author: PRESIDING JUSTICE SCOTT JUSTICE HEIPLE,

text:
    LOUIS L. SOMMER, Petitioner-Appellant, v. JACK GOETZE, Chairman of the Tazewell County Sheriffs Merit Commission, et al., Respondents-Appellees.
    Third District
    No. 81-231
    Opinion filed December 9, 1981.
    HEIPLE, J., concurring in part and dissenting in part.
    Michael M. Mihm, of Peoria, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (G. Edward Orr, Assistant State’s Attorney, of counsel), for appellees.
   PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Deputy Sheriff Louis L. Sommer had been employed in his position with the Tazewell County sheriff’s office for 18 years, when on December 2, 1980, he allegedly exchanged heated words with Tazewell County Assistant State’s Attorney Thomas Ebel in an East Peoria tavern. The following day, on complaint of Ebel, an investigation of the incident was begun by the Tazewell County sheriff. That investigation resulted in charges of misconduct against Deputy Sommer and in a hearing before the Tazewell County Sheriff’s Merit Commission. Following the hearing, the Commission found Deputy Sommer guilty of the following:

a. Threatening to do bodily harm to Assistant State’s Attorney Ebel, said conduct constituting mistreatment of a human being and conduct unbecoming an officer tending to reflect discredit on the department;
b. Using coarse, profane and insolent language to a citizen; and
c. Lying to investigative officers about the threats made to and conversation with Ebel.

For these offenses, the deputy was dismissed from his position with the sheriff’s office. The decision of the Merit Commission was appealed to the Circuit Court of Tazewell County, which affirmed the Merit Commission’s decision. Deputy Sommer seeks our review of the circuit court order, urging primarily that two errors occurred in the proceedings which took place before the Merit Commission, either one of which requires a new hearing on the charges made.

First, the Tazewell County sheriff who lodged the complaint of misconduct against his deputy, as is the recommended procedure (197 Ill. Op. Att’y Gen. No. S-328), was represented in the hearing before the Commission by the office of Tazewell County State’s Attorney, a duty required by statute of the latter. (Ill. Rev. Stat. 1979, ch. 14, par. 5(3).) The representation by the State’s Attorney’s office was objected to by Deputy Sommer on the grounds of conflict of interest inasmuch as the Assistant State’s Attorney was not only the complaining party but also a key eyewitness to the events which transpired in the East Peoria tavern. Neither the Merit Commission or the State’s Attorney’s office took any action with regard to this objection. Also, Deputy Sommer objected before the Merit Commission to the admission into evidence of the results of his polygraph examination conducted during the course of the Tazewell County sheriff’s internal investigation. Again, this objection was denied. Deputy Sommer believes that either of these irregularities in the Merit Commission’s proceedings so tainted the outcome as to deny him a fair hearing. We agree.

In considering the first of the issues raised, we turn to the statutory authority for the appointment of a special State’s Attorney:

“Whenever the attorney general or state’s attorney * * 9 is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the attorney general or state’s attorney would have had if present and attending to the same e * (Ill. Rev. Stat. 1979, ch. 14, par. 6.)

Deputy Sommer contends that the Merit Commission should have acted pursuant to this statutory authority and appointed a disinterested attorney to prosecute the sheriff’s case. The Commission defends its inaction by pointing to the word “court,” and argues that the authority granted by the statute is limited to constitutionally created courts with plenary powers. (Ill. Const. 1970, art. VI, §1.) Since the Merit Commission is not a “court” within the constitutional definition, it contends that Deputy Sommer should have sought relief in the circuit court, and cannot now complain for his failure to do so.

It is clear under Illinois law that administrative boards and commissions such as the Merit Commission in the instant case are not “courts” in the constitutional sense of that term. (Liquid Carbonic Co. v. Industrial Com. (1933), 352 Ill. 405, 186 N.E. 140; Michelson v. Industrial Com. (1941), 375 Ill. 462, 31 N.E.2d 940.) And, absent a clearly expressed contrary legislative intent as to a different meaning, the word “court” as contained in a statute can only mean one within the judicial structure of government or a judge thereof, and cannot include nonjudicial adjudicatory tribunals simply because such tribunals exercise quasi-judicial powers. (Department of State v. Spano (1971), 1 Pa. Commw. 240, 274 A. 2d 563.) Nevertheless, we believe such clear legislative intent for a broader definition is present here. The “court” in question here is one that might hear “any cause or proceeding, civil or criminal” in which the Attorney General or the State’s Attorney has a “duty to prosecute or defend.” This language carries the strong inference that the legislature intended a more expansive definition of the term than it possesses in a strict constitutional sense.

With the mushroom-like growth of quasi-judicial adjudicatory tribunals witnesses in recent years at local, State and national levels of government, the role of the Attorney General and State’s Attorneys in representing their official clients has experienced a corresponding change. The policy considerations which allow the appointment of a substitute Attorney General or State’s Attorney when those elected officers appear with conflicting interests before a judge of the circuit, appellate or supreme courts, are no less applicable to situations when those elected officers appear with conflicting interests before other adjudicatory tribunals. The conflict of interest is no less real when the variance sought from the county zoning board affects real property adjoining the State’s Attorney’s residence or when the permit sought from the county liquor commission involves the State’s Attorney’s parent or sibling. We believe it is consistent with the sweeping language of section 5 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1979, ch. 14, par. 6) and with the general policy considerations underlying that same paragraph, to hold that the Sheriff’s Merit Commission was authorized to appoint a disinterested attorney to represent the Tazewell County sheriff in his complaint against Deputy Sommer.

The appointment of a special State’s Attorney is not mandatory, the statute only requiring that such an appointment “may” be made. Previous decisions have determined that this permits the hearing body to exercise its discretion in reviewing the circumstances to determine the need for such action. (In re Petition of McNulty (1978), 60 Ill. App. 3d 701, 377 N.E.2d 191; Hutchens v. Wade (1973), 13 Ill. App. 3d 787, 300 N.E.2d 321.) Such authority notwithstanding, that discretion must be exercised to promote the underlying policy of a just, fair and impartial hearing, and where those ends are thwarted, an abuse of discretion occurs. In the context of a criminal prosecution, a clear conflicting interest has been held to exist where it appeared that the State’s Attorney was a prospective witness. (People v. Moretti (1952), 349 Ill. App. 67, 109 N.E.2d 915.) Although the instant proceeding was civil in nature, the potential sanction, i.e., loss of merit employment, argues for the same holding as reached by the Moretti court. Indeed here, where the assistant State’s Attorney was the complainant and key eyewitness, we hold that it was an abuse of discretion to refuse appointment of a disinterested attorney to prosecute the charges brought against Deputy Sommer.

The second of the issues raised is brought to our attention at a time when disagreement exists in the appellate court as to its resolution. In Washington v. Civil Service Com. (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136, the results of polygraph examinations were held admissible as evidence in administrative hearing. In McGowen v. City of Bloomington (1981), 99 Ill. App. 3d 986, 426 N.E.2d 328, a contrary holding was reached. We believe McGowen represents the preferred view.

Set forth in a well-researched and scholarly opinion are the many problems inherent in the admission of polygraph results as substantive evidence. (People v. Monigan (1979), 72 Ill. App. 3d 87, 390 N.E.2d 562.) It was there noted that the polygraph’s degree of accuracy is subject to widespread disagreement among experts; that the results of examinations cannot be verified by extrinsic evidence; that the subject’s health can affect the outcome of the test; that many polygraph examiners are unqualified; that the examiner’s expertise has substantial bearing on the reliability of examination results; that fact-finders inordinately weigh polygraph results; and that the machine tends to displace the finder of fact. (72 Ill. App. 3d 87, 96-100, 390 N.E.2d 562, 568-69.) This final observation is particularly troublesome “[i]n an era which worships technology at the expense of cerebration.” McGowen v. City of Bloomington (1981), 99 Ill. App. 3d 986, 990, 426 N.E.2d 562.

Monigan considered the admission of polygraph results in a criminal proceeding where the standard of proof is greater and where the rules of evidence are more strictly applied. Although the rules of evidence are more casual in an administrative adjudication (Northwestern University v. City of Evanston (1977), 55 Ill. App. 3d 609, 370 N.E.2d 1073, rev'd on other grounds (1978), 74 Ill. 2d 80, 383 N.E.2d 964), such casualness cannot abrogate the right to a just, fair and impartial hearing. With the reliability of the polygraph examination so vulnerable to so many varying attacks, we believe justice, fairness and impartiality are abrogated when the results of such examinations are considered as substantive evidence. The petty criminal whose potential jeopardy does not exceed a few hundred dollars does not receive a fair trial where polygraph results are admitted into evidence. (People v. Boney (1963), 28 Ill. 2d 505, 192 N.E.2d 920.) The potential jeopardy facing Deputy Sommer, loss of merit employment, suggests that the evidence admitted against him should be no less reliable. For these reasons, we deem the holding of McGowan to be the better rule of law.

The errors in the hearing before the Merit Commission, as set out above, denied Deputy Sommer a fair hearing on the charges made against him. For the reasons set forth, he is entitled to a new hearing.

Reversed and remanded.

BARRY, J., concurs.

JUSTICE HEIPLE,

concurring in part and dissenting in part:

I concur with the reversal and remand on the issue of the improper use of the polygraph evidence.

I do not believe, however, that there is any conflict of interest because the State’s Attorney’s office prosecuted the matter before the Merit Commission. A conflict of interest would exist in the State’s Attorney’s office if an association would diminish or weaken the prosecution. The opposite result obtains here. Because the victim was a member of the State’s Attorney’s staff, the interest in prosecution would be enhanced rather than diminished. Also, the prosecutorial function results in no denial to the defendant of any right. The witnesses were subject to cross-examination and the issue was decided by an impartial panel. It is true that the statute cited in the majority opinion provides authority for the appointment of a special attorney. The language of that statute, however, makes this a discretionary matter. That being so, there is really no reason to find a conflict when the interest in prosecution is not diminished. As to that portion of the majority’s opinion, I dissent.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE W. JOHNSON, Defendant-Appellant.
    Third District
    No. 81-250
    Opinion filed December 9, 1981.
    Robert Agostinelli and Tom Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

Lee W. Johnson was convicted of attempted aggravated arson and resisting a peace officer after a jury trial in Kankakee County. He was sentenced to 10 years on the “attempt” charge and one year on the “resisting an officer” charge. The convictions stemmed from defendant’s actions during and after a bizarre domestic dispute involving him and his former girlfriend.

The defendant first contends on appeal that his attempt aggravated arson conviction should be reversed because the evidence did not establish that he took a substantial step toward the crime or that he had the necessary specific intent to commit aggravated arson. He also argues that he was denied a fair trial where it was brought forth before the jury that he previously had been arrested and where there was prejudicial prosecutorial misconduct in the closing arguments.

The unusual events involved in this case began on November 29, 1980, in Kankakee. Sometime between 2:30 and 3:30 p.m. on that day, two Kankakee police officers were dispatched to a house on the corner of Rosewood and Merchant Streets in Kankakee. The defendant Lee Johnson had called the police for the purpose of having them help him recover a gun that was within the house there. When the officers, in separate squad cars, arrived, Johnson was standing in front of the house. He told them that he had lived in the house with his former girlfriend, Glenda Pankey, and that he had left a gun with her, which she was refusing to return. The officers, accompanied by Johnson, proceeded onto the front porch and Officer Born then knocked on the door. Pankey eventually answered, and let Born in the house. When inside, he noticed that there were another woman and several children present. While Born was inside, Johnson could be heard speaking loudly on the front porch to Officer Osenga. Johnson was upset, repeating that he wanted his gun and that it was in the house. Osenga at the time requested to see Johnson’s owner “I.D.” card, which he produced, along with a receipt for the gun. The officer then told Johnson that they could not search the house for the gun. The defendant responded, “If I don’t get this gun back, I will burn this motherfucking house down.”

Officer Born came out of the house several minutes later, telling Johnson that Pankey claimed not to have the gun, but also offered to bring it to the police station when she did. With this, Johnson became even more upset and again threatened to burn the house. Born went back into the house, only to return again with another of Pankey’s denials. Johnson became further agitated and continued to spout his threats. At this time, the officers advised Johnson to leave the area since he was causing a disturbance and could be arrested. At trial, Osenga testified that Johnson then told him that he didn’t care, that he had been arrested before. Objection to the reference to prior criminal activity was sustained, and the jury was instructed to disregard the reference. A later motion for a mistrial based upon the improper evidence was denied. In any event, after the warning, Johnson left the house, and he walked east on Merchant Street to his own residence, about a half a block away. The two police officers, meanwhile, pulled into a lot, a block away, to talk. Within minutes, they observed Johnson walking north on Rosewood carrying a gasoline can. He walked to the Clark Service Station, directly across from the lot where the two officers sat in their squad cars. He put some gas in the can, paid for it and then headed back down Rosewood. Officer Born was called to other duty, but Osenga stayed. He then drove south on Rosewood, and upon reaching Pankey’s house saw Johnson take two or three steps on the south side of the house while pouring gasoline. Johnson was about a foot away from the house, which had a IJ2- to 2-foot concrete foundation, and Osenga could not tell if the gas was hitting the ground or the house. The ground was snow-covered grass and earth. It was a cold and damp day.

When Johnson noticed Officer Osenga, he stopped pouring the gasoline and started to walk away from the house, still carrying the can. Osenga then exited his squad car and told the defendant he was under arrest. Johnson kept walking toward his own residence, setting the gas can down in his front yard. Osenga again told him that he was under arrest. Johnson told Osenga that he would not go with him, whereupon Osenga pulled Johnson from the porch and a scuffle occurred. Johnson tried to run, but Osenga “grabbed” him and pushed him against the house. Johnson pushed back, and then Osenga hit Johnson in the mouth, threw him to the ground, and began handcuffing him. Osenga, after subduing Johnson with the help of another officer who arrived at the scene, then retrieved the gas can, which was half full. The other officer then went to Glenda Pankey’s residence, where he was given the defendant’s rifle by a woman there. Pankey informed the officer at that time that the gun had been there, as Johnson had indicated, since the previous night. At the police station, a search of Johnson revealed that he had no matches, no lighter, and nothing else which could serve as an ignition source.

At trial, all of the above evidence was presented, and in addition a State arson expert testified concerning the nature of gasoline fires and the necessity of an ignition source for starting such a fire. Defense motions for directed verdicts were denied. No witnesses were called by the defense. Closing arguments were then presented. As several comments by the prosecutor during the arguments are alleged to have denied defendant a fair trial, we set forth those pertinent portions of the closing argument. The prosecutor, in discussing the crime of attempt, informed the jury that impossibility was not a defense to the crime of attempt. Objection that such comment was an incorrect statement of the law was made, it being overruled by the court. The prosecutor then continued discussing the law of attempt, and he informed the jury that the issue was whether the defendant took a substantial step. “The question is not is he dangerously close or almost there — but is this a substantial step?” He later returned to the same point, saying:

“Don’t start writing the law in the jury room about substantial step meaning almost there or dangerously close to a fire, or something like that. # # #. Don’t start setting standards of law that don’t exist.”

Turning then to the reasonable-doubt standard, the prosecutor stated:

“What does reasonable doubt mean? You decide what reasonable doubt is. There is no further definition in the law and no attorney can stand up here and say anything more than a reasonable doubt is a doubt that is reasonable. It is not simply any possibility off the wall that is in your mind — your mind — not in mine nor in Mr. Steffen’s — yours—it is any doubts that are reasonable. It is the same burden in every criminal case in the history of the United States. There is nothing special or unusual about this case — about this crime — or about Attempt. Beyond a reasonable doubt is the historic burden upon the People throughout our history. It is met every day. Of course, in some cases it is not met and the people are found not guilty, but it is not a burden that is beyond reach — beyond the horizon — beyond the cloud. It is a burden that is and can be met — frequently.”

Finally, during rebuttal argument, the prosecutor repeatedly emphasized to the jury that the State’s case was “uncontradicted and unrebutted.” After so characterizing the case at the outset, the prosecutor then continued:

“All the evidence of the State is concluded. There is nothing in the Defense case contradicting what I presented. This (holding up Property Card) is the sum total — the whole Defendant’s case which was provided by the State. It is our Property Card. I told you about it anyway. All our evidence is uncontradicted. You must be — you must decide the case on the evidence — you can’t spout out your own theories. You can’t create, if you think there are gaps in the evidence. You must be guided by the evidence — all the evidence that is in this case. The evidence presented by the People — uncontradicted, unrebutted.”

After almost five hours of deliberations, the jury returned its verdicts of guilty.

At the presentence hearing, the defendant Johnson testified, giving his version of the events of that day. He stated that he had lived with Pankey and had two children by her, those children being the ones present in the house on the day of the disturbance over the gun. He said that he had come to the house the previous night on Pankey’s request, after she told him someone had tried to break in. He took his gun to the house, checked the house over and nailed a window shut. He then slept on the couch. In the morning, Pankey began drinking and the two argued, with Johnson leaving. When he returned, Pankey would not let him in to get his gun. He testified that two other people came to the house and they were drinking and clowning around in the presence of the children. He stated that he called police to help him get the gun out of the house, before it fell into wrong hands. He also testified that his loud, threatening talk after police arrived was solely to get Pankey’s attention so that she would turn over his gun. He denied any intention to burn the house down. He said he only poured a half a cup of gas and that Pankey saw him doing it. He said he had no way of starting the fire and that he saw his children on the porch as he poured the gasoline. Other evidence in mitigation was presented, along with, in aggravation, several prior felony convictions of the defendant. The court thereafter sentenced Johnson to 10 years’ imprisonment on the attempt aggravated arson and one year on resisting a peace officer.

The first issue raised is whether the State proved that the defendant took a substantial step toward the commission of aggravated arson, with the intent to commit aggravated arson. (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a).) The defense contends that the State did not prove either element of the attempt offense. In support of their position, the defense emphasizes that the defendant had no ignition source, that he poured only a small amount of gasoline, and then only next to the house. Further, the defense notes that Johnson called the police to the scene and that his subsequent conduct occurred while the police were nearby, observing from the squad car. The defense argues that the evidence shows only mere preparation, and not a substantial step. As this court stated in People v. Brown (1979), 75 Ill. App. 3d 503, 394 N.E.2d 63:

“Determining what constitutes a ‘substantial step’ under our attempt statute has been one of the most troublesome problems of our criminal law. [Citation.] On the one hand, it is clear that mere preparation to commit a criminal offense does not constitute a ‘substantial step’ for purposes of the attempt statute. [Citation.] On the other hand, it is equally clear that to constitute an attempt it is not necessary to prove that the defendant performed the last deed immediately preceding that which would render the substantive crime complete. [Citation.] Each attempt case must be decided on its own unique facts, and the essential question which must be answered is whether, given the intent to commit a specific offense, the defendant performed acts bringing him in ‘dangerous proximity to success in carrying out his intent.’ ” (75 Ill. App. 3d 503, 505; People v. Paluch (1966), 78 Ill. App. 2d 356, 222 N.E.2d 508.)

In the instant case, we find that the evidence is sufficient to establish that the defendant had performed acts which brought him in dangerous proximity to success in committing aggravated arson. He had threatened to burn the house down. He had purchased gasoline, carried it to the house and began pouring it beside the foundation of the wood frame structure. He ceased his activities only when the police officer drove up in front of the house. The only remaining step to be taken to complete the arson was the igniting of the gasoline. As indicated, above, it is not necessary to prove that the defendant took the last step immediately preceding that which would render the substantive crime complete. Under the circumstances, we find that the evidence was sufficient for the jury to conclude that the defendant had taken a substantial step toward committing aggravated arson. Each case must be decided on its own facts. That he was later found to be without an ignition source does not alter our conclusion. The record does not indicate, nor will we presume, that Johnson knew that he was without an ignition source. It is as consistent with the evidence to conclude that he mistakenly believed that he did have an ignition source. As to this, we would note that it is no defense to an attempt charge that because of a misapprehension of circumstances it would have been impossible for him to commit the substantive offense. Ill. Rev. Stat. 1977, ch. 38, par. 8— 4(b).

The defense’s next argument focuses upon the second requisite element of attempt in this case, the intent to commit aggravated arson. The defense argues that Johnson’s actions, including his threats to burn the house down, only showed his intent to frighten Pankey into returning his gun. They also argue that no intent to commit arson is shown where the defendant knew he had no means of lighting the gasoline. Certainly, the bizarre circumstances of this case raise considerable doubts as to the defendant’s intentions on that day. The intent question, given the circumstances, is a close one. He did threaten to burn the house down; he did obtain the gasoline; he did start pouring it beside the house. This evidence, by itself, is sufficient to support a conclusion that he intended to burn the house.

As noted above, there is no indication that he knew he was without matches or a lighter and the evidence is as consistent with a mistaken belief conclusion. However, despite the evidence indicating intent, there is other evidence supporting a conclusion that he did not have the intent. It was he who called the police to the dispute in the first place. While he made threats to burn the house, he did so in the presence of the officers and in a loud enough voice so that Pankey would hear him. Though it was mid-afternoon, he marched openly to his house, from there proceeding to the gas station, while the squad cars waited in the lot across the street from the service station. He then marched openly to Pankey’s house and poured an amount of gasoline on the ground next to the house. The house, a wooden frame structure, had a concrete foundation. The ground was wet, covered with melting snow. Additionally, there was the fact that no ignition source was found on the defendant’s person. Certainly, this evidence was consistent with the defense version of the incident, that the defendant’s only intent was to frighten Pankey into returning his gun. It is consistent with the defense position that the defendant had no intent to start the fire that afternoon. Essentially, the record in this case presents a close factual question on the question of the defendant’s intent. The evidence could support a jury’s conclusion either way on that issue. While we may not have reached the same result, the jury’s conclusion that the defendant possessed the requisite intent is supported in the evidence. The evidence, however close, was sufficient to uphold the jury’s verdicts.

However, with the closeness of the evidence in mind, we turn next to the alleged errors in closing argument by the prosecutor. The prosecutor clearly misstated the law of attempt to the jury. While his argument that impossibility is no defense to an attempt is arguably permissible on the facts of this case, his suggestion to the jury that a substantial step does not mean “dangerous proximity” and that they should not so find is directly contrary to the expressed law. (People v. Brown (1979), 75 Ill. App. 3d 503, 505.) As stated therein, the question in an attempt case is whether the defendant’s acts brought him in “ ‘dangerous proximity to' success in carrying out his intent.’ ” While the prosecutor would h.ave been justified in arguing that Johnson’s conduct was a substantial step, and that was all that was necessary, he was not justified in expressly misinforming the jury on a critical element of the offense of attempt. The State is at a loss to explain or justify such a clear misstatement of law.

Further improper argument occurred with the prosecutor’s comments, set out earlier, concerning the frequency and ease with which the reasonable doubt burden is met. (People v. Martinez (1979), 76 Ill. App. 3d 280, 395 N.E.2d 86.) As the court in Martinez noted, such comment as was made here “had the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a proforma or minor detail.” 76 Ill. App. 3d 280, 285.

In addition to the above errors in argument, the prosecutor also made repeated reference to the uncontradicted and unrebutted nature of the State’s case. While the State may legitimately argue that its evidence is uncontradicted and unrebutted, even though the only person who could rebut it is the defendant (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697), courts have not tolerated such argument when, because of the nature and extent of such comment, it can be concluded that the comment was calculated to direct the jury’s attention to the defendant’s failure to testify. (People v. Johnson (1976), 35 Ill. App. 3d 666, 341 N.E.2d 443; People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028; People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.) Here, the record reveals that the prosecutor repeatedly emphasized the uncontradicted nature of his case. Furthermore, he held up the property card (which indicated the defendant had no ignition source when arrested) and, holding it before the jury, stated: “This is the sum total, the whole defendant’s case which was provided by the State.” We find that the repeated verbal references to the uncontradicted and unrebutted nature of the State’s case, coupled with the emphasis supplied by the visual display of the property card, impermissibly focused the jury’s attention on the defendant’s failure to testify. The prosecutor exceeded the bounds of reasonable and proper comment.

To summarize, the record reveals that the prosecutor grossly misstated the law of attempt to the jury, that he de-emphasized the State’s burden, and that he improperly focused upon the defendant’s failure to testify. In addition to these significant errors there exists the clear error which occurred when Officer Osenga, during trial and before the jury, testified that the defendant told him he had been arrested before. Such evidence, tending to show that an accused had committed crimes or acts of misconduct distinct and unrelated to the offense for which he is being tried, is both incompetent and prejudicial. (People v. Donaldson (1956), 8 Ill. 2d 510, 134 N.E.2d 776; People v. Goodwin (1979), 69 Ill. App. 3d 347, 387 N.E.2d 433.) Here, the effect of the prejudice may have been somewhat lessened, in that the reference was only to an arrest, and an instruction to disregard was given. (But see People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650.) Nevertheless, the jury had been made aware that the defendant had previous encounters with the police and that he may have been involved in prior crimes. People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297; People v. Richardson (1977), 48 Ill. App. 3d 307, 362 N.E.2d 1104.

In assessing the errors by the State, we must look at them individually and collectively, with consideration given to their cumulative effect and to the nature of the evidence against the defendant. Whether the errors require reversal depends upon the facts and circumstances of the individual case. (People v. Walsh (1980), 80 Ill. App. 3d 754, 400 N.E.2d 587.) In the instant case, given the closeness of the evidence, which we have already alluded to in a prior discussion, we conclude that the combined effect of the errors was sufficiently prejudicial so as to deprive the defendant of a fair trial. A reversal and remandment for a new trial is justified and required. The errors committed may well have constituted a material factor in the defendant’s conviction, and the verdict may well have been different if the improper argument and evidence had not been presented. We reject the State’s contention that the errors are harmless because the evidence of guilt was overwhelming. As noted, we find close factual questions in the case. Because of the closeness of the evidence on the attempt charge, and the serious and prejudicial nature of the errors, we find reversal required despite the defense’s failure to object to some of the improper closing argument. People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827; People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

We do not disturb the “resisting a peace officer conviction,” however, since the evidence on that offense was overwhelming. We conclude that the best procedure, however, is to vacate the defendant’s sentence on that conviction, given our reversal of the other conviction, and remand for resentencing. People v. Hert (1981), 95 Ill. App. 3d 871, 420 N.E.2d 813.

The defendant’s conviction for attempt aggravated arson is reversed and that cause is remanded to the trial court for a new trial on the “attempt” charge. The conviction for resisting a peace officer is affirmed, but the sentence thereon is vacated, and the cause remanded for resentencing.

Reversed in part, affirmed in part, and remanded.

SCOTT, P. J., and BARRY, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN BILYEU, Defendant-Appellant.
    Third District
    No. 81-278
    Opinion filed December 9, 1981.

      David Youck, of Onarga, for appellant.
    No brief filed for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Steven Bilyeu, appeals from the order of the circuit court of Iroquois County dismissing his second amended petition for post-conviction relief. We affirm.

In 1976, the defendant was convicted of three counts of burglary and one count of felony theft (vehicle). He subsequently received three concurrent terms of 6 1/3 to 20 years’ imprisonment for the burglary convictions and a consecutive sentence of 31/3 to 10 years’ imprisonment for the felony theft conviction. He directly appealed the convictions and the sentencing order. His appointed appellate counsel, the State Appellate Defender’s Office, moved to withdraw its representation pursuant to Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396. This court granted that motion and affirmed the convictions and sentencing order.

The defendant then filed the instant petition for post-conviction relief, alleging that the imposition of the consecutive sentence was in violation of section 5 — 8—4(a) of the Unified Code of Corrections which provides: “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective * » a ” (Ill. Rev. Stat. 1975, ch. 38, par. 1005—8—4(a).) The circuit court summarily dismissed the second amended petition. The defendant now appeals, contending that, because he committed the felony theft for the sole purpose of avoiding apprehension for the three prior burglaries, the felony theft was neither independently motivated by nor separable from those crimes, and therefore, the court erroneously imposed the consecutive sentence.

The Post-Conviction Hearing Act provides relief only for substantial constitutional violations that were not presented or could not have been presented on direct appeal. (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.; People v. Johnson (1978), 63 Ill. App. 3d 745, 380 N.E.2d 531.) In the instant case, even if we were to assume that the alleged error was one of constitutional magnitude, the matter could have been presented on the direct appeal.

Apart from the foregoing procedural defect, however, the petition fails on its merits. The defendant argues that because his felony theft conviction arose as a part of his single course of conduct, and because there was no substantial change in the nature of the criminal objective, the circuit court erred in sentencing him to a consecutive term for that conviction. A brief recital of the facts shows this contention to be devoid of merit. On the night of January 28, 1976, the defendant and two accomplices went on what could fairly be described as a crime spree. They forcibly entered three Gilman, Illinois, businesses, ransacked their contents, and pocketed any cash that they discovered. Having completed their rampage, they thought it prudent to leave the State. After several hours of searching, they stole an automobile that was located in Sheldon, Illinois, and escaped to Indiana. That stolen-car episode was the basis of the felony theft conviction.

The felony theft offense stands alone as a distinct and separate offense from the burglaries. It is separated in time, purpose and location. The burglaries were completed offenses at the time the car was stolen. While the purpose of the car theft may have been to effectuate an escape, it cannot be held to bar consecutive sentencing. To hold otherwise would be to depart from reason and common sense. Defendant’s theory would result in a holding that, conceivably, could include numberless offenses so long as they somehow related to a course of conduct designed to effectuate escape, flight or concealment to protect the culprit from apprehension for the crime in chief. Such is not the law. And truly, in the situation at hand, the only noteworthy connection between the three burglaries and the car theft is that the defendant was responsible for each offense.

For us to hold that the stolen vehicle offense was a result of the same criminal objective as were the three burglaries would strip a sentencing court of its authority to impose consecutive sentences in virtually all multiple-offense situations and thus, would directly contravene the language found in section 5 — 8—4(a).

For the foregoing reasons, we affirm the order of the circuit court of Iroquois County dismissing the defendant’s petition for post-conviction relief.

Affirmed.

SCOTT, P. J„ and STOUDER, J„ concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SAM SCHROEDER, Defendant-Appellee.
    Second District
    No. 81-137
    Opinion filed December 2, 1981.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.

      William J. Scott, Jr., of Mirabella and Kincaid, of Wheaton, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County, dismissing five criminal complaints against defendant, Sam Schroeder, for failure of the State’s Attorney to file informations on these offenses against defendant on a certain date pursuant to the court’s earlier directive. We hold the court lacked authority to dismiss the complaints or bar the filing of informations and accordingly reverse.

Defendant was arrested on November 30, 1980, released on bond December 1,1980, and six criminal complaints were filed against him on December 2,1980, in which he was charged with the offenses of unlawful delivery of cannabis, unlawful delivery of a controlled substance, unlawful possession with intent to deliver cannabis, unlawful possession of a controlled substance and resisting a police officer. Following a preliminary hearing held on December 19, 1980, the trial court found probable cause as to each charge except the unlawful delivery of a controlled substance. Pursuant to the local Administrative Order No. 80 — 8, arraignment was set on the trial judge’s docket for Friday, January 23, 1981, at which time the State’s Attorney informed the court that no informations had yet been filed on the remaining five charges because the State had not yet received the requested laboratory reports on the substances, which it wished to examine before filing its informations. The court informed the prosecutor that if the informations were not filed on the following Monday, January 26, it would dismiss the charges and prohibit the State from filing any further informations on those charges in the future.

On January 26, the prosecutor informed the court that his office had received test results from the laboratory for only one substance; that the laboratory testing machinery had broken down and, consequently, no results were then available concerning the other substances; and that the State had no information to file at that time with respect to the one identified substance.

The State’s Attorney advised the trial judge that while a “field test” of an alleged controlled substance may be positive, and sufficient for a finding of probable cause at a preliminary hearing, it was not always accurate. For this reason, the State did not wish to file informations on the charges until the laboratory confirmed the field-test results.

The trial court suggested that the better practice would have been for the State to have filed informations immediately after a preliminary hearing and then nolle prossed the charges if the laboratory reports, when received, were negative. The court requested defense counsel to offer grounds for dismissal of the charges, and counsel responded he knew of no provision in the criminal code which might support dismissal of charges for failure of the State’s Attorney to comply with an order to file an information by a certain date.

The trial court thereupon took note of Administrative Order No. 80 — 8 of the Eighteenth Judicial Circuit which provided, inter alia, that “undue delay in filing [an] information shall be grounds for dismissal of the charge and discharge of the defendant.” It concluded that the informations were not filed in accordance with the local rule and the delay constituted a denial of defendant’s right to due process. On its own motion, the court dismissed the five complaints pending against defendant and by its order barred the State from filing informations on those charges in the future. The State appeals from the order of dismissal.

The State contends that the court exceeded its authority when it dismissed the charges because the dismissal was not based upon any of the statutory grounds authorizing pretrial dismissal (Ill. Rev. Stat. 1979, ch. 38, par. 114—1(a)) nor was there any evidence establishing a clear denial of due process which might warrant the court’s exercise of its inherent authority to dismiss a criminal charge. The State also asserts defendant failed to show the delay in filing the informations worked actual and substantial prejudice to his defense, citing People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244.

Defendant contends the court’s action was authorized by the administrative order of the Eighteenth Judicial Circuit which was relied upon by the trial judge. He also asserts that Lawson is not controlling as the test it set forth governs pre-arrest, pre-accusation delay whereas the delay in defendant’s circumstances occurred subsequent to his arrest and the filing of criminal charges against him on December 2, 1980, and denied him a prompt trial, citing People v. Hannah (1975), 31 Ill. App. 3d 1087, 335 N.E.2d 84.

With few exceptions (see, e.g., People v. Snyder (1980), 81 Ill. App. 3d 721, 722, 402 N.E.2d 300, 301), which are inapplicable here, the trial court is authorized to dismiss criminal charges prior to trial only for the reasons set forth in section 114 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114—1) or where there has been a clear denial of due process which prejudiced defendant. (People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244, 1246; People v. Miller (1981), 100 Ill. App. 3d 122, 127, 426 N.E.2d 609, 613-14; People v. Rodgers (1981), 98 Ill. App. 3d 999, 1001, 424 N.E.2d 1312, 1313; People v. Mooar (1981), 92 Ill. App. 3d 852, 854, 416 N.E.2d 81, 83; People v. Haag (1979), 80 Ill. App. 3d 135, 140, 399 N.E.2d 284, 288; People v. Leannah (1979), 72 Ill. App. 3d 504, 506, 391 N.E.2d 187, 189.) It is manifest that the court on its own motion, or on motion of the defendant, has no power to dismiss criminal charges before trial in the absence of a supreme court rule, statute or a due process violation. See People v. Rodgers (1981), 98 Ill. App. 3d 999, 1001, 424 N.E.2d 1312, 1313; People v. Guido (1973), 11 Ill. App. 3d 1067, 1069, 297 N.E.2d 18, 20.

The reviewing courts of this State have cautioned trial judges to proceed with restraint in considering whether a due process violation has occurred and to so find only if it is unequivocally clear in nature and can be ascertained with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 456-57, 367 N.E.2d 1244, 1247; People v. Rodgers (1981), 98 Ill. App. 3d 999, 1001, 424 N.E.2d 1312, 1313; People v. Grimm (1979), 74 Ill. App. 3d 514, 516, 392 N.E.2d 1138, 1140.) Delay in a prosecution in the form of post-offense, pre-accusation delay (see People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244) and post-accusation delay rising to the level of a violation of the constitutional right to a speedy trial can under certain circumstances amount to a denial of due process (see People v. Yaeger (1980), 84 Ill. App. 3d 415, 406 N.E.2d 555; People v. Nichols (1978), 60 Ill. App. 3d 919, 377 N.E.2d 815).

The Lawson standard relied upon by the State, however, does not apply under the facts of this case as the sixth amendment right to a speedy trial is applicable to undue delays occurring after defendant is first accused of crime by a personal restraint upon him through arrest or by the filing of an indictment, information or complaint charging him with the offense. (Dillingham v. United States (1975), 423 U.S. 64, 65, 46 L. Ed. 2d 205, 207, 96 S. Ct. 303, 304; People v. Love (1968), 39 Ill. 2d 436, 442, 235 N.E.2d 819, 823; People v. Woodruff (1980), 90 Ill. App. 3d 236, 239, 412 N.E.2d 1171, 1174.) Defendant was arrested on November 30, 1980, and charged initially by complaints filed two days later. The delay to which the trial judge directed his attention was the period between defendant’s preliminary hearing on December 19, 1980, and his arraignment date of January 26, 1981. This period presented a possible constitutional speedy trial question rather than an issue of pre-accusation delay governed by Lawson.

It is undisputed that none of the 10 grounds of dismissal specified in section 114 — 1 is applicable to the facts of this case. Furthermore, defendant did not allege any due process violation in the trial court or present a motion to dismiss based upon an alleged violation of his right to due process. It is also apparent that a constitutional speedy trial argument was not presented by defendant to the trial court. It appears to be first asserted on appeal in an effort to justify the order dismissing the complaints below. The time lapse between defendant’s arrest and dismissal of the charges was slightly over one month, and it was occasioned by a prudent decision of the State’s Attorney to withhold filing of the informations until he could verify the evidence against defendant. Moreover, defendant has neither alleged nor does the record establish that he

suffered prejudice as a result of the State’s Attorney’s failure to comply with the court’s order to promptly file the informations. See Barker v. Wingo (1972), 407 U.S. 514, 530, 33 L. Ed. 2d 101, 117, 92 S. Ct. 2182, 2192; People v. Bazzell (1977), 68 Ill. 2d 177, 182, 369 N.E.2d 48, 50.

We conclude that as defendant’s right to a prompt trial was not infringed under the circumstances of this case, it will not support dismissal of these complaints.

We turn finally to the local administrative rule which purports to authorize the trial court to dismiss criminal charges for failure of the State’s Attorney to file informations when directed to do so by the court.

Circuit courts are empowered by Supreme Court Rule 21(a) (73 Ill. 2d R.21(a)) to adopt rules governing criminal cases which are consistent with the supreme court rules and statutes of this State. The circuit court also may make “rules for the orderly disposition of business before them as may be deemed expedient, consistent with law.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 37, par. 72.28.) Any rule promulgated pursuant to these authorities, however, may not abrogate, limit or modify existing law. (People ex rel. Carey v. Power (1975), 59 Ill. 2d 569, 574, 322 N.E.2d 476, 480; see also People v. Lindsay (1952), 412 Ill. 472, 107 N.E.2d 614; People ex rel. Chicago Bar Association v. Feinberg (1932), 348 Ill. 549, 181, N.E. 437.) The administrative order relied upon by the trial court insofar as it purports to grant authority to dismiss a criminal case on these grounds modifies existing law and is invalid.

We conclude no violation of the statutory provisions permitting dismissal of criminal charges has occurred in this case, no clear denial of defendant’s right to due process was established in the proceedings in the trial court, and the local administrative rule provided no authority for the order of dismissal.

Accordingly, the order dismissing those charges which were the subject of this appeal is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

REINHARD and VAN DEUSEN, JJ., concur.


author: JUSTICE MILLS

text:
      In re QUINCE COLLINS.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. QUINCE COLLINS, Respondent-Appellant.)
    Fourth District
    No. 17125
    Opinion filed November 25, 1981.

      Linda Susan Ganski, of Illinois Guardianship & Advocacy Commission, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

The mandate of State mental health legislation is unequivocal: in an involuntary admission, an examining physician or psychiatrist must first personally inform the patient of his rights or that examiner will not be permitted to testify as to the patient’s admissions at any subsequent court hearing.

The intent and direction of the legislature here is manifest — yet such command has clearly been flouted in this case.

We reverse and remand.

Respondent appeals his involuntary admission to the Department of Mental Health. The premier issue before this court is whether the order finding him subject to involuntary admission must be reversed because the trial court failed to suppress testimony of the examining physician and psychiatrist for their failure to comply with the statutory requirement that they personally inform respondent of his right to remain silent and that any statements he made could be disclosed at a court hearing on the issue of involuntary admission.'

On February 27, 1981, a petition for involuntary admission was filed in the Sangamon County circuit court. Prior to trial, respondent moved to suppress the testimony of the examining physicians on the grounds that they had not informed him of his rights prior to the examination. The trial court reserved ruling on the motion pending testimony on the subject.

Randall von Lisky, downstate coordinator of the Governor’s Office of Interagency Cooperation, testified that on February 20,1981, respondent appeared in his office asking to see the governor. After being advised by a receptionist that respondent appeared dangerous, von Lisky called for additional security.

Respondent appeared to be nervous, upset, and intense. Respondent told von Lisky that in 1965 his stepfather had murdered his grandmother. According to his grandmother’s will, respondent was to receive $250,000 which was held in trust until he came of age. When respondent was 21 years old and asked for the money, his stepfather denied its existence. Respondent could no longer remember the name of the bank or the account number in which the funds were placed. Because of his lack of money, respondent was forced to commit an armed robbery for which he was sent to prison. Upon his release from prison he was placed in an alternative prison program at Northeastern University where he was subjected to mind experiments involving drugs.

Respondent heard voices which told him to rape and murder people. He was frustrated by the governor’s lack of response to his repeated cries for investigation. Respondent then told von Lisky that he was going to remain in Springfield until he saw the governor and that if nobody listened to him he would obtain a gun and “take care’’ of unnamed officials. Respondent also told von Lisky that there was a little man with a television camera in respondent’s eye who was filming the interview.

Respondent agreed to talk to medical personnel, and the governor’s security staff transported him to McFarland Zone Center. Respondent’s cooperation was voluntary and no physical restraints were used.

Aziz Salama, a physician and psychiatrist at the Zone Center, testified that he was present during an examination of the respondent on February 20, 1981. A certificate signed by Dr. Salama also indicates that he conducted a second examination on February 23. Prior to the initial intake examination, Salama ascertained that a nurse who admitted respondent to the Zone Center informed him of his rights. Salama was not present when these rights were read to respondent. Salama testified that respondent appeared to understand his rights and was willing to talk to personnel. Respondent did not ask for a lawyer.

Dr. Williams conducted the examination. Respondent retold the story about his grandmother and his inheritance. In addition, he stated that while in the army, drugs were used on him. As a result respondent now had “bionic” properties. The voices in his head also told him to kill white children and white people.

Based on his observations and clinical knowledge, Dr. Salama diagnosed respondent as paranoid schizophrenic. He concluded that respondent was in need of hospitalization, was mentally ill, and that because of the illness respondent could reasonably be expected to inflict serious damage either upon himself or someone else without treatment. Salama also stated that he had considered other forms of treatment and found them to be inappropriate.

Upon questioning by the court, Salama acknowledged that though his signature appeared on the certificate indicating that Salama had personally informed respondent of his rights, Salama admitted that he did not personally advise respondent of these rights. The only thing Salama told respondent at the first interview was that respondent did not have to talk to the doctors. There was no testimony with regard to whether Salama informed respondent of any rights at the subsequent interview on February 23.

Dr. Nelson Williams, a second-year psychiatric resident, testified that he examined the respondent with Dr. Salama on February 20, 1981. Williams did not read respondent his rights because he ascertained that the admitting nurse had read the rights to respondent. It was Williams’ opinion that respondent understood his rights, did not ask for an attorney, and voluntarily spoke with the doctors. Williams admitted that although his signature also appeared on the certificate acknowledging that he had personally informed respondent of his rights, Williams nevertheless had never done so.

In addition to the other delusions previously related by the witnesses, respondent told Williams that the governor had conspired with Northeastern University officials and his family to bilk him out of his inheritance through a scheme involving government sponsored drug experiments. The experiments caused respondent to hear voices which told him to commit violent acts, vandalize property of white people, and kidnap and murder white children. Williams’ diagnostic opinion of respondent’s condition and the need for hospitalization was identical to that of Dr. Salama.

Respondent was called under section 60 of the Civil Practice Act (111. Rev. Stat. 1979, ch. 110, par. 60). Without recounting all of his testimony, suffice it to say that he corroborated in some detail the incidents previously testified to by von Lisky and the doctors, together with additional observations consistent with the tenor of his previous statements. At the close of the testimony, the trial court denied the motion to suppress the doctors’ testimony and ordered respondent hospitalized in the Department of Mental Health and Developmental Disabilities. Notice of appeal was timely filed.

The Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 91%, par. 3 — 208) provides:

“Whenever a petition has been executed pursuant to Section 3 — 507, 3 — 601 or 3 — 701, and prior to this examination for the purpose of certification of a person 12 or over, the person conducting this examination shall inform the person being examined in a simple comprehensible manner of the purpose of the examination; that he does not have to talk to the examiner; and that any statements he makes may be disclosed at a court hearing on the issue of whether he is subject to involuntary admission. If the person being examined has not been so informed, the examiner shall not be permitted to testify at any subsequent court hearing concerning the respondent’s admission.” (Emphasis added.)

Section 3 — 807 of the Code which concerns the testimony of the psychiatrist or the clinical psychologist also provides:

“No respondent may be found subject to involuntary admission unless at least one psychiatrist or clinical psychologist who has examined him testifies in person at the hearing. The respondent may waive the requirement of such testimony subject to the approval of the court.” Ill. Rev. Stat. 1979, ch. 91%, par. 3 — 807.

The aforementioned statutory directives, which find no counterpart in the Mental Health Code of 1967 (Ill. Rev. Stat. 1977, ch. 911/2, par. 1—1 et seq.), became effective January 1,1979. Under the prior Mental Health Code of 1967, a person admitted to an institution for an examination under the Act was only entitled to a written statement explaining his right to a hearing and describing the patient’s rights at such a hearing. (Ill. Rev. Stat. 1977, ch. 911/2, par. 3—8.) The drafters of the present Mental Health and Developmental Disabilities Code, however, felt that greater protections were needed, and section 3—208 was included for the express purpose of “extend [ing] the privilege against self-incrimination to persons 12 or over undergoing certification examinations.” Governor’s Commission for the Revision of the Mental Health Code of Illinois, Report, at 38 (1976) (hereinafter Commission).

Notwithstanding the drafter’s intended purpose, the Commission also noted in its comments that the new section “expands Illinois case law, which does not now give the individuals such a privilege.” (Governor’s Commission for Revision of the Mental Health Code of Illinois, Report, at 38 (1976).) Under prior case law, respondent did not have the right to refuse to cooperate with psychiatrists in an examination or to testify at a hearing under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). (People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455; People ex rel. Keith v. Keith (1967), 38 Ill. 2d 405, 231 N.E.2d 387.) In those two cases the supreme court held that respondents were required to make disclosures in examinations or to give testimony which revealed their mental condition. The privilege, the supreme court ruled, extended only to matters which implicated individuals in criminal involvement. The Commission’s comments to the present statutory provision appear, however, to extend the “privilege” beyond statements involving criminal conduct to encompass any statements of any nature concerning mental condition as well. In short, a respondent can completely refuse to speak with the examining physician or psychiatrist.

With this short legislative background, irrespective of its wisdom (to which we will return), we now examine the case at hand. The statutory language is plain. It requires the examining physicians to personally inform the respondent of his rights to remain silent and that any statements he makes may be used in a hearing to determine whether he should be subject to involuntary admission. It is difficult, if not impossible, to understand how so simple a directive can be ignored by mental health personnel!

The record is clear that both doctors were examining physicians but that neither personally informed respondent of his rights — even though they affixed their signatures to certificates verifying that they did, under penalty of perjury (Ill. Rev. Stat. 1979, ch. 911/2, par. 3 — 203). We hold that the statutory directive admits of only one interpretation: the examining physician must personally inform respondent of his rights.

Just as the initial statutory requirement is clear, so is the result which necessarily obtains if the statute is violated. If the doctors do not personally inform respondent of his rights, their testimony, in its entirety, is barred. If there is no testimony of a psychiatrist or psychologist who has examined the respondent before the court, a respondent may not be found subject to involuntary admission. That is the bottom line. In re Rizer (1980), 87 Ill. App. 3d 795, 409 N.E.2d 383.

Despite these flagrant shortcomings, the State argues in the first instance that respondent has waived the issue by failing to renew his motion to suppress the doctors’ testimony after evidence was heard on the question of the extent to which they personally informed respondent of his rights. We disagree. Respondent filed an in limine motion on exactly that point. Prior to the hearing, however, there was no evidence from which the court could determine whether the allegations of the motion were true. Since this was a bench hearing, it was appropriate for the trial court to take testimony on the matter during the course of the hearing as opposed to requiring proof prior to the hearing. Irrespective of the fact that respondent could have renewed his objection to the testimony of the doctors at the time it was given in open court, the issue had been reserved by the trial court and was therefore properly before the court when it refused to suppress the testimony. To require respondent to make a continuing objection under the circumstances would be a superfluous act, especially where all of the parties to the proceeding, including the trial court, were aware that this was the only substantial basis upon which respondent was relying to avoid commitment.

We also reject the State’s contention that respondent has waived the issue because respondent failed to obtain a ruling by the trial court with regard to Dr. Williams’ testimony. Though it is true that in its ruling, the trial court makes reference only to the testimony of Dr. Salama, it is without doubt that the trial court’s ruling encompassed the testimony of both doctors since their testimony was substantially identical, both to the content of defendant’s statements and in the extent to which they did not inform respondent of his rights.

We must also reject the State’s contention that Dr. Salama’s vague statement to the respondent, that he did not have to talk to the doctors or that the admitting nurse’s recitation of respondent’s rights to him, constituted substantial compliance with the statute. The statutory language is plain. It does not suggest, explicitly or otherwise, that the doctors may only partially comply with their statutory duty or delegate that duty to another. It is just as obvious that compliance with the statutory directives would neither work undue hardship upon the doctors nor subvert, or otherwise protract, the process by which diagnoses can be reached which ultimately result in a commitment.

The loss of freedom following an involuntary commitment proceeding is neither an insignificant matter nor is it an isolated occurrence. During fiscal year 1981, 7,464 petitions for involuntary admission were granted by trial courts throughout the State.

Though not raised by respondent, we also note that the record is devoid of any indication that mental health personnel complied with at least one other provision of the Code. Section 3 — 810 provides:

“Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” (Ill. Rev. Stat. 1979, ch. 911/2, par. 3 — 810.)

The aforementioned statute requires that the trial court consider this report prior to any disposition. Nowhere in the record is there any evidence that such a report was ever prepared or considered by the trial court. Though this issue is not raised by respondent, and is not necessary to the disposition of this case, it is but one further indication that certain staff within the Department of Mental Health are performing their duties with either callous or blithe disregard for the rules. Such a situation cannot be condoned.

The parties also take vastly divergent positions with regard to the nature of the warnings required by the statute. Respondent argues that mental health warnings should be equated with “Miranda” warnings. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) While we disagree with respondent’s position (In re Ottolini (1979), 73 Ill. App. 3d 971, 392 N.E.2d 736), this issue ignores a more fundamental question. Do the statutory requirements effectively assure the legislative objective?

As noted earlier, the drafters of the new code concluded that section 3 — 208 significantly expands the ability of respondents to avoid examination by mental health personnel. While it may well be said, in the criminal context, that the requirement of warnings affords greater protections to an actual or potential defendant, that same conclusion is neither automatic nor appropriate in the context of mental health proceedings for involuntary commitment.

Mental health proceedings are vastly different from proceedings under the Criminal Code. They are for the benefit of both the public and the patient. In In re Stephenson (1977), 67 Ill. 2d 544, 554, 367 N.E.2d 1273, 1276-77, our supreme Oourt stated that the Mental Health Code of 1967:

0 ° represents a serious attempt to provide beneficial treatment and care for the mentally ill with the minimum ostracism and confinement consistent with protection of the public. Our free society’s interest in prospectively protecting itself from dangerous or harmful conduct, standing alone, suffices to justify only minimal infringements upon an individual’s personal liberty. A high value has also been placed, however, on our society’s obligation to protect and care for those of its members unable to protect or care for themselves. It is important to a concerned and humane society that the margin of error be held to a minimum in denying such protection and care. Moreover, the individual involved, as well as society, has a strong interest in getting needed care or treatment which will enable him to function normally ° # ®.”

The court in Ottolini also quoted with approval language from People v. Sansone (1974), 18 Ill. App. 3d 315, 322, 309 N.E.2d 733, 738, which stated:

“Inherent in civil commitment proceedings is the promise of the State, under a parens patriae theory, that the person who is being deprived of his liberty will receive treatment. * * * The procedures set forth in the Illinois Mental Health Code are a legislative recognition that civil commitment is a deprivation of personal liberty, and their purpose is to provide adequate safeguards against unreasonable detention and commitment.”

Given these considerations, psychiatric examinations must be distinguished from police interrogations. Examinations by qualified physicians, albeit employed by the State, are not inherently prejudicial and ordinarily do not pose a great potential for abuse. Medical diagnostic procedures and conferences are purely investigative and fact finding. They do not adjudicate, indict, punish, or impose legal sanctions. The value of the process would be severely undermined by anything which inhibits the free exchange of views. Ottolini.

While we are not unmindful of the fundamental liberty rights at issue, and that certain due process protections must be afforded so that these fundamental rights are not trampled in the rush to protect society at the expense of the individual, the question remains whether informing an individual of his right to remain silent is an appropriate way to assure protection of those rights.

By definition, a person involuntarily committed lacks the capacity to exercise his own volition in favor of or against commitment. That being true, it follows that advising a person, who fits this definition, of his rights would be a useless act because the individual who is not in command of his faculties could certainly not understand or appreciate the nature of his surroundings or the processes which have been invoked to accord him treatment. In short, such a person could not make a rational or voluntary (as that word is understood in its criminal sense) decision as to whether he should talk to the attending physicians.

Three illustrative situations merit special attention:

A. If the individual is mentally unstable and does not understand his rights as they are presented to him, advising him of those rights, in the first instance, is meaningless.

B. In the second example, if the individual is mentally ill and understands his rights and voluntarily talks to doctors, one must conclude that he understands he needs help and that it is in his best interest to talk. Hence, he would have the capacity to appreciate his situation and presumably would voluntarily commit himself rather than force the State to proceed against him on an involuntary petition.

C. Finally, there is the situation in which the mentally ill person “understands” his rights and still refuses to talk to physicians. If he can avoid making any statements to the doctor (contra, People v. English (1964), 31 Ill. 2d 301, 201 N.E.2d 455), then the attending physicians will have to look solely to outside sources or rely on nonverbal conduct of the respondent to arrive at a diagnosis, thereby making the diagnostic process much more difficult. People v. Sharkey (1978), 60 Ill. App. 3d 257, 376 N.E.2d 464.

The common denominator in each of these examples is that the warnings which must accompany an examination are totally ineffective to accomplish the purpose which the drafters intended. Moreover, irrespective of these warnings, a respondent’s right against self-incrimination as to statements which pertain solely to criminal matters is already guaranteed by section 2 — 100 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 911/2, par. 2—100), which states that no recipient of services shall be deprived of any rights, benefits, or privileges guaranteed by law or the constitutions of this State or the United States, and by prior case law. English; Keith.

In addition, if the drafters’ interpretation is correct, serious questions are raised as to the efficacy of the practice of calling respondents under section 60 of the Civil Practice Act. It is patently contradictory to conclude that a respondent can totally avoid examination by the physician and yet be hailed into court to testify, presumably in some detail, as to aspects of his mental condition while the doctors are sitting in the gallery forming diagnostic conclusions as to the state of respondent’s mental health. If he can still be forced to testify, his prior decision not to speak is readily circumvented since expert testimony concerning the state of respondent’s health may certainly be based upon facts introduced in evidence at a trial or hearing. Skalon v. Manning, Maxwell & Moore, Inc. (1970), 127 Ill. App. 2d 145, 262 N.E.2d 146.

A final point of concern is the Commission’s statement in its comments to section 3 — 208 that it should be “stressed that this section will not nullify the legality of a certificate executed by an examiner who has not given the required warning, [it] only prevents his testifying in court.” Governor’s Commission for Revision of the Mental Health Code of Illinois, Report, at 38 (1976).) We fail to see how this conclusion, even if true, has any substantive effect under the statutory scheme as set forth in the present Code. This case represents an object lesson in that regard.

It is undisputed by the parties that there was more than sufficient evidence from which to conclude that respondent was mentally ill and in need of hospitalization and treatment. Yet, the failure of the doctors to personally inform respondent of his rights absolutely precludes not only their testimony, but respondent’s involuntary admission, since the testimony of a doctor is deemed, under the Code, to be essential. Irrespective of the continuing “validity” of the certificates, they are not substantive evidence and may not be the sole basis upon which a respondent may be committed to the department despite the fact that the certificates accurately describe respondent’s mental condition which requires commitment for protection of both respondent and the public. See In re Evans (1980), 86 Ill. App. 3d 263, 408 N.E.2d 33.

While we have severe reservations as to the efficacy of the statutory scheme provided in the present Mental Health and Developmental Disabilities Code, we nevertheless conclude that the conduct of mental health personnel in this case fell below any threshold level of compliance with the clear and unambiguous requirements of the statute.

Accordingly, the judgment of the Sangamon County circuit court is reversed and remanded.

Reversed and remanded.

GREEN and WEBBER, JJ., concur.

       This figure represents the number of petitions granted, not the number of people actually hospitalized. Some duplication is represented in the figure because some individuals are released and subsequently recommitted after exhibiting sufficiently aberrant characteristics to warrant rehospitalization. Division of Information Services, Department of Mental Health and Developmental Disabilities (1981).


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AL EUGENE BURTON, Defendant-Appellant.
    Fourth District
    No. 17207
    Opinion filed November 25, 1981.

      Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Aggravated incest with both stepdaughters — starting at age five!

Can the wife testify to the stepfather’s admissions of his acts against the two girls?

Yes — no privileged communication where the interests of the children are involved.

The jury verdict of guilty and the sentence of 6 years are affirmed.

Burton resided with his wife and their sons, T’Challa and A-Jay. Also living in the home were his wife’s two daughters by a prior marriage. Burton was convicted of committing aggravated incest with the stepdaughters, who were ages eight and nine at the time of trial in March 1981.

The nine-year-old testified that on the evening before the family left for its vacation in August 1980, her mother went to the laundromat and left her, defendant stepfather, and T’Challa at home. As she was trying on a new swimsuit that had been purchased for the vacation, defendant came into her room. After removing the swimsuit, she began to put on her pajamas, but defendant told her not to do so. He ordered T’Challa to go outside and went to another room to obtain a towel. He then proceeded to lie on top of her and have sexual intercourse with her. The girl stated that when defendant got up, he used the towel to wipe “yellow stuff” from the bed and from her vagina.

The girl also testified that this type of occurrence had taken place before and had been going on for four or five years. She was unable to estimate the number of times defendant had had intercourse with her during that period.

The eight-year-old testified that about a week before the family’s August vacation, she, defendant, and A-Jay were at home while her mother was doing laundry. During the evening, defendant got on top of her and “put his penis in [her] vagina in the red part.” After he got up, she went to the bathroom and defendant wiped her off with a wet towel.

To the prosecutor’s question whether defendant had had intercourse with her before, the eight-year-old said, “I don’t remember it, but it happened before.” She did not know how long ago defendant had begun such activity with her.

Defendant’s wife testified that she and her four children are now living with her mother in Pennsylvania. She stated that the family’s vacation had been spent in South Bend, Indiana, where they visited their former pastor and his family, and during the vacation the girls told their mother about defendant’s sexual activity with them. When she asked defendant about it, he at first denied the accusations and “wanted to whip them.” The mother, however, insisted that they talk to the girls first. When the girls repeated the same allegations in the presence of defendant and their mother, defendant asked his wife to go with him to another room. He there admitted to her that the girls were telling the truth.

William Patrick Hartshorn, of the Vermilion County sheriff’s office, testified that he had requested defendant to come in for questioning concerning an allegation of aggravated incest. Defendant told Hartshorn that in 1977 he had begun lying in bed with the nine-year-old (then age five), holding and fondling her and rubbing her legs with his hands. In early 1978 he began fondling her genital area and inserting his finger in her vagina, and in late 1978 he began to have sexual intercourse with her.

In 1979 he began having intercourse with the eight-year-old. Defendant estimated that during 1979 and the first part of 1980, he had intercourse with the girls 10 to 12 times. In particular he described an incident which occurred in July 1980, while his wife was at the laundromat, leaving him at home with the eight-year-old. He had sexual intercourse with her by having her get on top of him and then inserting his penis in her vagina. Following his climax, he took the girl to the bathroom and cleaned her up. He told the girl he had done wrong and encouraged her to tell her mother so that he would be stopped from doing it in the future.

Testimony of Officer James Gooden, who was present during the interview with defendant, largely corroborated Hartshorn’s testimony. He added that defendant had attempted to have intercourse with the nine-year-old in late 1977 but had been unable to penetrate her vagina.

The jury found defendant guilty on two counts of aggravated incest under section 11 — 10 of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 11 — 10), which includes — within the definition of that crime— sexual intercourse between a man and his stepdaughter who is under age 18.

I

Defendant first contends that the trial court erred in allowing his wife to testify about his admission to her that he had had sexual intercourse with his stepdaughters. The State, on the other hand, contends that this testimony fell within one of the exceptions to the marital privilege. The relevant statute is section 6 of division XIII of “an Act to revise the law in relation to criminal jurisprudence,” regarding witnesses (Ill. Rev. Stat. 1979, ch. 38, par. 155—1), which provides in part:

“In all criminal cases, husband and wife may testify for or against each other: provided, that neither may testify as to any communication or admission made by either of them to the other or as to any conversation between them during marriage, except in cases where either is charged with an offense against the person or property of the other, or in case of spouse abandonment, or where the interests of their child or children are directly involved, or as to matters in which either has acted as agent of the other.” (Emphasis added.)

The parties agree that the resolution of this issue turns upon whether defendant’s trial for aggravated incest can be classified as a case in which the interests of the children of defendant and his wife are directly involved. Initially, we observe that this exception to the marital privilege should apply even where, as here, “children” of a couple are in fact the stepchildren of one spouse. Since the exception was obviously intended to benefit and protect children within a family relationship, it would be a violation of that legislative intention to make it applicable only where natural children are involved. State v. White (1962), 116 Ohio App. 522, 189 N.E.2d 160. See also State v. Lounsbery (1968), 74 Wash. 2d 659, 445 P.2d 1017.

Apparently no case has yet determined what our legislature meant in referring to the “interests” of a married couple’s children. Defendant relies upon People v. Bartell (1944), 386 Ill. 483, 54 N.E.2d 700, cert. denied (1945), 324 U.S. 842, 89 L. Ed. 1404, 65 S. Ct. 588, but that case is not particularly helpful to him. Bartell was tried for the murder of his 21-month-old daughter. His wife was called as a court witness and testified to certain conversations she had had with him about the paternity of the child. The statute concerning the marital privilege in criminal cases was identical, in all relevant parts, to the present paragraph 155 — 1. The Bartell court concluded, based on the statute, that the trial court should have excluded this testimony.

That court did not, however, specifically address the question whether trial for the murder of a child is a case in which that child’s interests are directly involved. In the case at bar, the State has specifically invoked that exception to the marital privilege, and the trial court relied upon it in admitting defendant’s wife’s testimony.

Is an aggravated incest prosecution a case in which a child’s interests are directly involved? To ask the question is to answer it. The Committee Comments to our aggravated incest statute indicate that the purpose of that provision was to prescribe criminal penalties for “those situations where parental authority may be abused in taking advantage of a young and dependent child.” (Ill. Ann. Stat., ch. 38, par. 11—10, Committee Comments, at 311 (Smith-Hurd 1979).) Thus, that paragraph was intended as a means of protecting children from abuse. Defendant’s stepdaughters clearly had an interest in being free from his sexual assaults, and his prosecution for aggravated incest was a means of insuring that they would not be subjected to further mistreatment from him. Consequently, the children’s interests were directly involved in this case.

Even assuming that the Bartell court considered the exception to the marital privilege that we address here, we do not regard our decision as inconsistent with that case. The child/victim in Bartell was dead. As such, any interest she had in seeing defendant tried for a crime died with her. Had the child lived, and had defendant been prosecuted for battery or attempt murder, the case would have been analogous to the one at bar. As it stands, Bartell is readily distinguishable.

We also note that other courts construing marital privilege statutes have shown paramount concern for the public policy of protecting minors from physical abuse. These courts, faced with statutes that excepted from the marital privilege testimony of a spowse/victim, have extended that exception to include cases in which the child of defendant and the spouse is a victim. (State v. Ulin (1976), 113 Ariz. 141, 548 P.2d 19; People v. Allman (1973), 41 App. Div. 2d 325, 342 N.Y.S. 2d 896; Adams v. State (Tenn. Crim. App. 1978), 563 S.W.2d 804.) Thus, even if our legislature had not provided for an exception to the marital privilege in cases in which the “interests” of children of a couple are directly involved, there would be strong authority for recognizing an exception where the children are victims of a crime perpetrated by one of the parents.

We therefore conclude that the trial court was correct in allowing defendant’s wife to testify concerning conversations between her and defendant while they were married. (Even if the trial court had been in error in allowing this testimony into evidence, the error would have been harmless. The testimony of the girls and of Officers Hartshorn and Gooden overwhelmingly established defendant’s guilt.)

II

At the sentencing hearing, the trial judge observed that the two victims were “very small, very frightened, very insecure and, obviously, damaged children * * He found that defendant’s conduct had “obviously injected severe psychological trauma on the victims, a serious psychological trauma which may well be carried with them throughout their lives.” This finding rested solely upon the judge’s observation of the victims at trial; no evidence in aggravation was presented at the sentencing hearing concerning the effect of the offenses on the victims.

There can be no doubt that the effect of a crime upon the victim is an aggravating factor which a sentencing court may properly consider. Indeed, the legislature has required that such information be included in presentence reports. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—2(a)(3).) In addition, section 5 — 5—3.2(a)(1) of the Unified Code of Corrections (111. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(1)) lists as an aggravating factor that “defendant’s conduct caused or threatened serious harm.” Courts have said that harm to a victim is properly considered under this provision. People v. Robinson (1981), 92 Ill. App. 3d 972, 416 N.E.2d 793.

Defendant contends, however, that the trial court erred in considering psychological trauma to the victims as an aggravating factor since there was no evidence of it in the record. We reject defendant’s implication that a trial judge, at the time of sentencing, is to block from his mind all that he saw and heard at the time of trial. In fact, it is proper for a trial judge to search for all factors relevant to the proper sentence to be given to a defendant, provided that the information he considers is accurate and reliable. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) As a human being experienced in seeing people of all ages testify in criminal trials, Judge Robinson acted quite properly in concluding that the victims’ behavior in court was the result of psychological trauma, not just nervousness as defendant suggests. A trial judge is in the best position to evaluate the various circumstances affecting sentencing. (People v. Cozzi (1981), 93 Ill. App. 3d 94, 416 N.E.2d 1192.) Although the victims’ demeanor and behavior were not, as such, spelled out in the black and white record, they were within the ken of the trial judge, both during questioning to determine their competency to testify and during the trial itself.

The contention that psychological trauma to a victim could not be considered as an aggravating factor without evidence of it in the record was recently rejected in People v. Lloyd (1981), 92 Ill. App. 3d 990, 416 N.E.2d 371. Defendant had pled guilty to indecent liberties with a three-year-old girl. The factual basis indicated that while he was babysitting with the child, he attempted sexual intercourse with her. Being unsuccessful, he licked her vagina and climaxed on her body. The State produced no evidence in aggravation at the sentencing hearing, but the trial court observed that the defendant had inflicted or attempted to inflict serious injury to another — though not bodily injury.

Defendant argued that the sentencing court had abused its discretion in considering harm to the victim where the existence or extent of harm was not shown. The Lloyd court rejected that argument, concluding that the record raised a reasonable inference that the young victim would suffer emotional injury as a result of defendant’s actions. See also People v. Gossage (1980), 80 Ill. App. 3d 39, 399 N.E.2d 337; People v. Matthews (1979), 69 Ill. App. 3d 65, 387 N.E.2d 10.

Under the authority of Lloyd, Judge Robinson would have been correct in considering psychological injury to defendant’s stepdaughters even if they had not testified. Obviously, he was within his discretion in considering this factor when he had been able to see and hear them. We agree with the Lloyd court that a sentencing court may infer that a child/ victim of sex abuse has sustained psychological damage.

HI

Defendant also argues that his sentence of 6 years (1 year less than the maximum) was an abuse of discretion. He points out that his presentence report shows that he has a high school education, plus one year of junior college, and that he has been accepted at Oakwood College, Huntsville, Alabama, to begin study for the ministry. The report also shows that he earns $8.95 an hour in his job with the Illinois Central Gulf Railroad. Two ministers of the Seventh Day Adventist Church testified concerning defendant’s religious conviction and sincerity in his desire to improve himself.

A sentence will be disturbed on appeal only if it is the product of an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The circumstances of this case clearly support this sentence. The record shows that defendant had repeatedly made sexual assaults upon his stepdaughters, beginning as early as age five. The trauma they have sustained may well accompany them into adulthood and almost certainly will color the rest of their lives. We agree with the court that more than the minimum sentence is needed in this kind of case to deter others from engaging in such despicable, atrocious and damaging conduct.

The sentence was proper.

Affirmed.

GREEN and LONDRIGAN, JJ., concur.