author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID ALEXANDER, Defendant-Appellant.
    First District (2nd Division)
    No. 82—976
    Opinion filed August 7, 1984.

      Steven Clark and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Denise O’Malley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant, David Alexander, was convicted by a jury of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1), indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11—4(a)(1)) and unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 10—3(a)). He was sentenced concurrently to 30 years for rape, 15 years for indecent liberties and 3 years for unlawful restraint.

On January 8, 1981, defendant was charged with the aforesaid crimes, as well as aggravated battery, all arising from an incident occurring on December 25, 1980. In February 1981 defendant’s attorney orally moved the court to order a “Psychiatric Institute Examination” of defendant “for both fitness to stand trial and sanity at the time of the offense.” Defense counsel alleged no factual basis for his request. The State advised that it had no objection thereto, and the court granted defendant’s motion.

On March 31, 1981, defense counsel and the assistant State’s Attorney stipulated to the findings and conclusions of defendant’s examining psychiatrist, Dr. Stikes, which were to the effect that the defendant was not fit to stand trial “because of a mental condition associated with alcohol.” The court thereupon found that the defendant was unfit to stand trial and that there was a substantial probability that the defendant, if provided with a course of treatment, would attain fitness within one year. The court then ordered defendant placed in the custody of the Illinois Department of Mental Health for treatment, and pursuant to sections 104 — 16 and 104 — 17 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 104—16, 104—17), ordered the Department to report to the court within 30 days its opinion as to the probability of defendant’s attaining fitness within one year.

On May 21, 1981, a hearing was held on defendant’s restoration to fitness. The State and defense counsel stipulated to the qualifications and reports of two psychiatrists who had examined defendant. Both found him fit to stand trial. The court accepted the stipulations and then questioned defendant as to whether he felt he was fit to stand trial. Defendant answered affirmatively, and thereupon the court found defendant fit to stand trial. Prior to trial the court granted the State’s motion to nolle prosequi the charge of aggravated battery.

At trial, the alleged victim of the assaults, R.A.S., testified to the following: On December 25, 1980, she was 13 years old, the oldest of six brothers and sisters. Defendant was not her biological father but was the father of four of her brothers and sisters. At about noon on that Christmas Day she was watching television when defendant came in the front door and asked if her mother was at home. She was not. Defendant then left, and later returned. He asked R.A.S. if she wanted to go to the store with him. She said she would, and they left. After walking a few blocks, defendant walked back toward the rear of the family home from whence they had come.

The rear door of the home was usually held shut by a wood board, but the board was not there on that day. She and defendant went up the back stairs, through the kitchen and up to the attic. In the attic, defendant hit R.A.S. when she initially refused his request that she remove her boots. Defendant then removed his coat and laid it on the floor. When R.A.S. refused to approach him, he again hit her. Defendant then grabbed her and told her to remove her coat. She was struck again and, at defendant’s command, she removed her pants. Defendant removed a string from her blouse and tied it around her neck. He placed her on her back and removed his clothing. He struck her again and then had intercourse with her.

When defendant fell asleep, she gathered her clothing and ran downstairs. In the kitchen, she knocked over a door which was leaning against a kitchen wall. Two of her sisters, A.S. and S.S., then came into the room. R.A.S. was at that time dressed only in a shirt and bra; she told her sisters she had accidentally urinated in her pants. She then put on the rest of her clothing and went to the house of her friend, Cynthia W. She told Cynthia W. and Cynthia W.’s mother that she had been raped. The mother called the police. The police took R.A.S. back to her home where she retrieved her coat from the attic. The police then took her to a hospital. On the way to the hospital, she saw and identified defendant, who was then arrested.

On cross-examination, R.A.S. admitted she did not get along with defendant. She disliked the fact that defendant and her mother fought. On December 25, 1980, the two had fought, and the mother had left; R.A.S. was angry at defendant for forcing her mother out of the house that day. R.A.S. admitted that she had told the police that she had sex with defendant on about 10 occasions since she was nine years old. She had not reported those previous intimacies to anyone other than her grandmother, who lived in Alabama. She did not tell her brothers or sisters, although she admitted she was fearful that defendant might take advantage of her sisters.

The State’s next witness was S.S., who testified: She was R.A.S.’s sister and defendant’s daughter. On December 25, 1980, defendant came to the house, left, and then returned again. He then left with R.A.S. A short time later, S.S. heard a door in the kitchen fall. S.S. and her sister, A.S., went into the kitchen. R.A.S. was standing there wearing a shirt but no pants or underwear. R.A.S. said that she had wet herself. R.A.S. then put on her pants and left the house.

Cynthia W.’s mother testified that on December 25, 1980, R.A.S. came to her house and told her she had been raped.

Chicago police officer Lynn Laskey testified that on December 25, 1980, she went to Cynthia W.’s house and spoke with R.A.S. They then drove to R.A.S.’s house and looked for evidence, particularly a blouse string, which they did not find. On the way to the hospital, they saw defendant, who was placed under arrest.

The parties stipulated: R.A.S. was examined at the hospital; the resultant smears and slides, and her clothing, were taken to the Chicago crime lab and there examined by Sedgewick Higgenbottom, a lab employee.

Bernadette Kwak, a microanalyst with the crime lab, testified for the State: Mr. Higgenbottom, now deceased, had examined the smears, slides, pants, panties and a vaginal specimen involved. He found spermatozoa on the vaginal smear, but neither sperm nor semen on the other articles of clothing. Ms. Kwak also found sperm on one of the smears as well as on a second smear on which Higgenbottom had not found sperm. The State then rested.

Defendant testified on his own behalf: On December 25, 1980, he returned to his house in the morning and asked the children if their mother was at home. When informed she was not, he left. He returned about an hour later, and he and R.A.S. went to the store to buy bread. On the way to the store he gave to a man on the street a $5 bill for which he received five singles in change. He gave R.A.S. $1 and they then went in different directions. He did not give R.A.S. the entire $5 because she had a habit of overspending.

Defendant stated that he then met a friend of his, Willie, and agreed to sell Willie a ladies’ watch for $7. Defendant returned home to get the watch. He entered the back door of the home and observed his daughters, S.S. and A.S., making peanut butter sandwiches. Defendant remained fully dressed all morning. He denied touching, fondling or raping R.A.S.

After closing argument and deliberations, the jury returned guilty verdicts of rape, indecent liberties and unlawful restraint. Following the sentencing hearing, the court imposed the aforesaid sentences, from which defendant appeals.

Defendant contends that reversible error occurred below at his restoration hearing on the ground that because the parties stipulated to the two psychiatric reports, there was no “adversarial” hearing, relying on the decision of People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219. In Greene, the defendant was initially found unfit to stand trial. At a restoration hearing to determine if defendant was then fit, no evidence was introduced; instead, the parties stipulated that two psychiatrists who had examined defendant would conclude he was fit for trial. The State and defense counsel then stipulated to the findings in the psychiatric reports and to “the fact that the defendant is fit for trial.” The Greene court reversed for a new restoration hearing, holding that such stipulation to the fact of defendant’s fitness afforded “no fitness hearing at all” and manifested no exercise of discretion by the court.

However, in the recent decision in People v. Lewis (1984), 103 Ill. 2d 111, our supreme court distinguished the factual situation in Greene and that which we find to exist in the instant case. The supreme court held:

“We find the stipulations in Reeves and Greene and those entered into here clearly indistinguishable. In Reeves the parties stipulated to the conclusion that the defendant had ‘recovered from said insanity to the degree that he can now co-operate with his counsel and enter a plea.’ (412 Ill. 555, 557.) In Greene defense counsel stipulated to ‘the findings of the two psychiatrists as contained in the reports and *** to the fact that the defendant is fit for trial.’ (102 Ill. App. 3d 639, 641.) Here, however, it was stipulated that, if called to testify, qualified psychiatrists who had examined defendants would testify that in their opinions the defendant was mentally fit to stand trial.
The stipulations were not to the fact of fitness, but to the opinion testimony which would have been given by the psychiatrists. Upon considering these stipulations and personally observing defendants, the circuit court could find defendants fit, seek more information, or find the evidence insufficient to support a finding of restoration to fitness. The circuit court recognized that, as stated in People v. Bilyew (1978), 73 Ill. 2d 294, 302, ’[t]he ultimate issue was for the trial court, not the experts, to decide.’ We find, therefore, that the circuit courts did not err in considering the stipulations regarding the psychiatrists’ opinions as to the defendants’ fitness. We note parenthetically that neither at trial nor on appeal has the contention been made that there was a bona fide doubt as to defendants’ fitness — the attacks are based solely on the allegedly improper stipulations.” People v. Lewis (1984), 103 Ill. 2d 111, 115-116.

In our opinion, the procedures employed in defendant’s restoration hearing in the instant case are similar to those upheld in Lewis. The parties did not stipulate to the “fact” of defendant’s fitness, but to the psychiatrists’ testimony. We therefore reject defendant’s contention that because of the stipulation entered into, his restoration hearing was infirm.

In a related argument, defendant contends that the report of one of the psychiatrists who examined him fails to comport with the statutory requirements of section 104 — 15 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104—15). That statute requires that the examining physician’s report to the court “shall include” information including “a diagnosis and an explanation as to how it was reached and the facts upon which it is based,” “a description of the defendant’s mental or physical disability, if any; its severity; and an opinion as to whether and to what extent it impairs the defendant’s ability to understand the nature and purpose of the proceedings against him or to assist in his defense or both.” Citing People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941, defendant contends one of the reports here used failed to include the statutorily required information and thus precluded the trial court from making an independent evaluation of the defendant’s mental condition. While we agree with defendant that one of the reports is in fact violative of the statutory requirements, we find that under the facts of this case no reversible error occurred.

The most significant difference between the factual situation in Harris and that presented here is that in the case sub judice a second psychiatric report was in fact provided to the trial court, and this second report is not challenged as deficient. Because here the trial court had before it a second report which complied fully with the statutory mandate, the shortcoming of the first report is not a basis for reversal. The statutory language clearly evidences that a single report will suffice. “The •person or persons conducting an examination of the defendant ***” (Ill. Rev. Stat. 1979, ch. 38, par. 104—15(a)); “The court shall conduct a hearing to determine the issue of defendant’s fitness within 45 days of receipt of the final written report of the person or persons ***.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 104—16(a).

We also believe other facts in this record differentiate this case from Harris. These distinguishing factors include that in Harris the defendant had a history of psychological treatment whereas this defendant did not. In Harris the defendant attempted suicide by eating glass and metal, thus raising a bona fide doubt as to Harris’ fitness. Here, there are no facts indicating that there existed a bona fide doubt as to defendant’s fitness to stand trial at the time of the restoration hearing. If defense counsel believed defendant was unable to assist in his defense or to understand the nature of the proceedings, it is presumed that counsel could have so advised the court. (See People v. LaBoy-Rivera (1984), 126 Ill. App. 3d 197.) For the aforesaid reasons, we find no reversible error based on the omissions of one of the psychiatric reports admitted into evidence at defendant’s restoration hearing.

Defendant next contends that he was denied a fair trial when, in closing argument, the prosecutor called the defendant a “beast” and an “animal.”

The State responds that any error was waived because the defendant did not object to the statements nor specify them in his post-trial motion. Even if we consider them, the State argues, the comments in question were based on the evidence and within the wide latitude afforded during closing argument and a prosecutor’s right to comment on the evidence. Any error was, in the State’s view, harmless because the evidence of defendant’s guilt was overwhelming.

While we hold that defendant has waived this issue for review, we would, under these circumstances, find the prosecutor’s statements to be harmless error. While the State may comment unfavorably on the defendant and the evil results of crime (People v. Alvarez (1981), 93 Ill. App. 3d 111, 416 N.E.2d 1217), he may not thereby attempt to inflame the passion of the jury nor arouse the prejudice of the jury against the defendant. (People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017.) While the characterizations of defendant by the prosecutor in the present case were clearly improper, we consider them harmless. See People v. Williams (1981), 99 Ill. App. 3d 919, 425 N.E.2d 1321.

Defendant next argues the State improperly vouched for the credibility of its witnesses and placed the credibility of its office behind the witnesses. Defendant complains of the following: In closing argument, the prosecutor told the jurors that it was defendant’s theory that R.A.S. had duped everyone, including the prosecutors. The prosecutor urged the jury to believe R.A.S. because “she told the truth.” The prosecutor also stated that he was not part of an effort to “frame” defendant.

While it is clear that a prosecutor may not personally vouch for the credibility of the State’s witnesses (People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217), we do not find that the prosecutor did so here. The remarks were proper comments upon the evidence and fair inferences drawn therefrom. Further, defendant may not invite responses to his own remarks and then claim prejudice therefrom. Here, the defense attacked the credibility of R.A.S. throughout the trial, from opening statements to cross-examination and closing argument, stating that her testimony was “made up,” “unbelievable” and “rehearsed.” Defense counsel also strongly implied that the other witnesses appearing for the State were lying. Under these circumstances we conclude the State’s responses were not improper. See People v. Anderson (1981), 95 Ill. App. 3d 492, 420 N.E.2d 830; People v. Dykes (1978), 66 Ill. App. 3d 403, 383 N.E.2d 1210.

Defendant finds error in the prosecutor’s statement in closing argument that in order to believe the defendant’s testimony it would be necessary to “disbelieve each of the state’s witnesses.” Defendant alleges this statement to be untrue and that defendant’s testimony was “not at all” inconsistent with some of the State’s witnesses and “only marginally inconsistent” with others. The State argues that its statement is in fact “absolutely” true, and even if not, any resultant error was harmless. We consider the prosecutor’s statement improper. It was inaccurate to state that it would be necessary to disbelieve each State’s witness in order to believe defendant.

While a prosecutor may comment on the credibility of the witnesses, such comments must be based on the evidence, or reasonable inferences therefrom. (People v. Childs (1981), 101 Ill. App. 3d 374, 428 N.E.2d 185.) Although we are aware that a similar statement has been held to be reversible error (People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931), we decline to so hold under the circumstances of this case where defendant’s testimony did, in fact, directly contradict that of the significant State witness. While the prosecutor’s argument that it was necessary to disbelieve each of the State’s witnesses in order to believe the defendant was not wholly accurate, we do not believe the jury was misled thereby, and find no reversible error. People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017.

Defendant next argues that the State improperly used impeachment evidence for substantive purposes. During the victim’s cross-examination by defense counsel, he elicited testimony from her that defendant had had sexual relations with her on approximately 10 occasions over the previous four years and that she never reported those previous attacks to anyone save her grandmother, who resided in Alabama. In closing argument, defense counsel contended that R.A.S.’s testimony that she had been previously attacked by defendant and failed to report those attacks, was “an inherently unbelievable story.” Defendant maintains that R.A.S.’s failure to report the previous attacks “contradicted” her report on this occasion and thus “impeached” her. Defendant complains of the State’s closing argument wherein it noted the evidence of previous attacks, stated that defendant had “forced her to submit, as he had done before”; that the victim “was raped since she was nine years old” and suggested why R.A.S.’s failure to report the previous incidents was reasonable.

The State responds, first, that the issue is waived, as defendant did not object at trial nor include this issue in his post-trial motion. While we hold that defendant has waived this issue, even were we to consider it, we would find no reversible error under the present facts. Our review of the record does not demonstrate any misuse by the State of the evidence introduced by the defendant. We do not agree with defendant that this evidence of the failure to report previous rapes is “impeaching.” There is no requirement that a rape victim make a complaint. (People v. Trejo (1976), 40 Ill. App. 3d 503, 352 N.E.2d 68.) Nor is her credibility undercut by her previous failures to do so. Moreover, the State’s reference to this testimony does not indicate an effort to convict defendant on the basis of the alleged prior rapes. Rather, the State appears to have been appropriately commenting on the evidence and, more specifically, responding to defendant’s argument that it was incredible for R.A.S. not to have reported the previous incidents.

Defendant next contends he was denied a fair trial when, during closing argument, the State allegedly asserted facts not in evidence and misstated evidence. In the first cited instance, the prosecutor stated that defense counsel had not cross-examined the victim’s sister, S.S., because she “told the truth.” Defendant states such fact was not in evidence.

The State responds that this was a “reasonable inference” to be drawn from the defendant’s failure to cross-examine S.S. and that the comment was also proper as a response to defendant’s attack on S.S. as an “imaginative child” and his implication that S.S. had made up her testimony. In our opinion, defendant has waived consideration of this issue by failing to object to them and by not specifying them in his post-trial motion. Even if we were to consider them, we would find any error in this single statement to be harmless.

Defendant next asserts that the State’s closing argument misstated the evidence when the prosecutor, in summarizing S.S.’s testimony, contended that she had testified that when she first saw R.A.S. after the incident, R.A.S. was nude from the waist down. In fact, S.S.’s testimony was that she did not see the “bottom part” of R.A.S. at that time; it was not until a short time later that she saw that her sister was nude from the waist down. Although we find that defendant has waived this allegation of error, if we were to consider it, we would find no error in this minor discrepancy.

Defendant next argues that the court erred in instructing the jury with a modified Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.14 (2d ed. 1981), which read:

“Evidence has been received that the defendant has been involved in offenses other than that charged in the information. This evidence has been received solely on the issue of the defendant’s intent, motive and design. This evidence may be considered by you only for the limited purpose for which it was received.” (Emphasis added.)

Defendant contends the instruction was totally improper as to the rape charge and “overbroad” as to the indecent liberties charge in that “[w]hile not relevant as to motive or design, the evidence was, according to Illinois law, relevant as to intent.”

The State responds that the defendant has waived this issue in failing to object to this instruction on the grounds now raised or to specifically assert it in his post-trial motion. Even were we to consider the error, the State maintains it was supported by the evidence and thus proper. The State cites cases in which this instruction was upheld in sex-crime prosecutions when the instruction stated that the evidence of other crimes could be considered for the purpose of showing the “relationship,” “familiarity” or “intimacy” between the parties or the defendant’s “motive” or “guilty knowledge”; the State fails, however, to cite a factually similar case wherein the instruction was used to permit consideration of evidence of other crimes for the purpose of showing defendant’s “design.” Neither do we believe defendant’s “motive” was here in issue. We believe the instruction improperly included the words “design” and “motive.” Although we find defendant has here waived consideration of this issue, even were we to consider it, we believe any error in the inclusion of the words “motive” and “design” in the instruction was not reversible. People v. Lieberman (1982), 107 Ill. App. 3d 949, 438 N.E.2d 516; People v. Weathers (1974), 23 Ill. App. 3d 907, 320 N.E.2d 442, rev’d on other grounds (1975), 62 Ill. 2d 114, 338 N.E.2d 880.

In a related argument, defendant finds error in the trial court’s refusal to instruct the jury with IPI Criminal No. 3.11, referring to “inconsistent testimony.” Here, defendant questions RA.S.’s testimony that she had not reported the earlier alleged rapes by defendant but did report the instant one. Defendant contends that this conduct was “inconsistent” and thus impeaching. We must reject defendant’s contention and agree with the trial judge that testimony that she had not reported the previous rapes is not “inconsistent” with her trial testimony, nor did it “impeach” her. The instruction was correctly rejected.

Defendant next contends that a new sentencing hearing is required because the trial court erred when it allegedly punished defendant three times for a single act, increased his sentence on the basis of “speculation” that complainant’s sister was “traumatized” by having to testify against her father and in imposing the maximum term on defendant for the rape conviction.

In the course of the sentencing hearing the court stated its fear that the ordeal of the trial might have caused “permanent scars upon both [R.A.S. and S.S.] *** and I hope they will be able to overcome the harm” caused them. Defendant contends there was no basis in the record for the court’s consideration of these alleged psychological scars as an aggravating factor.

In response, the State notes that a sentencing court has authority to consider a wide variety of factors in determining an appropriate sentence and that the court’s statement here was a reasonable inference and not merely speculative.

In our opinion, this statement by the court does not require a new sentencing hearing. The remarks were neither uncalled for nor dwelled upon by the trial judge. No error occurred.

Defendant next contends that the court erred in first stating that “I can’t think of anything worse” than an assault on a child, except for the taking of a life, and then in “refusing” to consider any sentence but the maximum for the rape charge. Our review of the record compels us to deny defendant’s argument; the record does not demonstrate that the court “refused” to exercise its discretion but that, in its determination, it concluded the maximum sentence was here appropriate. The nature of this crime, and defendant’s substantial prior record (including two convictions for theft, two convictions for robbery and convictions for burglary, possession of marijuana and aiding a prostitute) supports the court’s decision. Sentencing is a function of the trial judge and, absent an abuse of that court’s discretion, a reviewing court may not substitute its judgment for that of the sentencing judge. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) We find no abuse of discretion here.

Defendant next urges that his convictions for unlawful restraint and indecent liberties must be vacated because they are lesser included offenses of the greater rape conviction. We agree. People v. Coleman (1980), 83 Ill. App. 3d 429, 403 N.E.2d 1266; People v. Ross (1978), 60 Ill. App. 3d 857, 377 N.E.2d 230.

We do not, however, agree with defendant that the vacatur of those two convictions requires remandment for a new sentencing hearing. When, as here, “there is no indication from the record that a vacated conviction had any bearing on the sentence, it is not necessary to remand the cause for resentencing.” People v. Einstein (1982), 106 Ill. App. 3d 526, 535.

In sum, we vacate defendant's conviction for unlawful restraint and indecent liberties with a child and the sentences imposed thereon. We affirm defendant’s conviction for rape and the 30-year sentence imposed for that charge.

Affirmed in part; reversed in part.

STAMOS and DOWNING, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    JOHN EDWARD TRICE, Plaintiff-Appellee, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant.
    Fifth District
    No. 5—83—0850
    Opinion filed September 19, 1984.

      Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville (Richard E. Boyle and Gary K. Morgan, of counsel), for appellant.
    Randolph E. Schum, of Blunt & Schum, of Edwardsville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, the jury returned a verdict in the amount of $187,500 in favor of plaintiff, John Trice, on his complaint pursuant to the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq. (1976)) against defendant, Illinois Central Gulf Railroad Company. The court entered judgment on the verdict and denied defendant’s post-trial motion. On appeal, defendant raises numerous issues for our consideration. For the reasons which follow, we affirm the judgment of the circuit court.

Defendant’s first claims of error concern the instructions given to the jury. Initially, defendant asserts that the court erred in giving that portion of Illinois Pattern Jury Instruction (IPI), Civil, No. 20.01 (2d ed. 1971), which states that “the defendant denies that he was negligent in doing any of the things claimed by plaintiff.” It is defendant’s position that this instruction, by falsely implying that defendant admitted doing the things claimed by plaintiff, operated to deny defendant a fair trial. Even if error occurred in this regard, we are compelled to conclude that it is not of such magnitude as to warrant reversal. In addition to the instruction complained of, the court' gave an instruction in the language of IPI Civil No. 21.02, which informed the jury that the plaintiff had the burden of proving that defendant “acted, or failed to act” in the ways claimed by plaintiff. In view of this instruction, and the fact that defendant did not deny moving the tie injector which struck plaintiff, we cannot say that giving of the instruction complained of constitutes reversible error. (See Wofford v. DeVore (1966), 73 Ill. App. 2d 92, 95-96, 218 N.E.2d 649.) While defendant also contends that the court erred in refusing to give IPI Civil No. 3.01, concerning impeachment by prior inconsistent statement or conduct, we cannot say that this ruling constituted an abuse of the court’s discretion. Plaintiff never denied that he had prior criminal convictions, and his alleged statement that his athletic ability had led to his appearance on the cover of a national sports magazine related only to a collateral issue. Moreover, the jury was given IPI Civil No. 2.01, which informed the jury that it was its responsibility to determine the credibility of the witnesses, and we cannot say that the failure to give IPI Civil No. 3.01 caused any prejudice to defendant.

Next, defendant contends that the court erred in allowing plaintiff to testify as to the circumstances surrounding his conviction of six counts of obtaining services with the intent to defraud. After the court ruled that plaintiff could be impeached by evidence of these convictions, plaintiff testified that the convictions resulted from making telephone calls on another person’s account, that he had made restitution, and that he was under the impression that his record had been cleared. While it is normally error to permit a witness who has been impeached by prior convictions to explain the circumstances surrounding those convictions (Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 107-08, 210 N.E.2d 191), plaintiff’s testimony in this regard was nonetheless proper in this case. In opening statements defense counsel, in addition to stating that the evidence would show that plaintiff had been convicted of crimes, also stated that plaintiff had been fired from the railroad for falsely stating on his employment application that he had no prior convictions. Thus, the defense attack on plaintiff’s credibility was made not merely through a showing of the fact of the convictions, but involved the relating of those convictions to other actions of plaintiff. Under these circumstances, plaintiff was properly allowed to explain his belief that he had cleared his record by making restitution to the victims of his crimes. We note parenthetically that, even if plaintiff should not have been allowed to testify in this fashion, “it would seem a harmless charity to allow the witness to make such protestations in his own behalf as he may feel able to make with a due regard to the penalties of perjury” (4 Wigmore on Evidence sec. 1117 (Chadbourne rev. ed. 1972), cited in Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103, 107, 210 N.E.2d 191), and we cannot say that such error would warrant reversal.

Defendant also asserts that certain remarks of plaintiff’s counsel in closing argument were prejudicial and inflammatory. Defendant did not object, however, to plaintiff’s argument that a named railroad employee would be fired if he failed to testify for the railroad; accordingly, any issue concerning the propriety of these remarks is waived for purposes of review. (Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 817, 364 N.E.2d 650.) As to the remaining portions of the argument complained of, we have examined these remarks carefully and cannot conclude that they “were of such a character as to have prevented defendant from receiving a fair trial.” 49 Ill. App. 3d 809, 817.

Defendant lastly claims that the verdict of $187,500 is excessive, and asks us to grant a substantial remittitur. There was, however, adequate evidence to support the verdict. Plaintiff was hospitalized on four different occasions, and the testimony of plaintiff and his witnesses established that plaintiff still suffered from hearing loss, headaches, dizziness, numbness in his fingers, and neck and chest pains at the time of trial. Moreover, plaintiff testified that these difficulties affected his ability to attend school, do heavy work and play with his children. In light of this evidence supporting the verdict, we decline defendant’s invitation to reduce it.

We have considered the remaining issues raised by defendant in the course of its principal arguments, and find these issues to be without merit.

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

Affirmed.

WELCH, P.J., and KASSERMAN, J., concur.


author: JUSTICE KASSERMAN

text:
    LEONA BOYD, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Firestone Tire & Rubber Co. et al., Appellees).
    Fourth District
    No. 4—84—0094WC
    Opinion filed September 25, 1984.
    Rehearing denied November 9, 1984.

      Serkland & Muelhausen, of Chicago (James C. Serkland, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellee Industrial Commission.
    Henry D. Noetzel & Associates, Ltd., of Peoria (William J. Thomas, of counsel), for appellee Firestone Tire & Rubber Company.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Leona Boyd, filed an application for adjustment of a claim under the Workers’ Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for an injury to her right hand. An arbitrator found that Boyd had permanently lost 100% of the use of the hand but did not find that she was permanently totally disabled. The Industrial Commission affirmed the arbitrator’s decision. The circuit court of Macon County confirmed the decision of the Commission. Boyd has perfected this appeal.

Boyd has been employed by respondent Firestone Tire & Rubber Company since 1954. On October 13, 1960, while she was working for respondent at respondent’s World Bestos division in New Castle, Indiana, Boyd sustained a right-hand injury in the course of her employment, resulting in the amputation of her ring and middle fingers as well as the heads of the metacarpals of those two fingers. She was compensated for the permanent loss of the use of 55% of the hand. An eye examination on February 8, 1977, established her uncorrected vision as 20/400 right, 20/200 left, correctable to 20/20 bilaterally. Boyd was fitted with contact lenses on that date. Boyd was born in 1931 and has a 10th-grade education.

The injury complained of occurred April 18, 1977, at respondent’s Decatur, Illinois, plant. According to Dr. David Barnes, who examined Boyd, she told him “she was ‘pulling apart stuck rubber off a skid’ and suddenly had a sharp pain in the metacarpal phalangeal joint of her index finger.” On June 26, 1979, Dr. James Steichen performed a fusion of the distal phalangeal joint of the small finger of the right hand.

Respondent stipulated before the Commission that petitioner has now lost 100% of the use of the right hand as a result of the 1977 injury, having lost 55% of the use of her right hand in a prior work injury. In pertinent part, the exhibits at the September 16, 1980, hearing before the arbitrator were as follows:

In a May 17, 1977, letter to Boyd, Dr. Joseph Schrodt stated, “I think it would be important that you not lift more than ten pound objects.”

In a July 8, 1977, letter to respondent’s medical department, Dr. Steichen stated that in his opinion it was going to be difficult for Boyd to continue working using the hand, as she had continuing pain; also, Boyd had previously had much trouble on a one-handed job due to the stress to her good hand which “places her in a very compromising position.”

In an October 17, 1978, “Status Report” in checklist form, Dr. Steichen noted that Boyd was under hs care, was not totally or partially disabled, was working, had no work limitations, will need additional surgery, and that her condition was presently worsening.

In a letter dated March 6, 1980, Dr. Barnes stated his findings after an examination of Boyd and explained why the 1977 injury did not cause Boyd’s present problems with her hand. Dr. Barnes stated that Boyd told him she was “anxious” to return to work; however, no opinion is stated regarding Boyd’s ability to use the hand for work or otherwise. Problems with the hand noted by Dr. Barnes include pain in the index finger from cold exposure or prolonged usage, ulnar drift and subluxation of the metacarpal phalangeal joint of the index finger, possible arthritis, and destruction of the metacarpal arch, which “distorts the mechanical forces within the hand. *** A sort of falling together, if you like.”

Before the Commission, the parties stipulated, inter alia, that on or about January 28, 1981, Boyd had moved to Indiana, about 200 miles from Decatur, Illinois, that she had resided there ever since, and that her last name was now Davis as the result of a January 1981 judgment of dissolution of marriage.

Boyd testified at the hearing before the Commission on July 28, 1981, that she had not returned to work since the arbitration hearing, that she had “previously” reported to respondent ready to work, that she had submitted doctors’ reports to respondent, and that she had not approached any potential employers other than respondent. According to Boyd, since the arbitration hearing she had phoned respondent seeking work and had been told to wait and that she would be called. According to Boyd, she phoned Dan Keller, who was then president of the union, late in September 1980 in an attempt to return to work; that Keller said he would inquire; and that Keller called back the same day and said that he had talked to Jack Dearth, who said that there was no work for her then. Asked whether she had spoken to a representative of respondent at that time, Boyd replied that she had tried previously, but her calls had not been returned.

Larry Harper, present president of Boyd’s union, testified regarding two telephone conversations he had had with Jack Dearth the morning of the hearing before the Commission. According to Harper, he made inquiry as to why Boyd was not working, and Dearth called back and said that with a 10-pound lifting limitation on her hand, there was no work she could do for respondent.

After a continuance, the hearing before the Commission resumed on October 27, 1981. At that time, John Dearth, labor relations manager at respondent’s Decatur plant, testified as follows: Respondent’s records showed that Boyd was a fork truck operator from October 3, 1978, to January 18, 1979, and was a tire checker and labeler from February 23, 1979, until March of 1980, when “she was placed on sick suspension.” She had not worked for respondent since. No lifting was required on the part of a forklift operator, although the job sometimes involved restacking loads. There were service and utility employees to do this for a driver who was unable. Forklift controls included steering wheel, lift lever, tilt lever, and gear shift. Some incidental lifting was also part of a labeler’s job. The tires which one might be required to move each weighed between 13 and 30 pounds. The witness testifled that Boyd had not contacted him regarding returning to work. He further stated that he had talked to Harper on July 28, 1981, regarding Boyd’s capacity to work, and her weight-lifting restriction had been discussed. The witness had the authority to call Boyd back to work immediately if she had her doctor’s release; however, this had not occurred, and her file presently showed a 10-pound lifting restriction. Asked whether he was prepared to offer Boyd a job as either a forklift operator or a labeler, the witness replied that he was, if she obtained a doctor’s release.

Harper, who had worked at respondent’s Decatur plant for 15 years, testified: If something fell off of a forklift, the operator picked it up. There was no one whose job it was to assist in such case. In daily operations, people help various other people, but it was no one’s job. Service and utility personnel people are intended to fill in for absentees. Forklift driving was not a one-handed job, and to the witness’ knowledge, no one but Boyd had tried it. A checker and label-er’s duties included restacking and final sorting if necessary.

In finding that Boyd had failed to prove that she was temporarily or permanently totally disabled, the Commission found that there was no evidence as to why Boyd stopped working in March 1980 or that she was unable to work as a forklift driver or as a checker and labeler because of her injury. The Commission also found that Boyd had not sought work since the arbitration hearing, except for telephoning her union’s president, and had not asked respondent for work. The Commission expressly relied on Dearth’s testimony that Boyd could return to work at a job within her restrictions if she requested a job and had a doctor’s release. The Commission also rejected Boyd’s claim for Second Injury Fund compensation, finding that petitioner had not lost 100% of the use of either eye, her vision being normal with corrective lenses.

We first consider Boyd’s contention that she is entitled to Second Injury Fund compensation (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(e)(18)) and find that the Commission’s decision to the contrary was not against the manifest weight of the evidence. The Commission is not required to adopt either corrected or uncorrected vision to the exclusion of the other as the measure of loss of use of an eye. (See Pridgeon v. Industrial Com. (1982), 89 Ill. 2d 477, 479, 433 N.E.2d 659, 660; State Treasurer v. Industrial Com. (1979), 75 Ill. 2d 240, 245, 388 N.E.2d 419, 421.) The extent of loss of use of an eye is a question of fact, and the findings of the Commission thereon will not be disturbed on review unless contrary to the manifest weight of the evidence. (Pridgeon v. Industrial Com. (1982), 89 Ill. 2d 477, 481, 433 N.E.2d 659, 661.) Boyd’s vision being correctable and in fact corrected to 20/20, the Commission could properly conclude that no complete loss of use of Boyd’s eyes had been sustained in view of the above authorities. The Second Injury Fund was properly held not liable in the instant case.

We turn to Boyd’s contention that the Commission erred in finding that she was not proved to be totally and permanently disabled. First, Boyd contends that the Commission erred in concluding that she worked from October 3, 1978, to January 18, 1979, as a forklift driver and from February 23, 1979, to March 1980 as a checker and labeler. Boyd argues that she did not quit working in March 1980, but rather was already off work and attempting to return. Urged in support of Boyd’s argument are Dr. Steichen’s December 14, 1979, letter, indicating that Boyd had a fusion of her small right finger in June of 1979, and Dr. Barnes’ March 6, 1980, letter reciting Boyd’s statement that she was anxious to return to work. Boyd did not testify regarding when or why she left work. We conclude that the Commission did not err in deciding to accept Dearth’s testimony based on respondent’s records over the circumstantial evidence to the contrary urged by Boyd. Questions of fact, credibility and weight of testimony are primarily for the determination of the Commission, and it is within the province of the Commission to draw reasonable inferences and conclusions from the evidence. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 260, 461 N.E.2d 1363, 1364.) The Commission’s conclusion that Boyd stopped working in March of 1980 was not contrary to the manifest weight of the evidence.

Boyd further challenges the Commission’s conclusion that she had not proved that she had made sufficient efforts to return to work. Such a conclusion required two component conclusions on the Commission’s part, one as to what Boyd’s efforts to return to work had been and, the other, that those efforts had been insufficient. As to the former, the Commission found that Boyd had not asked respondent if she could return to work or otherwise seek work since the arbitration hearing except for telephoning her union president in September 1980. The Commission did not comment on Boyd’s attempts to return to work between March 1980 and the arbitration hearing in September 1980. Boyd contends that the Commission overlooked that she sought to return to work on March 6, 1980, as reflected in Dr. Barnes’ letter, and that she made telephone calls which respondent did not return.

The Commission did not, in our view, erroneously understate Boyd’s efforts to return to work. A statement of intention made to an examining doctor need not have been viewed as an affirmative attempt to return to work, and the Commission apparently did not view it as such. Regarding Boyd’s alleged telephone calls to respondent, her testimony was uncorroborated, and she suggested neither dates, persons spoken to, nor any summary of what was said.

Turning to the second point, the sufficiency of Boyd’s efforts to return to work, such a determination is founded upon an inference the Commission is peculiarly entitled to draw from the evidence adduced. As we cannot conclude that Boyd’s efforts were sufficient as a matter of law, we must defer to the Commission’s determination upon that question.

In summary, we find that the Commission’s conclusions that Boyd stopped working in March 1980 and that she did not establish that she had made sufficient efforts to find work thereafter were both supported by the evidence adduced. Boyd has chosen to urge that she was off work long before March of 1980 and has not disputed the Commission’s conclusion that no reason was shown for her having left work in March of 1980. In that setting, we next consider whether it was contrary to the manifest weight of the evidence for the Commission to find that there was no evidence in the record establishing that Boyd could not work as a forklift driver or as a checker and labeler due to her injury.

The record amply establishes the industrial uselessness of Boyd’s right hand. The Commission did not find otherwise, instead noting the parties’ stipulation that Boyd had lost 100% of the use of her right hand. Dr. Schrodt stated that Boyd was restricted to lifting not more than 10-pound objects, and Dearth’s testimony established respondent’s awareness of this limitation. Dr. Steichen stated that Boyd’s condition required that she avoid using the injured hand or working one-handed jobs. Even Dr. Barnes, whose stated opinion appears to be the medical opinion of record most favorable to respondent, did not indicate that the injured hand was of any industrial use or that Boyd could do any work for respondent.

In this regard, if claimant’s disability is limited in nature so that she is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in her circumstances. However, once the employee has initially established that she falls into what has been termed the “odd-lot” category (one who, although not altogether incapacitated for work, is so handicapped that she will not be employed regularly in any well-known branch of the labor market), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. (Ceco Corp. v. Industrial Com. (1983), 95 Ill. 2d 278, 287, 447 N.E.2d 842, 845-46.) In light of the evidence in the case at bar concerning Boyd’s age, education, and experience, we are of the opinion that the stipulated extent of her injuries was sufficient evidence that she was not obviously employable, i.e., that she had made out a prima facie case that she fell into the odd-lot category (see Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill. 2d 538, 547, 419 N.E.2d 1159, 1163) and that she was unable to perform any but the most menial tasks, for which no stable market exists (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 178, 427 N.E.2d 103, 108). Neither the parties nor the Commission even considered any possible employment for Boyd other than as a forklift driver or checker and labeler. Dearth testified that either job was available and that Boyd could work for respondent within her restrictions if she requested a job and had a doctor’s release; however, Harper, the union president, testified that forklift driving was not a one-handed job, and Dearth admitted that the job could involve restacking loads and that labelers had to do some lifting as well.

Based on the foregoing evidence, we conclude that the Commission’s finding that Boyd had failed to establish her inability to work as either a forklift driver or a checker and labeler was contrary to the manifest weight of the evidence. Boyd’s inability to work using her right hand was conclusively established; her inability to work a one-handed job was shown by credible, uncontradicted evidence. We conclude that Boyd has shown her entitlement to benefits for permanent and total disability.

For the foregoing reasons, we affirm the judgment of the circuit court of Macon County confirming the finding of the Industrial Commission that petitioner had lost 100% of the use of her right hand; however, we reverse that portion of such judgment confirming the Industrial Commission’s finding that petitioner was not permanently totally disabled. This cause is remanded to the Industrial Commission for determination of benefits.

Affirmed in part and reversed in part and remanded.

SEIDENFELD, P.J., BARRY, McNAMARA, and WEBBER, JJ.


author: PRESIDING JUSTICE MILLS

text:
      In re ESTATE OF ODE HALL, Deceased (John Warner Bank, Ex’r of the Estate of Ode Hall, Petitioner-Appellee, v. Edward A. Hall, Jr., et al., Respondents (Ted Hall, Respondent-Appellee; Gertrude Connors, Respondent-Appellant)).
    Fourth District
    No. 4—84—0138
    Opinion filed September 21, 1984.
    Rehearing denied November 2, 1984.

      Brown, Hawkins, Basola & Mattingley, of Decatur (Rex L. Brown and Britt A. Brown, of counsel), for appellant.
    A. J. Rudasill, of Clinton, for appellee Ted Hall.
    Smith, Smith & Taylor, of Clinton, for other appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Testamentary trust.

Title to land vests upon death of the testator.

Trust income during probate should have gone to the income beneficiary and not used for costs of administration.

We reverse.

The will of Ode Hall devised all of Ode’s real estate to the John Warner Bank of Clinton, Illinois, as trustee. Ode’s sister, Gertrude Connors, and brother, William Hall, were the income beneficiaries of the trust. William predeceased Ode, leaving Gertrude as the sole income beneficiary.

The estate became indebted for State and Federal estate taxes approaching one-half million dollars. To pay the taxes, the bank — acting as executor — sold 200 acres of a 520-acre farm. The proceeds from the sale were insufficient to pay the taxes soothe bank borrowed money. The indebtedness on the borrowed money was paid off through the operation of the farm during the administration period.

Gertrude Connors, the income beneficiary of a testamentary trust, appeals from an order of the trial court approving the executor’s final report.

I

She argues on appeal that she was entitled to the farm income from the date of the decedent’s death and that the bank improperly used this income to pay estate taxes.

We held in In re Estate of Enright (1982), 106 Ill. App. 3d 914, 436 N.E.2d 681, that under section 5 of the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163) an income beneficiary of a residual testamentary trust is entitled to income produced from probate property and that the income may not be used to satisfy claims against the estate such as expenses of administration, estate and inheritance taxes and legacies. The Principal and Income Act was amended in 1982, and the provisions of section 5 of the former Act, on which the Enright decision was based, now appear in section 6(a) of the Act. This section states:

“[A]ll expenses incurred in connection with the settlement of a decedent’s estate, including debts, funeral expenses, estate taxes, family allowances, fees of attorneys and representatives, and court costs shall be charged against the principal of the estate.” Ill. Rev. Stat. 1983, ch. 30, par. 506(a).

There have been no substantive changes to the Act which would affect our decision in Enright. It is clear then that under section 6(a) of the Principal and Income Act and our holding in Enright that the income from the farm should not have been used to pay estate taxes. The bank argues, however, that the provisions of the Principal and Income Act are subject to the terms of the will and that Ode Hall’s will authorized the expenditure of income for estate taxes.

Section 3(a) of the Principal and Income Act states that “[a] person establishing a trust may make provision in the instrument for *** the apportionment of receipts and expenses or grant discretion to the trustee to do so and such provision *** shall control notwithstanding this Act.” (Ill. Rev. Stat. 1981, ch. 30, par. 503(a).) Section 3(b)(2) further provides that in the absence of any contrary terms in the trust instrument, the trust shall be administered in accordance with the provisions of the Act.

We find nothing in the will of Ode Hall which authorizes the bank to pay estate taxes from farm income. On the contrary, the will directed that the debts, including State and Federal taxes, be paid from the proceeds of the sale of personal property. In addition, the will authorized the bank, as executor, to sell real estate “to pay any of the debts of my estate.” Hence, the will evinces the intent of the testator that estate debts be paid first from the sale of personal property and then, if the personal property is insufficient to satisfy the debts, from the sale of real estate. This intent is consistent with the provisions of the Principal and Income Act, and we find no terms in the will contrary to section 6(a) of the Act which requires that estate taxes be charged against the principal.

II

The bank next argues that the Principal and Income Act was not applicable during the administration period because the trust was not in existence until after the administration was completed. The bank’s argument is based on the following provisions in the will:

“My trustee shall take possession of all of said real estate *** immediately upon the completion of the administration of my estate. *** Once each year, commencing as soon after the completion of the administration of my estate as is convenient and feasible, said trustee shall distribute all of the net income from the trust corpus [to the income beneficiaries].”

The bank maintains that since possession by the trustee and the distribution of income to the beneficiaries was not to occur until after the administration was complete, the trust did not come into existence until that time.

We disagree.

Realty devised passes directly to the devisee on the death of the testator. (Trustees of Schools v. Clippinger (1949), 404 Ill. 202, 88 N.E.2d 451; Meppen v. Meppen (1945), 392 Ill. 30, 63 N.E.2d 755.) See also 96 C.J.S. Wills sec. 1099, at 821 (1957), which states, “Generally, title to real property passes to, and vests in, the devisees immediately on the testator’s death and not at the probate of the will, at least where the will does not postpone the vesting of title.” In addition, section 5(a) of the Principal and Income Act (Ill. Rev. Stat. 1981, ch. 30, par. 505(a)) states, “In the case of an asset becoming subject to the trust by reason of a will, it becomes subject to the trust as of the date of the death of the testator even though there is an intervening period of administration.”

Ode Hall’s will did not specify the date on which title to the farmland was to vest in the trustee. The will merely stated, “I devise all of my real estate to The John Warner Bank of Clinton, Illinois, in trust for the following uses and purposes.” We can only conclude, therefore, that title to the farmland vested in the bank, as trustee, on the date of the testator’s death, and the bank was required to administer the trust in accordance with the provisions of the Principal and Income Act during the administration period.

The trial court’s order affirming the executor’s report is reversed and this case is remanded for an accounting to determine the amount of farm income earned during the administration period to which respondent is entitled.

III

Respondent next argues that the executor’s attorney fee was excessive. It appears that the bank’s attorneys were awarded $80,000. The bank notes that the estate had a gross value of $1,726,119, that the administration period extended over Mk years, and that 800 hours of legal services were rendered to the bank. The administration was further complicated by the bankruptcy of a tenant farmer on the estate property and a suit for a will construction which lasted 22 months.

Section 27—2 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 1101/2, par. 27—2) provides that the attorney for a representative is entitled to a reasonable compensation for his services. The amount to be paid an attorney for services rendered by him for an administrator is a matter peculiarly within the province of a probate court and is to be determined by that court in the exercise of its judicial discretion. In re Estate of Weber (1980), 81 Ill. App. 3d 257, 401 N.E.2d 245; In re Estate of Minsky (1978), 59 Ill. App. 3d 974, 376 N.E.2d 647.

Under the facts of the present case, we find that the award of executor’s attorney fee was reasonable. Cf. In re Estate of Grabow (1979), 74 Ill. App. 3d 336, 392 N.E.2d 980.

IV

Finally, respondent argues that attorney fees should not have been awarded to the attorney for the remainderman, Ted Hall. Respondent maintains that such fees would only have been appropriate if this were a suit for a will construction. Ted Hall’s attorney argues that this proceeding did involve a will construction and that it would be unfair to require Ted Hall to bear the expense of protecting the rights of all remaindermen.

It has been held that the costs of litigation in a will construction are borne by the estate on the theory that a testator expressed his intentions so ambiguously as to necessitate a construction of the will in order to resolve adverse claims to the property. (Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 183 N.E.2d 505; In re Estate of Smith (1979), 68 Ill. App. 3d 30, 385 N.E.2d 363.) In Lloyd v. Sears Bank & Trust Co. (1978), 67 Ill. App. 3d 141, 384 N.E.2d 742, the court held that a suit which alleged that the trustee made an improper distribution of trust property was effectively a suit for a construction of the trust.

The heart of the present appeal involved a construction of the will to determine whether the trust was to commence at the date of the testator’s death and whether respondent was entitled to income from the real estate during the administration period. We find, therefore, that the trial court did not err in awarding attorney fees to the attorney for the remainderman.

Affirmed in part, reversed in part and remanded with directions.

TRAPP and WEBBER, JJ., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DWIGHT C. HONAKER, Defendant-Appellee.
    Fourth District
    No. 4—83—0617
    Opinion filed September 28, 1984.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    David W. Butler, of Bloomington, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Defendant was arrested for driving under the influence of alcohol.

The arresting officer filed an affidavit alleging reasonable grounds to believe that defendant was driving under the influence of alcohol and that defendant had refused to submit to a breathalyzer test. At the implied consent hearing, the trial court ruled in favor of the defendant. The court stated that the State had failed to show by a preponderance of the evidence that defendant’s refusal to submit to the breathalyzer test was a cognitive, knowing refusal. The State appeals, and we reverse and remand.

We do not have a transcript of the proceedings at the implied consent hearing. Therefore, we must base our review on the uncontested bystander’s report. The bystander’s report states that the arresting officer read the implied consent law to the defendant and asked if defendant understood it. Defendant responded affirmatively. The defendant said that he was refusing to submit to the breathalyzer test because he knew he would fail it. Neither the State nor the defense asked the arresting officer specifically what was read to the defendant prior to his refusal. Defendant presented no evidence. The trial court ruled that the State had not proved by a preponderance of the evidence that the defendant’s refusal to submit to the breathalyzer test was a cognitive, knowing refusal.

Section 11 — 501.1(c) of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(c)) provides as follows:

“A person requested to submit to a test as provided above shall be warned by the law enforcement officer requesting the test that a refusal to submit to the test will result in suspension of such person’s license to operate a motor vehicle for six (6) months for the first such arrest and refusal and a suspension of such privilege for 12 months for the second and each subsequent such arrest and refusal within 5 years. ***
*** Whether the person was informed that such person's privilege to drive would be suspended if such person refused to submit to the test or tests shall not be an issue.”

Implied consent hearings are civil proceedings. (People v. Lyden (1981), 97 Ill. App. 3d 540, 423 N.E.2d 262; People v. Fancher (1978), 56 Ill. App. 3d 632, 371 N.E.2d 1291.) The scope of an implied consent hearing is limited by statute to the issues provided in section 11—501.1(d) (Ill. Rev. Stat. 1983, ch. 951/2, par. 11—501.1(d)). (People v. Babych (1983), 112 Ill. App. 3d 704, 445 N.E.2d 921.) Under section 11—501.1(c), the question of whether a person was warned that his driving privileges would be suspended if he refused to submit to the test is not an issue at the implied consent hearing.

Defendant contends that section 11 — 501.1(c) violates due process because the statute does not require the State to prove that the defendant was warned of the consequences of refusing to take the breathalyzer test. Defendant cites Garrison v. Dothard (Ala. Civ. App. 1979), 366 So. 2d 1129, as the sole support for this constitutional argument. The Alabama statute under scrutiny in Garrison, like our statute, provided that a police officer warn the individual requested to take a chemical sobriety test that his failure to submit to the test would result in a suspension of his driver’s license. The statute also stated that" whether the individual had been warned would not be an issue at the hearing.

In Garrison, the initial decision to suspend the defendant’s license was made by an administrative agency. The decision was affirmed by the trial court at a de novo hearing, and reversed by the appellate court. Contrary to the suggestion of the defendant in the case at bar, however, the appellate court in Garrison did not rest its reversal on due process grounds. Rather, the appellate court found, as a matter of statutory construction, that the statute regulated only the issues to be raised at the administrative proceeding. The court determined that the issue of warning could be addressed at the de novo hearing in the trial court. We see no reason or logic in construing the Illinois statute in a similar manner. Under the Illinois procedures, there is no preliminary administrative proceeding, hence the limiting language of the statute can only have application to the judicial proceedings in the trial court.

The due process clause clearly applies to the deprivation of a driver’s license. (Dixon v. Love (1977), 431 U.S. 105, 52 L. Ed. 2d 172, 97 S. Ct. 1723; Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) Suspension of a driver’s license involves a protectable property interest. Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.

The Supreme Court stated in Mackey that the only question presented was “what process is due to protect against an erroneous deprivation of that interest.” (443 U.S. 1, 10, 61 L. Ed. 2d 321, 329, 99 S. Ct. 2612, 2617.) The court held that the following standard should be used in resolving this issue:

“ ‘First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).” Mackey v. Montrym (1979), 443 U.S. 1, 10, 61 L. Ed. 2d 321, 329-30, 99 S. Ct. 2612, 2617.

The initial step in this balancing process is identification of the nature and weight of the private interest affected by the official action which has been challenged. In the case at bar, the private interest affected is the individual’s license to drive a motor vehicle. There is no risk under our statute that a driver will be deprived of his license prior to a hearing, because paragraph 11 — 501.1(c) grants a driver the right to a hearing before his license is suspended. The specific interest in the case at bar is whether the driver has a constitutional right to address at the implied consent hearing whether he was warned of the consequences of a refusal to take the test.

Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, is instructive. In Schmerber, the defendant was arrested at the hospital while receiving treatment for injuries sustained in a car accident. The arresting officer directed that a blood test be performed on the defendant, despite defendant’s refusal to consent. The court held that where the officer makes a justified conclusion that the driver was under the influence of alcohol, a compulsory blood test for blood-alcohol content does not violate due process. We conclude that since the defendant could have been required to submit to a breathalyzer test without his consent, it is not constitutionally mandated that he must be advised of the possible consequences where he is allowed the choice of whether to refuse the test.

The second step of the Eldridge inquiry requires that the court consider the likelihood of an erroneous deprivation of the private interest involved as a consequence of the challenged procedures. (Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) In Mackey, the court stated “that ‘something less than an evidentiary hearing is sufficient prior to adverse administrative action’ ” (443 U.S. 1, 13, 61 L. Ed. 2d 321, 331, 99 S. Ct. 2612, 2618, quoting Dixon v. Love (1977), 431 U.S. 105, 113, 52 L. Ed. 2d 172, 180, 97 S. Ct. 1723, 1728). Under section 11—501.1(c) the arresting officer must file a sworn statement that the driver refused the test and that the officer had reasonable cause to believe the person driving the motor vehicle was under the influence of alcohol or other drug. Defendant then has the right to address these issues at the implied consent hearing. In view of the fact that his license may not be suspended without a showing that the officer had reasonable grounds to believe he was driving a motor vehicle while under the influence of alcohol or other drug, the risk of an erroneous deprivation of his driver’s license is minimal.

The final leg of the Eldridge balancing test requires us to identify the governmental function involved and to weigh the State interests served by the challenged procedures, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought. (Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612.) The State interest in getting the drunk drivers off the highways is exceptionally strong. (Illinois v. Batchelder (1983), 463 U.S. 1112, 77 L. Ed. 2d 1267, 103 S. Ct. 3513; Mackey v. Montrym (1979), 443 U.S. 1, 61 L. Ed. 2d 321, 99 S. Ct. 2612; Perez v. Campbell (1971), 402 U.S. 637, 29 L. Ed. 2d 233, 91 S. Ct. 1704.) In Batchelder, the Supreme Court upheld the procedure involved in our implied consent statute as constitutional. Although the court did not address the specific issue involved here, the government interest in prohibiting drunk drivers access to motor vehicles is the same substantial interest as in Batchelder.

We conclude that due process does not require that the State be required to prove in an implied consent hearing that the defendant was warned of the consequences of refusing the breathalyzer. Our legislature has by statute granted the driver the right to refuse to take the breathalyzer test. This is not constitutionally required. (See Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) Our legislature has also provided that a driver arrested for driving under the influence be read the implied consent law and has specifically stated that this warning is not an issue in an implied consent hearing. While we deem it highly advisable that the officer does warn the driver, it is not constitutionally mandated that this warning be established at the implied consent hearing.

For the reasons stated, the judgment of the circuit court of McLean County is reversed and remanded.

Reversed and remanded.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE MILLER JUSTICE TRAPP,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANITA ALLEGRI, Defendant-Appellant.
    Fourth District
    No. 4—83—0780
    Opinion filed September 28, 1984.
    TRAPP, J., dissenting.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Rebecca L. White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

The issue on appeal is whether defendant’s inability to conform her conduct to the requirements of the law is a defense in a probation revocation proceeding based upon acts which constitute a criminal offense. We find insanity is not an available defense in probation revocation. Therefore, we affirm the trial court’s decision.

On November 30, 1982, Anita Allegri pleaded guilty to the offense of unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, par. 10—3(a).) The substance of the offense was that she had attempted to take a two-year-old boy away from his father. Allegri was placed on 30 months’ probation conditioned upon incarceration in the Champaign County correctional facility as a work-release prisoner. She was ordered not to violate any State laws and to report on a regular basis for psychological counseling. On May 4, 1983, a petition to revoke Allegri’s probation was filed. It alleged Allegri had violated a condition of her probation by knowingly detaining 13-year-old William Norman without legal authority. (Ill. Rev. Stat. 1981, ch. 38, par. 10—3(a).) On August 31, 1983, a hearing was held on the petition. The evidence established that on February 20, 1983, Allegri detained Norman at the Lincoln Square Mall in Urbana. She grabbed his wrist and told him to write his name on a piece of paper. In addition, he was told to write “Mind Control.” Testimony established that Allegri spoke of lasers, mind control, and feared her thoughts were being broadcast to the community. She also was afraid the police were trying to shoot her. Shortly after her arrest for this incident, she was transferred to a mental health facility.

Allegri established the insanity defense. A psychiatrist testified that, in his opinion, at the time of the second offense Allegri was unable to conform her conduct to the requirements of the law due to the mental disease of paranoid schizophrenia and a paranoid personality disorder. He stated that had she been properly medicated in February she probably would not have committed the acts leading to revocation.

The trial court ruled that because of the nature of probation revocation proceedings, applicability of the insanity defense was not constitutionally mandated. It also determined the defense was not statutorily available. However, it stated that if the defense was available, the State had not met its burden of rebutting it. After a sentencing hearing, held before a different judge, Allegri was sentenced to an additional term of 30 months’ probation. She was ordered to cooperate fully with a psychiatrist and the Department of Mental Health.

Defendant argues insanity is an available defense. She contends that the trial court unduly relied upon section 5 — 2 — 4 of the Unified Code of Corrections in reaching its decision. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—4.) She maintains that since the defense is not specifically made inapplicable to revocation proceedings, it applies. (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).) At the outset, we note that the statutes deal with criminal conduct. Section 5—2—4 specifically addresses proceedings after “acquittal” by reason of insanity. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—4.) Section 6—2(a) establishes an affirmative defense to “criminal” responsibility. Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).

A probation revocation proceeding is not a criminal adjudication. It does not determine guilt or innocence of an accused. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756; People v. Beard (1973), 15 Ill. App. 3d 663, 304 N.E.2d 707, aff’d (1974), 59 Ill. 2d 220, 319 N.E.2d 745, cert denied (1975), 421 U.S. 992, 44 L. Ed. 2d 483, 95 S. Ct. 1999.) The issue in a probation revocation proceeding is two-fold: first, whether a probation violation actually occurred, and second, whether the purposes of defendant’s probation are being served by his continued liberty. (People v. Dowery (1974), 20 Ill. App. 3d 738, 312 N.E.2d 682, aff’d (1975), 62 Ill. 2d 200, 206, 340 N.E.2d 529, 531; People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824; United States v. Torrez-Flores (7th Cir. 1980), 624 F.2d 776; People v. Beard (1973), 15 Ill. App. 3d 663, 304 N.E.2d 707.) Because of the noncriminal nature of the inquiry in revocation proceedings, statutes which address criminal responsibility and proceedings after acquittal are facially inapplicable.

The first step in statutory construction is ascertaining and giving effect to the intention of the legislature. Statutory language is the starting point of the analysis. (People v. Boykin (1983), 94 Ill. 2d 138, 445 N.E.2d 1174.) The language of section 5 — 2 — 4 does not refer to probation revocation. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—4.) Similarly, the language of section 6 — 2(a) does not refer to noncriminal responsibility. (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).) Generally, in giving effect to the intent of the legislature, the court gives the language of the statute involved its ordinary meaning. (Clement v. O’Malley (1981), 95 Ill. App. 3d 824, 420 N.E.2d 533, aff’d (1983), 96 Ill. 2d 26, 449 N.E.2d 81.) The language is the best indication of intent. Where legislative intent can be gathered from the language, no resort to other sources of information is necessary. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674.) In this case, the trial court carefully considered the statutes. They do not mention the probation revocation circumstance. Considering the result of holding insanity applicable and the language of the statutes, the court decided it was not a statutory defense. We agree.

If insanity applied as a defense, the trial court would have no statutory authority to modify or revoke probation even though defendant’s actions clearly establish a violation of probation and a frustration of its purposes. (Ill. Rev. Stat. 1981, ch. 38, pars. 1005— 2—4, 1005—6—4.) Reading insanity into the statutes as a defense to revocation would create a contradictory situation for the trial court. This is not necessary. The language of the statutes excludes revocation. Language is the best evidence of legislative intent. Additionally, the statutes address criminal adjudications — not noncriminal ones. Therefore, the trial court correctly declined to read in insanity as a defense to revocation. Droste v. Kerner (1966), 34 Ill. 2d 495, 217 N.E.2d 73, appeal dismissed, cert, denied (1967), 385 U.S. 456, 17 L. Ed. 2d 509, 87 S. Ct. 612.

The operative question is whether, in the interests of fundamental fairness, inability to conform one’s conduct to the requirements of the law should be a defense to probation revocation. Illinois courts have not considered this issue. However, insanity is a defense to criminal responsibility. (Ill. Rev. Stat. 1981, ch. 38, par. 6—2(a).) An understanding of the nature of probation is necessary as a preliminary matter. Probation is a privilege — not a right. The trial court has great discretion in granting or denying probation. (People v. Seipel (1969), 108 Ill. App. 2d 384, 247 N.E.2d 905, cert, denied (1970), 397 U.S. 1057, 25 L. Ed. 2d 675, 90 S. Ct. 1405.) Absent a clear showing of abuse, the decision of the trial court will not be overturned. People v. Sims (1965), 32 Ill. 2d 591, 208 N.E.2d 569.

In granting or denying probation, the trial court must balance competing interests. These interests reflect the purpose of probation. (People v. Dowery (1974), 20 Ill. App. 3d 738, 312 N.E.2d 682, aff’d (1975), 62 Ill. 2d 200, 340 N.E.2d 529.) Rehabilitation of a defendant without incarceration is an important purpose. Equally important is the protection of society from the type of activity that led to defendant’s being placed on probation. (People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824; People v. McClendon (1970), 130 Ill. App. 2d 852, 265 N.E.2d 207.) The defendant, at the probation revocation stage, is always a convicted felon. People v. Henderson (1971), 2 Ill. App. 3d 401, 405, 276 N.E.2d 372, 375.

Because of the unique position of defendants at probation revocation proceedings, courts have held that the process due them is not the same as that due defendants initially standing trial for the substantive offense. In Morrissey v. Brewer (1972), 408 U.S. 471, 480-81, 33 L. Ed. 2d 484, 493-94, 92 S. Ct. 2593, 2599-2600, the Supreme Court noted the two-step analysis used in parole revocation. The first step is the factual determination of whether the acts occurred. The second is the determination of how to protect society while furthering the rehabilitative goals of parole. The court held that the parolee’s liberty interest justified a measure of due process protection. However, because the parolee’s liberty is conditional, the constitutional protection due him was not as strict as that due a nonconvicted person. In Gagnon the Supreme Court equated the liberty interest of a probationer with a parolee. Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60.

At a probation revocation proceeding, therefore, the defendant is in effect awaiting resentencing, not sentencing. The resulting lesser due process protection is reflected in a number of ways. In Gagnon, the court held counsel was not automatically mandated to due process concerns. However, it held that both preliminary determination of probable cause and a hearing on revocation were necessary. (Gagnon v. Scarpelli (1973), 411 U.S. 778, 781-82, 36 L. Ed. 2d 656, 661-62, 93 S. Ct. 1756, 1759-60.) The standard of proof is different in probation revocation proceedings. The State need only demonstrate by a preponderance of the evidence that the act giving rise to the petition occurred. (People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721; People v. Clark (1981), 97 Ill. App. 3d 953, 424 N.E.2d 9; Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(c).) A defendant may have his probation revoked and subsequently be convicted for the substantive offense without double jeopardy being involved. (People v. Smith (1980), 87 Ill. App. 3d 526, 409 N.E.2d 157; People v. Vahle (1978), 60 Ill. App. 3d 391, 376 N.E.2d 766.) A defendant need not be indicted, prosecuted, or convicted of the offense forming the basis of the revocation proceeding. (People v. Burkett (1974), 19 Ill. App. 3d 410, 311 N.E.2d 748; see also People v. Crowell (1973), 53 Ill. 2d 447, 292 N.E.2d 721.) The act giving rise to the petition need not be criminal in nature. (People v. DeWitt (1978), 66 Ill. App. 3d 146, 383 N.E.2d 694, aff’d (1979), 78 Ill. 2d 82, 397 N.E.2d 1385.) Many of the evidentiary rules do not apply with full force to probation revocation proceedings. People v. Dowery (1974), 20 Ill. App. 3d 738, 312 N.E.2d 682; People v. Diercks (1980), 88 Ill. App. 3d 1073, 411 N.E.2d 97.

However, because the outcome of the probation revocation proceedings is the curtailment of defendant’s liberty, due process requires a fair determination that acts forming the basis of the petition occurred. It also requires that fairness be accorded the defendant during the proceedings. In People v. Pier (1972), 51 Ill. 2d 96, 100, 281 N.E.2d 289, 291, the court held that due process demanded a defendant be afforded the same protection in admitting a probation violation as he would in pleading guilty to the substantive offense. If the substantive offense forming the basis of the petition is reversed and the charges dismissed, the revocation order must be vacated. People v. Hannah (1975), 31 Ill. App. 3d 1087, 335 N.E.2d 84.

Although Illinois courts have not addressed the insanity issue, other jurisdictions have. These courts reason that it is the acts which constitute the violation of probation. Due to the noncriminal nature of the probation revocation proceeding, its differing goals, and defendant’s status, fundamental fairness does not require insanity as a defense to revocation based upon those acts. However, these courts hold fundamental fairness requires the mental state be considered in the second step of the Morrissey analysis. (United States v. O’Sullivan (S.D. N.Y. 1976), 421 F. Supp. 300; Knight v. Estelle (5th Cir. 1974), 501 F.2d 963, cert, denied (1975), 421 U.S. 1000, 44 L. Ed. 2d 668, 95 S. Ct. 2399; State ex rel. Lyons v. Department of Health & Social Services (Wis. App. 1981), 105 Wis. 2d 146, 312 N.W.2d 868; People v. Breaux (1980), 101 Cal. App. 3d 468, 161 Cal. Rptr. 653; People ex rel. Newcomb v. Metz (1978), 64 App. Div. 2d 219, 409 N.Y.S. 2d 554; State v. O’Meal (1977), 116 Ariz. 307, 569 P.2d 249; State v. Johnson (1973), 9 Wash. App. 766, 514 P.2d 1073; Trumbly v. State (Alaska 1973), 515 P.2d 707; State v. Oyler (1968), 92 Idaho 43, 436 P.2d 709.) We agree with this view.

Allegri was specifically ordered to obey the laws of the State while on probation. On February 20, just one day after her release from Champaign County Correctional Center, she detained Norman. Her only defense was that she was unable to conform her conduct to the requirements of the law. She did not state that she did not commit the acts. She argues that since she is not criminally responsible for her actions, her probation may not be revoked based upon them. However, it is defendant’s acts which violate the terms of her probation — not her ultimate criminal responsibility for those acts.

“It is the fact of his conduct rather than his legal responsibility therefor that governs. Where, as here, defendant has engaged in felonious conduct and has shown himself unable to benefit from the terms of probation, *** it does not matter that he cannot be held criminally responsible for his acts committed while on probation.” United States v. O’Sullivan (S.D. N.Y. 1976), 421 F. Supp. 300, 302.

It is undisputed that Allegri violated the terms of her probation. The insanity defense addresses her criminal responsibility for that violation. It does not address whether the acts were committed. Since it is the actions of the probationer which constitute the violation of probation, a defense which addresses only criminal responsibility for those actions does not preclude a determination that the violation has occurred. People v. Breaux (1980), 101 Cal. App. 3d 468, 474, 161 Cal. Rptr. 653, 657; State v. O’Meal (1977), 116 Ariz. 307, 309, 569 P.2d 249, 251.

The insanity defense addresses defendant’s culpability. However, culpability is not the only concern in probation revocation proceedings. Here it is defendant’s actions which violate the terms of her conditional release and frustrate its goals. The trial court, before revoking Allegri’s probation, carefully considered her mental state. The two-part analysis set forth in Morrissey and Gagnon and required by statute was carried out. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4.) In light of the unique nature of probation revocation proceedings, the defendant’s status, and the nature of the insanity defense, due process does not require its availability in probation revocation proceedings.

In addition, this court has held that nonculpable conduct may form the basis of probation revocation. In People v. Davis (1984), 123 Ill. App. 3d 349, 353, 462 N.E.2d 824, 827, the court held defendant’s probation was properly revoked even though he was not at fault. Davis’ probation was conditioned upon his obtaining in-patient drug and alcohol dependency treatment. No state facility would accept him. The court stated that while personal culpability in probation violations was an important factor in the revocation determination, it was not the sole criterion. Circumstances other than ones chargeable to the defendant may frustrate the purposes of his probation.

Clearly Allegri’s conduct frustrated both aims of her probation. Society’s interest in protection from the type of conduct which led to her being placed on probation was not being served. She was placed on probation for the exact type of conduct which formed the basis of revocation. Nor was her rehabilitation being fostered. She was ordered to obtain counseling. However, counseling absent medication was not helping. When the purposes of probation are frustrated, even the nonculpable conduct of the defendant may serve as a basis for revocation. People v. Davis (1984), 123 Ill. App. 3d 349, 462 N.E.2d 824.

Allegri further argues that the State did not prove all the elements of unlawful restraint by a preponderance of the evidence. Since the State is statutorily required to do so, her probation was improperly revoked. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(c).) However, the trial court held that the State had established that Allegri detained Norman in violation of the statute. (Ill. Rev. Stat. 1981, ch. 38, par. 10—3(a).) It noted that Allegri had successfully raised insanity as a defense and the State failed to rebut it. It stated insanity was not a defense in probation revocation. This finding is not inconsistent. An individual may knowingly commit acts without being able to conform his conduct to the requirements of the law. Having the requisite mental state does not imply an ability or inability to conform one’s conduct.

Finally, Allegri argues that the courts have impliedly made affirmative defenses available in probation revocation proceedings. She relies on People v. Cooper (1976), 37 Ill. App. 3d 365, 345 N.E.2d 506, rev’d on other grounds (1977), 66 Ill. 2d 509, 363 N.E.2d 817. In Cooper, the trial court revoked defendant’s probation. The defendant, while involved in a fight, beat back his assailant using an unloaded weapon. On appeal, the trial court’s decision was reversed. The appellate court stated that Cooper, like any other citizen, was entitled to the benefits of the affirmative defense. It could not find defendant used more force than was necessary to defend himself. Therefore, the State had not met its burden of proving the violation by a preponderance of the evidence. (37 Ill. App. 3d 365, 367, 345 N.E.2d 506, 508.) The Illinois Supreme Court reversed. It found the evidence established defendant used excessive force. (66 Ill. 2d 509, 514, 363 N.E.2d 817, 819.) The availability of the defense was not an issue. Essentially, defendant argues that there is no distinction between the affirmative defenses for the purposes of their application in probation revocation.

However, justifiable use of force in defending oneself is not conduct society wishes to prevent. The balance of interests would weigh in favor of the probationer’s continued freedom when the acts complained of are justified. Here Allegri’s conduct was admittedly not lawful. The insanity defense would excuse criminal liability for her conduct. It would not justify the conduct. Society has a clear interest in protecting itself and serving the needs of the probationer. In this case, upon resentencing, Allegri was ordered to undergo psychiatric treatment for as long as her psychiatrist thought necessary. The distinction between which affirmative defenses apply in revocation proceedings can be made because of society’s different interests. The inherent nature of the defenses is also distinct. People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407.

For the foregoing reasons we find inability to conform one’s conduct to the requirements of the law is not a defense in probation revocation proceedings. Therefore, we affirm the trial court.

Affirmed.

GREEN, J., concurs.

JUSTICE TRAPP,

dissenting:

The majority opinion concludes that since the probation revocation is not criminal in nature, the provisions of section 5—2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—2—4) cannot properly be employed. That conclusion is stated too broadly, for it is recognized that in an alleged violation of probation the defendant is entitled to many rights and protections of a defendant in a criminal prosecution. It is apparent that the revocation procedure markedly affects personal rights and liberty.

Here, the petition alleged that defendant detained the victim without legal authority in violation of section 10 — 3(a) of the Criminal Code of 1961. That statute requires the mental state of an act done “knowingly.”

“Knowledge. A person knows, or acts knowingly or with knowledge of:
(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” Ill. Rev. Stat. 1981, ch. 38, par. 4—5.

The trial court agreed that the prosecution had failed to rebut the “defense” of insanity and the majority opinion agrees that the evidence supports a finding of insanity. The trial court found that the “defense” was not available in a proceeding for revocation of probation, and again this court agrees.

Upon the allegations of the petition, the trial court necessarily found that defendant was guilty of a criminal offense as alleged in the petition to revoke, but despite such a basis for revocation defendant was denied a defense that would be available to a defendant in an original prosecution of this offense. Again, upon the agreed circumstances, the defendant would be entitled to a finding of “not guilty by reason of insanity” and would therefore be examined and treated subject to the considerations provided in section 5 — 2 — 4(a) of the Unified Code of Corrections.

The statutory structure of the latter section of the Code supplies a disposition which would be uniform throughout the venue of this court, and would avoid the ad hoc solutions produced by the varying facilities and programs available in the several circuits of the State.

I suggest that a petition to revoke probation which alleges a commission of a criminal offense is presented in a different posture from that of a petition which alleges certain acts or conduct, other than an offense charged, indicating that rehabilitation has failed, or that the defendant represents a hazard to himself or to others.

For such reasons I would reverse the judgment of the trial court and remand for disposition under the last-cited section of the Unified Code of Corrections.