author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN PETTIT, Defendant-Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CARR, JR., et al., Defendants-Appellants.
    Second District
    Nos. 81—671, 81—781, 81—782 cons.
    Opinion filed June 17, 1983.

      G. Joseph Weller, David S. Morris, Josette Skelnik, Paul J. Glaser, and Kathleen Hamill, all of State Appellate Defender’s Office, of Elgin, for appellants.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Steven Pettit, Robert Carr, Jr., and Gerald Rein were charged by information in the circuit court of Winnebago County with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(1)), and Pettit was also charged with aggravated battery. Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(b)(1).

Pettit’s motion for severance was granted. Carr and Rein were convicted in a bench trial, and Pettit’s trial proceeded immediately thereafter before the same judge. Pettit was convicted of both charges. Each defendant’s post-trial motion was denied; Carr and Rein were each sentenced to eight years’ imprisonment. Pettit received concurrent terms of four years for aggravated battery and 10 years for home invasion. Each defendant appealed, and these cases were consolidated for our consideration.

On Tuesday, March 17, 1981, Robert Carr, Jr., Steven Pettit, and Gerald Rein went to the home of Duane Moore. Moore had recently sold them drugs which they believed to be bad. Using the pretense of wanting more drugs, and claiming not to be upset about the bad drugs already delivered, they convinced Moore to have his source, Ned Bassett, come over to the house with a delivery of additional drugs. When Bassett arrived, Pettit, Carr and Rein each pulled out a gun and held the two men hostage. They then forced Bassett to lead them to the home of his source, Steve Anderson. That residence was the lower apartment in a two-story house on North Court Street in Rockford, Illinois. Carr, Pettit and Rein brought Bassett and Moore with them to that apartment. Anderson was not home, but a babysitter, Mary Lynn, was there with the four-year-old son of Anderson’s girlfriend.

The three defendants broke into the apartment and held Lynn hostage together with Bassett and Moore, and George Meek, who came down from the upstairs apartment where he lived with Mary Lynn when he heard her scream. After IW to two hours waiting for Anderson to return, Meek, Mary Lynn, the child, Bassett and Moore were forced to go upstairs to Meek’s apartment where the defendants continued to hold that group of people hostage for another two hours waiting for Anderson to return. During that two-hour wait, Pettit repeatedly beat Ned Bassett, and when Bassett finally began to fight back, two shots were fired. The first shot discharged into the ceiling; the second shot hit Bassett in the right thigh and traveled into his right calf. Shortly thereafter the three defendants left the apartment, taking Bassett and Moore with them.

Three issues are presented: (1) Whether Pettit, Carr and Rein were proved guilty of home invasion; (2) Whether Pettit was proved guilty of aggravated battery, and (3) Whether Pettit was denied due process based on comments made by the judge at the conclusion of Carr and Rein’s trial concerning Pettit’s role in the incident.

I

Home invasion

The same argument is made on behalf of all three defendants. They point out that the home invasion statute proscribes entry of the dwelling place of another “when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a).) The premises involved was a house which was used as two apartments. The owner of the house, Steve Anderson, lived on the main floor level with his girlfriend and her four-year-old son; George Meek and Mary Lynn lived upstairs. Anderson was their landlord. Before leaving Moore’s house, Bassett was made to “write down the plans of the house [Anderson’s] and how to get in it.” Bassett testified Pettit made him write down the plans of the house because Pettit “wanted to know all of the exits, bushes and all, surroundings, the garage and the upstairs and the downstairs.” Bassett testified he thought Anderson lived alone at the house; Bassett was not aware that different people lived upstairs. Bassett also testified that the doorway he and Pettit entered led only into the lower apartment; there was no other passageway or doorway once entry had been made through the outside aluminum door and the inside door which Mary Lynn had opened in response to Bassett’s knock.

There was testimony tending to show that there was a common hallway used by occupants of the upper and lower apartments for access to the outside. However, the door to that hallway was not the door through which the three defendants entered; they entered through the door which faces south, and which is the “front” door of the lower apartment.

The defendants argue that since all the people present in the house were in the lower level apartment at the time Pettit decided they should all move upstairs, the defendants knew or had reason to know that no one was present in the upper apartment. The defendants point out that a reviewing court should give effect to the actual intention of the legislature (People v. Beam (1979), 74 Ill. 2d 240; People v. Scott (1974), 57 Ill. 2d 353), and may discover legislative intent by considering the evil to be remedied. People v. Dednam (1973), 55 Ill. 2d 565.

The defendants’ suggestion that the “evil to be remedied” or prevented by the home invasion statute, the unlawful entry of an occupied dwelling, is consonant with the clear language of the statute and is in accord with express judicial interpretation of the statute. (People v. Robinson (1980), 89 Ill. App. 3d 211, 214-15.) In rejecting a due process attack on the statute, the Robinson court determined that the offense of home invasion consists of two parts: unauthorized entry and the use or threat of force by the invader while armed with a deadly weapon or intentional injury by the invader upon an occupant. (89 Ill. App. 3d 211, 214.) It found the statute was not unconstitutionally vague because “[i]t informs all who might be tempted that they cannot, with impunity, enter another’s dwelling, with reason to believe that the other is home, and therein threaten force with a deadly weapon or actually injure the occupant.” People v. Robinson (1980), 89 Ill. App. 3d 211, 214-15.

The State urges rejection of the defendants’ argument that no home invasion occurred because the defendants were aware everyone was downstairs and no one was upstairs. The State argues the record shows that Mary Lynn, the child, and Pettit preceded everyone upstairs, and that Carr and Rein must have been aware of their presence since they followed them up. The State similarly argues that Pet-tit entered the upstairs three separate times: first, to check to see if anybody else was up there; second, when he decided everyone should move upstairs in order to surprise Anderson when he returned, and third, after he had gone back downstairs to carry Duane Moore, who was in a wheelchair, upstairs. At the time of Pettit’s last entry, the State notes that he had to be aware that Mary Lynn and the child at least were present in the upstairs apartment, because he had told them to lie down on the bedroom floor.

The State posits the home invasion statute does not require that persons be “within” or “at home” or that the dwelling be “occupied,” only that persons be “present” when entry is made. It concludes, therefore, that the victims need not be within the dwelling, they must simply be at the site of the crime. In support, the State cites People v. Pavic (1982), 104 Ill. App. 3d 436. The defendant there gained access to the circuit breaker of the victim’s apartment, and switched it to the “Off” position. When the victim left her apartment to restore her electrical service, the defendant entered the apartment. The Pavic court upheld the defendant’s conviction for home invasion, finding that the victim was “constructively” present in the apartment. The court considered that the evidence supported the inference that the defendant knew the victim was home, and deliberately lured her out of the apartment by subterfuge so that he could gain entrance. (People v. Pavic (1982), 104 Ill. App. 3d 436, 447.) The court expressed its belief its holding was consonant with the legislative intent in that the victim was within the class of people the statute was designed to protect, and that the defendant’s conduct was of the type of harm the statute was enacted to prevent. 104 Ill. App. 3d 436, 447-48.

The defendants find Pavic distinguishable and not dispositive, and we agree. The statute is not ambiguous, and resort to definition of the word “present” is unnecessary. As the Pavic court stated: “The emphasis of the home invasion statute *** is solely to protect the personal safety of people in their homes.” 104 Ill. App. 3d 436, 447.

The evidence here shows positively that no one was present in the upstairs apartment at the time the defendant Pettit decided everyone should go upstairs. Pettit and Mary Lynn had already surveyed the upstairs for the express purpose of seeing “if there was anybody else up there.” Nor was anyone “constructively” present as in the Pavic case. George Meek was not “lured” out of the upstairs apartment so that the defendants could invade his home. The stated purpose of having everyone go upstairs was to make it look to Anderson like no one was downstairs, and he would then have to go upstairs where the defendants were waiting in ambush for him.

Certainly a home invasion occurred here; but it was an invasion of Anderson’s home, not Meek’s, and the defendants were not charged with the invasion of Anderson’s home. The evidence, in fact, fails to show that the defendants “knowingly entered the dwelling place of another [Meek’s].” Ned Bassett testified he drew the defendants a plan of the house, including the upstairs. He also testified that, although he had been buying drugs from Anderson for two to three years, he thought Anderson lived alone, was not aware that different people lived upstairs, and that he did not know Meek or Mary Lynn prior to the night of the occurrence. George Meek testified he told defendant Pettit that “we [he and Mary Lynn] were babysitting for Anderson.”

The relief requested by the defendants here was reversal; however, this court took note of arguments made by defense counsel at the two trials to the effect that the evidence at most showed defendants were guilty, perhaps, of kidnaping, unlawful entry, aggravated assault or aggravated battery. This court agreed that the evidence indeed would have sustained conviction of all three defendants for aggravated battery, Carr and Rein on accountability principles. Consequently, pursuant to the broad powers granted by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)), this court reduced the degree of offense to aggravated battery which it considered was a lesser included offense of home invasion.

In a petition for rehearing subsequently denied by this court, the defendants argued aggravated battery is not a lesser included offense of the subsection of the home invasion statute with which they were charged; i.e., section 12 — 11(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(1)). Defendants note that “[fjor an offense to be a lesser included offense, it must not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the lesser.” (People v. Rudd (1980), 90 Ill. App. 3d 22, 26.) Defendants point out battery requires either bodily harm or physical contact of an insulting or provoking nature, and aggravated battery requires inter alia, the use of a deadly weapon during the commission of a battery. Defendants argue that since the precise offense with which they were charged can be committed whether or not injury occurs and that the offender need only be armed with a deadly weapon, it is possible to commit the greater offense of home invasion without also committing aggravated battery. Consequently, the defendants argue aggravated battery may not be considered a lesser included offense of home invasion. The defendants suggested in their rehearing petition that aggravated assault (Ill. Rev. Stat. 1981, ch. 38, par. 12— 2) is the lesser included offense to which their convictions should be reduced.

Upon this court’s invitation to the State to respond to the defendants’ petition for rehearing, the State declined to submit an argument in support of reducing the degree of the offense. Instead, citing People v. Mays (1982), 91 Ill. 2d 251, it asserted that the law on the concept of lesser included offenses is not yet settled.

In Mays, the defendant appealed his conviction for rape contending, inter alia, that battery was a lesser included offense of rape and, therefore, that the court erred in refusing his tendered jury instruction as to that offense. The appellate court agreed that battery was a lesser included offense of rape, and remanded the cause for a new trial. (People v. Mays (1981), 93 Ill. App. 3d 352.) The supreme court reversed and reinstated the circuit court’s judgment.

In so reversing, the supreme court noted that although an “included offense” is defined in the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9):

“The definition *** does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.” (91 Ill. 2d 251, 255.)

Continuing, the court noted:

“In People v. Cramer [(1981), 85 Ill. 2d 92] this court recently approved the use of the second test, while at the same time pointing out that the first test was seldom used and expressing no opinion on the propriety of the third test. Under the facts of this case, however, we reach the same result no matter which test is applied.” People v. Mays (1982), 91 Ill. 2d 251, 255.

The State here posits this court’s reduction of the degree of the offense to aggravated battery could be sustained if the third test in Mays were accepted as determinative in deciding if a particular offense is an included offense of another. That is, if the evidence presented at trial to prove the elements of the greater offense also proved the elements of a lesser offense.

In reply, the defendants point out that the use of the third test in Mays would not sustain a reduction of the home invasion offense to aggravated battery because that test is actually the “inherent relationship” test applied in several Federal cases.

“By ‘inherent relationship,’ the Federal courts of appeals meant that the two offenses ‘must relate to the protection of the same interest, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.’ (United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 319.)” (91 Ill. 2d 251, 258.)

Defendants contend there is no such “inherent relationship” between the offenses of home invasion and aggravated battery.

The issues in Cramer and Mays were framed in the context of an instructional error being made, whereas this court’s consideration of the issue is framed in the context of its discretion to reduce the degree of an offense pursuant to Supreme Court Rule 615(b)(3). Power to exercise that discretion, however, is only available when lesser included offenses are involved. (People v. Trinkle (1976), 40 Ill. App. 3d 730, 734, aff’d (1977), 68 Ill. 2d 198.) Notwithstanding the seeming lack of certainty as to which of the three tests in Mays is determinative, Cramer did utilize the second test; i. e., that the greater crime as it is alleged in the indictment or other charging document is determinative in deciding if a particular offense is an included offense therein. That test also has been used at the appellate level. See, e.g., People v. Barkenlau (1982), 105 Ill. App. 3d 785; People v. Robinson (1979), 68 Ill. App. 3d 687; People v. Thompson (1977), 55 Ill. App. 3d 795.

Cramer expressed no opinion “whether the evidence as adduced at trial could support a defendant’s tendered instruction where the terms of the indictment could not.” (People v. Cramer (1981), 85 Ill. 2d 92, 98.) This court in Barkenlau, however, in addition to eschewing the use of the first test (comparison of the abstract elements of the crime-charged statute and the instruction-tendered statute), considered that the issue sidestepped in Cramer was not open for its consideration. Barkenlau noted that when conduct is violative of more than one statute and each statute requires different proof for conviction, it is well established that it is for the State, not the defendant, to choose under which statute prosecution will proceed. (People v. Barkenlau (1982), 105 Ill. App. 3d 785, 789-90.) “[0]ne may not be convicted of an unindicted offense which is not a lesser-included of the offense for which he is charged. [Citations.]” 105 Ill. App. 3d 785, 790.,

The information at bar charged Pettit, Car and Rein committed the offense of:

“Home Invasion, in that they, without authority and not being peace officers, knowingly entered the dwelling place of George Meek located at 1413 North Court Street, Rockford, Illinois, having reason to know that one or more persons were present therein, and while armed with a dangerous weapon, to-wit: a certain handgun, did within such dwelling place, use force or threaten the imminent use of force upon the said George Meek. ***.”

The offense of aggravated battery is not a lesser included offense of home invasion as charged in the information because the elements of bodily harm and use of a deadly weapon are not alleged therein. Aggravated assault is also not a lesser included offense because there is no allegation that Meek was placed in “reasonable apprehension of receiving a battery,” an element essential to proof of that offense. (People v. Barkenlau (1982), 105 Ill. App. 3d 785, 789; People v. Robinson (1979), 68 Ill. App. 3d 687, 691.) Accordingly, defendants’ convictions for home invasion are hereby reversed and their sentences for that offense vacated.

II

Aggravated battery conviction

Defendant Pettit also appeals his conviction for the aggravated battery of Ned Bassett, contending the State’s evidence failed to prove a knowing or intentional act on his part which caused bodily harm. He notes that the State’s burden was to prove he was “consciously aware” that his conduct was “practically certain” to cause the result. (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5(b).) He finds People v. Barrington (1973), 15 Ill. App. 3d 445, applicable. The court in Barrington reversed the defendant’s battery conviction because it found the evidence did not show beyond all reasonable doubt that he knew his conduct would result in harm. The defendant there was a high school teacher, and several female students present for cheer-leading practice had blocked off the corridor in front of his office door with a coatrack. The defendant heard laughter emanating from the hallway, exited his office, and attempted to push the coatrack aside, unaware that one of the casters was jammed. The rack fell on the students, injuring them.

The defendant finds the testimony given by the State’s four witnesses to be proof that “the shooting was quite clearly accidental.” Mary Lynn could only testify that from her position in the bedroom with the child, she heard fighting and two shots. Meek heard the defendant threaten to shoot Bassett at one point, and he heard two shots. After one of the shots, he looked up to see the defendant about two feet away from Bassett, pointing the gun right at Bassett, but he could not testify that that shot hit Bassett. Moore testified that the defendant and Bassett struggled over the gun and it went off, striking the ceiling. When the second shot went off, Bassett, crouched in the doorway between the living room and the entry way, had just begun to stand up and the gun went off. Moore testified he did not recollect, though, that the defendant was pointing the gun at Bassett.

Pettit notes particularly the testimony of the victim himself. Bassett testified that he and the defendant were wrestling around, and that the gun was in the defendant’s poncho sweatshirt pocket. Bassett testified the first shot went through his thigh and also through the ceiling.

The State argues the factual testimony given supports the finding that the shooting was “knowing.” It discounts Bassett’s testimony as being “less than lucid,” due to the beating the defendant had inflicted upon him. The court found Bassett’s testimony unreliable as well, because he was a drug dealer and may have been scared or afraid.

The State points out Moore testified the defendant had cocked the gun and it went off when Bassett rushed at the defendant during the fight. The second shot did not occur during the fight, but when Bassett was crouched in the doorway starting to get up. The State posits that Meek’s testimony undeniably suggests intentional injury. Meek testified the defendant stated Bassett “ought to be shot,” the gun went off, and Meek observed the defendant about two feet away from Bassett, pointing the gun right at him.

The State urges that if this court should find the evidence insufficient to sustain the aggravated battery conviction, that the conviction be reduced to reckless conduct as permitted by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)) and as argued by defense counsel below.

The defendant finds the State’s discounting of Bassett’s testimony to be very irregular, and urges this court to reject the State’s claim because “nothing in the record supports the State’s contention that Bassett was unable to remember clearly the events of the evening in question.”

We believe the evidence supports the defendant’s conviction for ággravated battery. Certainly the defendant’s conduct here cannot be equated with that of the defendant in Barrington. (15 Ill. App. 3d 445.) The requisite mental state for a crime may be proved by acts and circumstances surrounding the defendant’s conduct. (People v. Colley (1980), 83 Ill. App. 3d 834, 838; People v. Trump (1978), 62 Ill. App. 3d 747, 749.) The testimony of one witness, if positive and credible, is sufficient to sustain a conviction. (People v. Johnson (1973), 15 Ill. App. 3d 741, 743.) In a bench trial, the credibility of witnesses is for the trial judge to determine, and the decision of the trier of fact in this regard will not be disturbed unless it is based upon evidence which is so improbable as to raise a reasonable doubt of defendant’s guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied, (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

Here, Meek’s testimony was positive and credible. Further, his testimony that the defendant was pointing the gun right at Bassett was based on his observation after the second shot was fired which was the shot which struck Bassett’s thigh. Moore testified the first shot went into the ceiling, and both Moore and Meek testified the second shot was fired when Bassett was crouched in the doorway and beginning to stand up. Photos of Bassett taken the next morning at the hospital show a wound consistent with the posture described by those two witnesses, in that the bullet passed through Bassett’s thigh and entered his calf.

Further, contrary to the defendant’s assertion, Bassett’s own testimony is replete with statements indicating he was less than lucid, to-wit:

“Q. [Prosecutor] How long did the group remain at Anderson’s apartment [downstairs]?
A. [Bassett] Roughly an hour and a half.
Q. What happened after that?
A. I woke up in a scalding hot water bathtub with a bullet wound in my leg.
* * *
A. [Bassett] And he [defendant] started beating on me and that’s all I remember.
* * *
A. [Bassett] *** I think while we were wrestling around, the first shot went through my thigh and also through the ceiling and so we started rolling around again. I was crawling after that and that’s the next thing I remember was I was in the tub.
* * *
Q. [Defense counsel] That’s the length of any struggle or wrestling upstairs?
A. [Bassett] Yes. I was pretty well out of my head at that time, after being beat so much.
Q. So you don’t recall too much of what happened upstairs?
A. That’s right.
* * *
Q. [Defense counsel] How many shots do you actually recall being fired upstairs?
A. [Bassett] One. ***”

The photos taken of Bassett reveal a person who had indeed undergone quite a beating, and we believe the court correctly determined Bassett’s testimony was not reliable.

In sum, we conclude the evidence sustains Pettit’s conviction for aggravated battery, and no reversal or reduction in the degree of the offense is warranted.

Ill

Impartial trier of fact

Defendant Pettit lastly charges that the trial judge was predisposed to find him guilty and he was therefore denied a fair trial before an impartial trier of fact. He finds the basis for his charge in certain comments made by the trial judge at the conclusion of Rein and Carr’s trial which immediately preceded his, to-wit:

“[The two codefendants] go upstairs with the guns because they are in it with Pettit and under the Accountability Statute [sic], at least, they are guilty. Buy they went upstairs when they could have disengaged. They could have left. They could have gone. They are so overwhelmed by Pettit, they couldn’t do anything? That’s sheer, utter nonsense. They went there because they had been ripped off with bad drugs and they were as much a part of it as Pettit was and they had the pistols.”

The defendant alleges the comments show the judge was so convinced the defendant was guilty beyond a reasonable doubt, that he believed Rein and Carr were guilty under accountability principles. Thus, he contends he was denied his well-established right to a trier of fact free from prejudice or preconceived notions of guilt. (People ex rel. Przyblinski v. Scott (1959), 23 Ill. App. 2d 167.) Defendant asserts the error may not be considered to be waived by counsel’s failure to file a motion for substitution of judges (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 5(c)), since the record does not indicate defense counsel was aware of the trial judge’s prejudicial comments. Defendant’s further position is not only that he has not waived the issue, but that the judge should have recused himself sua sponte from the defendant’s case.

The State counters that the defendant has waived the issue, and that the comments do not demonstrate prejudice. It points out the court has no duty to recuse itself sua sponte when the defendant has failed to move for a substitution of judges prior to trial. (People v. Rynberk (1980), 92 Ill. App. 3d 112.) Further, the trial court does not have the burden of justifying its retention of the case; rather, the defendant bears the burden of showing that prejudice will result if his motion to substitute is not granted. People v. Mitchell (1979), 76 Ill. App. 3d 878; People v. Ganci (1978), 57 Ill. App. 3d 234; see also People v. Bianchi (1981), 96 Ill. App. 3d 113.

The State finds the defendant’s “no waiver” argument untenable. It reasons that defense counsel most likely would have well acquainted himself with the outcome of the preceding trial and/or even been present during same. Additionally, it denies the court’s comments reflect any prejudice whatsoever since the comments were made only as a function of considering the guilt of the codefendants, and the record of the defendant’s case fails to reveal that the court relied on its resolution of the preceding case, or that it gave less than attentive and impartial consideration to the evidence presented in the defendant’s trial.

The defendant replies the cases cited by the State in opposition to his waiver argument are not apposite because the defendants in those cases (Rynberk, Mitchell and Ganci) were aware prior to their trials of the facts upon which their motions for substitution were based. Contrary to the State’s argument, the defendant finds it highly unlikely that defense counsel would have been free to spend half his day to attend a trial which was not part of his caseload. Further, the defendant asserts the court’s comments were inherently prejudicial because it necessarily would had to have decided the defendant was guilty beyond a reasonable doubt in order to have found the codefendants accountable.

Despite the defendant’s petition for rehearing urging reconsideration of our decision of this issue, we agree with the common sense logic underlying the State’s argument that the defendant has waived this issue. If we were to reach the merits of the issue under the plain error rule (87 Ill. 2d R. 615(a)), the result would be the same.

We believe the defendant’s contention that he was denied a fair trial by an impartial trier of fact is without merit. Clearly, defense counsel knew his client’s trial would possibly immediately follow Rein and Carr’s. The court had advised him in advance that it would proceed directly to defendant’s trial at the conclusion of Carr and Rein’s, even if only part of the day remained. Thus, counsel impliedly was placed on notice that he should be “at the ready.”

The record reflects the court was cognizant of its duty to recuse itself if necessary: at the hearing on the defendant’s motion for severance, the judge, noting he had received a letter from Pettit, advised Pettit he had turned the letter over to defense counsel, explaining that if he had read the letter and there were any things prejudicial to either side in it, he would have to disqualify himself.

Defense counsel’s motion for severance alleged the defendant would be adversely prejudiced if tried jointly with Rein and Carr due to their signed statements which had been ruled admissible. The statements plainly suggest their guilt under accountability principles. Unlike the defendant’s construction of the court’s comments, we believe they may more correctly be construed as an expression of the court’s belief that Carr and Rein were guilty as “principals” rather than as “accountables.”

Construction aside, we note that section 5 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 — 3) permits the conviction of a person legally accountable for the conduct of another even if that other person has not yet been prosecuted or convicted, or actually has been acquitted. (See generally People v. Luigs (1981), 96 Ill. App. 3d 700, 703; People v. Ruiz (1979), 78 Ill. App. 3d 326, 329.) With that in mind, we are led to the conclusion that the court’s reference to Rein and Carr’s guilt under the accountability theory did not ipso facto amount to an expression of its belief in the defendant’s guilt as principal as well.

The defendant bears the burden of choosing defense tactics and preserving alleged errors for review. (People v. Driver (1978), 62 Ill. App. 3d 847.) Defense counsel surely was aware that virtually the same evidence would be presented in the former prosecution as in the latter. His defense strategy at trial was apparently not that the defendant was not guilty but, rather, that he was not guilty of the offenses charged. Defense counsel made arguments in the trial court suggesting the defendant’s conduct amounted perhaps to lesser offenses. The fact defense counsel made no motion for substitution of judges may have been a deliberate tactic rather than a lack of knowledge of the allegedly prejudicial comments made by the court.

In sum, it is our view that the court’s comments did not amount to “a personal expression” of its belief that Pettit was guilty, and that Pettit received a fair trial.

In accord with the foregoing, the convictions of the defendants Pettit, Carr and Rein for home invasion are reversed and their sentences for that offense vacated.

The judgment against defendant Pettit for aggravated battery (which was committed on Edward Bassett) is affirmed, but that cause is remanded for resentencing because the trial court may well have been influenced by the defendant’s conviction for home invasion in sentencing him for the aggravated battery conviction. People v. Green (1980), 83 Ill. App. 3d 982, 987; People v. McTush (1979), 78 Ill. App. 3d 603, rev’d on other grounds (1980), 81 Ill. 2d 513.

Affirmed in part; vacated in part and remanded with directions.

SEIDENFELD, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TERRY A. EBLIN, Defendant-Appellee.
    Second District
    No. 82—131
    Opinion filed May 17, 1983.
    Grant S. Wegner, State’s Attorney, of Yorkville (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Louis E. Neuendorf, of Sandwich, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The question before us is whether a defendant who appears to answer a criminal complaint pursuant to a notice to appear but is not required upon appearance to post bail or recognizance, can claim a right to be released when more than 160 days transpire after his demand for a speedy trial.

The State appeals from a judgment which discharged the defendant. It contends that the trial court erred in equating the notice to appear with bail and bond requirements. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5.) The defendant has not filed a brief and we review pursuant to the direction of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

On July 1, 1981, the State filed a criminal complaint against defendant in which it alleged that defendant committed criminal damage to property (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a)), a misdemeanor. A notice to appear, issued pursuant to section 107 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 12), directed him to appear at court on July 14, 1981; it warned defendant that his failure to appear would cause the issuance of a warrant for his arrest or a summons. Defendant appeared on July 14 and the court continued the cause until July 28 to permit defendant to hire an attorney. On July 17, defendant filed a motion demanding, inter alia, a speedy trial. No order was entered placing defendant in custody; he was not required to post bond or recognizance. On December 3, 1981, the court set trial for January 13, 1982. On January 12, 1982, defendant filed a motion to dismiss the action because more than 160 days had elapsed since he demanded a speedy trial. The trial court granted the motion after a hearing.

The constitutional speedy-trial provisions, generally, are addressed to the evil of wrongful incarceration, not wrongful accusation. (People v. Kidd (1934), 357 Ill. 133, 136.) “[T]his constitutional provision is based on the right of an individual to be at liberty.” (357 Ill. 133, 136.) The statutory speedy-trial provisions are a legislative interpretation and implementation of the constitutional right to a speedy trial. (People v. Garcia (1978), 65 Ill. App. 3d 472, 475; People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1113.) Section 103 — 5(a) of the Code of Criminal Procedure of 1963 requires that a defendant in custody be tried “within 120 days from the date he was taken into custody ***” (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)); or “[e]very person on bail or recognizance shall be tried *** within 160 days from the date defendant demands trial ***” (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(b)), unless delay is occasioned by the defendant.

The State argues that the clear language of the statute limits its application to one held in custody or on bond or recognizance, relying upon People v. Leannah (1981), 94 Ill. App. 3d 628. In Leannah, although more than 160 days had passed after the filing of the defendant’s demand, we held that the defendant was not entitled to be discharged under the speedy-trial provisions “because such provisions are applicable only to persons in custody [citation] and persons on bail or recognizance [citation].” (94 Ill. App. 3d 628, 629-30.) We concluded that defendant was not in custody nor held to bail subsequent to the dismissal of charges against him on the 154th day from the date of demand for trial at which time the trial court dismissed the charges for failure of the State to comply with discovery orders and thereafter, on appeal, we reversed and remanded the cause. It appeared that the defendant was not in custody nor held to bail subsequent to the dismissal of the charges against him. We also noted that defendant’s speedy-trial term would continue once the defendant was “placed on bond or recognizance to answer the charges in this matter.” 94 Ill. App. 3d 628, 630.

In People v. Rodgers (1982), 106 Ill. App. 3d 741, we affirmed the trial court’s dismissal of charges against the defendant pursuant to the speedy-trial provision where the State had previously stricken the charges with leave to reinstate, finding that the State had waived the argument that defendant had not been on bail subsequent to when the State struck the charges. (106 Ill. App. 3d 741, 744.) The majority stated that even if the State had not waived this issue, since the defendant made a speedy-trial demand while on bail, the court could infer that he remained on bail after the charges were stricken. (106 Ill. App. 3d 741, 745.) Thus we emphasized that the defendant must be on bond for the speedy-trial provisions to apply. The dissenting opinion in Rodgers stated that the defendant had the burden of showing he remained on bail after the charges were stricken, and stated explicitly that the speedy-trial provisions apply only where a defendant is on bond or recognizance or in custody. (106 Ill. App. 3d 741, 746-47 (Reinhard, J., dissenting).) The dissent concluded that: “Had the legislature intended section 103 — 5 to apply to cases where charges alone pend against a defendant, it could have expressly so provided. The evil intended to be prevented by the speedy trial provision is wrongful incarceration and restriction under bail or recognizance rather than wrongful accusation.” 106 Ill. App. 3d 741, 747.

Leannah may be distinguished by the fact that the charges were not pending against him after the first dismissal, whereas charges were continuously pending against this defendant. Nevertheless this defendant was at no time either in custody or on bond or recognizance and therefore did not come within the clear language of the statute.

We cannot conclude that a notice to appear is the equivalent of bail or recognizance. The purpose of the notice is to get persons into court without the necessity and inconvenience of an immediate arrest. (People v. Brausam (1967), 83 Ill. App. 2d 354, 362-63; City of Naperville v. Lawrentz (1977), 51 Ill. App. 3d 798, 799.) We see nothing to indicate that once a defendant appears in court that the notice to appear serves any further purpose. If the court had, upon his appearance, incarcerated him or restricted him under bail or recognizance he certainly would have come within the statute. And if he were on bail or recognizance, for example, he would have been restricted by his undertaking to comply with certain conditions, and he would be under a continuous duty to appear in court. (See Ill. Rev. Stat. 1981, ch. 38, par. 110 — 10.) Further, whereas a failure to appear as required by recognizance constitutes a separate offense subject to penalty in addition to the offense charge (Ill. Rev. Stat. 1981, ch. 38, pars. 110 — 2, 32 — 10) and forfeiture of a sum, if any, fixed in the recognizance, a failure to appear pursuant to notice to appear results in the issuance of a summons or warrant of arrest. (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 12(c).) These differences in the nature of a defendant’s obligation sufficiently distinguish a notice to appear from a recognizance bond so as to preclude a defendant from availing himself of the speedy-trial provision.

We therefore reverse the judgment of the circuit court of Kendall County and remand the cause for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT and HOPF, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM T. COWHERD, Defendant-Appellant.
    Second District
    No. 82—498
    Opinion filed May 17, 1983.

      G. Joseph Weller and Michael F. Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court;

Defendant, William T. Cowherd, appeals from the dismissal without an evidentiary hearing of his amended post-conviction petition filed pursuant to the Post-Conviction Hearing Act. Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.

The only issue defendant raises on appeal is whether the trial court erroneously dismissed his amended post-conviction petition because the court failed to consider the decision in People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517, decided subsequent to his direct appeal, as establishing a constitutional right to a fair trial as applied to the facts alleged in the amended petition.

The defendant was originally found guilty in a jury trial of an armed robbery which occurred on March 22, 1977, and was later sentenced to a term of imprisonment of not less than 20 nor more than 60 years. On direct appeal to this court, we affirmed the defendant’s conviction in People v. Cowherd (1980), 80 Ill. App. 3d 346, 399 N.E.2d 672, filed January 14, 1980. One of the issues raised in that appeal was whether prejudicial error was committed in violation of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)) when Detective Summerford testified to statements made by the defendant and referred to certain plea negotiations with defendant. We found that the conversation related by Detective Summerford did not come within the spirit and intent of Supreme Court Rule 402(f). We concluded that the rule contemplated actual plea discussions between the accused and the competent State authorities charged with the negotiations of guilty pleas and sentences.

Subsequent to our decision, our supreme court on February 22, 1980, filed its decision in People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517. In Hill, the court held that the admission of testimony of plea negotiations, which violates Rule 402(f), is of such devastating effect that the error is so prejudicial as to require reversal and cannot be harmless error. (78 Ill. 2d 465, 474, 401 N.E.2d 517.) Additionally, the court held that the fact that the party to whom the statement was made did not have actual authority to enter negotiations is not, standing by itself, sufficient to render the statement admissible. (78 Ill. 2d 465, 473, 401 N.E.2d 517.) Supreme Court Rule 402(f) provides:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” 87 Ill. 2d R. 402(f).

On April 15, 1982, defendant filed his pro se petition for post-conviction relief alleging that Detective Summerford’s testimony disclosed plea discussions in violation of Rule 402(f) which, under the decision in People v. Hill filed subsequent to his direct appeal, is reversible error. Counsel was appointed to represent defendant and an amended post-conviction petition was filed which stated the same basis for relief but further alleged that this was a substantial denial of his constitutional rights. Without conducting an evidentiary hearing, the trial court granted the State’s motion to dismiss the amended petition finding there was no showing of a constitutional violation so as to require a hearing and that the same issue had been decided on defendant’s direct appeal.

The relevant testimony, which defendant maintains violated Rule 402(f) and is of constitutional dimension, was given by Detective Summerford on direct examination at defendant’s jury trial. Since the testimony of Detective Summerford set forth on pages 352-53 of our opinion in People v. Cowherd (1980), 80 Ill. App. 3d 346, 399 N.E.2d 672, was Summerford’s testimony at a motion to suppress, we set out his substantially similar testimony before the jury, pertinent to the issue raised:

“[Detective Summerford]: We discussed an armed robbery of Ashland Jewelers, we discussed some engotiations [sic] that had been made by our State’s Attorney, and we discussed some possible negotiations being made with -
MR. STONE [Defendant’s Attorney]: Objection, Your Honor.
MR. FOX [Prosecutor]: All right.
THE COURT: If he wishes to testify as to conversations, I think he should testify as to the entire conversation. What did you say to him and what did he say to you?
BY MR. FOX:
Q. What did you say to him at that time and what did he say to you with reference to the Ashland Jewelry Store?
A. I had asked him if he was directly involved, had he been in the store on March the 22nd and he stated that he had been there, and he also indicated to me that he had carried the jewels from the store through a hallway that goes back to a parking lot and he got in a car with Mr. Tvo and they drove to the Essex Hotel in Chicago.
He also stated to me that he would give a statement, that he would like to have his attorney present during this statement and this was -
MR. STONE: Judge, I am going to object to this entire line of questioning.
THE COURT: That objection is overruled.
Go ahead.
THE WITNESS: And he was told that he could have his attorney and we would get with the State’s Attorney the following day and a statement would be taken with his attorney present.
He also talked to me about the possibility of serving his Illinois time along with federal time and requested to talk to an FBI agent by the name of Davis in Springfield. I made a call to Mr. Davis and he and Mr. Cowherd talked over the phone.’’

Initially, we must address the State’s contention that defendant should be precluded from again raising an issue relative to Detective Summerford’s testimony because the affirmance of defendant’s conviction on his direct appeal is res judicata as to all issues that were raised or that could have been raised on appeal. While this contention states the general rule (see People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331), the strict application of res judicata has been relaxed where fundamental fairness dictates otherwise, as where the right relied on has been recognized for the first time after the direct appeal. (People v. Ikerd (1970), 47 Ill. 2d 211, 265 N.E.2d 120; People v. Hopkins (1976), 41 Ill. App. 3d 430, 432, 354 N.E.2d 141.) In People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517, our supreme court for the first time expressly recognized that the fact that the party to whom a plea-related statement was made did not have the actual authority to enter negotiations is not, standing by itself, sufficient to render the statement admissible. (78 Ill. 2d 465, 471, 401 N.E.2d 517; see also People v. Friedman (1980), 79 Ill. 2d 341, 352, 403 N.E.2d 229.) This holding is directly contrary to the basis of our rejection of defendant’s contention on his direct appeal wherein we stated that “[t]he rule [402(f)] contemplates, we believe, the actual plea discussions between the accused and the competent State authorities charged with the negotiations of guilty pleas and sentences.” (People v. Cowherd (1980), 80 Ill. App. 3d 346, 353, 399 N.E.2d 672.) We cited People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642, which we then perceived to require negotiation with the State’s Attorney. Since the basis of defendant’s claim is predicated upon case law which developed after affirmance of his conviction on direct appeal, fundamental fairness under the circumstances here requires relaxation of the doctrine of res judicata. See People v. Farley (1976), 37 Ill. App. 3d 178, 181, 345 N.E.2d 724.

The State also maintains that defendant’s statements as testified to by Detective Summerford at trial cannot be characterized as plea related and that our prior opinion so stated. As we said above, our basis for rejecting defendant’s claim on his direct appeal was that the negotiations were not with the proper authorities responsible for guilty pleas. Any language in our prior opinion which may arguably suggest that we considered the conversation not to constitute a plea negotiation must be read in context with our holding that actual plea discussions must be with the authorities responsible for negotiations of guilty pleas.

The characterization of a statement as plea related, and therefore inadmissible under Rule 402(f), must turn on the facts of each case. (People v. Friedman (1980), 79 Ill. 2d 341, 352, 403 N.E.2d 229.) The test of whether a particular statement is plea related is:

“[F]irst, whether the accused exhibited a subjective expectation to negotiate a plea, and, second, whether this expectation was reasonable under the totality of the objective circumstances.” (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.)

While the State cites our decision in People v. Victory (1981), 94 Ill. App. 3d 719, 419 N.E.2d 73, as a case presenting “almost identical facts,” we find little similarity to the facts here. In Victory, we found an unsolicited statement by the defendant therein to police officers as they were transporting him to the county jail was not made to initiate plea negotiations. 94 Ill. App. 3d 719, 723-24, 419 N.E.2d 73.

It is apparent here from Detective Summerford’s testimony that he was questioning defendant, who was in custody, about a prior armed robbery which Summerford was investigating. In this context, Summerford related his conversation with the defendant, as set forth above, which made reference to “some engotiations [sic] that had been made by our State’s Attorney, and *** some possible negotiations being made with Summerford related certain admissions defendant made, defendant’s request to have his attorney present before he gave a statement, and then testified that defendant “talked to me about the possibility of serving his Illinois time along with federal time and requested to talk to an FBI agent * **.”

We find this testimony clearly is a plea-related discussion which is inadmissible under Rule 402(f). Illinois courts of review have recognized the devastating effect of the use of plea-negotiation testimony in violation of Rule 402(f) and have held that the use of such testimony was so prejudicial as to require reversal even absent an objection at trial. (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229; People v. Hill (1980), 78 Ill. 2d 465, 474, 401 N.E.2d 517; People v. Benniefield (1980), 88 Ill. App. 3d 150, 155, 410 N.E.2d 455; People v. Hardiman (1980), 85 Ill. App. 3d 347, 354-55, 406 N.E.2d 842; People v. Morris (1979), 79 Ill. App. 3d 318, 331-32, 398 N.E.2d 38.) From our examination of Detective Summerford’s trial testimony, we conclude the statements were plea related. See People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229.

Having concluded that the testimony of Detective Summer-ford pertinent to a plea-related discussion was a violation of Rule 402(f) which on a direct review would require reversal and a new trial even though not objected to at trial, we now must determine whether such a violation was a substantial denial of defendant’s constitutional rights so as to entitle him to relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.). The fact that a conviction was affirmed under a precedent later overruled, does not, by itself, amount to a constitutional violation cognizable in a post-conviction proceeding. (People v. Clark (1980), 84 Ill. App. 3d 186, 405 N.E.2d 450.) However, in People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, our supreme court held that a defendant was denied the right to a fair trial by the introduction of a plea-related discussion in violation of Rule 402(f). (79 Ill. 2d 341, 353, 403 N.E.2d 229; see also People v. Benniefield (1980), 88 Ill. App. 3d 150, 410 N.E.2d 455.) The right to a fair trial is protected by the due process clause of the fourteenth amendment to the United States Constitution and by article I, section 2 of the Illinois Constitution of 1970 (U.S. Const., amend. XIY; Ill. Const. 1970, art. I, sec. 2; People v. Lovitz (1981), 101 Ill. App. 3d 704, 708, 428 N.E.2d 727.) The failure to accord an accused a fair hearing violates even the minimal standards of due process. (See People v. Cole (1973), 54 Ill. 2d 401, 411, 298 N.E.2d 705.) The use of defendant’s plea-related discussion here, we believe, is the equivalent of the use in evidence of withdrawn pleas of guilty held to be a denial of a fair trial. (People v. Bain (1973), 10 Ill. App. 3d 909, 911, 295 N.E.2d 295; People v. Haycraft (1966), 76 Ill. App. 2d 149, 153-54, 221 N.E.2d 317.) Thus, the violation of Rule 402(f) under these circumstances was a denial of defendant’s constitutional right to due process.

Since it is clear from the record that the particular statement here is plea related and defendant exhibited a subjective expectation to negotiate a plea, which was reasonable under the totality of the objective circumstances, we reverse and remand for a new trial. See People v. Friedman (1980), 79 Ill. 2d 341, 353-54, 403 N.E.2d 229.

Reversed and remanded.

NASH and HOPF, JJ., concur.


author: JUSTICE HEIPLE

text:
    RICHARD R. ANDERSON, Plaintiff-Appellee, v. COMMUNITY UNIT DISTRICT NO. 228, Defendant-Appellant.
    Third District
    Nos. 82—695, 82—650 cons.
    Opinion filed May 24, 1983.
    Philip E. Koenig, of White and Koenig, of Geneseo, and Jerome N. Robbins and Michael A. Loizzi, Jr., both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellant.
    Kary Love, of Moline, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff-appellee, Richard Anderson, is the father of Roger Anderson, a former special education student in a program offered by the defendant-appellant, Community School District No. 228 (District). Anderson requested a “due process” hearing, under section 615 of the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. sec. 415 (1976)), regarding his son’s special education program, because he believed the program was deficient in a number of respects to meet Roger’s special needs. A hearing was eventually held by a due process hearing officer. The officer found that the District had failed to incorporate, among other things, a vocational plan into Roger’s program and that, in accordance with article VI of the Illinois Rules and Regulations to Govern the Operation and Administration of Special Education, such a plan was mandated.

Anderson then brought a small claims action against the District and claimed that the District was indebted to Anderson in the amount of $2,500, plus costs, for “expense incurred to obtain appropriate free public education” for his son which was not provided by the District. The $2,500 damages is the sum of $2,400 for attorney fees and $100 for telephone expenses. A hearing was held without a court reporter. Consequently, the record of the hearing consists of a certified report of the proceeding in lieu of verbatim transcript. The trial court took the matter under advisement and a few weeks later entered a judgment against the District in the amount of $2,400. On appeal, the District raises two issues. One, monetary damages and attorney fees are not recoverable as a matter of law. Two, the trial court’s findings were against the manifest weight of the evidence. Anderson’s “damages” consist of attorney fees. As will be discussed below, attorney fees are not recoverable in this case. Since this court has found that the lower court’s damage award was improper, there is no need to decide whether the lower court’s findings were against the manifest weight of the evidence. Also, Anderson, in his brief, raises the separate issue that, besides failing to provide an adequate program for his son, the District violated Anderson’s due process rights by initially refusing to conduct a hearing and that attorney fees incurred in order to vindicate his due process rights should be allowed. Even if this court were to assume that the District improperly refused Anderson’s initial request for a hearing, we must find that the issue cannot be raised on this appeal. Anderson’s complaint refers only to expenses “incurred to obtain appropriate free public education.” There is not a reference to expenses incurred in order to secure Anderson’s due process rights. Furthermore, there is no evidence of “any action or proceeding” instituted for the purpose of enforcing any due process rights. (See Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. sec. 1988 (1976).) The issue concerning Anderson’s due process rights was not effectively presented to the lower court and is considered waived in this appeal.

Anderson based his claim for attorney fees on two Federal statutes: the Education for All Handicapped Children Act (EAHCA) (20 U.S.C. sec. 1401 et seq. (1976)) and sections 504 and 505 of the Rehabilitation Act of 1973 (Rehabilitation Act) (29 U.S.C. secs. 794, 794a (1976 and Supp. IV 1980).

The congressional statement of purpose of EAHCA is as follows:

“It is the purpose of this [Act] to assure that all handicapped children have available to them *** a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of handicapped children and their parents or guardians are protected, to assist State and localities to provide for the education of all handicapped children, and to assess and assure the effectiveness of efforts to educate handicapped children.” (Emphasis added.) (20 U.S.C. sec. 1401, Historical Note (1976).)

EAHCA does not explicitly provide for an award of attorney fees.

Section 504 of the Rehabilitation Act provides as follows:

“No otherwise qualified handicapped individual in the United States *** shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (Emphasis added.)

The Rehabilitation Act specifically provides for attorney fees in section 505 as follows:

“(b) In any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

Although the propriety of awarding attorney fees under either of these statutes has been evaluated by several Federal courts of the Seventh Circuit, the issue appears to be one of first impression before an Illinois court of appeals.

In support of his claim for fees incurred as a result of the District’s violation of EAHCA, Anderson argues that the omission of the District resulted in a “deprivation of any rights, privileges or immunities secured by the Constitution and laws” within the terms of the Civil Rights Act of 1871 (42 U.S.C. sec. 1983 (1976)). Anderson reasons that fees are allowable pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, which provides in pertinent part as follows:

“In any action or proceeding to enforce a provision of sections *** 1983 *** the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. sec. 1988 (1976).

Anderson’s reasoning was previously rejected by the Seventh Circuit Federal Court of Appeals in Anderson v. Thompson (7th Cir. 1981), 658 F.2d 1205. The Anderson court held that the remedy provided in EAHCA, though not a traditional remedy, is an exclusive remedy which cannot be given “unimpaired effectiveness” if a section 1983 action is available for EAHCA violations. (658 F.2d 1205, 1216.) This court accepts the decision of the Anderson court, insofar as it applies to attorney fees under EAHCA, and holds that attorney fees incurred as a result of an attempt to enforce the provisions of EAHCA are not allowable either under the terms of EAHCA, or via a related section 1983 action.

We now turn to the applicability of the Rehabilitation Act to the case at hand. Section 504 is directed toward discrimination, not the failure to provide a program for a handicapped student. Anderson did not allege that his son was subject to discrimination. Anderson only alleged, and the hearing officer only found, that his son was not provided an appropriate program to meet his needs. Anderson cannot place his claim within the discrimination provisions of section 504 in an effort to avoid the remedy limitations of EAHCA. The reasoning of the Federal district court in Reineman v. Valley View Community School District No. 365—U (N.D. Ill. 1981), 527 F. Supp. 661, is clearly applicable to this issue. If Anderson, “barred from a damage claim under EAHCA itself under Anderson, could take an end run around Anderson by claiming damages because EAHCA should have been but was not applied to [his son], that exception to Anderson would swallow up its rule. [Anderson] cannot do indirectly via section 504 what Anderson teaches may not be done directly.” 527 F. Supp. 661, 665.

Therefore, for the reasons set forth above, the trial court erred in awarding Anderson damages in the amount of $2,400, which were in fact attorney fees. The decision of the trial court is reversed. Judgment shall be entered for the defendant, Community Unit District No. 228, dismissing the complaint of the plaintiff-appellee, Anderson.

Reversed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE HARTMAN

text:
    JOHN TOTH et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELEVATOR COMPANY et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1678
    Opinion filed May 24, 1983.
    Russell H. Booth, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Alan H. Swanson, and Joseph A. Cari, Jr., of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court:

The principal issue raised in this appeal is whether an employer, Westinghouse Elevator Company (Westinghouse Elevator), that also manufactures the product resulting in plaintiff John Toth’s (Toth) work-related injury, is shielded from a products liability action under the exclusive remedy provision of the Workers’ Compensation Act (Act). (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) The circuit court dismissed count I of the complaint, which set forth a products liability action against Westinghouse Elevator. This appeal proceeds from that dismissal order, which bore an appropriate Supreme Court Rule 304(a) finding. (87 Ill. 2d R. 304(a).) For the reasons which follow, we affirm.

Toth’s complaint against Westinghouse Elevator and Sears, Roebuck & Company alleged certain injuries incurred while he was working as an elevator repairman at Sears Tower, Chicago. Count I alleged that on October 15, 1981, when Toth stepped onto a plywood platform in the hoistway of a double elevator, the platform dropped without warning. He fell several floors and was severely injured. Toth’s injuries were alleged to have been the proximate result of defective elevator machinery and parts manufactured by Westinghouse Elevator and its failure to issue proper instructions for the use thereof.

Pursuant to Supreme Court Rule 362 (87 Ill. 2d R. 362), Toth moves to amend in this court count I to add the following allegations: Westinghouse Elevator and Westinghouse Electric Corporation were separate entities on the date that the allegedly defective elevator system was placed in the stream of commerce; sometime thereafter Westinghouse Electric Corporation acquired Westinghouse Elevator; and on the date of the alleged accident Westinghouse Electric Corporation and Westinghouse Elevator were related but separate corporations. Toth also requests that this court take judicial notice of the appearance and jury demand filed in the circuit court providing, “WESTINGHOUSE ELEVATOR COMPANY, a division of WESTINGHOUSE ELECTRIC CORPORATION.”

In order to amend pleadings on appeal, the movant must show that: “the amendment [is] necessary, that no prejudice will result to the adverse party if the amendment sought is permitted, and that the issues sought to be raised by the amendment are supported by the facts in the record on appeal.” (87 Ill. 2d R. 362(b).) The proposed amendment is not supported by the facts as they appear in the present record, but proposes to add allegations of facts allegedly discovered after judgment was entered. Significantly, the proposed amendment would not alter the problem of identifying separate entities in any event, since Toth does not allege in his proposed amendment which of the two entities manufactured the unsafe product or failed to disseminate the appropriate instructions as to its installation and use. The appearance mentioned above at most indicates that at the time of filing, Westinghouse Elevator was a division of Westinghouse Electric. It does not provide a foundation for the specific allegations of fact sought to be added to count I. Accordingly, the motion to amend the pleadings must be denied. Genaust v. Illinois Power Co. (1975), 62 Ill. 2d 456, 462, 343 N.E.2d 465.

Turning to the merits of the controversy, Toth contends that count I of the complaint states a cause of action under the doctrine of dual capacity. He maintains that since his action is against Westinghouse Elevator in its second capacity as manufacturer of an allegedly defective product, his suit is not precluded by the exclusive remedies provision of the Workers’ Compensation Act. (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).) That act, however, was designed to place the cost of workmen’s injuries on industry rather than on the injured employee or general public. (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326; McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 356, 423 N.E.2d 876.) The Act imposes liability upon the employer for injuries arising during the course of employment regardless of defenses of comparative negligence or assumption of risk. Balanced against the imposition of no-fault liability is the exclusive remedies provision providing the employer with immunity from common law and statutory actions brought by employees for injuries sustained during the course of employment. Sharp v. Gallagher; McCormick v. Caterpillar Tractor Co.

A limited exception to the exclusive remedy provision developed, known as the doctrine of dual capacity, the parameters of which have been recently modified. Formerly, it was held that an employer normally immune from tort liability by the exclusive remedy provision would be liable in tort to his employee if he occupied, in addition to his capacity as employer, a second role that conferred on him obligations independent of and unrelated to those imposed on him as employer. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 357; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 318, 396 N.E.2d 524; 2A A. Larson, Workmen’s Compensation sec. 72.80, at 14 — 112 (1976).) In some jurisdictions this formulation of the doctrine proved subject to abuse, and threatened to eradicate the exclusive remedy principle. (2A A. Larson, Workmen’s Compensation sec. 72.81, at 14 — 229, 14 — 230 (1982).) Perhaps in anticipation of this potential abuse, our supreme court in Sharp v. Gallagher altered the analytical vortex of the doctrine. In Sharp, the court shifted the doctrine’s focus from whether the employer occupied a second, independent role to an exclusive concern with whether the controversy involved separate legal entities or persona. (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326-28.) Under the latter formulation, an employer may become liable in tort to his employee if “he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.” 2A A. Larson, Workmen’s Compensation sec. 72.81, at 14 — 229 (1982).

Count I of the complaint before us is nonactionable since it merely alleges a separate theory of liability against a single legal entity, Westinghouse Elevator. (See Sharp v. Gallagher (1983), 95 Ill. 2d 322, 328; Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 319; Winkler v. Hyster Co. (1977), 54 Ill. App. 3d 282, 369 N.E.2d 606.) This decision is in consonance with the majority of American courts holding that an employer who is also the manufacturer of a product used in the course of employment is not liable in damages to his own employee in a products liability suit. 2A A. Larson, Workmen’s Compensation sec. 72.83, at 14-239 (1982).

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

Affirmed.

STAMOS and PERLIN, JJ., concur.

      Toth also moves this court to take judicial notice of an amendment to the lawsuit filed against Westinghouse Electric on October 18, 1982, consisting of new count VII. Given our disposition of Toth’s motion to amend pleadings and the absence of any effort to incorporate those allegations into count I, this motion would be unavailing and also must be denied.


author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE DACE, Defendant-Appellant.
    Third District
    No. 82—552
    Opinion filed May 26, 1983.

      Robert Agostinelli and Thomas Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward E Petka, State’s Attorney, of Joliet (John X. Breslin and Patricia Hartman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The jury convicted the defendant of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3), and the trial court sentenced him to four years’ imprisonment. The defendant now appeals his conviction on several grounds.

According to the State’s evidence, the defendant and two accomplices burglarized a home on March 26, 1982, in Joliet, Illinois. The State’s chief witness, Sherri Brown, testified that she and the defendant broke the door to the home and stole rings, watches, coins, two shotguns, a small television, a stereo system and some other items. After the burglary, Brown and the defendant went to the defendant’s backyard. Some of the items were in the backyard. At some point, Dwayne Carpenter joined the defendant and Brown. Brown told Carpenter to retrieve a television set that they left in the house, and Carpenter did as requested.

Carpenter testified that he approached the defendant first with the idea of breaking into a home, but the defendant did not respond positively or negatively to that idea. According to Carpenter, he was not involved in the initial breaking and entering, and he never saw the defendant enter the home. Carpenter also told the court that, when he first approached the defendant and Brown in the defendant’s backyard, he noticed two shotguns resting in the grass. Carpenter admitted taking the television set at Brown’s suggestion.

Another witness for the State, Ray Armstrong, testified that Carpenter, Brown and the defendant approached him while he was sitting on his porch. Armstrong was sitting with the defendant’s uncle and another man. Brown and Carpenter initiated and dominated the conversation, asking him if he wanted to buy any of the goods. The defendant was silent for the most part, though he also asked Armstrong if he wanted to buy anything. At some point, Armstrong drove Carpenter, Brown and the defendant to the defendant’s house. They did not stop there, however, when they saw a police officer in a squad car focusing a spotlight into the backyard. Armstrong dropped his passengers off at two different locations.

Three other witnesses — friends of the defendant — testified that Carpenter, Brown and the defendant were in their home at various times on the night of the burglary. These witnesses testified that they saw Brown with four to seven rings that evening, and that Brown admitted breaking into the house. In regard to the defendant, these witnesses neither saw him burglarize the house nor heard him admit to any wrongdoing. They did see the defendant wearing at least one and possibly two rings; they also testified, though, that they could not identify the rings he was wearing that evening and that the defendant usually wore one or two rings. The owner of the home also testified that he found the door broken, the house in disarray and several items missing. A police search of the defendant’s home failed to produce any of the stolen items.

The first issue is whether the State proved the defendant guilty beyond a reasonable doubt. The defendant argues that the only evidence presented that he committed a burglary is the uncorroborated testimony of an admitted accomplice. Only Brown places the defendant at the residence and engaged in a breaking and entering. The defendant argues that Brown’s testimony is weak and suspicious, because she was an accomplice, she testified for the State as a hostile witness, she pleaded guilty to a lesser charge of theft after negotiation with the State and she had a prior conviction for forgery. In addition, the defendant points to numerous inconsistencies and contradictions in the testimonies of all the State’s witnesses. Carpenter’s testimony was self-contradictory at some points, and he was not charged with any crime in spite of his admitted theft of the television set. During cross-examination, both Brown and Carpenter denied receiving any deal from the State in exchange for their testimony.

Uncorroborated accomplice testimony can be sufficient to sustain a conviction. (People v. Pittman (1973), 55 Ill. 2d 39, 302 N.E.2d 7.) It is well settled that it is within the province of the jury to determine weight and credibility of testimony. In People v. Miller (1981), 94 Ill. App. 3d 725, 419 N.E.2d 78, the court upheld a conviction in which the sole identification testimony came from an accomplice. As in the case at bar, this accomplice pleaded guilty to a lesser offense and— according to the accomplice — he had not been promised anything in exchange for testimony against the accused. It is equally well established that the State may use circumstantial evidence and inferences drawn from such evidence to sustain a burglary conviction. (People v. Johnson (1980), 82 Ill. App. 3d 338, 404 N.E.2d 796; People v. Blakeney (1978), 59 Ill. App. 3d 119, 375 N.E.2d 1309, cert. denied (1979), 440 U.S. 915, 59 L. Ed. 2d 464, 99 S. Ct. 1231.) In this case, there is some circumstantial evidence which partially corroborates Brown’s story.

Brown testified that she did not receive any promise or threat by the State in regard to her testimony against the defendant. She did, however, plead guilty to a lesser charge and receive a two year prison sentence. Even assuming, though, that she did receive a promise of leniency in exchange for her testimony, that alone would be insufficient to create a reasonable doubt of the defendant’s guilt. (People v. Sangster (1981), 95 Ill. App. 3d 357, 420 N.E.2d 181.) The testimony of the other witnesses, which placed the defendant in possession of some of the stolen items and attempting to sell them, substantiates part of Brown’s testimony. On the record before us, the State’s evidence is sufficient to sustain the defendant’s conviction.

The second issue is whether the trial court erred when it refused the defendant’s request for discovery of the mental health history of the State’s primary witness, Sherri Brown. The defendant discovered that Brown had been involuntarily committed to the Tinley Park Mental Health Center in August 1980. The defendant sought additional discovery concerning Brown’s mental history. Brown and the State objected to this discovery, arguing that this information is privileged. The State gave the court the case file from the commitment proceedings, which the court reviewed in camera. The court ruled the records were privileged and they were too old to be relevant. The court also barred the defendant from questioning Brown on her mental history. On appeal, the defendant argues he was denied due process of law and a fair trial. The State argues the records are privileged and the defendant has failed to demonstrate the relevance of the records or any prejudice to him.

The Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1981, ch. 9IV2, par. 801 et seq.) establishes a psychotherapist-patient privilege:

“Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communication.” (Ill. Rev. Stat. 1981, ch. 911/2, par. 810.)

None of the exceptions would be applicable to the case at bar. Supreme Court Rule 412(h) (87 Ill. 2d R. 412(h)), provides for the discretionary discovery, by the defense, of other evidence not covered by other specific discovery rules:

“Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule.”

In spite of the statutory privilege, it is well established that the mental history of a witness is relevant to his credibility and a permissible area of impeachment. (People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278.) A thorough examination of a witness’ credibility is especially important when that testimony will be determinative of the defendant’s guilt or innocence. (Lindsey.) “Almost any emotional or mental defect may materially affect the accuracy of the testimony. A conservative list of such defects would have to include a psychosis, most neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality.” People v. Phipps (1981), 98 Ill. App. 3d 413, 416, 424 N.E.2d 727.

In Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, the Supreme Court held that the sixth amendment right to confrontation entitled a defendant to question a witness concerning a juvenile adjudication, for the purposes of showing possible bias or prejudice, even though those records would be otherwise privileged. The court noted that the State’s interest in preserving the anonymity of juvenile offenders must yield to a defendant’s paramount sixth amendment rights.

In People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727, the court ruled that a defendant may discover the mental health histories of seven prosecution witnesses. In that case, the defendant was charged with maltreatment of mentally retarded people and battery. The victims, residents of a mental health facility, were witnesses against the defendant. The court stated that “[w]hen *** a statutory evidentiary privilege comes in direct conflict with a defendant’s constitutional rights of confrontation and due process, we hold that the former must give way so that the fundamental protections of our criminal justice system will not be abrogated.” (98 Ill. App. 3d 413, 417.) The court directed the trial court to issue subpoenas to the mental health facility and, in the event either the therapist or the patient invoked a privilege, directed the trial court to hold in camera hearings with attorneys for the State and the defendant, for the purpose of determining which information is relevant and material.

The Fourth District apparently narrowed the Phipps holding, however, in People v. Walton (1982), 107 Ill. App. 3d 698, 437 N.E.2d 1273. In Walton, the defendant — charged with armed robbery — asked for discovery of the mental health records of the victim, who was the primary witness for the prosecution. The trial court denied discovery, and the appellate court affirmed, stating “[w]e do not deem the rule of Phipps to be so broad as to negate the necessity of establishing the pertinence of a witness’ psychiatric condition or history to the credibility of his or her testimony before such evidence may be introduced or before a witness’ otherwise confidential mental health records may be subpoenaed or discovered.” 107 Ill. App. 3d 698, 703.

The Walton court distinguished Phipps in several ways. In Phipps, the witnesses were long-term residents of the facility and were in the institution at the time of the offense and at the time of the trial. (See also People v. Di Maso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972 (witness suffering from alcoholism at or near time of offense; records held discoverable).) In Walton, though, the witness was once a voluntary patient at a mental hospital, had successfully completed his treatment prior to the offense and had not returned to the facility prior to the trial. In the case at bar, there is no evidence as to when Brown was released from the mental hospital, what mental illness she suffered from or what treatment she received. There is no evidence in the record even indicating whether Brown completed her treatments.

Relying upon Walton, the State argues the defendant has failed to make the requisite showing which would entitle him to discovery of those records. The State claims that, in this case, all we have is the defendant’s mere allegation that a witness has been institutionalized and a speculation that something in the mental health records would provide grounds for impeachment of the witness.

In essence, the State urges us to require the defendant to demonstrate the relevance and materiality of information to which he has no access. The record here already indicates that Brown was involuntarily committed because she was adjudged dangerous. There is no reasonable method for the defendant to establish any more than what is already known from court records. If the State’s argument prevailed, a defendant would be unable to make the proposed showing unless, by some fortuity, the witness was either institutionalized at the time of the offense or trial or, even less likely, a witness voluntarily revealed his mental illness and treatment. As Phipps noted, there are several mental illnesses that can affect a witness’ ability to accurately perceive and recall events. This critical ability would be unassailable by a defendant if he were required to demonstrate prejudice from the denial of information which is under the exclusive control of the State.

This does not necessarily mean that a defendant will be entitled to use at trial all the information that he discovered. If either the witness or the therapist seeks to invoke the privilege, the trial court should hold an in camera hearing the presence of prosecutors and defense counsel to determine which information is relevant or material to impeachment of the witness. (Phipps.) The introduction of evidence and the avenues of impeachment are within the reasonable discretion of the trial court, although the court should exercise that discretion with appropriate regard to a defendant’s critical sixth and fourteenth amendment rights.

In this case, Brown’s involuntary commitment occurred less than two years before the offenses occurred. The records which the court examined concerned the commitment proceedings itself, in which that court found Brown to be mentally ill and dangerous to others. The court had no information as to her diagnosis, treatment or release. The trial court could not reasonably conclude, from the absence of this information, that the mental health history of the witness was irrelevant and immaterial. Confronted with articulable evidence that raises a reasonable inquiry of a witness’ mental health history, a court should permit a defendant to discover that history. If either the witness or the therapist wish to invoke the privilege, the trial court should conduct an in camera hearing in the presence of counsel for the State and the defendant, to determine which information would be relevant and material to the witness’ credibility. This approach balances a defendant’s sixth and fourteenth amendment rights with a witness’ right to confidentiality of his mental health records.

Brown’s testimony was the only evidence of the defendant’s participation in the burglary. The evidence of his guilt is not overwhelming. In fact, the conviction depended upon Brown’s credibility. It cannot, therefore, be said that the inability to discover evidence that could seriously question Brown’s credibility was harmless beyond a reasonable doubt. Thus, we reverse the defendant’s conviction and remand this case to the trial court for a new trial, with directions to permit the requested discovery.

The defendant also argues that the trial court erred when it refused to instruct the jury on the elements of theft. Considering the credibility problems of Brown, the defendant argues that the evidence of his possession of stolen property as well as his effort to dispose of that property would entitle him to an instruction on the lesser offense of theft by unauthorized control. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1.) The State responds that theft is not a lesser included offense of burglary, so the defendant is not entitled to an instruction on that offense.

In general, a defendant is entitled to an instruction on a lesser included offense when all the elements of that offense are included within the greater offense and if there is some foundation in the evidence that would support a conviction for the lesser offense. (People v. Ryan (1981), 97 Ill. App. 3d 1071, 424 N.E.2d 20.) Since burglary does not require a taking and theft does not require an entry, theft is not a lesser included offense of burglary under this traditional definition of “lesser included offenses.” People v. Heard (1980), 80 Ill. App. 3d 701, 400 N.E.2d 65; People v. Shoemaker (1975), 31 Ill. App. 3d 724, 334 N.E.2d 347.

The defendant acknowledges this traditional view, but asks this court to expand the concept of a lesser included offense for the purpose of instructing a jury. Relying upon a discussion of lesser included offenses in People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633, and several Federal authorities, the defendant argues that a jury should be instructed on the elements of a lesser offense when the evidence produced at trial could support a conviction for that offense and when there is an inherent relationship between the greater and lesser offenses. This test is usually called the inherent relationship test.

In Mays, the defendant was charged with rape. He tendered a jury instruction on the offense of battery by bodily harm. The trial court refused this instruction and the supreme court upheld that ruling. The supreme court considered three tests of whether a lesser offense should be instructed upon. In the first, the court considered the abstract definitions of both crimes, concluding that battery by bodily harm is not a lesser included offense of rape. This is the traditional test to determine the existence of an included offense. In the second test, the court considered whether an included offense could be determined by looking at the offense as it was charged in the information. The indictment at issue in Mays, however, merely recited the elements of the offense of rape and applied them to the defendant, with appropriate references to the victim and the date of the offense. Thus, this second test did not assist the defendant.

Finally, the court considered the inherent relationship test. Under this test, a court must — if requested by a defendant — instruct a jury on lesser offenses whose elements are shown by evidence produced at the trial. Several Federal courts have adopted this test. (E.g., United States v. Johnson (9th Cir. 1980), 637 F.2d 1224; United States v. Pino (10th Cir. 1979), 606 F.2d 908; United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314.) In Johnson, the Ninth Circuit explained that a lesser included offense “may be established by the evidence adduced at trial in proof of the greater offense,” and that a defendant is entitled to an instruction on the lesser offense when there is an inherent relationship between the greater and lesser offenses. An inherent relationship exists when the two offenses “relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.” United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 319.

In Mays, the supreme court for the second time declined to approve or disapprove the inherent relationship test. (See People v. Cramer (1981), 85 Ill. 2d 92, 98, 421 N.E.2d 189 (court refused to intimate any view “upon whether the evidence as adduced at trial could support a defendant’s tendered instruction where the terms of the indictment could not”).) The court merely noted that there is no inherent relationship between rape and battery by bodily harm. (People v. Mays (1982), 91 Ill. 2d 251.) See also People v. Johnson (1982), 103 Ill. App. 3d 564, 431 N.E.2d 1381 (after noting the traditional test, court declined to consider an inherent relationship test where defendant requested instruction on theft but did not actually tender an instruction).

Although the State dismisses the Federal cases by noting that they are not controlling in Illinois, the reasoning of those cases is nonetheless persuasive. The strict, traditional view that a defendant is entitled to instructions on a lesser offense only when it is subsumed by the greater offense is a result of the mistaken belief in the need for symmetry with a prosecutor’s right to instructions on lesser included offenses. The State is restricted in its ability to request an instruction on a lesser offense because the defendant has a due process right to know the charges against him. (See People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319 (a defendant may be convicted of a lesser offense without violating due process right to notice, if each element of the lesser offense was a necessary ingredient of the greater offense with which he was charged).) In contrast, as Mays notes, the defendant’s rights to an instruction on a lesser offense stems from an attempt to give him the full benefit of the reasonable doubt standard. (Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382.) The State has no due process right to notice and, moreover, it cannot complain that it did not know what evidence it would produce against a defendant.

Courts have long recognized that jurors are likely to convict a defendant, even when proof of an element of a charged offense is questionable or missing, if the defendant is plainly guilty of some offense and the jurors have no other choice but conviction or acquittal. (Keeble v. United States (1973), 412 U.S. 205, 36 L. Ed. 2d 844, 93 S. Ct. 1993.) The availability of a lesser offense provides the jury with a “third option” and gives the defendant the benefit of the reasonable doubt standard. As the Ninth Circuit emphasized, “it makes no sense to confine our discovery of lesser included offenses to the barren words of the criminal code, uninformed by the evidence introduced at trial. It is, after all, that evidence which would convince the jury the defendant was guilty of some offense ***.” United States v. Johnson (9th Cir. 1980), 637 F.2d 1224, 1238.

In the case at bar, the crime of theft has an inherent relationship with the crime of residential burglary. Residential burglary requires an entry into a dwelling of another with the intent to commit a felony or theft therein. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3.) Although the crime of burglary protects interests that are broader than an owner’s interest in his personal property, it does protect that interest as well. Similarly, the offense of theft protects an owner’s interest in his personal property. Moreover, there is a plethora of cases in which the State has utilized the presence of personal property in a dwelling or a defendant’s possession of stolen property to prove the requisite intent for burglary. In the very case at bar, the State introduced evidence of the items removed from the home and of the defendant’s attempt to sell those items in order to prove he burglarized the house. The interests protected by the two criminal offenses are closely related, and the proof of the theft constituted proof of an element of the burglary. Therefore, the trial court should have granted the defendant’s request for an instruction on theft. On remand, the court should give the proposed instruction to the jury.

The defendant next contends that he was denied a fair trial when the prosecutor improperly placed evidence of prior criminal conduct before the jury. The trial court had granted the defendant’s motion in limine to exclude evidence of his prior juvenile record. During trial the prosecutor questioned Ray Armstrong and developed the fact that the defendant’s uncle was with Armstrong at the time the defendant and his accomplices attempted to sell the stolen items. This exchange took place:

“Prosecutor: Could you describe his Uncle Gregg?
Defense Counsel: Objection, it’s irrelevant.
Court: Objection is overruled.
Prosecutor: Describe him, please.
Armstrong: About 5-7, 5-8, maybe 5-9. And he weighs about 160 or 170 pounds.
Prosecutor: Approximately how old is he?
Armstrong: 19,19 or 20.
Prosecutor: Do you know of your own knowledge whether he’s ever gotten [sic] mad at Clarence for getting into trouble?
Defense Counsel: Objection.
Court: The objection is overruled.
Armstrong: I don’t know, but he just said that if Clarence ever got in any more trouble that he was going to beat him.
Prosecutor: Nothing further, Judge.”

Defense counsel moved for a mistrial, which the trial court denied. The court also ruled that the motion in limine had not been violated, but struck the entire redirect examination and instructed the jury to disregard it.

The defendant correctly notes that testimony can prejudicially and improperly inform the jury of other crimes, even if that testimony does not specify the charges or misconduct. (See, e.g., People v. Goodwin (1979), 69 Ill. App. 3d 347, 349, 387 N.E.2d 433 (police officer’s testimony that, upon arrest, defendant asked him to release him because “ ‘***he did not want to go back to prison ***’ ”); People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297 (testimony that defendant’s fingerprints were on file with the Illinois Bureau of Investigation).) The State counters that the defense counsel’s cross-examination, in which Armstrong stated that the defendant did not want to speak in front of his uncle, invited the State to pursue the matter further.

Our review of the record indicates that the defendant did not invite this line of inquiry. Although Armstrong stated under cross-examination that the defendant did not want to speak in front of his uncle, it was the prosecutor who began his inquiry by suggesting the defendant had been in trouble. This implied that the defendant had previously engaged in some unspecified criminal conduct. Certainly, the insinuation is as strong as that in Hudson. (See also People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650 (prosecutor’s question to defendant as to whether he had ever seen police station before held reversible error).) In view of our disposition of this case we do not need to consider whether this comment was so prejudicial that it requires reversal of the conviction. It is sufficient to hold that it was error and it should not be repeated at the defendant’s new trial.

Finally, the defendant argues the prosecutor committed prejudicial error when he repeatedly asked Carpenter if he was afraid of testifying against the defendant or if he ever said he was afraid of testifying. The State claims the prosecutor was merely inquiring into possible out-of-court communications between the witness and the attorneys. The State has not explained the need for this inquiry nor has it produced evidence of Carpenter’s fears or threats against him. This line of interrogation can, as the defendant contends, imply that the defendant has made threats against the witness. The record, however, reveals that such an implication would be groundless. Absent some demonstrated legitimate justification for these inquiries, the State should abandon this line of questioning at the new trial.

For these reasons, the judgment of the circuit court of Will County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

SCOTT and HEIPLE, JJ., concur.