author: PRESIDING JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOM KAPPAS, a/k/a Athanasios Kapogiannis, Defendant-Appellant.
    Fourth District
    No. 4—83—0245
    Opinion filed December 15, 1983.

      Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Blood alcohol concentration of .11%.

Guilty — one year probation.

We affirm.

Kappas was tried to a jury on charges of improper lane usage, bribery, driving while license suspended, illegal transportation of alcohol, driving under the influence of alcohol, and driving while his blood alcohol concentration was at or in excess of .10%.

He was found not guilty of improper lane usage, bribery, and driving under the influence of alcohol, but guilty of driving while his license was suspended (90 days), illegal transportation of alcohol ($100 fine), and driving while his blood alcohol concentration was at or in excess of .10% (one year probation).

Kappas appeals his conviction of driving while his blood alcohol concentration was at or in excess of .10%.

I. The Facts

On the evening of November 29, 1982, Kappas was stopped by Pontiac, Illinois, Police Officer Ores. The officer had observed the car driven by Kappas swerving from lane to lane as it approached an entry ramp onto Interstate 55. Prior to stopping defendant, Ores called for backup help. Illinois State Trooper Case and Pontaic Police Officer Bernardini responded to the call and all three were present when the stop was made. Officer Ores approached the defendant’s car and detected the odor of alcohol. The defendant got out of his car and walked to the shoulder of the interstate where he performed various field sobriety tests. During the tests the defendant almost fell over backwards. Trooper Case found an open whiskey bottle and two open beer containers in the car. Officer Ores placed the defendant under arrest for driving under the influence of alcohol and asked the defendant to take a breathalyzer test which would normally be done at the county jail. At this point Trooper Case said he was a qualified breathalyzer operator and was willing to administer the test at State police headquarters where there was a machine.

Kappas was taken to State police headquarters, arriving approximately 10 minutes after his arrest. At headquarters, three more physical tests were administered. He demonstrated impaired ability in the performance of all three tests. In Officer Ores' opinion, the defendant was intoxicated and unfit to drive.

A breathalyzer test was then administered by Trooper Case. Case plugged the machine in at 9:45 p.m. Case ran a test on the ambient air which registered .000% for alcohol. The defendant was tested at 10:06 p.m. The test results showed Kappas’ blood alcohol percentage to be .11%.

The machine used to test Kappas had been inspected 10 days before. The test consisted of heating a 10% alcohol solution in order to force evaporation. Two readings were then taken. The first reading was .09% alcohol, the second reading .10% alcohol. Such results were within normal machine tolerances which are plus or minus .01% accuracy.

Kenneth Kurtz, a maintenance and certification officer of the Illinois State Police, testified that the machine measures blood alcohol at the time of testing and does not take into account variables such as height, weight, time or type of alcohol ingested. He further testified that there is no way to judge anyone’s blood alcohol at any time prior to or after the actual administration of the test based solely on test results.

Kappas took the stand in his own behalf. He admitted drinking three beers but claimed that his girlfriend had left the open beer in his car. He denied ever crossing any traffic lines. He had no knowledge about where the whiskey bottle came from. He had been drunk on previous occasions and knew what it was like, but was not drunk on the evening of November 29.

The jury found defendant not guilty of driving under the influence in terms of physical impairment, but guilty of driving a car while his blood alcohol was at or in excess of .10% as measured by a breathalyzer.

II. The Merits

Defendant appeals his conviction for driving a car based on a blood alcohol concentration (BA) of .11% measured 38 minutes after his arrest. His first argument on this point is that since the breathalyzer machine has a tolerance of plus or minus .01, there is no way to tell whether his blood alcohol at the time of testing was .10, or .11, or (he did not state this possibility) .12. While a finding of .10 would be sufficient to convict him under section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501(a)(1)), the information charging defendant with the crime reads “at a time when the alcohol concentration in his breath was in excess of 0.10.” (Emphasis added.) In the defendant’s view, In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, requires the State to prove beyond a reasonable doubt the exact terms of the information as written.

We do not agree.

In People v. McGee (1979), 72 Ill. App. 3d 576, 391 N.E.2d 5, the defendant was indicted for delivery of more than 30 grams of heroin. The statute provided that it was a crime to deliver 30 or more grams of the substance. The court upheld the defendant’s conviction noting that the defendant was obviously not misled when making his case since his defense was that he had not delivered the heroin at all. Similarly, the defendant here sought to prove at his trial that the breathalyzer result did not reflect his blood alcohol at the time he was driving as well as attempting to prove that the tolerances of the machine were such that a probable inference was that his blood alcohol was not in excess of .10. Under these circumstances it is apparent that he was in no way misled in terms of preparing his defense to the crime charged. Under the rationale of McGee, there was no reversible error pertaining to the relationship between the proof and the information. No error.

Defendant next argues that based on well-recognized scientific principles there is no assurance that his BA was the same at the time of driving as it was at the time that he was tested. The State responds first that the jury’s verdict was proper based on the totality of the circumstances and second that by not proffering medical journals which he cites in his brief to the trial court, the defendant has waived their consideration by this court. The State’s waiver argument does not appear well taken. Under cross-examination by defendant’s attorney, the officer in charge of maintenance and certification of breathalyzers admitted that the machine only showed the BA of an examinee at the time of testing and that there was no way to judge a person’s BA anytime prior to the test. An objection by the State prevented the defendant’s attorney from going into the scientific principles behind this fact but the witness did indicate his knowledge of the “blood alcohol absorption curve” which would cause the apparent discrepancy. The issue was again raised in defendant’s post-trial motion. Errors at trial must be preserved either by objection at trial at the proper time or by the filing of a post-trial motion. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) Since this issue was broached at trial and raised in the post-trial motion, we may consider the effect of the blood alcohol absorption curve in deciding whether a 38-minute delay between arrest and test might render the jury’s verdict improper as against the manifest weight of the evidence.

The blood alcohol absorption curve is derived by plotting the amount of alcohol which the body absorbs against the time it takes to do so. Until absorption is complete, the blood alcohol indicator rises continually. Therefore, a breathalyzer test administered immediately after ingestion of alcohol will show a lower BA than the same test taken somewhat later, even though the amount of alcohol consumed is exactly the same. In light of these principles, it is apparent that a breathalyzer test administered at any time other than on the scene of an arrest might likely yield different results than a test given later. The issue boils down to what degree a 38-minute wait should affect the inferences which a jury could reasonably draw from all the evidence in a case.

In People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931, this court upheld a conviction for violation of the same section of the Illinois Vehicle Code as is present here, based on defendant’s appearance and behavior at the time of arrest and breathalyzer results of .20% obtained an hour after arrest. Defendant here attempts to characterize Malik’s behavior as more indicative of intoxication than that exhibited in the instant case but the two cases are really quite similar. Malik’s clothing was in disarray, the smell of alcohol was about him, his vehicle was being driven without headlights at night, and his balance was uncertain at all times. In the instant case, the defendant was stopped after police observed his car weaving out of his traffic lane. After stopping the defendant, the police officers detected the odor of alcohol. The police also found open containers of alcohol in his car. The defendant performed poorly when put through various field sobriety tests. At trial the defendant admitted having three beers before he began driving. Based on the totality of the circumstances, a jury could reasonably conclude that defendant’s BA at the time he was driving was .10% or higher despite the potentially differing breathalyzer results which delay might cause.

In his brief, defendant quotes language from People v. LaPlante (1975), 81 Misc. 2d 34, 365 N.Y.S.2d 392, which indicates that the State must prove the defendant’s actual BA reading at the time he was driving to convict him of the charges based on a specific BA reading. We note that no other court in New York has come to a similar conclusion, and at least one court has specifically refused to follow LaPlante recognizing the “impossibility of administering the test concurrently with the operation of the vehicle.” (See People v. LaMontagne (1977), 91 Misc. 2d 263, 397 N.Y.S.2d 872 (which allowed a two-hour delay).) Courts in other States also recognize that delay, if not inordinate or involving further consumption of alcohol, does not render breathalyzer test results nonprobative of BA at the time of driving. Toms v. State (1952), 52 Okla. Crim. App. 60, 239 P.2d 812, permitted a 21/2-hour delay. (Accord, Wimsatt v. State (1957), 236 Ind. 286, 139 N.E.2d 903.) The best view in this area — and that which this court adopts — is that expressed in State v. Gallant (1967), 108 N.H. 72, 227 A.2d 597, which found that matters of delay between driving and testing are properly viewed as going to the weight of the breathalyzer test results, and as such must be viewed in light of the circumstances surrounding the arrest.

Since there was additional evidence which supports the finding that at the time he was driving defendant’s BA was at or above the level proscribed by statute, the fact that there was a 38-minute period between the time he was observed driving and the time he was tested by a breathalyzer should not result in a jury’s verdict being overturned. The import of a 38-minute delay is reduced further by the fact that police are required to wait 20 minutes following arrest to administer the test. This means that the nonstatutory delay was only 18 minutes from the time defendant was stopped. During this period the defendant’s car was searched, he was asked to, and did perform (poorly), field sobriety tests, and was then transported to State police headquarters. Under these circumstances we find the delay slight and totally insufficient to render the breathalyzer results nonprobative. No error.

III. The Statute

The defendant urges the potential unconstitutionality of section 11 — 501(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501(a)(1)) arguing basically that if God had intended that man not drive when his BA is .10% or greater, he would have given us breathalyzers instead of brains. The State responds “waived!” or (in the alternative) that the conduct prescribed by the statute may be ascertained through minimal cerebral exercises and as such the statute is constitutional.

The State argues that since the defendant failed to: (1) object when the charges against him were amended to include the offense of driving with a BA of .10% or more; (2) file a motion to dismiss based on constitutional grounds; (3) object on constitutional grounds to the instructions defining the offense; and (4) raise the specific constitutional issues asserted here as part of his post-trial motion, he has now waived any objections based on the perceived unconstitutionality of the statute. The record discloses that the constitutional arguments raised here were specifically addressed by the defendant’s post-trial motion which was denied by the trial court. The issue was, therefore, preserved for appeal.

Defendant contends that the statute under which he was convicted is unconstitutionally vague because there is no way for one to accurately determine when his BA reaches or exceeds .10%, so that it is impossible to properly comport oneself with the statute’s proscriptions. The defendant trots out language from Connally v. General Construction Co. (1926), 269 U.S. 385, 70 L. Ed. 322, 46 S. Ct. 126, and Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294, indicating that statutes which force people to guess at their meanings and differ as to their applications violate principles of due process.

Defendant’s reliance on Grayned is curious if not misplaced. In Grayned, the court struck a Rockford, Illinois, antipicketing ordinance on equal protection grounds (not involved here) but sustained a city ordinance which proscribed “ '*** wilfully *** making *** any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof ***.’ ” (408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298.) The appellant in Gray-ned had argued that the statute did not sufficiently specify the proscribed conduct but the court found otherwise. We find Grayned instructive but distinguishable. In the instant case, the argument is that while the proscribed conduct is manifestly clear, there is no reasonable way for an individual to determine whether his status at any given time actually violates the statutory proscription. Only a breathalyzer test would indicate to an individual whether his BA was beyond that allowed by the statute. The problem is aggravated by the facts that (1) there is no flat proscription against drinking and driving, and (2) that different individuals show different BA levels and different degrees of physical impairment based on the ingestion of the same amounts of liquor. Concerns such as these led one division of the California Court of Appeals to find unconstitutional an identical statute in that State. People v. Alfaro (1983), 143 Cal. App. 3d 528, 192 Cal. Rptr. 178 (advance sheet only).

A second division of the California Court of Appeals refused to

follow Alfaro. (See People v. Galante (1983), 143 Cal. App. 3d 709, 192 Cal. Rptr. 184.) Galante found that in the first place it is obvious that the terms defining the offense in conduct could not be more precise. Driving a motor vehicle when one’s BA is .10% or more is against the law. The court viewed the fact that marginal cases may arise in which it is difficult for an individual to determine whether given behavior lies on the condoned side of the drawn line or the condemned side as insufficient to render the statute too vague for constitutional purposes.

Although we are convinced that one should ordinarily be expected to know that he has consumed enough alcohol to raise the BA to .10% or above, we feel that a point which was not briefed or argued more effectively disposes of this issue. In People v. Teschner (1979), 76 Ill. App. 3d 124, 394 N.E.2d 893, the court upheld section (a) of the act under attack against a constitutional attack based on the lack of a requisite mental state. The court found it to be well established that motor vehicle offenses do not pend on intent, motive or knowledge but on the doing of the act prohibited alone. The court found it appropriate for the legislature to create an absolute liability offense where the regulation of traffic was involved.

The strict liability nature of this offense bears directly on the defendant’s argument that this section of the statute is vague since a person cannot determine when his BA exceeds .10%. It simply does not matter since the liability is absolute. Just as one may not argue that a stop sign which was violated was not seen by or known to the violator, so may not a person whose BA registers .10% or above on an appropriately calibrated breathalyzer argue that he did not know it was so.

The violation is in the doing, not the knowing. No error.

IV. The Instructions

At trial, defendant tendered an instruction consisting of both paragraphs of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981). The State tendered the same instruction deleting the second paragraph. The judge refused the defendant’s version of the instruction ruling that proof the defendant was driving, as well as defendant’s admission that he was drinking prior to driving, constituted direct evidence of guilt. Defendant’s view is that since the proof pertaining to his blood alcohol at the time of driving was circumstantially established by a breathalyzer test given some time later, the second paragraph of the instruction should have been given because the defendant’s guilt was established wholly through circumstantial evidence.

“ ‘[D]riving’ is an essential element of the offense of ‘driving while intoxicated.’ ” (People v. Wright (1977), 49 Ill. App. 3d 356, 358, 364 N.E.2d 355, 356.) Since there was direct evidence that defendant was driving a car at the time he was arrested and just prior to taking a breathalyzer test, the State proved an essential element of the offense by direct evidence. Since the State proved an essential element of the offense by direct evidence, the State’s case was not entirely circumstantial. As indicated in the Committee Note, the second paragraph of IPI Criminal No. 3.02 should be given only when the State’s case is entirely circumstantial. Since the State’s case was not entirely circumstantial, the trial court properly refused to give the second paragraph of the instruction. No error.

The defendant offered, and the court gave, an instruction on the presumptions which attached to various BA levels. The instruction is found at IPI Criminal No. 23.06 and was criticized by this court in People v. Malik (1983), 113 Ill. App. 3d 206, 446 N.E.2d 931. The defendant now urges that it was error for the court to give the instruction. The State responds the defendant waived his objection to the instruction by tendering it. Defendant has not addressed the waiver argument.

“It is axiomatic that an accused cannot complain of error *** invited by him, and to this end *** a defendant may not complain of defects in instructions which were given at his request.” {People v. Riley (1964), 31 Ill. 2d 490, 496, 202 N.E.2d 531, 534.) Under this controlling authority, defendant may not complain of the instructions in this case which were given at his behest. Further, by not arguing waiver of this point, the defendant has capitulated to the State’s position that the point is waived. (87 Ill. 2d R 341(e); Walker v. Board of Police & Fire Commissioners (1979), 77 Ill. App. 3d 958, 397 N.E.2d 2.) No error.

Affirmed.

TRAPP and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WEBBER PRESIDING JUSTICE MILLS,

license: Public Domain

text:
    ROADWAY EXPRESS, INC., Plaintiff-Appellant, v. THE TREASURER OF THE STATE OF ILLINOIS et al., Defendants-Appellees.
    Fourth District
    No. 4—83—0374
    Opinion filed December 9, 1983.
    MILLS, P.J., concurring in part and dissenting in part.
    Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen and Mark D. Howard, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Hercules F. Bolos, and Edward P. O’Brian, Assistant Attorneys General, of Chicago, of counsel), for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff filed suit in the circuit court of Sangamon County seeking to obtain a refund of certain franchise fees assessed by the Illinois Commerce Commission pursuant to section 18 — 801(2)(b) of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 801(2)(b)). Both plaintiff and the defendants filed motions for summary judgment and the trial court allowed the defendants’ joint motion and denied the plaintiff’s motion. This appeal followed.

The essential facts are not disputed. Plaintiff is an Ohio carrier and on September 23, 1981, the Illinois Commerce Commission (ICC) adopted a resolution requiring all Ohio carriers to pay a franchise fee of $31, the same fee being charged to Illinois carriers by the State of Ohio. The authority upon which the resolution was based is found in section 18 — 801(2)(b) of the Illinois Motor Carrier of Property Law which states:

“(b) The Commission may negotiate and enter into written Reciprocity Agreements with other states and provincial jurisdictions. However, in the absence of an agreement the Commission may examine their laws and requirements. As a result of that examination, the Commission may require any motor carrier from a foreign jurisdiction, which does not extend such reciprocal benefits and privileges, to pay an appropriate fee based upon what the jurisdiction charges the Illinois motor carrier. The Commission shall file a copy of each written Agreement or Declaration with the Secretary of State.” Ill. Rev. Stat. 1981, ch. 95V2, par. 18 — 801(2)(b).

It appears that Illinois charged the carriers of other States a maximum fee of $2 under reciprocity agreements but that repeated efforts to negotiate such an agreement with the State of Ohio had come to naught.

On December 7, 1981, plaintiff paid to the ICC the sum of $6,712 for 3,356 identification stamps for its trucks, this being at the rate of $2 each. No challenge is made to the $2 charge. The ICC demanded an additional $29 for each stamp pursuant to the resolution of September 23, and on December 21, 1981, plaintiff paid the additional $97,324 under protest. The ICC placed that sum in the protest fund where presumably it still remains. The instant suit was then filed on January 12,1982.

While it is immaterial to our disposition of this case, the record discloses that subsequent to its filing, this State and the State of Ohio did enter into a reciprocity agreement providing for an annual fee of $1.

On appeal plaintiff has raised a variety of issues claiming constitutional and statutory violations. However, we need not reach all of these, since we find that the disposition of the fees collected by the ICC under its resolution of September 1981 is in violation of Federal law.

At the outset, it should be made clear that the ICC was possessed of the power to adopt the resolution. Regulation of interstate commerce generally is the province of the Federal government. Where Congress has chosen to regulate a particular field of commerce, State regulations affecting that field will be invalidated only when it is apparent that Congress has preempted the field or when State law conflicts with Federal law. Jones v. Rath Packing Co. (1977), 430 U.S. 519, 51 L. Ed. 2d 604, 97 S. Ct. 1305.

Congress has chosen to regulate transportation through the Interstate Commerce Act, but the relevant language in section 11506 of that Act (49 U.S.C. sec. 11506 (Supp. IV 1980)) demonstrates that Congress did not intend to preempt the field. That language is as follows:

“(b) The requirement of a State that a motor carrier, providing transportation subject to the jurisdiction of the Commission under subchapter II of Chapter 105 of this title and providing transportation in that State, register the certificate or permit issued to the carrier *** is not an unreasonable burden on transportation *** when the registration is completed under standards of the Commission under subsection (c) of this section. When a State registration requirement imposes obligations in excess of the standards, the part in excess is an unreasonable burden.”

Pursuant to this authority, the Interstate Commerce Commission promulgated the standards which are set forth in section 1023.33 of title 49 of the Code of Federal Regulations (49 C.F.R. sec. 1023.33 (1981)), and which state in relevant part:

“The application shall be duly completed and executed by an official of the motor carrier, and shall be accompanied by the fee, if any, prescribed by the law of such State; provided, however, that such fee shall not exceed $5 for the issuance of each such identification stamp; and provided further (when the State commission assigns an identification number in lieu of issuing an identification stamp or stamps), that such fee shall not exceed $5 for each vehicle operated under the authority of the motor carrier identified in the cab card bearing such identification number. The prescription of the maximum fee of five dollars for issuance of such identification stamp or number shall not preclude a State from imposing an additional fee in a reasonable amount to be paid to a State commission prior to the issuance of such stamp or number, if such additional fee shall be subject to exclusive use by the State commission and used by it solely for defraying the cost of the regulation of carriers by highway operating within the borders of such State and the enforcement of laws pertaining thereto. The State commission shall maintain adequate records to identify the receipt and disbursement of such funds collected pursuant to the provisions of this section.”

We note, again parenthetically, that section 1023.33 was amended in 1982 to set an absolute limit of $10 on identification stamp fees.

The foregoing regulation demonstrates that the ICC had unrestricted power to impose a fee of $5. It also demonstrates that the ICC had limited powers to impose an additional fee: (1) the additional fee must be reasonable, and (2) it must be used to defray the costs of regulating the carriers operating within the State and of enforcing the laws concerning them.

Plaintiff has argued that the additional fee in the case at bar is not reasonable, claiming in substance that anything over $5 is prima facie unreasonable and that the burden of proof is then placed upon the defendant to demonstrate reasonableness. We do not agree. Plaintiff cites no authority for the proposition and such an interpretation would make a nullity of the provisions for an additional fee.

However, we need not pursue the argument since the record is plain that the ICC has not complied "with the second proviso concerning the disposition of the fee.

As has been indicated, plaintiff’s payment of $29 per stamp reposes in the protest fund. The parties entered into certain stipulations regarding its disposition as follows:

“Had the money that was paid under protest in this action not been paid into the Protest Fund, the money would have been placed into the Motor Vehicle Fund and would have been used for the administering of the Illinois Motor Carrier of Property Law and the Illinois Commercial Relocation of Trespassing Vehicles Law.
Had the money that was paid under protest in this action not been paid into the Protest Fund, it would have been paid into the Motor Vehicle Fund and would have been pooled with other monies in the Motor Vehicle Fund, and no separate or special accounting would have been made regarding such fund after they are pooled.
Funds from the Motor Vehicle Fund are used to administer the Illinois Commercial Relocation of Trespassing Vehicles Law.”

The nature of the “motor vehicle fund” is found in section 18— 802 of the Illinois Motor Carrier of Property Law (Ill. Rev. Stat. 1981, ch. 951/2, par. 18 — 802), which provides:

“All fees, fines and penalties herein prescribed shall be promptly paid into a special fund in the State Treasury by the Commission. Said special fund shall be known as the ‘motor vehicle fund.’ The money in the ‘motor vehicle fund’ shall be used to defray the expenses of the administration of this Chapter and Chapter 18a [The Illinois Commercial Relocation of Trespassing Vehicles Law], and any money in such fund not needed for such purposes shall be used for repairs and maintenance of state highways.”

The Illinois Commercial Relocation of Trespassing Vehicles Law is found in chapter 18a of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 951/2, par. 18a — 100 et seq.). The general purpose of the law is found in its title and in its declaration of policy (Ill. Rev. Stat. 1981, ch. 951/2, par. 18a — 101), which states in pertinent part, “to supervise and regulate the commercial removal of trespassing vehicles from private property, and the subsequent relocation and storage of such vehicles.” It is thus apparent that this law is unrelated to motor carriers of property and is aimed at the correction and regulation of a different subject matter. The term “carrier” does not appear anywhere in chapter 18a. The disposition of funds is directed in section 18a — 602 (Ill. Rev. Stat. 1981, ch. 951/2, par. 18a — 602), which largely parallels the provisions for the motor vehicle fund set forth above. It directs that the fees be paid into the motor vehicle fund and reiterates in haec verba the final sentence of section Í8 — 802 recited above.

It is thus apparent that the motor vehicle fund may be expended for at least four purposes: (1) regulation of interstate carriers under chapter 18; (2) regulation of intrastate carriers under chapter 18; (3) regulation of commercial relocators under chapter 18a; and (4) repairs and maintenance of highways. This disposition is at odds with the Federal mandate under 49 C.F.R. sec. 1023.33 (1981) set forth above providing that the additional fees “shall be *** used *** solely for defraying the cost of the regulation of carriers by highway operating within the borders of such State and the enforcement of laws pertaining thereto.” (Emphasis added.) The regulation further requires that the ICC maintain adequate records to identify the receipt and disbursement of the additional fees.

Under the stipulations recited above, it is apparent that both of these Federal requirements have not been met. The motor vehicle fund is not used exclusively for the regulation of carriers by highway and no separate accounting is made of the additional fees. They are simply commingled with all other moneys in the fund.

It is therefore our opinion that while the additional fees in this case were legally imposed, they were illegally disbursed by the ICC. Since they are still in esse and identifiable, the plaintiff is entitled to a refund for all money in excess of $5 per stamp, the latter being the maximum under the regulation in force at the time of payment.

The summary judgment order of the circuit court of Sangamon County in favor of the defendants is therefore reversed. The defendants are ordered pursuant to this court’s authority under Supreme Court Rule 366(aX5) (87 Ill. 2d R. 366(a)(5)) to refund to the plaintiff the sum of $87,256 in accordance with the views expressed herein.

Reversed and refund ordered.

GREEN, J., concurs.

PRESIDING JUSTICE MILLS,

concurring in part and dissenting in part:

I agree with my colleagues that the additional fees in this case were legally imposed.

After all, if another State slaps Illinois carriers with a stiff franchise fee, and refuses to enter into a mutual quid pro quo for a less burdensome charge, I find no legal or logical impedimenta to Hlinois reciprocating in kind.

But I cannot agree that just because the fees were not properly segregated and disbursed, plaintiff gets a refund! Why should plaintiff reap a windfall when the only question is how the fees were spent? Such logic escapes me.

I would simply affirm the $31 fee and remand with directions to the Treasurer of Illinois and the Illinois Commerce Commission that they expend the total fees “solely for defraying the cost of the regulation of carriers by highway,” in accord with Federal mandate, and report same back to the trial court.

Finito!


author: JUSTICE EARNS

text:
    NORMAN BULTMAN et al., Plaintiffs-Appellants, v. MELVIN BISHOP et al., Defendants-Appellees—(Emert Wyss, Jr., Plaintiff-Appellant, v. Melvin Bishop et al., Defendants-Appellees).
    Fifth District
    No. 5—83—0189
    Opinion filed November 22, 1983.
    Rehearing denied January 13, 1984.

      Joseph R. Brown, Jr., of Mudge, Riley and Lucco, of Edwardsville, for appellants.
    Irving M. Wiseman, of Wiseman, Shaikewitz, McGiver and Wahl, RC., of Alton, for appellee Irving M. Wiseman.
    Pope and Driemeyer, of Belleville (Thomas F. Hennessey III, of counsel), for appellee Melvin Bishop.
   JUSTICE EARNS

delivered the opinion of the court:

Appellants, purchasers of securities, appeal from the March 10, 1983, judgment of the circuit court of Madison County granting the sellers motions for summary judgment after appellants sought to avoid the sale of securities as provided in the Illinois Securities Law of 1953. Ill. Rev. Stat. 1979, ch. 121V2, par. 137.13.

In 1978, appellant Bultman and others purchased $80,000 worth of shares and debentures in Action Commodities, Inc., a brokerage firm incorporated in Missouri. Appellees Bishop, Laughlin and Wise-man were officers and directors of Action Commodities, Inc. Despite their rosy forecasts, by the spring of 1980 the corporation was apparently insolvent. In response to the investors’ inquiry of May 21, 1980, the Illinois Secretary of State informed the investors that the securities had not been registered and no reports of sales had been filed as the Illinois Securities Law required.

The investors sought to rescind the sale as permitted by the Illinois Securities Law of 1953, which provides:

“A. Every sale of a security made in violation of the provisions of this Act shall be voidable at the election of the purchaser ***; and upon tender to the seller or into court of the securities sold *** each *** officer [of the issuing corporation] *** who shall have participated or aided in making such sale, shall be jointly and severally liable to such purchasers for *** the full amount paid ***.
B. Notice of any election provided for in subsection A *** shall be given by the purchaser, within 6 months after the purchaser shall have knowledge that the sale *** is voidable, to each person from whom recovery will be sought, by registered letter addressed to the person to be notified at his last known address with proper postage affixed, or by personal service.” Ill. Rev. Stat. 1981, ch. 121V2, pars. 137.13(A), (B).

Seeking to avoid the sales of the securities in violation of the Securities Law, each purchaser sent to each corporate officer by certified mail with return receipt requested, a “Notice of Election to Avoid Sale of Securities and Tender of Securities.” The notice stated that the purchaser “does hereby tender to you and each of you *** the securities and debentures sold as described above and as described in copies of the certificates and debentures ***.” Copies of the certificates and debentures were enclosed with each notice. Each purchaser demanded, “upon his tender,” the purchase price and other sums allowed by the statute. Bishop, Laughlin and Wiseman received all the mailed materials as evidence by the signed receipts for the certified letters.

On May 11, 1981, appellants filed a complaint alleging various violations of Illinois Securities Law by Bishop, Laughlin and Wiseman. The complaint further alleged that within six months of learning the sales to them were voidable, the appellants had given “proper notice of their election to void the sales *** and tendered to the defendants the securities sold.” The sellers were said to have “refused to repurchase the securities as required in Section 13 of the Illinois Securities Law.” Bishop admitted that he had refused to repurchase the certificates, Laughlin demanded strict proof on that issue, and Wiseman denied refusing to repurchase.

. Acting individually, the appellees filed motions for summary judgment or dismissal, arguing that the court had no jurisdiction because of the investors’ failure to send notice by registered letter and to tender the originals of the certificates and debentures. The court consolidated the appellees’ causes and took the case under advisement. In the investors’ memorandum opposing the motion for summary judgment, they informed the court that they “have at all times been ready, willing, and able to deliver the documents evidencing their transfer of interest back to the defendant; and they are ready, willing and able to do so now.” The court based its grant of summary judgment upon a strict construction of the statutory requirements that notice be sent by registered letter and a finding that the enclosure of photostatic copies of the securities did not constitute a tender of the securities as required by the statute.

We must decide whether the trial court was correct in granting summary judgment to the sellers on the grounds that the investors had failed to comply with the statutory requirements of notice and tender. We find that summary judgment was improper for two reasons: (1) there was a genuine issue of material fact as to whether the appellants had failed to satisfy the requirement of tender, and (2) the use of certified mail, return receipt requested was the functional equivalent of the “registered letter” required by the statute.

The summary judgment proceeding is not designed to try an issue of fact but rather to determine whether there is an issue of fact to be tried. (Graham v. Evischi (1977), 50 Ill. App. 3d 268, 365 N.E.2d 162; Fishel v. Givens (1977), 47 Ill. App. 3d 512, 362 N.E.2d 97.) As a general rule this determination is based on the pleadings, depositions, affidavits and admissions filed in the case. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005.) However, the record may also include memoranda. (Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440.) If the parties offer documents in support and opposition to the motion, the trial court should construe documents in support of the motion strictly and those in opposition liberally. (Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 379 N.E.2d 293.) The moving party must show that his right to summary judgment is free from doubt and determinable solely as a matter of law. (Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.) Should the examination of the record as a whole reveal a genuine issue of material fact, the motion for summary judgment should be denied. Saghin v. Romash (1970), 122 Ill. App. 2d 473, 258 N.E.2d 581.

In the present case, the record before the trial court included separate motions for summary judgment by each appellee and their supporting memoranda requested by the court. There were no supporting affidavits. Attached to the motions were copies of the notices of election to rescind and copies of certified mail receipts indicating that the appellees had received the notices. The appellees’ memoranda characterized the complaint as “fatally” and “verily” defective for its failure to allege the use of registered mail and tender of the original securities to the appellees. Neither the motion nor the memoranda considered the question of a timely tender of the securities to the sellers in court or to the court itself.

The investors’ answer to the motion for summary judgment denied noncompliance with the statute, specifically denying failure “to tender the securities in a proper manner.” In their memorandum opposing the motion, the investors raised the issue of the time during which tender must be made. They correctly noted that the statute establishes no time limit on tender as it does on notice. Their memorandum then asserted as fact the continuous ability of the investors to deliver the actual certificates and their willingness “to do so now.”

The basic purpose of the tender requirement is to establish the ability of the investor to exchange his securities for his purchase price. (Tobey v. Sundling (1974), 25 Ill. App. 3d 205, 210, 323 N.E.2d 30, 35.) Tender must be made of the identical shares purchased (Puntenney v. Mantle (1924), 234 Ill. App. 137), and all shares purchased (Glen v. Dodson (1932), 347 Ill. 473, 180 N.E. 393). Tender may be made to the sellers before trial (Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 314 N.E.2d 549) or at trial (Morrison v. Farmers Elevator Co. (1925), 319 Ill. 372, 150 N.E. 330; Weisbrod v. Lowitz (1935), 282 Ill. App. 252). Once made, it must be held open up to the time of judgment. (Tobey v. Sundling (1974), 25 Ill. App. 3d 205, 323 N.E .2d 30.) Of course, the tender need not be made to the seller at all but may be made directly to the court. Ill. Rev. Stat. 1981, ch. 1211/2, par. 137.13(A).

Read strictly, the sellers’ pleadings object to the inadequacy of the offer of photostatic copies but are mute as to the alternate forms of tender permitted by statute. Viewed more generously, the investors’ pleadings present a question of timely tender of the actual securities to the court or tender to the defendants at trial. The trial court was correct in finding the offer of photostatic copies inadequate to satisfy the statute, but the time for tender was not yet past. The question of tender during trial or directly to the court raised by the investors was both unresolved and material to the central issue of compliance with the statute. Until it was determined that the investors had failed to tender the actual securities to the court or to the sellers during trial, the grant of summary judgment for failure to comply with the statutory requirements was premature.

Sellers of securities have no liability under section 13 until they have received notice of the buyers’ intention to avoid the sale. The requirement that such notice come within six months of the buyer’s knowledge that the sale is voidable protects the seller from stale claims (Martin v. Orvis Brothers & Co. (1974), 25 Ill. App. 3d 238, 323 N.E.2d 73) and limits his period of liability (Ill. Ann. Stat., ch. 121½, par. 137.13, Comments and Notes on the Securities Law of 1953, at 630 (Smith-Hurd 1960)). We agree with the reasonable approach taken in People ex rel. Head v. Board of Education (1981), 95 Ill. App. 3d 78, 419 N.E.2d 505, which declared that the form of mailing notice is not decisive where certified mail will serve the purpose of registered mail. (See Olin Corp. v. Bowling (1981), 95 Ill. App. 3d 1113, 420 N.E.2d 1047.) We have previously found that a form of notice which varies from that dictated by section 13 but which has not been prejudicial to the sellers will satisfy the statutory requirement. (Norville v. Alton Bigtop Restaurant, Inc. (1974), 22 Ill. App. 3d 273, 317 N.E.2d 384.) We apply the same principle in this case. When, as here, the sellers have received actual timely notice of the buyers’ election to avoid and have witnessed receipt of that notice by signing the return receipt for certified mail, they have received the full measure of the protection intended by the statute.

For the foregoing reasons, we reverse the judgment of the circuit court of Madison County and remand for further proceedings consistent with the views expressed herein.

Reversed and remanded.

JONES and'KASSERMAN, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE GORDON BENNETT, Defendant-Appellant.
    Fifth District
    No. 82—353
    Opinion filed November 17, 1983.

      Randy E. Blue and Patricia McMeen, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Phillip McQuillan, State’s Attorney, of Carlyle (Stephen E. Norris and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On the evening of November 22, 1981, Centraba police officers Jerry Edmonson and Richard Simer followed a car driven by the defendant and occupied by Pamela Atchison from the Motel Centraba to the Plaza Lounge in Centralia. In the lounge’s parking lot, they confronted the defendant in his car. He had in his possession a .22-caliber pistol and a plastic bag containing packages of brown powder and white powder. He was arrested and was subsequently charged with the unlawful possession of heroin and cocaine and with the unlawful use of weapons. Following a jury trial in the circuit court of Clinton County, he was convicted of all three offenses. He received sentences of three years’ imprisonment for the controlled substances offenses and 364 day’s imprisonment for the weapons offense.

In the present appeal, the defendant raises a single issue. The information which prompted the surveillance of his room by the Centralia police, was a tip from a switchboard operator at the Motel Centralia thatTshe ’had overheard a telephone conversation pertaining to a drug transaction. The defendant argues that all evidence resulting from the conversation heard by the operator should have been suppressed because the conversation was overheard in violation of the Illinois eavesdropping statute. Ill. Rev. Stat. 1981, ch. 38, par. 14 — 1 et seq.

Ellen Rosencranz, a desk clerk and switchboard operator at the Motel Centralia, testified both at the hearing on the defendant’s suppression motion and at trial. The switchboard that she operates, described by her as old, is located in the office of the motel. The telephones in the motel rooms do not have dials, and if someone in a room wishes to make a call, he must contact the switchboard operator. The operator will hear a buzz from the switchboard and a light will flash to indicate which room desires telephone service. The operator then inserts the right cord of a pair of cords into a jack for that room, pushes down a switch known as the “key,” and picks up the receiver. Mrs. Rosencranz usually answers, “office.”

The operator next obtains the desired number from the caller in the room, plugs the left cord of the pair into a jack for one of the five outgoing lines and dials the number. For a local call, the operator waits to hear that someone has answered, because the motel does not bill patrons for local calls unless they are completed. The operator then returns the receiver to its cradle and pushes the key up so as not to hear the conversation. If the receiver is on the cradle and the key is in the down position, the operator can still hear the conversation if the' office is reasonably quiet, because the cradle for the receiver is only a foot and one-half from the head of someone seated at the switchboard.

To bill the patron for the call, the operator must fill out a ticket with information about the call. If she did not have other calls waiting to be connected, Mrs. Rosencranz would normally fill out a ticket immediately. Otherwise, she would make a note of the call and fill out the ticket later.

On November 22, 1981, Mrs. Rosencranz was working at the switchboard when she heard a buzz from the room registered to the defendant. She connected the cord to that room and heard a woman request her to dial the Plaza Lounge, a local call. Mrs. Rosencranz dialed that number and waited for someone to answer. She heard a voice at the other end reply, “The Plaza,” and then she returned the receiver to its cradle. However, contrary to her usual practice, she did not push the key up, but instead started to fill out a ticket.

The office was quiet that Sunday night, and Mrs. Rosencranz heard the woman in the motel room identify herself as Pam. She then heard her say “that they had some coke that they wanted to exchange for grass.” Mrs. Rosencranz pushed the key into the up position to shut off the conversation, and, a minute or so later, she called Officer Ray Simer of the Centralia police department. She told him about the conversation she had overheard and furnished him with the identity of the defendant, the number of his room, and a description of his car.

It was the information provided by Mrs. Rosencranz that led to the observation of the defendant’s motel room by Officers Edmonson and Richard Simer. At the suppression hearing, the State stipulated that but for this information, there would not have been cause to stop the defendant. Conversely, defense counsel stipulated that if the court would find the information about the conversation admissible, then the authorities had cause to stop the defendant. The record supports the mutual stipulations.

The defendant’s argument that the testimony of Mrs. Rosencranz should have been suppressed is not based on constitutional grounds but on the Illinois eavesdropping statute. The statute provides, generally, that evidence obtained in violation of its provisions is not admissible in any civil or criminal trial. (Ill. Rev. Stat. 1981, ch. 38, par. 14— 5.) The only exception to this rule arises in a prosecution under the eavesdropping statute itself. Since that is not the case here, the issue presented is whether Mrs. Rosencranz violated the eavesdropping statute by overhearing the conversation originating from the defendant’s room and reporting it to the police. The State’s position is that she did not, first, because the switchboard was not an “eavesdropping device,” and, second, because she did not overhear the conversation surreptitiously, but did so inadvertently. We need consider only the first of the State’s.arguments.

The statute defines eavesdropping as the use of an eavesdropping device to hear or record a conversation without the appropriate consent of one or more parties, or the use of information which a person knows or should know has been obtained through the use of an eavesdropping device. (HI. Rev. Stat. 1981, ch. 38, par. 14 — 2.) The use of such a device is therefore a prerequisite to criminal liability or exclusion of evidence under the statute. An eavesdropping device is defined as a “device capable of being used to hear or record oral conversation whether such conversation is conducted in person, by telephone, or by any other means.” (Ill. Rev. Stat. 1981, ch. 38, par. 14 — 1(a).) Devices used for the restoration of the hearing or hearing-impaired individuals are exempted from that definition.

In accordance with this definition, our supreme court held in People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046, cert, denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285, following a long line of authority (People v. Petrus (1981), 98 Ill. App. 3d 514, 424 N.E.2d 755; People v. Giannopoulos (1974), 20 Ill. App. 3d 338, 314 N.E.2d 237; People v. Brown (1970), 131 Ill. App. 2d 244, 266 N.E.2d 131; People v. 5948 West Diversey Avenue (1968), 95 Ill. App. 2d 479, 238 N.E.2d 229; People v. Dixon (1961), 22 Ill. 2d 513, 177 N.E.2d 224 cert, denied (1962), 368 U.S. 1003, 7 L. Ed. 2d 542, 82 S. Ct. 637), that a person who overheard a conversation by listening with an unaided ear to an extension telephone did not use an “eavesdropping device.” By way of contrast, in People v. Gervasi (1982), 89 Ill. 2d 522, 434 N.E.2d 1112, an extension telephone with the speaking element removed from the mouthpiece was said to fit the definition of an eavesdropping device. The court explained.

“The function of a telephone is to transmit and receive sound. A telephone which is altered so that it can no longer perform one of these functions, namely the transmission of sound, is not a telephone but only a listening device. The removal of the transmitter or speaking element from the mouthpiece of each of the telephones made them eavesdropping devices within the meaning of our statute.” People v. Gervasi (1982), 89 Ill. 2d 522, 527, 434 N.E,2d 1112, 1114; see also People v. Perez (1968), 92 Ill. App. 2d 366, 235 N.E.2d 335.

The distinction drawn in Gervasi between telecommunications equipment which can transit and receive messages, thereby not being an eavesdropping device, and equipment which can only receive messages, thereby being an eavesdropping device, comports with section 14 — 1 of the eavesdropping statute. That section refers to eavesdropping devices as those devices which can “hear or record” conversations. Criminal statutes must be strictly limited to subjects obviously within their literal terms (People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171; Bismarck Hotel Co. v. Petriko (1961), 21 Ill. 2d 481, 173 N.E.2d 509), and to expand the prohibitions of the eavesdropping statute to devices which receive and transmit messages would violate that rule of construction.

The application of this reasoning to the facts of this case follows naturally. Because, at the time Mrs. Rosencranz overheard the pertinent conversation, the switchboard at the Motel Centralia was capable of transmitting, and indeed did transmit messages both to and from the motel’s office, it was more like the extension telephone in Gaines than the extension telephone in Gervasi. In other words, it was not an eavesdropping device.

The defendant directs our attention to an exception listed in section 14 — 3(b) of the act. (Ill. Rev. Stat. 1981, ch. 38, par. 14 — 3(b).) This provision exempts the following activity from the proscriptions of the act.

“Hearing conversation when heard by employees of any common carrier by wire incidental to the normal course of their employment in the operation, maintenance or repair of the equipment of such common carrier by wire so long as no information obtained thereby is used or divulged by the hearer.”

It could be argued that by construing the eavesdropping statute as not covering devices which transmit and receive messages, this exception would be rendered a nullity. We cannot agree. If an employee of a common carrier by wire uses an eavesdropping device, namely, a device with hearing or recording capacity only, he or she will be protected from liability under the act if the information obtained through use of that device is not divulged. Section 14 — 3(b) of the act is thus still meaningful even under our interpretation of the definition of an eavesdropping device.

In conclusion, we hold that a prerequisite for criminal liability or exclusion of evidence under the eavesdropping statute is that a device which can hear or record conversations, but not transmit them, must have been used. Mrs. Rosencranz’ switchboard does not fit this definition and therefore the information given by her to the Centralia police was not obtained in violation of that statute. Accordingly, the judgment of the circuit court of Clinton County is affirmed.

Affirmed.

HARRISON, P.J., and JONES, J., concur.


author: JUSTICE JONES

text:
    DAVID D. WILSON, Plaintiff-Appellee, v. MILLIE COLSTON, d/b/a Millie’s Tavern, Defendant—(Eugene Koehler, Defendant-Appellant).
    Fifth District
    No. 82—571
    Opinion filed December 7, 1983.

      John L. McMullin and Thomas J. Horn, both of Brown, James & Babbitt, P.C., of St. Louis, Missouri, for appellant.
    Callis & Hartman, P.C., of Granite City (Michael J. Meehan, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal presents the question whether evidence of a defendant’s financial worth must be introduced before an issue of punitive damages may be submitted to a jury.

The plaintiff, David Wilson, 19 years old at the time he was injured, suffered severe facial wounds as a result of being struck by the automobile of the defendant, Eugene Koehler. At the time he was struck, about 2:30 a.m. on June 18, 1978, plaintiff was attempting, by the side of the road, to change a fuse on his motorcycle to correct an electrical difficulty affecting the operation of the headlight of the vehicle. Prior to trial counsel for defendant admitted that his client’s conduct had been negligent but denied that it had been wilful and wanton. At trial the defendant, called by the plaintiff as an adverse witness, testified that he had arrived at Millie’s Tavern after work at about 7 p.m., that while there he had consumed twelve 12-ounce bottles of beer and four “straight shots” of whiskey, and that he had left the tavern about seven hours later when it closed at 2 a.m., about a half hour before the accident occurred. The witness subsequently admitted while testifying that he was both drunk and speeding when he collided with the plaintiff as he drove home from the tavern. The jury awarded plaintiff compensatory damages in the amount of $150,000 and punitive damages in the amount of $25,000. The defendant Koehler appeals raising essentially three issues: (1) whether the trial court erred in submitting the issue of punitive damages to the jury because there was no evidence of defendant’s financial condition upon which it could base an award of such damages; (2) whether plaintiff remarked improperly during closing argument upon the punishment defendant had received in the criminal proceeding that arose out of the incident; and (3) whether the trial court committed reversible error in admitting into evidence slides taken of plaintiff’s face immediately prior to surgery undertaken during the early morning hours following the collision.

With respect to the first issue defendant raises, he argues that because the jury had no evidence of defendant’s net worth, its determination of punitive damages was based improperly upon mere speculation and conjecture and was therefore assessed arbitrarily. Defendant argues that unless the jury knows the financial condition of a defendant, it is handicapped in its ability to assess an amount that would adequately punish the defendant, punishment being one of the purposes of exemplary damages. Defendant cites us to no authority for the proposition that evidence of the financial condition of a defendant is a necessary prerequisite to an award of punitive damages, nor has our research disclosed any.

Illinois courts appear not to have addressed the issue expressly. In Mullin v. Spangenberg (1884), 112 Ill. 140, the supreme court ruled that though a plaintiff entitled to punitive damages may offer testimony concerning a defendant’s wealth, a defendant may offer such evidence by way of rebuttal and not as an independent defense. The court in Mullin suggested, but did not rule, that a plaintiff seeking exemplary damages need not put on evidence of a defendant’s financial resources in order to prevail:

“Where a plaintiff entitled to vindictive damages offers no evidence of the defendant’s wealth with a view of enhancing them, he in effect says, T ask no damages against the defendant except as a mere individual, without any regard to his property or estate, whether it be much or little,’ — and in that kind of a case the jury have no right to give any more damages than they would if it had affirmatively appeared the defendant was without pecuniary resources. But where the testimony is offered by the plaintiff, he does it for the purpose of enhancing the damages. By offering it he in effect says, T ask in the way of damages something more than I would be entitled to recover from the defendant as a mere individual, without regard to his pecuniary circumstances.’ In doing this, the plaintiff tenders a new issue of fact, which opens up the question to both sides.” (112 Ill. 140,145-46.)

Courts in other jurisdictions that have considered the question of whether proof of a defendant’s wealth is mandatory to the recovery of punitive damages have, without exception, held to the contrary. See Nienstadt v. Wetzel (Ariz. App. 1982), 133 Ariz. 348, 651 P.2d 876; Vossler v. Richards Manufacturing Co. (1983), 143 Cal. App. 3d 952, 192 Cal. Rptr. 219; Rinaldi v. Aaron (Fla. 1975), 314 So. 2d 762; Carrick v. McFadden (1975), 216 Kan. 683, 533 R2d 1249; Rogers v. Florence Printing Co. (1958), 233 S.C. 567, 106 S.E.2d 258; Sears v. Summit, Inc. (Wyo. 1980), 616 P.2d 765.

We think these courts have adopted a proper rule and one that is in harmony with the views expressed in Mullin. It is elementary that the purposes of punitive damages are to punish and to deter. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210; Fopay v. Noveroske (1975), 31 Ill. App. 3d 182, 334 N.E.2d 79.) It is, likewise, elementary that a defendant of some means may well not be punished or deterred by an award that would punish and deter a defendant of lesser means. In the case of a defendant of greater means, the plaintiff may, if he wishes, offer evidence of the defendant’s financial resources, in accord with Mullin, to enhance an award of exemplary damages so that the award will, indeed, serve to punish and to deter. In the case of a defendant of more modest means, however, the plaintiff would have no need to enhance the award of punitive damages in order to accomplish their purpose and may obtain an award for such damages without introducing evidence of the defendant’s monetary resources. The defendant has not proposed and we have not discerned any problem with regard to due process involved in permitting punitive damages to be assessed without evidence' of a defendant’s net worth. In view of our holding that a plaintiff need not introduce evidence of a defendant’s financial worth to obtain an award of punitive damages, the trial court did not err in submitting the issue of punitive damages to the jury in the absence of such evidence.

We turn to defendant’s contention that the plaintiff remarked improperly during closing argument upon the punishment defendant had received in the criminal proceeding that arose out of the incident. Prior to trial defense counsel moved that “the plaintiff and all the ■witnesses be instructed not to mention what sort of punishment my man received or the ticket he got in the accident. I think the punishment that he had is irrelevant.” The trial court ruled defendant’s plea of guilty in the criminal proceeding admissible as a prior admission in the civil proceeding but would allow no “argument or evidence about the conviction or about any punishment.” The plaintiff points out correctly in his brief that defense counsel — not counsel for plaintiff — first referred to defendant’s punishment concerning the criminal charge, urging the jury as follows during closing argument:

“Please be fair. The plaintiffs are coming here and they are saying, ‘Well, because Gene had all this to drink, this is obviously something you ought to punish him for. You ought to punish him for it.’ But you heard the evidence here in court. Gene got arrested for this. He pled guilty to the charge when he was brought to court on it. He has been punished already.”

There followed this colloquy between court and counsel for both parties:

“[Counsel for plaintiff]: I object, your Honor. I think he is opening — I’ll waive the objection. I think he has just opened the door.
THE COURT: All right.
[Counsel for defendant]: I’ve opened the door. Gene has been punished already, folks. They put the evidence on. They criticized us for not having him come testify.
Now, the criminal law, as some of you mentioned as we were asking the questions early on in the case in selecting the jury — the criminal law has a way to deal with these things. It’s our position that that is where you should leave it.”

Counsel for plaintiff subsequently made the following remark, which defense counsel argues constitutes reversible error:

“I suggest to you, ladies and gentlemen, that there needs to be punishment here. The facts demand it. The facts are overwhelming and they demand it. [Defense counsel] says, ‘Be fair.’ He says and I quote, ‘The defendant ought to be punished.’ How does he argue that? He says, ‘You know, Gene Koehler has already been punished by the criminal courts.’ What Gene Koehler got was a slap on the wrist, a slap on the wrist.”

The record shows that defense counsel not only opened the door to a discussion of the punishment defendant received in the criminal proceeding and admitted to having done so but also attempted to use defendant’s punishment in the criminal proceeding to advantage in the civil litigation. He will not now be heard to complain of plaintiff’s response.

With regard to defendant’s final contention on appeal, the erroneous admission of four slides in color, designated as plaintiff’s exhibit No. 17, depicting plaintiff’s injured face, defendant argues that no foundation was laid for admission of the slides into evidence and that the slides were not admissible into evidence because they were part of the medical record of plaintiff’s surgeon, which was not admitted into evidence. Defendant asserts that the “[a]dmission of the [slides] could only have the effect of inciting the jury” and ascribes error for that reason. However, the record shows that defendant expressly acknowledged at trial that the issue with respect to the admissibility of the slides was one of relevance, not foundation. Furthermore, we have examined the slides. There is no indication in the record that the slides were projected before the jury. As slides, the depictions are small, and without projection details about them are difficult to discern. Our observation of them coupled with our reading of the record indicates that the jury would have been moved less by the slides to which the defendant objects than by the testimony of plaintiff’s witnesses who described the manner in which he suffered his injuries and the testimony of the surgeon and his mother, who indicated the extent of them. The surgeon testified, in explaining certain medical terminology, that the part of plaintiff’s nose that “flares out” was “almost completely cut off of his face” and that plaintiff suffered, in addition to numerous fractures of the bones of his face, a laceration “almost separating the left lip from the cheek and the nose.” Plaintiff’s mother testified that, when summoned to the emergency room, she was unable to recognize her son by his facial features and walked to another bed to find him. “jTjhen I came back to him and recognized his feet. That’s the only part of him I could recognize at the time.” We think that if the trial court erred in admitting the slides for the remaining reason defendant advances — and we need not decide that question — in view of the testimony as to the nature and extent of the plaintiff’s injuries and the limitations of the unprojected slides themselves, any error in the admission of them into evidence could have been, at most, harmless.

Affirmed.

HARRISON, P.J., and KASSERMAN, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
      In re J.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.B., Respondent-Appellant).
    Fifth District
    No. 83—38
    Opinion filed November 16, 1983.

      Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Following an adjudicatory hearing in the circuit court of Christian County, respondent J.B. was adjudged delinquent and made a ward of the court for having committed the offenses of felony murder and burglary. After a subsequent dispositional hearing, the court vacated its finding of delinquency based on felony murder, and committed respondent to the juvenile division of the Department of Corrections based upon the finding as to burglary. Respondent appeals, arguing that he was denied effective assistance of counsel at the adjudicatory hearing. We affirm.

At an adjudicatory hearing held on November 29, 1982, Christian County sheriff’s department investigator George Wise testified that he spoke with respondent on October 21, 1982, in the presence of other witnesses. After being read his Miranda rights by Wise, respondent admitted that he had killed Gaylord Long on Thanksgiving Day in 1981. The oral statements made by respondent to Wise were reduced to writing, and respondent’s signed confession was introduced into evidence without objection. In that confession, respondent stated that he was worried about having had spent money which he had been saving to buy his family an Atari game for Christmas. As a consequence of this concern, respondent decided to enter the home of a 90-year-old neighbor, Gaylord Long, in order to look for money. In the early morning hours of November 26, 1981, respondent used bolt cutters and a pellet gun to gain access to Long’s residence. Respondent entered Long’s bedroom and took $14 from a wallet lying on a dresser. Before respondent could leave, Long woke up. Respondent hid while Long searched the house; eventually, however, Long saw respondent in the kitchen. Long grabbed respondent and a struggle ensued. Respondent freed himself from Long’s grasp and went into the living room, where he pulled out a knife that he was carrying. Long found respondent’s pellet gun, picked it up, and pointed it at respondent. After Long laughed and told respondent that he was in “big trouble,” respondent flipped up a telephone stand, jumped Long and stabbed him “a couple of times.” Long then hit respondent over the head with the gun, causing a cut. The struggle continued until respondent reached around and stabbed Long in the back, at which time Long fell. Respondent then wiped the blood off of his knife and hands, retrieved the gun and bolt cutters, and went home.

Following admission of respondent’s confession into evidence, Wise testified that he received a pair of bolt cutters, a pellet rifle, and a knife pertaining to the case. These items were subsequently taken to the State crime laboratory. Wise testified that he received reports relating to these items from the crime laboratory. These reports were admitted into evidence without objection, and they revealed that human blood was found on the blade of the pocket knife.

Neither counsel for respondent nor the attorney representing respondent’s parents cross-examined Wise. Following Wise’s testimony, the State rested. The defense offered no evidence or argument. After a brief recess, the court pointed out that the evidence offered by the State did not show that the victim had died, and that respondent had not been identified as the person who had confessed to the crimes. The State was then allowed to reopen its case without objection from the defense. Wise was recalled to the stand, and identified respondent as the individual who confessed to the crimes. Without objection from the defense, Wise testified that the pathologist’s report indicated that Mr. Long had died sometime between 1 a.m. and 4 a.m. on the date of the incident, and that the pathologist had told Wise that the time of death was most likely between 1 a.m. and 2:30 a.m. Following this additional testimony, the pathologist’s report, which indicated that Mr. Long had died as a result of stab wounds, was admitted into evidence without objection. The parties agreed that respondent was 14 years of age. The court then found that the minor had committed the offenses of felony murder and burglary. A written order adjudging the minor to be delinquent and a ward of the court was entered on December 1, 1982.

A dispositional hearing was held on December 17, 1982. At that hearing, a court appointed psychiatrist testified that his examination of respondent revealed few signs that respondent would be likely to commit acts of violence in the future. The respondent offered the testimony of over 20 witnesses, all of whom were either related to respondent or had contact with him in some manner. Among the witnesses were respondent’s paternal grandparents, who offered to let respondent live with them in Florida. Respondent also testified in his own behalf. Additionally, the testimony of the 19 witnesses who had testified on respondent’s behalf at a detention hearing held on December 1,1982, was incorporated into the dispositional hearing.

Following the presentation of the evidence at the dispositional hearing, the court amended its order of December 1, 1982, by deleting the adjudication of delinquency based on felony murder. The court ordered that the minor be committed to the juvenile division of the Department of Corrections based upon the adjudication of delinquency for having committed burglary. In making this determination, the court considered the death of Mr. Long as an aggravating factor associated with the burglary.

On appeal, respondent argues that he was denied the effective assistance of counsel at the adjudicatory hearing. Respondent points out that defense counsel did not make opening or closing arguments, did not cross-examine George Wise, did not object to the admission of respondent’s confession and other evidence, and did not object to the State’s request to reopen its case. While we agree with respondent’s characterization of counsel’s roll as “quiescent,” we do not. agree that such quiescence amounted to ineffective assistance of counsel under the facts presented here.

A defendant in a criminal case is entitled to a new trial if trial counsel was actually incompetent, as reflected in the performance of his duties as .trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different. (People v. Scott (1981), 94 Ill. App. 3d 159, 163, 418 N.E.2d 805, 807.) In the instant case, we cannot say that trial counsel’s inaction worked to bring about a result which would not otherwise have occurred. It is relevant to the question of effectiveness of counsel that the evidence so overwhelmingly points to the guilt of the accused that there could be little effective defense. (People v. Neeley (1980), 90 Ill. App. 3d 76, 79, 412 N.E.2d 1010, 1013.) Such was the case here, where respondent completely confessed to the crimes, there was nothing to suggest that his confession was unlawfully obtained, and no meaningful defense to the charges was available. Under these circumstances, respondent was not prejudiced by counsel’s failure to make opening and closing arguments, as it cannot be said such arguments could have brought about a different result. Nor can the failure of counsel to object to the admission of respondent’s confession be said to exhibit incompetence, since counsel is not required to make losing objections in order to provide effective representation. (People v. Lewis (1981), 88 Ill. 2d 129, 156, 430 N.E.2d 1346, 1359.) There is no showing that respondent was prejudiced by his counsel’s failure to cross-examine George Wise, as there is nothing to suggest that Wise’s testimony was false, inconsistent, or otherwise subject to significant impeachment. Finally, a court may, in its discretion, allow the State to reopen its case not only for the purpose of proving formalities but also to establish the very facts necessary for a conviction. (People v. Price (1972), 8 Ill. App. 3d 158, 160, 289 N.E.2d 280, 282.) Here, in light of respondent’s full confession to the crimes, it is most unlikely that a defense objection would have persuaded the court not to allow the State to reopen its case for purposes of identification of respondent and establishment of corpus delecti. We note parenthetically that respondent was not prejudiced by Wise’s reading of the pathologist’s report to establish the cause of Long’s death, as the court ultimately vacated its finding of delinquency based on felony murder, and indicated at the dispositional hearing that it would have committed respondent to the Department of Corrections even if Long had died of natural causes during the burglary.

People v. Coss (1977), 45 Ill. App. 3d 539, 359 N.E.2d 1172, the case relied on by respondent, is distinguishable. In Coss, defense counsel moved to dismiss a petition to revoke his client’s probation, and the court denied the motion. Counsel then refused to participate in the evidentiary hearing under the mistaken belief that such participation would waive the constitutional issues raised in the motion to dismiss. The appellate court reversed the revocation of defendant’s probation and remanded for a new hearing, stating that “counsel’s only strategy consideration was based on an ignorance of a fundamental rule of law.” (45 Ill. App. 3d 539, 543.) Here, unlike in Goss, there is no showing that counsel made any decision based upon a misconception of the law, and we will not presume that such was the case. (See People v. Seaman (1977), 53 Ill. App. 3d 755, 758-59, 368 N.E.2d 1124, 1126.) Moreover, the vigorous representation afforded respondent at the detention and dispositional hearings dispels any notion that counsel had either abandoned respondent or was guilty of professional inattention to the case.

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

Affirmed.

JONES and WELCH, JJ., concur.