author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID FULLER et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 81 — 2194, 81 — 2267 cons.
    Opinion filed July 19, 1983.
    Rehearing denied August 23, 1983.

      George P. Lynch, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendants, David Fuller and his wife, Rebecca Fuller, were indicted for rape (Ill. Rev. Stat. 1977, ch. 38, par. 11 — 1), unlawful restraint (Ill. Rev. Stat. 1977, ch. 38, par. 10 — 3), and attempted deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4). Prior to trial, the State dismissed the unlawful restraint charge. In a jury trial, defendants were acquitted of rape and convicted of attempted deviate sexual assault. Each defendant was sentenced to serve seven years in the Illinois Department of Corrections.

On appeal, defendants contend that the trial court erred in denying their motions to quash a search warrant issued on September 24, 1979; that the court should have severed Rebecca’s case from David’s; that the prosecutors interfered with defense counsel’s investigation of this case and failed to tender all discoverable material; that the State used its peremptory challenges to exclude blacks from the jury solely because of their race; that the court erred in admitting evidence of similar occurrences to show a common design or modus operandi; that defendants’ rights of confrontation were violated when the out-of-court declarations of co-conspirators were received into evidence prior to a prima facie showing that, a conspiracy existed; that the court erred in precluding a defense witness from testifying about a State witness’ reputation for truth and veracity; that the court erred in applying the rape shield law (Ill. Rev. Stat. 1981, ch. 38, par. 115— 7a) to a witness other than the prosecutrix; that defendants were not proved guilty beyond a reasonable doubt; and that the State failed to prove that Rebecca was accountable for David’s actions. For the reasons hereinafter stated, we affirm the defendants’ convictions.

The prosecutrix, Dorothy W., who was 21 years old at the time of trial (June 1981), testified as follows:

On October 7, 1979, she was living with a friend, Frances Pass. Pass answered a help wanted advertisement in the Chicago Sun-Times which read:

“Light housekeeping. Girl to live in. Must like country living and travel. Room and board. Small salary. Call 361-2393.”

A man identified as defendant David Fuller came to Pass’ home to interview Pass for the job. At Dorothy’s request, David agreed to consider hiring her if he and his wife needed her. On October 9, 1979, Dorothy called the number listed in the advertisement and was told that she could reach defendants at the Orland Park Bowling Alley. She called the bowling alley from “John’s Garage,” a restaurant and bar in the Ford City shopping center where she had been with Frances Pass, spoke with defendant Rebecca Fuller and arranged to meet her there. Dorothy hitchhiked to the bowling alley and met both defendants. After defendants finished bowling at approximately 9:30 p.m., they drove Dorothy to their home at 2 Dan Mar Trail in Palos Park, Illinois. They arrived at approximately 10 p.m.

Dorothy entered the family room where David served her an alcoholic drink which made her unusually “woozy.” She did not see David prepare the drink. David mentioned defendants’ background and explained their need for a live-in babysitter. He then asked Dorothy whether she had a boyfriend, whether she had ever had sexual relations with anyone and whether she had ever seen a pornographic movie. She responded negatively to all three questions. When David began to discuss his own work, Rebecca left the room. David asked Dorothy if she wanted to watch a pornographic movie. Dorothy said, “No.” Rebecca then returned to the family room naked and David began to show a pornographic movie. The movie was projected onto a white wall. Dorothy glanced at the film and at Rebecca, told defendants that she did not want the job and attempted to leave their house.

David knocked her to the floor near the base of the stairs leading from the family room to the second floor and attempted to put his penis in her mouth. David lifted Dorothy’s blouse and bra and began fondling her breasts. He then removed her slacks, pulled her panties down around her ankles and put his penis into her vagina. Throughout the assault, which lasted approximately 15 minutes, Rebecca sat naked on a chair in the family room. In struggling with David, Dorothy bruised her left knee.

Dorothy finally managed to throw David off of her. She picked up her bag of clothes and ran out of the house as David laughed at her. Although she was not wearing a watch, she estimated that she left defendants’ house sometime between 11:15 and 11:30 p.m. She dressed in some nearby bushes and began to hitchhike back to the Ford City shopping center. She told the first person who picked her up that she had a bad experience but did not want to talk about it. After getting another ride from a couple, she arrived at the shopping center sometime between 12:30 and 1 a.m. “John’s Garage” was closed and she could not find anyone she knew. She discovered her friend Frances Pass’ unlocked automobile in the parking lot and slept in it that night.

Later that morning, Dorothy washed herself and changed clothes in a public bathroom in the shopping center and tried unsuccessfully to telephone Pass. Late in the afternoon or early in the evening, she again entered “John’s Garage” and met an acquaintance, Richard Addison. Dorothy told Addison that someone had tried to rape her during a job interview. She also told him that her assailant had “put something in her drink.” Addison advised her to call the police, which she did. Dorothy was eventually taken to the Orland Park police station by another friend and then to Palos Community Hospital by the police. At the hospital, she was examined by Dr. James T. Bolán. Dr. Bolán, a defense witness, stated that all tests for the presence of sperm and semen were negative.

On cross-examination, Dorothy denied that she stayed overnight in defendants’ home or that Rebecca drove her to the corner of 159th Street and Cicero Avenue at 9 a.m. on October 10, 1979. Dorothy also denied that defense photographs accurately depicted the condition of defendants’ family room in October of 1979. In the photographs, the walls in the room were completely paneled with wood and a large aquarium was now positioned where Dorothy said David attacked her.

Dorothy denied that she told Sergeant Reilly of the Orland Park police department that she left defendants’ house at 5 or 5:30 a.m. on October 10, 1979, or that she arrived at the Ford City shopping center at 6:30 a.m. Defendants attempted to impeach Dorothy with a police report Sergeant Reilly prepared which indicated that Dorothy left defendants’ home at 5 a.m. and arrived at the shopping center at approximately 6:30 a.m. on October 10. Reilly, however, testified that he had prepared two reports, the first at the conclusion of his initial interview with Dorothy, which lasted about 20 minutes, and the second following a 21/2- to three-hour interview with her. Reilly explained that the times listed in the first report were his own estimates. Reilly stated that the second report, which indicated that Dorothy left defendants’ house near midnight and arrived at the shopping center at approximately 2 a.m., was more accurate.

Following Dorothy’s testimony, the State introduced the testimony of two witnesses, Dina P. (Dina) and Melody G. (Melody), who allegedly had experiences with defendants similar to Dorothy’s. Dina and Melody did not know each other or Dorothy until shortly before trial. Defendants’ objections to their testimony were overruled. The substance of their testimony and its admissibility will be discussed below.

Rebecca testified that Dorothy had stayed all night with defendants at their invitation. Shortly before 9 a.m. the next morning, she drove Dorothy to the corner of 159th Street and Cicero Avenue and gave her money to catch a bus. Rebecca denied that Dorothy had been sexually assaulted. She also denied that she had appeared naked in Dorothy’s presence.

In rebuttal, the State presented evidence corroborating the prosecutrix’ description of defendants’ family room and establishing that defendants possessed photographic equipment, movie projectors and substantial quantities of pornography.

I

We first address defendants’ contention that the trial court erred in denying their motions to quash a search warrant which was issued on September 24, 1979. Although the defendants argue that the warrant lacked specificity, we are unable to reach the merits of this argument because defendants have failed to include in the record on appeal either the warrant itself or the complaint for the warrant. It is the defendants’ responsibility to present a record of sufficient completeness so that their claims of prejudice may be knowledgeably considered. They have not met this responsibility and in the absence of a complete record, we must presume that the trial court did not err in denying defendants’ motion to quash. People v. Wilson (1981), 92 Ill. App. 3d 370, 386, 415 N.E.2d 1315.

We also note that no physical evidence that may have been seized in executing this warrant was introduced by the State. The only evidence stemming from the execution of the warrant consisted of a police officer’s rebuttal testimony corroborating the victim’s description of defendants’ family room and establishing that defendants possessed photographic equipment, movie projectors and pornography. Defendants’ motions to quash were not specifically addressed to this evidence. Thus, the issue has been waived. Moreover, since the testimony of the officer was merely cumulative of other evidence presented at trial, the error, if any, in the court’s denial of defendants’ motions to quash must be deemed harmless.

II

We next consider Rebecca’s contention that her case should have been severed from David’s.

It is well established that defendants jointly indicted are to be jointly tried unless their defenses are antagonistic or unless one codefendant would be denied his right of confrontation. (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461.) Rebecca does not claim that she was entitled to a severance on either ground. (But see Argument VI below.) Accordingly, we find no error in the trial court’s denial of her motion for a severance.

Ill

Defendants contend that the prosecution interfered with defense counsel’s investigation of this case and failed to tender all discoverable material. Specifically, defendants allege that the prosecutors instructed their witnesses not to discuss this case with defense counsel; failed to provide witnesses’ addresses; concealed the prosecutrix’ arrest for possession of a controlled substance (Valium) and then assisted her in having the charge against her dismissed; refused to produce notes of their interviews with witnesses; and threatened defense counsel with criminal prosecution. The record does not support any of these allegations.

The record discloses that the prosecutor advised the State witnesses that if they were contacted by defense counsel, they could answer his questions, refuse to be interviewed by him or insist upon speaking with him only in the presence of an assistant State’s Attorney. Some witnesses agree to speak with defense counsel while others refused or insisted upon being interviewed only at the offices of the State’s Attorney. We find no error in this. The record also reveals that the addresses of the State witnesses were provided to defense counsel within one week after they were obtained by the State.

In May of 1981, the prosecutrix was arrested for possession of a controlled substance (Valium) for which she had a prescription from her physician. One of the prosecutors in this case advised her to obtain a letter from her physician confirming that she had a prescription from him for the drug and to present the letter, together with the prescription, when she went to court on the possession charge. The prosecution did not give her any other advice or assistance, and the charge was dismissed when she appeared in court. The prosecutor disclosed this information in open court. There was no evidence that the prosecutrix was promised any consideration on the drug charge in exchange for her testimony in this case.

Defendants’ next instance of alleged prosecutorial obstruction is also devoid of support in the record. At defendants’ request, the trial court held an in camera inspection of the prosecutors’ notes of their interviews with witnesses. The court excised those portions of the notes which constituted nondiscoverable work product under Supreme Court Rule 412(j)(i) (87 Ill. 2d R. 412(j)(i)) and turned over to defendants the nonprivileged materials pursuant to Rule 412(a)(i) (87 Ill. 2d R. 412(a)(i)). (See People v. Szabo (1983), 94 Ill. 2d 327, 343-45.) Any error in the court’s decision to exercise certain portions of the notes has been waived by defendants’ failure to have the notes impounded by the trial court and transmitted to this court for our own review.

Finally, defendants assert that improper threats of criminal prosecution were made to defense counsel and his staff by one of the prosecutors in this case. The record shows that the prosecutor asked the trial court to admonish defense counsel not to permit his investigator to harass one of the State witnesses who had testified and had been excused. The prosecutor stated his intention to enforce that section of the criminal code which is designed to prevent the harassment of jurors or witnesses who have testified. (Ill. Rev. Stat. 1981, ch. 38, par. 32 — 4a.) The record does not support defendants’ claim that the prosecution interfered with or obstructed defense counsel’s investigation of this cause.

IV

Citing People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046 (appeal pending, Docket No. 56907), defendants contend that the State improperly used its peremptory challenges to exclude blacks from the jury solely because of their race. In Payne, the appellate court held that the use of peremptory challenges by the State to exclude blacks from a jury during voir dire because they are black violates the defendants’ sixth amendment right to a jury drawn from a fair cross-section of the community. In light of our supreme court’s recent rejection of that holding in People v. Williams (1983), 97 Ill. 2d 252, 273-79, further discussion of this argument is unnecessary.

V

Defendants contend that the trial court erred in admitting evidence of similar occurrences to show a common design or modus operandi.

As a general rule, evidence that a defendant has committed an offense other than the one for which he is being tried is inadmissible. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Evidence of other offenses is admissible, however, if relevant for any purpose other than to show the defendant’s propensity to commit a crime. (People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) Thus, evidence which goes to show motive, intent, identity, absence of mistake or modus operandi is admissible though it may also show the commission of a separate offense. 62 Ill. 2d 448, 455.

Defendants assert that since there was no issue in this case that the prosecutrix had visited their home and could identify them, there was no reason to admit evidence of similar occurrences. We disagree.

Evidence of a defendant’s modus operandi may be relevant not only to the issue of who committed a crime but also to the issue of whether a crime was committed at all. (People v. Middleton (1976), 38 Ill. App. 3d 984, 990, 350 N.E.2d 223; People v. Mitchell (1981), 95 Ill. App. 3d 779, 791, 420 N.E.2d 415; People v. Burgin (1979), 74 Ill. App. 3d 58, 69, 392 N.E.2d 251.) Thus, evidence of a common design or modus operandi has been held admissible in prosecutions for sex offenses even where the identity of the accused was not in dispute. (People v. Carter (1981), 98 Ill. App. 3d 720, 722-24, 424 N.E.2d 367; People v. Osborn (1977), 53 Ill. App. 3d 312, 318, 320-23, 368 N.E.2d 608; People v. Middleton (1976), 38 Ill. App. 3d 984, 990, 350 N.E.2d 223.) Osborn is particularly instructive.

In Osborn, the defendant was convicted of rape and deviate sexual assault. The victim testified that she made a telephone call in response to a help wanted advertisement in the Chicago Tribune which has been placed by the defendant. The defendant returned her call and arranged to interview her at his apartment. No decision was made regarding the position at that interview. A few days later, defendant again called the victim and said that he wanted to finish discussing the job interview. He arranged a date with her and later in the evening raped her and committed an act of deviate sexual assault upon her in her apartment. In Osborn, the State presented the testimony of another woman who stated that she also responded to the defendant’s advertisement and that defendant had attempted to rape her.

The court noted the following similarities between the two incidents:

“In both cases, the woman made contact with the defendant by means of a newspaper advertisement for help. In both cases, the original contact was for employment but, in good part as a result of the efforts of defendant, the relationship soon broadened into a social and more personal type of contact. Both of the incidents occurred in the privacy of the homes of the respective complainants to which defendant had been invited. In both situations defendant expressly told the woman he was going to have sexual relations with her. In both cases he depended upon physical force in commencing to obtain his stated desire. In both instances he seized the woman forcefully by the throat. In both cases, however, the defendant’s conduct was sexually motivated.” 53 Ill. App. 3d 312, 321.

Acknowledging that there were differences between the two situations, the court stated that “the factual similarities between these two situations are so strong and persuasive that they are sufficient to make evidence of the earlier offense relevant as proof of the existence of a common design and modus operandi.” (53 Ill. App. 3d 312, 321.) There was no issue of defendant’s identity in Osborn.

A review of the testimony of Dina P. and Melody G. reveals the following similarities between their experiences with defendants and those of the prosecutrix in this case: all three victims were young girls who answered virtually identical newspaper advertisements placed by Rebecca under her maiden name, Rebecca Trammel; either Rebecca or David answered the telephone when Dina and Melody called the number listed in the advertisement; defendants drove considerable distances to bring the girls to their home for an interview; Dorothy and Dina were both served alcoholic drinks which made them “woozy” or “light-headed”; David described his work and educational background with all three girls and, in each case, the conversation turned to a discussion of sex and defendants’ liberal lifestyle;’ Dorothy and Dina were shown pornographic movies and Melody was shown pornographic magazines; Rebecca appeared in the nude in all three instances and directly participated in the sexual assault of Dina and Melody; David committed or attempted to commit deviate sexual acts and sexual intercourse with each of the three girls and used the same words to try to persuade Dorothy and Dina not to resist his advances.

While, as defendants observe, the incidents involving Dina and Melody were not identical in every respect to the one involving Dorothy, exact identity is not required to admit evidence of other crimes. (People v. Osborn (1977), 53 Ill. App. 312, 320, 368 N.E. 2d 608.) It is sufficient if the similar acts, considered together, yield a distinctive combination. (People v. Butler (1978), 63 Ill. App. 3d 132, 140-41 n.1, 379 N.E.2d 703.) In our judgment, these other offenses, like the other offense in Osborn, shared peculiar and distinctive common features which tended to establish a common scheme or design and the same modus operandi. We note further that this was the reason the State gave for offering this evidence.

The striking similarity of the other sexual assaults was relevant to the issue of whether a crime was actually committed. Moreover, evidence of other crimes has been permitted where necessary to explain the circumstances of a crime which would otherwise be unclear or improbable. People v. Cole (1963), 29 Ill. 2d 501, 505, 194 N.E.2d 269; People v. Turner (1979), 78 Ill. App. 3d 82, 92, 396 N.E. 2d 1139.

Defendants, however, maintain that the testimony of Dina and Melody was not “clear and convincing.” One of the criteria for admission of other crime evidence under Rule 404(b) of the Federal Rules of Evidence is that the evidence must be “clear and convincing.” (United States v. Berkwitt (7th Cir. 1980), 619 F.2d 649, 654; United States v. Dolliole (7th Cir. 1979), 597 F.2d 102, 106-07.) Defendants cite no Illinois decisions adopting this standard.

Where evidence of other offenses is admitted to show a common scheme, proof of these other crimes need not be beyond a reasonable doubt. (People v. Fletcher (1978), 59 Ill. App. 3d 310, 320, 375 N.E. 2d 1333.) For example, in People v. Parker (1976), 35 Ill. App. 3d 870, 873-74, 343 N.E.2d 52, the court held that evidence of another crime to prove intent was properly admitted notwithstanding defendant’s characterization of that evidence as “highly contested and tenuous at best.” Even if we were to apply the “clear and convincing” standard to the testimony of the similar occurrence witnesses in this case, we would conclude that their testimony was admissible.

It is within the sound discretion of the trial judge to determine whether the evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. (People v. Kirkwood (1980), 82 Ill. App. 3d 252, 260, 402 N.E.2d 677.) That determination will be overturned only if there exists a clear abuse of discretion. (People v. Funches (1978), 59 Ill. App. 3d 71, 73, 375 N.E.2d 135.) Upon our examination of the record, we cannot conclude that the trial court abused its discretion in admitting the similar occurrence testimony offered by the State.

VI

Defendants contend that their rights of confrontation were violated when the out-of-court declarations of co-conspirators were received into evidence prior to a prima facie showing that a conspiracy existed.

Prior to trial, the State made an offer of proof that the evidence would show the existence of a conspiracy independent of the state-merits of the co-conspirators. Based on this offer, the trial court ruled that all out-of-court declarations of either defendant were admissible against both. Defendants claim that this was error and that no independent evidence of conspiracy was presented.

Declarations of one conspirator may be used against another conspirator who is not present when the declarations are made, on the theory that the declarant is the agent of the other, and the admissions of one are admissible against both under a standard exception to the hearsay rule. (People v. Davis (1970), 46 Ill. 2d 554, 557, 264 N.E.2d 140.) While it is preferable for the independent evidence of conspiracy to be introduced prior to the admission of a conspirator’s declarations, there is no mandatory rule to this effect. (People v. Goodman (1980), 81 Ill. 2d 278, 284, 408 N.E.2d 215.) The prima facie case for conspiracy may be made before or after the introduction of the alleged hearsay testimony. (People v. Gray (1980), 85 Ill. App. 3d 726, 729, 410 N.E.2d 493.) In establishing a prima facie case of conspiracy, proof of the agreement, which is the essence of a conspiracy, need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused defendant. 85 Ill. App. 3d 726, 729.

In the instant case, there was sufficient independent evidence of conspiracy. (See Arguments IX and X below.) Evidence admitted under the co-conspirator exception to the hearsay rule does not violate the confrontation clause of the sixth amendment because defendants are able to confront and cross-examine the witnesses who allege that the statements at issue were made. (People v. Goodman (1980), 81 Ill. 2d 278, 284, 408 N.E.2d 215.) Parenthetically, we note that neither defendant has identified a single out-of-court declaration in which one defendant, directly or indirectly, implicated the other. See People v. Columbo (1983), 118 Ill. App. 3d 882, 949.

VII

Defendants contend that the trial court erred in precluding a defense witness from testifying about a State witness’ reputation for truth and veracity.

During the presentation of defendants’ case, defense counsel attempted to lay a foundation for eliciting Melody’s stepmother’s opinion of Melody’s reputation for truth and veracity. The State objected, arguing that a proper foundation had not been laid and that Melody’s reputation for truth and veracity was not in issue. Defense counsel responded that once a person takes the witness stand, her credibility becomes an issue. The trial court sustained the State’s objection to this testimony.

It has always been permissible to show that a witness has a bad reputation for truth and veracity. (People v. Nash (1966), 36 Ill. 2d 275, 280, 222 N.E.2d 473.) However, character witness testimony regarding a person’s truth and veracity must be based not upon the personal opinion of the character witness or specific instances of the person’s alleged acts, but upon his general reputation. (People v. Montgomery (1973), 16 Ill. App. 3d 127, 135-36, 305 N.E.2d 627.) Although a witness may be impeached by testimony showing that the witness has a poor reputation for truth and veracity, a proper foundation must be laid for such testimony and a question in proper form must be asked of the reputation witness. People v. Dorff (1979), 77 Ill. App. 3d 882, 888, 396 N.E.2d 827.

Our examination of the foundation questions and defense counsel’s offer of proof indicates that the stepmother’s testimony would have represented her personal opinion of Melody’s truth and veracity. As such, it was properly excluded.

VIII

Defendants contend that, the trial court erred in applying the rape shield law (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7a) to a witness other than the prosecutrix.

The record discloses that the trial court barred defense counsel from cross-examining Melody G. regarding prior specific sexual acts. The court based its ruling on the Illinois rape shield law which provides: “In a prosecution for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7a.) Defendants assert that this law applies only to the prosecutrix and not to any other witness. In our judgment, we need not reach this issue.

Defense counsel’s offer of proof referred only to prior specific sexual acts of the witness. Even prior to the enactment of the rape shield law, however, “evidence of complainant’s prior specific sexual acts was inadmissible and defendant was limited to proving only complainant’s general reputation for immorality and unchastity.” (People v. Requena (1982), 105 Ill. App. 3d 831, 836, 435 N.E.2d 125; People v. Collins (1962), 25 Ill. 2d 605, 611, 186 N.E.2d 30.) Defendants cite no authority that a similar occurrence witness in a sex offense prosecution may be impeached by evidence of prior specific sexual acts with someone other than defendant, and we are aware of none. We find no error in the court’s ruling precluding defense counsel from inquiring into the witness’ prior sexual conduct.

Defendants, however, claim that they were also prevented from presenting evidence of Melody’s general reputation for unchastity through the testimony of her stepmother. We have examined defense counsel’s offer of proof and note that it mentioned only specific acts of unchastity which, as we have stated, were inadmissible irrespective of the applicability of the rape shield law.

IX

Defendants contend that they were not proved guilty beyond a reasonable doubt of attempted deviate sexual assault. In support of this contention, defendants assert that the evidence was conflicting, that the prosecutrix made no effort to escape from defendants’ home, that she made no outcry and delayed reporting the incident to the police. Defendants further assert that the testimony of other State witnesses was unclear. As a result, defendants submit that their convictions must be reversed. We cannot agree.

In sex offense cases, courts of review are required to examine the evidence carefully (People v. Osborn (1977), 53 Ill. App. 3d 312, 323, 368 N.E.2d 608), but when the case is tried before a jury, the credibility of the witnesses and the weight to be given each witness is a responsibility reserved for the jury (People v. Davis (1981), 95 Ill. App. 3d 161, 166, 419 N.E.2d 682). Likewise, the effect of any inconsistencies in testimony is a question of credibility and weight to be determined by the jury. (People v. Davis (1981), 95 Ill. App. 3d 161, 166.) A court of review will not reverse the determination of the jury which heard the evidence presented and observed the demeanor of the witnesses unless the jury’s findings are palpably contrary to the manifest weight of the evidence or so unsatisfactory as to raise a reasonable doubt of guilt. People v. Stepney (1977), 46 Ill. App. 3d 328, 330, 360 N.E.2d 1206.

Upon our review of the record, we are satisfied that there was sufficient evidence upon which the jury reasonably could have concluded that the defendants were guilty of attempted deviate sexual assault. While the prosecutrix did not immediately report the incident to the police or make a prompt outcry, she did escape from defendants’ house at the first opportunity and told the first person she knew that she had been assaulted. There was no delay in reporting the incident which could not be attributed to the trauma of the victim’s ordeal. (People v. Slavin (1978), 66 Ill. App. 3d 525, 529-30, 383 N.E.2d 1303; People v. Jones (1976), 40 Ill. App. 3d 850, 857, 353 N.E.2d 375.) We note further that the State presented substantial convincing evidence that defendants had used the same modus operandi with other victims of their sexual assaults.

X

Finally, we address Rebecca’s contention that the State failed to prove beyond a reasonable doubt that she was accountable for David’s actions. In support of this contention, Rebecca argues that the testimony failed to show that she took part in the sexual assault of Dorothy. Rebecca states that her mere presence in the room where the attack occurred does not make her accountable.

As Rebecca points out, the State has the burden of establishing that she solicited, aided, abetted, agreed or attempted to aid in the planning or commission of the offense with the intent to promote or facilitate such commission. (Ill. Rev. Stat. 1977, ch. 38, par. 5 — 2(c).) Active participation, however, has not been required for the imposition of criminal guilt upon the theory of accountability. People v. Ruiz (1982), 94 Ill. 2d 245, 254.

In the present case, even if Rebecca did not come into physical contact with Dorothy, the evidence established significantly more involvement than her mere presence. Rebecca placed the advertisement in the newspapers and arranged to meet Dorothy. Later, Rebecca presented herself to Dorothy in the nude when David began to show a pornographic movie and remained in the family room as David assaulted Dorothy. It is apparent, particularly in light of the similar occurrence testimony that Rebecca voluntarily attached herself to David’s course of conduct and was aware of his intended criminal actions, yet did nothing to disassociate herself from the offense. In our judgment, the record amply supports the jury’s conclusion that Rebecca aided and abetted David in the attempt to commit a deviate sexual assault on the prosecutrix and was therefore accountable for his conduct. People v. Ruiz (1982), 94 Ill. 2d 245, 255.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA JUSTICE WHITE,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PASCUAL BONILLA, Defendant-Appellant.
    First District (3rd Division)
    No. 81 — 1657
    Opinion filed July 13, 1983.

      WHITE, J., specially concurring.
    David J. Bradford and Alan Raphael, both of Chicago (Jenner & Block, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Sara D. Hynes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Pascual Bonilla, was charged with murder, aggravated arson, and arson. A jury found him guilty of murder and arson, and the trial court sentenced him to 25 to 75 years for murder, and to five to 15 years for arson, the sentences to run concurrently. On appeal defendant contends that the trial court erred in not permitting him to present evidence that a third party admitted setting the fire; that improper comments by the prosecutor during closing argument deprived defendant of a fair trial; and that the trial court erred in refusing to discharge the jury and to conduct a hearing regarding the prosecutor’s exercise of peremptory challenges to exclude black and hispanic persons from the jury.

On January 21, 1977, at approximately 6 a.m., a fire occurred in a four-story apartment building located at 3734-36 North Pine Grove in Chicago. As a result of the fire, Julia Miller, 78 years old, died, and several other residents were hospitalized. The fire began on the fourth floor of the building when a couch was ignited in apartment 415.

A police officer and an assistant State’s Attorney testified that on May 22, 1978, defendant orally confessed to setting the fatal fire. Lenore Nardelle testified for the State that at the time of the fire defendant and she shared a second-story apartment in the building in question. In the midst of an argument during which defendant was striking her, he stated that he wanted to set a fire. Defendant forced Nardelle to the fourth floor, where he pushed his way into an apartment and set a couch on fire with matches. Defendant dragged Nardelle across the hall where he set a fire in another apartment. They left the building and drove around for awhile. When they returned, Nardelle watched the fire from the street while defendant reentered the building.

After the fire, defendant and Nardelle moved in with her parents and continued to live together. He struck her many times, and she was always in fear of him. When he struck her on May 21, 1978, she told her father, who called the police. Defendant was arrested for disorderly conduct, and the subsequent investigation implicated him in the fire.

Defendant initially contends that the trial court erred in not permitting him to present evidence that a third party admitted setting the fire. After a pretrial hearing, the trial court granted the State’s motion to exclude evidence relating to a Ralph McNamara and his admission that he had set the fire.

On the day of the fire, police questioned McNamara, a resident, as he left the building. McNamara told the police that he started the fire, but then denied doing so. McNamara, whose answers were rambling and nonsensical, appeared to be mentally retarded. McNamara had been arrested the previous day for striking another resident, and his many previous arrests had been for battery and resisting arrest. The police did not charge McNamara with the crime here because there was no evidence involving him. Defendant did not subpoena McNamara as a witness.

Generally, the extrajudicial declarations of a third party, not made under oath, that he committed the crime, are purely hearsay, and even though they are declarations against interest, are inadmissible. (People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1.) The rule should be departed from only when the hearsay declaration was made spontaneously to a close acquaintance; was corroborated by other evidence; was self-incriminatory and against the declarant’s interest; and the declarant was present in the courtroom, under oath, ready to be cross-examined. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038; People v. Craven.) McNamara’s statement was not made to a close acquaintance, and he was not in court ready to be cross-examined. Moreover, his statement received corroboration only from the flimsiest of circumstances. He had matches on his person and smelled of smoke as he left the burning building. The trial court correctly refused to allow defendant to offer evidence of McNamara’s admission.

Defendant also contends that certain remarks of the prosecutors during closing arguments deprived him of a fair trial. We shall comment only on those remarks to which defendant offered objections at trial. People v. Beto (1980), 86 Ill. App. 3d 622, 408 N.E.2d 293.

Citing three remarks, defendant argues that the prosecutors improperly commented on his failure to testify. Defendant misconstrues the first such comment where the prosecutor merely stated that the testimony of a character witness did not present a defense. The second comment complained of was the prosecutor’s direct response to a remark by defense counsel who stated that the State had not called any witnesses from the building or from the fire department. The prosecutor properly replied that defendant could have called any of these people as witnesses. Even if the comment was improper, the trial court sustained defendant’s objection to the remark. The third comment complained of by defendant arose out of defense counsel’s statement that defendant had told the jury that he did not commit the crime by virtue of his plea of not guilty to the charges. During rebuttal, in commenting on defense counsel’s statement, the prosecutor stated that she had not heard defendant say anything. While we reject the State’s argument that it was invited comment, the remark was not emphasized and it certainly did not constitute prejudicial error.

Defendant also complains that the prosecutor misstated the burden of proof by stating that to acquit defendant, the jury would have to find that every State witness was lying. We find no such comment in the record. In his argument, defense counsel focused on the fact that people in power, including the police officer and prosecutor, had brought the charges against defendant and that people in power frequently told lies. The prosecutor replied that the thrust of defendant’s argument was that the case was a big lie and that everyone, including the police officers and prosecutors, were liars. The comments were invited by defense counsel and were not improper.

Defendant also urges that the prosecutor’s comments about the deceased’s age and manner of death were improper. These remarks, based on facts in evidence and reasonable inferences, were proper. Our review of the entire closing argument convinces us that defendant was not deprived of a fair trial by any comments of the prosecutor.

Defendant finally contends that the trial court erred in refusing to discharge the jury and to conduct a hearing regarding the prosecutor’s exercise of peremptory challenges to exclude black and hispanic persons from the jury.

Our supreme court has recently considered and rejected precisely the same issue. (People v. Williams (1983), 97 Ill. 2d 252; People v. Davis (1983), 95 Ill. 2d 1.) In those cases, relying on Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, the court ruled that, in a particular case, the prosecutor may constitutionally exercise peremptory challenges to eliminate black and hispanic persons from the jury. In Williams the court cited with approval People v. McCray (1982), 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915, which, in holding Swain was not effected by Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, emphasized the distinction between the jury pool and the jury actually selected. Distinctive groups in the community may not be systematically excluded from the jury pool, but once the pool is selected prospective jurors may be excluded by peremptory challenges. See People v. Williams.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGILLICUDDY, J., concurs.

JUSTICE WHITE,

specially concurring:

This is still another of an increasing number of cases arising in this and other jurisdictions presenting the question of whether the State’s systematic use of peremptory challenges to effectively exclude nonwhite jurors solely because of their race violates a defendant’s sixth amendment right to an impartial jury drawn from a cross section of the community. The majority rely on Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, and its Illinois progeny, to reject defendant’s claim that his constitutional rights were violated in this case. On May 31, 1983, the question regarding the State’s use of peremptory challenge was again before the United States Supreme Court in petitions for writs of certiorari (82 — 1381, McCray v. New York; 82 — 5840, Miller v. Illinois; 82 — 5910, Perry v. Louisiana). (51 U.S.L.W. 3855.) Three justices joined in an opinion supporting denial of the petitions. Two dissented. Significantly, however, none of the five justices relied upon Swain, decided in 1965 by a divided court, as now being dispositive of the question. Justice Marshall, with whom Justice Brennan joined in dissenting, wrote, “I would grant certiorari to reexamine the standard set forth in Swain.” (51 U.S.L.W. 3855, 3856.) In the majority opinion, Justice Stevens wrote:

“My vote to deny certiorari in these cases does not reflect disagreement with Justice Marshall’s appraisal of the importance of the underlying issue — whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, on the prosecutor’s assumption that they will be biased in favor of other members of the same group. I believe that further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date.” (51 U.S.L.W. 3855.)

Thus, none of the United States Supreme Court justices facing this question found answers in unwaivering adherence to Swain. Indeed,. further consideration of the Swain issue by other courts was invited.

People v. Payne (1982), 106 Ill. App. 3d 1034, 436 N.E.2d 1046, is the first Illinois case in which the court found that the State’s use of peremptory challenges had deprived the defendant of a fair trial under the sixth amendment. That case is still pending on appeal in the Illinois Supreme Court, indicating that this subject is still receiving in this State the reexamination McCray invited. This opinion is written to contribute to that reexamination.

Generally, it can be said that any device or practice used by the State which has, as its purpose and effect, systematically requiring that all nonwhites accused of crime in Cook County be tried by all white or almost all white juries, violates the sixth amendment right to a fair trial before an impartial jury drawn from a cross section of the community. (See Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692.) This is clearly true when the State’s action on the basis of race takes place in the selection of veniremen. (See Peters v. Kiff (1972), 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163; Sims v. Georgia (1967), 389 U.S. 404, 19 L. Ed. 2d 634, 88 S. Ct. 523; Jones v. Georgia (1967), 389 U.S. 24, 19 L. Ed. 2d 25, 88 S. Ct. 4; Whitus v. Georgia (1967), 385 U.S. 545, 17 L. Ed. 2d 599, 87 S. Ct. 643; Coleman v. Alabama (1964), 377 U.S. 129, 12 L. Ed. 2d 190, 84 S. Ct. 1152; Avery v. Georgia (1953), 345 U.S. 559, 97 L. Ed. 1244, 73 S. Ct. 891; Patton v. Mississippi (1947), 332 U.S. 463, 92 L. Ed. 76, 68 S. Ct. 184; Hale v. Kentucky (1938), 303 U.S. 613, 82 L. Ed. 1050, 58 S. Ct. 753; Hollins v. Oklahoma (1935), 295 U.S. 394, 79 L. Ed. 1500, 55 S. Ct. 784; Norris v. Alabama (1935), 294 U.S. 587, 79 L. Ed. 1074, 55 S. Ct. 579; Martin v. Texas (1906), 200 U.S. 316, 50 L. Ed. 497, 26 S. Ct. 338; Neal v. Delaware (1881), 103 U.S. 370, 26 L. Ed. 567; Strauder v. West Virginia (1880), 100 U.S. 303, 25 L. Ed. 664.) Does Swain require the application of a different rule to the selection of the jury members? In my view Swain does not require the elevation of section 115 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(e)), relating to peremptory challenges, to a position paramount to the fair trial provisions of the sixth amendment of the Constitution of the United States. In Swain the court said:

“[W]hen the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance. Cf. Yick Wo v. Hopkins, 118 U.S. 356. In these circumstances, giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge are being perverted. If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.” 380 U.S. 202, 223-24, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837-38.

The question posed by this appeal is does the instant case meet this Swain test: Did the State’s systematic striking of Negroes in the selection of the petit jury raise a prima facie case of constitutional violation? It is the jury that sits in the box and hears the case, not the jury pool, that is the essential element of a fair trial. If the State uses the peremptory system to deny nonwhites the same right and opportunity to sit on juries enjoyed by whites, this would thwart efforts for a fair trial no matter how unbiased the jury pool selection and other pretrial procedures are. The State’s use of peremptory challenges here, and consequently the selection of jurors, was on the basis of race. Members of a venire are not required to announce their race, religion or ethnic origin. This makes it difficult to record a prosecutor’s racially motivated strategies. However, here defense counsel, through patient, polite, persistence, made and preserved the record of the State’s use of nine of its 10 peremptory challenges against nonwhite jurors. As Justice Marshall wrote in McCray, "When a prosecutor uses several peremptory challenges to exclude every potential Negro juror, there is strong circumstantial evidence that the exclusions are racially motivated and therefore in violation of the defendant’s Sixth Amendment right.” 51 U.S.L.W. 3855, 3856.

Additionally, Swain and the cases which followed suggest that the systematic exclusion of nonwhites by peremptory challenges in case after case is necessary to raise a constitutional issue. Regarding this Swain requirement, Justice Marshall in McCray wrote, “Since every defendant is entitled to equal protection of the laws and should therefore be free from invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor’s use of peremptory challenges before any defendant can object.” (51 U.S.L.W. 3855, 3855-56.) However, in the context of the instant case, this Swain requirement need not bar defendant from asserting his sixth amendment right. This court and the circuit court of Cook County can take judicial notice of the number of cases in that court in which arguments similar to those of this defendant have been raised. State v. Brown (La. 1979), 371 So. 2d 751.

In People v. Gosberry (1982), 109 Ill. App. 3d 674, 440 N.E.2d 954, this court listed 27 cases in which the issue of the use of peremptory challenges to exclude nonwhites from a jury in a criminal case was raised on appeal. The Gosberry court observed that all but four of these cases were tried in Cook County. (109 Ill. App. 3d 674, 682-83.) Following Gosberry, there have been at least nine additional cases which have addressed this issue. They are: People v. Williams (1983), 97 Ill. 2d 252; People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353; People v. Logan (1983), 117 Ill. App. 3d 753; People v. Withers (1983), 115 Ill. App. 3d 1077; People v. Jones (1983), 114 Ill. App. 3d 576; People v. Gilliard (1983), 112 Ill. App. 3d 799, 445 N.E.2d 1293; People v. Osborn (1983), 111 Ill. App. 3d 1078, 444 N.E.2d 1158; People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634; and People v. Turner (1982), 110 Ill. App. 3d 519, 442 N.E.2d 637. All but two of these cases were tried in Cook County.

The record here shows that the State used peremptory challenges, with one exception, to bar blacks and hispanics from the jury. The number of criminal cases arising from Cook County where similar conduct is charged indicates that this was not an isolated case, but that indeed the same use of peremptory challenges by the State occurs in case after case. This meets the Swain test. I would not, as the majority opinion does, place the State’s peremptory challenge beyond realistic scrutiny and convert the challenge from a device for protecting defendants into a tool for restricting the availability of a fair trial before an impartial jury. The majority correctly cites People v. Williams as authority for this position, and although it goes contrary to all I have observed above, I am compelled by stare decisis to concur.


author: JUSTICE TRAPP

text:
    SHELL OIL COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Fourth District
    No. 4 — 82—0342
    Opinion filed August 29, 1983.
    Rehearing denied September 27, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Paul J. Bargiel, Special Assistant Attorney General, of Doss, Puchalski, Keenan & Bargiel, Ltd., of counsel), for appellants.

      Charles G. Chester, Thomas H. Donohoe, and Nicholas J. Nedeau, all of Martin, Craig, Chester & Sonnenschein, of Chicago (John A. Hoffman, of Houston, Texas, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The Department of Revenue (Department) appeals the trial court’s reversal, on administrative review, of its decision that certain equipment installed by plaintiff, Shell Oil Company, at its Wood River, Illinois, refinery, is not tax exempt since the equipment does not have pollution control as its “primary purpose” within the meaning of section 2a of the Use Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 439.2a). We affirm in part and reverse in part.

The present controversy began on December 4, 1979, when the Department issued plaintiff a notice of tax liability for alleged deficiencies in State and county retailers’ occupation taxes and use taxes. Taxpayer filed a timely notice of protest, paid the taxes, filed a claim for credit, and the matters were consolidated for hearing before the Department. At the conclusion of the hearing, a number of purchases were found to be exempt with the exception of the three items at issue here: smokestacks connected to taxpayer’s EPA-mandated catalytic precipitator, two large storage tanks, and modifications in the refinery fuel system.

Section 2a of the Use Tax Act allows an exemption from use tax for pollution control facilities used to abate pollution. This section provides:

“ ‘Pollution control facilities’ means any system, method, construction, device or appliance appurtenant thereto sold or used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term ‘air pollution’ or ‘water pollution’ is defined in the ‘Environmental Protection Act’, enacted by the 76th General Assembly, or for the primary purpose of treating, pretreating, modifying or disposing of any potential solid, liquid or gaseous pollutant which if released without such treatment, pretreatment, modification or disposal might be harmful, detrimental or offensive to human, plant or animal life, or to property.
The purchase, employment and transfer of such tangible personal property as pollution control facilities is not a purchase, use or sale of tangible personal property.” (Ill. Rev. Stat. 1979, ch. 120, par. 439.2a.)

The issue to be decided sub judiee is whether taxpayer’s capital expenditures constitute a system, or appliance appurtenant thereto which is intended for the primary purpose of reducing air pollution.

Taxpayer operates two “catalytic cracking units” at its refinery which are designed to produce primarily gasoline by causing a crude oil derivative to “crack” into smaller, lighter hydrocarbon molecules. The cracking takes place by heating the crude oil derivative in the presence of a catalyst. After this process, the catalyst becomes contaminated with carbon and is then sent to a “cat cracker regenerator” where the carbon is burned off and the catalyst is recycled. Taxpayer formerly discarded the hot gas from the regenerator through two older smokestacks, but following notification from the Illinois Environmental Protection Agency (EPA) that the particles of the catalyst were being discharged from the stack, a precipitator was installed to reduce the emission. The precipitator’s function is to extract the catalyst from the gases which are then dispersed through the two new smokestacks at issue here.

The precipitator is a large structure which had to be built some distance away from the “cat cracker regenerator” due to congested conditions at the refinery and is connected to the regenerator by large 10-foot diameter ducts. Taxpayer had two options for disposing of the clean gas from the precipitator: Additional ducts could have been constructed to take the clean gas back to the old smokestacks, or taxpayer could have built new smokestacks adjacent to the precipitator. Plaintiff’s plant engineer testified that the latter approach was adopted because the former would have required an extremely expensive system of duct work. The Department allowed an exemption for the duct work which carries the gas from the regenerator to the precipitator, the precipitator itself, and the conveyor units which carry away the particulate from the precipitator, but denied an exemption for the smokestacks.

The other two capital projects at issue involved changes in the storage and distribution system of a portion of the fuel used in the refinery operations. These changes were made to comply with EPA sulphur emission requirements at the refinery and consisted of the construction of storage tanks and revisions in the way the refinery distributed the fuel. The fuel with which these two projects are concerned is called “pitch” and is a by-product of the distillation of crude oil. This by-product is used by the taxpayer to make asphalt in the summer and to help fuel the refinery operations in the winter.

The environmental problems arose as a result of taxpayer’s combining sweet, or low sulphur crude oil, and sour, or high sulphur crude oil, in the distillation unit which produced pitch with a high sulphur content. Eventually the EPA notified Shell that the pitch which was being burned at the refinery emitted too much sulphur and had to be eliminated. Taxpayer scrutinized a number of alternatives to reduce sulphur emissions and eventually decided upon a three-part plan. The first step involved changes in the refinery distribution process to allow low sulphur crude oil to be distilled at one time and high sulphur crude oil at another. The second part involved the construction of large storage tanks to segregate the low sulphur pitch from the high sulphur pitch, and the final phase involved changes in the refinery fuel distribution system. According to plaintiffs engineer, the latter phase enabled plaintiff to “get the right fuel to the right heaters in the right combination so we could burn the fuel [low sulphur pitch] and comply with the regulations.”

The Department of Revenue relies upon Illinois Cereal Mills, Inc. v. Department of Revenue (1976), 37 Ill. App. 3d 379, 346 N.E.2d 69, to support the taxability of both the smokestacks and the storage tanks. In that case, under threat of action by the EPA, plaintiff installed gas-fired boilers to replace coal-fired boilers which created a pollution problem. Although the coal-fired boilers were in satisfactory condition to continue supplying plaintiff’s steam needs indefinitely, plaintiff received no economic benefit in making the installation, and plaintiff’s reason for installing the gas-fired boilers was to meet environmental requirements of government agencies, we found that the gas boilers were not exempt since their primary purpose was to produce heat for the purposes of carrying on taxpayer’s industrial operation of drying grain. Shell notes that we stated in Illinois Cereal Mills that the primary purpose language “does not seem to refer to equipment like the gas fired boilers even though they were installed because they were less polluting than the equipment formerly used. Rather the words refer to equipment such as precipitators, filters, and smoke stacks, which have no substantial function in the manufacturing or processing of a product other than to abate the pollution caused by the plant operation.” 37 Ill. App. 3d 379, 381-82, 346 N.E.2d 69, 71.

In Du-Mont Ventilating Co. v. Department of Revenue (1978), 73 Ill. 2d 243, 383 N.E.2d 197, the supreme court indicated that a necessary, appurtenant appliance to a facility which has as its primary purpose the elimination, prevention, or reduction of pollution is entitled to exemption from use tax under section 2a of the Act notwithstanding that the appurtenant appliance itself does not directly reduce or eliminate pollution. At issue there was an intake system for a “push-pull” ventilation filtering system. In interpreting section 2a of the Act, the court noted:

“The exemption applies not only to systems ‘used or intended for the primary purpose of eliminating, preventing, or reducing air and water pollution’ but to systems ‘appurtenant thereto’ as well. [Citation.] *** It is abundantly clear that the intake system is appurtenant, i.e., appropriate or accessory to the pollution control facility. [Citation.]” (73 Ill. 2d 243, 248, 383 N.E.2d 197, 200.)

The uncontradicted evidence indicates that the catalytic cracker precipitator system consists of several components (i.e., steel ducts to carry the gas to the precipitator, supporting steel for the ducts, the precipitators themselves, conveyors to carry the particulate matter to dumpsters, and two smokestacks) all of which were part of the same construction project and necessary for the functioning of the precipitator. The Department’s contention that the new smokestacks were not necessary because taxpayer could have used the old smokestacks is without merit. Had taxpayer followed this approach, it would have had to construct a more expensive system of duct work which also would have been exempt from tax as an appurtenant appliance. As such, the trial court correctly held that the Department’s failure to exclude the smokestacks from taxation was against the manifest weight of the evidence.

Regardless of whether the stacks are treated as primary methods of eliminating pollution or are treated as appurtenant to necessary pollution control devices, we find that the stacks are tax exempt within the meaning of the statute and of the controlling authorities.

The revision in the refinery fuel system and the construction of the asphalt storage tanks, however, were neither appurtenant to any pollution control facilities nor did they have as their primary purpose the elimination, reduction or prevention of air pollution. Although these changes were subjectively motivated by a desire to comply with EPA sulphur emissions at plaintiff’s refinery, their predominant purpose was to enable plaintiff to produce asphalt from high sulphur pitch and burn the low sulphur pitch as fuel in the refinery. Our opinion in Illinois Cereal Mills clearly eschewed any reliance on a subjective purpose test as a basis for determining the “primary purpose” of alleged pollution control equipment. As we noted in that opinion: “The words in section 2a, ‘sold or used or intended for the primary purpose of’ reducing or eliminating certain types of pollution does not seem to refer to equipment like the gas fired boilers even though they were installed because they were less polluting than the equipment formerly used.” (Emphasis added.) (37 Ill. App. 3d 379, 381, 346 N.E.2d 69, 71.) We affirm the judgment of the trial court determining that the stacks were tax exempt but reverse that judgment upon the exemption accorded the storage tanks and the fuel system. We remand the cause for computation and determination of the credit consistent with the opinion.

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

MILLS and GREEN, JJ., concur.


author: PRESIDING JUSTICE WEBBER

text:
    ALPHA WATTERSON, Plaintiff-Appellee, v. JEFFREY C. MILLER, Director, Illinois Department of Public Aid et al., Defendants-Appellants.
    Fourth District
    No. 4 — 83—0034
    Opinion filed September 22, 1983.
    Rehearing denied October 20, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Leslie J. Rosen, Assistant Attorney General, of counsel), for appellants.
    George Bell, of Land of Lincoln Legal Assistance Foundation, Inc., of Champaign, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents yet another situation in the seemingly interminable freshet of litigation concerning eligibility for public aid following a declaration of ineligibility under the Federal social security system. The matter has been previously litigated many times. (See Johnson v. Quern (1980), 90 Ill. App. 3d 151, 412 N.E.2d 1082; Carroll v. Miller (1983), 116 Ill. App. 3d 311.) With the signing by Governor Thompson of Public Act 83 — 0193 on August 31, 1983, we believe that most of the problems have been laid to rest.

Plaintiff filed a class action suit in the circuit court of Champaign County seeking a mandamus against the defendants, the Director of the Illinois Department of Public Aid and the Illinois Department of Public Aid and the Illinois Department of Public Aid (IDPA). In it she alleged that she had applied to IDPA for financial and medical assistance under the Aid to the Aged, Blind and Disabled program (AABD) (Ill. Rev. Stat. 1981, ch. 23, par. 3 — 1 et seq.) and that her application had been approved on a presumptive eligibility basis pending a decision on her claim of disability; she then began receiving financial assistance as well as a medical eligibility card. She further alleged that thereafter an adverse disability determination had been made in her case by the Social Security Administration (SSA). It appeared that such an application to the SSA must be made simultaneously with the application for AABD under the appropriate regulations of IDPA. Upon that determination by SSA, IDPA notified her that it was terminating her assistance under AABD. That notice was sent to her on November 3, 1982; she alleged that within 10 days she appealed that decision under the pertinent regulations of IDPA, but notwithstanding Rule 7.03 of IDEA, which provides that assistance shall continue during the appeal process if filed within 10 calendar days, her assistance was terminated.

Plaintiffs complaint asked for a judgment of mandamus on behalf of herself and all others similarly situated requiring the defendants to continue providing assistance at the level previously in effect pending the results of the appeal hearing to determine the question of disability. The defendants moved to deny class certification and to dismiss the complaint. The parties stipulated that the facts alleged in the complaint were true. The trial court denied both motions. It granted class certification and awarded a judgment of mandamus basing its decision principally on Johnson. Defendants have appealed, raising as issues the propriety of mandamus and the certification of the class action.

The history of the legislation and the interplay between AABD and the Supplemental Security Income program (SSI) of the Federal government have been exhaustively delineated in Johnson and Carroll and no necessity exists for a vain repetition of it here. Suffice it to say, it was held in Johnson that they are separate programs and that a finding under SSI of nondisability does not foreclose assistance under AABD. Carroll held that mandamus was the proper remedy to obtain assistance during the pendency of the appeal process.

As we have intimated above, Public Act 83 — 0193 has made much of the controversy academic. Johnson held that sections 3 — 1 through 3 — 12 of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, pars. 3 — 1 through 3 — 12) constituted one program and that sections 3 — 13 through 3 — 15 of the Code (Ill. Rev. Stat. 1981, ch. 23, pars. 3 — 13 through 3 — 15) constituted another and that a finding by the Federal government under the latter was not conclusive of the question of assistance under the former. Public Act 83 — 0193, which was Senate Bill 1061 in the 83rd General Assembly, added language to sections 3 — 1, 3 — 1.2 and 3 — 4 of the Code as follows:

To section 3 — 1 (Eligibility Requirements):

“The Illinois Department shall administer a State program under this Article to provide interim assistance to applicants for the federal Supplemental Security Income program who have not received a final determination and certification under this Article.”

To section 3 — 1.2 (Need):

“The Illinois Department may, after appropriate investigation, establish and implement a consolidated standard to determine need and eligibility for an amount of benefits under this Article or a uniform cash supplement to the federal Supplemental Security Income program for all or any part of the then current recipients under this Article; provided, however, that the establishment or implementation of such a standard or supplement shall not result in reductions in benefits under this Article for the then current recipients of such benefits.”

To section 3 — 4 (Examination as to Disability):

“The Illinois Department may accept determinations as to disability performed under the auspices of the Federal Social Security Administration and properly certified to the Department. The Department shall not consider such determinations final if they have been appealed until a determination is made by an administrative law judge. Furthermore, the Department shall not terminate assistance provided under this Article until there has been such a final determination and certification.”

It is at once apparent that these amendments unify the two programs and authorize acceptance of the Federal government’s finding of disability.

However, they do not answer all of the questions raised in the instant suit. Section 2 of Senate Bill 1061 provides that it shall take effect upon becoming a law. This occurred on August 31, 1983, upon the signature of the Governor. (Ill. Rev. Stat. 1981, ch. 1, par. 1205.) Therefore, as to all claims arising after that date, the questions presented here cannot arise. As to claims pending before that date, as in the instant case, Johnson will control.

Public Act 83 — 0193 also cures some of the problems relating to the class certification. Plaintiff sought relief for herself and for “all persons who, claiming to be disabled, (1) have begun to receive (or do in the future begin to receive) assistance from the defendants pursuant to an application under Article III of The Illinois Public Aid Code (AABD), and (2) have appealed since November 15, 1982 (or do appeal in the future) within 10 days of a notice by the defendants that assistance is being denied because the person has been found to be not disabled.” Defendants objected to the entire class certification on two bases: (1) that it included members whose rights have yet to be denied, and (2) that plaintiff had no cause of action.

As to the first objection, including persons in the future, Public Act 83 — 0193 obviously cures the matter and these persons must be removed from the class. We now do so pursuant to the authority vested in us by Supreme Court Rule 366(a)(5) (87 Ill. 2d R. 366(a)(5)). Those persons who begin to receive assistance after August 31, 1983, obviously have now their own remedy. The class will remain as described by plaintiff, less those in the future.

As to the second objection, defendants argue that plaintiff had no cause of action because she did not commence her appeal within 10 days of the notice. We do not agree. The parties quarrel over whether the notice was sent by defendant, or received by plaintiff on November 3, 1982. However, that is immaterial because in our opinion time calculated under administrative regulations should be done in the same fashion as for statutes. (Ill. Rev. Stat. 1981, ch. 1, par. 1012.) That law provides:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”

As applied to the facts here: November 3 was Wednesday so 10 days would be computed from Thursday, November 4; the ninth day would be Friday, November 12, and the 10th day Saturday, November 13; that day and the next, Sunday, are excluded under the statute; therefore the 10th calendar day for purposes of IDEA Rule 7.03 was Monday, November 15. The appeal was timely.

The final matter to be disposed of is the type of hearing to which plaintiff is entitled under Johnson. This is not spelled out in IDEA’S regulations, since the Department has proceeded on the assumption that the Federal hearing was exclusive. In our opinion the hearing by analogy should parallel such a Federal one. The provisions are spelled out in the Code of Federal Regulations (C.F.R.) as follows:

42 C.F.R. sec. 431.205(b)(1982) provides:

“(b) The State’s hearing system must provide for-
(1) A hearing before the agency; or
(2) An evidentiary hearing at the local level, with a right of appeal to a State agency hearing.
* * *
(d) The hearing system must meet the due process standards set forth in Goldberg v. Kelly, 397 U.S. 245 (1970), and any additional standards specified in this subpart.”

42 C.F.R. sec. 431.220 (1982) provides:

“(a) The agency must grant an opportunity for a hearing to:
(1) Any applicant who requests it because his claim for services is denied or is not acted upon with reasonable promptness; ***.”

42 C.F.R. sec. 431.242 (1982) provides:

“The applicant or recipient, or his representative must be given an opportunity to-
* * *
(b) Bring witnesses;
(c) Establish all pertinent facts and circumstances;
(d) Present an argument without undue interference; and
(e) Question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.”

If these standards are observed, in our opinion a claimant will receive adequate due process.

The order of the circuit court of Champaign County allowing a judgment of mandamus is affirmed and the class certification is modified as explained above.

Affirmed as modified.

MILLS and TRAPP, JJ., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL HOULDRIDGE et al., Defendants-Appellees.
    Fourth District
    No. 4 — 83—0046
    Opinion filed September 22, 1983.

      Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

The detection of the odor of cannabis smoke emitting from a motor vehicle — by a police officer experienced in the detection of such odors — does provide a sufficient basis for a warrantless search of the vehicle.

We reverse and remand for trial.

FACTS

At approximately 8 p.m. on November 25, 1981, Deputy Jerry Davis of the Vermilion County sheriff’s department was parked on a rough, unpaved county road observing traffic. His patrol car was located at the bottom of a hill, and he observed a vehicle which was descending the hill swerve or slide from the north to the south side of the road. He began following the vehicle and ran a license plate check on it. Davis stopped the vehicle after being advised by the radio operator that its registration was expired.

Davis testified that as he approached the car, he saw the person seated next to the window on the passenger side of the front seat (defendant Songer) drop something out of the window. When Davis arrived at the driver’s side of the car, defendant Houldridge (the driver) rolled down the window and Davis “smelled the odor of burned cannabis emitting from the vehicle.”

After observing some furtive movements on the part of the defendants Straub and Songer (seated in the middle and on the right side of the front seat, respectively), Davis told all three defendants to place their hands on the dashboard, which they did. Davis then walked around the car, opened the front door on the passenger side, shined his flashlight into the vehicle, and saw a plastic bag containing green vegetable matter on the floor. He seized the bag, field tested it, and found that it contained approximately eight grams of cannabis. He also found a single hand-rolled marijuana cigarette on the ground near the passenger side of the car.

Each of the defendants was subsequently arrested and charged with possession of cannabis. Houldridge was not charged with an expired registration violation because after the arrest of defendants, Davis rubbed the sticker area of the car’s rear license plate, which was dirty, and found that the registration sticker was valid.

Deputy Davis stated that he had had extensive training in the detection of the odor of cannabis and also had frequent occasion to smell cannabis smoke in the course of his employment as a sheriff’s deputy.

The defendants’ version of events subsequent to the stop differs markedly from that of Deputy Davis. Houldridge testified that he exited the car when Davis first approached it. When Davis met Houldridge outside the car, he said that Houldridge was under arrest “for illegal drinking [of] alcohol and smoking [of] marijuana.” Davis then looked into the car and told the remaining two occupants to place their hands on the dashboard. He next ordered Straub out of the car and frisked him and did the same with respect to Songer. Only then did Davis search the passenger side of the car. After the search, Davis told Straub and Songer that they also were under arrest.

According to Houldridge, Davis inspected the vehicle’s license sticker before ordering Straub and Songer out of the car. Defendant Songer denied throwing anything out of the window after Davis stopped the car, and his testimony as to this point was corroborated by defendant Houldridge.

Following a hearing, the Vermilion County circuit court granted the defendants’ motion to suppress the marijuana which Deputy Davis seized, as well as all testimony related to the seizure. The circuit court provided the following reasons for its decision:

“a. *** [T]he mere detection by an officer of an odor which he believes to be that of burning cannabis does not justify a warrantless search of the vehicle.
b. *** [Ujnder the present facts there was not sufficient basis for a reasonable belief by the officer that the law was being violated and that evidence of it was in the vehicle to be searched.”

The State appeals the circuit court’s suppression order.

OPINION

We find no basis for holding that the initial stop of the vehicle in which defendants were traveling was illegal. Generally, a police officer may briefly detain an individual where the officer believes on the basis of articulable facts that there is a substantial possibility that that individual has committed, is committing, or is about to commit a criminal offense. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Jones (1982), 102 Ill. App. 3d 246, 429 N.E.2d 1101.) More specifically, erratic driving, such as weaving across a roadway or even weaving within the lane of traffic within which a vehicle is traveling, provides a sufficient basis for an investigatory stop of a motor vehicle. (People v. Boddie (1969), 274 Cal. App. 2d 408, 80 Cal. Rptr. 83; State v. Morrison (La. 1980), 392 So. 2d 1037; State v. Perry (1979), 39 Or. App. 37, 591 P.2d 379.) Furthermore, police may reasonably rely on information acquired by police radio (People v. Hall (1980), 90 Ill. App. 3d 1073, 414 N.E.2d 201, cert. denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388; People v. Buck (1968), 92 Ill. App. 2d 16, 235 N.E.2d 837), and information that the registration of a particular vehicle may be expired or invalid may provide an adequate basis for an investigatory stop of that vehicle. See People v. Ramsey (1979), 77 Ill. App. 3d 294, 395 N.E.2d 973.

In the present case, the weaving of the defendants’ vehicle from one side of the road to the other, coupled with the information that the vehicle’s registration may have been expired which Davis ob-tamed via his police radio, was more than adequate to provide Davis with a reasonable basis for believing that the vehicle was being operated in violation of the law and was thus subject to an investigatory stop. That the information as to the expired registration ultimately proved to be false is of no consequence here. In performing their duties, the police, under the circumstances presented, may reasonably rely on information contained in official records. (People v. Bell (1977), 74 Mich. App. 270, 253 N.W.2d 726; Perry.) Also, we note that at oral argument, counsel for defendants agreed that the initial stop was valid.

The only real issue in this case is whether a police officer’s smelling the odor of marijuana smoke emitting from a motor vehicle provides a sufficient basis for the officer’s belief that a crime is being committed in his presence, and hence a basis for a warrantless search under the automobile exception to the warrant requirement. (See Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280; People v. Loe (1973), 16 Ill. App. 3d 291, 306 N.E.2d 368.) The second and fifth districts have answered this question in the affirmative. (People v. Smith (1978), 67 Ill. App. 3d 952, 385 N.E.2d 707; People v. Laird (1973), 11 Ill. App. 3d 414, 296 N.E.2d 864; People v. Erb (1970), 128 Ill. App. 2d 126, 261 N.E.2d 431.) In People v. Wornbacher (1982), 104 Ill. App. 3d 812, 433 N.E.2d 374, and People v. Argenian (1981), 97 Ill. App. 3d 592, 423 N.E.2d 289, the third district, however, has taken a contrary position, holding that the uncorroborated testimony of a police officer that he smelled the odor of cannabis emitting from a motor vehicle is insufficient to support an unlimited search of the vehicle. (Although there is not complete unanimity among the courts of other jurisdictions which have had the opportunity to consider this question, the great majority of such courts have held that the odor of marijuana smoke, standing alone, provides probable cause for a warrantless search of an automobile, at least where the officer who smells the marijuana is experienced in the detection of such odors.) Annot., 5 A.L.R.4th 681, 687-95 (1981 & 1982 Supp.).

We are of the opinion that Smith, Laird and Erb represent the better view. Burning cannabis has a rather distinctive odor, and most police officers now receive special training in the detection of this odor, as had Deputy Davis, the officer who conducted the search in the case at bar. Furthermore, Deputy Davis’ statement that he detected the odor of burning marijuana emitting from the defendants’ vehicle is consistent with his testimony that he saw defendant Songer drop something from the passenger side of the car as he approached it. This testimony is corroborated by Davis’ discovery of a hand-rolled cannabis cigarette lying on the ground in the area where he earlier saw Songer drop something, and by his discovery of a bag containing eight grams of cannabis in the vehicle in which the defendants were riding. Under these circumstances, Deputy Davis’ detection of the odor of cannabis smoke emitting from the vehicle which he stopped provided a sufficient basis for his belief that a crime was being committed in his presence and his ensuing search of the vehicle.

Moreover, the furtive movements on the part of Straub and Songer, considered in view of the Supreme Court’s recent decision in Michigan v. Long (1983), 463 U.S. _, 77 L. Ed. 2d 1201, 103 S. Ct. 3469, provide an additional basis for upholding the validity of the search which resulted in discovery of the marijuana. In Long, the court held that when a motor vehicle is subjected to an investigatory stop,

“[a] search of the passenger compartment of [the] automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” (463 U.S. _, _, 77 L. Ed. 2d 1201, 1220, 103 S. Ct. 3469, 3480.)

Under the facts of Long, it is irrelevant whether the area searched is within reach of the suspects at the time of the search. In the present case, Straub’s and Songer’s furtive movements reasonably warranted a belief on the part of Deputy Davis (who was outnumbered three to one) that Straub and Songer were dangerous and might have immediate access to weapons. Thus, Davis’ need to provide for his own safety in itself justified a search of the vehicle for weapons.

Finally, the defendants contend that on the basis of the trial court’s memorandum opinion, it is apparent that the court disbelieved Deputy Davis’ testimony that he smelled cannabis smoke when he approached defendants’ vehicle, and that this testimony is thus entitled to little weight. The trial court did not, however, explicitly state that it deemed Davis’ testimony incredible; rather, a reading of its memorandum opinion reveals that for purposes of its decision, the court assumed Davis’ testimony to be true.

Because of our decision it is unnecessary to discuss the State’s other proffered reasons for upholding the search. Since Deputy Davis had ample justification for searching the vehicle in which defendants were traveling, we reverse the circuit court’s suppression order and remand the cause for trial.

Reversed and remanded.

WEBBER, P.J., and MILLER, J., concur.


author: JUSTICE GREEN

text:
    EDWARD J. MARCIN, Ex’r of the Estate of Patricia K. Myers, Deceased, Plaintiff-Appellant, v. ROGER K. KIPFER, Defendant-Appellee.
    Fourth District
    No. 4 — 83—0141
    Opinion filed September 21, 1983.
    Rehearing denied October 20, 1983.

      Jerome Mirza & Associates, Ltd., of Bloomington (Jerome Mirza, of counsel), for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Lyle W. Allen and David R. Sinn, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 10, 1980, plaintiff, Edward J. Marcin, executor of the estate of Patricia K. Myers, deceased, brought suit in the circuit court of Livingston County against defendant, Roger K. Kipfer. The complaint alleged that defendant, a physician and surgeon, specializing in family practice, had given negligent treatment to plaintiff’s decedent in such manner as to be a proximate cause of her death on December 24, 1978. After a trial by jury, the court entered a judgment on the verdict of the jury in favor of plaintiff and against defendant in the sum of $1,500. The case was tried under the doctrine of comparative negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.) The jury found damages in the sum of $75,000 but reduced the damages by 98% because of decedent’s contributory negligence.

Plaintiff appeals, contending: (1) The trial court erred in refusing to excuse two prospective jurors for cause; (2) prejudicial argument of defense counsel deprived plaintiff of a fair trial; (3) the court erred in giving a certain instruction; and (4) the jury’s determination that decedent was 98% negligent was contrary to the manifest weight of the evidence. We reverse and remand for a new trial.

We need not discuss the evidence to any substantial extent. Defendant was treating the deceased for a blood clot in her right leg which she had developed shortly after giving birth to a child. Defendant hospitalized plaintiff and prescribed an anticoagulant for her while she was in the hospital. After several days, he permitted her to go home, directing she be given another anticoagulant. Various tests were taken from time to time concerning the effects of the anticoagulant being used. Plaintiff became very ill one evening and died shortly thereafter. Medical experts differed as to whether defendant’s treatment was negligent. Most of those testifying were uncertain as to whether the decedent died as a result of a clot in the lung resulting from the clot in the leg or from a brain hemorrhage resulting from having taken an anticoagulant. Evidence was presented that the deceased had failed to follow certain instructions while she was at home.

The evidence was sufficiently favorable to defendant that we cannot determine that plaintiff was entitled, as a matter of law, to a finding that defendant’s negligence was 100% of the negligence contributing to her death. Plaintiff is not entitled to judgment as a matter of law. Accordingly, our determination that the court committed reversible error, requiring a new trial, in denying plaintiff’s challenge for cause of two jurors is dispositive of the case.

The prospective jurors in question were Carl Staley and Patricia Haag. Staley testified that defendant was his family doctor and Haag, a widow, that he was her doctor. Both testified that there was nothing in the relationship that would make it difficult for them to serve as a juror in the case. They also both testified that they could treat defendant as any other witness. Staley stated that he supposed he would consult defendant even if he became ill that week. Haag stated she would also consult defendant under those circumstances. Plaintiff challenged both for cause, and both challenges were denied. Plaintiff fully preserved his claim of error by exercising all his allotted peremptory challenges, asking for additional peremptories, and making a motion for a mistrial when the latter request was denied.

We recognize that the trial court has great discretion in determining whether to grant a challenge to a prospective juror for cause, (People v. Hyche (1979), 77 Ill. 2d 229, 396 N.E.2d 6; People v. Harris (1967), 38 Ill. 2d 552, 232 N.E.2d 721.) Great weight should be given to a prospective juror’s statement under oath that he can lay aside matters that might indicate bias and render a verdict based on the evidence. (People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645; see Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) However, the relationship of a prospective juror to a party can be so close that, considering the nature of the case, fairness requires that the juror be discharged. This is such a case.

No closely analogous case has been called to our attention. In a case where an accused was charged with the murder of a physician, the refusal of a defense challenge for cause against a prospective juror who had been a patient of the physician was held not to be reversible error. (McCollum v. State (Fla. 1954), 74 So. 2d 74.) The doctor-patient relationship here created more of a problem. In McCollum, for the juror to find the accused not guilty of the homicide of the doctor would not have been any show of disrespect to the doctor’s memory, nor would it have cast any mark against the doctor’s reputation. Here, for the two jurors to have found for plaintiff, they would have had to find their personal physician to have been incompetent in his treatment of decedent. Although the traditional close relationship of trust and confidence between patient and physician may no longer be as strong as it once was, it still has considerable strength.

As in most Illinois counties outside the metropolitan area, obtaining a jury that did not contain some people who know a local physician would probably be difficult in Livingston County. Nothing in our decision is to be taken to mean that others knowing the defendant should have been kept off the jury. Only the very close relationship shown in regard to the two jurors required their exclusion. Denying the challenges for cause made as to Staley and Haag deprived plaintiff of a fair trial. He is entitled to a new trial.

Our decision is consistent with the following statement of an experienced authority on Illinois trial procedure:

“The trend of authority is to exclude from juries all persons who by reason of their business or social relations, past or present, with either of those parties, could be suspected of possible bias ***.” Hunter, Trial Handbook for Illinois Lawyers sec. 15.14 (5th ed. 1983).

Plaintiff’s contention that the court erred in giving a particular instruction concerns a problem likely to recur on retrial. Plaintiff maintains that he was entitled to an issues instruction setting forth the specific grounds of negligence on the decedent’s part which defendant was relying on as contributory negligence and which would reduce any damages found. The issues instruction given did not do so.

Illinois Pattern Jury Instruction (IPI), Civil, No. A20.01 (1981 Supp.), lists as an issue in a comparative negligence case, where there was some evidence of contributory negligence by the plaintiff, the following:

“[4] The defendants] claim[s] that plaintiff was contribuíorily negligent [in one or more of the following respects:]” (IPI Civil No. A20.01 (1981 Supp.).)

The Notes on use to that instruction state in part:

“Where no specification of plaintiff’s contributory negligence is pleaded by defendant, omit the bracketed material in paragraph [4].” IPI Civil No. A20.01, Notes, at 18 (1981 Supp.).

The Comment to the instruction provides:

“An issue instruction must meet the standards of Signa v. Alluri, 351 Ill. App. 11, 113 N.E.2d 475 (1st Dist. 1953), that the issues made by the pleadings be concisely stated without characterization and undue emphasis.
Traditionally, the only burdens of proof upon which the jury has been instructed are those necessary to allow the plaintiff to recover, along with any affirmative defenses that the defendant might raise which, if successful, would prevent the plaintiff from recovering.
Although Alvis v. Ribar, 85 Ill. 2d 1, 52 Ill. Dec. 23, 421 N.E.2d 886 (1981), does not touch on this question, the Committee believes that under the doctrine of comparative negligence, contributory negligence is not an affirmative defense. If it is an issue, it simply goes to the diminution of damages. Lee v. Louisville & N. R. Co., 349 Ill. App. 276, 110 N.E.2d 691 (4th Dist. 1953) (FELA Case). If plaintiff puts his contributory negligence before the jury, either by direct evidence or by inference, it may be considered by the jury, even though it has not been specifically pleaded by the defendant(s), Lee, supra, and defendant is entitled to an instruction on contributory negligence mitigating damages, Pinkstaff v. Pennsylvania R.R. Co., 20 Ill. 2d 193, 170 N.E.2d 139 (1960) (FELA Case). If evidence of his contributory negligence has not been put before the jury by the plaintiff, the defendant would then have the burden of going forward with such evidence if he wished plaintiff’s contributory negligence to be considered by the jury.” IPI Civil No. A20.01, Comment, at 19 (1981 Supp.).

The development of the doctrine of comparative negligence is still in its early stages in this State. Under the circumstances, we agree with the Illinois Supreme Court Committee on Jury Instructions in Civil Cases that the treatment given contributory negligence in cases arising under the Federal Employers’ Liability Act (FELA) (45 U.S.C.A. sec. 51 et seq.) should be followed by analogy. Under this theory, the type of contributory negligence relied upon by defendant did not have to be alleged. Under the format of IPI Civil No. A20.01, claims of contributory negligence not alleged did not have to be specified in the issues instruction. The trial court was correct in so ruling.

For the reasons stated we reverse and remand the case to the circuit court of Livingston County for a new trial.

Reversed and remanded for a new trial.

TRAPP and MILLER, JJ., concur.