author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NEAL MARTIN, Defendant-Appellant.
    Third District
    No. 3—83—0537
    Opinion filed May 31, 1984.
    Michael D. Ettinger, of Oak Lawn, and John O’Toole, of Chicago, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Neal Martin, was found guilty following a jury trial in the circuit court of Will County of the unlawful delivery of a controlled substance, cocaine. The defendant appeals contending (1) that the manifest weight of the evidence established the defense of entrapment as a matter of law; (2) that the jury was not properly instructed; (3) that the defendant’s prior convictions were improperly admitted into evidence for purposes of impeachment; (4) the prosecutor’s closing argument was prejudicial and deprived the defendant of a fair trial.

The evidence indicated that the 21-year-old defendant worked for his parents in the family jewelry business and after work would go to public lounges and pass out his business cards and sell small pieces of jewelry.

In April of 1979, the defendant met an individual who came to be known as Crazy John Nello. Nello asked him if he had any cocaine and if not, if he wanted any. The defendant replied that he didn’t have any and didn’t want any. The defendant said that he had never used cocaine.

Nello told the defendant that he could help him sell a lot of jewelry, which he did, and they exchanged phone numbers and Nello called him daily.

The defendant began attending parties at Nello’s house which were attended by a number of girls and where everyone was using cocaine except the defendant. Finally, in late May and early June, 1979, the defendant began to give in to Nello’s pressure to use drugs and began to use the drugs which Nello supplied without charge. By the end of June, Nello was pressuring the defendant to deliver cocaine for him but the defendant refused.

By the end of June the defendant had stopped working and his parents sent him to New Mexico in the hopes he would stop using drugs. While out from under Nello’s influence, the defendant stopped using drugs.

During July and August, 1979, while the defendant was recovering in New Mexico, Nello called his parents at least 30 times.

When the defendant returned home, he fell under the influence of Nello again and became a user of narcotics.

The defendant’s testimony was corroborated by members of his family, including his mother, sister and brother-in-law.

The defendant lost interest in his family’s business, wouldn’t get up for work and appeared to be constantly under the influence of drugs.

By September of 1979, the defendant had finally agreed to deliver drugs for Nello and was introduced by Nello to two undercover agents for the Department of Law Enforcement. Nello told the defendant that he owed the two men a great deal of money and he would not get paid if they knew it was Nello’s cocaine. The two men were Carlos Hevia and John Beck, undercover narcotics officers for the Illinois Department of Law Enforcement.

On September 4, 1979, the defendant was high on drugs and Nello had told him that since Nello had sent him a number of jewelry customers, he owed Nello a favor. Nello and the defendant entered the Old Town Tap, a local tavern, and met with Hevia and Beck. The defendant recognized that Hevia was wearing jewelry from the family business and that Nello had claimed Hevia was interested in purchasing more jewelry. The defendant showed Hevia certain chains and charms he had with him but could not make a sale. Either Hevia or Beck asked the defendant if he had the cocaine and the defendant handed them a package and collected $560 which he promptly turned over to Nello as soon as they left the bar. Hevia testified that their informant was paid $20 for setting up the September 4 transaction.

On September 5 the defendant received a call from Hevia at the jewelry store. Hevia wanted to buy more cocaine. The defendant replied that he was not in the drug business but the jewelry business. The defendant tried to convince Hevia to buy some more jewelry, but all Hevia was interested in was cocaine. Hevia continued to call the jewelry store on a daily basis but the defendant refused every call except one.

On September 13 the defendant went to a party at Nello’s residence and was told that it was necessary that he do one more favor for Nello. The defendant refused. Nello said that he was in trouble and promised that this would be the last time.

On September 14 the defendant called Hevia and asked him to meet him at Denny’s Restaurant. Nello had given him a package of cocaine and the defendant was told to collect $2,775. The defendant delivered the package to the agents and collected the money for Nello which was given to him at his home. Nello received $175 from the agents for setting up the September 14 transaction.

On September 15 Hevia called the defendant for more cocaine. The defendant refused. Hevia continued to call him but the defendant refused to see him again.

The defendant was later arrested and charged with the unlawful delivery of a controlled substance as a result of the September 14 transaction alone.

The entrapment defense involves two primary factors, i.e., (1) whether the defendant was influenced or induced to commit the offense by governmental officials or someone working with the government; (2) whether the defendant was predisposed to commit the offense involved. People v. Myers (1980), 92 Ill. App. 3d 229, 415 N.E.2d 1108; People v. Natoli (1979), 70 Ill. App. 3d 131, 387 N.E.2d 1096; People v. Spahr (1978), 56 Ill. App. 3d 434, 371 N.E.2d 1261; People v. Hall (1962), 25 Ill. 2d 297, 185 N.E.2d 143.

While the People are correct that there is no rule establishing entrapment as a matter of law solely because the government provided the controlled substance which the accused was charged with delivering (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812), it is persuasive evidence that if the substance was supplied by the government or its paid informer and the State fails to call the informer to rebut the defendant’s testimony that the informant supplied the drugs to the defendant, a conviction for selling the drugs may not be sustained (People v. Dillard (1979), 68 Ill. App. 3d 897, 386 N.E.2d 920; People v. Spahr (1978), 56 Ill. App. 3d 434, 371 N.E.2d 1261).

We also subscribe to the rule of law that an appellate court must not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and that a reversal of the defendant’s conviction should not result unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Dempsey (1980), 82 Ill. App. 3d 699, 402 N.E.2d 924.

We believe that despite the fact that every appellate decision should try to adhere to the foregoing principle of law whenever possible, there is an occasional instance where the evidence is simply so wanting that an affirmance is impossible. This case falls into such a category.

Our review of the evidence reveals that but for the unrelenting coercion of the paid informant in the case at bar, who did not come forward to rebut the fact that he was not only the source of the narcotics but the prime mover in their distribution, the defendant would never have been predisposed to commit the offense in question.

Based upon the foregoing evidence, we cannot say beyond a reasonable doubt that the idea for the crime charged originated with the defendant. People v. Dempsey (1980), 82 Ill. App. 3d 699, 402 N.E.2d 924.

For these reasons, it is unnecessary that we pass upon the remaining issues presented for review, and the judgment of the circuit court of Will County is hereby reversed.

Reversed.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE ALLOY

license: Public Domain

text:
    CLIFFORD C. GITTINGS et al., Plaintiffs-Appellants, v. CECIL M. HILTON, Defendant-Appellee.
    Third District
    No. 3—83—0570
    Opinion filed May 31, 1984.
    W. K. Harris, of Harris & Harris, of Macomb, for appellants.
    Albert V. Ancelet and Ross A. Robinson, both of Capps, Ancelet & Stoverink, of Carthage, for appellee.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The Gittings and Mr. Hilton are again in dispute and disagreement over a long-standing easement. (See Gittings v. Hilton (1979), 77 Ill. App. 3d 911, 396 N.E.2d 843.) The Gittings have appealed, in the instant case, from the dismissal by the trial court of their amended complaint for declaratory relief against Cecil M. Hilton. Mr. Hilton had filed his motion to dismiss their declaratory action, setting forth the doctrine of res judicata as a basis for the dismissal. A previous action between the parties, that resulted in the prior appeal, was set forth as a bar to the instant action.

The issue on appeal is whether the trial court correctly determined that the action should be dismissed, based upon the prior adjudication as a bar. We reverse and remand.

The pertinent facts are that Mr. Hilton owns certain property over which the Gittings have a right-of-way easement. At issue in the prior action was whether the Gittings had a fee interest or merely an easement. Also at issue, and the focus of the dispute, were Hilton’s rights with respect to the maintenance of two gates across the easement, on the east and west sides of the pasture land. In the prior action the court determined that the Gittings had a right-of-way easement, and also, that the west end gate was not unduly burdensome to the Gittings’ right of passage. With respect to the east end gate, the court determined that it was unduly burdensome, but that a free-swinging single gate would not be, and, therefore, could be installed. The court also set forth specifics for giving notice of the intention to use the passageway as well as details for the elevation of the electric fence at the east end of the pasture. The only issue in the prior appeal was whether the court correctly determined that the Gittings held only an easement. (Gittings v. Hilton (1979), 77 Ill. App. 3d 911.) We affirmed.

In 1982, the Gittings filed an amended complaint in the instant case asking for declaratory relief concerning the parties’ rights with respect to easement property. For purposes of appeal, we take the well-pleaded factual allegations of the complaint as true. It is alleged that, in addition to the east and west end gates, there is a fence on the south side of the right-of-way, but nothing else to prevent straying from the passageway. It is also alleged that Hilton has removed a portion of the fence at the east end of the south side of the right-of-way, thereby creating a passageway to the north from his 50-acre field on the south side of the right-of-way. The Gittings indicate, by way of allegation, their desire to construct a partial fence upon the north side of the easement, with gateways and gates in the west half and the east half of the partial fence. The result sought would be that Hilton would enter his fields through those gates on the north side of the easement. Gittings also state their desire to have the east end gate across their easement, on the north side, removed, so as to permit unobstructive passage for farm implements, trucks, animals and pedestrians throughout the length of the easement. It is also alleged that a dispute has arisen between the parties concerning the Gittings’ rights to construct a fence and gates upon the north side of the easement. Relief in the nature of the declaration of the parties’ rights concerning the desired actions is sought in the complaint.

As indicated above, the trial court dismissed the amended complaint, based upon Hilton’s section 2 — 619 motion to dismiss, setting forth the prior action as a bar. Ill. Rev. Stat. 1981, ch. 110, par. 2— 619.

There can be no dispute that the instant case involves the same parties as the prior case and the same subject matter is involved. The question is whether this action is upon the same or substantially the same cause of action as the first action. One test utilized to determine the identity of causes of action is whether the underlying facts are identical in both actions or whether the same evidence would sustain both actions. (Bass v. Scott (1979), 79 Ill. App. 3d 224, 226, 398 N.E.2d 236, 238; Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1979), 77 Ill. App. 3d 518, 525, 395 N.E.2d 1143, 1149; Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 971, 426 N.E.2d 337, 339.) It is evident from the pleadings that the evidence and underlying facts necessary to sustain the Gittings position in the declaratory action will address the reasonableness and propriety of their constructing gateways and gates in a partial fence they propose to construct along the north side of the easement. Construing the pleadings liberally in favor of the plaintiff, as we must, this desired action is apparently in partial response to Hilton’s action in removing a portion of the fence at the east end of the south side of the right-of-way easement, opening up a passageway to the north. Thus, the facts necessary to support the Gittings position in the declaratory action are distinct from those facts necessary for the determination of the prior suit between the parties. In that action the question was the effect of the burden posed by the existing gates at the east and west ends of the easement. Thus, while the parties are again arguing over the easement, access and gates, the specific substance of this dispute and controversy is different than the previous action. There is no identity of cause of action present, such as to bar the instant action.

The defense argues that the two suits involve “the same underlying cause of action — the plaintiffs’ rights in regard to the property.” This argument ignores the fact that a cause of action, of necessity, must be grounded in specific facts. In both actions between these parties their rights are at issue. However, the right at issue in the instant action, being plaintiffs’ right to erect a partial fence with gates as a result of changes made by the defendant, was not in dispute or issue in the prior action. If we were to accept the defense construction of res judicata, then all questions and disputes concerning the rights of the parties relating to the easement, even those future questions arising as a result of changed circumstances, would be foreclosed from judicial resolution. That cannot be.

The decision of the circuit court of Hancock County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

SCOTT and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GREGORY H. COLEMAN, Defendant-Appellee.
    Third District
    No. 3—83—0465
    Opinion filed May 31, 1984.

      John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert Agostinelli and Jean Herigodt, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Gregory Coleman was charged with unlawful possession with intent to deliver a controlled substance, unlawful possession of a controlled substance, unlawful use of weapons and resisting a peace officer as a consequence of his activities in Peoria during the early morning hours of May 8, 1983. The police had been tipped off about the defendant’s involvement in suspected drug transactions by confidential police informants, one of .whom purportedly witnessed the defendant’s participation in a drug sale immediately prior to the arrival of police officers on May 8, when the defendant was arrested.

Various pretrial motions were filed, including defendant’s “Motion for order upon State to produce name and address of occurrence witness.” The court denied defendant’s motion to quash arrest and suppress evidence on July 5, 1983, and granted the motion for disclosure of the informant who allegedly had witnessed the defendant’s activities on the night of his arrest. The State refused to comply, the trial court dismissed charges, and the State perfected an appeal to this court.

The issues before us are: whether the trial court erred in granting defendant’s motion for disclosure of the informant’s identity; whether the trial court should have held an in camera hearing prior to ruling on defendant’s motion; and whether the trial court’s order dismissing all charges arising out of the May 8, 1983, events was overbroad. We affirm.

At issue are the defendant’s sixth and fourteenth amendment rights to confront witnesses against him, to prepare his defense and to be tried fairly. In determining whether it should order the government to disclose the identity of its informer, the trial court must balance the public interest in protecting the flow of information to law enforcement officials against the defendant’s legitimate interest in finding out the source of the government’s charges against him to prepare his defense. (See Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623.) Where the informer performs dual roles as an active participant in the charged offense(s) and as a police informant, the defendant’s legitimate interests in his identity are enhanced. Similarly, where the government establishes that the informer’s health and safety would be imperiled by disclosure, public policy concerns may outweigh the defendant’s need or desire to learn the informer’s true identity. See People v. Lewis (1974), 57 Ill. 2d 232, 311 N.E.2d 685.

The facts adduced at pretrial proceedings in this case present something of a hybrid situation. In addition to tipping the police that the defendant was allegedly selling drugs on the evening of the events giving rise to the charged offenses, the informer allegedly witnessed the defendant’s activities forming the basis for the drug-related charges. He (she) is apparently the only witness who could corroborate or rebut the State’s evidence of possession for the drug offenses.

According to the police officers who testified at the pretrial proceedings, the informant contacted the police about two hours before the incidents in question to report that a bald-headed man named Donald and an associate named Greg were selling narcotics in the area of the Bell Tap parking lot in Peoria.

The informant’s description of Donald identified an individual known to the officers as Donald Willingham. The officer was unacquainted with the man named Greg. The officer and his partner, in plain clothes and in an unmarked vehicle, proceeded to the area of the Bell Tap parking lot and observed the defendant standing near the rear of a 1975 Pontiac. This car was recognized by the officers as one which they had seen driven by Willingham. The trunk of the car was open and the defendant’s hand was inside. The officers pulled up and approached the defendant. The defendant slammed the trunk, started to walk away from the car and then broke into a run. Both officers gave chase, and the defendant was ultimately captured by two other uniformed officers. When the pursuing plain clothes officers caught up to the defendant, they arrested him and sent him off in a paddy wagon to the jail.

The officers returned to the Bell Tap parking lot and were told by their informant, who had remained near the car during all of the above-described events, that the defendant had just “turned fat cherry” before the officers arrived on the scene. The street talk, translated, meant that the defendant had just sold some narcotics. The informant further said that narcotics were in the trunk of the Pontiac. The officers obtained a search warrant and opened the trunk pursuant to it. They discovered several small packages of cocaine, a loaded .38 revolver, a knife and some documents containing the defendant’s name indicating that he had ordered some transmission work done on the vehicle. A sticker on the windshield of the car indicated that an application for a license for the car was in the name of Geraldine Russell, the defendant’s fiancee. Upon the defendant’s arrival at the jail, his possessions were inventoried, including about $117 in cash.

In addition to the foregoing facts relative to the instant charges, it was revealed during pretrial proceedings that a second confidential informant two weeks earlier had reported to the police that a man named Greg was selling narcotics in the area of the 500 and 600 blocks of Southwest Adams in Peoria. In requesting an order for disclosure, defense counsel specifically declined to ask for the identity of the earlier tipster. The prosecution did not attempt to establish that the health or safety of the on-the-scene informant was in jeopardy, but generally argued that since that informant was not actively involved as a co-possessor or otherwise in the charged offenses and would not be called upon to testify against the defendant, the defendant was not entitled to learn the informant’s identity. The prosecutor suggested that an in camera interview be conducted so that the court could determine whether the on-the-scene informant’s testimony might be helpful to the defense.

In ruling that disclosure would be required on these facts, the court specifically explained that it would be improper to conduct an in camera interview for the purpose suggested by the prosecution since a decision by the court one way or the other would infringe on the duty of defense counsel to employ the strategy most advantageous to his client and make tactical decisions accordingly.

The trial court’s authority to grant or deny an in camera hearing before ruling on discovery matters is discretionary under Supreme Court Rule 415(f). (87 Ill. 2d R. 415(f).) Specifically, the rule recites, “Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera.” (Emphasis added.) The court’s determination will not, therefore, be reversed on appeal unless an abuse of discretion is shown on the record.

The trial judge’s decision in this case not to grant the prosecutor’s request was neither arbitrary nor an abuse of discretion, but rather it was his opinion, fully considered, that an in camera hearing would be inappropriate. As observed by the Supreme Court in Rovario, “[t]he desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” (Roviaro v. United States (1957), 353 U.S. 53, 64, 1 L. Ed. 2d 639, 647, 77 S. Ct. 623, 629.) The trial court in this cause, in declining to conduct an in camera hearing to decide whether or not disclosure of the informant’s identity would be helpful to the defense, adhered to the spirit of Rovario.

Secondly, we find no error in the trial court’s order of disclosure. Since the informant appears to have been the only witness who observed the defendant’s activities before the police arrived at the Bell Top parking lot and, even more importantly, was the only available eyewitness who could state whether or not anyone might have opened the trunk of the Pontiac or placed anything in it while the arresting officers were chasing after the defendant (a period of 15 to 20 minutes), the informant may well be considered a material witness for purposes of proving or disproving the charges for which defendant’s possession is an element. It is true, as the State contends, that since the informant in this case did not participate directly in the offenses charged, the facts before the trial court here are distinguishable from those in People v. Lewis. Nonetheless, we find that the reasoning applied by the Lewis court required disclosure here as well. In Lewis, the court considered three separate cases of narcotics violations in which informants played a role in the sale of drugs. The court summarized the crucial facts and the issue before it as follows:

“The problem is clearly set forth in the instant cases, wherein in each instance only three persons were present at each alleged sale, i.e., the purchasing agent, the defendant, and the informer. Although there were other State agents on surveillance, in no instance were they able to corroborate the essential elements of sale. The defendants in each case denied the very presence of the purchasing agent and informer. Thus, there is corroboration for their presence at the scene, but not for the allegation of the act of sale.” People v. Lewis (1974), 57 Ill. 2d 232, 235, 311 N.E.2d 685, 687.

In rejecting the State’s contention that the informers were mere witnesses, but would not be called by the State to testify at trial and their identity need not therefore be disclosed to the defense, the Lewis court concluded that sufficient safeguards were in place for the protection of informers such that an infringement on the defendant’s constitutional rights was not warranted.

“If the prosecution can establish that giving the name and address of the witness would jeopardize his health and safety, the informer’s true name and address can be withheld. (United States v. Palermo (7th Cir. 1969), 410 F.2d 468; United States v. Varelli (7th Cir. 1969), 407 F.2d 735; People v. Manzella (1973), 56 Ill. 2d 187, 194.) In light of such safeguards, and the fact that the defendants in cases such as these will already know the informer by sight and may already know him or her by the assumed name, it is unfair to refuse to afford a defendant the opportunity of deciding for himself whether or not the informer could provide testimony helpful to the defense. To deny access to the informer in such circumstances is to deny to a defendant his sixth amendment rights as established by Roviaro.” 57 Ill. 2d 232, 237, 311 N.E.2d 685, 688.

While the informant in the present case allegedly acted as a bystander rather than an active participant in the controlled substance and unlawful use of weapons offenses charged, the informant may well be the sole witness who can testify to any interference with the defendant’s actual or constructive possession of the various items located in the trunk of the Pontiac. The defendant’s “possession” is a crucial element of three of the offenses charged. Under the rule of Lewis and Rovario, to deny disclosure of the informer’s identity on these facts would impair the defendant’s sixth and fourteenth amendment rights to prepare his defense. For the foregoing reasons, we hold that the trial court ruled correctly in granting defendant’s motion for disclosure.

Finally, the State argues that the trial court erred in dismissing the indictments for unlawful use of weapons and resisting arrest, in addition to the narcotics charge, as a sanction for the prosecutor’s refusal to comply with the court’s order of disclosure. Since the informant was not a witness to these offenses, the State contends, the court had no authority to dismiss them. The State cites to no authority for its position on appeal. This issue was not raised at the trial court and may be considered waived for purposes of this appeal. We do not rely, however, on the principle of waiver to dispose of the issue. As indicated above, we believe that the unlawful use of weapons charge includes an element of possession which places the defendant’s right to disclosure of the informant bystander’s identity respecting the weapons offense on par with our reasoning respecting the narcotics charges.

With respect to the charge of resisting a peace officer, it appears that the State’s position may have merit. The informant-witness to the other offenses appears to have remained in the vicinity of the Bell Tap parking lot, and the defendant’s alleged resisting a peace officer offense appears to have taken place several blocks away from that scene at the point where he was apprehended by the uniformed officers. Nonetheless, we find that the charge of resisting a police officer in this case was a byproduct of police activity respecting the narcotics and weapons charges. This connection was, we believe, sufficient to render the trial court’s dismissal of the former charge a matter within the court’s discretion. On this basis, and having found no abuse of the trial court’s discretion, we affirm the dismissal of the charge of resisting a peace officer.

For the foregoing reasons, we affirm the order of the circuit court of Peoria County.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER C. LYKES, Defendant-Appellant.
    Third District
    No. 3—83—0619
    Opinion filed May 31, 1984.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward E Petka, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Lester C. Lykes, was convicted following a bench trial of armed violence. On appeal, the defendant contends that the trial court erred in denying his motion for discharge under the speedy-trial statute. The defendant also asserts that he was not proved guilty beyond a reasonable doubt. We affirm.

The defendant was arrested for the instant offense and incarcerated in the Will County jail on March 14, 1983. A complaint was filed the next day. On March 21, 1983, the defendant was transferred to the Department of Corrections for violation of supervised release based on the instant offense. Despite the hold placed on the defendant for his violation, the hearing to revoke his supervised release was not held until after the defendant’s instant conviction.

On April 7, 1983, a hearing was held on the question of the appropriate speedy-trial term. The defendant asserted that the State was required to try him in 120 days. The State responded that the appropriate term was 160 days because the defendant was in the custody of the Department of Corrections. The trial court found that the State had 160 days in which to try the defendant.

On April 8, 1983, the defendant filed his speedy-trial demand. On July 27, 1983, the defendant filed his motion for discharge. After a hearing, the trial court denied the motion for discharge on August 1, 1983. The defendant’s trial commenced on August 2,1983.

The defendant reasserts on appeal that, because he was in custody, the State was required to bring him to trial within 120 days. Because the State did not try him within this 120-day period, the defendant urges that the trial court erred in denying his subsequent motion for discharge.

A resolution of the defendant’s speedy-trial issue requires a consideration of the speedy-trial statute in conjunction with the Intrastate Detainer Act. An accused’s right to a speedy trial is found in section 103 — 5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5.) Section 103 — 5(a) provides that “[ejvery person in custody in this State for an alleged offense” shall be tried within 120 days. Section 103 — 5(b) provides that persons on bail or recognizance shall be tried “within 160 days from the date defendant demands trial ***.” Failure to try an accused within the statutory time frame results in the discharge of the accused.

However, the Intrastate Detainer Act makes the provisions of 103 — 5(b) applicable to some defendants incarcerated in this State. Under the terms of section 3 — 8—10 of the Uniform Code of Corrections, titled Intrastate Detainers and hereafter referred to as the Act, section 103 — 5(b) applies to a person “committed to any institution or facility or program of the Illinois Department of Corrections” who has an untried complaint or indictment pending against him. Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 8—10.

Thus, if an accused is in custody for an alleged offense under section 103 — 5(a), he must be tried within 120 days. If, instead, the accused is committed to the Illinois Department of Corrections (hereafter IDOC) with an untried complaint or indictment pending, he must be tried within 160 days. The State and the defendant agree that the defendant was tried in more than 120 but less than 160 days from the date of his arrest. The issue before us, then, is whether the defendant was committed to the IDOC for violation of parole while the instant complaint was pending, or whether he was actually in custody for the instant offense although physically present in an IDOC facility.

The defendant argues that although he was physically in the custody of the IDOC, he was actually held by the State for the instant offense. The defendant bases his argument on the fact that his parole violation hearing was held only after his conviction on the instant charges. The defendant contends that, because the proper procedures for revoking his supervised release and committing him to the IDOC were not followed, he was not committed to IDOC and effectively remained in custody for the instant offense.

The defendant relies on the decisions in People v. Patheal (1963), 27 Ill. 2d 269, 189 N.E.2d 309, People v. Burchfield (1978), 62 Ill. App. 3d 754, 379 N.E.2d 375, and People v. Powell (1976), 43 Ill. App. 3d 934, 357 N.E.2d 725, in support of his argument that he was in custody for the alleged offense and not the IDOC. Each of these cases is, however, distinguishable from the case at bar.

In People v. Patheal (1963), 27 Ill. 2d 269, 189 N.E.2d 309, the defendant was arrested on August 20, 1959, on a warrant for armed robbery. On December 8, 1959, the State made an ex parte motion to dismiss the charge. The magistrate agreed to dismiss but no order dismissing the charge was ever entered. On December 11, Patheal was taken to the Menard penitentiary under a warrant for violation of his parole. He was then indicted for armed robbery on December 15, 1959. When Patheal was released from Menard on January 21, 1960, he was arrested under the indictment. He filed his motion for discharge under the speedy-trial statute on February 23,1960.

The court in Patheal found that the defendant was denied his right to a trial within 120 days. In so finding, the court rejected the State’s argument that he could not be in the custody of the county because he was in the custody of the State while on parole and that custody did not terminate until his release on January 21, 1960. The court found instead that Patheal was in the custody of the county on the pending charge from August 20, 1959, to December 11,1959.

The defendant’s reliance on Patheal is misplaced for several reasons. First, the Intrastate Detainer Act had not yet been enacted. Thus, there was no statutory speedy-trial provision covering persons “committed to an institution facility or program” of the IDOC. The court was limited to consideration of the predecessor to section 103— 5(a), and was never required to distinguish between incarceration for the offense as opposed to incarceration by the IDOC.

Further, the Patheal court did not find that Patheal was still in custody for the pending charge even after being sent to Menard. In fact, the Patheal court refers to the defendant’s period of incarceration on the charge itself as running from the date of his arrest (August 20, 1959) to the date of his transfer to Menard (December 11, 1959). The decision of the court in Patheal does not support our defendant’s argument that he remained in custody on pending charges even after his transfer to the IDOC.

Our decisions in People v. Powell (1976), 43 Ill. App. 3d 934, 357 N.E.2d 725, and People v. Burchfield (1978), 62 Ill. App. 3d 754, 379 N.E.2d 375, can be similarly distinguished. In both cases, the defendants were arrested and initially incarcerated on pending charges. Both defendants were subsequently held in custody on the basis that they had violated their parole. This court found that the defendants were incarcerated and, therefore, entitled to trial within 120 days of their arrest. However, both cases were decided prior to the effective date of the Act. Thus, this court in Powell and Burchfield determined only that the defendant was in custody. This court did not decide whether the defendant was in custody on pending charges as opposed to being committed to the IDOC. Because our decisions did not include a consideration of the Act, they cannot now be relied upon to interpret the relationship between the Act and section 103 — 5(a).

We find that the defendant was committed to the IDOC for violation of his supervised release. The defendant was, therefore, required to be tried within 160 days of the date he demanded a speedy trial. Because he was tried within 160 days of the date of his arrest, the defendant was not denied his right to a speedy trial and the trial court properly denied his motion for discharge.

An analogous situation arose in People v. Freeland (1981), 103 Ill. App. 3d 94, 430 N.E.2d 277. The defendant in Freeland was arrested on a charge of burglary. He was released from jail on the charge but incarcerated for parole violation based on the pending charge. The Freeland court found that the terms of the Act rather than section 103 — 5(a) applied to the determination of the speedy-trial term. The court further distinguished the Patheal, Powell, and Burchfield cases relied upon by Freeland and the defendant in the case at bar.

We similarly find that the defendant here was committed to the IDOC. We initially determine that “commitment” includes the re-confinement of the accused. We further conclude that the Act applies to a person committed to the IDOC after his arrest on a pending charge as well as those already committed at the time charges are brought. (See People v. Wentlent (1982), 109 Ill. App. 3d 291, 440 N.E.2d 296; People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85.) Therefore, on March 21, 1983, the defendant was a person committed to the IDOC under the Act with charges pending against him.

The fact that the defendant had not received a hearing on his violation of supervised release is not controlling as to whether the defendant was committed under the Act. Any irregularities in the conduct of the revocation hearings were relevant only to whether the defendant’s supervised release should have been revoked. To find otherwise would require the court in which new charges are pending to hold hearings to determine whether a proper revocation proceeding has been held before ruling on a motion for discharge.

We, therefore, find that because the defendant was committed to the IDOC for purposes of the Act, the trial court did not err in denying the defendant’s motion for discharge.

The defendant also asserts that he was not proved guilty beyond a reasonable doubt. The incident in question began when the defendant and the victim both parked their respective cars, emerged, and began arguing. It is undisputed that during the argument the defendant drew a gun. It is similarly undisputed that the victim was unarmed. The defendant fired three shots, striking the victim with the third shot. At trial, the defendant testified that he acted in self-defense when shooting the victim. The victim testified that he made no threatening moves toward the defendant. The defendant argued that because the victim stepped toward him, he was justified in using his weapon in self-defense.

The trial court, as finder of fact, was presented wifh. two conflicting sets of testimony. Had the court found the defendant’s testimony to be credible, the defendant would have established the affirmative defense of self-defense. However, the trial court clearly found the victim’s testimony to be more credible. Further, the victim’s testimony was corroborated by an occurrence witness.

The decision of a trial court will not be reversed on review unless the evidence is palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused. (People v. Reese (1973), 54 Ill. 2d 51, 294 N.E.2d 288.) The evidence in the instant case is not contrary to the finding and does not raise a reasonable doubt as to the guilt of the accused.

Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

ALLOY, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    ALBERT LUKASIK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Associated Truck Lines, Appellee).
    First District (Industrial Commission Division)
    No. 1—84—0372WC
    Opinion filed May 10, 1984.
    Rehearing denied July 2, 1984.

      Gerald B. Saltzberg, of Fishman & Fishman & Saltzberg, P.C., of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    William M. Wippold, of Musschoot, Womack & Galich, of Chicago, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Claimant, Albert Lukasik, appeals from the judgment of the circuit court of Cook County which confirmed the award of the Industrial Commission. The Commission had set aside an arbitrator’s award of temporary total disability and medical expenses for a certain period of time following the accident. Claimant contends that he was totally disabled after the date fixed by the Commission and that the subsequent medical care was necessary.

On December 20, 1978, the 20-year-old claimant, working as a dock man, was struck in the back by a forklift and a cart while loading freight for his employer, Associated Truck Lines, Inc.

Following the accident, the claimant was taken to MacNeal Hospital where X rays revealed no evidence of any fracture or abnormality. Medication for pain was prescribed and claimant returned home and remained in bed for the next three days, noticing pain in his upper and lower back.

Claimant was treated by the employer’s doctors from December 22, 1978, to January 16, 1979. He continued to complain of back discomfort and muscle spasms, and was referred to Dr. W. Patrick Smyth, who examined claimant on January 23, 1979. Dr. Smyth reported that claimant had received a “myofascial injury” and had a “significant functional overlay.” A physical therapy regimen was advised and claimant was told that no further care was required and that “he could return to work at any time he felt able without any restriction.”

In early February 1979, claimant sought further treatment from his family physician, Dr. Moltier, who referred him to Dr. Thomas Colmey, an orthopedic surgeon. Dr. Colmey, on examination, diagnosed the injury to be a “contusion/sprain of the thoracolumbar spine,” prescribed a muscle relaxant, placed claimant on physical therapy treatments of heat, massage, ultrasound and nerve stimulation, advised him to wear a back corset, and concluded claimant was unable to engage in his usual occupation at that time. On March 19, 1979, Dr. Colmey reexamined claimant and concluded that the “clinical picture at this time is becoming one of subjective complaints without objective findings.” Dr. Colmey then requested a second opinion from Dr. Marshall Matz and concluded that the patient would be “considered disabled pending receipt of this consultation. The patient is eligible for light work if such is available to him.”

Dr. Matz, a neurosurgeon, examined claimant on April 4, 1979, and found no objective abnormalities or neurologic derangement. In his opinion, claimant could return to work following his release by Dr. Colmey. Claimant testified that Dr. Matz released him to return to work.

Dr. Colmey reexamined claimant on April 23, 1979, and again found no objective abnormalities to substantiate claimant’s subjective complaints, but recommended a consultation from a pain clinic, if claimant’s employer was agreeable. Dr. Colmey concluded that claimant remained eligible for light work, if available. It was at this point that the employer cut off temporary disability.

Claimant testified that he never went to the pain clinic. He also did not return to college, where he had been a student at various times between 1976 and 1978. He stated that in May of 1979, he was told by an unidentified agent of the employer that it would not pay for any further medical treatments. Nevertheless, claimant returned to his family doctor, Dr. Moltier, in May and July of 1979, and continued taking medication four times a day as prescribed by Drs. Moltier and Colmey.

On October 23, 1979, claimant went to the emergency room of Northwest Community Hospital at his own direction, complaining of pain in his upper and lower back radiating to his buttocks and legs. He was given medication and referred to Dr. Bruce Ketel, a neurologist, who admitted him to Lutheran General Hospital on November 1, 1979. An initial physical examination revealed spasm in the lumbrosacral paraspinal muscles, a limited range of motion, and normal reflexes. Claimant was treated with bed rest, lower back traction, physical therapy, medication, and epidural lumbar injections. An electromyograph (EMG) revealed no abnormalities.

At Dr. Ketel’s request, Dr. Per Freitag, an orthopedic surgeon, examined claimant on November 5, 1979, and diagnosed his injury as “muscle spasm secondary to back injury.” A myelogram performed on November 16 was interpreted by Dr. Freitag as showing a herniated nucleus pulposus at the L5 — SI level with blunting of the nerve roots.

Dr. Sam Mulopulos, a radiologist at the hospital, found an essentially normal thoracic and lumbar myelogram with questionable defect of the root sheath at the fifth lumbar interspace.

Dr. Ketel’s discharge diagnosis of claimant included a “herniated nucleus pulposus at L5 — SI interspace with root involvement” and “thoracic and lumbrosacral muscle spasm and severe pain secondary to back injury.” Upon his November 20, 1979, discharge from the hospital, claimant was instructed to continue with physical therapy on an outpatient basis and to follow up with reevaluation by Dr. Freitag.

On January 28, 1980, Dr. Gail Belytschko, a neurologist from Dr. Ketel’s office, performed an EMG study on claimant which revealed that the left tibialis anterior muscle was being irritated, which is compatible with a mild L5 radiculopathy.

On February 1, 1980, Dr. Ho Min Lim of Dr. Freitag’s office examined claimant and recommended a chymopapain injection. Dr. Lim, finding that claimant could almost touch the floor, basically noted no neurological defects.

Dr. Freitag scheduled claimant for surgery on May 9, 1980. The surgery was canceled when claimant raised enough money to go to Canada for a chymopapain injection by Dr. John McCulloch of Toronto, scheduled for May 22. Upon examination of claimant, Dr. Mc-Culloch and his associate, Dr. R. R. Richards, found some abnormalities but “no clinical evidence of any objective nature” to warrant use of a chymopapin injection. Instead, Dr. McCulloch suggested a “conservative route” of treatment.

Claimant remained inactive and was using strong pain medication. When Dr. Freitag examined claimant on June 2, 1980, he had some lower back muscle spasm and a slightly diminished range of motion. He diagnosed the condition as “most likely *** a so-called slipped intervertebral disk [sic].” In Dr. Freitag’s opinion, claimant was not capable at that time of “any type of regular work.”

On June 4, 1980, Dr. Freitag readmitted claimant to Lutheran General Hospital. Subsequent lumbar X rays revealed a normal spine; a myelogram showed slight asymmetry but no gross deformity or obstruction; an EMG showed results compatible with a left L5 radiculopathy, similar to the EMG performed in January 1980; and an epidural venogram revealed no abnormalities.

The hospital records indicate that on June 21, 1980, claimant looked better, was more animated, and was ambulating well, but on June 22, he complained of pain in his left leg. The notes from the morning shift of June 23 show that claimant complained of leg pains, stating that on June 21 he had exercised doing pushups and handstands and may have injured himself. On June 24, claimant told Dr. Belytschko that he did 60 pushups the previous Friday and complained of lower back pain.

The hospital notes through July 11, 1980, show continuing complaints of pain as well as daily requests for pain medication. On July 11, he was taken to Skokie Valley Hospital, where Dr. Narciso Lobo performed a CAT scan which showed “soft tissue 'bulging' obliterating the anterior epidural fat highly suggestive of central disc protrusion.” Claimant was discharged from Lutheran General Hospital on June 22, 1980, with a diagnosis of herniated intervertebral disc, L5— SI.

Upon recommendation by Dr. Freitag, claimant returned to Toronto, Canada, to be reexamined by Dr. McCulloch. Dr. McCulloch admitted claimant to a Toronto hospital on August 19, 1980. Based upon the CAT scan as well as a discogram performed by Dr. McCulloch, he diagnosed a central herniation at L5 — SI level and thereafter administered a chymopapain injection to claimant.

Claimant was examined by Dr. Freitag on September 3 and October 21, 1980, at which time his back was found to have marked spasm with limitation in motion. Dr. Freitag suggested to claimant that he submit himself for evaluation and treatment at the Northwestern Pain Clinic, with surgery as his only other alternative.

At the request of respondent, claimant was examined by Dr. George Cooper on November 12, 1980. Dr. Cooper found only “some minimal narrowing of the L5 — SI interspace and a decrease in the normal lumbrosacral angle.” He concluded that claimant “certainly could be engaged as a full time student at this time, dispense with the physiotherapy and increase his range of activity.” No mention was made of the possibility of claimant returning to work.

Hearings were held before an arbitrator after which the arbitrator awarded 80% weeks of compensation for temporary total disability and $7,148.57 for necessary first aid, medical, surgical and hospital services.

Respondent appealed the decision of the arbitrator to the Industrial Commission. The Commission heard further evidence, and in its decision and opinion on review, it concluded that claimant failed to prove he was totally disabled after April 23, 1979, as a result of the accident of December 20, 1978, or that medical treatment he received after April 23 was necessary to cure or relieve the effects of the accident. Accordingly, it reduced the period of temporary total disability to 175/7 weeks and disallowed reimbursement of any medical expenses incurred after April 23,1979.

I

Claimant argues that the decision of the Industrial Commission that he had failed to prove he was totally disabled after April 23, 1979, when Dr. Colmey found no objective symptoms to substantiate claimant’s complaints of pain, was against the manifest weight of the evidence. The Commission specifically found that claimant introduced “no medical evidence from his treating doctors, Dr. Moltier and Colmey, to support his contention that he was unable to work ***” and that he “did not seek work during this period” (from the date of his release to work (April 23, 1979) to the date he went to the Northwest Community Hospital emergency room (October 23, 1979)).

It is well settled that, in proving temporary total disability, the employee must show not only that he did not work, but also that he was unable to work. (Arbuckle v. Industrial Com. (1965), 32 Ill. 2d 581, 586.) The record reflects conflicting medical opinions as to whether claimant was able to return to work at any given time. As previously noted, Dr. Colmey released claimant for light work as of April 23, 1979; Dr. Matz supported this release. The only evidence presented by claimant to the contrary was the deposition of Dr. Freitag, in which he stated that as of June 2, 1980, claimant was not capable of any type of regular work.

When conflicting medical opinions are presented, the Commission must resolve the conflict. Its decision will not be disturbed on review unless it is against the manifest weight of the evidence. Childress v. Industrial Com. (1982), 93 Ill. 2d 144, 147-48; Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, 468.

In Brinkmann, the Commission was presented with two opposing medical opinions about claimant’s ability to return to work. The Commission resolved the conflict in favor of the employer, and refused to award claimant additional compensation for temporary total disability. On review, the Illinois Supreme Court, while particularly noting that claimant had not fully recovered from her injury, upheld the Commission’s decision that claimant was able to return to work. Therefore, the period of temporary total disability may terminate before the claimant has recovered to the full extent.

Similarly, in the instant case, the Commission was faced with conflicting medical opinions about claimant’s ability to return to work. It specifically relied upon the opinions of Drs. Colmey and Matz, to whom claimant was referred by his own family physician. While the record reflects that claimant may not have fully recovered as of April 23, 1979, the Commission could properly have determined that he was no longer totally disabled and unable to work. Such a determination is best left to the skill and experience of medical experts and compensation experts. Makris v. Industrial Com. (1980), 82 Ill. 2d 502, 509.

We find no basis from the evidence to justify claimant’s failure to seek any employment following his release for light work by Dr. Colmey on April 23, 1979. (Cf. C. D. Turner & Sons, Inc. v. Industrial Com. (1983), 96 Ill. 2d 228, 236-37 (the court considered whether there was evidence that claimant had demonstrated his inability to obtain employment in assessing his burden of proving temporary total disability).) The Commission’s decision to eliminate temporary total disability payments as of April 23, 1979, was not against the manifest weight of the evidence.

II

However, we conclude that the cutoff of medical expenses after April 23, 1979, is against the manifest weight of the evidence. The law in effect at the time of injury governs. (Wilson-Raymond Constructors Co. v. Industrial Com. (1980), 79 Ill. 2d 45, 51; Health & Hospitals Governing Com. v. Industrial Com. (1978), 72 Ill. 2d 263, 271.) Section 8(a) of the Workers’ Compensation Act in effect at the time of the injury (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)), in substance, requires the employer to provide all necessary medical expenses, which are “reasonably required to cure or relieve from the effects of the accidental injury. *** The employee may at any time elect to secure his own physician, surgeon and hospital services at the employer’s expense ***.” Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a).

The employer’s position on appeal is essentially that all treatment after April 23, 1979, was either unnecessary or unrelated to the accident, noting that there was a six-month hiatus from medical treatment between that date and October 1979, when claimant went to the emergency room at Northwest Community Hospital.

There is substantial and uncontradicted evidence that Drs. Ketel and Freitag both diagnosed claimant’s condition as a herniated disc at L5-S1. A positive EMG taken by Dr. Belytschko in January 1980 revealed an L5 radiculopathy. An EMG taken by Dr. Ketel in June 1980 showed mild denervation. The CAT scan in July 1980 showed soft tissue bulging at the L5-S1 level, which was confirmatory of the earlier diagnosis of Drs. Ketel and Freitag. There was no conflicting opinion that the myelogram results showed that an injury existed. The fact that the condition was not diagnosed until long after April 23, 1979, is attributable to the fact that before that time, no myelogram, discogram, EMG or CAT scan had yet been taken to confirm an injury. The more complex and accurate tests taken after April 23, 1979, confirmed the traumatic origins of the claimant’s complaints of persistent pain which followed the December 20,1978, accident.

The employer’s additional argument that there was an intervening injury caused by claimant’s having admitted to 60 pushups on June 21, 1980, while he was at the Lutheran General Hospital, is not supported by any evidence in the record which would show that these exercises could have caused the injury. The hospital notes of that date show no sudden traumatic injury, nor any dramatic changes in claimant’s complaints or behavior.

The judgment of the circuit court of Cook County confirming the decision of the Industrial Commission that claimant failed to prove that he was totally disabled after April 23, 1979, as the result of the December 20, 1978, accident is affirmed. That portion of the court’s judgment which confirmed the disallowance of reimbursement for any medical expenses incurred after April 23, 1979, is vacated. The cause is remanded to the Industrial Commission for further proceedings consistent with this opinion.

Affirmed in part; vacated and remanded in part.

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


author: JUSTICE WHITE

text:
    JAMES H. MEIN, Plaintiff-Appellant and Cross-Appellee, v. MASONITE CORPORATION, Defendant-Appellee and Cross-Appellant.
    First District (3rd Division)
    No. 83—805
    Opinion filed May 30, 1984.
    Jerome W. Pinderski, Jr., of Palatine, for appellant.
    McDermott, Will & Emery, of Chicago (Michael T. Roumell, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, James H. Mein, appeals from an order of the circuit court of Cook County dismissing his complaint against defendant, Masonite Corporation, for failure to state a cause of action. In his complaint plaintiff alleged that: he was an employee of the defendant from March 1950 through February 23, 1982, when he was discharged without notice; at the time of his dismissal he was 55 years old and held the post of staff designer at an annual salary of $41,580; defendant made no offer of alternative employment to him although he was eminently qualified for other positions held by younger, less experienced employees; no employee remains in his former work unit with his tenure, experience and age; as a result of his termination he lost his salary and employee benefits and suffered numerous and varied economic and noneconomic injuries; the public policy of Illinois forbids discrimination on the basis of an employee’s age; defendant discharged him in violation of that public policy and consequently committed the tort of wrongful discharge.

On a motion to dismiss a complaint for failure to state a cause of action all facts properly pleaded in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) We therefore accept as true plaintiff’s allegations of employment with defendant, dismissal, and retention of younger and less experienced employees. Moreover, plaintiff’s complaint will not be dismissed unless it clearly appears that no set of facts can be proved under it which will entitle him to recover. Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.

Plaintiff contends that his complaint states a cause of action for wrongful discharge under Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, and Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876. We note first that the tort recognized by our supreme court in Kelsay and Palmateer is for retaliatory discharge. The tort is applicable when an employer discharges an employee in retaliation for the employee’s activities, and the discharge is in contravention of a clearly mandated public policy. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876.) The foundation of the tort lies in the protection of public policy, the tort serving to curb the employer’s otherwise absolute power to terminate an employee at will when that power is exercised to prevent the employee from asserting his rights as found in the State’s constitution, statutes and judicial decisions. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 133, 421 N.E.2d 876.) In the instant case we find that plaintiff has failed to state a cause of action for retaliatory discharge. Plaintiff alleged in his complaint that he was dismissed because of his age, 55 years, not because of his conduct or activity. Plaintiff’s allegations of discrimination on the basis of his status are insufficient to support a cause of action for retaliatory discharge.

We next consider whether an action, other than one for retaliatory discharge, could be maintained for the alleged wrongful discharge. Plaintiff was an employee at will of defendant, and generally, an employer may discharge such an employee whenever and for whatever cause he chooses without incurring liability. (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 181, 384 N.E.2d 353.) The right to terminate an at will employment relationship is subject only to the provisions of applicable statutes, and other clear mandates of public policy. Consequently, plaintiff’s action for wrongful discharge must be based on a statute or other statement of public policy prohibiting discharge on the basis of age. Plaintiff conceded at oral argument that the Illinois Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.), is the sole authority in Illinois prohibiting age discrimination. The question then becomes whether plaintiff can maintain an action in tort for a violation of the policy embodied in the Illinois Human Rights Act. We believe that he cannot. The Illinois Human Rights Act contains a comprehensive series of remedies for violations of the policy therein stated. Furthermore, the Act provides:

“Judicial Review
* * *
(D) Limitation. Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” (Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111(D).)

In light of the comprehensive remedies provided in the Act and the express limitation on judicial review of alleged civil rights violations, we cannot conclude that there is an independent action in tort for employment discrimination on the basis of age. (Brudnicki v. General Electric Co. (N.D. Ill. 1982), 535 F. Supp. 84; see also Teale v. Sears, Roebuck & Co. (1976), 66 Ill. 2d 1, 359 N.E.2d 473.) Accordingly, we hold that plaintiff cannot state a cause of action for wrongful discharge outside the purview of the Illinois Human Rights Act.

For the aforementioned reasons the judgment of the circuit court is affirmed.

Affirmed.

RIZZI, P.J., and McGILLICUDDY, J., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES MILLER, Defendant-Appellee.
    First District (2nd Division)
    No. 82—1902
    Opinion filed June 5, 1984.
    Richard M. Daley, State’s' Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jeanette Sublett, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, of State Appellate Defender’s Office, and Steven J. Goldberg, of Winston & Strawn, both of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant, James Miller, was charged with knowingly and unlawfully possessing a controlled substance, cocaine (Ill. Rev. Stat. 1981, ch. 561/2, par. 1402(a)). His motion to suppress evidence was denied. Thereafter, defendant filed a motion for rehearing based upon a newly decided appellate court decision. A second trial judge sustained defendant’s motion to suppress. The State now appeals from this second order (87 Ill. 2d R. 604(a)(1)) and questions whether (1) collateral estoppel barred the reopening of defendant’s motion to suppress, and (2) the trial court erred in ordering the suppression of the evidence.

On February 9, 1981, defendant was arrested and later charged by information with possession of a controlled substance, approximately 170 grams of cocaine. A hearing was held on defendant’s motion to suppress before the Honorable Adam Stillo, a judge of the circuit court of Cook County.

Defendant called as his first witness William J. McNamara, special agent with the United States Justice Department, Drug Enforcement Administration (DEA). The agent testified he was at O’Hare Airport at approximately noon on February 9, 1981, investigating the transportation of narcotics, especially cocaine, from Fort Lauderdale, Florida, to Chicago. He observed defendant deplane from a flight originating in Fort Lauderdale. Defendant’s blue jeans were tucked into his boots and he carried a brown leather bag over his shoulder. He entered the terminal, looked back and forth three or four times, made eye contact with McNamara, and walked slowly down the concourse to the main terminal area. After approaching an escalator, he stopped, turned completely around and surveyed the area. He then walked to the other end of the terminal and took an escalator down to the luggage area. Once at the baggage claim area, he again turned and looked around and then walked quickly towards two sets of automatic glass exit doors.

As defendant was leaving the first set of doors, McNamara walked alongside of him, said that he was a Federal narcotics agent and asked defendant if he could speak with him. Defendant responded, “Okay.” Agent McNamara explained that he stopped defendant based upon a drug courier profile, which includes circumstances such as arrival from a source city (a point from which narcotics are being shipped), the person’s clothing, demeanor and personal characteristics, as well as their specific actions while being observed.

When McNamara asked to see his identification and airline tickets, defendant became nervous and started shaking. After retrieving the tickets from his pocket, defendant dropped them, picked them up and handed them to McNamara. The tickets indicated that defendant had taken a flight the previous day from O’Hare to Fort Lauderdale. Defendant did not respond after McNamara asked him why he had gone to Fort Lauderdale, but asked the agent why he was talking to him. McNamara answered that he was investigating the transportation of narcotics between Fort Lauderdale and Chicago. He then inquired whether defendant had any narcotics on him and if he could look in his bag. McNamara claimed that he informed defendant that he did not have to consent if he did not want to. All that was contained in the bag was a change of underwear and a shaving kit.

McNamara then asked defendant if he had any contraband on his person, specifically in his boots, again informing him that he did not have to allow the agent to look in his boots. Defendant allegedly responded that he did not mind, then removed his right boot, which was empty. After McNamara asked to look in defendant’s left boot, defendant leaned over, pointed to the back of the boot and said, “The package is in there.” A package containing white powder fell out of defendant’s boot, whereupon McNamara arrested defendant. The agent testified that during the encounter he was dressed casually and although he was armed, his service revolver was not in view. The agent stated that he never touched defendant and only spoke in conversational tones.

Defendant’s version of the events differed substantially. He stated that after Agent McNamara identified himself, he said, “We have reason to believe that a person that’s fitting your description had just gotten off a plane from Florida carrying narcotics.” After defendant gave the agent his ticket and driver’s license, the agent searched defendant’s bag, which defendant did not open for him. McNamara then conducted a pat search of defendant, including his boots. At no time did the agent tell defendant that he was free to leave. After struggling with something inside defendant’s boot, the agent ordered defendant to remove his boot, not telling him he could refuse.

Judge Stillo stated that in his opinion, there was no seizure of defendant, that the intrusion was minimal, if any, and that the intrusion was dissipated by defendant’s consent and voluntary admission. For these reasons, the court denied defendant’s motion to suppress on October 19, 1981.

Thereafter, defendant filed a motion for rehearing based upon the Illinois appellate court decision of February 1, 1982, People v. DeLisle (1982), 104 Ill. App. 3d 297, 432 N.E.2d 954, appeal denied (1982), 91 Ill. 2d 561. At that time, Judge Stillo was no longer in the criminal division and declined to retain the case. It was then assigned the Honorable Lawrence A. Passerella, who stated he had read the transcript of the hearing before Judge Stillo and that the initial issue to be addressed was whether there was probable cause to stop defendant before the issues of consent or involuntariness of the admission arise. The court concluded that it could not state, as a matter of law, that defendant’s consent was voluntary and that the facts in this case did not give rise to an articulable, reasonable suspicion of criminal activity. The court therefore sustained defendant’s motion to suppress, and the appeal by the State followed.

I

Initially, the State argues that collateral estoppel barred the reopening of defendant’s motion to suppress which had been denied by a previous judge. “It is well established in Illinois that a defendant may not repeatedly relitigate a pretrial motion to suppress.” (People v. Colletti (1978), 61 Ill. App. 3d 289, 291, 377 N.E.2d 1276.) Our legislature has reflected this attitude by amending the procedure for a motion to suppress. (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(d); People v. Douglas (1981), 100 Ill. App. 3d 181, 182, 426 N.E.2d 950, appeal denied (1982), 88 Ill. 2d 552.) Only if there is additional evidence or peculiar circumstances warranting a reconsideration will the court grant such a request. (People v. Armstrong (1973), 56 Ill. 2d 159, 161, 306 N.E.2d 14.) Further, it is not sufficient that the defense has discovered a new argument. People v. Attaway (1976), 41 Ill. App. 3d 837, 850, 354 N.E.2d 448, appeal denied (1976), 64 Ill. 2d 596.

During argument regarding whether the doctrine of collateral estoppel barred defendant from reopening his motion to suppress, Judge Passerella stated that “if there is some exceptional circumstance such as a change in the law which is brought to the attention of the court the court may re-open.” He went on to state that the DeLisle case established a new concept of law because it offered an additional factor not previously considered in determining whether probable cause exists to stop a person, an issue which Judge Passerella felt was of paramount importance in defendant’s case.

The DeLisle court held that the facts of the case which formed the basis of the arresting officer’s suspicion were not sufficient to justify a stop of the defendant. The court rejected the State’s argument that because defendant exhibited conduct which conformed to a drug courier profile, an investigatory stop was warranted. (People v. DeLisle (1982), 104 Ill. App. 3d 297, 299-300, 432 N.E.2d 954.) The court also did not agree with the State that a seizure of defendant had not occurred, and declined to follow United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870, where under similar circumstances involving an airport stop, only two Supreme Court justices held there was no seizure. People v. DeLisle (1982), 104 Ill. App. 3d 297, 300, 432 N.E.2d 954.

In this case, we do not approve Judge Passerella’s decision to review another circuit court judge’s ruling on a motion to suppress which was founded upon an appellate court case that allegedly established a change of law. However, we need not determine the propriety of the judge’s grant of a rehearing in view of the current status of case law.

II

In a recent decision, People v. Brett (1984), 122 Ill. App. 3d 191, 195-96, 460 N.E.2d 876, this court declined to follow DeLisle because of the subsequent United States Supreme Court case of Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319. In Royer, the court found that the facts known to the Florida officers at the time they stopped the defendant, facts which matched a drug courier profile, were sufficient to warrant an investigative detention. (460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326.) The court stated that “had Royer voluntarily consented to the search of his luggage while he was justifiably being detained on reasonable suspicion, the products of the search would be admissible against him.” (460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326.) Because “[w]hat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room,” the stop was no longer permissible under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and its progeny. 460 U.S. 491, 503, 75 L. Ed. 2d 229, 240, 103 S. Ct. 1319, 1327.

In the case at hand, the encounter between defendant and Agent McNamara never exceeded the permissible level of “a consensual inquiry in a public place.” Although defendant characterizes the scene where the encounter took place as a “closed” vestibule, it was in fact an enclosed glass area, clearly visible and open to the public, through which the public exited the terminal. Only one agent talked with defendant, there was no indication that defendant was restrained, and the agent told him that he did not have to consent to a search. This type of statement is consistent with defendant’s freedom to leave. (People v. Brett (1984), 122 Ill. App. 3d 191, 196, 460 N.E.2d 876; contrast People v. Kiser (1983), 113 Ill. App. 3d 501, 447 N.E.2d 858, where the defendant’s exit was blocked by government agents.) We cannot conclude that the circumstances amounted to such a display of official authority that “ ‘a reasonable person would have believed he was not free to leave.’ ” Florida v. Royer (1983), 460 U.S. 491, 502, 75 L. Ed. 2d 229, 239, 103 S. Ct. 1319, 1326.

In addition, Judge Stillo, who observed the witnesses first-hand concluded that defendant voluntarily consented to the search and that his admission was given of his free will. Although Judge Passerella, after reviewing the transcript, disagreed with this conclusion, we believe that the first trial judge, “having heard the testimony of witnesses ab initio, and having observed their demeanor while testifying, was in the best position to determine wherein the truth lay, rather than the subsequent court simply reading from a cold transcript.” People v. Nelson (1981), 97 Ill. App. 3d 964, 968, 423 N.E.2d 1147.

Based upon the above reasoning, we conclude that the consensual investigatory detention of defendant did not amount to a seizure invoking fourth amendment protection, and thus defendant’s motion to suppress was erroneously granted by the second trial judge. See People v. Long (1983), 99 Ill. 2d 219, 229-30, 457 N.E.2d 1252, where our supreme court recently discussed what constitutes a “seizure” of persons.

For the reasons expressed herein, the June 28, 1982, judgment of the circuit court of Cook County is hereby reversed, and the cause is remanded for further proceedings consistent with this decision.

Reversed and remanded.

STAMOS and BERLIN, JJ., concur.

      Public Act 76 — 1096, sec. 1, effective August 28, 1969, deleted the following words from the end of section 114 — 12(d): “ ‘and the motion may be renewed if the trial takes place before a judge other than the one who heard the motion.’ ” (Ill. Ann. Stat., ch. 38, par. 114 — 12, Historical Note, at 474-75 (Smith-Hurd 1977).) Section 114 — 12(d) currently provides: “The motion shall be made only before a court with jurisdiction to try the offense.”


author: JUSTICE O’CONNOR

text:
    CHAOVANEE AROONSAKUL, Plaintiff-Appellant, v. CHARLES LARKIN FLANAGAN, Defendant-Appellee.
    First District (2nd Division)
    No. 83—0553
    Opinion filed May 8, 1984.

      Doss, Puchalski, Keenan & Bargiel, Ltd., of Chicago (Paul J. Bargiel, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, David J. Slawkowski, and Hugh C. Griffin, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Chaovanee Aroonsakul, appeals from a judgment entered on a jury verdict finding defendant, Charles Larkin Flanagan, not guilty of the paternity of her infant son, Ryan, born February 19, 1981. We affirm.

Plaintiff filed this paternity action on March 19, 1981. After denying defendant’s motion to dismiss, the trial court, on plaintiff’s petition, ordered the parties and the infant to submit to comprehensive genetic blood testing, including the statutorily authorized Human Leucocyte Antigen (HLA) blood test (Ill. Rev. Stat. 1981, ch. 40, par. 1401 et seq.). The tests were performed at Mt. Sinai Hospital on October 14, 1981, under the supervision and control of Dr. Chang Ling Lee, professor of pathology at Rush Medical School, board certified in clinical pathology and blood banking, and recognized expert with 14 published articles on the subject of paternity testing and HLA.

The HLA test is based on the scientific fact that every person’s white blood cells contain identifiable markers or “antigens,” which he inherits: one “A” group antigen and one “B” group antigen from each parent, as a pair. When both the antigens have been clearly defined, a person is considered “full house” for that antigen group, meaning that there is no possibility of any other antigen being carried. The HLA test administered in the instant case showed that the infant Ryan’s two “B” antigens were B27 and B35. The test also showed that plaintiff carried B15 and B35 antigens. Therefore, because plaintiff’s genetic makeup is void of a B27 antigen, her child could not have inherited one from her and must have received it from his father. The results also showed, however, that defendant carried B8 and B35 antigens, making him incapable of passing a B27 antigen to plaintiff’s child and leading to the conclusion of non-paternity.

Dr. Lee also administered a separate and independent “Km” blood serum test which showed the infant Ryan to possess a specific protein serum marker which was found in neither plaintiff’s nor defendant’s blood, likewise leading to the conclusion that defendant could not have fathered plaintiff’s child.

Plaintiff moved to suppress all evidence of the aforesaid tests on the grounds that during the months preceding the tests, defendant had been treated for a liver abscess for which he had received blood transfusions, and that defendant had also ingested certain medications in conjunction with this ailment and also for an arthritic condition, both of which could possibly have rendered the test results less reliable. Plaintiff also filed a motion in limine requesting an evidentiary hearing prior to trial for the purpose of suppressing the test results. Defendant in turn filed a motion for summary judgment, based on the validity of Dr. Lee’s findings, which was supported by the affidavit of Dr. Thomas Harwood, a physician specializing in surgical pathology. Alternatively, defendant moved to dismiss plaintiff’s complaint based on the test results, pursuant to the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1981, ch. 40, par. 1401 et seq.). The trial court denied all of the above motions by both parties, permitted plaintiff to take extensive discovery regarding defendant’s liver ailment and medications, and ordered the case to trial. The court also denied a motion by defendant to limit the testimony at trial to only those experts who administered the court-ordered test.

Prior to trial, some nine months after defendant had ceased medication for his liver abscess, defendant submitted to a second HLA blood test, this time at Rush-Presbyterian St. Luke’s Medical Center. The test was administered by Karen James, Ph.D., and director of the clinical immunology laboratory at Rush, under the supervision of Dr. Allan Luskin, associate professor of immunology and medicine and director of clinical services in immunology at Rush. The results obtained were consistent with Dr. Lee’s findings excluding defendant from paternity. In addition, four of defendant’s five brothers submitted to HLA blood tests which were administered by Dr. Ruta Radvany, assistant professor of surgery and director of the tissue typing laboratory at Northwestern Hospital. These tests revealed that defendant’s siblings inherited the following four “B” antigens from defendant’s parents, who were deceased: B8, B14, B35 and B44. Under the “full house” concept, these results indicated that neither of defendant’s parents had carried a B27 antigen, making it a “genetic impossibility” for defendant to have inherited the antigen or to have passed it on to plaintiff’s child.

Defendant first testified at trial pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60), now section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102). Defendant stated that he was a 55-year-old physician, specializing in internal medicine and on the staff of Northwestern Hospital. He and plaintiff lived in the same building on North Lake Shore Drive in Chicago. He first met plaintiff socially at a New Year’s Eve party in the building on January 1, 1980, although he had known her professionally prior to that time. He first had intercourse with plaintiff in late February of that year. Between February and July of 1980, the parties had intercourse between six and 12 times. Defendant stated that he experienced some ejaculatory difficulty during that time and did not believe that he was able to achieve orgasm. Nevertheless, in response to a question about birth control, defendant stated that he had practiced withdrawal during sex with plaintiff. He believed he became aware of plaintiff’s pregnancy in late June of 1980, and had sex with her one time after that. He did not send plaintiff to a gynecologist, nor did he accompany her to any abortion clinic. In late May or early June 1981, defendant underwent treatment for a liver abscess, for which he ingested the medication Flagyl for 10 days as well as Chloroquin for a period of weeks up until September of 1981. He had also taken a thyroid hormone called Synthroid for a number of years, and may have had some “growing old” arthritis called osteoarthritis. After plaintiff’s baby was born, she phoned him several times, asking him to come see the child. He visited her once briefly in the hospital, while making his rounds. It was stipulated that defendant refused to sign the child’s birth certificate, and he at no time agreed to the child’s being called Flanagan.

Plaintiff then testified that she was a 37-year-old physician with her own private practice, and was house doctor for the building in which she and defendant lived. She was single and had never been married. On January 13, 1980, she told defendant that she would consider having sex "with a Caucasian man, but not with him. Nevertheless, in February she began having intercourse' with defendant approximately two to three times a week, and later approximately once a week, up until August of 1980. Plaintiff stated that after she started dating defendant she did not have intercourse with anyone else until after her baby was born on February 19, 1981. She was aware that defendant had an orgasm inside her during this time; however, she did not believe that she was able to conceive, and had expressed this opinion to her friends. She stated that defendant drove her to an abortion clinic and became angry when she said she did not want to have an abortion.

Plaintiff called no medical witnesses during her case in chief. Defendant called five experts: Drs. Lee, James, Luskin, Radvany and Harwood, each of whom testified as to the validity of the various blood tests administered to the parties, the child, and defendant’s brothers, which conclusively excluded defendant as the father of plaintiff’s child. It was also agreed that while it might be theoretically possible that under some speculative circumstances a medication could “mask” an antigen, i.e., prevent it from being identified, medication could not change one identifiable antigen into another identifiable antigen. In the instant case, both of defendant’s “B” antigens were identifiable as B8 and B35; thus, under the previously discussed “full house” concept, defendant was genetically incapable of passing a B27 antigen to any child of his.

In rebuttal, plaintiff presented three witnesses who questioned the reliability of HLA test results where medication of the type that defendant had ingested was introduced within six months of the test; however, they were unable to cite any case, report, or study in which an inherited and identifiable HLA antigen was ever found to have been changed into another identifiable antigen by any such medication. None of plaintiff’s witnesses administered any tests of their own, nor did they claim expertise in the field of paternity testing. Finally, on questioning from the trial court, one of plaintiff’s witnesses admitted his belief that the degree of probability that defendant was the father of plaintiff’s child was “low.”

The trial court denied defendant’s motions for a directed verdict both at the close of plaintiff’s case and at the conclusion of all the evidence, and also refused all instructions which would have made the results of the blood tests conclusive on the jury. The case was then submitted to the jury, which returned a verdict finding defendant not guilty of paternity. Plaintiff filed a post-trial motion seeking in the alternative a judgment n.o.v., an arrest of judgment and the granting of a new trial or of an evidentiary hearing on her previously filed motion in limine. The motion was denied.

Plaintiff first argues that her motion for a new trial should have been granted because the jury relied exclusively on the results of the HLA and Km series blood tests administered by Dr. Lee, which results were tainted by defendant’s use of medication for a liver ailment and were therefore improperly introduced into evidence. Plaintiff cites section 4 of the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1981, ch. 40, par. 1404), which provides in part:

“Sec. 4. (a) If the court finds, as disclosed by the evidence based upon the tests, that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings, such findings shall not be admissible, and the question of paternity shall be submitted upon all the evidence.”

She then argues that if blood tests are inadmissible in paternity actions where the experts disagree in their findings, they should also be inadmissible where, as here, the experts testify that the raw data obtained from the test is questionable because of continued drug use and illness which has an effect on the cellular structure of the blood. Plaintiff’s arguments lack any basis in law or fact, however.

Initially, plaintiff’s reliance on section 1 of the Act on Blood Tests to Determine Paternity (Ill. Rev. Stat. 1981, ch. 40, par. 1401) dealing with the effect of blood tests is misplaced, as that section clearly relates to a situation involving a disagreement by court-appointed experts as to their test findings. The section provides:

“Sec. 1. In a civil action in which paternity is a relevant fact, the court, upon its own initiative or upon motion of any party to the action, may order the mother, child and alleged father to submit to blood tests, including Human Leucocyte Antigen tests, to determine whether or not the man may be included or excluded as being the father of the child. The results of the tests shall be receivable in evidence in accordance with Section 4 of this Act. If the defendant refuses to submit to such tests, such fact shall not be disclosed upon the trial.” (Ill. Rev. Stat. 1981, ch. 40, par. 1401.)

Section 2 of that act further provides:

“Sec. 2. The tests shall be made by experts, not to exceed three, duly qualified as examiners of blood types who shall be appointed by the court. The experts may be called by the court as witnesses to testify to their findings and shall be subject to cross-examination by the parties.” Ill. Rev. Stat. 1981, ch. 40, par. 1402.

In the instant case, none of plaintiff’s witnesses performed any HLA test or made any test findings of their own; rather, they offered nothing more than vague and highly speculative opinions questioning the reliability of Dr. Lee’s findings based upon the medications which defendant had taken for his liver ailment during the months prior to the test. Conversely, defendant’s experts expressly disavowed that defendant’s condition or the medication that he ingested could in any way affect the reliability of Dr. Lee’s findings. The case of Daubach v. Ishihara (1981), 103 Ill. App. 3d 750, 431 N.E.2d 1188, which is cited by plaintiff, actually lends support to defendant’s position with regard to the propriety of admitting the results of the court-appointed test. In Daubach, this division considered the results of two blood tests which were issued to determine paternity, one of which excluded paternity and the other of which was “inconclusive” due to its failure to exclude various genetic characteristics of the Japanese race, of which defendant was a member. The court held there that where the test results themselves did not appear to be in disagreement, they were properly admitted into evidence, even though the applicable statute stated that the tests shall be receivable in evidence only if a “definite exclusion” is established. (103 Ill. App. 3d 750, 753-54, citing Ill. Rev. Stat. 1977, ch. 40, par. 1401.) The results of the blood tests were properly admitted into evidence.

Once determined that the test results were properly admitted, the reliability of those results in light of plaintiff’s rebuttal testimony was properly before the jury. (See, e.g., Walczak v. General Motors Corp. (1976), 34 Ill. App. 3d 773, 340 N.E.2d 684, citing the general rule that the weight to be assigned to an expert opinion is for the jury to determine in light of his credentials and the factual basis for his opinion.) In the instant case, the jury’s determination is amply supported by the record.

Nor is there any validity to plaintiff’s contention that the court-ordered test results were the “sole basis” for the jury’s verdict. Rather, the record contains overwhelming support for the jury’s verdict, wholly separate and apart from Dr. Lee’s HLA findings, including: a second HLA test administered nine months after defendant ceased taking medication for his liver; a separate, Km serum blood test which likewise established nonpaternity; HLA tests performed on defendant’s siblings leading to the same conclusions, as well as the testimony of the parties themselves. People ex rel. Martin v. Presswood (1980), 85 Ill. App. 3d 975, 976-77, 407 N.E.2d 770, and citations therein (in a paternity suit, both the mother and the defendant are competent witnesses, and their credibility is determined by the trier of fact).

Plaintiff next claims reversible error in the trial court’s handling of the cross-examination of Dr. Lee, defendant’s chief expert witness. As defendant points out, none of the specific points raised in plaintiff’s brief were set forth in her post-trial motion, which contains only a general objection to the admission of “all of defendant’s exhibits” and to “improper defense testimony.” The alleged errors can, therefore, be considered waived. Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-53, 415 N.E.2d 337.

Plaintiff’s argument also fails on the merits. Plaintiff’s attempt to characterize Dr. Lee as a “court’s witness” whose testimony was improperly elevated in the minds of the jury is not founded in the record. Rather, Dr. Lee was called by defendant, and was subject to extensive cross-examination by plaintiff’s counsel. Moreover, the jury was properly instructed as to the weight to be given experts’ opinions.

As set forth in Daubach and other authorities cited in plaintiff’s brief, “exclusionary [blood test] report in itself should not be used to deprive plaintiff of a trial to present its own testimony and to attack the credibility of the test.” (Daubach v. Ishihara (1981), 103 Ill. App. 3d 750, 755; People ex rel. De Vos v. Laurin (1979), 73 Ill. App. 3d 219, 391 N.E.2d 164.) There can be no question but that the trial court followed this rule in the instant case, as evidenced by its denial of all of defendant’s motions for dismissal and summary judgment and directed verdict, its refusal of all jury instructions which would give the blood test results conclusive effect, and its leniency in allowing plaintiff to call rebuttal witnesses, over defendant’s objections.

Finally, plaintiff argues that the trial court erred in denying her motion notwithstanding the verdict. Such judgments are to be entered only when “*** all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that. evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) For the reasons previously stated, we find plaintiff’s argument to be without merit.

Based on the foregoing, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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