author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARL JONES, Defendant-Appellant.
    First District (3rd Division)
    No. 79—2344
    Opinion filed September 8, 1982.

      James J. Doherty, Public Defender, of Chicago (John T. Keefe and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joel A. Stein, and Gloria G. Coco, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The defendant, Earl Jones, was convicted at a bench trial of the murders of his wife and two-year-old stepdaughter. He was sentenced to two concurrent terms of 50 to 100 years’ imprisonment.

On appeal, the defendant argues that he was not proved sane beyond a reasonable doubt and that the trial court erred in failing to order fitness hearings at the preliminary hearing and arraignment, on the date of trial and before sentencing.

On July 16, 1976, at approximately 3:30 p.m., Florence Jones, the defendant’s neighbor, saw the defendant carry a sawed-off shotgun into his house. At about 3:45 p.m., she heard two firecracker-like noises. Approximately 35 to 40 minutes later, she saw the defendant, who was carrying the shotgun and a dufflebag, come out of the house and walk down the street with his three-year-old son.

Dan Wallace, the defendant’s stepfather, testified that he saw the defendant at approximately 6 p.m. on July 16. The defendant told him to call the morgue because “he had some corpses.” In Wallace’s opinion, the defendant appeared calm and normal. Wallace further testified that the defendant had been hospitalized on several occasions for mental illness but appeared normal after his discharges.

Several Chicago police officers also testified concerning the defendant’s behavior on the day of the murders. Officers Leon Gammon and Melvin Malcolm testified that they arrived at the defendant’s apartment at about 10:25 p.m. and that the defendant admitted the shootings and showed them the corpses in a partially filled bathtub covered with sheets, bed articles and towels. As the officers walked through the apartment to the bathroom, they noticed bloodstains on the dining room walls and floor. Blood on the dining room floor had been wiped with a dry mop. A dismantled sawed-off shotgun and several shotgun shells were found on the floor. The officers stated that they stayed with the defendant for about 15 to 20 minutes and that during their questioning of him, the defendant appeared very calm, rational, placid and relaxed. The defendant gave no reason for shooting his stepdaughter but told Officer Gammon that he killed his wife because she wanted to engage in sex with him.

Officer James Stephens, who transported the defendant to the police station, testified that the defendant’s responses to questions were rational, cooperative and coherent. The defendant stated that he killed his wife because she was “messing around.” Officer Stephens said that the defendant gave some irrational responses to questions at the police station when he said to ask his son why he had committed the crime and when he claimed that “the radio static told him to do it.” Stephens believed that these latter responses were made by the defendant after he had second thoughts about being cooperative.

Investigator Paul Parizanski, who interviewed the defendant for about 15 minutes at the station, stated that the defendant refused to discuss the murders without first talking to an attorney. Investigator Parizanski said the defendant acted in a sane manner and that his answers to general questions were responsive, straightforward and coherent.

All four officers testified that they believed the defendant appreciated the criminality of his conduct and that he could have conformed his conduct to the requirements of the law.

The final witness for the State was Abdul Rockman. Rockman had known the defendant for 15 years and testified concerning the marriage of his sister to the defendant. Rockman stated that the defendant was a devout Hebrew Israelite and obeyed the scriptures and religious requirements. He found the defendant to be responsive and coherent at frequent family gatherings and saw nothing unusual about the defendant’s behavior during June and July 1976. Rockman further testified that on July 13, 1976, the defendant spoke with him about his marital problems. The defendant stated that he was displeased with his wife’s treatment of the children and himself. When the defendant left Rockman’s apartment, he said he was “not going to be responsible for whatever happens.” Rockman testified that he believed that the defendant realized the difference between right and wrong and that he could appreciate the criminality of his actions and that he could conduct himself according to the law.

On defense, Doctor Edward Kelleher, a psychiatrist, testified concerning his six examinations of the defendant from 1973 to 1977. He also reviewed the defendant’s medical records and history of mental illness. According to those records, the defendant exhibited psychotic symptoms in 1968 while in an army hospital after serving a few months in Vietnam. At that time, the defendant possessed an abnormal attitude and an extreme fervor toward his religion and suffered delusions about things happening to his body. The defendant also received treatment in a veteran’s hospital in Pennsylvania; and in 1969 and 1970 the defendant was diagnosed as mentally sick and unfit to stand trial after a shooting incident in Arkansas. The defendant was hospitalized in Chicago in April 1972 at which time he was diagnosed as acutely psychotic. The defendant was transferred to a veteran’s facility and was discharged against medical advice that same year.

Doctor Kelleher further testified that the defendant’s records showed that in 1973 he was sent to the Illinois State Psychiatric Institute for a court-ordered psychiatric examination after having been charged with aggravated battery. The defendant was hallucinating and was diagnosed as having a paranoid type of schizophrenia and was found unfit to stand trial. Doctor Kelleher examined the defendant in November 1974 and found the defendant had improved sufficiently and could stand trial. Doctor Kelleher testified at that trial, and the defendant was acquitted by reason of insanity and received medical treatment until he was discharged in December 1975.

On September 2, 1976, Doctor Kelleher examined the defendant to determine his fitness to stand trial for the instant homicides. At that time, the defendant spoke rapidly and had poor contact with reality. He became delusional and disorganized in his thought processes. He showed no emotion when he discussed the shootings and stated that he shot his wife because she vexed him and that his three-year-old son instructed him to place the bodies in the bathtub and to clean up. Doctor Kelleher diagnosed the defendant as paranoid schizophrenic and found him unfit to stand trial. The defendant was again examined by Doctor Kelleher on September 21, 1976, and he made the same diagnosis.

Based on his personal interviews with the defendant as well as his review of the defendant’s medical records and staff reports of interviews with the defendant’s relatives, Doctor Kelleher concluded that on July 16, 1976, the defendant was suffering from a paranoid type of schizophrenia. He testified that in layman’s terms, the defendant’s condition could be described as crazy, psychotic or insane. Doctor Kelleher also concluded that as a result of that mental illness, the defendant was not able to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. He stated that people suffering from schizophrenia could appear for a period of time to be normal or rational to lay persons.

On cross-examination, Doctor Kelleher stated that a person diagnosed as schizophrenic, paranoid type, who is in the state of remission, can appreciate the criminality of his conduct and conform his conduct to the requirements of the law. He admitted that when he examined the defendant in November 1974, in April 1975 and in April 1977, the defendant’s schizophrenic symptoms were in the state of remission. Doctor Kelleher also admitted that the defendant had been diagnosed by his treating psychiatrist in February 1975 as symptom free for four or five months and had not required any psychotropic medication during that time nor in April 1977.

In rebuttal, the State called Doctor Werner Tuteur, an expert in the field of psychiatry and psychoanalysis. Doctor Tuteur examined the defendant on February 6, 1978, and reviewed the police report of the homicides and reports of psychiatric examinations of the defendant at certain mental hospitals. During the examination, the defendant told Doctor Tuteur that he had quarreled with his wife regarding financial matters and that he killed her because she had committed adultery. The defendant said he killed his stepdaughter because she was the issue of that adultery. Doctor Tuteur stated that the defendant had formed a motive for the killings, was in full contact with reality at that time and was aware of the religious commandment against killing. Doctor Tuteur noted that because the defendant had carried a gun into his house on the day of the homicides, he had formed an intent to kill and was planning that act. In Doctor Tuteur’s opinion, the defendant’s capacity to appreciate the criminality of his act was not substantially decreased by reason of mental disease and he could have conformed his conduct to the requirements of the law.

In surrebuttal, the defense called Doctor Robert Reifman, a psychiatrist and director of the Illinois State Psychiatric Institute. Doctor Reifman conducted a court-ordered examination of the defendant on July 30, 1976, to determine the defendant’s fitness to stand trial. Doctor Reifman stated that the defendant was paranoid, hostile, suspicious and out of touch with reality. The defendant was unable to give a coherent, meaningful explanation of the reasons for his arrest or to discuss court procedures. Doctor Reifman diagnosed the defendant’s condition as a paranoid type of schizophrenia. He had no opinion regarding the defendant’s sanity at the time of the homicides but stated that a person’s ability to plan a crime was not indicative per se of that person’s sanity.

Based upon the above-stated evidence, the trial judge found the defendant guilty of the murders of his wife and stepdaughter.

The defendant first contends that the guilty verdicts were improper since the evidence adduced at trial raised a reasonable doubt of his sanity.

In Illinois, a person is not criminally responsible for his conduct if at the time of that conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1975, ch. 38, par. 6 — 2(a).) While the law presumes all individuals to be sane, a defendant may overcome this presumption by presenting some evidence to raise a reasonable doubt of his sanity. Once this defense is raised, the presumption no longer prevails and the State must prove beyond a reasonable doubt that the defendant was sane at the time of the alleged crime. (E.g., People v. Brown (1982), 104 Ill. App. 3d 1110, 433 N.E.2d 1081; People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062.) In ascertaining the defendant’s sanity, the trier of fact must weight the totality of the evidence and determine the credibility of both lay and expert witnesses. The trier of fact is not required by law to accept the opinions of psychiatrists. (People v. Johnson (1981), 101 Ill. App. 3d 1060, 428 N.E.2d 1133; People v. Varnado (1978), 66 Ill. App. 3d 413, 384 N.E.2d 37.) The determination of the credibility of witnesses and the weight to be given to their testimony are functions of the trier of fact (People v. Johnson); and its finding of sanity will not be disturbed on review unless that finding is so improbable or unsatisfactory as to raise a reasonable doubt concerning the defendant’s sanity. People v. Brown.

In the instant case, testimony regarding the defendant’s sanity was given by lay and expert witnesses. The defendant contends, however, that the testimony of his expert witness, Doctor Kelleher, was more persuasive and credible than testimony by the State’s witnesses because Doctor Kelleher’s conclusions were based on numerous personal examinations of the defendant, on interviews with relatives of the defendant and on the numerous and voluminous records of the defendant’s medical history. The defendant further argues that Doctor Kelleher’s opinion that the defendant was insane was not overcome by the opinion of the State’s rebuttal witness, Doctor Tuteur, since Doctor Tuteur’s conclusions were based on one examination of the defendant that occurred almost 19 months after the homicides and lasted less than two hours and since Doctor Tuteur had not administered any tests, had not spoken to persons having contacts with the defendant and had not read reports about the defendant’s experiences in the army. These arguments, however, concern the credibility of the witnesses; and, as stated above, it was the function of the trier of fact to observe the demeanor of the witnesses and to determine credibility.

Upon review of the record, we find there was sufficient evidence adduced at trial to support the finding of the defendant’s sanity at the time of the homicides beyond a reasonable doubt. In addition to the expert testimony of Doctor Tuteur, numerous lay witnesses, who observed the defendant’s conduct and conversed with him shortly before and after the homicides, testified that the defendant’s behavior was normal and coherent and that the defendant appreciated the criminality of his conduct and could have conformed his conduct to the requirements of the law. Thus, we cannot say that the trial court’s conclusion • that the defendant was sane at the time of the homicides was improbable, unsatisfactory or palpably erroneous.

The next issue raised on appeal is whether the trial court erred in failing to order fitness hearings at the preliminary hearing and arraignment, on the date of trial and before sentencing.

Although the defendant did not raise these errors in his post-trial motion for a new trial, we will address this issue because it would violate the fundamental constitutional guarantee of due process to convict a defendant who is mentally unfit to stand trial. Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Rangel (1982), 104 Ill. App. 3d 695, 432 N.E.2d 1141; People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594; see 73 Ill. 2d R. 615(a).

The record in the case at bar shows that a court-ordered psychiatric examination of the defendant occurred on August 2, 1976, and that the defendant was diagnosed as not fit to stand trial at that time. It is not clear from the record, however, when the court received the results of this examination and whether the trial judges at the preliminary hearing on August 9 and at the arraignment on August 16 were aware of that diagnosis. No transcript of the preliminary hearing was made a part of the record. At the arraignment, the Public Defender entered his appearance, acknowledged receipt of the information and waived its reading. The defendant entered a plea of not guilty.

After subsequent hearings and court-ordered psychiatric examinations, the defendant was adjudged not fit to stand trial. On May 13, 1977, a restoration hearing was held and the defendant was adjudged mentally fit to stand trial. On August 4, 1977, when Doctor Kelleher examined the defendant to determine his sanity at the time of the homicides, he also concluded that “this defendant [was] still in need of mental hospital treatment.” The defendant’s trial commenced on March 28, 1979, and he was pronounced guilty on April 4, 1979. On the latter date, the Public Defender requested a fitness hearing for purposes of sentencing and an examination was conducted on April 25, 1979. The defendant was diagnosed as fit for sentencing. The doctor noted that the defendant had not received his medication for two days and “this should be reinstituted as quickly as possible.” The defendant was sentenced on May 9, 1979.

The defendant argues that a bona fide doubt of his fitness existed at the preliminary hearing and arraignment and that those proceedings should not have occurred until a fitness hearing was conducted. He contends that his fitness was again in doubt at the time of trial since he had not been re-examined for almost two years despite his lengthy history of mental illness..Finally, the defendant argues that he was entitled to an adversarial hearing on fitness prior to his sentencing and that his fitness was doubtful at that time since he was receiving erratic medication.

At the time of the proceedings in the case at bar, the standards and procedural rules governing the issue of fitness to stand trial and to be sentenced were codified in section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975 & 1977, ch. 38, par. 1005 — 2—1 (effective December 28, 1979, these standards and procedural rules were revised and are now in the Code of Criminal Procedure of 1963, sections 104 — 10, 104 — 11 (Ill. Rev. Stat. 1981, ch. 38, pars. 104 — 10, 104 — 11))). Section 5 — 2—1 provided:

"(a) For the purposes of this Section a defendant is unfit to stand trial or be sentenced if, because of a mental or physical condition, he is unable:
(1) to understand the nature and purpose of the proceedings against him; or
(2) to assist in his defense.
(b) The question of the defendant’s fitness may be raised before trial or during trial. The question of the defendant’s fitness to be sentenced may be raised after judgment but before sentence. In either case the question of fitness may be raised by the State, the defendant or the court.
(c) When a bona fide doubt of the defendant’s fitness to stand trial or be sentenced is raised, the court shall order that a determination of that question be made before further proceedings.”

The decision of whether or not a bona fide doubt of fitness is raised rests within the discretion of the trial court (People v. Salvaggio (1976), 38 Ill. App. 3d 482, 348 N.E.2d 243); and once facts are brought to the court’s attention which raise a bona fide doubt of a defendant’s fitness, and where neither the defendant nor the State raise the issue, it is incumbent upon the trial court to do so. (People v. Stribling (1982), 104 Ill. App. 3d 969, 433 N.E.2d 967.) Great weight is given to the trial court’s determination of the defendant’s fitness since, unlike the reviewing court, the trial court observed the defendant and evaluated his conduct. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) The trial court’s determination will be overturned only where an abuse of discretion is shown. People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594.

In the instant case, the judge presiding at the preliminary hearing had previously, at a prior hearing, ordered a psychiatric examination of the defendant. It is unclear from the record, however, whether the trial judge had received or was aware of the report and diagnosis of unfitness at that time. Furthermore, as there is no transcript of the preliminary hearing, we cannot speculate as to the nature of the proceedings, the knowledge of the trial court or the appearance, cooperativeness and competence of the defendant at the preliminary hearing. (See People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862; People v. Sanders (1975), 34 Ill. App. 3d 253, 339 N.E.2d 33.) We must presume that the trial court’s actions were in conformity with the law and that the facts before the court were sufficient to support the conclusion. (Wade v. Gentle (1981), 101 Ill. App. 3d 1042, 428 N.E.2d 1085.) We further believe that the defendant was not prejudiced by the court’s failure to determine the defendant’s fitness at this time since the purpose of the preliminary hearing was to determine whether probable cause to believe that he had committed the homicides existed (see Ill. Rev. Stat. 1975, ch. 38, pars. 102 — 17, 109 — 3) and since the defendant does not contend that probable cause was absent.

The transcript of the arraignment reveals that the judge who presided therein was not made aware of the defendant’s psychiatric examination nor was the issue of the defendant’s fitness placed in doubt. The defendant’s trial counsel did not indicate that the defendant did not understand the proceedings or that he was unable to assist in his defense. It is presumed that defendant’s counsel would have informed the trial court if he believed that a bona fide doubt of the defendant’s fitness existed. (People v. Rangel (1982), 104 Ill. App. 3d 695, 432 N.E.2d 1141.) The record shows that the defendant conducted himself in a coherent manner and in fact responded appropriately to the question of whether he was represented by counsel. Thus, we cannot say that the trial court committed error by arraigning the defendant nor do we find the defendant was prejudiced by the occurrence of those proceedings since he pleaded not guilty and had not jeopardized his rights or defenses.

The defendant further contends that his fitness to stand trial should have been redetermined before his trial in March 1979 because almost two years had elapsed since his last psychiatric examination and since he had a history of mental illness. He also contends that a bona fide doubt of his fitness existed when on August 4, 1977, Doctor Kelleher examined the defendant for purposes of determining his sanity at the time of the homicides and found that the defendant was still in need of mental hospital treatment.

Prior mental problems or even prior commitment to a mental hospital does not raise a bona fide doubt of the defendant’s fitness to stand trial. (People v. Mitchell (1974), 19 Ill. App. 3d 197, 311 N.E.2d 223.) Furthermore, the mere fact that a defendant suffers from mental disturbances or requires psychiatric treatment does not necessarily raise a bona fide doubt of his ability to understand the nature and purpose of the proceedings against him or to assist in his defense. People v. Davis (1978), 65 Ill. App. 3d 580, 382 N.E.2d 594.

In the instant case, the trial court and defense counsel had ample opportunity to view the defendant’s conduct throughout the pretrial proceedings. Defense counsel, who would have been the first to know whether the defendant was unable to assist in his defense, never questioned the defendant’s fitness and instead assisted the defendant in preparing for trial. During pretrial proceedings, the defendant consistently answered ready for trial and demanded trial. Immediately prior to trial, the defendant executed a jury waiver and was admonished by the trial court regarding his understanding of that waiver. Finally, we note that within a month after the defendant’s conviction, he was again examined and found to be fit. As the defendant does not rely on the record to show manifestations of incoherence or irrationalness to support his claim of unfitness (see People v. Stribling (1982), 104 Ill. App. 3d 969, 433 N.E.2d 967), we will not substitute our judgment for that of the trial court who observed the defendant and evaluated his conduct.

The defendant’s final argument is that a bona fide doubt of fitness existed at the time of sentencing since the post-trial psychiatric report indicated that the defendant’s medication was being erratically administered. He also contends that he was entitled to an adversarial fitness hearing prior to sentencing and that the court-ordered psychiatric examination did not satisfy the legal requirement for an adversarial proceeding.

After trial but prior to sentencing, the Public Defender requested a fitness hearing. Although the trial court initially denied this request, he reconsidered the issue and ordered a psychiatric examination. The Public Defender agreed to the examination and the defendant was diagnosed as fit for sentencing. At the sentencing hearing, the defendant elected to be sentenced under the old law providing indeterminate sentencing and, apparently without the aid of counsel, asked for a 30-day stay of mittimus.

Based on the above facts, we do not believe that the trial court abused its discretion when it proceeded with sentencing after having ordered a psychiatric examination, the results of which stated that the defendant understood the nature of the charges and possible sentences and was able to cooperate with his attorney and the court in sentencing procedures.. Despite the psychiatrist’s finding that the defendant had not received medication for two days, the defendant was diagnosed as fit to be sentenced. The defendant’s behavior at the sentencing hearing, as demonstrated in the record, does not indicate a contrary conclusion. Therefore, we must rely on the trial court’s observation and evaluation and hold that there is no basis in the record for us to find an abuse of discretion in finding the defendant fit and proceeding to sentencing.

We also do not believe that the trial court erred in failing to hold a fitness hearing prior to sentencing since there was no statutory requirement to do so. The governing statute at that time provided that when a bona fide doubt of the defendant’s fitness to be sentenced is raised, “the court shall order that a determination of that question be made before further proceedings” (emphasis added) (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—1(c)). The statute further provided that when the question of the defendant’s fitness “is raised after commencement of the trial, the question shall be determined by the court.” Ill. Rev. Stat. 1977, ch. 38, par. 1005-2-1(d). Cf. Ill. Rev. Stat. 1971, ch. 38, par. 104 — 2, repealed by Pub. Act 77 — 2097, sec. 8 — 5—1, effective January 1, 1973 (when competency in doubt after judgment but before sentencing, the determination of competency shall be made at a hearing and the court shall impanel a jury unless the defendant waives his right to a jury).

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

Affirmed.

WHITE, P. J., and McNAMARA, J., concur.

       At a hearing held on July 19, 1976, the defendant indicated he would be representing himself. However, the trial court asked a public defender to assist the defendant and “stand by.”


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    BLACK, JACKSON AND SIMMONS INSURANCE BROKERAGE, INC., a/k/a Black & Jackson Insurance Brokers, Inc., et al., Plaintiffs-Appellants, v. INTERNATIONAL BUSINESS MACHINES CORPORATION et al., Defendants-Appellees.
    First District (4th Division)
    No. 81—1363
    Opinion filed September 9, 1982.
    James L. Hardemon, of Meyer & Frost, of Chicago, for appellants.
    David L. Schiavone, of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee International Business Machines Corporation.
    Friedman & Koven, of Chicago (Robert J. Rubin and Herbert L. Zarov, of counsel), for appellee Lubin Bergman Organization, Inc.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Black, Jackson & Simmons Insurance Brokerage, Inc. (Black, Jackson), brought this action against the defendants, International Business Machines Corporation (IBM), and Lubin-Bergman Organization, Inc. (Lubin-Bergman). Black, Jackson asserts that its complaint against both defendants is based upon negligent misrepresentations which induced Black, Jackson to purchase a computer from IBM and a software package from Lubin-Bergman. It seeks to recover economic losses in the form of lost profits, salaries, office supplies and accounting and leasing expenses which it incurred as a result of the failure of the system to function as expected. The trial court granted summary judgment in favor of IBM and LubinBergman and against Black, Jackson on the grounds that Illinois law does not permit recovery of purely economic losses in a tort action. A separate count alleging breach of warranty against Lubin-Bergman is still pending in the trial court and is not involved in this appeal.

Black, Jackson makes the following allegations in its complaint. It contacted representatives of IBM to discuss the possibility of using a computer to assist the corporation in its insurance business. IBM recommended that Black, Jackson purchase an IBM System 32 computer and related IBM programs. IBM further recommended that Black, Jackson purchase the necessary software for the computer system from Lubin-Bergman. Representatives of Black, Jackson were taken to Lubin-Bergman’s offices and given the opportunity to observe a complete data processing system. Based upon representations that this type of system would be satisfactory for its needs, Black, Jackson entered into contracts with IBM and Lubin-Bergman. In fact, the System 32 computer sold to Black, Jackson had a smaller computer disc and a slower printer and could not interface with the Lubin-Bergman software. Black, Jackson alleges essentially that IBM and LubinBergman were negligent in representing that they were skilled and competent and able to supply Black, Jackson with a suitable data processing system. Black, Jackson’s economic losses flow from the inadequacy of this system.

The main issue in this appeal is whether the facts alleged in the case at bar state a cause of action for negligent misrepresentation which will enable Black, Jackson to recover purely economic losses. We do not believe a cause of action is stated.

In Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, the Illinois Supreme Court recently held that purely economic losses cannot be recovered under claims sounding in tort. The court stated that the law of sales and the law of contracts were well-articulated and sufficient to govern the economic relations between suppliers and consumers of goods. As part of the basis for its opinion, the Moorman court adopted the following reasoning from Seeley v. White Motor Co. (1965), 63 Cal. 2d 9, 18, 403 P.2d 145, 151, 45 Cal. Rptr. 17, 23:

“The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss *** rests *** on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands. A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will. Even in actions for negligence, a manufacturer’s liability is limited to damage for physical injuries and there is no recovery for economic loss alone.” (91 Ill. 2d 69, 80-81, 435 N.E.2d 443, 448.)

If the courts allow parties to circumvent their contractural remedies by suing in tort, the ability of contracting parties to allocate and bargain for risk of loss will be effectively destroyed and certainty in commercial transactions will be radically undermined. Tort law should thus be reserved to remedy hazards peripheral to the product’s function, that is, those which were not in the forefront of the minds of the contracting parties. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 97, 435 N.E.2d 443, 455 (Simon, J., specially concurring).

Moorman does, however, enumerate certain exceptions to the general rule prohibiting recovery of economic losses in tort, and it is one of these exceptions which forms the basis for the plaintiff’s argument on appeal. The Moorman court stated that “economic loss is recoverable where one intentionally makes false representations (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282), and where one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations (Rozny v. Marnul (1969), 43 Ill. 2d 54, 250 N.E.2d 656).” (91 Ill. 2d 69, 88-89, 435 N.E.2d 443, 452.) The plaintiff argues that its cause of action is based upon negligent misrepresentation and therefore falls within the second above-quoted exception to the Moorman rule.

In addressing the merits of this argument, it is helpful to examine the situations in which Illinois law has been considered concerning recovery of economic losses in a tort action. For the most part, the cases have relied upon the Restatement (Second) of Torts, section 552, which is entitled “Information Negligently Supplied for the Guidance of Others.” Section 552 provides in part as follows:

“One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Restatement (Second) of Torts sec. 552 (1977).)

The case of Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 385 N.E.2d 376, concerned a stockbroker who was alleged to have negligently supplied incorrect information. The Penrod court construed section 552 as meaning that “[i]f it is one’s business to supply information and if that information is negligently supplied *** the supplier can be liable for the resultant damages.” (Emphasis added.) (68 Ill. App. 3d 75, 81, 385 N.E.2d 376, 381.) This construction of the tort was followed in National Can Corp. v. Whittaker Corp. (N.D. Ill. 1981), 505 F. Supp. 147. In National Can Corp., the plaintiff, a manufacturer of bottle caps, sued a supplier of compounds used in making the caps based upon negligent misrepresentations concerning the fitness of the compounds. The court held that although an action for negligent misrepresentation is recognized in Illinois, such suits are limited to situations involving one who in the course of his business or profession supplies information for the guidance of others in their business relations with third parties. The Illinois Supreme Court in the Moorman case confirmed the interpretation of negligent misrepresentation espoused in Penrod and National Can Corp. by specifically limiting the recovery of economic losses in negligent misrepresentation actions to situations in which “one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations.” (Emphasis added.) 91 Ill. 2d 69, 89, 435 N.E.2d 443, 452.

In the context of this case, there are two significant features. First, the defendant must supply the information in the course of his business and second, the information must be supplied for the guidance of others in their business transactions. While section 552 of the Restatement (Second) of Torts says that liability arises when one “in the course of his business” supplies false information for the guidance of others, Moorman and Penrod have construed that section to mean that the defendant must be in the business of supplying information. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 89, 435 N.E.2d 443, 452; Penrod v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1979), 68 Ill. App. 3d 75, 81, 385 N.E.2d 376, 381.) Neither of the defendants in the case at bar was in the business of supplying information. They were selling merchandise directly to Black, Jackson.

The second significant aspect of this case concerns the requirement that the information supplied shall be “for the guidance of others in their business transactions.” That requirement is considered specifically in National Can Corp., where the court stated that suits for negligent misrepresentation are limited to situations involving one who in the course of his business or profession supplies information for the guidance of others in their relations with third parties. The information allegedly supplied here by IBM and Lubin-Bergman was not supplied for the guidance of Black, Jackson in its dealings with others.

Black, Jackson makes a claim in its brief that Terry E. Simmons, its president, suffered emotional distress as a result of the computer system’s failure. However, it does not appear that Simmons is a party to this action. Although his name appears in a caption of the second amended complaint, he is not identified as a plaintiff in the body, preamble or prayer of the complaint. The only plaintiff in this cause is Black, Jackson and Simmons Brokerage, Inc. A corporation cannot sustain emotional distress.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON, P. J., and ROMITI, J., concurring.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL LEE WRIGHT, Defendant-Appellant.
    Third District
    No. 81—637
    Opinion filed September 15, 1982.
    Rehearing denied October 15, 1982.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Samuel Lee Wright, was charged in an indictment with the offenses of murder, armed robbery, theft, and concealment of a homicidal death. Following a jury trial, the defendant was acquitted of all charges except the theft charge. A two-year term of imprisonment was imposed.

Only one issue is raised on appeal: whether the defendant’s theft conviction must be reversed where the State’s evidence was allegedly insufficient to show that the property taken by the defendant was from an individual legally capable of owning property. We affirm.

The evidence adduced at the defendant’s trial revealed the following sequence of events. In the afternoon of February 9, 1981, Robert Dover withdrew $2,000 from his savings account at the First Savings and Loan Association in Wilmington, Illinois. Testimony by Robert’s brother, James Dover, indicated that Robert had received an insurance settlement check in the amount of $23,000 on February 5, 1981. Apparently, Robert intended to make a $1,400 loan to his brother-in-law, Lauren Tousignant.

The defendant met Robert and James Dover at the Nite Owl Tavern during the afternoon of February 9, 1981. Robert Dover and the defendant left the tavern together in James’ car, a gold 1974 Volkswagen. According to the defendant’s testimony, he and Robert went crow hunting. Because it was cold and they had only one pair of gloves between them, they agreed that each would shoot five shells apiece while the other waited in the car. After the weapon was exchanged several times, Dover reportedly opened the car door and slid the weapon, a .20-gauge Mossberg, toward the defendant. As he did so, the weapon discharged. The defendant testified that he felt the gun hit the back of his leg. As he turned, he saw that Dover had been shot in the head. Dover’s body fell out of the car onto the ground.

The defendant further testified that he knew Dover was dead. He panicked because he was on parole for a burglary and pulled Dover’s body towards a nearby ditch. Upon returning to the Volkswagen, he noticed Dover’s wallet on the dashboard. He opened the wallet and discovered a large amount of money. Reasoning that if he left the money there someone else would take it, the defendant decided to take the money and throw the wallet away.

With the help of his cousin, Tim Brassard, the defendant ditched the Volkswagen and retrieved the gun and guncase from a ditch. He and Brassard drove around until 10:30 p.m. that night, when Brassard dropped him off at home. The defendant was arrested the following morning.

The defendant was indicted for theft under section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16— 1(a)(1)). The pertinent language in the statute reads as follows:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner;” (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a).)

The term “owner” is defined in section 15 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 15 — 2) as:

“*** a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.”

Section 2 — 15 defines “person” as:

“*** an individual, public or private corporation, government, partnership, or unincorporated association.” Ill. Rev. Stat. 1981, ch. 38, par. 2 — 15.

The defendant contends that the State failed to prove either that Robert Dover was the “owner” of the property taken or a “person” at the time the property was removed. The defendant also asserts that the issue raised is a case of first impression in Illinois. Perhaps. We need not wrestle with that question, however, since we have no testimony other than the defendant’s to prove that Robert Dover was in fact dead when the money was taken from his wallet. If he wasn’t dead, there is no problem with the proof offered. Because we have no expert testimony on the subject, we can just as easily assume that Dover was alive, albeit mortally wounded, when the money was taken as that he was dead.

Furthermore, evidence established that the money contained in Dover’s wallet was money that he had received in an insurance settlement and had removed from his savings account on the afternoon of February 9, 1981. The defendant admitted he removed the money from Dover’s wallet. Obviously, the money was taken by the defendant without authorization.

Keeping in mind the relaxation of the rules governing the proof of ownership necessary in theft and burglary cases in Illinois, we hold that the evidence in the case at bar clearly supports the defendant’s theft conviction. (See In re W.S. (1980), 81 Ill. 2d 252, 408 N.E.2d 718; People v. Schaefer (1980), 87 Ill. App. 3d 192, 409 N.E.2d 129.) Accordingly, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


author: PRESIDING JUSTICE EARNS

text:
    PATRICIA G. MARSHALL, Plaintiff-Appellee, v. MARK S. MARSHALL, Defendant-Appellant.
    Fifth District
    No. 81—576
    Opinion filed September 10, 1982.

      Edward W. Unsell, of East Alton, for appellant.
    R. Michael Fischer, of Alton, for appellee.
   PRESIDING JUSTICE EARNS

delivered the opinion of the court:

Mark S. Marshall appeals from the judgment of the Circuit Court of Madison County denying his petition to modify child support provisions entered in favor of appellee, Patricia G. Marshall.

On July 17, 1980, Patricia G. Marshall was granted a judgment of dissolution of marriage from defendant, Mark S. Marshall. The court ordered defendant to pay child support of $180 per month for two minor children. It further directed that the child support would automatically increase $20 per month per child beginning October 1, 1980, until it reached a maximum of $260 per month per child.

On February 19, 1981, the parties entered into a stipulation for modification of the judgment of dissolution. The stipulation differed from the court’s judgment in that defendant’s visitation rights were made more specific, child-support payments were to be deducted directly from defendant’s wages and the automatic increase provision in child support was stricken. The stipulation was signed by both parties. It was entered in the court’s minute record, was listed on the docket sheet of the court and was filed on the chancery record book. No written judgment or order of court adopting the stipulation of the parties was entered of record, nor did the court announce judgment in open court which was entered of record.

On September 3, 1981, defendant petitioned the court for modification of judgment. Plaintiff answered and petitioned for citation for contempt, alleging defendant had not paid the automatic increase in child support. The court denied defendant’s motion to modify and found for plaintiff on her petition for back child support. Defendant then moved for an order nunc pro tunc requesting the court to recognize the stipulation as an order of the court and moved to set aside, vacate or reconsider the judgment for plaintiff for back child support. Both motions were denied by the court. .

Defendant argues on appeal that the stipulation of the parties was a valid order binding on the court, that plaintiff waived any right to an automatic child-support increase in the stipulation and further that plaintiff should now be estopped from asserting a claim based on back child support due to defendant’s reliance on the stipulation.

Plaintiff has made a motion to dismiss the appeal for defendant’s failure to provide this court with a report of proceedings as required by Supreme Court Rule 323 (87 Ill. 2d R. 323). We do not dismiss defendant’s appeal but instead affirm the court’s judgment on the following basis.

The court found that the stipulation of the parties was not binding on the court because it was not presented to the court as a separate judgment pursuant to Supreme Court Rules 271 and 272 (87 Ill. 2d Rules 271, 272). Further, section 502(b) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 502(b)) provides that a separation agreement between the parties affecting child support is not binding on the court unless the court so holds considering the circumstances and evidence of the case. In the present case, the court did not sign the stipulation as a separate judgment nor has defendant shown that the court gave reasoned consideration to the stipulation. (Page v. Page (1975), 30 Ill. App. 3d 514, 334 N.E.2d 212.) Thus, the stipulation was a mere agreement affecting only the parties. As a result, defendant’s agreement that plaintiff waived her right under court order to automatic increases in child support has no merit. Defendant’s estoppel argument has been repeatedly rejected by the courts (Johnson v. Johnson (1975), 26 Ill. App. 3d 64, 324 N.E.2d 450; EUingwood v. Ellingwood (1975), 25 Ill. App. 3d 587, 323 N.E.2d 571) and is rejected here.

The judgment of the Circuit Court of Madison County is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERARDO GARCIA, Defendant-Appellant.
    First District (3rd Division)
    No. 80—2073
    Opinion filed September 8, 1982.

      Sam Adam, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Dean P. Karlos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, Gerardo Garcia, was tried by a jury and found guilty of possession and possession with intent to deliver cocaine, a controlled substance (Ill. Rev. Stat. 1979, ch. 56½, pars. 1401(a)(2), 1402(a)(2)). He contends that the judgment should be reversed and the case remanded because he was denied an evidentiary hearing on his motion to suppress and because of prosecutorial errors during the trial. We reverse and remand for an evidentiary hearing on defendant’s motion and for a new trial.

On October 11, 1979, while searching an apartment pursuant to a search warrant, Chicago police discovered and seized a quantity of cocaine. The search warrant had been issued as a result of the affidavit of one of the police officers. The affidavit included hearsay averments of an undisclosed informer.

Prior to trial, defendant moved to suppress the evidence obtained from the search on the basis that the warrant was illegally obtained. Defendant claimed that the police officer’s affidavit was knowingly and intentionally false. Defendant did not limit his challenge merely to specific allegations in the police officer’s affidavit, but rather, defendant challenged the integrity of the oath of the police officer as to the entire affidavit. Defendant supported his motion with his own affidavit and requested an evidentiary hearing. He also requested that the police officer who filed the affidavit be called as the first witness and that the undisclosed informer then be produced and called to testify.

The State objected to an evidentiary hearing because “only the four corners of the search warrant are all that can be examined once the search warrant is executed ***.” The court sustained the State’s objection and denied defendant an evidentiary hearing. The objects seized in the search were later introduced in evidence during the trial, and defendant was convicted.

This case involves the constitutional right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, and the concomitant constitutional guarantee that no search warrant shall issue but upon probable cause, supported by oath or affirmation. (U.S. Const., amend. IV.) In order to ensure the protection of this constitutional right and guarantee, subsequent to the ex parte issuance of a search warrant, a defendant may be entitled to an evidentiary hearing to determine whether the government violated his right and guarantee when it issued the warrant. (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) In Franks, the court held that where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that an evidentiary hearing be held at the defendant’s request. 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.

In the present case, the State contends that the affidavit which defendant filed in support of his request for an evidentiary hearing did not constitute a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. We disagree.

The police officer’s affidavit stated that an anonymous, reliable informer told him that on October 10, 1979, the anonymous informer and an anonymous friend were in defendant’s apartment at 5874 N. Ridge, Chicago, Illinois, and that defendant sold cocaine to the anonymous friend in the presence of the anonymous informer. The affidavit also stated that an independent investigation revealed that the premises located at the stated address were accurately described by the anonymous informer, that a 1977 white Cadillac bearing Florida license GBH-166 was parked in front of the apartment and that a computer check revealed the vehicle was owned by defendant.

Defendant’s affidavit specifically denied each allegation in the police officer’s affidavit. Defendant’s affidavit also stated that defendant’s white Cadillac could not have been parked in front of the apartment on the day and at the time stated in the police officer’s affidavit because defendant was driving in the automobile from his home in Miami, Florida, to Chicago, Illinois, on that day and at that time. Defendant’s affidavit was sufficiently detailed to subject him to a charge of perjury, which is a felony. Ill. Rev. Stat. 1979, ch. 38, par. 32-2.

Although Franks requires a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit before a defendant is entitled to an evidentiary hearing, Franks also holds that the showing need only be preliminary. Thus, a defendant is not required to prove his charge by a preponderance of the evidence before he is entitled to an evidentiary hearing under Franks. It is only at the hearing itself that a defendant, aided by testimony and the crucible of cross-examination, must prove his charge by a preponderance of the evidence. See Franks v. Delaware (1978), 438 U.S. 154, 156, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676; see generally United States v. Chesher (9th Cir. 1982), 678 F.2d 1353, 1362, where the court held that “clear proof” is not required to be shown before a defendant is entitled to an evidentiary hearing.

In the present case, we do not believe defendant’s affidavit should be considered unworthy of belief merely because he has an interest in the case, anymore so than the police officer’s affidavit should be considered unworthy of belief because he has an interest in the case by being a representative of government and associated with the prosecution. Moreover, we must bear in mind that much of the information in the police officer’s affidavit was hearsay derived from an anonymous source. It would be exceedingly difficult and in many cases impossible for a defendant in such circumstances to prove in advance of a hearing that the allegations in his affidavit are true and the allegations in the police officer’s affidavit are not true. (See People v. Cook (1978), 22 Cal. 3d 67, 92, 583 P.2d 130, 144, 148 Cal. Rptr. 605, 619.) We must also remember that it was actually the abuse of search warrants which led to adoption of the fourth amendment. (Sgro v. United States (1932), 287 U.S. 206, 210, 77 L. Ed. 260, 262, 53 S. Ct. 138, 140.) Also, it is not unknown for the arresting officer to misrepresent his connection with the informer, his knowledge of the informer’s reliability, or the information allegedly obtained from the informer. McCray v. Illinois (1967), 386 U.S. 300, 316 n.2, 18 L. Ed. 2d 62, 74 n.2, 87 S. Ct. 1056, 1065 n.2 (Douglas, J., dissenting); see People v. Mitchell (1970), 45 Ill. 2d 148, 157-58, 258 N.E.2d 345, 350 (Schaefer, J., dissenting), where reference was made to the wholesale use of “ ‘boiler-plate’ ” affidavits to obtain search warrants; see also People v. Cook (1978), 22 Cal. 3d 67, 85-86 n.7, 583 P.2d 130, 140 n.7, 148 Cal. Rptr. 605, 615 n.7.

Accordingly, if we were to require a defendant to do more than defendant did here to make a substantial preliminary showing under Franks, we could be placing an insurmountable burden on a defendant, which would, in effect, deny him a substantial right and guarantee of the fourth amendment. In addition, we would be presuming that a police officer was telling the truth in his affidavit and that a defendant was not telling the truth in his affidavit. But we would have no basis for making that presumption, and neither would the trial court judge.

We therefore conclude that defendant’s affidavit constituted a substantial preliminary showing that he was entitled to an evidentiary hearing on his motion to suppress.

The State next contends that defendant was not entitled to an evidentiary hearing because he “failed to show that probable cause was not established, even if the statements [in the police officer’s affidavit] were false.” On this point, the State presumes that the issue involved here only concerns the truthfulness of the allegations in the police officer’s affidavit relating to the presence of defendant’s automobile. In its brief, the State says that “even if the part of [the police officer’s] affidavit pertaining to defendant’s car were excluded, the remaining contents of the affidavit would have established probable cause for the issuance of the search warrant.” The remaining contents of the affidavit are the alleged hearsay averments of the unidentified informer.

Defendant’s motion stated that none of the allegations in the police officer’s affidavit were true, that the police officer knew they were not true, that the police officer proceeded before the judge to obtain the search warrant although he knew the allegations in his affidavit were not true and that he did so with a reckless disregard for the truth. In his affidavit, defendant denied each specific factual allegation in the police officer’s affidavit. Under the circumstances, it is clear that defendant was not challenging isolated allegations in the police officer’s affidavit, but rather, defendant was challenging, under oath, the integrity of the oath of the police officer as to the entire affidavit. However, the State argues that the oath of the police officer as to the affidavit itself is not an issue because even if the police officer lied as to the “facts” based on his personal knowledge, the alleged hearsay averments of the unidentified informer must be taken as true. We cannot accept the State’s argument.

We conclude that a defendant may challenge, under oath, and thereby place in issue, the integrity of a police officer’s oath as to the entire warrant affidavit. If a defendant can show that the police officer’s oath was not truthful and not made in good faith, then the affidavit must be-voided. This conclusion stems from the language of the fourth amendment which mandates that no warrant shall issue but upon probable cause supported by oath or affirmation. Obviously, this mandate takes the affiant’s good faith and truthfulness as its premise. Thus, when a police officer shows probable cause for the issuance of a search warrant, the showing must be truthful and in good faith. This, of course, does not mean that any negligent or honest misstatements would prove fatal or that every fact stated in the affidavit must be factually true. However, it certainly must mean that every fact stated in the affidavit is included in good faith and is believed to be true by the police officer. (See Franks v. Delaware (1978), 438 U.S. 154, 164-65, 57 L. Ed. 2d 667, 678, 98 S. Ct. 2674, 2681.) If it were otherwise, the oath or affirmation mandate of the fourth amendment would be a sham, for warrants would be issued under “oaths” that are not worthy of belief.

Moreover, warrants are issued under the imprimatur of the courts. It would make a mockery of a judge’s role if, in an ex parte proceeding, police officers could freely employ false allegations in an affidavit to secure a warrant. Additionally, the imperative of judicial integrity would'be seriously harmed if warrants are allowed to be issued upon affidavits that contain “facts” which the affiant knows are not true. Plainly, our judicial system cannot, and should not, tolerate, acquiesce in, or be an accessory to such practices.

Our conclusion is consistent with the principle that an affidavit for a search warrant should not be deemed insufficient because it is based on hearsay averments of an unidentified informer so long as there is a substantial basis for crediting such hearsay. (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L. Ed. 2d 684, 688, 85 S. Ct. 741, 745; Jones v. United States (1960), 362 U.S. 257, 269, 272, 4 L. Ed. 2d 697, 707, 708, 80 S. Ct. 725, 735, 736; see Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) However, if the oath of the police officer as to the affidavit is impugned and shown to have been untruthful and not made in good faith, there would not be a substantial basis for crediting the hearsay averments in the affidavit. Moreover, if the oath upon which the affidavit is based is shown to have been untruthful and not made in good faith, it would follow that the affidavit itself would have to be voided. (People v. Farnsworth (1981), 95 Ill. App. 3d 105, 107, 419 N.E.2d 693, 694-95.) Also, there would not be probable cause “supported by oath” which is required for the issuance of the warrant. People v. Cook (1978), 22 Cal. 3d 67, 85-86, 583 P.2d 130, 140-41, 148 Cal. Rptr. 605, 615-16; but see Franks.

We recognize that even when a warrant affidavit is shown to contain blatant lies, Franks requires only that the lies be excised and the remainder of the affidavit be tested for probable cause. However, we believe the validity and effect of an intentionally false affidavit for a warrant is to be determined by Illinois law in an Illinois case, provided Illinois law does not give its citizens less protection than Franks and does not contravene rights and guarantees of the United States Constitution. (See People v. Cook (1978), 22 Cal. 3d 67, 89, 583 P.2d 130, 142, 148 Cal. Rptr. 605, 617.) The Illinois Supreme Court has not yet addressed the question of whether a search warrant issued upon an affidavit containing deliberate lies by the affiant should be upheld. We conclude that to hold such an affidavit is valid, even if the intentionally false allegations are not necessary for a finding of probable cause, would make the oath of an affidavit meaningless. For the reasons stated herein, we believe that Illinois law would not allow an affidavit which contains lies by the affiant to be used as a basis for issuing a warrant.

We therefore hold that the State’s contention that defendant was not entitled to an evidentiary hearing even if the statements in the police officer’s affidavit were intentionally false is without merit.

The State next contends that we should consider evidence presented at trial to determine whether the warrant was legally issued. The State relies upon People v. Sakalas (1980), 85 Ill. App. 3d 59, 65, 405 N.E.2d 1121, 1127, which states that “in considering a ruling upon a motion to suppress, a reviewing court may consider evidence during trial after the conclusion of the suppression hearing.” We do not find Sakalas applicable here.

Sakalas did not involve the validity of the issuance of a warrant and, in fact, no warrant was issued in Sakalas or in the cases cited in Sakalas. It is elementary that in passing on the validity of a warrant, a reviewing court may consider only information brought to the attention of the magistrate or judge when the warrant was issued. (Aguilar v. Texas (1964), 378 U.S. 108, 109 n.1, 12 L. Ed. 2d 723, 725 n.1, 84 S. Ct. 1509, 1511 n.1; Spinelli v. United States (1969), 393 U.S. 410, 413 n.3, 21 L. Ed. 2d 637, 642 n.3, 89 S. Ct. 584, 587 n.3.) Proof of probable cause for the issuance of a warrant “must speak as of the time of the issue of that warrant.” (Sgro v. United States (1932), 287 U.S. 206, 211, 77 L. Ed. 260, 263, 53 S. Ct. 138, 140.) If it were otherwise, the obvious purpose and clear intention of the fourth amendment would be nullified, and an important right and guarantee of the people would be rendered meaningless. Aguilar makes this point very clear:

“The record does not reveal, nor is it claimed, that any other information was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention. Giordenello v. United States, 357 U.S. 480, 486; 79 C.J.S. 872 (collecting cases). In Giordenello, the Government pointed out that the officer who obtained the warrant “ ‘had kept petitioner under surveillance for about one month prior to the arrest.’ ” The Court of course ignored this evidence, since it had not been brought to the magistrate’s attention. The fact that the police may have kept petitioner’s house under surveillance is thus completely irrelevant in this case, for, in applying for the warrant, the police did not mention any surveillance.” (Aguilar v. Texas (1964), 378 U.S. 108, 109 n.1, 12 L. Ed. 2d 723, 725 n.1, 84 S. Ct. 1509, 1511 n.1.)

We therefore conclude that the State’s contention that we should consider evidence presented at trial to determine whether the warrant was legally issued is without merit.

Accordingly, we hold that the trial court erred in denying defendant an evidentiary hearing on his motion to suppress and the case must therefore be remanded. At the evidentiary hearing,

defendant may call the police officer who filed the warrant affidavit to testify. If under all the circumstances the judge doubts the credibility of the police officer, the judge may require that the informer be identified or even produced (see McCray v. Illinois (1967), 386 U.S. 300, 307-08, 18 L. Ed. 2d 62, 69, 87 S. Ct. 1056, 1060-61), and if the State fails to comply, the judge may grant the motion to suppress (see Roviaro v. United, States (1957), 353 U.S. 53, 61, 1 L. Ed. 2d 639, 645, 77 S. Ct. 623, 628). Also, in the event defendant sustains his burden of proof by a preponderance of the evidence, the warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit filed with the warrant complaint. (Franks v. Delaware (1978), 438 U.S. 154, 156, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) We, of course, express no opinion as to whether defendant will prevail at the hearing, and nothing contained herein is otherwise intended.

We next address the second basic issue in the case, which also involves the search warrant. Defendant contends that the prosecutor committed reversible error by repeatedly relating to the jury the contents of - the search warrant, including the hearsay allegations of the undisclosed informer. Defendant also claims the prosecutor made improper allusions, inferences and suggestions with regard to the search warrant which prejudiced defendant. During oral argument, the State was not able to give any valid reason for the prosecutor’s actions. In its brief, the State basically claims that defendant waived any error by not making specific objections and not including some of the objections in his post-trial motion, and that the prosecutor’s actions constituted only harmless error.

During the prosecutor’s opening statement, the following occurred:

“[Prosecutor]: I expect the evidence will show you that on October 10th, 1979, [a police officer] from Narcotics and Gang Crimes Division of the Chicago Police Department, received information through an informant — and you will learn what an informant is, that their identity is usually kept confidential, for a variety of reasons, one of which is that it is a dangerous area for informants to be in, it’s important in order to allow a free flow of information to the police that they are kept secret. This informant gave information to [the police officer], information regarding bringing cocaine into the City of Chicago—
[Defendant’s attorney]: Objection.
THE COURT: Overruled.
[Prosecutor]: The evidence will then show that based on this information, [the police officer] began to put into focus,a number of things. *** [The police officer], you "will learn, did some other things, and what he did was, after finding out that this car was out at 5874 North Ridge, he put this information together and applied for a search warrant — and you will learn what a search warrant is, it’s a judicially approved permission to the police to search for specific items as listed in the warrant. This warrant was for one Gilberto Garcia and for the first—
[Defendant’s attorney]: Objection, Judge.
[Prosecutor]: —floor apartment—
[Defendant’s attorney]: Objection.
THE COURT: Sustained.”

During the redirect examination of the police officer who obtained the search warrant, the following occurred:

“[Prosecutor]: Is there some other document, other than the police reports, that contains the information given to you by the informant and what if anything, you did relative to the information received by you from the informant?
[Police officer]: The search warrant, sir.”

The officer then proceeded to testify that assistant State’s Attorney Grossi had signed each page of the warrant and that each page had also been signed by a police sergeant.

Later, the State was permitted to call assistant State’s Attorney Grossi, who testified to matters concerning the search warrant which were completely irrelevant. The testimony, however, emphasized the assumed importance of the warrant and the credibility of its contents. Grossi testified:

“[People’s exhibit No. 1] is a search warrant which I approved on the morning of the 11th of October, while I was at the First District on an unrelated robbery charge. *** After we approve a search warrant we are required to sign the search warrant with our name, search warrant number and the date we have approved the search warrant, and I have signed my name on all three pages of the warrant and of the affidavit. *** I put the search warrant number [to show] that we approve[d] and I placed the date of approval, which is 10/11/79. *** [I gave my approval] shortly before 3:00 in the morning. *** [T]he warrant was not signed by the judge until after I approved it.”

The search warrant was again brought to the jury’s attention by the prosecutor during his cross-examination of defendant. The prosecutor repeatedly asked defendant whether the police officers showed him the search warrant. Defendant testified that he was not shown the warrant until after the search was conducted. The prosecutor then asked defendant whose name was on the search warrant. Defendant’s attorney objected and moved for a mistrial. The court denied the motion. In addition, the following occurred: '

“[Prosecutor]: So you know they wanted you, didn’t you?
[Defendant]: I didn’t know they wanted me, because they showed me the search warrant.
[Prosecutor]: And then you knew they wanted you?
[Defendant]: They come with the search warrant in my name. If they want me, no.”

In his closing argument, the prosecutor again referred to the hearsay allegations of the undisclosed informer:

“He [the defendant] was in Murfreesboro, Tennessee. That’s 900 miles.
Now, to go 900 miles in 12 hours, you have to drive 75 miles. Man, I was speeding, but to go 900 miles at 75 miles an hour will take you six hours. So, if you are there at 12:20 Miami time, 11:20 Chicago time, you’d arrive up here in Chicago at 7:00 o’clock at night, and that’s what happened. He arrived at about 9:00 or 10:00 o’clock. He talked to some people and then what happened is, an informant called the police at around 11:00 or 11:15. The dope is already here. The dope is already in the apartment. Contact has been made. The wheels are turning. It’s going to be sold.
The police know about it. They go, they want to corroborate. Is this informant telling us the truth? Is there really a Cadillac there? Is the car there? Does the building look like what it is supposed to look like? Is the address right?
They go there and find out, yes. [The police officer says to another police officer], you stay here with another investigator, I’m going to go get the search warrant prepared. Watch the house. Don’t let anybody leave, because, if they leave, they may have the drugs with them.”

Plainly, the prosecutor’s references and suggestions regarding the search warrant related to the jury that the informer had told the police that defendant was responsible for bringing the cocaine to Chicago and into the apartment and that defendant was the occupant of the apartment. Also, in an apparent attempt to give credibility to the hearsay information of the informer, the prosecutor demonstrated, through testimony that was totally irrelevant to any issue properly before the jury, how the police and State’s Attorney’s office “authenticate” a warrant. We believe that the prosecutor utilized and took advantage of hearsay allegations and that his actions were improper. (Moore v. United States (1976), 429 U.S. 20, 50 L. Ed. 2d 25, 97 S. Ct. 29; see People v. Fryer (1914), 266 Ill. 216, 220, 107 N.E. 134, 136, where the court held that it was improper to introduce a search warrant into evidence and that the warrant was not legal evidence of any fact in the case.) Here, the error was compounded by the fact that the informer remained unidentified and therefore unavailable for examination by defendant. Also, since defendant was charged with possession of cocaine, the impressions conveyed to the jury by the improper actions of the prosecutor go to the very heart of the case.

Defendant testified that he had lived with his family in Florida for the last 5 years. He testified that at the time of this event, he was living at a specific address in Miami, Florida, with his wife, two children, his father, his mother and his sister’s daughter. Shortly before midnight on October 9, 1979, defendant left Miami with his wife to go to Chicago for the purpose of visiting his sister and her newborn son. Defendant was driving a white Cadillac which had Florida license plates. During the trip, he stopped for a short time in Murfreesboro, Tennessee, where he made a phone call that was registered by the telephone company. He arrived in Chicago shortly before midnight on October 10, 1979, and went directly to his sister’s apartment. His sister, his niece, and his sister’s young son were in the apartment.

About 1 a.m., defendant and his wife went to sleep in one of the bedrooms. At approximately 10:30 a.m., the police knocked on the door, waking defendant and his wife. The police entered the apartment pursuant to the search warrant. At that time, in addition to the people already mentioned, defendant’s sister’s husband and a friend of defendant’s sister were present in the apartment.

The police searched the apartment and eventually found a package containing cocaine hidden in the kitchen. Defendant was not in the kitchen when the package was found. When questioned by the police, defendant denied knowing of the existence of the package or its contents.

Defendant identified photographs of his home in Florida, and he identified his keys to the house. He also testified that he maintains a mortgage on the house and a bank loan on the white Cadillac. Title to the house and title to the automobile are held by lending institutions. Defendant also testified that he never lived in or occupied the apartment where the cocaine was found. He also testified that he never paid rent, gas or electric bills for the apartment. The apartment was leased to defendant’s sister and her husband. Defendant’s wife and his father testified, and their testimony corroborated defendant’s testimony.

Under the circumstances, we believe that the case is factually close, and therefore fairness demands that the prosecutor’s improper actions not be overlooked and that defendant be granted a new trial. In addition, we believe that the prosecutor’s actions constituted plain error as they were highly prejudicial and adversely affected substantial rights of the defendant which are necessary for a fair trial. People v. Morris (1979), 79 Ill. App. 3d 318, 331, 398 N.E.2d 38, 45; People v. Bingham (1979), 75 Ill. App. 3d 418, 426, 394 N.E.2d 430, 437; People v. McKinney (1978), 62 Ill. App. 3d 61, 64, 378 N.E.2d 1125, 1128.

Accordingly, the judgment is reversed. The case is remanded for an evidentiary hearing on defendant’s motion to suppress as stated herein and for a new trial.

Reversed and remanded.

WHITE, P. J., and McGILLICUDDY, J., concur.

       Although the affidavit did not specifically state who conducted the independent investigation, we assume from the affidavit as presented that it was the affiant himself who did and saw'the things stated. See United States v. Chesher (9th Cir. 1982), 678 F.2d 1353, 1359.

       We note with special interest the dissent of Justice Schaefer in Mitchell as well as the dissent of Justice Ward in People v. Bak (1970), 45 Ill. 2d 140, 258 N.E.2d 341. Mitchell and Bak were decided on the same day. In both cases, the question presented was “whether the person against whom or against whose property a search warrant has been directed may dispute the matters declared under oath which led to the finding of probable cause and the issuance of a search warrant by the judicial officer.” (45 Ill. 2d 140, 141, 258 N.E.2d 341.) The majority in both cases held that the defendant was not entitled to an evidentiary hearing to dispute the averments made in the warrant affidavit. In his dissent in Bak, Justice Ward stated:
      “It seems to me that the integrity of the search warrant procedure requires that one who complains that false evidence has been introduced to his detriment should be given an opportunity to show this. To me, a refusal, though well intentioned, to permit such a showing diminishes the judicial process.
      The position taken by the majority avoids admittedly troublesome problems, but another consequence is that we sacrifice something of first importance.” 45 Ill. 2d 140, 148, 258 N.E.2d 341, 345.
      Of course, what was stated in the dissents of Justice Schaefer and Justice Ward, in effect, became the law of the land when the United States Supreme Court decided Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.

         Cook was decided after Franks. In Cook, the court held that where an affidavit for a search warrant contains intentionally false allegations, a court cannot excise the false allegations and presume the remainder of the affidavit to be true. Rather, the court held, the warrant must be quashed and the products of the search excluded, regardless of the effects of the intentionally false statements on probable cause. (22 Cal. 3d 67, 87, 583 P.2d 130, 141, 148 Cal. Rptr. 605, 616.) With respect to Franks on this point, the court in Cook held: “But *** [Franks] would afford our citizens less protection than is guaranteed to them under California law ***. *** In these circumstances it is settled doctrine *** that all challenges to the veracity of a search warrant affidavit in our courts are to be governed by [California law].” 22 Cal. 3d 67, 88, 583 P.2d 130,142,148 Cal. Rptr. 605, 617.

         People v. Farnsworth (1981), 95 Ill. App. 3d 105, 419 N.E.2d 693, supports this conclusion. There, it was shown that the police officer deliberately swore falsely in the affidavit he executed in support of the search warrant. In determining that the trial court properly quashed the search warrant and suppressed the evidence seized, the court stated:

        “Franks v. Delaware *** authorizes inquiry into questions of false and misleading search warrant affidavits where false statements are not apparent from a mere reading of the document itself. United States v. Carmichael [(7th Cir. 1973), 489 F.2d 983] is authority for the proposition that deliberate perjury by a government affiant is grounds for striking not only the false statements but the warrant itself and any evidence produced from a search based thereon. This is just such a case.” 95 Ill. App. 3d 105, 107, 419 N.E.2d 693, 694-95.

       We reach our conclusion through the perspective that the rights and guarantees of the fourth amendment belong in the category of indispensable freedoms (Spinelli v. United States (1969), 393 U.S. 410, 435, 21 L. Ed. 2d 637, 655, 89 S. Ct. 584, 598 (Fortas, J., dissenting)) and that therefore the protection the amendment affords must be liberally construed in favor of the individual. (Sgro v. United States (1932), 287 U.S. 206, 210, 77 L. Ed. 260, 262, 53 S. Ct. 138, 140.) In this regard, though the police are generally honest and their aims worthy, history shows that they are not appropriate guardians of the privacy which the fourth amendment protects. Jones v. United States (1960), 362 U.S. 257, 273, 4 L. Ed. 2d 697, 709, 80 S. Ct. 725, 737 (opinion of Douglas, J.). See Spinelli v. United States (1969), 393 U.S. 410, 436, 21 L. Ed. 2d 637, 655, 89 S. Ct. 584, 599 (Fortas, J., dissenting); People v. Cook (1978), 22 Cal. 3d 67, 85-86 n.7, 583 P.2d 130, 140 n.7, 148 Cal. Rptr. 605, 615 n.7; see generally with respect to the history of the fourth amendment, N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937); Sevilla, The Exclusionary Rule and Police Perjury, 11 San Diego L. Rev. 839, 869 (1974); Schlichter, The Outwardly Sufficient Search Warrant Affidavit: What If It’s False? 19 U.C.L.A. L. Rev. 96,111-12 (1971).

       The State is not required to expose an informer’s identity routinely, upon a defendant’s mere demand, when there is ample evidence in the suppression hearing to show that the informant is reliable and his information credible. (See Franks v. Delaware (1978), 438 U.S. 154, 170, 57 L. Ed. 2d 667, 681, 98 S. Ct. 2674, 2684, citing McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056.) Nor can the defendant engage in a routine “fishing expedition” at the hearing. See People v. Cook (1978), 22 Cal. 3d 67, 92, 583 P.2d 130, 144, 148 Cal. Rptr. 605, 619.

       A further limitation on the applicability of the privilege not to identify an informer arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity or of the contents of his communication is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure, and if the government withholds the information, the court may dismiss the action. Also, if the informer helped set up the commission of the crime and was present at its occurrence, the informer must be disclosed. Roviaro v. United States (1957), 353 U.S. 53, 60-61, 1 L. Ed. 2d 639, 645, 77 S. Ct. 623, 628; Portomene v. United States (5th Cir. 1955), 221 F.2d 582; United States v. Conforti (7th Cir. 1952), 200 F.2d 365; Sorrentino v. United States (9th Cir. 1947), 163 F.2d 627; see also Scher v. United States (1938), 305 U.S. 251, 254, 83 L. Ed. 151, 154, 59 S. Ct. 174, 176.