author: Mr. PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD MILLER (Impleaded), Defendant-Appellant.
    First District (4th Division)
    No. 80-265
    Opinion filed October 8, 1981.

      Ralph Ruebner and Eva Field, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Adrienne Noble Nacev, Casimir J. Bartnik, and Richard T. Sikes, Jr., Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial the defendant, Edward Miller, was convicted of murder and two counts of attempted murder. He received concurrent sentences of 50 to 100 years for murder and 10 to 20 years for each attempted murder. On appeal defendant contends: (1) a series of erroneous evidentiary rulings by the trial court deprived him of a fair trial; (2) prejudicial arguments by the prosecutor also deprived him of a fair trial; and (3) his sentences were excessive.

We affirm.

At trial Derrick Williams, 16 years old at the time of the incident, testified that on April 7,1975, he lived with Vincent Reed and Sylvia Wells in a basement apartment at 5329 South Kimbark in Chicago. That evening defendant, whom Williams had known for five or six days, and a man termed by Williams as defendant’s partner and described by him only as tall had a conversation with Reed and Williams at the apartment. Defendant told them that Deola Brown, a prostitute who lived on the second floor, had a customer in her apartment with $600. Williams obtained a .38-caliber gun from the defendant. He disguised himself as a woman, wearing Wells’ white coat, a blond wig, and sunglasses. Thus attired he went to Brown’s apartment, knocked on the door, and gained entrance, having called out a name in a disguised voice. Inside were Wells, Brown, and the customer. Reed and defendant remained on the stairway. Williams announced a robbery and took a watch and a little over one dollar from the customer. At trial Williams contended that Wells and Brown had not been involved in the robbery scheme. He escorted the three outside to the customer’s car. The women searched the car but found nothing and the customer was then sent on his way.

Williams returned the gun to defendant and also gave him the watch. However defendant accused them of having hidden the money, and he and Williams got into what Williams termed a “light argument.”

The next evening defendant, his taU partner, and a third man, whom defendant had seen before, returned to the apartment. The conversation initially was amicable but defendant then demanded his money. An argument ensued and defendant announced that if they did not produce the money he would kill them. He puUed out the same .38-caliber gun Williams had used the day before. Williams told him to put the gun away and to respect the “crib” (home). At this point defendant’s tall companion was blocking the doorway. The other man turned up the volume of a record player in the living room. In succession defendant shot Reed, who was seated at a desk about one and a half yards away, then Wells, seated on a sofa about one to two yards away, and then Williams, from the same distance as Wells. He and his companions then left.

Williams first shook Reed to see if he was all right and then went up one flight of stairs, where he apparently collapsed. He saw Reed go by him up to the. second floor.

Williams was taken to Billings Hospital where he was questioned that evening and again on April 13 by the police. He was shown five photographs and recognized one as that of the defendant. At trial he also admitted that he initially told the police that defendant had lived with Wells and the quarrel was about her. He admitted that this was a lie, told to avoid implicating himself in the armed robbery he had committed. Although Wells had not been living with Williams for the two and one half to three months he had known her, he did not know with whom she had been living before living with him. He had never known her to live with the defendant. But it was not until April 26 of that year that Williams admitted to the police that he had been lying about this. At trial Williams also admitted that he had been convicted of theft in January, 1976.

Sylvia Wells, 15 years old at the time of the shooting, testified to substantiaUy the same facts concerning the shooting as had Williams, with the following differences and additions. At the time of the incident she was not living with Williams but was living “on the other side” at" 5327 South Kimbark with an unnamed boyfriend. However she also testified she was Williams’ girlfriend at that time although she had never lived with him. She had only known him then for about two weeks. Wells had known the defendant for about a year. She named his two companions that evening as Herman Samuels and “Richardson.”

Immediately before the shooting, which Wells also recalled defendant accomplished with a .38-caliber revolver, defendant told her he would shoot her too and made her sit on the floor. He shot Reed at the desk, Williams on the couch, and then her. She passed out and awoke in the hospital.

Wells testified that the day before the shooting she was in Deola Johnson’s apartment with Deola and Deola’s “trick”(customer). Williams, armed with the same gun defendant used the next day and dressed like a lady, knocked on the door and said his name was Janice. On Deola’s instruction Wells let him in. Williams forced the customer to undress and took a dollar and some change from him. He then told all of them to go downstairs where he ordered Wells and Deola to search the man’s car. At this time Wells observed defendant standing outside with Herman Samuels. A week before she had seen defendant with the same gun he subsequently used to shoot her. Wells identified defendant in court as the man who had shot all three victims.

On cross-examination Wells admitted that during the period in which these events occurred she was a heroin user and at the time of the shooting she was “high off marijuana.” She, Williams, and Reed had smoked three or four “joints” between 6:30 p.m. and when defendant came in. However she estimated she had smoked only half of one and testified she was able to see and hear everything going on in the apartment. Defense counsel also elicited from Wells an admission that she had been known by one other name.

Although Wells persisted in her identification of defendant’s gun as a .38-caliber weapon, she admitted she did not know whether a .38 was smaller than a .45 and she generally admitted to not having a great degree of knowlege about guns.

Also testifying for the State were Chicago Police Officers Straza and Deacy. They were on patrol in the area the evening of April 8,1975, when Kenneth Johnson stopped them and told them three people had been shot at 5329 South Kimbark. In the foyer of the building they found Williams lying in a pool of blood with a gunshot wound to the face. Following a trail of blood into the apartment Straza found Wells in a crouched position on the couch. She too had been shot in the face. Deacy found Reed on the stairs near the second floor landing. No weapons were found in the apartment.

Officer William Sherlock, a police mobile unit technician, identified certain photographs he had taken at the scene. He testified that he found blood on and near the couch, on the floor of the vestibule of the building, and on the landing between the second and third floors. No weapons, cartridge cases, or bullets were found.

Police Homicide Investigator Robert Strahlman testified that he spoke to Williams at Billings Hospital the evening of the shooting and obtained from him a description of the shooter and a nickname. He showed Wells five photographs. After this he went to the defendant’s home but did not find defendant there or at other locations in the city. Strahlman served an arrest warrant on the defendant October 16,1975, in New Orleans.

Strahlman confirmed that Williams first told him the shooting occurred because he and Reed were living with Wells, who had been living with the defendant. Only after Strahlman confronted Williams on April 26, 1975, with his knowledge of the robbery that had occurred the day before the shooting did Williams admit that he had been lying about Wells having lived with the defendant. Williams told him he had lied because he did not want to be involved in the robbery.

Two doctors testified to having removed bullets from Wells and Williams and described the extent of their injuries. The pathologist who performed the autopsy on Reed testified that his death was caused by a gunshot wound to the head which caused damage to the cervical spinal cord and resulted in Reed choking from the aspiration of the contents of his stomach.

The parties stipulated that certain State exhibits were the bullets removed from the three victims. Sergeant Donald Smith, a firearms examiner with the Chicago Police Department, testified that upon examination of the bullets he determined they all showed characteristics of having been fired from a .38-caliber Special revolver. He could not determine whether they were all fired from the same weapon. He also conceded that the bullets could have been fired from .38-caliber weapons made by a number of different manufacturers.

Defendant testified in his own behalf, denying that he was present in the apartment the night of the shooting or that he had committed any of the crimes of which he was charged. Indeed, although he admitted-having visited Kenneth and Deola Johnson on prior occasions in the building, he denied ever having been in the basement apartment. He contended that he had only met Williams, Wells, and Reed once, at a shopping center in late March or early April of 1975. He had known Herman Samuels and Willie Nickerson for 15 years. Defendant also denied any knowledge of the robbery that occurred the day before the shooting.

Defendant admitted that in 1975 he owned a .38-caliber Special revolver but stated he always kept it at home. He could not remember where he was on the night of the shooting, but testified that in late March or early April 1975 he travelled to Louisiana with his wife and child to begin construction of a home on land donated by his grandparents. He stayed there until he was arrested. In April of that year he had heard from his wife, who had returned to Chicago, that the police were looking for him. He told her that he had done nothing and instructed her to tell the police where he was. While in Louisiana he used his own name and social security number in his employment. Defendant also testified that in 1969 he was convicted of indecent liberties with a child and placed on probation for one year.

I

Defendant contends that a series of erroneous evidentiary rulings by the trial court deprived him of a fair trial. We first consider his contention that the trial court abused its discretion in denying his motion in limine to bar the State from introducing evidence of his prior conviction.

Under the rule adopted in People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695, 698, the credibility of a witness may be attacked by evidence that he has been convicted of a crime only if the crime:

“« « o (2) was pUnishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. * * ” Evidence of conviction under this rule is not admissible if a period of moré than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.”

The conviction at issue was punishable by imprisonment for a period in excess of one year and occurred within 10 years of trial, therefore it was within the outside limitations established by Montgomery. The factors to be considered in determining whether in a particular case such evidence should in fact be permitted are: the nature of the crime, the nearness or remoteness in time of the conviction to the present trial, the subsequent career of the person, and whether the crime was similar to the one charged. (Montgomery, 47 Ill. 2d 510, 518, 268 N.E.2d 695, 700; People v. Spates (1979), 77 Ill. 2d 193, 205, 395 N.E.2d 563, 569; Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, 940.) In this case the fact that the conviction was almost nine years old tends to weigh against its admission. However, because it was punishable by over one year in prison it is presumed to relate to the credibility of the witness. (See Knowles v. Panopoulos (1977), 66 Ill. 2d 585, 589, 363 N.E.2d 805, 808; People v. Spates (1979), 77 Ill. 2d 193, 204, 395 N.E.2d 563, 568-69.) Finally, as the trial judge specifically noted, this was not a conviction for a crime similar to those with which defendant was charged. This tended to reduce the possibility that the jury would interpret this evidence as tending to prove the defendant committed the crime, despite the proper limiting instruction they received. (See Gordon v. United States (D.C. Cir. 1967), 383 F.2d 936, 940.) Upon evaluation of these factors we find no basis for determining that the trial court abused its discretion in allowing evidence of the conviction to be introduced.

Defendant contends that the trial court erroneously allowed the State’s motion in limine to bar defendant from introducing evidence concerning two judicial dispositions in which Sylvia Wells received periods of supervision for theft and soliciting for prostitution. Defendant concedes that under Illinois law discharge and dismissal upon a successful conclusion of a disposition of supervision is not considered a conviction (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—3.1(f)), and thus could not ordinarily be used under Montgomery. However he asserts that Wells might not have successfully completed the supervisionary periods and thus could have been convicted of the offenses charged. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4(e).) However, no such contention was made at trial by defense counsel even though it is clear from the record that counsel possessed Wells’ arrest record, which would have showed any such dispositions. The party seeking to impeach testimony with a conviction has the responsibility of presenting proper evidence of the impeaching conviction. (People v. Yost (1980), 78 Ill. 2d 292, 297, 399 N.E.2d 1283, 1285.) Accordingly, the trial court did not err in granting the State’s motion absent a showing by defendant that convictions existed.

At trial defense counsel also sought the court’s permission to question Wells concerning her use of other names and her use of narcotics. Defendant contends that the trial court improperly limited cross-examination on both these subjects. With respect to Wells’ use of other names, the record establishes that counsel was permitted to elicit from the witness everything he sought: Wells’ use of other names and the number of such names used. On the question of Wells’ use of narcotics, counsel conceded at trial that he was unprepared to offer any proof of Wells’ addiction should she deny it. The trial judge thus properly denied his request to question her as to whether she had been an addict. (People v. McCommon (1979), 79 Ill. App. 3d 853, 399 N.E.2d 224; People v. Ganci (1978), 57 Ill. App. 3d 234, 372 N.E.2d 1077.) Furthermore, counsel indicated to the trial court that what he sought to establish by this questioning was whether Wells was under the influence of drugs at the time of the incident. He was then allowed to question her specifically as to her use of drugs at that time. He elicited from her the dual admission that she was using heroin during that period and was under the influence of marijuana when the shooting occurred. We thus find no basis for defendant’s claim of prejudice.

Defendant cites as error the fact that the State elicited from Investigator Strahlman the information that he had arrested Herman Samuels and Willie Nickerson several weeks after the shooting. The indictments read to the jury at the beginning of trial charged these men with the same crimes as defendant. During trial Sylvia Wells identified the men with the defendant as Herman Samuels and “Richardson.” Defendant successfully objected to the questioning of Strahlman concerning these arrests. He has not specified the manner in which this questioning prejudiced him, and we determine in any event that any error was cured by the court’s action.

Investigator Strahlman also testified that Williams was shown five photographs at the hospital after the shooting. A successful defense objection prevented the State from eliciting what Williams did when shown these photographs. However Strahlman then testified that after he showed them to Williams he proceeded to defendant’s parents’ home. Defendant contends that this constituted impermissible hearsay evidence tending to bolster Williams’ identification of the defendant. But even assuming, arguendo, that Strahlman’s testimony describing his own actions amounted to a statement that Williams identified defendant from the photographs, such testimony was admissible because Williams had previously testified to that same fact. People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.

Defendant generally objects to what he terms prejudicial and cumulative evidence adduced by the State concerning the manner in which the victims were shot, the extent of their injuries, and the bloodstained condition of the apartment and surrounding area after the shooting. Defendant apparently contends this evidence was improper because the only fact at issue was who committed the shootings. But the fact that a defendant does not deny that a crime was committed does not preclude the State from fully establishing the facts concerning that crime. (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) The evidence objected to on appeal by defendant tended to corroborate the testimony of the State’s eyewitnesses concerning the circumstances surrounding the shooting and was properly admitted for that purpose.

Defendant also cites as error the submission to the jury of certain photographs which had been admitted into evidence. The photographs depicted the apartment and the entrance to it as they were found by the police. These included certain bloodstained areas which tended to corroborate the testimony of the victims and the police concerning where the victims were when shot and where they went after the shooting. Some of the photographs were also used by State witnesses as aids in their testimony concerning the shooting and its aftermath. Limitation of the extent of the use of this evidence was within the discretion of the trial court. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208; People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783.) In this regard we note that the trial court, in the exercise of this discretion, barred from submission to the jury photographs of the deceased and the clothing of the deceased which it deemed to be unnecessarily prejudicial. We do not find that the trial court abused its discretion in these rulings.

II

Defendant has included in his brief a voluminous list of comments by the prosecutor which he contends deprived him of a fair trial. In all but one of the instances cited either defendant did not object at all or his objections were sustained. Our review of all the comments cited by defendant in the context of the entire final argument and the record as a whole convinces us that those comments did not constitute a material factor in defendant’s conviction and thus do not support reversal of his conviction. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

III

Finally, defendant contends that his sentences were excessive. In passing sentence the court explained that it had considered defendant’s relatively minor past criminal record as well as what it termed defendant’s “most severe, most brutal” behavior in committing the offenses at issue. We do not find that the court abused its discretion in sentencing the defendant and consequently we will not disturb those sentences. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ„ concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO PEREZ, Defendant-Appellant.
    First District (5th Division)
    No. 79-2493
    Opinion filed October 9, 1981.

      George P. Lynch, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean C. Morask, and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of rape and armed violence and sentenced to extended concurrent terms of 60 years on both counts. On appeal, it is contended that (1) he was denied the effective assistance of counsel, his right to confront witnesses, and to a trial free from hearsay evidence; (2) his age was not proved beyond a reasonable doubt; (3) the court erred (a) in allowing the State to introduce a statement made by defendant at the time of his arrest, (b) in failing to properly instruct the jury, and (c) in sentencing him to extended terms.

The record discloses that on the date set for trial, a motion of defense counsel to withdraw because his fee was not paid was denied, and he then moved in limine to preclude the testimony of a witness and the use"of oral admissions made by defendant at the time of his arrest. After the State responded that the witness would not be called and that one of the statements would not be used, the court ruled that a statement concerning the location of defendant’s gun would be admitted “if properly testified to.”

The complaining witness, a 16-year-old student living at home with her family, testified that she had finished jogging at about 8:15 a.m. in a park near her home when she noticed a man wearing blue jeans and a blue jacket approaching. She then saw him put a T-shirt mask over his face and, when he came close to her, he produced a gun and pulled her into a gangway where he asked whether she was a virgin. She answered that she was, and then he said he was going to have sex with her. When she resisted, he pointed the gun at her, threw her to the ground, and pulled her shorts down. She was screaming and crying for help, but he forcibly inserted his penis into her vagina while covering her mouth with his hand at times. While he was on top of her with the gun pointed at her head for about 10 minutes, she saw his face three times when the mask was blown away. On each of the first two occasions, she saw his face for 2 to 3 seconds and on the third for about 5 seconds. After defendant left the gangway, she dressed and ran toward the street where she saw a police officer in a squad car. She gave a description of her assailant to the officer, following which she was taken to a hospital where she was examined. The police then brought her to a police station where, from a lineup, she identified defendant as her attacker.

Officer Kappel testified that at approximately 8:30 on the morning in question, he was on patrol in his squad car when he received a simulcast of a rape in progress and, upon arriving at the scene a few minutes later, he saw a young female standing on the curb who was crying and appeared to be very upset. She told him that she had been raped and, in response to his request, she described her assailant as a male Latin, 25 years old, heavyset, about 185 to 190 pounds, approximately 5'8" in height, short dark hair with a thin mustache and a goatee. She also said that he was carrying a handgun and was wearing a blue jacket and blue jeans. He immediately put the description of the man on the air and searched the area with the victim for about 10 minutes before driving her to the hospital.

Officer Shadder testified that he was on patrol when a simulcast came over the air “of a girl screaming for help at 2701 South Tripp.” When he arrived there, Officer Kappel was escorting a young girl to his car and, after she described her assailant, he and other officers began to search the area. About 25 minutes later, he observed a man with a mustache and goatee, who was wearing blue jean pants and a blue nylon windbreaker, running in front of his car. He announced on his police radio that he had a suspect and, after following the man in his squad car, he chased him on foot through gangways and eventually caught him.

Officer Whalen testified that he arrived at the scene as Officer Shadder was chasing defendant, and he followed' them on foot until Shadder caught him. After defendant was informed of his rights, he asked where the gun was and defendant answered, “It is back there. I will show you where it is at.” Defendant then led them to a backyard where they found a gun in the grass.

Assistant State’s Attorney Frost testified that he conducted a six-man lineup at the station and that as soon as the victim viewed the lineup she pointed to defendant and stated, “That is the man.” .

Evidence technician John Butler testified that he examined the gun and bullets but was unable to lift any prints. Michael Zefeldt, a micro-analyst, testified that he examined smears taken from the victim and observed the presence of semen, that he found human blood on her cutoffs and underwear and also on the front of defendant’s shirt and blue jeans, but that he had not determined blood-types while analyzing the clothing samples. A doctor who had examined the complaining witness at the hospital testified that her vagina had been lacerated and that pap smears were taken and sent to the laboratory.

After the State rested its case, a defense motion for a directed verdict was denied and the defense called as its sole witness defendant’s sister, who testified only to defendant’s addresses and appearance at the time of and prior to the occurrence in question.

After defendant was found guilty, a motion for new trial was made which, among other things, stated that defendant’s counsel had been out-of-town and had not seen a copy of the laboratory report regarding blood stains on the victim’s and defendant’s clothing and thus did not know prior to trial that the blood stains on defendant’s clothing were suitable for blood-type comparison and, because the State did not conduct blood-type comparison tests which may have established defendant’s innocence, he asked for a new trial. The State, in response, stated that a copy of the lab report had been personally delivered to counsel’s office 4 to 5 days before trial, that defense counsel had an opportunity to request additional blood tests during trial but did not, and further that the other evidence proved defendant guilty beyond a reasonable doubt.

After the motion for new trial was denied, a hearing on aggravation and mitigation was held during which the court was informed that defendant was convicted in 1968 of rape and aggravated battery and released on December 17,1971. On that basis and because of the circumstances surrounding defendant’s conduct in the instant crime, the State asked for an extended sentence. The State called two witnesses in aggravation, one of whom testified that she had been raped by defendant in 1977 and the other that she had been sexually assaulted by defendant in 1974. Applying the extended-term statute, the court sentenced defendant to concurrent terms of 60 years for rape and armed violence.

Opinion

Defendant first contends that he was denied effective assistance of counsel. In support of his position, defendant says that his trial attorney never interviewed him before trial as to possible defenses, had not seen discovery materials transmitted to his office by the State until the day before trial, made no pretrial discovery motions, did not move to quash his arrest, made no motions to suppress statements, identification or the lineup, made no opening statement, failed to object to hearsay evidence, failed to present jury instructions, allowed improper instructions, and failed to request blood-type tests from defendant and the victim.

In response, the State argues that those allegations are unsupported by the record and, in any event, that many of the trial attorney’s decisions were tactical, matters of trial strategy, and based on hindsight evaluations.

It is clear that there is no simple formula or set of guidelines to aid in the consideration of the competency of counsel, but it has been held that such determination must include an examination of the totality of trial counsel’s conduct at trial (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677; People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017), and that each case must be judged on the basis of its own facts in the context of the proceeding in question (People v. Morris (1954), 3 Ill. 2d 437, 121 N.E.2d 810). It has also been held that a review of competency of counsel “does not extend into areas involving the exercise of judgment, discretion or trial tactics by counsel, even though appellate counsel and the reviewing court might have acted in a different manner.” People v. Smith (1980), 81 Ill. App. 3d 764, 773, 401 N.E.2d 1017, 1023.

The cases have applied a standard in determining the competency of privately retained counsel different from that applied to those who are court-appointed. In People v. Murphy (1978), 72 Ill. 2d 421, 436, 381 N.E.2d 677, 685, the court stated the following as to privately retained counsel:

“ ‘In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or sham.’ People v. Torres (1973), 54 Ill. 2d 384, 391. See also, e.g., People v. Redmond (1972), 50 Ill. 2d 313, 315; People v. Washington (1968), 41 Ill. 2d 16, 22.”

On the other hand, in People v. Morris (1954), 3 Ill. 2d 437, 121 N.E.2d 810, the court articulated a two-prong standard for establishing whether defendants have been denied effective assistance of counsel who are court-appointed, stating that defendant must show that the trial attorney was incompetent in the manner he carried out his duties and that he was prejudiced in that the outcome would probably have been different.

There is some question in the present case as to whether trial counsel was retained or court-appointed. The record discloses that he was originally retained by defendant, but on the trial date he made a motion for leave to withdraw because defendant was unable to pay his fees. In denying the motion, the court stated that the trial would proceed and that the court would provide fees if it was established that defendant was indigent, but the record discloses no formal order of appointment.

Nevertheless, it is our belief that defendant was not denied the effective assistance of counsel under either the Murphy or Morris standards. The record discloses that defense counsel interviewed defendant for four hours while he was in jail prior to trial; that he used discovered materials at trial in his defense; and that he made a pretrial motion to suppress oral admissions made by defendant and to preclude a witness from testifying. It also appears that counsel conducted himself in a professional manner in objecting to evidence, in cross-examining witnesses, in the discussions concerning jury instructions, in his closing argument, and that timely motions for a directed verdict and for a new trial were made. We note also that some of the allegations of defense counsel’s incompetence involve errors of judgment or are conjectural. Present counsel’s argument that a blood-test might have excluded defendant as a suspect is merely speculative, and indeed it might instead have supported the State’s case. Furthermore, there is no basis in the record to suggest that defendant’s arrest lacked probable cause or that the lineup was in any way suggestive. Thus, we cannot say that the totality of the trial counsel’s conduct demonstrates that the court proceedings were reduced to a sham or that defense counsel carried out his duties in such a manner that defendant was prejudiced to the extent that the outcome of the. trial would have been different.

Defendant next contends that his age was. not proved beyond a reasonable doubt. During oral argument, however, counsel for defendant agreed that this question was no longer at issue since the record disclosed a stipulation at trial that defendant was 33 years old.

Defendant also posits that his constitutional rights to confront witnesses and to a trial free from hearsay evidence were violated. He first alleges that the court improperly admitted statements made by the victim to a police officer immediately after she was raped. In this regard, it appears that Officer Kappel arrived at the scene approximately three minutes after he heard a radio communication that a rape was in progress. He testified that he saw the victim standing on the corner crying and appearing to be very upset; that she said she had been raped and he then obtained a description of the offender; and that after 10 minutes of driving around, she was so distraught that he brought her to the hospital.

No objection was made by defendant at trial as to the officer’s testimony concerning the victim’s description of her assailant, nor was the issue specifically raised in defendant’s written motion for a new trial. It is well established that the failure to make timely objections to the admission of evidence at trial will waive the issue on appeal (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817), and that generally the failure to raise an issue in a written motion for a new trial constitutes a waiver of that issue which cannot be asserted as a ground for reversal on appeal (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856). Moreover, we do not find pursuant to Supreme Court Rule 615(a) that defendant’s contention constitutes plain error, justifying reversal of the jury verdict. Ill. Rev. Stat. 1979, ch. 110A, par. 615(a).

The facts in this case clearly show that the officer’s statements were admissible under what the courts have recognized as the spontaneous declaration exception to the hearsay rule which permits hearsay testimony where three elements are present:

“(1) [A]n occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (6 Wigmore, Evidence, 3d ed. sec. 1950; Cleary, Handbook of Illinois Evidence, sec. 13.28.)” (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, 807.)

The record here shows sufficient spontaneity in the victim’s statements and inadequate time to fabricate. Only about five minutes had passed from the time the assailant left the scene of the rape to the time she first described her assailant to the police. Additionally, there appears to be no question that the statement related to the occurrence and was made while the victim was extremely distraught and upset.

Defendant also argues that the court improperly allowed the State to use out-of-court declarations to bolster similar statements made in court. Defense counsel had impeached the victim concerning the period of time during which she had seen defendant’s face on the first two occasions that his mask blew off by using a transcript from an earlier hearing. On redirect, the court allowed the State to utilize testimony from the same transcript for the purpose of showing the length of time defendant’s face was exposed on the third instance that the mask blew off his face.

We believe the statement was properly admitted for the purpose of clarifying the victim’s earlier statement. The Illinois rule on permissible rehabilitation is explained in People v. Hicks (1963), 28 Ill. 2d 457, 463, 192 N.E.2d 891, 894, as follows:

“[I]t is well settled that where a witness has been impeached by proof that he has made prior inconsistent statements, he may bring out all of the prior statements to qualify or explain the inconsistency and rehabilitate the witness.”

We conclude that the statement on redirect falls within the ambit of the Illinois rule. Since defendant used only an isolated portion of the prior transcript to impeach the victim as to the first two occasions she saw defendant’s face, it is proper to admit her earlier statement concerning the third instance she saw defendant’s face.

We turn then to defendant’s contention that he was denied a fair trial because the court allowed in evidence a statement attributed to defendant by police officers concerning the location of his gun. He argues that the statement had not been properly disclosed in contravention to the disclosure requirement of Supreme Court Rule 412(a)(ii). Although the State’s answer to discovery stated that there were no oral statements made by defendant “known at this time,” the answer went on to state, “For substance of oral statements and witnesses to statement, see Police Report * « e ” 'j'jjg record indicates that at the time the State filed its answer to discovery, it tendered to defense counsel the police report which read, “upon effecting the arrest in form [sic] by suspect that he had thrown away a gun while being persuaded [sic] by police and attributed [sic] arresting officers of its whereabouts.” Prior to trial, defendant made a motion in limine to suppress the statement, which was denied.

At trial, Officer Whalen testified that he inquired about the gun after defendant was informed of his Miranda rights and that defendant replied, “It is back there. I will show you where it is at,” and he then directed officers to a backyard where they found a revolver lying in the grass.

Defendant relies on People v. McInnis (1980), 88 Ill. App. 3d 555, 411 N.E.2d 26, to support his position. There, in an answer to discovery, the State responded that the defendant had made oral statements and referred to a police report which said, “ ‘in summary 0 ° ° he has known Deola Johnson for some time from the area of east 53rd Street but he denied any knowledge of the crime in question.’ ” (McInnis, 88 Ill. App. 3d 555, 567, 411 N.E.2d 26, 35.) A police officer testified that defendant told him that during the hours in which the crime occurred, he was at Michael Reese Hospital with a broken jaw and that he denied having been with Johnson. It was held that the State had not substantially complied with Rule 412 in failing to disclose that defendant had provided details of an alibi and thus had not met its statutory obligation to disclose the substance of oral statements made by the defendant.

We believe that Mclnnis is distinguished from the instant case in that the State here disclosed defendant’s statements to defense counsel with sufficient specificity in that the police report stated that defendant told the officer he had thrown away a gun and then directed them to it.

Moreover, the purpose of Rule 412(a) (ii) is to give defense counsel an opportunity to investigate the circumstances surrounding a statement and to protect a defendant from surprise and inadequate preparation. (People v. Young (1978), 59 Ill. App. 3d 254, 375 N.E.2d 442.) In the case at hand, the trial judge in denying defendant’s motion in limine to exclude the statement, assured defendant that the trial would be delayed if necessary in order to allow defense counsel to speak with the witness who was to testify as to defendant’s statement. Under these circumstances, we cannot say that defendant has been denied a fair trial.

Defendant also contends that the court failed to properly instruct the jury. He argues (1) that the definition and issues instructions as to armed violence “failed to define ‘dangerous weapon’ and further, failed to define and to indicate whether rape was or was not a felony”; and (2) that the issues instruction improperly substituted the word “gun” for “dangerous weapon.”

The definition instruction was as follows:

“A person commits the crime of armed violence when, while armed with a dangerous weapon, he commits the offense of rape.”

The issues instruction stated:

“To sustain the charge of armed violence, the State must prove the following propositions:
First: That the defendant committed the offense of rape;
Second: That the defendant was armed with a gun.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Initially, we note that defendant’s failure to object to those instructions was a waiver of their alleged defects. (People v. McNeal (1980), 88 Ill. App. 3d 20, 410 N.E.2d 480; People v. Van Winkle (1980), 86 Ill. App. 3d 289,408 N.E.2d 29.) While Supreme Court Rule 451(c) provides that in criminal cases “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (58 Ill. 2d R. 451(c).) It was explained in People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, that this is a “limited” exception used to remedy “grave errors” or used where a case is close factually and the fundamenal fairness of the trial is in question.

It is our view, however, that the instant case was not close factually and, even assuming the alleged defects in the instructions, we do not believe they were such as to constitute grave error. In Van Winkle, an instruction required proof that defendant was armed with a “dangerous weapon.” In response to defendant’s allegation that it was error not to have given the jury an opportunity to determine the category of weapon involved, the court stated: Similarly, in the present case, failure to define dangerous weapon was not a substantial defect. There was no apparent confusion between the instruction and the evidence presented at trial, since the only weapon involved in this case was a handgun and the State’s issues instruction on armed violence specifically clarified the term by interchanging the words “dangerous weapon” with the word “gun.” Furthermore, we do not see how the failure to define “felony” or to inform the jury that rape was a felony would have been beneficial to the jury or that this information, if given, would have altered the verdict — particularly in view of the fact that the issues instruction told the jury it must find “that defendant committed the offense of rape,” which was defined in other instructions.

“The only weapon of which any evidence was presented was a pistol, a category I weapon. In view of the verdict, it is apparent that the jury found that defendant was armed with a pistol. * * * Moreover, such error is clearly not a substantial defect cognizable under Supreme Court Rule 451(c). (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)).” (People v. Van Winkle (1980), 86 Ill. App. 3d 289, 294, 408 N.E.2d 29, 33.)

Defendant’s final contention is that the trial court improperly sentenced him to an extended term under section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2), which provides that the court may impose an extended term where either of the following aggravated factors are present:

“(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody ° ® °; or
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b).

We initially note that either or both of those factors will support the imposition of an extended term. (People v. Gum (1980), 85 Ill. App. 3d 298, 407 N.E.2d 806; People v. Peddicord (1980), 85 Ill. App. 3d 414, 407 N.E.2d 89.) It is defendant’s position that the factors must be supported by proof beyond a reasonable doubt. Specifically, he asserts as to factor (1) that the State introduced a certified copy of the conviction of Antonio Perez, but that nowhere on it was the name of Anthony Perez. Relying solely on People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142, he argues that the prior conviction of defendant here was not established beyond a reasonable doubt. In Langdon, defendant was convicted of the offense of the unlawful use of a weapon within five years from his release from the penitentiary. It was held that a prior conviction within five years was an essential element of the offense and, as such, must be established beyond a reasonable doubt. However, while a fact essential to the grade or degree of the offense, as in Langdon, is in effect an element of the offense and must be pleaded and proved at trial, the factors to be considered when imposing sentence under the extended-term provision are not essential to the grade or degree of the offense and need not be pleaded or proved. Peddicord; People v. Harris (1980), 83 Ill. App. 3d 1123, 404 N.E.2d 1020; People v. Hairston (1980), 86 Ill. App. 3d 295, 408 N.E.2d 382.

Estelle v. Smith (1981),_U.S.__, 68 L. Ed. 2d 359, 101 S. Ct. 1866, cited by defendant in his reply brief, is factually and procedurally different from the instant case. Involved there was a murder trial in Texas, where after conviction the State sought the death sentence. Capital cases in Texas required bifurcated proceedings for the guilt and penalty stages and, at the penalty hearing, the jury was required by statute to resolve three critical issues in determining whether the death sentence would be imposed. At this hearing, a physician who had examined defendant to determine his competency to stand trial was permitted to testify concerning one of the three critical issues — future dangerousness of defendant. The supreme court held that the use of the doctor’s testimony when defendant had not been told of his right to remain silent and that his statements to the doctor could be used against him, were in violation of his fifth amendment privilege. The court also found a violation of the sixth amendment, because the psychiatrist’s interview was a “critical stage” of the proceedings against defendant and his defense counsel “were not notified in advance that the psychiatrist’s examination would encompass the issue of their client’s future dangerousness.”

No question as to fundamental constitutional guarantees is raised by defendant with respect to the sentencing hearing in the instant case and, in view of the fact that the aggravating factors in the extended term statute are not essential elements of any crime, we find that they need not be established beyond a reasonable doubt, and we therefore reject the contention of defendant in that regard. Because the extended term may be imposed whether either one of the two aggravating factors is present, it will be unnecessary to address defendant’s contentions as to alleged error in sentencing under the second factor.

Defendant also argues that multiple convictions for the offenses of rape and armed violence were improper because they arose from the same conduct. We note, however, that in People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29, multiple convictions for rape and armed violence and the sentences thereon were held to be proper. There, defendant used a 5-inch blade knife in committing the rape, and defendant argued that his conviction for rape should have been vacated because it was the underlying offense for the armed violence conviction. The court, in holding to the contrary, quoted from People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281, as follows:

“ Tf the predicate offense is a felony by statutory definition when committed without possession or use of a dangerous weapon, such an offensé may support a second charge, armed violence, when committed with possession or use of such a weapon.’ ” (Best, 97 Ill. App. 3d 1083,1087, 424 N.E.2d 29, 32.)

Guided by this reasoning, we find that the convictions for both rape and armed violence in the instant case were proper.

For the reasons stated, we find no abuse of discretion. The judgment appealed from is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    KENNETH W. MILTON, Plaintiff-Appellant, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 80-1324
    Opinion filed October 9, 1981.

      Rose M. Urban and Robert Handelsman, both of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellant.
    L. Bow Pritchett, Thomas H. W. Sawyer, and Benjamin Ghess, all of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Kenneth W. Milton, filed a complaint which alleges that his employer, Illinois Bell Telephone Company, intentionally caused him to suffer severe emotional distress. The telephone company’s motion to dismiss the cause of action was granted by the trial court on the grounds that the alleged conduct was, as a matter of law, not outrageous enough to be actionable. The issues presented by this appeal are: (1) whether the complaint alleges conduct which is outrageous enough to meet the pleading requirements for the tort of intentional infliction of severe emotional distress; (2) whether plaintiff’s sole remedy is under either the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) or the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1979, ch. 48, par. 172.36 et seq.); and (3) whether plaintiff is required to plead exhaustion of the remedies provided by a collective bargaining agreement. The following allegations are taken from the complaint.

Plaintiff is employed by defendant as a telephone installer. One of his job duties is to complete written reports on the time required, material used, and tasks performed for each installation or repair job. Defendant uses these work reports in billing customers and in compiling reports of corporate expenses for the Illinois Commerce Commission.

Throughout his employment with defendant, plaintiff’s foreman and other superiors have allegedly made frequent demands that he falsify these reports. According to the complaint, defendant’s officers, executives, and managers know that it is a widespread practice for defendant’s foremen to demand that installers falsify work reports. Allegedly, the unrealistic performance goals set by the company, and the failure to act to prevent widespread demands by foremen for falsification of work reports, show that it is defendant’s corporate policy to permit, allow, and encourage foremen and others to demand that installers falsify work reports.

Plaintiff claims he has consistently refused to falsify work reports and that, in retaliation, his foreman and other superiors have intentionally harrassed and coerced him through use of the following practices:

(1) Giving plaintiff assignments which were geographically and environmentally more undesirable than the assignments given to installers who cooperated in falsifying work reports;
(2) Giving plaintiff assignments where he had a minimal opportunity for obtaining overtime while giving “more cooperative” installers assignments where there was a high probability of obtaining overtime;
(3) Criticizing plaintiff for complying with company rules and then punishing him for not complying with those rules;
(4) Setting widely unrealistic time estimates for tasks assigned to plaintiff and bouncing him from job to job to wear him out physically and mentally;
(5) Keeping an extraordinarily close watch on plaintiff’s work and following him from job to job;
(6) Misleading customers about plaintiff’s capability, efficiency, and integrity, plus encouraging customers to report complaints about plaintiff;
(7) Arbitrarily denying plaintiff “distress leave” and “reserve week leave”;
(8) Refusing to accept accurate work reports from plaintiff and adding false information to reports he had already completed.

Such retaliation is allegedly a widespread practice used by defendant’s foremen and other employees on installers who refuse to falsify work reports. Again it is alleged that these practices constitute a corporate policy which is known by, permitted, allowed, and encouraged by defendant’s officers, executives, and managers. The complaint concludes by stating that defendant’s conduct has caused plaintiff great mental distress, anguish, and nervous tension requiring hospitalization and medical care.

Opinion

I

To state a cause of action for the tort of intentional infliction of severe emotional distress, plaintiff must allege facts which show that defendant intentionally or recklessly caused plaintiff to suffer severe emotional distress as the result of extremely outrageous conduct. (Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 360 N.E.2d 765.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts §46, Comment d (1965); accord, Public Finance Corp. v. Davis, at 90.

We agree that, under the holding of Public Finance, plaintiff’s allegations of retaliatory practices fail to meet the strict pleading requirements which the supreme court indicated should be used to test the sufficiency of a complaint for intentional infliction of severe emotional distress in debt-collection cases. Separately considered, each of the individual allegations of retaliatory conduct either (a) lack sufficient specificity to permit a court to conclude that they fulfill the outrageousness requirement, or (b) do not refer to action which is, by itself, outrageous enough to be actionable in tort.

A defendant’s alleged malice or “evil motive” is also not, by itself, sufficient to show the requisite degree of outrageousness. (Public Finance Corp.) It is therefore unimportant that defendant is, in essence, accused of some “evil scheme” to defraud the public and mislead the Commerce Commission. However, this does not mean that we can ignore the aliegations that repeated demands were made on plaintiff to falsify work reports and that a course of retaliation was inflicted on him for refusing to give in to those demands.

Whatever the claimed motives for the demands and retaliation alleged in the complaint, the question for us is whether it could reasonably be considered extremely outrageous for an employer to intentionally subject an employee to such conduct.

As Dean Prosser pointed out, “The extreme and outrageous nature of the conduct may arise not so much from what is done as from abuse by the defendant of some relation or position which gives him actual or apparent power to damage the plaintiff’s interests. The result is something very like extortion.” (Prosser on Torts §56 (4th ed. 1971); accord, Restatement (Second) of Torts §46, Comment e (1965), and Public Finance Corp., at 90.) The supreme court recently acknowledged that “relatively immobile workers who often have no other place to market their skills” do not stand on equal footing with the large corporations which employ them. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 129, 421 N.E.2d 876.) It is the alleged abuse of power by a large corporation over one of its front line employees which aggravates the outrageousness of the conduct alleged in this case.

We find Public Finance Corp. clearly distinguishable because the defendant in that case was merely exercising legal rights which could not be asserted without causing a certain amount of embarrassment and distress. Public Finance was a debt-collection case in which the supreme court evaluated the allegations in light of the finance company’s lawful interest in attempting to collect on a defaulted loan. Quoting from the Restatement (Second) of Torts §46, comment g (1965), the supreme court held that the proper rule in such cases is that, “the actor is not liable ‘where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistance is certain to cause emotional distress.’ A creditor must be given some latitude to pursue reasonable methods of collecting debts even though such methods may result in some inconvenience, embarrassment or annoyance to the debt- or.” Public Finance Corp., at 92.

In contrast with Public Finance, the complaint in this case does not show a defendant which was only insisting on exercising its legal rights. Agents of the defendant in this case allegedly demanded that plaintiff falsify work reports which were used in billing customers. We note that a corporation can be prosecuted for a misdemeanor if (1) the offense was committed by an agent of the corporation (that is, “any director, officer, servant, employee, or other person who is authorized to act in behalf of the corporation”) and (2) the “agent of the corporation performs the conduct which is an element of the offense while acting within the scope of his office or employment and in behalf of the corporation 6 * (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 4(a), (c).) Therefore, if a corporation’s agents knowingly falsified work reports and the corporation used such work reports to overcharge customers, the corporation could be prosecuted for misdemeanor theft. Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1.

Moreover, it is a Class A misdemeanor for any person to wilfully make a false entry in any account, record, or memoranda which the Illinois Commerce Commission requires a public utility to keep “of all facts in transactions appertaining to the business of the public utility * * (Ill. Rev. Stat. 1979, ch. Ill 2/3, pars. 17 and 11.) We judicially notice that defendant is a public utility. And we also note that any person who aids or abets a public utility in wilfully making a false report to the Illinois Commerce Commission is guilty of a Class A misdemeanor. Ill. Rev. Stat. 1979, ch. Ill 2/3, par. 19.

Obviously the demands for falsified reports and coercive retaliation alleged in this case cannot be equated with a creditor’s lawful interest in attempting to collect a bad debt. An employer’s interest in demanding that an employee falsify reports, and then retaliating against the employee for not cooperating, is simply not an interest which is entitled to legal deference.

Defendant’s argument relies on the appellate court decision in Palmateer v. International Harvester Co. (1980), 85 Ill. App. 3d 50, 406 N.E.2d 595, rev'd (1981), 85 Ill. 2d 124, 421 N.E.2d 876, but we note that the supreme court decision was filed after defendant submitted its brief in this case. A bit of explanation is required on the continuing validity of an unappealed portion of the appellate court decision.

Palmateer’s employment was terminable at will, and International Harvester allegedly fired him because he reported, to the police, a possible theft by a fellow employee, and promised to help the police both investigate and prosecute the offense. The complaint in that case included a count for intentional infliction of severe emotional distress and a count, sounding in tort, for wrongful discharge. .

The appellate court held that it was not tortious for an employer to discharge an “at will” employee for reporting a possible crime to the police. Since the employer had a legal right to fire Palmateer, the appellate court held that this conduct was not outrageous enough to constitute intentional infliction of severe emotional distress.

Only the ruling on the count for wrongful discharge was appealed to the supreme court. Reversing the appellate court’s ruling on this count, the supreme court held that the alleged firing violated a clearly mandated public policy and constituted a tort.

Because the rationale used by the appellate court (in ruling on the count for emotional distress) was rejected by the supreme court in ruling on the count for wrongful discharge, we do not find the appellate court decision persuasive in evaluating the sufficiency of the complaint in this case. Moreover, if employers were permitted to intentionally inflict severe emotional distress on employees who refuse to violate clearly mandated public policies, the protection afforded by the supreme court’s decision in Palmateer would be undermined.

In this case we conclude that a judge or jury could reasonably find that the coercion and retaliation allegedly suffered by plaintiff was so outrageous, extreme, and atrocious as to be considered intolerable in a civilized community. Therefore plaintiff’s complaint meets the requirement of pleading facts which could reasonably be found to amount to extreme outrageousness.

II

It is also argued that plaintiff’s action against his employer is barred by section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)). We need only point out that an employer is required to plead and prove, as an affirmative defense, that an action is barred by section 5(a). Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 317-18, 370 N.E.2d 165,168-69.

A similar argument made by defendant is that plaintiff’s action is barred by the exclusive remedy provision of the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1979, ch. 48, par. 172.40). We conclude that, since application of the Workers’ Compensation Act must be raised by an employer as an affirmative defense, it necessarily follows that defendant must plead and prove that the Occupational Diseases Act bars this action.

III

The final argument raised by defendant is that the complaint should be dismissed for failure to plead that plaintiff has exhausted grievance and arbitration procedures provided in a collective bargaining agreement. In essence defendant contends that, in a tort action against his employer, an employee must plead that he has exhausted remedies provided for breach of the contract between his union and his employer.

To support this argument defendant refers us to a series of unfair union representation cases. (See, e.g., Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903.) The type of action permitted by Vaca v. Sipes involves an action against a union for bad faith refusal to process a grievance. Usually the employee also files against his or her employer for breach of the collective bargaining agreement. But because the cause of action against the union is based on its refusal to process a grievance, plaintiff necessarily alleges either an attempt to exhaust the grievance procedures, or pleads one of the exceptions to the exhaustion doctrine.

This, of course, does not mean that the employee must allege exhaustion of contract remedies in the action against the employer. In Vaca v. Sipes the United States Supreme Court twice referred to the exhaustion doctrine as a defense which might be available to the employer. (386 U.S. 171, 184, 186, 17 L. Ed. 2d 842, 854, 855-56, 87 S. Ct. 903, 913-14, 914-15.) This clearly indicates that, in an action by an employee against his or her employer for breach of a collective bargaining agreement, the exhaustion of remedies doctrine must be raised by the employer as an affirmative defense. Accord, Miller v. ICX (N.D. Ill. 1972), 358 F. Supp. 1378. Compare Miller with Horkstrom v. Stonefort Coal Mining Co. (1969), 106 Ill. App. 2d 376, 246 N.E.2d 128, and Matzer v. Florsheim Shoe Co. (1971), 132 Ill. App. 2d 470, 270 N.E.2d 75 (employee has to plead attempted exhaustion when a contract action against the employer is for refusal to follow the grievance procedures).

Except when the contract action against the employer is for refusing to follow grievance procedures, an employer must plead failure to exhaust contract remedies as an affirmative defense to an action brought by an employee for breach of the collective bargaining agreement. Therefore, it necessarily follows that a plaintiff does not have to plead exhaustion of contract remedies in a tort action against his employer.

We, of course, express no opinion on the substantive merits, as applied to the complaint in this case, of a possible defense which has not been raised.

For the preceding reasons the judgment of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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


text:
    MID-AMERICA REGIONAL BARGAINING ASSOCIATION, Plaintiff-Appellant, v. MODERN BUILDERS INDUSTRIAL CONCRETE COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 80-2835
    Opinion filed October 15, 1981.

      Allan E. Lapidus, Charles E. Murphy, and Joan P. Simmons, all of Redder, Price, Kaufman & Kammholz, of Chicago, for appellant.
    Thomas, Wallace, Feehan and Baron, Ltd., of Joliet (Robert W. Thomas and George J. Vosicky, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

The plaintiff, having obtained a favorable arbitration award, appeals from the refusal of the trial court to confirm the award. The sole issue in this case is whether the defendant can raise the issue of whether there was an agreement to arbitrate seven months after it had notice of the award. In light of the clear language of the statute to the contrary (Ill. Rev. Stat. 1979, ch. 10, par. 112), we hold that it cannot. Accordingly, we reverse the decision of the trial court, enter judgment in favor of plaintiff and confirm the arbitrator’s award.

The Mid-America Regional Bargaining Association (MARBA) is an Illinois not-for-profit corporation formed in 1971 which represents various contractor associations whose members perform construction work throughout the greater Chicago area. Defendant, Modern Builders Industrial Concrete Company (Modern Builders), is an Illinois corporation that performs general contracting work. For many years it had been a member of a Contractors’ Association of Will and Grundy Counties (the Association). By this membership the Association or its designee was designated as defendant’s representative for collective bargaining. In 1971, the members of the Association voted to become a member of MARBA. The Association adopted an amendment to its bylaws which formally made MARBA the sole and exclusive bargaining agent for all its members. Thereafter, defendant signed an agreement indicating it had read and understood the bylaws of MARBA and it would abide by those bylaws. MARBA’s bylaws provided, inter alia, that if a union took strike action against any member or members of MARBA, each member would, upon MARBA’s request, lock out its employees. These bylaws further provided that each member agreed that in case of a breach thereof liquidated damages would be $100 per day per employee employed in violation of this provision, to be distributed to the members of MARBA. Any disputes arising under this provision were to be submitted to and decided by an impartial arbitrator selected by MARBA’s board of directors from the names of arbitrators submitted by the American Arbitration Association. Proceedings were to be instituted by written notice from MARBA to the offending contractor not less than 10 days before the date of the arbitration hearing; and the arbitration could proceed to a hearing and decision despite the failure or refusal of the offending contractor to participate. The arbitrator was given the authority to determine whether the offender had violated any of the provisions, and if so to compute, in accordance with the formula set forth in the bylaws, the amount of liquidated damages payable to MARBA and “to render a decision and award in favor of MARBA in the amount of such damages, together with such other award as the arbitrator shall consider appropriate.”

On July 2,1979, selected members of the Association were struck and picketed by the carpenter’s union. In response, MARBA called a lockout to begin on July 6,1979. Modern Builders violated this directive until July 17,1979.

On July 9, 1979, MARBA sent Modern Builders a letter informing it that the Association had filed a complaint against it because of its failure to honor the lockout and that MARBA was proceeding to arbitration to collect the liquidated damages provided for in the bylaws. On the same day, Modern Builders sent a letter of resignation to the Association. On July 11, 1979, MARBA informed Modern Builders that the arbitration hearing would be held on July 23,1979. In response to this notice, Modern Builders on July 17,1979, informed MARBA that “not being a member of either the Association or of MARBA, Modern Builders does not feel obligated to attend the so-called arbitration hearing.” Inconsistent with its claim that it was no longer a member Modern Builders on July 16, 1979, renewed its request to the Association for an exemption for one of its job sites from the lockout, and on July 17, it began to honor lockout directives. On July 19, 1979, the Association informed Modern Builders that its attempted resignation was ineffective. Despite this notification Modern Builders failed to attend the hearing and, being absent, did not there assert that there was no binding agreement to arbitrate. It also did not file an action to stay the proceeding.

The arbitrator, after the hearing, issued his award on July 25, 1979. He determined that Modern Builders was a paidup member of the Association; that the Association had designated MARBA to act as its bargaining agent; that MARBA was authorized to order a lockout; that Modern Builders was subject to a fine for failing to honor the lockout; and that it should, within 30 days, pay MARBA damages of $100 per carpenter who worked from July 6 through July 16,1979. Modern Builders was sent notice of the award on July 26, 1979. When Modern Builders did not pay the award, MARBA commenced this action to confirm the award on November 21, 1979. On February 26, 1980, Modern Builders filed its answer, asserting as a defense that no contract requiring arbitration had ever existed between defendant and plaintiff. The trial court refused to confirm the award and granted defendant’s motion for summary judgment.

Modern Builders contends on appeal that it was not a party to the arbitration agreement and therefore not bound by it. We find we have no power to consider the question because it was not timely raised.

It is true, as defendant contends, that under the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.), before there can be arbitration there must be a valid arbitration agreement and that persons not parties to an arbitration agreement cannot be compelled to participate in arbitration. (Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91, 242 N.E.2d 149; Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, 302 N.E.2d 754.) If there is no agreement, the court may stay a threatened arbitration proceeding (Ill. Rev. Stat. 1979, ch. 10, par. 102(b)), or may vacate the arbitration award. (Ill. Rev. Stat. 1979, ch. 10, par. 112(a)(5).) But the absence of an arbitration agreement is a defense only if timely raised. (Ill. Rev. Stat. 1979, ch. 10, par. 112; Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 398 N.E.2d 103; Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill. App. 3d 536, 302 N.E.2d 754; Ramonas v. Kerelis (1968), 102 Ill. App. 2d 262, 243 N.E.2d 711; Board of Education v. Education Association (1979), 286 Md. 358, 408 A.2d 89; Wacker v. Allstate Insurance Co. (Minn. 1977), 251 N.W.2d 346.) Section 12(b) of the Uniform Arbitration Act requires that the defense that there was no arbitration agreement must be raised in court within ninety days after delivery of a copy of the award to the applicant; here it was not raised until seven months had passed. As this court stated in Schroud, 78 Ill. App. 3d 1092, 1096, 398 N.E.2d 103, 106, where the identical issue was raised: “[W]here the party has failed to file a timely motion to vacate, the award must be confirmed and the party bound thereby even though the matter should not have gone to arbitration.”

Defendant contends, however, that:

1. The issue whether an arbitration agreement existed is a matter which must be and can only be adjudicated prior to arbitration in a proceeding to compel arbitration.

2. Plaintiff’s complaint to confirm the award constituted plaintiff’s first attempt to obtain a judicial determination as to jurisdiction.

Thus, defendant argues the complaint was in effect a proceeding to compel arbitration and, accordingly, defendant’s objection was timely made.

Since the major premise of defendant’s syllogism is false, the conclusion does not follow. In Illinois, the question of arbitrability is determined not by the arbitrator but by the court. (Board of Trustees v. Cook County College Teachers (1980), 87 Ill. App. 3d 246, 408 N.E.2d 1026, appeal denied (1980), 81 Ill. 2d 600.) But while the question can be determined before the arbitration hearing in an action brought to compel arbitration (Ill. Rev. Stat. 1979, ch. 10, par. 102(a)), or to stay arbitration (Ill. Rev. Stat. 1979, ch. 10, par. 102(b)), it need not be. Section 12(a)(5) of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 112(a)(5)), provides that: “Upon application of a party, the court shall vacate an award where: (5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 22 [Ill. Rev. Stat. 1979, ch. 10, par. 102] and the party did not participate in the arbitration hearing without raising the objection.” It is clear from this provision that the question of arbitrability may be raised after the award is issued, if, as here, it was not raised before the hearing. This court is bound by the statute and cannot disregard it, which we would have to do in order to accept defendant’s argument that plaintiff’s complaint was in effect a proceeding to compel arbitration.

Finally, defendant contends that the bylaws required the arbitrator to determine the total monetary damages and that since he did not, there was no final award and defendant’s objection as to lack of jurisdiction is timely. First, we are not convinced that the bylaws did require the award, under all circumstances, to state the total monetary damages. The bylaws gave the arbitrator the authority to “render a decision and award in favor of MARBA in the amount of such damages, together with such other award as the arbitrator shall consider appropriate.” They do not state that the award must always state the total amount of damages rather than simply require payment of $100 per day per employee as was done here. An award is valid even though it does not award a specific sum and the actual amount of damages remains to be computed. Maine Central R.R. Co. v. Bangor & Aroostook R.R. Co. (Me. 1978), 395 A.2d 1107, 1121, where the court ordered an award confirmed which timely stated the party was “responsible [for the damaged BAR cars] as per Rule 95, Section B.l.a. (6) in the Field Manual.”

But even if the bylaws did require the arbitrator to total the award and he exceeded his powers in issuing an award which did not, this would go to the propriety of the award and not to its existence. Under the statute, for an award to exist it need only be signed and in writing. (Ill. Rev. Stat. 1979, ch. 10, par. 108.) As was held in Bangor an award is final and capable of confirmation even though damages are still to be computed where, as here, the computation of damages is merely a ministerial act to be carried out according to a formula set forth in the bylaws. If the arbitrator exceeded his powers by issuing an award without making the computation himself, then that was a defense to be raised in a timely motion to vacate. (Ill. Rev. Stat. 1979, ch. 10, par. 112(a)(3).) Furthermore, defendant could within twenty days after delivery of the award have applied to the arbitrator to correct the award (Ill. Rev. Stat. 1979, ch. 10, par. 109), or if it were determined that the defect related only to form and not to the merits, defendant could, within ninety days after delivery of the award, have applied to the court for modification or correction of the award. (Ill. Rev. Stat. 1979, ch. 10, par. 113(a)(3).) Defendant having failed to exercise any of its remedies in a timely manner has waived the question.

Section 11 of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. Ill), provides that: “Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award.” It is clear that under this section the court has no discretion but must confirm the award unless defenses are raised within 90 days from delivery of the award or, if corruption, fraud or other undue means are alleged, within 90 days after such grounds are known or should have been known. Since no defenses were raised within the 90-day period the trial court was required to confirm the award.

For the reasons stated the judgment of the circuit court of Cook County is reversed and the cause is remanded for the entry of an order confirming the award.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.

       In its answer to the complaint, defendant denied plaintiff’s contention that it did not participate in the hearing. If we were to bind the defendant to this judicial admission it is clear we could not review the question raised by defendant since under section 12(a)(5) of the Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 112(a)(5)), the issue whether there was an arbitration agreement can only be raised if “the party did not participate in the arbitration hearing without raising the objection.” We have elected not to enforce the judicial admission because both parties agree, and indeed assume in their briefs, that defendant did not attend the hearing.