, therefore, his aggravated battery conviction as to Brown must be vacated.

Danella Brown testified that when she discovered defendant beating her mother, defendant struck her on the head with a gun. Brown then attempted to call the police, and defendant began striking her on the head and arms with a baseball bat. Ethel Pugh corroborated Brown’s testimony that defendant struck Brown with a baseball bat. Devina Green testified that defendant struck Brown on the head and arm with a bat with three full-force blows.

Despite this testimony, defendant points to Brown’s statement that “I only had a bruise on my head” as evidence that Brown did not suffer great bodily harm. Defendant also points to the lack of evidence that Brown’s injuries required medical attention. Neither of these facts leads to the conclusion that Brown did not suffer great bodily harm.

In People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853, the victim suffered welts on his back after being struck with a chain. The victim testified at trial that the marks on his back were not “real bad” and that he did not seek medical attention for his injuries. (67 Ill. App. 3d 281, 289.) Despite this evidence, the jury found defendant guilty of aggravated battery causing great bodily harm.

On appeal, the court noted the well-settled rule that what constitutes great bodily harm is a question of fact for the jury to determine. (67 Ill. App. 3d 281, 289.) The court went on to state that the question is not what the victim did or did not do to treat his injuries, but rather, what injuries he in fact received. The court noted that the victim had been whipped with a chain and that his eye was cut. Based on this evidence, the court held that the jury’s finding of great bodily harm was not so improbable or unjustified as to require a reversal. People v. Olmos (1978), 67 Ill. App. 3d 281, 289-90; accord, People v. Cross (1980), 84 Ill. App. 3d 868, 872, 406 N.E.2d 66 (victim struck on head with lead pipe); People v. Carmack (1977), 50 Ill. App. 3d 983; 985-86, 366 N.E.2d 103 (victim beaten with club; gashed; bruised; bleeding; no medical attention sought); People v. Brown (1974), 18 Ill. App. 3d 1049, 1054, 310 N.E.2d 498 (victim punched and kicked).

Based upon the foregoing authorities, it is apparent that in the instant case there was sufficient evidence from which the jury could conclude that Danella Brown suffered great bodily harm. Brown’s statement as to the extent of her injuries did not preclude the jury from reaching this conclusion. We find that the jury’s verdict was supported by the evidence.

Defendant’s final contention is that the trial court’s imposition of an extended-term sentence of 10 years was excessive in light of the evidence of his rehabilitative potential.

Defendant’s conviction for aggravated battery, a Class 3 felony, carries with it a sentence of 2 to 5 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(6).) If, however, defendant’s conduct is found to be brutal and heinous, defendant may be sentenced to an extended term of 5 to 10 years. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8— 2(a)(5).) In the instant case, the trial court found that defendant’s conduct was brutal and heinous and, accordingly, sentenced defendant to an extended-term sentence. Defendant does not contend that it was improper to sentence him under the extended term sentencing provision. Rather, defendant contends that, in light of his unblemished record, family responsibilities and potential for rehabilitation, he should not have received the maximum extended-term sentence of 10 years.

Defendant is correct that a sentencing judge must, in addition to considering the seriousness of the offense, give adequate consideration to defendant’s rehabilitative potential. (People v. Crosser (1983), 117 Ill. App. 3d 24, 31-32.) Though these facts are to be accorded equal weight in fixing punishment, it is for the judge to strike a proper balance between them. (117 Ill. App. 3d 24, 31-32.) The trial judge is present during the course of the trial and the sentencing hearing and is thus in a far superior position to evaluate the appropriate sentencing factors than is a court of review. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) For this reason, the trial judge’s sentencing decision is entitled to great deference and will not be disturbed on appeal absent an abuse of discretion. 68 Ill. 2d 149, 154.

In the instant case, the trial judge, in rendering sentence, emphasized the brutality of defendant’s conduct in using a baseball bat and a gun in his attack upon two women and a child. Apparently, the court felt that the seriousness of defendant’s crime called for the maximum sentence of 10 years and that defendant’s rehabilitative potential did not warrant a reduction of that sentence. We have found no evidence in the record that the trial judge abused his sentencing discretion. Under these circumstances, it would be improper for us to substitute our judgment for the trial court’s even if we would have imposed a different sentence had that function been delegated to us. 68 Ill. 2d 149, 156.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and DOWNING, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    JOHN CRUZAT et al., Plaintiffs, v. BOARD OF TRUSTEES OF THE VILLAGE OF MAYWOOD et al., Defendants (The People of the State of Illinois, Petitioner-Appellee, v. Betty Kitch et al., Respondents-Appellants).
    First District (1st Division)
    No. 83—0788
    Opinion filed July 30, 1984.
    William J. Harte, Ltd., of Chicago (William J. Harte and John B. Austin, of counsel), for appellant Betty Kitch.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, and Gerald L. Maatman, Jr., of counsel), for appellant Seyfarth, Shaw, Fairweather & Geraldson.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Henry A. Hauser, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Respondents Betty Kitch and the law firm of Seyfarth, Shaw, Fairweather and Geraldson appeal from an order of contempt entered against them after it was revealed that Kitch, a member of the law firm, had moved for admission pro hac vice of a disbarred attorney who had misrepresented the status of his license to practice law in his home State. On appeal, both respondents raise the issue of whether they can be held in criminal contempt of court for aiding and abetting a nonlawyer in the unauthorized practice of law when it was agreed by all parties that they had no knowledge or intent to mislead the court.

The facts in this case are not in dispute. The firm of Seyfarth, Shaw, etc., and an associate of that firm, Betty Kitch, were attorneys of record for plaintiffs in the case of Cruzat et al. v. Board of Trustees of the Village of Maywood. At the initial hearing on that case on February 17, 1983, Betty Kitch moved before the trial court that Curtis Lawson be admitted to practice pro hoc vice on the basis of his license to practice law in the State of Oklahoma. The opposing counsel did not object and her motion was granted. She had also made the same motion earlier before another trial judge and it had been granted. Lawson and another attorney from the firm had signed the complaint. Lawson and another attorney from the firm also appeared before the court on February 18, and Lawson and Kitch appeared before the court on February 21. As a result of these appearances, Lawson and the firm succeeded in obtaining a temporary restraining order preventing the enforcement of certain amendments to the municipal code of the village of Maywood.

On February 24, 1983, Kitch and the firm first learned from defendants that Lawson was not licensed to practice law in Oklahoma. Kitch and the law firm promptly informed the trial court, who requested defendants to file a petition for rule to show cause why plaintiffs’ counsel should not be held in contempt of court. Contempt hearings on the matter were held on March 2 and 11, 1983.

In lieu of an evidentiary hearing, the trial court accepted a stipulation that Kitch was an associate of the law firm and that she alone dealt with Lawson concerning his position as co-counsel in the Cruzat litigation. The parties also stipulated that Kitch and the law firm had not taken any affirmative steps to investigate the status of Lawson’s license to practice law in Oklahoma after Lawson had affirmatively represented that he was a member of the Oklahoma bar. Further, the parties stipulated that neither Kitch nor anyone else in the firm had any knowledge that Lawson was not licensed at the time they moved that he be admitted pro hac vice. Members of the firm’s executive committee appeared before the court on the first day of hearings and apologized to the court for what had occurred. On the second day of hearings, Kitch and the firm were both represented by separate counsel. The court issued a memorandum opinion holding Lawson in contempt of court for his false representations that he was a duly licensed attorney in Oklahoma and imposed a fine of $500. The court held Kitch in contempt of court based upon her appearance in court and representation that Lawson was a duly licensed attorney, and fined her $100. The court also held the law firm in contempt of court and fined it $200.

In its opinion, the trial court stated that “There is no plausible reason for a trial court to ever grant a Rule 707 motion [Supreme Court Rule 707, 87 Ill. 2d Rule 707] if it cannot rely with confidence on the veracity of the movant and be satisfied beyond cavil that the candidate does in fact possess the qualifications asserted.” The court determined that in order to measure up to the standard he was imposing under Rule 707, sponsoring attorneys need only invest in the cost of a postage stamp or a long distance phone call “to learn with certainty the truth of the fact which they assert.”

Respondents argue before this court that although the trial court did not identify the nature of the contempt order it entered, the order should be classified as criminal rather than civil contempt since it concerned conduct which the court found to be directed against the dignity and authority of the court. (People v. Gholson (1952), 412 Ill. 294, 298, 106 N.E.2d 333, 336; People v. Ziporyn (1984), 121 Ill. App. 3d 1051, 460 N.E.2d 385.) Therefore, they argue, their conduct must be examined in light of the principles governing criminal contempt.

Respondent argues that the finding of contempt must be reversed because it is not proved or alleged that respondents acted intentionally, knowingly or wilfully. Respondent argues that criminal contempt is “a crime and, as such, consists of an intent and an act, both of which must be proved beyond a reasonable doubt.” (People v. Ziporyn (1984), 121 Ill. App. 3d 1051, 1056, 460 N.E.2d 385, 389.) Evidence of a negligent act, respondents contend, is insufficient to support a sanction of criminal contempt since it has been held that “[a] negligent act is not a knowing or wilful act.” (People v. Witherspoon (1977), 52 Ill. App. 3d 151, 154, 367 N.E.2d 313, 315.) Respondents argue that the trial court rejected the state-of-mind requirement for a finding of criminal contempt and, instead, imposed criminal punishment on the basis of its own conception of what the duties ought to be for the Illinois bar.

Petitioner agrees that the trial court’s order of contempt may be characterized as criminal contempt. Petitioner asserts, however, that under Rule 707 local counsel assumes a duty to the court and the public to verify the qualifications of a person sponsored for pro hae vice admission. Petitioner contends that anyone who makes a representation in court has a duty to know if the representation is correct. Petitioner argues that Kitch’s representation that Lawson was licensed in Oklahoma, when in fact, as she stipulated, neither she nor anyone else in the firm verified that he was duly licensed, constitutes a knowing and wilful misrepresentation of her own state of knowledge and, therefore, is a valid basis for a finding of criminal contempt.

We need not determine whether respondents are charged with criminal or civil contempt since it is our conclusion that the evidence is insufficient to support a finding of contempt under Rule 707. It was stipulated before the trial court that respondents had no knowledge or reason to suspect that Lawson was not duly licensed in Oklahoma. Rule 707 does not mandate the requirement that a sponsoring attorney investigate the credentials of an out-of-State attorney. Indeed, the rule does not mention the need for a local attorney to file a motion for pro hac vice admission of a foreign attorney in order for a court to allow a foreign attorney to appear before it. Before the sanction of contempt of court can be imposed for failure to verify the license of an attorney submitted for admission pro hac vice, the Supreme Court Rules and disciplinary canons should specify what the duty of a sponsoring attorney is. The language of Rule 707 does not impose an affirmative duty on the sponsoring attorney and, therefore, cannot support the imposition of the contempt orders at bar. The trial court erred in the exercise of its discretion for holding respondents in contempt of court for a violation of Rule 707. See Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 447 N.E.2d 891.

Both respondents contend that their conduct is in conformity with the duties and standards set forth by the supreme court in People ex rel. Chicago Bar Association v. Novotny (1944), 386 Ill. 536, 54 N.E.2d 536, cert. denied (1944), 323 U.S. 734, 89 L. Ed. 588, 65 S. Ct. 115. We agree. Novotny, a nonlawyer, was charged and found guilty of contempt for practicing law without a license. Haase, a lawyer with whom Novotny shared an office, was acquitted of the charge of aiding and abetting a nonlawyer in the unauthorized practice of law. Haase claimed that at no time did he have any information and knowledge that Novotny was not qualified to practice law in Illinois. The court stated that “[t]o aid and abet a violation of the law requires knowledge and intent,” and the fact that Haase had not been charged with knowledge of Novotny’s status and had denied such knowledge was “sufficient to purge him of the offense.” 386 Ill. 536, 541-42, 54 N.E.2d 536, 538.

The supreme court determined that knowledge of whether or not a person’s name appears on the roll of attorneys is not required of persons associating with, employing or transacting business with an attorney. The court further observed,

“With many thousands of lawyers admitted to practice law, and the roll of attorneys being located in the capital of the State, it would be an unreasonable and intolerable burden upon persons transacting business, or associating themselves with lawyers, to be subject to a charge of accessory to a contempt merely by failure to examine the roll of attorneys in the offices of the Clerk of the Supreme Court.” 386 Ill. 536, 542, 54 N.E.2d 536, 538.

Petitioner attempts to distinguish Novotny by the fact that Nov-otny did not involve Rule 707 and was based on a misrepresentation made to the public rather than the court. We do not find these distinctions persuasive. Clearly, the court is better able to protect itself from the unauthorized practice of law than is the public. By employing the phrase “associating *** with lawyers,” the court indicated that a lawyer unknowingly in a partnership arrangement with a nonlawyer holding himself out as a lawyer could not be held in contempt as an accessory to the unauthorized practice of law. Since the supreme court found that there is no duty for an attorney to check the license of an Illinois attorney with whom he or she associates, it was error to impose such a duty on an attorney associating with a foreign attorney.

We have been informed that this is a case of first impression. Considering the numerous motions for admission pro hac vice made daily in courts throughout our State, this situation cannot be so unique. There have been several instances in the past when it was discovered that a nonlawyer had been practicing law before Illinois courts undetected for many years. (People ex rel. Chicago Bar Association v. Novotny (1944), 386 Ill. 536, 54 N.E.2d 536; People v. Cox (1957), 12 Ill. 2d 265, 146 N.E.2d 19.) We have not found any reported cases in which the attorney associates or the law firm of a nonlawyer have been held in contempt for their unknowing aid in the illegal practice of law by the nonattorney. It is interesting to note that, in the Cox case, a prisoner challenged his conviction for murder when, five years after he was convicted, the man who had acted as his lawyer, one E. A. Simmons, was indicted for the unauthorized practice of law. Although Simmons held himself out to the public as a lawyer, his name never appeared on the roll of attorneys licensed by the supreme court. The court found under the facts of the case that representation by the nonlawyer Simmons did not deny Cox due process of law.

We also find problematic the ramifications of the duty imposed by the trial court. The trial court apparently imposed an affirmative duty to diligently investigate and disclose to the court any facts affecting the validity of the license of an attorney proposed for admission pro hac vice. Must the sponsoring attorney check the credentials of all members of an out-of-State firm who might appear with him on a given matter? How frequently must a sponsoring attorney call or write the Attorney Registration and Disciplinary Committee of a sister State to verify the continued good standing of a foreign attorney he may deal with over a number of years? How current must the sponsoring attorney’s information be in light of the fact that pending disciplinary proceedings are usually confidential until a sanction is imposed? These and many other questions arise here where respondents have been held in contempt for failure to perform a duty not previously articulated in rule or opinion.

For the foregoing reasons, the decision of the circuit court of Cook County holding respondents in contempt of court is reversed.

Reversed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE ex rel. CITY OF KANKAKEE, Plaintiff-Appellee, v. JOSEPH MORRIS, Defendant-Appellant.
    Third District
    No. 3—83—0705
    Opinion filed June 29, 1984.

      Michael R. Berz and Debra K. Smietanski, both of Berz & Smietanski, of Kankakee, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (William H. Taube, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

The State’s Attorney brought this quo warranto action on behalf of the city of Kankakee to remove defendant Joseph Morris from his elected office as alderman of the city. The trial court granted summary judgment in favor of the People, and defendant appeals. At issue is whether an alderman can be ousted from office for a felony theft conviction when he is sentenced to probation.

On April 12, 1983, defendant was elected alderman for the seventh ward of Kankakee. On May 3, he pleaded guilty to theft under sections 16 — 1(a) and 16 — 1(e)(3) of the Criminal Code of 1961. (Ill. Rev. Stat. 1983, ch. 38, pars. 16 — 1(a), 16 — 1(e)(3).) The theft involved defendant’s unlawful participation in the Federal food stamp program. Defendant was sentenced to 18 months’ probation.

On June 2, the State’s Attorney filed this action alleging defendant’s conviction disqualified him from holding office. Both parties filed summary judgment motions, and on November 1 the trial court granted the People’s motion. The court held defendant had been convicted of an infamous crime, thereby creating a vacancy in his office.

Under section 3 — 4—14 of the Illinois Municipal Code, a vacancy occurs in the office of alderman by reason of his conviction of a “disqualifying crime.” (Ill. Rev. Stat. 1983, ch. 24, par. 3 — 4—14.) “Disqualifying crime” is not defined. Under section 25 — 2 of the Election Code, however, an elective office becomes vacant upon the incumbent’s conviction for an infamous crime. (Ill. Rev. Stat. 1983, ch. 46, par. 25 — 2.) Section 29 — 15 adds:

“Any person convicted on an infamous crime as such term is defined in Section 124 — 1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.” (Ill. Rev. Stat. 1983, ch. 46, par. 29 — 15.)

Section 124 — 1 of the Code of Criminal Procedure of 1963 states:

“ ‘Infamous crimes’ are the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnaping or aggravated kidnaping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary.” Ill. Rev. Stat. 1983, ch. 38, par. 124 — 1.

Additionally, article XIII, section 1, of the constitution states:

“A person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution.” (Ill. Const. 1970, art. XIII, sec. 1.)

The constitution did not create the office of alderman. Thus, the constitutional provision does not directly apply to the present case. (Coles v. Ryan (1980), 91 Ill. App. 3d 382, 384, 414 N.E.2d 932, 935.) Every elected official of a local government, however, is also ineligible to hold office if convicted of an infamous crime, as understood in section 1 of article XIII. (Ill. Rev. Stat. 1983, ch. 102, par. 120.) The definition of infamous crime under the constitution, therefore, is applicable to this case.

Defendant contends his conviction does not fall into the category of crimes listed under section 124 — 1 because the punishment imposed for his theft conviction was probation rather than a penitentiary sentence. He concludes he was not convicted of an infamous crime. This argument was rejected in People v. Hampton (1972), 5 Ill. App. 3d 220, 282 N.E.2d 469, where the court declared that a conviction for theft is a conviction of an infamous crime if a penitentiary sentence could have been imposed. The court further stated:

“Failure to impose a penitentiary sentence does not affect the quality of or diminish the seriousness of the offense, and we will not construe Sec. 124 — 1 to attain that result.” 5 Ill. App. 3d 220, 226, 282 N.E.2d 469, 473.

Defendant asserts Hampton should not be followed because it contradicts the express language of section 124 — 1. The primary objective in construing a statute is to ascertain and give effect to the legislative intent. (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 532, 150 N.E.2d 168, 175.) The Hampton court held the legislature included the phrase “if the punishment imposed is imprisonment in the penitentiary” merely to distinguish felony theft from misdemeanor theft. The legislature did not intend to leave the determination of whether a crime is infamous solely in the discretion of a sentencing judge.

The history of section 124 — 1 clearly reveals the intent of the statute. The antecedent to section 124 — 1 listed larceny as one of the infamous crimes. (Hurd’s Rev. Stat. 1909, ch. 38, par. 279.) In People v. Russell (1910), 245 Ill. 268, 91 N.E. 1075, the supreme court held petit larceny fell within the statute. The court noted that Illinois law originally made no distinction between petit larceny and grand larceny. Both, therefore, constituted larceny within the meaning of the statute defining infamous crimes according to the court. This ruling led to two undesirable results. First, as an infamous crime, petit larceny could be prosecuted only by indictment. Second, the county courts were deprived of jurisdiction over petit larceny although they had exercised such jurisdiction for many years. 245 Ill. 268, 278, 91 N.E.1075, 1077.

In response to the Russell decision, the legislature amended the statute to include only “larceny, if punishment for said larceny is by imprisonment in the penitentiary.” (Hurd’s Rev. Stat. 1911, ch. 38, par. 279.) At the time, grand larceny was punishable by imprisonment in the penitentiary, while petit larceny was punishable by a fine and imprisonment in the county jail. (People v. Russell (1910), 245 Ill. 268, 275, 91 N.E. 1075, 1076.) The legislature obviously intended to overrule Russell and remove petit larceny from the category of infamous crimes. The amendment returned jurisdiction over petit larceny to the county courts and allowed prosecution by information rather than indictment. (People v. Snyder (1931), 260 Ill. App. 405; People v. Waltyn (1914), 191 Ill. App. 86; People v. Cohen (1912), 171 Ill. App. 612.) The language concerning larceny in the statute remained the same until the 1961 revisions of the Criminal Code when the word “theft” was substituted for “larceny.” (Ill. Rev. Stat. 1961, ch. 38, par. 587.) In 1963, the legislature reworded the statute to read as it currently does. Ill. Rev. Stat. 1963, ch. 38, par. 124 — 1.

The legislature never intended to remove any felony theft conviction from the list of infamous crimes. Infamy arises because of the nature of the crime, not the punishment. (Werdell v. Turzynski (1970), 128 Ill. App. 2d 139, 153, 262 N.E.2d 833, 840.) Defendant’s conviction, rather than imprisonment in the penitentiary, renders him infamous. (People ex rel. Latimer v. Randolph (1958), 13 Ill. 2d 552, 557, 150 N.E.2d 603, 606.) Defendant’s conduct, not his sentence, causes the public reaction which leads to infamy.

Defendant maintains Hampton does not apply to this case because Hampton dealt with the use of a theft conviction for impeachment purposes. He asserts his fundamental rights are at stake here; therefore, the statute must be strictly construed. The expectation of attaining or holding public office, however, is a privilege, not a civil right. (People ex rel. Ryan v. Coles (1978), 64 Ill. App. 3d 807, 813-14, 381 N.E.2d 990, 995.) Neither the right to governmental employment nor the right to hold an elective office is fundamental. (Coles v. Ryan (1980), 91 Ill. App. 3d 382, 385, 414 N.E.2d 932, 936.) We are more concerned with the public interest in good government and confidence in our public officers than defendant’s privilege in holding his office. A conviction for an infamous crime destroys the public confidence in an elected official. (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 536, 150 N.E.2d 168, 177.) Removal from office for committing an infamous crime is not a punishment. Rather, it is simply a consequence of the officer’s failure to meet a condition imposed on him in furtherance of the public interest in good government. People ex rel. Taborski v. Illinois Appellate Court, First District (1972), 50 Ill. 2d 336, 341, 278 N.E.2d 796, 799.

Furthermore, section 124 — 1 alone does not determine what constitutes an infamous crime. Determining if a crime is infamous under the constitution and creates a vacancy in office is not an exclusive legislative function. The determination is subject to judicial decision in light of the common law. (People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 533, 150 N.E.2d 168, 175.) A felony is infamous when it is inconsistent with commonly accepted principles of honesty and decency, or involves moral turpitude. (13 Ill. 2d 520, 534, 150 N.E.2d 168, 176.) Defendant’s conduct certainly offends commonly accepted principles of honesty and decency. In effect, he attempted to defraud both the Federal and State governments. His conviction renders him infamous, and he is ineligible to hold his office.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

GREEN and WEBBER, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN CALHOUN, Defendant-Appellant.
    First District (5th Division)
    No. 81—1258
    Opinion filed August 3, 1984.

      George C. Howard, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Timothy J. Joyce, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted murder, armed robbery and aggravated battery. (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4, 18 — 2 and 12 — 4, respectively.) The trial court merged the aggravated battery and attempted murder convictions and sentenced defendant to concurrent terms of 15 years for attempted murder and armed robbery. Defendant appeals, contending that: (1) the trial court erred in denying his motion to quash arrest and suppress his confession; (2) the trial court erred in allowing the State to introduce evidence of a separate crime; (3) the trial court erred in denying his motion in limine which sought to prevent the State from informing the jury that the victim is a Chicago alderman; (4) the trial court erred in denying his motion for a mistrial predicated upon the State’s detailed account of the separate crime during its opening statement; (5) his admissions were not sufficient to establish his guilt beyond a reasonable doubt; and (6) the State’s comments during closing argument regarding his failure to call his co-offenders to the stand prejudiced him and denied him a fair trial. We affirm.

The case at bar concerns charges brought against defendant under the theory of accountability for offenses committed against Frank Brady during the early morning hours of March 8, 1979 (Brady incident). In order to prove defendant’s intent to promote or to facilitate the Brady incident, the State introduced testimony to show the common scheme, design and motive of the offenses committed against Brady and those committed a few hours earlier against Joseph Oswald (Oswald incident). Defendant was initially implicated in both incidents by his co-offenders and subsequently confessed to his involvement.

Testimony elicited at trial indicated that on March 7, 1979, approximately 10 p.m., Joseph Oswald was exiting his 1975 brown Cadillac in the parking lot of Summer’s West Restaurant in Evergreen Park when he was accosted at gunpoint by three young black males who forced him back into his car and pushed him to the middle of the front seat. One of the assailants sat on either side of him and another sat in the back. As the driver pulled out of the parking lot and headed north on Western Avenue, Oswald glanced in the rear view mirror and noticed that a yellow car containing two black males had followed them out of the parking lot and was driving on their left side. The assailants intended to turn right at 87th Street, but proceeded straight when they noticed an unmarked squad car turning right at that intersection. At that point, the yellow car turned left and did not return. While they were driving north on Western, the assailants robbed Oswald of $835. They then turned right at 83rd Street, pulled into a forest preserve parking lot, shot Oswald in the neck and threw him out of the car. After being released from the hospital, Oswald identified his three assailants as Victor Armón, Renaldo Crump and Bell. However, he was unable to identify the occupants of the yellow car.

A few hours later, Frank Brady left Summer’s West Restaurant in his car and drove north on Western Avenue to a pizza parlor located at 71st and Troy. Just as Brady was getting out of the car, another car pulled up alongside of him and a black male, armed with a sawed-off shotgun, got out of the car and started walking toward him. Brady immediately got back into his car and sped away with the other car in pursuit. After driving up and down numerous streets, Brady thought he had lost his pursuers and drove home. However, just as he was getting out of his car in front of his house, two black males approached him, one armed with a sawed-off shotgun and the other with a pistol. The one with the pistol told Brady that this was a holdup and forced him back into the car, where one assailant sat on either side of him in the front seat. After Brady gave them $120, and they had stepped out of the car, Brady noticed that there were a couple of black males in the back seat of the car in which the assailants had been riding, but he did not get a good look at them. As they were standing next to the car, one of the assailants pointed the shotgun at Brady’s stomach and told him that he was going “to blow him away.” Brady then pushed the gun aside and started to run toward his house, but was shot in the back. Brady later identified his assailants as Duane Dawkins and Victor Armón.

At the evidentiary hearing on defendant’s motions to quash arrest and to suppress statements, Investigator Charles Roney of the Chicago Police Department testified that on March 8, 1979, approximately 5 p.m., he was assigned to the Brady case and informed that defendant had been named as an accomplice by one of the co-offenders already under arrest. He and his partner then proceeded to defendant’s residence, arriving there approximately 6 p.m. Defendant’s mother answered the door, the officers identified themselves, and told her that they were looking for defendant. Because she had just arrived home, she was not sure whether defendant was at home, and invited the officers to come upstairs while she checked. When she discovered he was not at home, Mrs. Calhoun asked if defendant was wanted in connection with the incident for which Crump had just been arrested. She had heard about Crump’s arrest on the radio. Roney indicated that defendant was being sought in connection with that incident and told Mrs. Calhoun that they would return later that evening.

Approximately 10:30 p.m. the officers returned to defendant’s residence, and his father answered the door and invited them to come upstairs and step into the living room where defendant was waiting. Roney told defendant why the officers were there, advised him of his rights, told defendant’s parents where they were taking him and informed them that they could either accompany him or wait for defendant’s phone call. They chose to do the latter. On cross-examination, Roney stated that he had never seen an arrest warrant for defendant and that he did not take notes of his conversation at defendant’s residence.

Defendant’s father, Lewis Calhoun, testified that on March 8, 1979, approximately 10:35 p.m., two plainclothes Chicago police officers came to the Calhoun residence looking for defendant. They did not have an arrest warrant. When Lewis opened the downstairs door of the two-flat, the officers, with guns drawn, “brushed by” him and went up the stairs to the Calhoun’s second floor apartment. Although Lewis kept asking the officers what they wanted, they told him nothing more than that they were looking for defendant. Because the officers preceded Lewis into the apartment, Lewis did not know whether defendant came out of his bedroom to see the officers or whether the officers went into defendant’s bedroom. In any event, they escorted defendant out of the apartment and into a waiting squad car. Neither Lewis nor his wife heard from defendant until approximately 2:30 a.m., when he called them from the police station.

On cross-examination, Lewis Calhoun stated that he had been home earlier that evening when two Chicago police officers came to his residence looking for defendant. His wife had answered the door at that time and later told him that the police were looking for defendant to question him about “being in a car.” Defendant was not at home at the time and the officers had indicated that they would return. Lewis denied that the officers had had his permission to enter his apartment, but admitted that there had been no violence, shouting or resistance.

Defendant testified that on March 8, 1979, approximately 10:30 p.m., he was awakened by two police officers standing in his bedroom with their pistols drawn. They told him to get dressed because they wanted to question him at police headquarters about driving a car. He was never shown a warrant. Defendant further claimed that he was never advised of his rights and that he gave his first statement to the police approximately 45 minutes after arriving at the station. Further, he was not allowed to call either a lawyer or his parents after he had made his statements.

On cross-examination, defendant stated that when he arrived home on the evening of his arrest, his mother told him that the police had been there, but she did not tell him that they were coming back. Prior to arriving at the police station, he was never informed as to why he was being arrested.

At trial, Investigator Joseph Gorman of the Chicago police department testified that he first saw defendant at police headquarters on March 8, 1979, at approximately 11 p.m. Earlier that day he had arrested Crump, who subsequently implicated defendant. Gorman advised defendant of his rights, told him that they had arrested several individuals who were involved in two armed robberies and shootings and that those individuals had all cooperated with the police. When Gorman asked defendant what he had to say about the Oswald incident, defendant told him that on March 7, 1979, he and four others left Danaldo Williams’ house in a yellow Cougar and drove around looking for someone to rob. They pulled into a restaurant parking lot and waited until a man came out and got into his car. Defendant and Bruce Collins stayed in the car while the other three, armed with a pistol, got out, forced the man into his brown Cadillac, entered the Cadillac themselves, and drove off. Collins and defendant followed the Cadillac for a while, then turned off when they spotted a squad car. A short time later, the three assailants returned in the brown Cadillac without the victim. All five of them discussed what had happened and decided to “go out and get another one.” They returned to the restaurant parking lot, saw a man leaving, and decided to follow him. Collins and another person left the group after the first robbery, and Dawkins and Armón joined the group for the second robbery. When the man they were following stopped and parked his car, Dawkins and Armón, armed with a shotgun, robbed and shot the victim, after which all of them returned to 87th Street.

Investigator Dan Rolewicz of the Chicago Police Department testified that on March 8, 1979, approximately 5 p.m., during his interview with Victor Armón at police headquarters, Armón implicated defendant in the Brady incident and gave Rolewicz defendant’s approximate address which was later verified through a record check and given to the arresting officers. Later that evening, approximately 11:30 p.m., Rolewicz interviewed defendant as to his knowledge of the Brady incident. Although defendant declined to give a written statement, he told Rolewicz that approximately 1 a.m. that morning, he and three others were riding around looking for someone to rob when they saw a white male leaving a lounge and getting into a red car. They followed him to where he parked his car and two of defendant’s companions, armed with a sawed-off shotgun, got out of the car and walked toward the white male. When the potential victim spotted them, he pulled away. Defendant and his friends followed him to another location, where the same two individuals, armed with the sawed-off shotgun, got out of the car in which defendant was riding, robbed the man and then shot him in the back. All four of the offenders shared in the proceeds. Rolewicz further stated that he saw defendant again approximately four hours later in one of the interrogation rooms where he was being shown the weapons confiscated at Dawkins’ apartment. On cross-examination, Rolewicz indicated that he did not take notes during defendant’s statement, nor did he tape record it.

Officer John Brines of the Evergreen Park police department testified that because Summer’s West Restaurant is located in Evergreen Park, he was working with the Chicago police on the investigation of the Oswald incident. In this capacity, on March 8, 1979, approximately 11 p.m., Brines received a phone call from the Chicago police informing him that defendant was in custody, and that he had given a statement regarding the Oswald incident. Brines immediately drove to the Chicago police station and interviewed defendant, who told him that his friends, Crump, Armón, Bell and Collins picked him up at his house on the evening of March 7, 1979, in a yellow Cougar and the five of them drove around for a short time, eventually stopping in the parking lot of Summer’s West Restaurant. When Oswald pulled into the parking spot next to them, Crump, Collins and Bell forced Oswald back into his car, got into the car with him and drove north on Western Avenue to 87th Street, and turned right. Defendant told Brines that he did not know or was not aware of what occurred after that until his friends returned to tell him.

At the conclusion of Brines’ testimony, the State rested its case and defendant’s motion for a directed verdict was denied on the ground that the issue of accountability is a question of fact for the jury.

Next, Dorothy Calhoun, defendant’s mother, testified that defendant had been home the entire evening of March 7, 1979, as well as the early morning hours of the following day. Mrs. Calhoun denied that she had mentioned Crump’s name to the arresting officers and denied having been told by the officers why they were taking defendant to police headquarters.

In rebuttal, Investigator Lawrence Fenlon of the Chicago police department testified that on March 8, 1979, approximately 5:50 p.m., he and his partner, Investigator Roney, were assigned to arrest defendant at his home. When they arrived at defendant’s home, they talked to his mother, who informed them that defendant was not at home. She then asked the officers if they were looking for defendant in connection with the shooting for which Crump had been arrested. She had heard about Crump’s arrest on the radio. Later that evening, approximately 10:30 p.m., Fenlon and Roney returned to defendant’s home and were invited into the apartment by defendant’s father. The parents were told why the officers were there and where defendant was being taken.

Following closing arguments, defendant’s motion for a mistrial based upon the State’s inflammatory and prejudicial remarks during closing argument was denied. The jury returned with a verdict of guilty of attempted murder, armed robbery and aggravated battery; the court merged the aggravated battery and attempted murder convictions; denied defendant’s motions for judgment notwithstanding the verdict, arrest of judgment and new trial; and sentenced defendant to concurrent terms of 15 years. This appeal followed.

Opinion

We first consider defendant’s contention that the trial court improperly denied his motions to quash his warrantless arrest and to suppress the subsequently obtained confessions. The State admits that the arrest was made without a warrant, but argues that the existence of probable cause, consensual entry and exigent circumstances justified the warrantless arrest.

Neither party disputes the existence of probable cause which was established by the implicating statements made by two of defendant’s co-offenders. However, probable cause by itself is not sufficient justification for a warrantless arrest. Either consensual entry given by someone who has control over the premises (People v. Bean (1981), 84 Ill. 2d 64, 69-70, 417 N.E.2d 608), or exigent circumstances must also be present. Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1382.

In the present case, defendant’s father denied having given his consent to enter to the arresting officers. He claimed that they simply “brushed by” him and went to the upstairs apartment with their guns drawn. In contradiction to Mr. Calhoun’s testimony, Investigator Ro-ney, one of the arresting officers, stated that when he and his partner returned to defendant’s residence approximately 10:30 p.m. on March 8, after having explained earlier to defendant’s mother that they would be returning to talk to defendant, defendant’s father answered the door and invited them to come upstairs. When the officers entered the living room, defendant was standing there with his mother.

It is well established that a determination as to the credibility of conflicting testimony at an evidentiary hearing is within the province of the trial court, and its ruling will not be set aside absent a finding that it was clearly erroneous. (People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.) In the present case, the trial court set forth a detailed account of its rationale for denying defendant’s motion, specifically stating with respect to consensual entry that:

“[The officers] went back there at 10:30 and were then given entry by Mr. Calhoun. Now whether they brushed by him or whatever, I think that it is a fair statement that Mr. and Mrs. Calhoun knew exactly why the police were there, there was a time frame in which they could collect their thoughts, that the door was opened and that the Police were ultimately in the home, and that with what I would describe as with little to-do, Kevin went with them under arrest, and that is for sure, too.”

It is apparent that the trial court found from a review of the testimony that the totality of the circumstances indicated that there was consensual entry. Upon review of the record, we find no ground upon which to reject this determination and, therefore, concur with the trial court’s finding of consensual entry. Accordingly, our conclusion that defendant’s warrantless arrest was justified by the existence of probable cause and consensual entry, not only obviates the need to discuss the presence of exigent circumstances (People v. Bean (1981), 84 Ill. 2d 64, 69, 417 N.E.2d 608), but also dispels defendant’s reli-anee on Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, which prohibits a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.

Defendant further contends that the trial court committed prejudicial and reversible error when it allowed the State to present evidence of the Oswald incident. Defendant argues that because Oswald’s testimony did not provide any evidence that would assist the jury in its determination as to whether defendant had been involved in the Brady incident, its only purpose was “to prejudice the jury against the defendant.” In response, the State argues that because the Oswald incident occurred shortly before the Brady incident and the mod/us operandi of each incident was virtually identical to the other, testimony as to the Oswald crime was relevant and properly admissible to show intent, knowledge and common design.

As a general rule, the prosecution may not introduce evidence of other criminal acts committed by the accused unless the evidence is substantially relevant for some purpose other than to show the accused’s propensity toward criminal acts. (McCormick, Evidence sec. 157, at 327 (1954).) This rule, however, is subject to numerous exceptions, one of which states that evidence of other criminal offenses is admissible to show, by similar acts or incidents, that the offense charged was not inadvertent, accidental, unintentional or committed without guilty knowledge. People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821; McCormick, Evidence sec. 157, at 329 (1954).

In the present case, the State does not allege that defendant personally robbed or shot Brady. Instead, it alleges that defendant’s participation coupled with the requisite guilty knowledge of what was about to transpire render him criminally accountable for the actions of those who did personally rob and shoot Brady. In order to establish defendant’s accountability, the State must prove defendant’s intent to promote or facilitate the commission of the substantive crime by either soliciting, aiding, abetting, agreeing or attempting to aid the actual perpetrators. (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2(c).) It was for this purpose that the testimony regarding the Oswald incident was introduced into evidence. Therefore, we concur with the trial court’s decision that evidence of the Oswald incident was relevant and properly admissible to show intent, knowledge, common design and modus operandi.

Defendant further contends that the trial court’s denial of his motion in limine to prohibit the prosecution from introducing evidence that Brady was a Chicago alderman prejudiced his rights to a fair and impartial trial.

Prior to trial, defendant filed a motion in limine to exclude any reference to Brady’s status as an alderman on the grounds that this information was irrelevant to the issues at bar and could cause undue prejudice to defendant. In response, the State argued that Brady’s employment was “germane” to establishing his credibility and suggested that an equitable solution to defendant’s concerns would be for the trial court to inquire during voir dire as to whether Brady’s employment would have any prejudicial effect on the prospective jurors. The trial court agreed with the State’s suggestion and denied defendant’s motion. Inasmuch as the record does not include a transcript of the voir dire, we must assume that the prospective jurors were adequately queried as to any prejudice with respect to Brady’s position as an alderman (see Schranz v. I. L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 511, 412 N.E.2d 1378), and conclude that such an examination is sufficient in itself to create a reasonable assurance that the impaneled jury was both qualified and impartial. People v. Caldwell (1976), 39 Ill. App. 3d 1, 4, 349 N.E.2d 462.

Defendant next contends that the trial court committed reversible error when it refused to grant a mistrial based upon the State’s overly detailed account of the Oswald incident during its opening statement. Specifically, defendant argues that “[t]he spelling out [of] the details of the Oswald case put the defendant to the task of defending against two separate cases at the same time.” We disagree.

As previously discussed, evidence of the Oswald incident was properly admissible as establishing motive, scheme, common design, intent, or modus operandi. (People v. McKibbins (1983), 96 Ill. 2d 176, 186, 449 N.E.2d 821.) Therefore, reference to such evidence during the opening statement is proper and cannot logically be considered prejudicial. (People v. Wilson (1980), 87 Ill. App. 3d 693, 697, 409 N.E.2d 344; People v. Bridges (1979), 71 Ill. App. 3d 868, 872, 390 N.E.2d 407.) As a caveat, however, it was incumbent upon the State to limit the details of other crimes to those which were relevant to proving accountability. In our opinion, the State did not exceed these limitations in its opening statement. Moreover, any possibility of confusion to the jurors by introduction of details regarding the Oswald incident was clarified by the court’s admonishments to the jury during the State’s opening statement and, later, by the jury instructions which stated that evidence as to Oswald was being introduced for a limited purpose.

Defendant further contends that he was not proved guilty beyond a reasonable doubt because his uncorroborated post-arrest statements to the police were insufficient to establish the corpus delicti.

It is axiomatic that in order to establish both the corpus delicti and the essential trustworthiness necessary to corroborate a confession, there must be some independent evidence which tends to show that a crime did occur. (People v. Willingham (1982), 89 Ill. 2d 352, 358-59, 432 N.E.2d 861.) It is not necessary that the independent evidence prove beyond a reasonable doubt that the crime occurred; it need only tend to prove that an offense occurred and corroborate the facts contained in the confession. If these two requisites are satisfied, the independent evidence together with the confession is sufficient to establish the corpus delicti. People v. Conley (1983), 118 Ill. App. 3d 122, 132, 454 N.E.2d 1107.

In the present case, the independent evidence elicited from both Oswald and Brady at trial not only tended to show that the offenses occurred, but also corroborated defendant’s confessions. Therefore, contrary to defendant’s assertions, it was sufficient to establish the corpus delicti and to provide proof of defendant’s guilt beyond a reasonable doubt.

Defendant further claims that reasonable doubt was created by the “uncontradicted” alibi testimony of his mother. We disagree for two reasons. First, the alibi testimony was not uncontradicted. Defendant’s three separate confessions provided persuasive contradiction. Moreover, the impact of the alibi testimony, uncontradicted or not, goes to the credibility of the witness, which is a determination reserved for the trier of fact and one for which we will not substitute our judgment. People v. Conley (1983), 118 Ill. App. 3d 122, 132, 454 N.E.2d 1107.

Finally, defendant contends that his conviction should be reversed as a result of the State’s remarks during closing argument which suggested that defendant had a duty to call the co-offenders as witnesses for his defense. The remarks at issue are the following:

“Regarding the alibi Defense, [Defense] Counsel claims we could have brought in other witnesses. Why didn’t he bring in the father?
* * *
Why did he not bring in Armon, Bell or Crump?”

As a general rule, a defendant has no obligation to call witnesses and the fact that he does not raises no presumption that if those witnesses were called, they would have testified unfavorably to him. (People v. Smith (1969), 105 Ill. App. 2d 8, 11, 245 N.E.2d 23.) Moreover, it is improper for a prosecutor to comment on defendant’s failure to call witnesses where the comment suggests that the witnesses would have testified unfavorably and where the witnesses are as accessible to the State as they are to the defendant. (People v. Scott (1980), 92 Ill. App. 3d 106, 112, 415 N.E.2d 1082.) In the present case, while we agree that the State’s comments were improper, we conclude that the overwhelming evidence of defendant’s guilt nullifies any possibility of prejudice to defendant and precludes a finding of reversible error. People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.

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

Affirmed.

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


author: PRESIDING JUSTICE SEIDENFELD

text:
    FORD MOTOR COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Wardell Minor, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—422WC
    ' Opinion filed August 1, 1984.

      Perz & McGuire, of Chicago (Frank M. Perz and Robert A. Soltis, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (John W. McCaffrey and Carolyn B. Notkoff, Assistant Attorneys General, of counsel), for appel-lee The Industrial Commission.
    Michael R. Schneider, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for other appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Ford Motor Company appeals from an order of the circuit court of Cook County which confirmed a decision of the Industrial Commission. The Industrial Commission had agreed with the award by the arbitrator of 126/v weeks’ compensation for temporary total disability but had modified the arbitrator’s finding of 5% permanent loss of use of the right foot of the claimant, Wardell Minor, and granted compensation for 21/2% loss of use of the foot. In addition, the Commission, on its own motion, ordered Ford to repay to the State unemployment compensation benefits for the period of a general layoff and to pay the employee the excess. It specifically found that the order of reimbursement was not a lien against the award of compensation.

Claimant was employed by Ford as a spot welder. On December 5, 1978, he twisted his right ankle while walking over a pile of guard rails lying on the floor. He received first aid from the plant nurse and returned'to work the following day, being given whirlpool treatments at the plant and doing odd, sit-down jobs. This continued for six to seven weeks, when he returned to regular duty. He continued to experience problems described as “throbbing” and “locking” in his ankle and stiffening of his leg.

On June 11, 1980, he had a second accident, twisting his ankle on the ladder used in the pit in which he worked to install floor pans in the assembly of new cars. He was sent to the Hammond Clinic, where the ankle was X-rayed and bandaged. He was referred back to the plant infirmary for follow-up care. He saw Dr. Campbell, the company physician, who gave him a cane and started him on whirlpool treatments. He returned to work the day after the accident under instructions from Dr. Campbell to do limited walking. He was unable to do spot welding, and he was given odd jobs where he could sit down and rest if the ankle bothered him. This continued until the general layoff on June 30, 1980. Before he left the plant on the layoff he was instructed by Dr. Campbell to “[s]tay off” his ankle. He soaked his ankle about every day.

When the layoff ended about August 25, 1980, he went back to his regular job, but he could not keep up with production because his ankle was giving him pain. He went back to Dr. Campbell, and whirlpool treatments were again prescribed, but he was taken off his regular job and put on “all kind of odds and ends.” In October of 1980 employees who were on light duty were let go because there was no work available, and he was “sent out on worker’s compensation” on October 6. He received no money during the first layoff. On November 10,1980, he returned to his regular job, spot welding.

The June 12, 1980, report from the Hammond Clinic signed by Dr. Vallejos, M.D., diagnosed a “Sprained Right Ankle,” and advised compression bandage and crutches. X rays were shown negative of fractures, and the employee was referred back to the company medical department for further treatment.

The evaluation report of Dr. David Fisher dated December 15, 1980, noted, as objective findings, a reaction to palpation on the anterior and lateral aspects of the right ankle region; that the circumferential measurement of the ankles and of the supra-malleolar region are within normal limits; that no fracture or dislocation are revealed by X-ray examination; but that there was a slight difference in motion in the left and right ankle and forefoot. The report concluded that the employee had sustained deep soft tissue and ligamentous injuries to his right ankle and that this was an aggravation of a similar injury in 1978.

I

The Industrial Commission has raised an issue of waiver, which we first consider. The arbitrator, as noted, decided that petitioner was temporarily totally incapacitated for work during the layoff from June 30, 1980, through August 25, 1980. The Commission argues that, in its summary sheet for oral argument on Ford’s appeal to it, an “alternative” argument was presented by Ford that conceded that the employee was entitled to temporary disability benefits for the time he was unemployed but only to the extent that such benefits exceeded the amount of unemployment compensation already received. The principle that an appellate court will consider only questions raised in the trial court also applies to a review of administrative determinations. (Leffler v. Browning (1958), 14 Ill. 2d 225, 228.) The summary sheet does not appear in the record before us, but we have been furnished with a copy and a stipulation that it be made a part of the record on appeal. The first claim of error involves the unemployment-compensation issue. The second states that “[t]he amount of disability awarded is too high.” The text of the proposed findings concerns the unemployment-compensation issue and a further argument that, even if the petitioner was entitled to temporary total compensation, Ford would be liable only for the excess. There is, however, the statement disputing the temporary total award, because “[h]e also received no treatment during that period of time.” Under these facts we choose not to apply the rule of waiver to bar Ford’s first contention here that the award of temporary total disability for the June 30 to August 25 period is invalid because of a claimed lack of evidence that Minor would have been working but for his accident at work.

II

On the merits, however, we conclude that the claimant has proved, by the manifest weight of the evidence, his entitlement to temporary total disability payments during the layoff period.

“Temporary total disability compensation is to be awarded for the period of time between the injury and the date the employee’s condition has stabilized.” (Caterpillar Tractor Co. v. Industrial Com. (1983), 97 Ill. 2d 35, 44.) One is temporarily totally disabled when “ ‘ “he cannot perform any services except those for which no reasonably stable labor market exists.” ’ ” (Zenith Co. v. Industrial Com. (1982), 91 Ill. 2d 278, 287.) The fact that an employee is no longer receiving medical treatment does not preclude an award of temporary total disability. (91 Ill. 2d 278, 287.) The Commission’s resolution of factual issues, conflicting medical testimony, and the weight and credibility of testimony will not be disturbed unless it is against the manifest weight of evidence. See, e.g., McLean Trucking Co. v. Industrial Com. (1983), 96 Ill. 2d 213, 219.

The Industrial Commission could properly find from the evidence that, even if there had been no layoff, the claimant was able to do only light work during the layoff period. At the time he left the plant on layoff he was under instruction by the company doctor to “stay off” his ankle. When the period ended he was unable to perform his regular job because of pain in his ankle, and was, in fact, taken off that work and placed on light work.

Ford relies on Mt. Olive Coal Co. v. Industrial Com. (1920), 295 Ill. 429, and Guest Coal Co. v. Industrial Com. (1927), 324 Ill. 268, to argue that temporary total disability is to be awarded only for the period in which the injured employee is totally incapacitated for work, due to the injury. In Mt. Olive, the opinion noted that when the employee’s broken bone in his arm “had completely knitted and the usual attendant soreness and stiffness disappeared, the period of the temporary incapacity ended and any disability then existing was necessarily the result of the permanent character of the injuries received.” (295 Ill. 429, 432.) In Guest, the evidence clearly showed that the employee was not temporarily totally incapacitated for work for 583/7 weeks from the January 7, 1924, injury, when he could do construction and carpenter work prior to September 4, 1924. (342 Ill. 268, 274-75.) Both cases are distinguishable on their facts.

Neither the ability to do light work nor the nonreceipt of medical treatment, as argued by Ford, preclude a finding of temporary total disability. See Zenith Co. v. Industrial Com. (1982), 91 Ill. 2d 278, 286-87.

III

Ford next argues that the Workers’ Compensation Act contains no provision empowering the Commission to order repayment of unemployment compensation. Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.

The Industrial Commission defends this portion of the Commissions’ decision, noting that the Unemployment Insurance Act allows for such recoupment:

“D. Whenever, by reason of a back pay award made by any governmental agency or pursuant to arbitration proceedings, or ■ by reason of a payment of wages wrongfully withheld by an employing unit, an individual has received wages for weeks with respect to which he has received benefits, the amount of such benefits may be recouped or otherwise recovered as herein provided. An employing unit making a back pay award to an individual for weeks with respect to which the individual has received benefits shall make the back pay award by check payable jointly to the individual and to the Director.” Ill. Rev. Stat. 1981, ch. 48, par. 490D.

The Commission also refers to section 8(b)(1) of the Workers’ Compensation Act, which, in substance, provides that temporary total incapacity for work shall be equal to 662/s of the employee’s weekly wage computed according to a schedule set forth in the statute. (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)(1).) It contends that, although Minor was not awarded “back pay” as stated in the Unemployment Insurance Act, quoted above, the payments were in lieu of salary under section 8.8(b)(1) and thus qualified. The Commission also relies upon Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168, 177-78.

An argument similar to that made by Ford here was made in Crow’s. There, the court stated that “an employer is liable for all disabilities traceable to the accidental injuries sustained by an employee in the course of employment.” (Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168, 178.) The court referred to a provision of the Unemployment Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 436) to sustain an award of temporary total compensation during a period after an injury in which the employer did not permit the employee to work, and during which the employee was receiving unemployment compensation; and noted:

“The import of the statute is that the unemployment compensation, to the extent that claimant is eligible for it, will be reduced by the amount of the disability benefits — not that the disability benefits will be reduced or not paid at all. This is not to suggest that claimant should receive a double recovery not permitted by statute. *** A further implication [of Crow’s Hybrid argument] is that claimant was not really temporarily totally disabled, as the Commission found, because in order to receive unemployment compensation, a worker must be available for, i.e., able to, work. *** First, the statutory provision, *** does not, by implication or otherwise, mutually exclude or find inconsistent receipt of disability benefits and availability for work.” 72 Ill. 2d 168, 178-79.

The same provision is here in effect:

“An individual shall be ineligible for benefits for any week with respect to which he is receiving or has received remuneration in the form of compensation for temporary disability under the Workers’ Compensation Act of this State, or under a workers’ compensation law of any other State or of the United States. If such remuneration is less than the benefits which would otherwise be due under this Act, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.” Ill. Rev. Stat. 1981, ch. 48, par. 436.

In Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, 500-01, the employer contended that the Commission’s award for temporary total disability should be abated for a 24-week period when the claimant received unemployment compensation. The court rejected the argument, citing and following Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168.

Ford argues that the cited cases do not apply because the opinions decided only that unemployment compensation is not lost but merely reduced by compensation paid during a layoff period if the employee remains temporarily totally disabled. We conclude, however, that the principles stated in both Crow’s and Hunter support the decision of the Industrial Commission. The fact that the Workers’ Compensation Act is not explicitly coordinated with the unemployment compensation statute is a product of the fact that unemployment compensation statutes did not put in their appearance until the 1930’s, while workers’ compensation statutes have an earlier origin. See Annot., 96 A.L.R.2d 941 (1964).

We do note, however, that the portion of the Commission’s decision which orders Ford to repay the Illinois Department of Labor is stricken as unnecessary since the statute (Ill. Rev. Stat. 1981, ch. 48, par. 490(D)) is the source of that requirement, not the action of the Commission.

The decision of the circuit court of Cook County is affirmed.

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


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ELOY SANCHEZ, Respondent-Appellant.
    First District (2nd Division)
    No. 83-400
    Opinion filed August 7, 1984.
    Rehearing denied September 5, 1984.
    James J. Doherty, Public Defender, of Chicago (Marilyn Martin, Assistant Public Defender, of counsel), 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 STAMOS

delivered the opinion of the court:

Respondent Eloy Sanchez was found not guilty by reason of insanity of homicide. Thereafter, a hearing was held to determine if Sanchez was in need of mental health treatment. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4.) He appeals from the trial court’s order finding him in need of mental health services on an inpatient basis.

Respondent shot and killed his wife and wounded his son and mother-in-law on August 21, 1981. Respondent was examined by three psychiatrists who concluded that at the time of the offense, respondent was suffering from a paranoid and persecutory delusion and that he was legally insane. The State presented no evidence in rebuttal. The trial court found respondent not guilty by reason of insanity.

As a result of this finding, a hearing was conducted to determine if respondent should be committed to a mental institution for treatment. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4.) At the outset of the hearing, respondent contested the constitutionality of the statute under which the hearing was being held. The parties filed memo-randa addressing the issue and the court found the statute to be constitutional. Dr. Joseph Mehr, chief psychologist at the Elgin Mental Health Center, testified at this hearing on December 21, 1982. Dr. Mehr had interviewed respondent the day prior to the hearing and on September 3, 1982. Mehr testified that in his opinion respondent was not subject to involuntary admission under section 5 — 2—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 2 — 4(a)(1)(A), but that he was in need of inpatient services (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)(1)(B)). Mehr believed that respondent’s need of inpatient care stemmed from the danger that respondent could resort to violent behavior when placed in a stressful interpersonal situation, such as contact with his family.

On cross-examination, Dr. Mehr conceded that respondent’s condition had been down-graded from schizophrenia to schizoid personality disorder to paranoid personality disorder and that respondent exhibited no evidence of hallucinations or disorganization of personality. Respondent had also exhibited no agitative or aggressive behavior.

Over respondent’s objection, the State was permitted to reopen its case after Dr. Mehr’s testimony and to present the testimony of Dr. Eduardo Machado, who examined respondent on December 17, 1982. Basically, Dr. Machado concluded that respondent suffered from schizophrenia and was in need of inpatient hospitalization. On cross-examination, Dr. Machado conceded that respondent had not exhibited violent behavior for quite some time.

At the close of the hearing, counsel for respondent urged that the experts’ “equivocal” testimony failed to meet the standard of clear and convincing evidence and urged conditional release under whatever conditions the court felt were appropriate. The court found that respondent was in need of inpatient mental health services. Respondent was committed for an indefinite period of time not to exceed 40 years. Respondent appeals.

Respondent first contends that, for several reasons, the standard for involuntary admission set forth in section 5 — 2—4(a)(2)(B) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 2 — 4(a)(1)(B)) is unconstitutionally vague and therefore violative of due process.

Initially, respondent contends that subsection (B) is tautological or circular. In support of this contention, respondent cites Goldy v. Beal (M.D. Pa. 1976), 429 F. Supp. 640. Goldy involved a Pennsylvania statute which allowed for involuntary and indefinite commitment of a person “in need of care and treatment” because of a mental disability. “Mental disability,” in turn, was defined as a condition “[making] it necessary or advisable for him to be under care.” Because of the circuitous nature of the statute, there was nothing to prevent its arbitrary enforcement. Accordingly, the court in Goldy struck the statute down as violative of due process.

Respondent attempts to draw a parallel between the statute in the instant case and that confronted in Goldy. A cursory reading of the statute in the instant case, however, reveals that it is not circular. The statute states:

“ ‘In need of mental health services on an inpatient basis’ means: a defendant who has been found not guilty by reason of insanity who is not subject to involuntary admission but who is reasonably expected to inflict physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-4(a)(l)(B).)

The highlighted phrase prevents this provision from being circular. Respondent must be found to be “reasonably expected to inflict physical harm upon himself or another” before a determination is made as to whether he would benefit from or is in need of inpatient care. Thus, contrary to respondent’s assertion, the statute does not circuitously define “in need of mental health services on an inpatient basis” as a need for inpatient care.

Respondent’s second due process attack concerns the absence from subsection (B) of the phrase “mental illness.” By omitting the mental illness requirement, respondent contends that the statute dispenses with any requirement that there be a causal connection between respondent’s potential dangerousness and the mental illness suffered at the time of the offense. Respondent concludes that because of the lack of a finding of causality between an identifiable mental illness and the potential for dangerousness, the statute allows for impermissible preventive detention.

The legislature’s failure to use the phrase “mental illness” in enacting subsection (B) is not constitutionally fatal. We have previously noted that the requirement that there be a finding that an acquittee “would benefit from inpatient care” provides a sufficient foundation for commitment. (See People v. Gamble (1983), 117 Ill. App. 3d 543, 546-47, 453 N.E.2d 839.) This requirement, together with the requirement that there be a finding that respondent is “reasonably expected to inflict physical harm upon himself or another,” are meaningful criteria which preclude arbitrary commitment decisions. Accordingly, we find that section 5 — 2—4(a)(1)(B) does not violate the due process clause.

We also find that subsection (B) implicitly requires that a respondent’s potential dangerousness directly relate to the mental illness which led to respondent’s acquittal. This implication derives from the procedures set forth in the statute. The statute provides that after a verdict of not guilty by reason of insanity, the defendant shall be examined to determine if he should be involuntarily admitted or if he is in need of mental health services. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4.) Following this examination, the court is to hold a hearing to determine if the defendant should be admitted or whether his needs could be dealt with adequately on an out-patient basis. In making this determination, the court is guided in part by subsection (B), which provides for inpatient care upon a finding of a reasonable expectation of dangerousness. Given that the procedures under section 5 — 2—4 follow only from a finding of not guilty by reason of insanity, it is evident that the focus of those procedures would be on the mental disorder which led to the acquittal. Any use of the provisions of section 5 — 2—4 to secure a commitment for a mental disorder different from that which led to the acquittal would be an improper attempt to secure a civil commitment, which is properly covered by section 1 — 119 of the Mental Health and Developmental Disabilities Code. Ill. Rev. Stat. 1981, ch. 9D/2, par. 1-119.

Respondent also lodges an attack on section 5 — 2—4 on equal protection grounds. This attack, however, is grounded on a misapprehension of Illinois law. Respondent first contends that there is no rational basis for distinguishing between insanity acquittees and civil committees. Respondent’s argument and the cases he cites indicate that this contention is based on the belief that an insanity acquittal in Illinois results in a presumption of mental illness at the subsequent hearings under section 5 — 2—4. See Allen v. Radack (S.D. 1977), 426 F. Supp. 1052; Matter of Torsney (1979), 47 N.Y.2d 667, 394 N.E.2d 262; Bolton v. Harris (D.C. Cir. 1968), 395 F.2d 642.

However, it is clear that no presumption of mental illness results from an insanity acquittal and no such presumption exists in a section 5 — 2—4 commitment hearing. The insanity acquittal does not constitute an adjudication of a defendant’s sanity; all that has been determined is that a reasonable doubt as to sanity exists. (See People v. Gamble (1983), 117 Ill. App. 3d 543, 546, 453 N.E.2d 839.) The fact that an acquittal occurred is relevant evidence at a section 5 — 2—4 commitment hearing, but it is the State that bears the burden of proving, by clear and convincing evidence, that an insanity acquittee is in need of mental treatment. (See People v. Czyz (1980), 92 Ill. App. 3d 21, 25, 416 N.E.2d 1.) In proving its case, the State must produce a current evaluation of the acquittee’s state of mind and the commitment decision must be based on the acquittee’s present conduct and state of mind. See People v. Czyz (1980), 92 Ill. App. 3d 21, 25, 416 N.E.2d 1; People v. Butler (1979), 69 Ill. App. 3d 556, 559, 387 N.E.2d 908.

Respondent’s second contention is likewise grounded upon the mistaken belief that there is a presumption of mental illness in a section 5 — 2—4 commitment hearing. Under this contention, respondent alleges that there is no rational basis for the disparate treatment of insanity acquittees and those committed under the sexually dangerous persons Act. Respondent states that sexually dangerous persons can be committed only upon a finding of a current mental disorder, whereas insanity acquittees can be committed “upon a presumption derived from past conduct.” But given the fact that there is no presumption of mental illness as a result of an insanity acquittal, respondent’s premise for charging disparate treatment is erroneous and accordingly, his contention fails.

Finally, respondent contends that the State failed to show, by clear and convincing evidence, that he was in need of mental health services on an inpatient basis. In support of this contention, respondent points primarily to evidence that he was not viewed as posing an immediate physical danger to himself or to others. Dr. Mehr diagnosed respondent as suffering from a paranoid personality disorder. This diagnosis stemmed from respondent’s belief that there was a conspiracy against him, that grease was being applied to his windshield wipers to cause an accident, and that he thought his wife was meeting with a member of the KGB or the Cuban secret police. These delusions prevented respondent from understanding the crime he had committed to the point of believing that the killings were an accident and that a third party had fired the fatal shots. It was respondent’s lack of insight as to the offense and his lingering doubts about the events surrounding the killings and his role in them that led Dr. Mehr to conclude that respondent was in need of inpatient care.

Dr. Machado’s initial diagnosis was also paranoid personality. Dr. Machado testified that if paranoid personality were the only problem, inpatient hospitalization would not be recommended. Dr. Machado later changed his diagnosis to schizophrenia, although he had not observed any behavior indicative of such a disorder.

Citing People v. Czyz (1980), 92 Ill. App. 3d 21, 416 N.E.2d 1, respondent argues that paranoid personality is not a mental illness and hence, an insufficient basis for inpatient hospitalization. But in Czyz, the trial court ordered the defendant hospitalized despite the recommendations to the contrary by all three psychology experts who testified. (See also People v. Smith (1984), 126 Ill. App. 3d 5, 10.) In light of the unanimous recommendations of the experts, the court on appeal reversed the trial court’s hospitalization order.

In the instant case, the experts unanimously recommended inpatient hospitalization. This fact serves to distinguish the instant case from Czyz. Moreover, in addition to diagnosing respondent as a paranoid personality, the experts in the instant case concluded that he was potentially dangerous to himself or to others. This factor further distinguishes this case from Czyz. It also reduces the significance of Dr. Machado’s testimony that paranoid personality alone is an insufficient basis for hospitalization. It was respondent’s potential for dangerousness which prompted the recommendations for hospitalization, and the diagnosis of paranoid personality would not appear to dictate a contrary recommendation.

Respondent also points to the fact that both experts in the instant case concluded that he was not expected to inflict serious physical harm in the near future. Both experts concluded that respondent was not capable of coping with a stressful interpersonal situation, such as a meeting with his son or his mother-in-law. Respondent likens this conclusion to the one reached in People v. Nunn (1982), 108 Ill. App. 3d 169, 438 N.E.2d 1342, wherein respondent was committed because he might not continue to take his medicine if treated on an outpatient basis. But unlike the possibility in Nunn that the defendant might stop taking his medicine, there is the probability in the instant case that respondent will act on his paternal instincts and attempt to contact his son upon his release. Such a meeting could lead to a regression of respondent’s paranoid condition and possibly result in violent behavior.

The burden was upon the State to prove by clear and convincing evidence that respondent was in need of inpatient care. (People v. Turner (1978), 62 Ill. App. 3d 782, 784, 379 N.E.2d 377.) Toward this end, the State produced two experts who testified that respondent was potentially dangerous and that he was in need of inpatient care. These conclusions satisfied the requirements of section 5 — 2—4(a)(l)(B) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(a)(l)(B)). Respondent had an opportunity to cross-examine these witnesses and to bring to the trial court’s attention factors favoring outpatient treatment and weaknesses in the bases for the experts’ conclusions. Upon the totality of the evidence presented, we find that the State proved respondent’s need for inpatient care by clear and convincing evidence.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and PERLIN, J., concur.