author: PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JONAS MILERIS, Respondent-Appellant.
    First District (4th Division)
    No. 80-2475
    Opinion filed December 17,1981.
    Rehearing denied March 9, 1982.
    William J. Martin and Frank E. Stachyra, both of William J. Martin, Ltd., of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Herbert Lee Caplan and Melbourne A. Noel, Jr., Assistant Attorneys General, of counsel), for the People.
   PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

On August 5, 1980, a Cook County grand jury issued a subpoena duces tecum to Dr. Jonas Mileris. The subpoena ordered him to appear on August 13,1980, and give evidence on a certain complaint against him and to bring with him “any and all original documents which may tend to show services rendered by you and bills submitted by you during the period December 1, 1977 and the 15th day of July, 1980, regarding those individuals whose name and social security number appears on the attached Rider; such documents shall include but are not limited to medical history records, patient charts, treatment records, examination records, and billing records for services.” On an attached sheet were the names and social security numbers of 29 individuals. Mileris filed a motion to quash the subpoena on the grounds that: (1) the subpoena was overbroad and amounted to a fishing expedition; (2) the subpoena requested the production of material subject to the physician/patient privilege; (3) the subpoena requested the production of material in violation of the fifth amendment right against self-incrimination. This motion was denied on August 13, 1980, apparently without a hearing; at least none is referred to and no report of proceedings of August 13, 1980, appears in- the record. When Mileris still refused to turn over the documents, the State petitioned for a rule to show cause why Mileris should not be held in contempt of court. The court entered an order finding Mileris in contempt of court finding inter alia: (1) the grand jury was investigating possible violations of section 16—1 of the Criminal Code of 1961 (Ill. Rev. Stat 1979, ch. 38, par. 16—1) (theft); (2) Mileris was a target defendant of that investigation; (3) the business records subpoenaed are respondent’s records of services rendered to persons pursuant to the Illinois Workmen’s Compensation Act. On appeal Mileris has not contended that these findings were erroneous or unsupported by the evidence; accordingly, they are binding on the parties and this court. Based on these findings the court sentenced Mileris to the custody of the sheriff for the remainder of the term of the grand jury or until he complied with the subpoena. The court then stayed execution pending appeal.

I

Mileris makes no claim that he is unable to ascertain what documents have been demanded and there is thus no question posed concerning the specificity of the demand. (People v. Dorr (1970), 47 Ill. 2d 458, 265 N.E.2d 601, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527.) Mileris contends, however, that the demand is overbroad and there has been no showing as to relevancy of any of the documents subpoenaed.

When the grand jury is functioning, society’s interests are best served by a thorough and extensive investigation (Branzburg v. Hayes (1972), 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646), and its investigative power must be broad if its public responsibility is to be adequately discharged. United States v. Calandra (1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613.

The permissible breadth of a subpoena duces tecum is to be measured by the scope of the problem under investigation and a subpoena which is not unreasonably broad when measured by that standard will be sustained. Here the grand jury was investigating possible existence of theft by Mileris, a physician. The subpoena, which merely sought evidence as to such materials as medical treatment for specified patients and the charges therefor, is reasonably restricted in scope and in time span in view of the subject matter under investigation. Compare People v. Allen (1951), 410 Ill. 508, 103 N.E.2d 116, cert. denied (1952), 344 U.S. 815, 97 L. Ed. 635, 73 S. Ct. 9; People v. Dorr (1970), 47 Ill. 2d 458, 265 N.E.2d 601, cert. denied (1971), 402 U.S. 929, 28 L. Ed. 2d 863, 91 S. Ct. 1527.

Likewise the documents which Mileris refused to produce are patently relevant to a theft investigation of a physician. Evidence as to medical diagnosis and treatment as well as billing is pertinent to a determination whether Mileris was guilty of criminal misconduct.

II

Section 5.1 of the Evidence Act (Ill. Rev. Stat. 1979, ch. 51, par. 5.1) provides in part:

“No physician or surgeon shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the physician for malpractice, (3) with the expressed consent of the patient, or in case of his death or disability, of his personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his life, health, or physical condition, (4) in all civil suits brought by or against the patient, his personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his estate wherein the patient’s physical or mental condition is an issue * *

Mileris, relying on People v. Bickham (1980), 90 Ill. App. 3d 897, 414 N.E.2d 37, appeal allowed (1981), 83 Ill. 2d 571, contends that he is prohibited from producing the subpoenaed documents by his patients’ privilege of confidentiality. We do not believe Bickham is in point. In Bickham, the grand jury attempted to subpoena medical records of 63 women who obtained abortions. As the court pointed out, the women obtained an abortion with the expectation that the information remained confidential; and disclosure of this information, even within the secrecy of the grand jury proceeding, could result in incalculable embarrassment to the women and serious damage to their personal business and family relationships. Here, however, the information was not and had not remained confidential. As found by the trial court, the records were of services rendered to persons pursuant to the Illinois Workmen’s Compensation Act. As such, the information sought, or at least most of it, would already have been disclosed by the patients when making claims under the Compensation Act. (Compare People v. Floreado (1981), 95 Ill. App. 3d 601, 420 N.E.2d 506.) Indeed section 8 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8) guarantees that none of this information could remain confidential since it provides in part:

“Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys.”

Since under the particular circumstances there was and could have been no expectation of confidentiality we find, as did the court in Floreado, that the present facts fall outside the boundaries of the circumscription of the public’s right to evidence made by the legislature when it enacted the physician-patient privilege.

Ill

Finally, Mileris contends that the court erred in failing to recognize his fifth amendment privilege to decline to produce the records. The State contends that the records are required documents under section 12 (Ill. Rev. Stat. 1977, ch. 48, par. 138.12), and section 16 (Ill. Rev. Stat. 1977, ch. 48, par. 138.16), and thus fall under the required records doctrine, citing Shapiro v. United States (1948), 335 U.S. 1, 92 L. Ed. 1787, 68 S. Ct. 1375; Grosso v. United States (1968), 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709; United States v. Kaufman (2d Cir. 1970), 429 F.2d 240, cert. denied (1970), 400 U.S. 925, 27 L. Ed. 2d 184, 91 S. Ct. 185.

Section 12 provides in part:

“In all cases where the examination is made by a surgeon engaged by the employer, and the injured employee has no surgeon present at such examination, it shall be the duty of the surgeon making the examination at the instance of the employer to deliver to the injured employee, or his representative, a statement in writing of the condition and extent of the injury to the same extent that said surgeon reports to the employer and the same shall be an exact copy of that furnished to the employer, said copy to be furnished the employee, or his representative as soon as practicable but not later than 48 hours before the time the case is set for hearing. Such delivery shall be made in person either to the employee or his representative, or by registered mail to either, and the receipt of either shall be proof of such delivery. If such surgeon refuses to furnish the employee with such statement to the same extent as that furnished the employer said surgeon shall not be permitted to testify at the hearing next following said examination.” Ill. Rev. Stat. 1977, ch. 48, par. 138.12.

Section 16 provides in part:

“The Commission, or any member thereof, or any Arbitrator designated by said Commission shall have the power to administer oaths, subpoena and examine witnesses; to issue subpoenas duces tecum, requiring the production of such books, papers, records and documents as may be evidence of any matter under inquiry and to examine and inspect the same and such places or premises as may relate to the question in dispute. Said Commission, or any member thereof, or any Arbitrator designated by said Commission, shall on written request of either party to the dispute, issue subpoenas for the attendance of such witnesses and production of such books, papers, records and documents as shall be designated in said applications, providing, however, that the parties applying for such subpoena shall advance the officer and witness fees provided for in suits pending in the Circuit Court, except as otherwise provided by Section 20 of this Act. Service of such subpoena shall be made by any sheriff or constable or other person. In case any person refuses to comply with an order of the Commission or subpoenas issued by it or by any member thereof, or any Arbitrator designated by said Commission or to permit an inspection of places or premises, or to produce any books, papers, records or documents, or any witness refuses to testify to any matters regarding which he may be lawfully interrogated, the Circuit Court of the county in which said hearing or matter is pending, on application of any member of the Commission or any Arbitrator designated by the Commission, shall compel obedience by attachment proceedings, as for contempt, as in a case of disobedience of the requirements of a subpoena from such court on a refusal to testify therein.
The records kept by a hospital, certified to as true and correct by the superintendent or other officer in charge, showing the medical and surgical treatment given an injured employee in such hospital, shall be admissible without any further proof as evidence of the medical and surgical matters stated therein, but shall not be conclusive proof of such matters.” Ill. Rev. Stat. 1977, ch. 48, par. 138.16.

Under Grosso v. United States (1968), 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709, for the required-records exceptions to apply (1) the purpose of the record-keeping requirement must be essentially regulatory; (2) the records must be of a kind customarily kept and (3) the records themselves must have assumed public aspects. It appears clear that the purpose of the quoted sections is essentially regulatory, to promote accurate and just adjudication of claims under the Compensation Act; the records are certainly of a kind customarily kept; and, because they are connected with compensation claims, they have assumed public aspects. But before these criteria are relevant, it must first be ascertained whether the records are in fact required by statute. If they are, then since the criteria set forth in Grosso are met, they are not protected by the fifth amendment; if, however, they are not required records, then the required-records exception to the statute is not applicable.

It would appear that the single report mandated in specific instances by section 12 is a required record. Section 12 requires the doctor, if he makes an examination report to an employer, to give a copy to the employee. But we cannot agree with the State’s contention that the statutes require the making or keeping of any other records. It merely assumes that records will be kept and gives the Commission subpoena power to obtain whatever records, if any, are kept, subject of course to the constitutional protections. In this essential way, the statute here differs from the statutes in the cases cited by the State; there the keeping of the records was expressly commanded by statute. Since no such requirement exists here, the required-records exception is inapplicable except, as already noted, to the copies required by section 12.

This ruling does not however mean that the subpoena must necessarily be quashed. The privilege against self-incrimination does not exist merely because the witness alleges the testimony may be incriminating (People v. Anderson (1973), 14 Ill. App. 3d 925, 303 N.E.2d 793); rather it is for the trial court to determine if under the particular facts there is a real danger of incrimination. (In re Folding Carton Antitrust Litigation (7th Cir. 1979), 609 F.2d 867.) Information and documents which cannot possibly be incriminating no matter how broadly the privilege is construed cannot be withheld (Interstate Commerce Com. v. Gould (3d Cir. 1980), 629 F.2d 847, cert. denied (1981), 449 U.S. 1077, 66 L. Ed. 2d 800, 101 S. Ct. 856); thus Mileris’ blanket citation of the privilege without more will not suffice as a valid claim of the privilege. Rather it is for the court to determine after a hearing whether the fear of incrimination is valid, and if reasonable, how far the valid privilege extends. United States v. Goodwin (5th Cir. 1980), 625 F.2d 693.

Furthermore there is no evidence in the record as to whether Mileris is a sole practitioner or a corporation (see In re Zisook (Docket Nos. M.R. 2517, 2536, 2552, filed Dec. 4, 1981), 88 Ill. 2d 321, 430 N.E.2d 1037; Reamer v. Beall (4th Cir. 1974), 506 F.2d 1345, cert. denied (1975), 420 U.S. 955,43 L. Ed. 2d 431, 95 S. Ct. 1338); whether the records are his or a hospital’s (see People v. Bickham (1980), 90 Ill. App. 3d 897, 414 N.E.2d 37, appeal allowed (1981), 83 Ill. 2d 571); whether the records are held by him personally or in a representative capacity (see People v. Cohen (1979), 98 Misc. 2d 874, 414 N.Y.S.2d 642); or whether the records were prepared by Mileris or by another. See Fisher v. United States (1976), 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569.

For the foregoing reasons the judgment of the trial court finding defendant in contempt is vacated and the case remanded for further proceedings in accordance with the opinion.

Vacated and remanded.

JOHNSON and LINN, JJ„ concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID GOINS, Defendant-Appellant.
    First District (5th Division)
    No. 80-0252
    Opinion filed December 18, 1981.
    Rehearing denied January 25, 1982.
    James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Ñacev, and Alexander Vroustouris, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Defendant, David P. Goins, was found guilty of murder and sentenced to the penitentiary for 25 to 50 years. While his appeal from that judgment was pending, he filed a petition for post-conviction relief in the trial court. The trial court dismissed the petition on the basis that the issues contained therein had been waived by defendant’s failure to raise them during the trial. Further, the court rejected his argument that defense counsel had inadequately represented him. An appeal was taken from the dismissal of the post-conviction petition, and we consolidated that appeal with the direct appeal. Subsequently, we affirmed the murder conviction and sentence in an unpublished order pursuant to Supreme Court Rule 23 (Ill. Rev. Stat. 1977, ch. 110A, par. 23), noting that because the post-conviction appeal was not ready for consideration, we would sever the direct appeal for separate consideration. The Rule 23 order also stated that “[n]o procedural question, which might have arisen from separate appeals, will affect the resolution of the post-conviction matter.” In the pending appeal, we are limited to considering whether the trial court erred in dismissing defendant’s petition for an evidentiary hearing pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122—1 et seq.). We affirm the trial court. The pertinent facts follow.

On April 5, 1977, four men wearing ski masks and carrying guns robbed a grocery store and killed the owner. A 13-year-old girl saw the men’s faces when they lifted their masks and later identified defendant as one of the offenders. The men left the scene of the crime in a yellow automobile with a damaged driver’s side. Investigating officers found a car that matched the description and spoke to the owner of the automobile, who indicated that defendant had borrowed it from him. Later that day, officers went to defendant’s home and took him into custody. Following several sessions of questioning, defendant confessed to his participation in the crime.

Before trial, defendant moved the court to suppress his confession as being coerced and to suppress the lineup identification evidence. Following hearings on each motion, the trial court denied them. The court found from the evidence that defendant had not been physically abused during his interrogations and had voluntarily given his statement. Further, the court held that defendant had been fully advised of his Miranda rights and knowingly and voluntarily waived them.

On January 30, 1978, the court granted defendant’s motion for a mistrial and the case was transferred to another judge. Defendant waived his right to a jury trial. The trial then proceeded, during which defendant renewed his motion to suppress the confession. Again, it was denied and the statement was received into evidence.

After closing arguments, the trial court found defendant guilty and held that the armed robbery offense had merged into the murder charge. Defendant elected to be sentenced under the old statute and, following the sentencing hearing, received a prison term of 25 to 50 years.

Defendant then filed his direct appeal, challenging only the length of the sentence. Subsequently, he filed a petition for post-conviction relief in the trial court. At a hearing, defendant’s new counsel, from the public defender’s office, explained to the court that an evidentiary hearing was necessary because certain facts were not in the record and thus would not be available for the appellate court’s consideration. The petition set out three major bases to attack the conviction: (1) defendant was illegally arrested on a traffic warrant issued for the arrest of a David P. Goins who was not defendant; (2) the police acted in bad faith by purportedly detaining him on a minor traffic offense but in reality detaining and interrogating him on the murder charge; (3) apart from the defective warrant, police did not have probable cause to arrest defendant in his home on the murder charge because the informant whose tip led police to him was, as owner of the getaway car, unreliable. The trial court held that these alleged constitutional violations were all matters which should have been raised at trial and were therefore waived. The defense counsel then raised the additional issue of trial counsel’s alleged incompetence in failing to challenge the arrest, which led to defendant’s conviction. After the parties argued authorities, the court dismissed the petition for an evidentiary hearing under the Act.

Opinion

The dispositive issue in this appeal is whether the post-conviction issues have been waived by defendant’s failure to raise them at trial or on the direct appeal. Relief under the Post-Conviction Hearing Act is limited to consideration of trial errors that result in conviction and constitute a substantial denial of petitioner’s constitutional rights. (People v. Healey (1974), 23 Ill. App. 3d 214, 318 N.E.2d 89.) Failure to raise these constitutional deprivations on the direct appeal generally operates as a waiver. (People v. Pierce (1977), 50 Ill. App. 3d 525, 365 N.E.2d 988.) Hence, the judgment of the reviewing court on the direct appeal is res judicata as to all matters that were or could have been raised at that time. (People v. Healey.) Strict application of the res judicata doctrine is relaxed only in certain circumstances, where fundamental fairness so requires. (See People v. Ikerd (1970), 47 Ill. 2d 211, 265 N.E.2d 120 (res judicata did not apply to bar post-conviction relief where the constitutional right petitioner relied on was recognized for the first time following disposition of petitioner’s direct appeal).) It has also been held that the res judicata bar does not apply if the matters relied on are outside the record and therefore could not have been considered on direct review. People v. Dennis (1973), 14 Ill. App. 3d 493, 302 N.E.2d 651.

It is the latter principle that defendant relies on to avoid the waiver/ res judicata bar to his post-conviction claims. Initially, he argues that the pertinent facts were not in the record and thus could not have been considered on the direct appeal. These facts, he contends, would tend to prove that his arrest was based on a defective traffic warrant rather than probable cause. Further, defendant, argues that to the extent trial counsel failed to challenge the arrest and preserve this issue for appeal, defendant’s sixth amendment right to effective assistance of counsel was violated.

We reject defendant’s position. Regarding the alleged fourth amendment violation, we first note that the traffic warrant naming a David P. Goins was in the common law record of the trial transcript. Defendant’s post-conviction affidavit that he never lived at the address listed on the warrant might indicate that the David P. Goins listed therein was someone other than defendant, but that is a matter that trial counsel could easily have ascertained by questioning his client. It is not a fact that was unavailable at trial. Similarly, the documents in support of the post-conviction petition which indicate that the parking tickets (upon which the arrest warrant was based) were issued in 1973 and 1974, when defendant was 13 and 14 years old, could have been discovered through pretrial investigation. We conclude that the validity of the arrest warrant cannot be collaterally attacked through this appeal and is waived.

Consonant with this reasoning, we also reject defendant’s second basis of challenging his arrest, that the police officers lacked probable cause to arrest him in his home and to question him about the armed robbery and murder when he was ostensibly led to believe that he was to be questioned about an automobile accident. Defendant offers documents, taken from police files, which indicate that the owner of the getaway car, Willie Willis, was included in a police lineup on April 6,1977. From this, defendant infers that he was also a suspect in the crime, and thus he could not be considered a reliable informant. Accordingly, since the police lacked a valid arrest warrant and could not base their arrest on information obtained from Willie Willis, they had no legal grounds to take him into custody. We need not analyze the merits of the probable cause issue, however, because we have noted that the facts pertinent to the arrest were available to defendant at trial. Counsel’s failure to make a motion to quash the arrest, therefore, operated as a waiver of this issue.

The second related post-conviction issue concerns defendant’s right to effective assistance of counsel. In essence, defendant argues that trial counsel’s failure to challenge the arrest was not based on any strategic reason, and, because this illegal arrest led to defendant’s confession and conviction, he was denied a fair trial. Although he concedes that an issue involving competency of trial counsel must generally be raised on a direct appeal, defendant again argues that the appellate record at that time would not have fully reflected the facts pertinent to the illegal arrest and the corresponding severity of counsel’s failure to challenge it. As we have discussed, we are not persuaded that the post-conviction petition and documents raise facts that were unavailable to defendant at trial. Therefore, we have held the fourth amendment matters to be waived. To the extent that trial counsel’s inaction caused the waiver, the proper mode for reviewing his alleged incompetence would be through the direct appeal from the conviction. Defendant could have raised the issue; that he chose to appeal only his sentence does not prevent the application of the res judicata bar to this issue. Nevertheless, we will briefly address the question of whether trial counsel’s failure to present the fourth amendment claim resulted in such a deprivation of defendant’s constitutional rights as to bring the case within the scope of the Post-Conviction Hearing Act.

Under the standard for evaluating whether trial counsel’s representation was competent, the court must determine whether counsel “was actually incompetent, and caused such substantial prejudice to defendant that the outcome was probably changed.” (People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084, 1088.) In the pending case, the trial court observed trial counsel during the proceedings and, in dismissing defendant’s post-conviction petition, rejected the contention that counsel was incompetent. We have examined the record and believe that defense counsel met the competency standard, notwithstanding his failure to challenge the validity of the arrest. Counsel filed timely motions for discovery; to suppress defendant’s confession; to substitute judges; and to suppress lineup identifications. Counsel filed a motion, before the second judge, to reconsider the earlier denial of the motion to suppress defendant’s confession. Counsel also conducted extensive cross-examination of the State’s witnesses at the pretrial motions and at trial. His overall representation of defendant cannot be termed incompetent. That he did not move to quash the arrest warrant cannot, by itself, be interpreted as incompetent representation. (See People v. Washington (1968), 41 Ill. 2d 16, 241 N.E.2d 425.) In People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25, 28, the Illinois Supreme Court noted that appellate counsel has no obligation to brief every conceivable issue on appeal, adding that “[i]t is not incompetence for counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong.” Although the issue in Frank concerned the alleged incompetence of counsel on the direct appeal for failure to raise certain issues, we believe the principle stated also applies to trial counsel’s alleged incompetence in failure to make a motion to quash the arrest. Defendant’s reliance on People v. Brinson (1980), 80 Ill. App. 3d 388, 399 N.E.2d 1010, is misplaced. In Brinson, the court found defense counsel’s representation to be so ineffective as to amount to no representation at all. The court rested its determination on two major failings of counsel. First, he failed to make a motion to suppress suggestive identification evidence. Defendant’s photograph, in a photo lineup, was the only one bearing blue markings, and some of the letters of defendant’s name were visible. Moreover, the main witness’ in-court identification of defendant was not positive. Second, despite defendant’s testimony and evidence that he was beaten and coerced into confessing, his counsel failed to move for the suppression of the statement.

Those facts are not present in the pending case. On the contrary, defense counsel made two motions to suppress lineup identification and twice moved to suppress the confession. We conclude that trial counsel’s representation was adequate in view of all the circumstances and his failure to challenge the arrest was not patently erroneous. Therefore, we need not consider the second prong of the competency standard, whether counsel’s actual incompetence resulted in substantial prejudice to defendant.

For the foregoing reasons, we hold that the trial court did not err in dismissing defendant’s post-conviction without an evidentiary hearing. We therefore affirm the judgment of the trial court.

Affirmed.

LORENZ and MEJDA, JJ., concur.

       We note that even if the arrest were quashed for lack of probable cause, the lineup identification testimony and the 13-year-old girl’s in-court identification would not be barred as fruits of an illegal arrest. The United States Supreme Court has recently recognized that an illegal arrest, without more, does not bar a subsequent prosecution. Nor is it a defense to a valid conviction; the illegality of a defendant’s detention does not bar the government from using other evidence, such as a witness’ independent recollection of defendant’s identification, as a means of convicting defendant. (United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244.)


author: PRESIDING JUSTICE CAMPBELL

text:
    JANE M. BYRNE, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. MORGAN M. STERN et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2562
    Opinion filed December 21, 1981.
    Rehearing denied February 11, 1982.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Jetta N. Jones, Assistant Corporation Counsel, of counsel), for appellant.
    Sydney Marovitz, of Marovitz, Powell, Pizer & Edelstein, of Chicago (David A. Novoselsky, of counsel), for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, the Local Liquor Control Commissioner of the City of Chicago, appeals from an order of the circuit court affirming the License Appeal Commission’s reversal of plaintiff’s revocation of defendant Morgan M. Stern’s liquor license. On appeal, plaintiff presents the following issues for review: (1) whether plaintiff’s order of revocation is supported by the manifest weight of the evidence; (2) whether the dancer who made the proposal to perform an act of prostitution was an employee of defendant’s lounge, rather than an independent contractor; and (3) whether the licensee has absolute liability for the acts of his agents and employees.

Plaintiff filed an administrative complaint on November 9, 1977, seeking the revocation of defendant’s liquor license. The charge against defendant alleged:

“That on October 20,1977, the licensee, by and through his agent, Dan BADENHOP, bartender, knowingly permitted a violation of the laws of the State of Illinois and/or the Municipal Code of Chicago and/or the Rules and Regulations of the Illinois Liquor Control Commission, to be committed on the licensed premises, to wit: Solicitation for prostitution in violation of Chapter 38, Sec. 11—17(a)(1), Ill. Rev. Stat, 1975.”

On February 15, 1978, plaintiff filed a second charge against defendant. The second charge alleged:

“That on October 20, 1977, the licensee, by and through his agent, NEDA SPASIC, employee, knowingly offered or agreed to perform an act of prostitution for money with B. RIORDAN, a patron, said offer or agreement being made on the licensed premises, contrary to Chapter 38, §11—14(a), Ill. Rev. Stat. 1975.”

A hearing was held at which Officer Bernard Riordan, Daniel Badenhop and the licensee testified. Officer Riordan testified that on October 20, 1977, he was at the licensed premises in plain clothes. Riordan stated that he had observed Neda Spasic dancing on the lounge’s stage. According to Riordan, Spasic sat next to him at the bar after she had finished dancing. After a few minutes of conversation, Riordan stated that Spasic offered to engage in intercourse with him for $50, which offer was accepted by him. He testified that Dan Badenhop, the bartender, came over to where Riordan was sitting. Riordan asked, “Is this girl all right, is she okay?” According to Riordan, Badenhop stated, “Don’t worry about her, she’s okay.” Riordan stated that he then went outside the lounge to get his partner. The two officers arrested Ms. Spasic and Badenhop. The City rested its case against defendant.

Daniel Badenhop testified that Neda Spasic was employed on the evening in question. Badenhop stated that he had a conversation with Riordan during which Riordan stated that he was looking for a little action and was out for a good time. Badenhop responded that he did not know what Riordan wanted and that he was just a bartender. Riordan pursued the conversation and, according to Badenhop, stated that he was looking for female companionship. Badenhop replied, “I’m not a pimp, sir, I’m a bartender. I don’t provide anyone with female companionship.” Baden-hop testified that after Ms. Spasic completed her dancing, Riordan called her over to where he was sitting and asked her if she wanted a drink. Badenhop stated that he reminded the dancer of the house rule which prohibits the dancers from sitting with patrons at the bar. Riordan later asked Badenhop if Ms. Spasic was a good girl. Badenhop responded, “Yes, she is a good girl. She doesn’t mess around.” Badenhop testified that he then told Riordan that the lounge had a house rule which provided that any girl who sits with a customer is discharged. Badenhop stated that defendant Stern had informed him of this rule at the time he began working at the lounge. Badenhop testified that he again warned Ms. Spasic of the house rule when Riordan reentered the premises and sat next to the dancer. He also stated that he had no knowledge of the conversation between Riordan and Ms. Spasic.

Defendant Morgan Stern testified that he held the license for the premises for 14 years. Stern stated that he had complained to the police on numerous occasions about the influx of pimps and prostitutes near his business. According to Stern, he had informed the police that he would refund any monies which were spent in his establishment while the police were trying to rid the area of the prostitutes. Stern testified that he paid the dancers $30 per evening. He stated that he usually obtained the dancers through advertisements in a local newspaper, although he had used an agency in the past. Stern stated that he did not permit the dancers to solicit drinks or money for the jukebox from patrons. Stern also testified that the dancers are not permitted to consume any alcoholic beverages, nor are they permitted to fraternize with customers. He stated that he has never permitted any of his employees to solicit for prostitution. He testified that he had been a tavern owner for 33 years and that he never had been charged with solicitation or prostitution. Stern stated that he had used Ms. Spasic as a dancer periodically over the preceding four years. He testified that he neither saw nor heard from Ms. Spasic after the night of the arrests.

Subsequently, plaintiff determined that the charge involving Ms. Spasic had been proved and revoked defendant’s liquor license. Plaintiff made no finding on the charge concerning Badenhop. Defendant appealed plaintiff’s order of revocation to the License Appeal Commission. The License Appeal Commission found that the order of revocation was not supported by the findings and that the charge on which plaintiff based the revocation was not supported by substantial evidence in light of the whole record and reversed the decision of plaintiff. Plaintiff sought administrative review of the License Appeal Commission’s ruling. The circuit court found that there was evidence to support the License Appeal Commission’s ruling and affirmed the reversal of plaintiff’s order of revocation. Plaintiff appeals.

In order for the local liquor control commissioner to revoke a liquor license, it is fundamental that the power to revoke a license for cause only extends to those instances involving conduct or actions by the licensee or conduct or actions of others over whom the licensee is deemed to have control or responsibility. (Easy Life Club, Inc. v. License Appeal Com. (1974), 18 Ill. App. 3d 879, 310 N.E.2d 705.) Conversely, a licensee cannot be held responsible for the conduct or actions of others over whom he has no control. (See Beer & Brat, Inc. v. Liquor Control Com. (1976), 44 Ill. App. 3d 713, 358 N.E.2d 736; Easy Life Club, Inc. v. License Appeal Com.) However, the Liquor Control Act imposes strict liability upon the licensee for all violations of the actby the licensee’s agents and employees. (Ill. Rev. Stat. 1977, ch. 43, par. 185; see Daley v. Richardson (1968), 103 Ill. App. 2d 383, 243 N.E.2d 685.) In the instant case, there is an issue as to whether Neda Spasic was an employee or an independent contractor of the licensee. The performance of work by one party is prima facie evidence of employment and, in the absence of contrary evidence, supports a presumption that the person is a servant. (Hansmar, Inc. v. Illinois Liquor Control Com. (1979), 78 Ill. App. 3d 690, 397 N.E.2d 241; S & F Corp. v. Bilandic (1978), 62 Ill. App. 3d 193, 378 N.E.2d 1137.) There is no dispute in this case that Ms. Spasic performed work as a dancer for defendant. During the hearing, defendant did not present any evidence to rebut the presumption that Ms. Spasic was anything but an employee. From our review of the report of proceedings, it appears that the parties to the hearing viewed Ms. Spasic as an employee and not otherwise. Therefore, it was reasonable under the facts and circumstances of this case to consider the dancer as an employee for purposes of the proceedings.

. In a proceeding pursuant to the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.), the scope of judicial review is limited to whether the findings and orders of the administrative agency are against the manifest weight of the evidence and whether the local commissioner acted arbitrarily and without cause or in clear abuse of discretion. (See Askew v. Daley (1978), 62 Ill. App. 3d 370, 379 N.E.2d 75; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill. App. 2d 264, 254 N.E.2d 814.) The scope of review by the License Appeal Commission is closely analogous to administrative review in the circuit court. (See Daley v. Richardson (1968), 103 Ill. App. 2d 383, 243 N.E.2d 685.) In addition, the findings of the local commissioner are presumed to be prima facie true and correct and may be disturbed only where they are against the manifest weight of the evidence and an opposite conclusion is clearly evident. See Easy Life Club, Inc. v. License Appeal Com. (1974), 18 Ill. App. 3d 879, 310 N.E.2d 705.

In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885, an employment discharge case under the Administrative Review Act, the supreme court outlined a two-step analytical framework for review of those cases in the courts. First, the court must determine whether the administrative agency’s findings of fact are contrary to the manifest weight of the evidence and, second, it must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. In the instant case, it is appropriate to use a similar analysis to examine the decision of plaintiff.

Our review of the record and arguments of the parties leads us to conclude that the findings of plaintiff are not against the manifest weight of the evidence as to the conduct of the dancer. There was sufficient evidence by way of the testimony of Officer Riordan to establish that Ms. Spasic offered or agreed to perform an act of prostitution for money with him. Although there was testimony that defendant did not permit his dancers to fraternize with the patrons, it is for the local commissioner, as trier of fact, to determine the credibility of witnesses, to weigh the evidence and the inferences to be drawn from the evidence. (See Cabaret, Inc. v. Daley (1978), 66 Ill. App. 3d 326, 384 N.E.2d 10.) Defendant argues that there was no evidence to establish that he had control over the conduct or actions of Ms. Spasic and, accordingly, could not be charged with her conduct. (See Middleton v. License Appeal Com. (1974), 20 Ill. App. 3d 534, 314 N.E.2d 596; Easy Life Club, Inc. v. License Appeal Com. (1974), 18 Ill. App. 3d 879, 310 N.E.2d 705.) Those cases cited by defendant for the foregoing proposition involve unlawful conduct by patrons or others and do not involve conduct by the agents or employees of the licensee. In the situation where a patron is involved in unlawful conduct on the licensee’s premises, the law is clear that the licensee must be able to control the patron’s action or conduct in order to be charged with the conduct of the patron. However, it is equally clear that the law imposes strict liability upon the licensee for the action or conduct of his agents or employees on the premises regardless of whether the licensee has exercised control over the conduct of his employees or agents. In the instant case, defendant is to be held accountable for the acts of his employee or agent Ms. Spasic.

Although the finding of plaintiff that the dancer’s proposal to Officer Riordan is supported by substantial evidence and not against the manifest weight of the evidence, we note that plaintiff made no finding with respect to the charge involving the bartender. The record establishes that defendant possessed a license for 14 years for the premises involved in the present case and a liquor license for a total of 33 years. In light of the foregoing and the absence in the record of evidence which would tend to show that defendant had prior personal knowledge of the attempted solicitation or that defendant previously had been charged with violations of any liquor control laws, the sanction of revocation imposed by plaintiff was an abuse of discretion. It follows that that portion of the trial court’s decision which affirmed the reversal by the License Appeal Commission of the findings of fact made by plaintiff relating to the charge of solicitation is reversed, and we affirm that portion of the trial court’s order which affirmed the License Appeal Commission’s reversal of the sanction imposed by plaintiff because the sanction was not supported by substantial evidence and was against the manifest weight of the evidence. Further, we remand this cause to the trial court for the entry of an order remanding this matter to plaintiff for the imposition of a sanction less than revocation.

Affirmed in part; reversed and remanded in part.

GOLDBERG and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE RIZZI

text:
    ANNE TENNICOTT, Adm’r of the Estate of Harold Tennicott, Deceased, Plaintiff-Appellee, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellant.
    First District (3rd Division)
    No. 80-173
    Opinion filed December 23, 1981.
    Rehearing denied February 5, 1982.

      Edward J. Egan and Richard T. Ryan, both of Chicago, for appellant.
    Philip H. Corboy and Nicholas J. Motherway, both of Philip H. Corboy & Associates, P. C., of Chicago, for appellee.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Harold Tennicott was stabbed to death on October 14,1974, while on a Chicago Transit Authority passenger platform at 79th Street and the Dan Ryan Expressway in Chicago. Plaintiff, Anne Tennicott, administrator of the decedent’s estate, brought a wrongful death action claiming that the negligence of defendant Chicago Transit Authority was a proximate cause of Tennicott’s death. A jury returned a verdict of $125,000 in favor of plaintiff. Defendant appeals, contending that the trial court erred in making a judicial finding of negligence against defendant. The trial court’s ruling was imposed as a sanction because of defendant’s failure to comply with discovery proceedings. Plaintiff cross-appeals, contending that she is entitled to a new trial on damages only. We reverse and remand.

While the case was pending in the circuit court, plaintiff filed a “Written Request to Produce Pursuant to Rule 214.” The document requested all reports and records of assaults, murders, robberies or other infringements of the law occurring at the train station for a period of two years prior to the occurrence. Defendant responded by sending plaintiff a list of six incidents. The list included the date, time and nature of each incident. In regard to a specific request for records of these incidents, defendant replied “None.”

The case was assigned for trial on a Friday. On Monday, plaintiff served a supplemental notice to produce, which included a request for incidents of crime at the train station for a period of five years prior to the occurrence. On the following day, defendant gave plaintiff a list of criminal incidents for the five years preceding the occurrence. This new list included an incident which should have been included in the original list given to plaintiff. Defense counsel explained that the unreported incident was inadvertently not included in the information supplied to him by defendant from ledgers maintained by defendant. Plaintiff protested that defendant had previously stated that there were no records of the incidents. Defense counsel responded that there were no records of the incidents other than the ledgers, and that the ledgers contained no information beyond that which was included on the lists supplied to plaintiff.

Colloquy ensued between the trial court and counsel which resulted in the production of the ledger sheets and the testimony of Edward P. Henry of the Safety Department of the CTA outside the presence of the jury. Henry testified that the information on the two lists supplied to plaintiff was verbatim from the information contained on the ledger sheets. However, when plaintiff examined the ledger sheets, plaintiff noticed an entry for a robbery of a ticket agent at the train station 11 days prior to the date Tennicott was killed. This incident was not included on either of the lists of incidents previously submitted to plaintiff. Defense counsel stated that this incident was not included on the lists because of the mistaken belief that plaintiff’s request related only to incidents involving passengers.

Another dispute then arose because one of the columns on the ledger sheets listed file numbers. Henry stated that the information entered on the ledger sheets came from briefs which have an incident number. Defendant claims that it is this incident number which is recorded as the file number on the ledger sheets. According to Henry, the briefs are destroyed once the information contained in them has been entered in the ledgers. The record does not reflect that files existed at any time relevant to discovery proceedings in the case.

As a result of what occurred, the trial court made a judicial finding of negligence against defendant. This ruling was made during the time for plaintiff’s presentation of evidence.

It is apparent that defendant’s conduct relating to the production of documents did not fall within the realm of the expected spirit of the rules of discovery, and as a result, defendant may have obstructed the orderly processes of discovery. Accordingly, it was proper for the trial court to impose sanctions against defendant pursuant to Supreme Court Rule 219 (Ill. Rev. Stat. 1979, ch. 110A, par. 219). However, the sanction imposed was virtually the most severe sanction available. We conclude that the sanction was not just and did not accomplish the ultimate purpose of the rules of discovery, which is to have cases tried on their merits.

Supreme Court Rule 219(c) vests the trial court with great power in authorizing the court to enter “such orders as are just” if a party fails to comply with discovery procedures. (Ill. Rev. Stat. 1979, ch. 110A, par. 219(c).) However, such a breadth of power requires a careful exercise of discretion in order to balance the needs of discovery and trials on their merits. Here, before plaintiff concluded the presentation of her evidence, the ledgers were produced by defendant, and plaintiff was advised of the two additional criminal incidents that had occurred at the train station. Thus, instead of making a judicial finding of negligence against defendant, the trial court could have permitted the evidence favorable to plaintiff to be admitted into evidence and allowed the case to be tried on the merits with perhaps a short continuance if requested by plaintiff. Other sanctions could have been imposed against defendant which would have been meaningful and yet allowed the issues to be resolved on their merits.

Plaintiff contends that the only meaningful sanction that could have been imposed was the entry of a judgment of liability against defendant. Under plaintiff’s theory, virtually every infraction of the discovery rules by a party would necessitate a Draconian sanction. This would not be a practical solution to problems arising either during discovery or at trial.

Plaintiff relies heavily upon statements found in Buehler v. Whalen (1977), 70 Ill. 2d 51, 67, 374 N.E.2d 460, 467. However, we do not equate what occurred in Buehler with this case. Here, unlike Buehler, the record does not support a conclusion that the defendant wilfully gave false answers under oath or wilfully secreted evidence which was discovered from another case. Moreover, in Buehler, the supreme court affirmed the denial of sanctions by the trial court, and held that the denial of the “motion for a new trial lay within the discretion of the trial court.” Buehler, 70 Ill. 2d 51, 67, 374 N.E.2d 460, 467.

Accordingly, we conclude that the sanction imposed in this case was not proper, and, therefore, the judgment must be reversed. The case is remanded for a new trial. As a result of our conclusion, we need not consider the other issues raised on appeal.

Reversed and remanded.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CATHY NATHANIEL, Defendant-Appellant.
    First District (1st Division)
    No. 79-2490
    Opinion filed December 28, 1981.

      Sam Adam, of Chicago (Ira A. Moltz, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Dean C. Morask, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant Cathy Nathaniel was found guilty of murder and burglary. She was sentenced to a term of 35 years for the murder conviction and a concurrent term of 7 years for the burglary conviction.

On appeal, defendant presents three issues: (1) she was not proven guilty of murder beyond a reasonable doubt; (2) reversible error was committed by the trial court when defendant was permitted only 12 peremptory challenges; and (3) the trial court abused its discretion when a 9-year-old misdemeanor conviction for deceptive practices was allowed for impeachment purposes and when a police photograph was submitted to the jury.

The charges against defendant arose out of the shooting death of Steven Ticho in the early hours of May 4, 1978. At trial, there were many witnesses for the State. However, the key State witness was Bernice Albright, defendant’s companion on the night Ticho was killed. Her testimony at trial was as follows: During the evening hours of May 3,1978, Ms. Albright accompanied defendant to a lounge on the near north side of Chicago. There, the women met two men, the victim and his friend, Klaus Krutzikowski. When the bar was closing, these four people left together and went to the victim’s apartment in Krutzikowski’s van.

Upon arriving at the apartment, the victim toured his three companions through the apartment. Albright and Krutzikowski then sat on the couch in the living room. Defendant was with the victim in the bedroom. After approximately half an hour, Albright requested to leave. After checking with defendant if it was all right to leave, Albright left with Krutzikowski, who was to take her home. Upon Krutzikowski’s inquiring about breakfast, Albright suggested a restaurant called the Hasty Tasty. After going there, she was driven to her apartment building by Krutzikowski.

Sometime later defendant appeared at the apartment she shared with Albright and several other people. Defendant had two shopping bags with her and requested to speak with Albright in the bathroom. Defendant then told Albright that she shot the victim. Defendant also showed Albright the keys to the apartment and made her smell the fired gun.

At defendant’s urging, the two women went back to the victim’s apartment, where they were let into the lobby by the doorman. Defendant showed Albright how she shot the victim in the head. They then proceeded to pack several shopping bags with the victim’s personal items of value.

At one of the elevator stops, the women met a maintenance man who helped them with a torn bag. Upon exiting the lobby, the women returned to their own apartment in defendant’s car.

The following day Albright accompanied defendant on a shopping trip. Defendant first purchased several items of clothing without Al-bright’s presence in the store. At a jewelry store, defendant purchased a gold watch with the victim’s credit card. Defendant next unsuccessfully attempted to purchase several pairs of shoes. Albright did not go into this store with defendant.

Albright moved to a new address with her boyfriend to avoid being associated with defendant. However, on May 6, 1978, she was arrested and taken to the police station. At that time she learned defendant was also in police custody and had implicated her in the victim’s death. Albright was questioned first by several police officers. She then related her account of the events on May 3 and 4 to an assistant State’s Attorney. After this, she was told she would not be prosecuted for anything related to these events.

Defendant testified in her own defense. Her testimony conflicted sharply with that of her companion. She denied shooting the victim, and implicated Albright as the one who did the shooting. Defendant testified that she had engaged in prostitution for 10 years and that she and Albright, on the evening of May 3, 1978, went to a lounge to “hustle.” After meeting the victim and Krutzikowski, they went to the victim’s apartment. She admitted going to the bedroom alone with the victim, while Albright and Krutzikowski remained in the living room.

Defendant testified that Albright was going to try to “turn a trick” with Krutzikowski when they left the apartment. She then received a phone call from Albright, who was at a restaurant, that she was going home. After this call, defendant testified, the victim suggested that they could have an “orgy” if defendant got Albright to return.

Defendant said she then took a cab to her apartment in order to persuade Albright to come back with her. Upon their return, she said, Albright’s boyfriend Curtis Spearman was with them. She and Albright went up to the victim’s apartment, leaving Spearman on the street.

Later, defendant testified, she was in the bathroom when she saw Albright and Spearman walk by towards the victim’s bedroom. She then heard a shot, following which she observed Albright leaving the bedroom with a gun. She then ransacked the apartment with Albright and Spear-man. Defendant said she left with Albright, leaving shopping bags full of the victim’s items on the 44th floor of the apartment building. They then took a cab back to the lounge and picked up her car, which they drove back to the victim’s building. They retrieved the shopping bags, met Spearman and returned to their own apartment.

Defendant admitted going on a shopping spree the following day. She used the victim’s credit cards. She purchased clothes and a watch and was unsuccessful in purchasing some shoes. She said Albright was with her at all times.

Several days after the incident, defendant turned herself over to a friend who was a police officer. She was taken to the station, where she was questioned and charged with murder relating to this incident.

On cross-examination, the defendant admitted she used many aliases, including Catherine Soriano. She was also presented with some prior statements she made while at the police station. She did not remember telling a police investigator that Krutzikowski left alone and that she and Albright left once with the apartment keys to get some food. She admitted telling an assistant State’s Attorney that both Krutzikowski and Albright left together, but that Albright returned 10 minutes later.

The doorman at the victim’s apartment building testified at the trial. He saw the victim enter the building with his three companions at approximately 12:30 a.m. An hour and a half later he saw the white man and one of the black women leave. Later the other black woman left, asking for a cab. She returned with the first woman. They let themselves in with keys to a security door. About one hour after they returned, the two women left together, carrying two shopping bags each. They went to a car parked across the street.

A night supervisor and maintenance man at the apartment building testified he saw a white man and a black woman leaving the 44th floor at about 1:30 a.m. on May 4, 1978. A few hours later, he saw two black women leaving the 44th floor with two shopping bags each.

Klaus Krutzikowski testified he met the victim, a friend of his, at a lounge on May 3, 1978. They met two black women. He identified defendant as one of the women and stated that Bernice Albright, introduced initially as Dee Dee, was the second woman. The four of them left the lounge around midnight and drove to the victim’s apartment in Krutzikowski’s van. He stated the victim and defendant went into the bedroom, while he remained in the living room with Albright. After making some drinks, he left with Albright. He testified that Albright requested that they stop for breakfast. Upon leaving the restaurant, he took Albright to her apartment building at around 3 a.m. Upon cross-examination, he stated that Albright made several phone calls.

Defendant claims she was not proven guilty beyond a reasonable doubt because her conviction rests solely upon the testimony of Bernice Albright, an accomplice witness. (See People v. Kiel (1979), 75 Ill. App. 3d 1030, 394 N.E.2d 883; People v. Savory (1978), 62 Ill. App. 3d 750, 379 N.E.2d 372.) She argues that Albright’s testimony is totally unbelievable and was motivated by defendant’s own accusations that Albright was the perpetrator of the crime.

While it is true, as defendant points out, that the issue here is the credibility of her testimony against that of the State’s witness Albright (People v. Hansen (1963), 28 Ill. 2d 322 192 N.E.2d 359), the rule in Illinois is that testimony of an accomplice, even uncorroborated, is sufficient to sustain a conviction if it satisfies the trier of fact beyond a reasonable doubt. (People v. Hansen; People v. Thomas (1979), 72 Ill. App. 3d 28, 389 N.E.2d 1316.) Such is the quantum of proof even in situations where the testimony is attended with such possible infirmities as malice toward the accused, promises or hopes of leniency or the hope of benefits from the prosecution. People, v. Farnsley (1973), 53 Ill. 2d 537, 293 N.E.2d 600; People v. Hansen.

It is upon such infirmities and shortcomings that defendant urges us to rule that the evidence was not sufficient to find her guilty beyond a reasonable doubt. Such infirmities, however, go to the questions of the weight of the evidence and the credibility of the witnesses, matters which are within the province of the trier of fact. (People v. Hansen.) We find that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of murder and burglary.

Defendant also argues reversible error in that she was prevented from exercising all 20 of her peremptory challenges during the voir dire examination of the jury. (Ill. Rev. Stat. 1979, ch. 38, par. 115—4(e).) She was allowed 12 challenges by the trial court. Before this examination began, the State was uncertain whether the facts of the case qualified it for a sentence of death, and if it did, whether this penalty would be sought. Consequently, the State requested that the voir dire of the jury be conducted under the guidelines of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. The trial court refused to do so.

Generally, where a party has been deprived of the right to exercise all of the entitled peremptory challenges when impaneling a jury (Ill. Rev. Stat. 1979, ch. 38, par. 115—4(e)) reversible error has been committed. (Gulf, Colorado & Santa Fe Ry. Co. v. Shane (1895), 157 U.S. 348, 39 L. Ed. 727, 15 S. Ct. 641; People v. Webster (1935), 362 Ill. 226, 198 N.E. 322.) However, when the State has announced its intention not to seek the death penalty the defendant’s statutory right to 20 peremptory challenges is not infringed because the case is, effectively, “no longer ‘capital’ under a sensible construction of the term as used in section 115—4(e) * ° People v. Holmes (1974), 19 Ill. App. 3d 814, 817, 313 N.E.2d 297, appeal denied (1974), 56 Ill. 2d 589.

In this case the State did not pursue the issue of the death penalty punishment after the trial court’s decision during voir dire not to “Witherspoon” the jury. The State argues on appeal that this decision effectively prevented it from seeking the death penalty upon a finding of guilt. Although we do not wholly approve of this procedure, we agree that the trial court’s decision eliminated the possibility that defendant could receive the death penalty. This situation then is similar to that in People v. Holmes. The defendant’s right to 20 peremptory challenges was not prejudiced here as the case was effectively no longer a “capital” case within the meaning of the statute. 19 Ill. App. 3d 814, 817.

Lastly, defendant argues that the trial court abused its discretion by allowing the State to impeach her with a 9-year-old misdemeanor conviction for deceptive practices and also in allowing police photographs to be submitted to the jury.

In People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695, the Illinois Supreme Court stated the standard by which the credibility of a witness may be impeached by the use of prior convictions. Prior convictions may be used for impeachment purposes if the crime (1) was punishable by death or imprisonment in excess of one year, or (2) involved a dishonest or a false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. In weighing the probative value of the defendant’s testimony against the risk of unfair prejudice, the trial court must consider such factors as the nature of the crime, the nearness or remoteness in time of the conviction to the trial, the subsequent career of defendant and the similarities of the crime. People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563; People v. Montgomery.

In this case, the prior conviction for deceptive practices was for a crime that inherently involves dishonesty or false statements. Since the time of that conviction, defendant admits to engaging in prostitution as a way of life. The 9-year-old conviction also is within the 10-year-limit prescribed in Rule 609 of the proposed Federal Rules of Evidence adopted in People v. Montgomery (1971), 47 Ill. 2d 510, 516. The trial court did not abuse its discretion in this regard.

We find that admission of the photographs did not deprive defendant of a fair and impartial trial and did not constitute reversible error. (People v. Aponte (1977), 45 Ill. App. 3d 1030, 360 N.E.2d 424.) Defendant was identified by three witnesses at trial. After defendant testified as to her conduct and livelihood as a prostitute, the trial judge indicated his belief that admission of the photographs was not prejudicial. There was no abuse of discretion in the trial judge’s consideration and admission of the photographs.

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

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD BURKS, Defendant-Appellant.
    First District (1st Division)
    No. 80-0720
    Opinion filed December 28, 1981.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and John A. Ouska, III, Assistant State’s Attorneys, of counsel), for the People,
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Harold Burks was indicted on two counts of murder and one count of armed violence based upon the underlying felony of murder. After a bench trial defendant was convicted of armed violence and sentenced to a term of 7 years’ imprisonment.

Defendant and the victim Barbara Oliver began living together in mid-October of 1978. On February 1,1979, they lived in a three-bedroom apartment owned and occupied by John Ellis. Defendant returned to the apartment at 8 a.m. on February 1, 1979, after spending the night visiting his children, drinking with a woman with whom he had previously lived and playing cards with some friends. Oliver had spent the night at their apartment with John Ellis and Fred Staples, another of Ellis’ tenants.

Oliver was watching television in the living room when defendant returned. She got up to let him into the apartment. Defendant testified that when he went into the bedroom he shared with Oliver, he found a man known to him as Luther lying on the bed. Defendant grabbed a butcher knife from under the mattress, woke Luther and escorted him out the back door of the apartment.

Defendant testified that he then put the knife on the bedroom dresser and walked into the living room. He asked Oliver why she was not in the bedroom entertaining her company. Oliver went back to the bedroom with defendant and a fight began. After a time, Ellis and Staples heard “some bumping.” Staples heard Oliver say “don’t do that.” Ellis then called the police.

Ellis testified that Oliver then received a phone call. He called for her, but when she did not respond Ellis told the caller to call back later and hung up the phone. Subsequently, Oliver and defendant came out of the bedroom to answer the phone call. Oliver walked into the living room with her hands crossed in front of her pressed against her stomach. Oliver and defendant returned to the bedroom after they learned that the caller had hung up. Ellis and Staples then heard more “bumping” sounds. Ellis then heard defendant and Oliver go into the bathroom.

The police arrived. They found Oliver had been stabbed and carried her out of the apartment on a stretcher. Oliver subsequently died from the wound. A 17-inch butcher knife covered with blood was found in the bathroom. Defendant identified it as the knife with which Oliver was stabbed. Defendant was subsequently taken into custody.

On February 2, 1979, defendant spoke to Assistant State’s Attorney Sander Klapman. Defendant first told Klapman that after escorting Luther out of the apartment he called Oliver to the bedroom. He placed the knife on the dresser and began to beat, hit and push Oliver. He stated that Oliver was holding the knife in her left hand down at her left side and that she was stabbed in an upward motion.

Klapman learned from an investigator assigned to the case that the wound angled downward. Klapman confronted defendant with this discrepancy. Defendant then stated that Oliver was holding the knife up in the air with both hands and that she was stabbed in a downward motion.

At trial, defendant admitted stabbing Oliver but claimed that it was an accident. He testified that after he called Oliver back to the bedroom she began to shout at him and fight with him. He testified that when he tried to leave the room Oliver picked up the knife and said, “You ain’t going no fuckin’ where.”

Defendant admitted that he hit Oliver, but testified he did so to make her drop the knife. When she refused to do so, defendant stated he began to struggle with her. He testified that he grabbed her hand, turned the knife away from him and pushed it down. It was then, defendant claimed, that Oliver was stabbed.

Defendant was charged with two counts of murder and one count of armed violence. The trial judge found defendant guilty only of armed violence. Defendant filed a post-trial motion for acquittal and discharge, alleging that because the trial judge made no finding as to the murder counts defendant had been acquitted of murder. Furthermore, defendant argued that this acquittal of the murder charges precluded the trial judge from entering a finding of guilty as to the count in the indictment charging armed violence based upon the underlying felony of murder. The trial judge denied the motion, stating that the theory on which he had found defendant guilty of armed violence was that he used a weapon while committing the offense of voluntary manslaughter. The trial judge sentenced defendant to a term of 7 years’ imprisonment.

Defendant appeals, contending that his conviction should be reversed because (1) the armed violence conviction is inconsistent with the implied finding of not guilty as to the two murder counts and (2) there was insufficient proof of voluntary manslaughter to sustain a conviction for armed violence.

Defendant argues that his conviction for armed violence be reversed because the fact that the trial court made no finding on the murder charges operates as an acquittal on the murder charges as well as on the voluntary manslaughter charges and therefore no felony exists upon which the armed violence conviction can be based.

We agree that the trial court’s failure to make a finding as to the murder charges amounts to an acquittal on those counts. (People v. Potts (1949), 403 Ill. 398, 86 N.E.2d 345.) However, we do not agree with defendant’s contention that the trial court’s failure to enter a finding as to the murder counts operates as an acquittal on voluntary manslaughter. It is well settled that the crime of voluntary manslaughter is embraced in the charge of murder and an accused may be convicted of voluntary manslaughter under an indictment for murder. (People v. Pratt (1970), 46 Ill. 2d 99, 262 N.E.2d 898.) The record reflects that the trial court clearly indicated later in the proceedings that it based its finding of defendant’s guilt as to armed violence upon the underlying felony of voluntary manslaughter. Therefore, because the record clearly reflects that the trial court found defendant had committed the offense of voluntary manslaughter, we conclude that the trial court did not err in convicting defendant of armed violence. (Cf. People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5, where the court held insufficient an information which stated elements of murder and charged in separate count by citing voluntary manslaughter statute as underlying offense for the commission of armed violence, but which failed to specify elements of voluntary manslaughter.) There is no claim that the indictment here was insufficient,

The State urges that this case be remanded for resentencing because defendant was found guilty of both armed violence and voluntary manslaughter but was sentenced only for armed violence. The trial court entered a formal conviction on the armed violence charge. However, the court merely stated that it found defendant had committed voluntary manslaughter and that such offense was the felony upon which the armed violence conviction was based. The State argues that a formal conviction and sentence should have been entered on the voluntary manslaughter finding because even though the offenses of armed violence and voluntary manslaughter arose from the same act, multiple convictions or impositions of concurrent sentences is not precluded where the offenses are not by definition lesser included offenses. The State relies upon People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281, and People v. Best (1981), 97 Ill. App. 3d 1083, 424 N.E.2d 29. These cases interpret People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, to allow convictions for both armed violence and for the underlying offense to stand where the offense upon which the armed violence is predicated is a felony by statutory definition when committed without possession or use of a dangerous weapon and defendant acts while armed with such a weapon. However, we do not read People v. Harón to allow convictions for both armed violence and for the underlying offense to stand where the convictions are based upon the same physical act. We adhere to the rule set forth in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, that multiple convictions and sentences based on the same physical act are improper and only the conviction for the more serious offense may stand. Because both defendant’s conviction for armed violence and the finding that defendant had committed voluntary manslaughter were based on the same physical act, only a conviction for the more serious offense may stand. The trial court properly entered judgment and sentenced defendant for the offense of armed violence, and we decline to remand this case for entry of a formal conviction and sentence on voluntary manslaughter.

Defendant also argues that his conviction for armed violence, even if properly based upon the underlying felony of voluntary manslaughter, be reversed because the underlying felony of voluntary manslaughter was not proved beyond a reasonable doubt.

We note that a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses, and we will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U. S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

Voluntary manslaughter is an unjustified killing committed while under a sudden and intense passion resulting from serious provocation; serious provocation is conduct sufficient to excite an intense passion in a reasonable person. (Ill. Rev. Stat. 1979, ch. 38, par. 9—2; People v. Simpson (1978), 74 Ill. 2d 497, 384 N.E.2d 373.) Illinois law is well settled that mutual quarrel or combat is sufficient to support a finding of serious provocation. (People v. Hudson (1979), 71 Ill. App. 3d 504, 390 N.E.2d 5; People v. Goolsby (1977), 45 Ill. App. 3d 441, 359 N.E.2d 871.) The term “mutual combat” has been defined as one into which the parties enter willingly or in which two persons, upon a sudden quarrel and in hot blood, mutually fight on equal terms. People v. Hudson; People v. Matthews (1974), 21 Ill. App. 3d 249, 314 N.E.2d 15.

The night before the stabbing defendant visited his children and was drinking with a woman with whom he formerly lived. Defendant had been out all night and upon arriving at the apartment the next morning he found a man lying in his bed. Defendant “escorted” the man out of the apartment while holding a butcher knife. Defendant asked Oliver to come back to the bedroom. Oliver was very angry with defendant for staying out all night with the woman he had formerly lived with. Defendant was angry with Oliver for allowing Luther to sleep in their bed. An argument erupted which escalated into a physical assault and ended with Oliver being stabbed with the butcher knife. We find that there was sufficient evidence to find that defendant had committed the offense of voluntary manslaughter. Therefore, defendant’s armed violence conviction was properly based upon the underlying offense of voluntary manslaughter.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARLAND DRUMMOND, Defendant-Appellant.
    First District (1st Division)
    No. 80-0971
    Opinion filed December 28, 1981.

      Daniel D. Yuhas and James K. Zerkle, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Edward F. Cozzi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Marland Drummond was indicted for rape, deviate sexual assault (oral copulation), deviate sexual assault (anal intercourse), armed robbery, aggravated kidnapping based upon rape, aggravated kidnapping based upon'deviate sexual assault and aggravated kidnapping based upon armed robbery. After a jury trial, defendant was found guilty of aggravated kidnapping and deviate sexual assault and sentenced to concurrent 10 year terms. On appeal, defendant contends that the trial court erred (1) in admitting in evidence photographs of defendant’s van taken by evidence technicians and the testimony of a police investigator regarding the interior of the van because the entry and subsequent taking of the photographs constituted an unconstitutional search of the van and (2) in sentencing defendant for both aggravated kidnapping and deviate sexual assault.

The facts need only be stated briefly: On November 19, 1977, while complainant waited at a bus stop, she was approached by defendant. Defendant, who was holding a gun, pushed complainant into his van, drove the van a distance and stopped. Defendant climbed into the back of the van with complainant and took off complainant’s clothes. When defendant first came up to complainant in the street he was wearing a dark colored baseball cap that had a white insignia with words on it. He did not have the cap on while he was inside the van. Complainant testified that defendant forced complainant to have sexual intercourse, oral sex and anal intercourse. He also forced her to masturbate with a bottle. At times during the incident defendant struck her with his hands and at one point he struck her on the buttocks about 20 times with an article made out of leather. Defendant then pushed her out of the van and drove away. Complainant observed that the van’s license plate number was 9281 RV.

Complainant stopped a police car and told the police that a man had raped her and that his vehicle license plate number was 9281 RV. Other officers arrived and drove her to St. Mary of Nazareth Hospital. Later that day, complainant was called to the police station and picked defendant out of a lineup. Complainant also identified photographs of the interior of the van and items in the van.

At the hearing on defendant’s motion to suppress evidence seized after a search of defendant’s van, Investigators Robert Wasmund and James Griffin testified that they talked with complainant about the incident. They went to defendant’s home after they secured a computer printout of the license plate number supplied by complainant. Defendant’s van was parked in the alley behind his home. They rang defendant’s doorbell and defendant admitted them. When the police entered his apartment, defendant was wearing a baseball cap with a white Illinois Bell insignia on it. They identified themselves and Griffin read the Miranda warning to defendant and defendant said he understood his rights. Griffin told defendant they were going to take him to Area Four Homicide and place him in a lineup. Wasmund testified that defendant was worried about how he was going to get back home, so the investigators told him he could drive the van to the station. Wasmund rode with him because defendant was in custody. Griffin followed in the squad car. Wasmund observed the interior of the van during the course of the ride and found it to look the same as it was described by complainant. Wasmund and Griffin acknowledged that they did not have a warrant at the time they went to defendant’s residence.

Once at the police station, the van was parked in the police station lot and Wasmund and Griffin re-entered the vehicle, using keys they obtained from defendant. Evidence technicians took photographs of the interior of the van. Neither the two investigators nor the evidence technicians had warrants either to enter the vehicle or to take photographs.

Defendant testified that Investigators Griffin and Wasmund came to his residence on November 20, 1977. He was not wearing a cap when he answered the door. The officers did not inform him of his rights. He told the officers that he was with his brother and his brother’s girlfriend the previous day. The officers asked him to come to the station and they told him to drive the van. He was placed in a lineup. The officers told him that a young lady had a complaint against him for rape. The officers did not show him a warrant when they arrived.

Defendant further testified that the officers placed him under arrest in his apartment and instructed him to drive the van to the police station. After they arrived at the station, the officers demanded the keys to the van and defendant complied with their order. He never gave the officers permission to enter his van.

The trial court denied the motion to suppress the evidence regarding the van and its contents.

At trial, Wasmund testified about what he saw inside the van. Griffin, Wasmund and complainant all identified photographs of the van, its interior and certain items in the van.

Defendant was found guilty of aggravated kidnapping based on deviate sexual assault and deviate sexual assault (anal intercourse), acquitted on the remaining counts and sentenced to concurrent 10 year terms.

Defendant’s first contention is that the trial court erred in admitting into evidence both Investigator Wasmund’s testimony regarding the interior of the van and certain photographs, taken by evidence technicians, of defendant’s van, its interior and certain items in the van, for the reason that the entry and subsequent taking of the photographs constituted an unconstitutional search of the van. He argues that the search of his van cannot be justified on any of the following exceptions to the warrant requirement: (1) consent; (2) search warrant; (3) plain view doctrine; or (4) inventory search.

The State, however, does not rely on any of these exceptions to justify the search. Instead, the State relies upon section 36—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 36—1), which provides that a vehicle used with knowledge and consent of the owner in the commission of certain specified offenses, including aggravated kidnapping, is subject to seizure. A vehicle seized pursuant to section 36-—1 must be “delivered forthwith to the sheriff of the county of seizure.” The sheriff then would be obliged to notify the State’s Attorney of the county of seizure of the seizure within 15 days. Upon such notice, the State’s Attorney would investigate the facts and then either return the vehicle or file a forfeiture action for seizure and confiscation of the vehicle. Ill. Rev. Stat. 1979, ch. 38, par. 36—2; Crosby v. City of Chicago (1973), 11 Ill. App. 3d 625, 298 N.E.2d 719.

We find that the State’s reliance upon section 36—1 to uphold the propriety of the search in this case is misplaced. The fact that a vehicle may be subject to seizure under section 36—1 does not cause the loss of a person’s fourth amendment right to be free from unreasonable searches and seizures.

However, we find that the warrantless search of defendant’s van was proper because the police had probable cause to believe that the car was an instrument of, or contained evidence of, the crime being investigated. People v. Peter (1973), 55 Ill. 2d 443, 303 N.E.2d 398, cert. denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627; People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056; People v. Fletcher (1978), 66 Ill. App. 3d 502, 383 N.E.2d 1285; see Texas v. White (1975), 423 U.S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304.

The victim here was abducted at gunpoint and transported in defendant’s van to a location where she was attacked. After she was thrown from the van, she hailed a police car and informed the police officers that she had been raped. She supplied them with the license plate number of defendant’s vehicle and a description of the vehicle. The police traced the license plate number and found that the vehicle was registered to defendant. The police proceeded to defendant’s address and found defendant’s van parked in the alley behind his house. The police looked through the windshield and observed that the interior of the van matched the description given by the victim. The police then arrested defendant inside his home. Defendant was allowed to drive his van to the police station while accompanied by one of the investigators. Because police knew that the van was the site of the attack and that the attack had occurred only hours beforehand, they could logically infer that evidence of the crime would still be in the van. We find that the police had probable cause to search the van and were not required to obtain a warrant prior to the search even though defendant was in custody and the car was in the police lot. (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; People v. Walls.) The trial court did not err in admitting either Investigator Wasmund’s testimony or the photographs taken by the evidence technicians.

The essence of defendant’s final argument is that deviate sexual assault is a lesser included offense of aggravated kidnapping based on deviate sexual assault and, therefore, the trial court erred in imposing sentence on both aggravated kidnapping and deviate sexual assault.

Defendant was charged with two counts of deviate sexual assault, one based on an act of oral copulation and the other based on an act of anal intercourse. However, defendant was convicted only of the deviate sexual assault based on the act of anal intercourse. He was also convicted of aggravated kidnapping based upon deviate sexual assault.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, our supreme court affirmed convictions for rape and burglary and held “that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566.) Deviate sexual assault is not a lesser included offense of aggravated kidnapping. (People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322.) Here, the offenses of aggravated kidnapping and deviate sexual assault arose from a series of incidental or closely related acts and the offenses are not lesser included offenses of each other. Consequently, the convictions for aggravated kidnapping and deviate sexual assault were proper. People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE McGLOON

text:
      In re MICHAEL GERMICH.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. MICHAEL GERMICH, Respondent-Appellant.)
    First District (1st Division)
    No. 80-2612
    Opinion filed December 28, 1981.

      James J. Doherty, Public Defender, of Chicago (Michael Woloshin and Judith A. Stewart, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Glenn Carr and Karen J. Dimond, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a hearing, respondent Michael Germich was found to be in need of mental treatment and subject to involuntary admission. The trial court ordered him hospitalized in the Department of Mental Health and Developmental Disabilities. Respondent appeals and contends (1) the trial court improperly considered hearsay evidence and (2) the trial court’s finding was based on an improper ground.

We affirm.

On August 14,1980, a petition was filed asserting that respondent was mentally ill and unable to provide for his basic physical needs so as to guard himself from serious harm. The petition was accompanied by two supporting certificates. A hearing on the petition was held on September 3,1980.

John Germich, respondent’s father, testified that respondent had been involuntarily hospitalized on prior occasions. On July 2, 1980, he spoke with respondent and told him that he had received a call from the F.B.I. The agent told Mr. Germich that respondent had visited the F.B.I. offices and informed the agent that he knew he was under surveillance. Respondent suggested that the F.B.I. investigate others, including his .father. The agent stated that respondent was very belligerent and “borderline violent.” After Mr. Germich relayed this conversation to respondent, respondent stated that he did not want to return to the hospital and in the event he were rehospitalized, he would “get even.”

Douglas Bork was head resident advisor at the dormitory where respondent resided during the summer of 1980. He testified that he saw respondent several times in the dormitory and neighborhood. Bork observed that respondent wore flannel clothes all summer and it appeared that respondent neither changed nor washed these clothes as they developed an objectionable odor as time passed. Bork visited respondent’s room on August 2, 1980. He saw five brown shopping bags filled with rotten food and trash. Food was spilled on the desk and rice and broken glass were strewn on the floor. The room was infested with insects and smelled like rotten fruit. Bork further testified that respondent resided in the room until he was hospitalized in mid-August.

Faith Whitaker worked in the main lounge of the residence hall. She testified that on two occasions she saw respondent pinching himself and responding to the pinches by flinching and saying, “Ouch.” Respondent would also talk to himself. On one occasion, respondent may have been talking on a nearby phone, but Ms. Whitaker did not see a phone receiver in his hand.

Dr. Chun Ching Tsai, a psychiatrist qualified to testify as an expert witness, stated that he saw respondent daily since respondent’s admission to the Illinois State Psychiatric Institute on August 13, 1980. Dr. Tsai observed that respondent was suspicious and agitated. During the first several days of his hospitalization, respondent would not speak with anyone and when Dr. Tsai would try to examine him, respondent would say, “Don’t touch me.” Rather than responding to Tsai’s questions concerning respondent’s past, respondent would reply that his past was a private matter. Respondent also refused to answer questions about his plans for the future and would shower and change clothes only at the request of the hospital staff. Dr. Tsai further testified that respondent was suspicious, deluded and irrational and that his conduct was influenced by his deluded thinking.

Dr. Tsai diagnosed respondent as a paranoid schizophrenic at the psychotic level. He based his diagnosis, in part, on his personal observation and examination. He also considered hospital records compiled during respondent’s four prior commitments, information from respondent’s father and the hospital staff, and information compiled by the intake staff after the staff interviewed Mr. Bork and others who brought respondent to the hospital. The records from previous hospitalizations indicated that respondent’s behavior during those periods was similar to that exhibited during his current hospitalization. The report prepared by the intake staff indicated that respondent acted strangely, was withdrawn, asked peculiar questions and believed people were trying to harm him. It also appeared to the intake staff that respondent had not beén eating properly.

Dr. Tsai further testified that if respondent were released from the hospital, his physical condition would deteriorate and he could possibly harm himself or others. Tsai emphasized that respondent would not be able to feed, clothe, or otherwise care for himself due to his mental condition. Based on the severity of respondent’s illness and respondent’s failure to follow through with out-patient treatment programs in the past, Dr. Tsai believed that in-patient treatment was required.

Respondent testified that he did not need psychiatric treatment or hospitalization. He stated that his inability to care for his room was unimportant. He had no place to live if he were discharged, but did not believe this was a necessity. In response to the questions, “Do you have any money? Are you able to buy food?” respondent replied, “What relevance has that to do with it?”

The trial court found respondent subject to involuntary admission on the ground that he was unable to provide for his basic physical needs and unable to guard himself from serious harm.

First, respondent contends that in finding him in need of mental treatment, the trial court improperly considered hearsay testimony. Specifically, he maintains that Dr. Tsai’s opinion which was based on the intake staff’s report and Tsai’s testimony regarding the contents of that report were hearsay and therefore inadmissible.

In People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, the court stated that medical reports prepared by others may be used by experts in formulating an opinion and the expert may testify to the contents of the reports so long as the records are a type commonly used and relied upon by the medical profession. Relying on Ward, the court in People v. Rhoads (1979), 73 Ill. App. 3d 288, 314-15, 391 N.E.2d 512, 531, reached a similar conclusion and noted that the following cases were in accord with its interpretation of Ward: People v. Cooper (1978, 64 Ill. App. 3d 880, 381 N.E.2d 1178; People v. Sharkey (1978), 60 Ill. App. 3d 257, 376 N.E.2d 464; Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679; People v. Espinoza (1977), 54 Ill. App. 3d 36, 369 N.E.2d 325; and Smith v. Williams (1975), 34 Ill. App. 3d 677, 339 N.E.2d 10.

Here, Dr. Tsai testified that the intake staff’s reports were customarily relied upon by psychiatrists when diagnosing patients. Therefore, Dr. Tsai could rely upon such a report in formulating his opinion on respondent’s mental state and could testify to the contents of the report. Thus the trial court did not err in considering Dr. Tsai’s testimony on these matters.

Second, respondent contends that the sole basis for the trial court’s finding that he was subject to involuntary commitment was his refusal to disclose future plans to the attending psychiatrist. He maintains that this was an improper basis upon which to order commitment. He further maintains that pursuant to section 3—208 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 911/2, par. 3—208), he had the right to withhold any and all such information.

Our review of the record reveals that respondent’s commitment was based upon the existence of a mental disorder which rendered respondent, “unable to provide for his basic physical needs and unable to guard himself from serious harm.” This is a proper ground for involuntary commitment. (Ill. Rev. Stat. 1979, ch. 91/2, par. 1—119(2).) The fact that respondent failed to disclose his future plans to the attending psychiatrist Dr. Tsai was only one factor cited by the trial court in support of the aforementioned conclusion.

We further find that section 3—208 of the Mental Health and Developmental Disabilities Code is not applicable to the instant case. The statute provides, in part, as follows:

“Whenever a petition has been executed pursuant to Section 3—507, 3—601 or 3—701, and prior to this examination for the purpose of certification of a person 12 or over, the person conducting this examination shall inform the person being examined in a simple comprehensible manner of the purpose of the examination; that he does not have to talk to the examiner; and that any statements he makes may be disclosed at a court heáring on the issue of whether he is subject to involuntary admission.” (Ill. Rev. Stat. 1979, ch. 91/2, par. 3—208.)

However, these requirements apply only where the immediate purpose of the examination is certification and do not apply to the traditional therapist-patient relationship. (See In re Rizer (1980), 87 Ill. App. 3d 795, 409 N.E.2d 383, citing Governor’s Commission for Revision of the Mental Health Code of Illinois, Report, pt. 1, comment, at 38 (1976).) Here, Dr. Tsai did not conduct a certification examination. He saw respondent on a daily basis and acted as respondent’s therapist. Thus, the situation presented in this case is distinguishable from that contemplated by 3—208 and said statute is inapplicable.

Respondent further contends that the State did not show by clear and convincing evidence that respondent was subject to involuntary admission. We have reviewed the record and respondent’s brief carefully and find this contention to be without merit.

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

Order affirmed.

CAMPRELL, P. J., and O’CONNOR, J., concur.