author: JUSTICE ROMITI

text:
    THE PEOPLE ex rel. DEPARTMENT OF PUBLIC AID, Plaintiff-Appellee, v. ERCILLA BELL, Defendant-Appellant.
    First District (4th Division)
    No. 83—1138
    Opinion filed February 16, 1984.

      Willis E. Brown, of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Defendant Ercilla Bell has appealed, pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), from the circuit court’s denial of her motion to dismiss the complaint brought against her by the Illinois Department of Public Aid. In that complaint the Department sought to recover $35,944 which defendant allegedly improperly received in the form of public assistance from January 1, 1965, through December 1, 1977, and an equal amount as a penalty for her allegedly fraudulent behavior. Although appellee-Department of Public Aid has failed to file a brief with this court, we will, in the exercise of our discretion, consider the cause on the merits. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) Defendant contends that her prior criminal conviction for theft based on the same alleged conduct should constitute a bar to this action on the grounds of (1) collateral estoppel and res judicata, (2) election of remedies, (3) accord and satisfaction, and (4) the proscription against ex post facto statutes.

We affirm.

On January 8, 1981, the defendant pled guilty to three counts of theft by deception (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(b)). At that hearing it was stipulated that between January 1, 1965, and December 1, 1977, defendant received $31,234 in public aid warrants, $9,700 in medical authorization warrants, and $16,900 in food stamp authorizations, all from the Illinois Department of Public Aid. It was further stipulated that during this period defendant failed to report income she received from her employment at the Oak Forest Hospital and from the Cook County Annuity and Benefit Fund although she knew it was her statutory duty to do so. As the result of this failure to report income she was not entitled to the sums she had received from the Department.

Pursuant to a plea-bargaining arrangement the court, on the State’s motion, struck (with leave to reinstate) 74 additional counts. The court found defendant guilty of three remaining counts which alleged the theft by deception of the amounts we have noted. However, defendant was sentenced only on count I, relating to the $31,234 in public aid warrants, the court finding that the other two counts merged into that one. Defendant was sentenced to two years’ probation (with weekends in jail for the first nine months) and with the additional provision that she pay $5,000 in restitution to the Department of Public Aid. The court stated on the record that this amount had been paid.

In this cause the Department filed a complaint on March 11, 1982. The Department alleged that from January 1, 1965, to December 1, 1977, defendant received public assistance from the Department in the amount of $40,944 of which $35,944 was an “overissuance” resulting from defendant’s failure to report her employment with Oak Forest Hospital and her receipt of funds from the Cook County Employees’ Annuity and Benefit Fund. According to the complaint, defendant had refused the Department’s demand for a return of the $35,944, and accordingly the Department sought a judgment in this amount plus costs, interest and attorney fees. In a second count the Department alleged that defendant’s wilful concealment of these facts from the Department had resulted in their loss of $35,944 and that as a result of this fraudulent behavior the Department was entitled to an additional civil penalty in the same amount.

The Department in its complaint purported to be relying on section 11 — 21 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 11 — 21). The first paragraph of that section in essence authorized the criminal prosecution of one who fraudulently obtained public aid.

A third paragraph authorized a civil action to recover aid obtained by such a person and provided that in the event fraud was established in such a civil action then an additional penalty up to the amount of the aid improperly received could be assessed. However section 21 in its entirety was repealed effective September 14, 1981. The first paragraph was replaced by new sections 8A — 2 and 8A — 6. (Ill. Rev. Stat. 1981, ch. 23, pars. 8A — 2, 8A — 6.) The third paragraph was replaced by section 8A — 7(a), which provides for the same relief as its predecessor section. (Ill. Rev. Stat. 1981, ch. 23, par. 8A — 7(a).) Defendant has raised no issue with respect to this erroneous reliance on repealed statutory provisions and it would appear that the matter may be satisfactorily resolved by amendment of the complaint in the trial court.

I

Defendant contends that in the prior criminal proceeding it was established that she illegally obtained public aid benefits and it was further established that the value of the benefits illegally obtained was $5,000, the amount of restitution ordered by the trial court in that proceeding. Based on this assertion defendant then contends that under the doctrine of collateral estoppel no subsequent action for these wrongs can be brought. In this respect defendant misapprehends the effect of collateral estoppel. That doctrine precludes relitigation of a particular fact or issue which has been previously determined in litigation between the same parties; in a subsequent action between those parties such prior determinations, if properly presented and relied on, will be conclusive on the parties. (23A Ill. L. & Prac. Judgment sec. 361 (1979).) Clearly defendant’s assertion of a prior unfavorable adjudication of the issue of her having illegally obtained public aid benefits cannot, under collateral estoppel principles, inure to her benefit. Nor do we find merit in defendant’s contention that in the prior criminal proceeding the court’s order of restitution of $5,000 amounted to a judicial determination that this was the value of the aid she illegally obtained. Defendant pled guilty to taking public aid valued at a total of $57,834, and the facts to which she stipulated also reflected that amount. Nothing in the transcript of the proceedings presented to this court suggests that the restitution ordered was intended to modify defendant’s admissions or the court’s adjudication of guilt based on those admissions. Thus assuming that collateral estoppel would be applicable to a civil proceeding such as this where the prior adjudications relied on arose in a criminal trial, an issue which we do not reach, it is apparent that the doctrine would not bar this litigation nor would it preclude the Department from seeking the amount of damages they have claimed. However, again assuming the applicability of the doctrine, we also do not reach the issue of whether defendant’s plea of guilty to three counts of theft would be dispositive of the contentions of fraud raised in this action. See People v. Brooks (1976), 65 Ill. 2d 343, 357 N.E.2d 1169.

We also note that to the extent defendant may be attempting to assert a double jeopardy defense, the case of Department of Public Aid v. Greenlee (1978), 61 Ill. App. 3d 649, 378 N.E.2d 579, is dispositive of the issue. In that case the defendant had pled guilty to misdemeanor fraud under the first paragraph of section 11 — 21 (Ill. Rev. Stat. 1977, ch. 23, par. 11 — 21). The Illinois Department of Public Aid then filed a complaint seeking recovery of the aid the defendant had received and also seeking a penalty in the same amount, relying on the third paragraph of section 11 — 21. The trial court granted summary judgment for the defendant as to the count seeking the penalty on the ground of double jeopardy. However, on appeal it was held that the penalty sought amounted to additional damages recoverable in a civil judgment rather than being a punishment for a crime. As such the suit seeking the penalty was not barred on double jeopardy grounds. In this cause the same reasoning applies; the former criminal prosecution of the defendant presents no double jeopardy bar to this civil action in which the Department seeks to recoup damages rather than to inflict punishment.

II

Defendant also contends that the doctrine of election of remedies precludes the Department from bringing this action. Without determining whether that doctrine would even be applicable to the bringing of a civil suit following the successful prosecution of a criminal action, we find that defendant has established no basis for asserting such a defense. As was stated in Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 94, 315 N.E.2d 215, 224:

“The doctrine of election among cumulative remedies does not apply when multiple avenues of remedy are pursued, as long as double compensation of the plaintiff is not threatened, the defendant has not actually been misled by the plaintiffs conduct, and res adjudicata principles cannot be applied to bar an inconsistent theory. [Citation.]”

Here no double compensation is threatened. The Department is seeking to recover far less in count I of its complaint than defendant admitted having wrongfully received. The count II claim for a penalty is based on a provision which has been construed as being intended to protect the State’s welfare funds from depletions resulting not just from fraudulent claims but from the expenses of investigating and recouping such claims. (Department of Public Aid v. Greenlee (1978), 61 Ill. App. 3d 649, 653, 378 N.E.2d 579, 582.) Nothing in the record suggests defendant was misled, and as we have already determined, no res judicata bar is presented.

III

Defendant’s contention that an accord and satisfaction was reached in the criminal prosecution depends on a finding that the restitution of $5,000 paid by defendant pursuant to her guilty plea was intended to be a settlement of a bona fide dispute as to the amount of money taken from the Department. But we have already held that the record establishes that defendant freely admitted to taking aid valued at $57,834 and her conviction was based on her stipulation to that fact.

IV

Finally defendant contends that the filing of this action constituted a violation of the constitutional prohibition against the passage of ex post facto laws. (U.S. Const., art. I, sec. 10.) Clearly that provision, which is concerned with imposition by a new statute of greater punishment for a crime than that prescribed when the criminal act was committed (Harris v. Irving (1980), 90 Ill. App. 3d 56, 412 N.E.2d 976), has no application to this civil action which seeks damages previously determined not to be penal in nature (Department of Public Aid v. Greenlee (1978), 61 Ill. App. 3d 649, 378 N.E.2d 579; see United States Trust Co. v. New Jersey (1977), 431 U.S. 1, 17 n.13, 52 L. Ed. 2d 92, 106 n.13, 97 S. Ct. 1505, 1515 n.13), and which is based on a statute permitting only the same amount of recovery as its predecessor statute.

For the foregoing reasons, the order of the trial court is affirmed and the cause is remanded for further proceedings.

Affirmed and remanded for further proceedings.

LINN, P.J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY LEE FREEMAN, Defendant-Appellant.
    Second District
    No. 83—205
    Opinion filed February 10, 1984.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Jerry Lee Freeman, appeals from his conviction for violation of sections 4(e) and 5(e) of the Cannabis Control Act. Ill. Rev. Stat. 1979, ch. 56½, pars. 704(e), 705(e).

In the early morning hours of September 19, 1982, Lieutenant Edwin Blake of the Lee County Sheriffs Department obtained a warrant to search a house at 1119 Palmyra Avenue in the city of Dixon, Lee County, Illinois. The lieutenant and deputy sheriffs executed the warrant shortly after its issuance and seized several pounds of cannabis which were introduced in evidence at the defendant’s trial.

Prior to trial, the defendant filed a motion to suppress evidence seized during the search on the basis that it was improperly issued in certain respects and specifically that the “information of the informant-affiant, is not true, and consists solely of perjured statements and lies on the part of said “ ‘reliable informer.’ ”

The motion was denied. The defendant was convicted by jury trial and sentenced to the Department of Corrections for six years for manufacture of cannabis and four years for possession of cannabis, the sentences to be concurrent. He was fined $1,200.

The defendant raises four issues for review: (1) Whether the search warrant should have been quashed; (2) Whether it was error to refuse to produce the informant so the defendant could disprove the averments in his affidavit upon which the warrant was based; (3) Whether the cannabis found in the garage should have been suppressed as being the fruit of an unlawful warrantless search not falling within any exception to the warrant requirement; and (4) Whether the unlawful possession of cannabis conviction should be vacated because it is a lesser-included offense of unlawful manufacturing of cannabis.

Eight to ten officers of the Lee County Sheriff’s Department executed a search warrant issued for a two-story single-family dwelling in Dixon, Illinois, during the early morning hours of September 19, 1982. Officers at the front door knocked several times during a three-to-five minute period, but received no response. They tried the door, it was unlocked, and they entered the residence, calling out the defendant’s name and announcing “Sheriff’s Department.” Cathy Freeman, the defendant’s wife, appeared in the living room. Their two children were asleep in another bedroom. The defendant was found in the couple’s bedroom, putting on his pants. He and his wife sat in the living room while additional officers were admitted to the house, and the search commenced. Various amounts of a leafy green substance were found in the house, primarily in the kitchen and basement. Several pipes, packages of plastic bags and baggies, and other paraphernalia were also seized. Some of the substance seized from the basement was found on a tray inside a large styrofoam box which had a tin or aluminium lining, and a light bulb inside as a source of heat. This device was described at the trial as a “hot box,” used for drying marijuana. Detective Lieutenant Blake testified he walked outside to urinate near the garage which was located 30 to 40 feet away from the house, and that he heard the noise of a fan blowing in the garage. He looked through the double garage door windows into the garage, which was illuminated by the lights on in the house, and observed what he thought was marijuana spread out on the floor of the garage. He obtained the garage keys from Mrs. Freeman, and officers seized a quantity of a moist leafy substance which was spread out on plywood on the floor of the garage directly in the airstream of the fan. At trial, Mrs. Freeman testified on cross-examination the officers “asked for the [garage] keys so they didn’t have to break the door down.”

The substance taken from the basement tested out positively to be 408.2 grams of cannabis, and the substance found in the garage tested out positively to be 507.1 grams of cannabis.

(1) Motion to Quash and Suppress

The affidavit in support of the complaint for search warrant, signed by the informant, stated:

“Larry Thompson, being first duly sworn on his oath, appears before the undersigned Judge of the 15th Judicial Circuit, Lee County, Illinois, and states:
1. That he personally knows Jerry Freeman to reside at the premises described as a two-story wood frame single family dwelling located at 1119 Palmyra Avenue, Dixon, Lee County, Illinois.
2. That within the past 3 days Affiant has personally been present at the premises described in paragraph 1 above and while at the premises has observed cannabis.
3. Affiant believes the substance to be cannabis because Affiant has used and observed cannabis on numerous prior occasions.
I si Larry Thompson Affiant.”

Defendant argues the search warrant should have been quashed and the evidence suppressed because the judge who issued the warrant had been deceived as to the true identity of the informer by the informer, Larry Thompson, and by the complainant Detective Lieutenant Edwin Blake of the Lee County Sheriff’s Department who sought the warrant based on the affidavit in question. It was brought out at the suppression hearing that Larry Thompson was not the informer’s real name, that Detective Lieutenant Blake knew it was not the informer’s real name, and that the issuing judge had no knowledge of this fact. At the judge’s home during the early morning hours of September 19, Thompson was sworn by the judge, answered unspecified questions for about five or six minutes, and the judge signed the warrant.

The defendant contends People v. Farnsworth (1981), 95 Ill. App. 3d 105, and People v. Garcia (1982), 109 Ill. App. 3d 142, support his position here that the warrant must be quashed and the evidence suppressed because the intentional deception perpetrated on the issuing judge constituted a violation of the defendant’s fourth amendment rights. He points out the affidavit contained no allegation concerning Thompson’s reliability, nor did the detective’s complaint for search warrant which was supported by the affidavit. Consequently, the issuing judge’s evaluation of Thompson’s reliability could only have been based on the impression formed by the judge during the five to six minute early-morning proceeding.

The defendant argues that had the judge known Thompson was not using his real name, he might have evaluated his reliability differently, and might have questioned him in more depth. Defendant does not argue that an informer may not use a fictitious name, only that the use of the fictitious name should not mislead the issuing judge into believing that it is the informer’s true name. As we pointed out in People v. Evans (1978), 57 Ill. App. 3d 1044, 1050, we are bound by the decision in People v. Stansberry (1971), 47 Ill. 2d 541, to the effect that the search warrant affidavit is not defective merely because it was signed by an informant who used an alias. The fact that the informant used an alias does not of itself undermine the validity of the affidavit.

Nor do we believe does the holding in People v. Farnsworth (1981), 95 Ill. App. 3d 105, require that we quash the warrant in this case. In the Farnsworth case, the informant was not presented to the magistrate as here. The officer making the affidavit appeared before the magistrate but the informant did not. The officer misled the court to believe that “James Harris” was the real name of the informant which was not true, and also that “an ordinary citizen” gave the officer information when in fact the “ordinary citizen” and “James Harris” were not two people but, in reality, one person.

In the case at hand, however, the informant did appear before the judge and was interrogated by him for five to six minutes. This was sufficient for the judge to assess the informant’s credibility. City of Chicago v. Adams (1977), 67 Ill. 2d 429, 433-34.

We do not believe the decision on the motion to suppress is controlled by the decision in People v. Garcia (1982), 109 Ill. App. 3d 142. In that case, the court on review remanded for an evidentiary hearing pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, where the affidavit of the police officer was countered by a defendant’s affidavit, which specifically denied each factual allegation in the officer’s affidavit and defendant’s affidavit was sufficiently detailed to subject him to a charge of perjury, if untrue.

The defendant’s motion in this case is not specifically detailed to contradict the facts showing probable cause in the affidavit for search warrant.

While we do not approve of misrepresentation of the informant’s name, we conclude that the informant’s use of an alias unknown to the judge did not invalidate the warrant process. The trial court was, therefore, correct in refusing to quash the search warrant.

(2) Motion to Produce the Informer

The defendant next argues it was error for the court to deny his motion to produce the informer because without knowing the informer’s identity, he could not make a “substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the affiant in the warrant affidavit” as required by Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. He distinguishes the instant cause from that presented in McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, on the basis the focus there was not whether the anonymous informer lied, but whether the police officer there did, in fact, rely in good faith on credible information supplied by a reliable informer. The defendant points out, however, that special problems are presented to an accused when the information is supplied by an anonymous informer because of the difficulty of making the “substantial preliminary showing” that certain statements were intentionally false, as required by Franks, without knowing who made them. The defendant urges this court to adhere to the guidelines expressed in State v. Chase (Me. 1982), 439 A.2d 526.

In deciding whether in that case the court had properly ordered disclosure of the anonymous informer, the court determined that:

“The trial judge in the exercise of his discretion must balance the State’s interest in protecting the flow of information against the defendant’s need for information material to his defense. Because of the State’s interest involved, some showing greater than a bare assertion and supported by more than the mere desire to determine the informant’s identity must be made by the defendant. A legitimate question or doubt must be raised in the Court’s mind as to the affiant’s credibility before disclosure is warranted, but the level of showing adequate to vitiate the State’s interest need not be as great as that required by White [State v. White (Me. 1978), 391 A.2d 291, which applied Franks] to compel an evidentiary hearing. The Court should bear in mind, at all times, the difficulty of raising substantial allegations regarding an affiant’s or informant’s conduct where the identity of the informant is unknown to the defendant.” State v. Chase (Me. 1982), 439 A.2d 526, 531.

The defendant contends a legitimate doubt was raised when it was revealed that the informer lied to the issuing judge about his identity. At that point, the defendant argues, the informer’s privilege should have yielded to the defendant’s constitutional rights, he should have been identified or produced, either in camera or in open court, to enable the defendant to obtain, if he can, the information necessary to establish the threshold showing as required under Franks.

The State responds that Chase is not persuasive “in light of the strong language” of the Supreme Court in McCray v. Illinois (1967), 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056, which upheld the informer’s privilege, and that acceptance of the defendant’s position here would vitiate the informer’s privilege. Additionally, the State argues the defendant’s allegations that “the information of the informant-affiant, is not true, and consists solely of perjured statements and lies on the part of said ‘reliable informer,’ ” is conclusional in the extreme, and does not approach the preliminary showing required by Franks.

We do not believe the court erred in refusing disclosure of the informer in this case. Despite the State’s argument that the informer’s privilege will be vitiated by acceptance of the defendant’s position on this issue, we believe the Franks court recognized the eventuality that the informer’s privilege could be caused to yield as a consequence of its decision, yet it declined to prescribe the circumstances attending such eventuality; to-wit:

“And because we are faced today with only the question of the integrity of the affiant’s representations as to his own activities, we need not decide, and we in no way predetermine, the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made.” (Emphasis added.) Franks v. Delaware (1978), 438 U.S. 154, 170, 57 L. Ed. 2d 667, 681, 98 S. Ct. 2674, 2684.

The Chase case did not address the circumstances attending the eventuality, and prescribed the test previously excerpted here. It is clear Franks contemplated some kind of preliminary showing would also be necessary before such disclosure. Chase cogently determined that a showing less substantial than that required for an evidentiary hearing under Franks must be made before disclosure was warranted, and allowed that the court should have judicial discretion to balance the weighty countervailing interests. The lesser-showing requirement logically flows from recognition of the difficulty of raising substantial allegations regarding an affiant’s or informer’s conduct where the identity of the informer is unknown to the defendant.

The Supreme Court in Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, held that disclosure of an informer’s identity is required where it is “relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause ***.” (353 U.S. 53, 60-61, 1 L. Ed. 2d 639, 645, 77 S. Ct. 623, 627-28.) The court also stated:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Roviaro v. United States (1957), 353 U.S. 53, 62, 1 L. Ed. 2d 639, 646, 77 S. Ct. 623, 628.

Although the need for the identity of an informer may not be as weighty in the context of a suppression hearing as it is where guilt or innocence is at issue, this does not foreclose the defendant’s right to disclosure in order to insure a fair hearing on the probable cause issue. When a defendant attacks an affidavit based upon facts attributed to confidential informers and thereby brings into question the validity of a warrant, the trial judge must decide whether in his sound discretion disclosure is warranted. Accepting for the sake of argument, but without adopting the Chase test, the defendant here has not even raised the “legitimate doubt” required in Chase. The fact the informer proceeded anonymously is insufficient, in our opinion, to required disclosure in the absence of any indication that revelation of the informer’s identity will aid the defendant in his challenge to the warrant. That is, the defendant must make some showing that the allegations contained in the informer’s affidavit may be specifically controverted, thereby placing the informer’s credibility — and the validity of the subsequent finding of probable cause — at issue.

Here, the defendant only generally alleged that the information of the informer “[was] not true, and consisted] solely of perjured statements and lies ***.” A more specific attack on the truth of the information provided by the informer was necessary before revelation of his identity could be viewed as an aid in the defendant’s challenge to the warrant. We conclude the court did not abuse its discretion in refusing to disclose the identity of the informer in this instance.

(3) Unlawful Search/Invalid Consent

The defendant argues the cannabis found in the garage (507.1 grams) should have been suppressed because the garage was outside the scope of the search warrant and Cathy Freeman’s subsequent alleged consent was ineffective because it was inextricably bound up with the prior illegal search. In support, he cites People v. Grogan (1978), 63 Ill. App. 3d 711, People v. Kelly (1979), 76 Ill. App. 3d 80, and People v. Patrick (1981), 93 Ill. App. 3d 830.

Without citation of authority, the State argues the court’s finding that Freeman’s consent was valid implies a finding that the officer’s initial viewing of the cannabis in the garage was legal, and is, therefore, not open to question. Citing People v. Pallardy (1981), 93 Ill. App. 3d 725, the State suggests this issue was waived because it was not specified in the post-trial motion, and alternatively suggests that if the defendant should prevail on this issue, that the proper remedy would not be reversal and remandment but, rather, suppression of the 507.1 grams of cannabis found in the garage, and reduction of the offense to a Class 3 felony on the basis of the 408.2 grams of cannabis which was lawfully seized from the house.

In reply to the waiver argument, the defendant points to his post-trial motion wherein the court’s error in failing to suppress the evidence was specifically raised, and to the record of the hearing on the motion to suppress. Additionally, the defendant cites People v. Taylor (1972), 3 Ill. App. 3d 313, for the proposition that if the offense is reduced to a Class 3 felony, the court should also reduce the defendant’s six-year sentence to a four-year sentence.

The defendant’s argument on this issue is well taken. The warrant clearly did not include the garage, and the cannabis was not within the plain view of the officer from a place where he had a right to be. (See People v. Montgomery (1980), 84 Ill. App. 3d 695.) The garage was located between 30 to 40 feet away from the house on private property. The doors were closed and the only illumination was from the lights which were on in the house. This evidences the defendant’s reasonable expectation of privacy in the contents of the garage. Despite the lack of direct evidence as to the existence of a bathroom in the house, we believe most, if not all, single-family dwellings in established cities at this point in time are required to have some sanitary facilities, and we doubt if Dixon is an exception to this general statement. There appears to have been no valid reason for the officer’s act of relieving himself outdoors, much less any reason to do so next to a garage located 30 to 40 feet away from the house which was the prime search area. The evidence does not show the officer had to pass by the garage in order to lawfully execute the search warrant for the house, or for any other reason, nor is any exigency apparent which would have justified a warrantless search of the garage as was the case in People v. Morrow (1982), 104 Ill. App. 3d 995, 1003-04. In our opinion, his actions constituted an unreasonable and invalid search not falling within any of the exceptions to the warrant requirements.

One of the specifically established exceptions to the requirement of both a warrant and probable cause is a search that is conducted pursuant to consent. (Schneckloth v. Bustamante (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) However, the purported consent given by Cathy Freeman was ineffective because it was “inextricably bound up with illegal conduct and cannot be segregated therefrom.” (People v. Kelly (1979), 76 Ill. App. 3d 80, 86.) Accordingly, we agree with the defendant that the court erred in not suppressing the 507.1 grams of cannabis found in the garage.

Under Supreme Court Rule 615(b)(3), this court may reduce the degree of the offense to a Class 3 felony on the basis the only other evidence against the defendant was 408.2 grams of cannabis. (87 Ill. 2d R. 615(b)(3).) It may likewise reduce the punishment imposed. (87 Ill. 2d R. 615(b)(4).) However, in view of the State’s concession that the defendant’s conviction for the lesser-included offense of possession must be vacated (People v. Aldridge (1978), 58 Ill. App. 3d 260), we believe that a remand for resentencing is appropriate. The authority cited by the defendant in support of this court’s rote imposition of a four-year sentence, People v. Taylor (1972), 3 Ill. App. 3d 313, was decided at a time when sentencing was for indeterminate terms. The current statute provides for determinate terms within the range specified. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1.) The trial court is in the best position to observe the accused and to assess the factors offered in aggravation and mitigation.

(4) Vacation of Possession Conviction

As noted above, the State concedes the defendant’s conviction for this offense should be vacated on the basis that it is a lesser-included offense of the manufacturing charge, and we concur. People v. Aldridge (1978), 58 Ill. App. 3d 260.

The judgment of the circuit court of Lee County denying the defendant’s motion to quash the warrant and suppress the evidence is affirmed. The 507.1 grams of cannabis seized from the garage should be suppressed as being the fruit of an unlawful warrantless search with no valid consent given, the degree of the manufacturing offense is reduced to a Class 3 felony, the defendant’s conviction for possession is vacated as a lesser-included offense, and the cause remanded for resentencing.

Affirmed in part; reversed in part and remanded for resentencing.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE PERLIN

text:
    AMALGAMATED TRUST & SAVINGS BANK, Plaintiff-Interpleader, v. EDWARD J. SILHA, JR., Indiv. and d/b/a Professional Consultants Unlimited, et al., Defendants (Louis Lapeyre, Defendant-Appellee; Edward Pinzak, Defendant-Appellant).
    First District (2nd Division)
    No. 83—901
    Opinion filed February 7, 1984.

      Cunningham and Wood, of Aurora (Phillip S. Wood and James L. Salsbury, of counsel), for appellant.
    Greenberger, Krauss & Jacobs, of Chicago (Stephen A. Cohen and Timothy R. Conway, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant Edward Pinzak (Pinzak) appeals from an order of the trial court granting summary judgment to defendant Louis Lapeyre (Lapeyre) in an action for interpleader filed by plaintiff Amalgamated Trust & Savings Bank (Bank).

On April 3, 1981, the Bank filed a complaint for interpleader, alleging that on November 6, 1979, the Bank opened account No. 105621 — 2, and a cashier’s check in the sum of $52,500 was deposited therein. The account was titled “Edward J. Pinzak, Trustee and Amalgamated Trust & Savings Bank, Escrow agent.” The cashier’s check had been drawn on a Texas bank, payable to “Edward J. Pinzak and Howard Isador [an Amalgamated Bank official], Trustee & Amalgamated Trust & Savings Bank of Chicago as Escrow agent.” The check listed as “purchasers” the “Arroyo Grande Development Corp. (Lapeyre, McCarthy & Simpson).”

The complaint further stated that the Bank had never received any escrow agreement or instructions. The Bank alleged it had been advised by each of the four defendants that he was entitled to the funds in the account. The Bank itself made no claim to the money and requested the court to direct the Bank how to disburse the funds.

On June 1, 1981, defendant Lapeyre filed an answer to the Bank’s complaint and a counterclaim against the other defendants wherein he contended that he alone was entitled to the money. Lapeyre alleged that in 1979 he sought $30 million in financing for a proposed Texas land development project. Prior to September 1979, defendant Pinzak suggested that defendant Edward Silha (Silha), d/b/a Professional Consultants Unlimited (PCU), and defendant Robert E. Young (Young), an associate or partner of Silha, might be able to procure financing for the project.

On September 22, 1979, PCU mailed to Lapeyre a proposed “letter of intent” which provided that PCU would obtain financing for the project. A fee of $52,500, to be paid in advance, would be refunded by PCU if it failed to procure a written commitment for financing within 30 days.

On September 28, 1979, according to Lapeyre, he sent a letter to Silha wherein Lapeyre stated his intention to establish an “independent escrow agent” for payment of the fee to PCU. On October 30, 1979, Lapeyre signed and returned PCU’s letter of intent. On October 31, 1979, Lapeyre mailed to Pinzak a letter and the cashier’s check in the amount of $52,500. The letter stated, in part:

“Enclosed is the cashier’s check made out to you and Mr. Isador which will be released to Professional [sic\ Consultants when they have secured the loan commitment *** as per our various communications with Mr. Silha.
In order to be perfectly clear on your and the bank’s obligations, I would like for Mr. Isador to drop me a letter along with all copies that he has regarding the loan commitment stipulations with Professional [sic] Consultants.
* * *
We would appreciate if Mr. Isador would send us a Statement of Condition of his bank.”

Lapeyre’s counterclaim concluded by alleging that PCU had never obtained a written loan commitment and the Bank, therefore, was obligated to return the money to him.

On July 30, 1981, Pinzak filed his answer to the Bank’s complaint and to Lapeyre’s counterclaim, together with Pinzak’s counterclaim against the other defendants. Pinzak contended that' “at all times pertinent” he acted as Lapeyre’s “agent” in negotiations with PCU regarding financing for Lapeyre’s project. During negotiations Lapeyre had suggested to Pinzak that PCU’s fee be placed in an escrow account pending receipt of the loan commitment. According to Pinzak, PCU rejected this suggestion and demanded payment of the $52,500 fee in advance. Pinzak alleged that Lapeyre than “induced” Pinzak to pay to PCU the fee from Pinzak’s own funds, while promising to reimburse Pinzak. Pinzak alleged that he personally paid to Silha the $52,500, “on behalf of Lapeyre.” Attached to Pinzak’s counterclaim was a copy of the face of Pinzak’s personal check dated October 25, 1979, in the sum of $52,500 payable to PCU.

Pinzak further alleged that the cashier’s check deposited with the Bank “was intended and promised as a reimbursement to Pinzak” from Lapeyre for the money which Pinzak had advanced to PCU “for Lapeyre’s benefit as Lapeyre’s agent.” Pinzak also alleged that “with Lapeyre’s knowledge and consent” Pinzak requested from PCU additional security to guarantee PCU’s refund of Pinzak’s money in the event the loan commitment was not obtained. Thereupon, on October 26, 1979, Pinzak received a check from PCU in the amount of $52,500, payable 30 days from its issuance in the event the commitment was not forthcoming. A copy of the face of PCU’s check to Pinzak was attached to Pinzak’s counterclaim.

PCU never obtained the loan commitment. Prior to the date on which its check to Pinzak was made payable, PCU closed the account on which the check was drawn. Based upon these facts, Pinzak asked the court to award to him alone the funds on deposit with the Bank.

On August 25, 1981, Lapeyre filed his answer to Pinzak’s counterclaim, denying each allegation save one, to which he pled insufficient knowledge.

Of the three remaining defendants, PCU, Silha and Young, only Silha, d/b/a PCU, filed an appearance. Subsequently defaults were entered against these three defendants. The record further indicates these defendants filed for bankruptcy during the present trial proceedings.

Only Lapeyre and Pinzak requested the court to award to them the funds in issue.

On September 22, 1982, Lapeyre filed a motion for summary judgment with a supporting affidavit. In his motion Lapeyre argued that in an interpleader action “the court’s task is to determine rights to a specific fund, and not to determine the sum total of the parties’ alleged liabilities to each other.” Lapeyre contended that only he had a legitimate claim to the $52,500 on deposit because he provided the cashier’s check which created the fund. Pinzak was only a “trustee” of the fund and thus had no personal interest in the fund. At most, Lapeyre asserted, Pinzak has an independent claim against Lapeyre or against PCU which should be pursued in an action separate from the interpleader.

Lapeyre’s affidavit, filed in support of his motion for summary judgment, stated, in relevant part:

“On or about November 26, 1979 [affiant] agreed to pay *** Edward J. Pinzak a finders fee of $225,000.00 in the event [he] obtained a $30,000,000.00 loan for a proposed real estate development in Texas. ***
On or about October 31, 1979, [affiant] forwarded to Edward J. Pinzak a cashier’s check in the amount of $52,500.00 payable to Edward J. Pinzak and Howard Isador, Trustee & Amalgamated Trust & Savings Bank of Chicago as Escrow Agent.”

On October 7, 1982, Pinzak filed a memorandum in opposition to Lapeyre’s motion for summary judgment together with his supporting affidavit. In his memorandum Pinzak contended that the pleadings raised issues of material fact including: whether Pinzak was Lapeyre’s “agent”; whether Lapeyre “induced” Pinzak to advance to PCU the $52,500 fee “for Lapeyre’s benefit,” based on Lapeyre’s promise to repay Pinzak; whether the interpleaded fund was “intended” to reimburse Pinzak for the funds Pinzak allegedly advanced to PCU “on behalf of Lapeyre.” Pinzak further asserted “the exhibits before the court indicate that Pinzak and Isador were the depositors of the fund at issue. Isador has made no claim to the funds deposited and Pinzak is, therefore, the only depositor before the court claiming an interest in the fund.” Pinzak also stated that Lapeyre had “refused” to submit to a deposition and, therefore, should not be awarded summary judgment.

Pinzak’s affidavit stated, in relevant part:

“That on or about November 6, 1979 [Pinzak] deposited the sum of FIFTY-TWO THOUSAND FIVE HUNDRED ($52,500.00) DOLLARS in an account at the Amalgamated Trust and Savings Bank. ***
* * *
That the sole purpose of the account was to guarantee the reimbursement of said FIFTY-TWO THOUSAND FIVE HUNDRED ($52,500.00) DOLLARS to Edward Pinzak for funds advanced for the benefit of Louis Lapeyre by Edward Pinzak.”

In a reply memorandum Lapeyre argued that Pinzak “attempts to cloud the issue by discussing allegations that, at most, relate to possible claims for damages against Lapeyre” and that Pinzak “does not and cannot” contend that he “furnished’ any part of the fund.

On March 21, 1983, the trial court entered an order providing, in part:

“Louis [Lapeyre] clearly has established his right to the escrow fund held by Amalgamated. The letter to Amalgamated establishing the escrow account contained instructions to the effect that the fund was to be disbursed to PCU only upon Louis’ receipt of the desired financing. It is apparent that Edward [Pinzak] and Howard [Isador] deposited the $52,500 in the Amalgamated escrow on [Lapeyre’s] behalf as his agents; the court notes the use of the term “trustee” in this respect. [Pinzak] plainly admits that the funds in the escrow were provided exclusively by [Lapeyre].
Apparently [Pinzak's] argument is with Silha. Silha d/b/a PCU, did not earn his right to this fund and does not assert a claim to it. If Silha is liable to [Pinzak], that liability will have to be met from his general assets. The Amalgamated escrow clearly constitutes a specific fund to which Silha is not entitled.
Wherefore, it is hereby ordered that [Lapeyre’s] motion for summary judgment on Amalgamated’s complaint in inter-pleader is granted, and Amalgamated is directed to disburse the contents of the subject escrow fund accordingly.”

On April 14, 1983, Pinzak filed a timely notice of appeal from the above order.

On appeal Pinzak contends the trial court erred in granting summary judgment to Lapeyre because (1) Lapeyre failed to appear for a deposition and (2) material issues of fact existed.

In regard to the first contention, the record shows that in April 1982 Pinzak’s attorneys mailed to Lapeyre’s attorneys a notice of Lapeyre’s deposition, set for June 11. On May 4, 1982, Lapeyre’s attorney wrote to Pinzak’s attorney that “Lapeyre is not a resident of Illinois [and] [therefore financial arrangements will have to be made prior to the deposition.” Lapeyre’s attorney received no further response save a letter dated July 27, 1982, from Pinzak’s attorneys advising that they would “contact” Lapeyre’s attorneys regarding the scheduling of Lapeyre’s deposition.

Had Pinzak wished to depose Lapeyre prior to adjudication of the motion for summary judgment, he could have petitioned the court pursuant to Supreme Court Rule 203 (87 Ill. 2d R. 203) which authorizes the court to designate the site of a deposition as well as to “impose any terms and conditions that are just, including payment of the reasonable expenses of the deponent.” Alternatively, Pinzak could have proceeded pursuant to Supreme Court Rule 191(b) (87 111. 2d R.

191 (b)), which provides:

“(b) When Material Facts Are Not Obtainable by Affidavit. If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof. The interrogatories and sworn answers thereto, depositions so taken, and sworn copies of papers and documents so furnished, shall be considered with the affidavits in passing upon the motion.” (Emphasis added.)

Since Pinzak failed to employ these procedures provided for the taking of a deposition, his contention that summary judgment was improperly entered because Lapeyre was not deposed must be rejected. See Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 387, 425 N.E.2d 1055, 1059.

Pinzak next contends the trial court erred in entering summary judgment for Lapeyre because material issues of fact remained. He argues that the trial court’s summary judgment order was based on facts disputed by Pinzak’s “verified pleading and affidavit.”

The standards which guide the adjudication of motions for summary judgment have been oft repeated:

“It is established that summary judgment should be granted only when the pleadings, depositions and admissions on file, together with the affidavits (if any) show there was no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1977, ch. 110, par. 57(3); Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill. 2d 87, 312 N.E.2d 601.) However, summary judgment is a drastic remedy and should be granted only when the movant’s right thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App. 3d 986, 376 N.E.2d 657), and, in passing on the motion, the trial court must construe the documents presented strictly against the movant and liberally in favor of the opponent (Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 379 N.E.2d 293). Further, the opponent may rely upon reasonable inferences which may be drawn from the materials considered on the motion in the determination of whether a genuine issue of material fact exists. Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184.” Molloy v. Santucci Construction Co. (1979), 78 Ill. App. 3d 249, 397 N.E.2d 125.

“Even though a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits or such, summary judgment is then appropriate.” (Lehman v. Eugene Matanky & Associates, Inc. (1982), 107 Ill. App. 3d 985, 991, 438 N.E.2d 614, 619.) In a motion for summary judgment inferences may be drawn from undisputed facts (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 374 N.E.2d 1302) and where reasonable persons cannot draw from such facts contrary inferences, summary judgment should be allowed. Blaylock v. Country Mutual Insurance Co. (1980), 85 Ill. App. 3d 1042, 407 N.E.2d 849.

While parties opposing summary judgment are not required to prove their case at the summary judgment stage, they must provide a factual basis which would arguably entitle them to judgment. Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055.

Our review of the record indicates the following undisputed facts: Lapeyre provided the cashier’s check which constituted the fund in issue; Lapeyre’s name appears as a “buyer” of the cashier’s check; Pinzak did not purchase, or provide any funds used to purchase the cashier’s check; the cashier’s check was made payable to “Edward J. Pinzak and Howard Isador, Trustee & Amalgamated Trust & Savings Bank of Chicago as escrow agent”; the account into which the check was deposited was opened in the names “Edward J. Pinzak, Trustee, and Amalgamated Trust and Savings Bank, Escrow Agent”; the cashier’s check was endorsed “Isl Edward J. Pinzak, Trustee, Isl Howard Isador, Trustee, Amalgamated Trust and Savings Bank, as Escrow Agent, by Isl Howard Isador, Isl William [unreadable]”; the Bank never received any escrow agreement or instructions; PCU did not secure a written commitment of financing for the project; no party other than Pinzak and Lapeyre claimed the fund; the only written agreement calling for Lapeyre to pay to Pinzak a finder’s fee if Pinzak was able to secure financing for the project was executed on November 26, 1979, some four weeks after Lapeyre forwarded to Pinzak the cashier’s check and accompanying letter of explanation, requesting him to establish the escrow account.

Our review of the record compels us to conclude that the trial court did not err in granting Lapeyre’s motion for summary judgment. The undisputed facts and the inferences to be drawn therefrom establish that the fund was provided solely by Lapeyre and was intended only for payment to PCU if and when it secured the loan commitment for Lapeyre’s real estate project. Notwithstanding Lapeyre’s unexplained failure to provide escrow instructions to the Bank, it appears clear that upon the failure of PCU to secure the loan commitment the fund should be returned to Lapeyre.

The purpose of interpleader is the determination of the right to a specific fund.

“An interpleader action is appropriate where several persons have claims to the same subject matter and such claims may result in multiple liability. (Ill. Rev. Stat. 1975, ch. 110, par. 26.2.) In Chicago Title & Trust Co. v. Czubak (1976), 42 Ill. App. 3d 349, 352, 356 N.E.2d 118, 120, we held that when there are conflicting claims to a deposited fund the stakeholder should place the money before the court to avoid acting at his own peril. In Lincoln Trust & Savings Bank v. Nelson (1931), 261 Ill. App. 370, 373, the appellate court held that the bank was entitled to file a complaint of interpleader where the ownership of the funds on deposit was in dispute.” (Drabik v. Lawn Manor Savings & Loan Association (1978), 65 Ill. App. 3d 272, 275, 382 N.E.2d 333, 335.)

In an interpleader action the court’s task is not to determine the sum total of a party’s liability, nor claims independent of the fund; rather, the court’s task is to determine rights to the particular fund which is the subject of the interpleader action. See Hebel v. Ebersole (7th Cir. 1976), 543 F.2d 14.

In determining whether summary judgment is appropriate, the court is to consider only evidentiary facts, and not conclusions of law. (Zannis v. Lake Shore Radiologists, Ltd. (1982), 104 Ill. App. 3d 484, 432 N.E.2d 1108.) Facts unrelated to the essential elements of plaintiff’s cause of action are not material, and regardless of how sharply controverted, their presence in the record will not warrant denial of a motion for summary judgment. Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 423 N.E.2d 578.

Here, Pinzak’s unsupported conclusory allegations that he was acting as Lapeyre’s “agent” and that the latter allegedly “induced” him to pay to PCU $52,500 from Pinzak’s own funds, “on behalf of Lapeyre,” and Pinzak’s contention that Lapeyre “should” have made the cashier’s check payable to him alone, are matters appropriately left for resolution in a separate proceeding. They are not relevant to the issue presented by the interpleader action, in that they do not establish a basis for a claim to this fund.

At oral argument before this court, the attorneys for both Pinzak and Lapeyre agreed that the counterclaims filed by their clients herein related solely to the award of the fund itself. Neither party attempts to establish liability on any other basis. Thus there remain no issues which require further determination in this action.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      The summary judgment order was entered on March 21, 1983. Pinzak’s Notice of Appeal was filed on April 14, 1983. On April 15, 1983, Pinzak filed a motion requesting the trial court to stay distribution of the fund pending Pinzak’s appeal. In an order entered on that same day denying Pinzak’s motion, the court noted that it had “been advised that the funds at issue were distributed to Louis Lapeyre on April 11, 1983.”


author: JUSTICE McGILLICUDDY

text:
    KATHLEEN TONARELLI, Adm’x of the Estate of George Tonarelli, Deceased, Plaintiff-Appellee, v. WILLIAM M. GIBBONS, Trustee, Defendant-Appellant.
    First District (3rd Division)
    No. 81—2995
    Opinion filed February 15, 1984.

      Lord, Bissell & Brook, of Chicago (Alvin E. Domash, Patricia F. Cross, and Hugh C. Griffin, of counsel), for appellant.
    John D. Hayes and Associates, Ltd., and Ash, Anos, Freedman & Logan, both of Chicago (John D. Hayes, Joseph A. Power, Jr., and George J. Anos, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Kathleen Tonarelli, as the administratrix of the estate of George Tonarelli, brought an action for the wrongful death of George Tonarelli against the defendant, the Chicago, Rock Island and Pacific Railroad Company, a corporation (Rock Island). George Tonarelli died when he drove a pickup truck onto the tracks at a railroad crossing and was struck by a Rock Island passenger train. The jury returned a $1,500,000 verdict for the plaintiff. The jury further found, under the doctrine of comparative negligence, that the decedent was 25% negligent. Accordingly, it reduced the verdict to $1,125,000. The trial court entered judgment on the verdict, and defendant appeals. The issues presented for review are: (1) whether the trial court erred in giving Illinois Pattern Jury Instruction (IPI), Civil, No. 5.01 (2d ed. 1971); (2) whether the evidence was sufficient to support the jury’s finding; (3) whether remarks in the plaintiff’s closing argument were improper; (4) whether the court erred in refusing to give an instruction on the taxability of the award; (5) whether the verdict was excessive as a matter of law; and (6) whether the doctrine of comparative negligence as applied in this case violated the defendant’s constitutional rights.

On September 22, 1969, George Tonarelli was driving south on Ridge Road in the western outskirts of Minooka, Grundy County, Illinois. The Rock Island train, consisting of a 15-foot-high diesel engine and six passenger cars, was traveling east at approximately 80 miles per hour. They collided at the Ridge Road crossing at 9:07 a.m. The truck left no skid marks on the pavement.

Ridge Road, which runs in a north-south direction, is a two-lane blacktop road with a speed limit of 35 miles per hour. Approximately 300 feet north of the crossing, a black and yellow sign warns southbound drivers that they are approaching a railroad crossing. A stop sign is posted about 400 feet north of the crossing at the intersection of Minooka and Ridge Roads. The two Rock Island tracks at the crossing run in an east-west direction, and begin a slight curve in a southwest direction about 300 feet west of the crossing. Whistle posts are stationed 368 and 363 feet west of the crossing. Two sets of red lights, designed to begin flashing 20 seconds before an eastbound train reaches the crossing, are mounted on stanchions in the northwest and southeast quadrants of the crossing. Each stanchion also supports a black and white railroad crossbuck warning sign and a rectangular sign advising that the crossing has two tracks. In 1969, 42 freight trains and eight passenger trains came through the crossing each day. The maximum train speed allowed by the railroad was 79 miles per hour.

No eyewitness to the accident testified at trial. The engineer of the train, Edward Johnson, died before the trial, and was dismissed as a defendant. The train fireman, Lee Horst, who rode in the engine at the time of the collision, was originally named a defendant. At the close of the plaintiff’s case, defendant’s motion for a directed verdict in favor of Horst was granted. Plaintiff did not object to the motion.

John Baerwald, a traffic engineer, testified as an expert for the plaintiff. He said that the number of cars and trains passing the Ridge Road crossing daily in 1969 made the crossing extrahazardous and justified the installation of gates. He stated that “severe sight restrictions” existed at the crossing, such as vegetation, trees, brush, weeds and the railroad embankment. He believed that these restrictions would not give a motorist approaching at 35 miles per hour “an adequate sight distance” to prepare to stop for a train reaching the crossing at 79 miles per hour.

Bernard Morris, acting chief railroad engineer for the Illinois Commerce Commission, testified as an expert witness for the defendant. He admitted that if the Ridge Road crossing were built in 1969 with Federal funds, gates would have been required. He further indicated that he would have recommended gates with flashing lights at a double-track crossing with sight distance restrictions, speed limits and a vehicular/train traffic product identical to those at the Ridge Road crossing.

Richard McTague, the Grundy County superintendent of highways, testified that in January 1969, he began to seek Federal funding to install gates for added protection at the Ridge Road crossing.

At his death, Tonarelli was 25 years old, with a life expectancy of 47.1 years. He owned a house, was married, and had two children. Tonarelli’s widow and son testified that he was a good husband and father. Two of Tonarelli’s former employers testified that he was an ambitious, hard-working individual with safe driving habits. Tonarelli had been paid $200 a month to clean offices at night and on weekends, and had earned about $160 a week for three weeks as a truck driver at Meade Electric Company in Joliet. Prior to that, he was paid less than $4 an hour to work in the warehouse at Norris Electric Company. He had told three of the witnesses that he wanted to be an electrician, and one witness testified that Tonarelli had left Norris Electric Company to pursue that goal. At the time of trial, electricians in Joliet earned $17.40 an hour, and truck drivers at Meade Electric Company earned from $7.33 to $9.46 an hour.

A verdict of $1,500,000 against the Rock Island was returned by the jury. They also found that, under the doctrine of comparative negligence, the decedent was 25% negligent. Therefore, the jury awarded $1,125,000 to the plaintiff.

The defendant contends that the trial court erred in giving IPI Civil No. 5.01, which reads as follows:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements:
1. The witness was under the control of the party and could have been produced by the exercise of reasonable diligence.
2. The witness was not equally available to an adverse party.
3. A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
4. No reasonable excuse for the failure has been shown.”

The giving of this instruction is within the sound discretion of the trial court, and a reviewing court will reverse only where a clear abuse of discretion appears of record. (Hicks v. Hendricks (1975), 33 Ill. App. 3d 486, 342 N.E.2d 144.) Before giving the instruction, the trial court must first determine that a party would in all likelihood produce the witness under the facts and circumstances of the case unless his testimony would be unfavorable. (Feigl v. Terminal R.R. Association (1975), 30 Ill. App. 3d 55, 332 N.E.2d 416.) Where a witness who has knowledge of the facts and is accessible to a party is not called by the party, a presumption arises that his testimony would be adverse to that party, and an instruction could or should be given to that effect upon request. Bassi v. Morgan (1965), 60 Ill. App. 2d 1, 208 N.E.2d 341.

In the case at bar, Lee Horst was the only witness alive at the time of trial with the knowledge of what occurred before and during the collision. The defendant contends on appeal that Horst, who lives in Colorado, was not within its control. However, the record indicates that defense counsel told the trial court and the plaintiff’s attorney while discussing a motion in limine that the defendant would call Horst to testify at trial. Additionally, the defense attorney told the jury in the opening statement that the evidence would show that prior to the collision, the flashing lights, a horn or whistle, and a bell were properly working, and that a southbound driver’s view was completely unobstructed. Ostensibly, the defense had planned to call Horst, the only living eyewitness, to testify to these matters. Moreover, counsel for the defense represented Horst at the opening of the trial and obtained a directed verdict in his favor at the close of plaintiff’s case. It is apparent that Horst was accessible to the defendant. If Horst had become unavailable subsequent to defense counsel’s indications that he would testify, defense counsel had the right to explain that to the jury; however, no attempt to do so was made. (See Petersen v. General Rug & Carpet Cleaners, Inc. (1947), 333 Ill. App. 47, 77 N.E.2d 58.) Since the defendant did not call Horst, there is a presumption that his testimony would have been adverse to the defendant.

Although the presumption does not apply if the witness was equally available to either party, a witness is not considered equally available to a party if there is a likelihood that he would be biased against that party. (See Comment, IPI Civil No. 5.01; Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865.) In the instant case, Horst had been sued by the plaintiff and had spent several years defending himself. In addition, he had been employed by the defendant for more than six years. Under these circumstances, there is a likelihood that Horst would have been biased against the plaintiff. We cannot say that Horst was equally available to the plaintiff and the defendant. We believe that the trial court did not abuse its discretion in giving IPI Civil No. 5.01.

The defendant next argues that the jury’s finding was not supported by the evidence and that, therefore, the trial court should have granted the defendant’s motion for a judgment n.o.v. In reviewing the trial court’s denial of a motion for a judgment n.o.v., we need only determine whether all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand, and this requires an even more nearly conclusive evidentiary situation than does the manifest weight of the evidence standard. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504; L. D. Brinkman & Company-Midwest v. National Sponge Cushion Co. (1979), 76 Ill. App. 3d 683, 394 N.E.2d 1221.) Expert testimony indicated that sight restrictions made the crossing extra hazardous. One of the expert witnesses testified that he would have recommended gates with flashing lights to adequately protect vehicular traffic there. We cannot say that the jury’s finding of 75% negligence on the part of the defendant is so contrary to the evidence as to reach the Pedrick standard. The trial court did not err in denying the motion for a judgment n.o.v.

The defendant asserts that references to its failure to put an eyewitness on the stand in the plaintiff’s closing argument were improper. While such references would constitute error if there were no indication that the witness was under the defendant’s control (see Wetherell v. Matson (1977), 52 Ill. App. 3d 314, 367 N.E.2d 472), a party’s failure to call a witness within its control is a proper subject of comment (Nakis v. Amabile (1981), 103 Ill. App. 3d 840, 431 N.E.2d 1255). As discussed above, the defendant’s opening statement and discussions relative to a motion in limine with the trial judge and plaintiff’s attorney indicated that the defendant would put an eyewitness on the stand. Furthermore, counsel for the defense represented an eyewitness, Horst, at trial. We believe that the witness was within the defendant’s control. Reference to the defendant’s failure to call the eyewitness in the plaintiff’s closing argument was not improper.

The defendant further contends that the plaintiff’s rebuttal argument was improper in that counsel mentioned the possibility of a passing westbound freight train having blocked Tonarelli’s view of the oncoming eastbound passenger train, where no evidence of a westbound train was presented at trial. In response to the defense attorney’s charge in closing argument that this was “simply a man trying to beat a train,” counsel for the plaintiff stated:

“[W]e don’t know whether this is a fact or not — but *** a freight train could have passed in that direction — which for George Tonarelli would block the view of an oncoming passenger train, thereby blindsiding him, we don’t know that, because we don’t have the evidence. The evidence hasn’t been produced.”

Attorneys are allowed broad latitude in drawing reasonable inferences and conclusions from the evidence. (Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34.) Here, each attorney suggested a possible explanation for the accident. The comment in rebuttal was no less a reasonable inference than was the assertion in the defendant’s clos- ' ing argument. Therefore, it was a proper response. See Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359.

The defendant next asserts that the trial court erred in refusing to give defendant’s instruction No. 6, which reads as follows:

“In reaching your verdict you will not increase the amount of the verdict by reason of federal, state or local income taxes since the amount awarded to plaintiff is not taxable income to plaintiff within the meaning of these tax laws.”

The defendant relies upon Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, which held that in a wrongful death action brought under the Federal Employers’ Liability Act (FELA) in an Illinois court, it was error to refuse such an instruction. The defendant contends that Liepelt overruled two Illinois cases (Hall v. Chicago & Northwestern Ry. Co. (1955), 5 Ill. 2d 135, 125 N.E.2d 77; Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 283 N.E.2d 230), which ruled that juries should not be instructed on the tax consequences of their awards. Hall and Raines were actions under the FELA. A similar argument was considered and rejected in Johnson v. Hoover Water Well Service, Inc. (1982), 108 Ill. App. 3d 994, 1009, 439 N.E.2d 1284, where the court stated that it agreed

“that Hall and Raines have been overruled by Liepelt with respect to Illinois cases arising under the FELA. However, the Liepelt decision does not, and could not, change the Illinois rule in purely State matters where, as here, no Federal issues are involved. We, therefore, find Hall and Raines still controlling here.”

In the instant case, plaintiff’s action was brought under the State wrongful death statute (Ill. Rev. Stat. 1975, ch. 70, par. 1 et seq.) and not under any Federal law. Therefore, we find that Liepelt has no application to this case, and the defendant’s argument is without merit. The trial court properly refused to give the defendant’s income tax instruction.

The defendant maintains that the verdict is excessive as a matter of law. An award of damages in a wrongful death action is not subject to scientific computation and thus is a matter for jury determination. (Dooley v. Darling (1975), 26 Ill. App. 3d 342, 324 N.E.2d 684.) The jury’s verdict is subject to the rule that where its findings are evidently the result of prejudice, sympathy or passion, it should be set aside. Dooley; Robinson v. Workman (1957), 15 Ill. App. 2d 25, 145 N.E.2d 265.

Here, the jury was properly instructed on damages in a wrongful death action. The jury had for consideration evidence of Tonarelli’s work habits, employment experience, ambitions, earning capacity and contribution to his family. Based on the evidence, the jury determined his future earning capacity and contribution. It awarded damages of $1,500,000, and reduced that amount by 25%, the proportion by which it found Tonarelli to be negligent. The resulting verdict was $1,125,000. From an examination of the record, we are convinced that the verdict finds support in the evidence and that the jury was not acting under an improper motive. As stated in 25A C.J.S. Death sec. 115 (1966),

“[tjhere is necessarily difficulty in fixing a pecuniary value on human life; the amount of compensation to be recovered must depend to quite an extent on the good judgment of the jury under proper instructions from the court. *** [T]he assessment of damages must be left to the sound, deliberate, fair, or intelligent judgment, or common or good sense, of the jury; and the jury may allow such damages as they deem reasonable in accordance with their common knowledge, experience, and good sense.”

Finally, the defendant contends that the application of the doctrine of comparative negligence in this case was retroactive, denying the defendant its vested right to a contributory negligence defense and its constitutional rights to due process and equal protection. Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, abolished the doctrine of contributory negligence and instituted the doctrine of comparative negligence. The supreme court held that “this opinion shall be applied *** to all cases in which trial commences on or after June 8, 1981.” (85 Ill. 2d 1, 28.) The instant trial began on July 9, 1981. The defendant’s assertions that the doctrine of comparative negligence was applied retroactively, and that his rights were violated thereby, are unfounded.

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

Affirmed.

McNAMARA and WHITE, JJ., concur.

      This action was originally filed on June 11, 1975. Prior thereto the Chicago, Rock Island and Pacific Railroad Company had filed a petition pursuant to provisions of section 77 of the Bankruptcy Act in the United States District Court for the Northern District of Illinois. Therefore, William M. Gibbons, Trustee of the property of Chicago, Rock Island and Pacific Railroad Company was substituted as party defendant.


author: PRESIDING JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DR. MARVIN ZIPORYN, M.D., Defendant-Appellant.
    First District (4th Division)
    No. 82—2770
    Opinion filed February 9, 1984.

      Mary A. Anast, and Lawrence Jay Weiner and Fredric Bryan Lesser, both of Weiner, Neuman & Spak, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lawrence R. Stasica, and Timothy J. Joyce, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Marvin Ziporyn, was convicted of indirect criminal contempt. The behavior deemed contemptuous occurred during a presentencing hearing when Ziporyn, a defense witness, after leaving the witness stand, walked over to prosecuting counsel and whispered a vile, obscene remark.

On appeal, defendant contends that (1) the trial court erred in finding his conduct contemptuous, (2) the trial court’s imposition of a sentence of periodic imprisonment and probation was an abuse of discretion, and (3) he was denied a fair trial.

We reverse the decision of the trial court.

Facts

Following a jury trial for murder in the circuit court of Cook County, a presentencing hearing was held in the courtroom of Judge Richard L. Samuels to determine if Eunice Lyles, the convicted felon, would be sentenced to death. Defendant, Dr. Marvin Ziporyn, a psychiatrist, testified as an expert witness for the defense as to the mental condition of Eunice Lyles.

Defendant was cross-examined by Assistant State’s Attorney Raymond Garza. Questioning by Garza was vigorous and aimed at impeaching defendant’s credibility and character. Following this extensive and rather demeaning cross-examination, defendant stepped down from the witness stand. As he did so, the court called two of the trial attorneys before the bench. The attorneys proceeded to engage in an off-the-record discussion with the court.

During this time, defendant walked over to Garza, who was seated at the prosecution counsel’s table, and attempted to gain his attention. When Garza declined to respond, defendant said in a whisper loud enough to be heard only by Garza and two spectators, “Garza, your mother sucks cock.” This vile epithet was brought to the court’s attention only when Garza jumped up, repeated the remark in a louder than conversational tone in front of the jury and all those present, and demanded that defendant be held in contempt of court.

In response to the aforementioned incident, the State filed a verified petition for contempt, alleging that defendant’s conduct was an affront to the court and to the administration of justice. At the initial hearing on the petition and the State’s motion for a rule to show cause, Judge Samuels, who had presided at the presentencing hearing, ordered the contempt cause transferred to the presiding judge instanter for reassignment in the interest of fairness to defendant. The contempt proceeding came on for hearing on August 13, 1982, before Judge Cornelius J. Houtsma, Jr.

The first witness for the State, Vadless Reese, a spectator and a relative of Lyle’s victim, testified that she heard defendant make the remark to Garza although he made it in a tone of voice she characterized as a whisper. The State’s second witness, Assistant State’s Attorney Edward Cozzi, testified that he “plainly” heard defendant make the offending remark in a tone of voice he described as neither loud nor a whisper.

Garza then testified that defendant made the remark “loud enough so that only I, not the jurors who were near, could hear it.” He stated that he did not know if any of the jurors heard the remark and that he did not ask any members of the jury if they had heard the remark. The State did not call any jurors present at the incident to testify as to whether or not they heard the remark.

The first witness for the defense was Judge Samuels, who testified that he neither heard the remark nor observed the incident. Judge Samuels stated that it was Garza who called the statement to the court’s attention when he repeated it in a louder than conversational tone in the presence of both the court and the jury. Judge Samuels testified that he did not notice any loud or boisterous conduct by defendant after defendant stepped down from the witness stand.

Defendant then testified on his own behalf. On cross-examination, he admitted making the offending remark but stated that he made it only after being provoked by an ethnic slur made to him by Garza after he had approached the counsel table and attempted to gain Garza’s attention. Defendant testified that when Garza “*** insulted my people with [obscenity], I replied with the most venomous insult back to him” and that the insult was directed to Garza personally.

Judge Houtsma found that the testimony of the two witnesses who had actually heard the offensive remark was very credible. Conversely, he found defendant’s testimony regarding the provocative slur by Garza incredible. Considering both the serious nature of the proceeding at which the conduct took place and the conduct itself, Judge Houtsma concluded that defendant’s conduct

“hindered or obstructed the court in its administration of justice, was in degradation of the authority and dignity of the court, and intended to bring the administration of justice into disrepute all beyond a reasonable doubt.”

On this basis, defendant was found guilty of indirect criminal contempt and sentenced to one year misdemeanor probation, five weekends of which were to be spent in the Cook County Department of Corrections. Defendant now appeals.

Opinion

Defendant was convicted of indirect criminal contempt. Contempt is generally defined as conduct calculated to embarrass, hinder or obstruct a court in its administration of justice, to derogate from its authority or dignity or bring the administration of law into disrepute. (People v. Siegel (1983), 94 Ill. 2d 167, 171, 445 N.E.2d 762, 764.) Civil or criminal contempt, categorized as either direct or indirect, is essentially sui generis and is largely dependent for its classification upon the nature of the punishment imposed. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 277, 438 N.E.2d 1273, 1280.) When the punishment for the contemptuous conduct is imposed for a punitive rather than for a coercive purpose, the contempt is characterized as criminal rather than civil. Kay v. Kay (1974), 22 Ill. App. 3d 530, 318 N.E.2d 9 (abstract of opinion).

Direct contempt has been defined as,

“*** one which takes place in the very presence of the judge, making all of the elements of the offense matters within the personal knowledge of the judge and tending directly to obstruct and prevent the administration of justice ***.” (People v. Howarth (1953), 415 Ill. 499, 508,114 N.E.2d 785, 790.)

Acts committed outside the physical presence of the judge but admitted in open court by the contemnor himself have also been held to constitute direct contempt. People ex rel. Chicago Bar Association v. Barasch (1950), 406 Ill. 253, 255, 94 N.E. 148, 149; People v. Patrick (1980), 83 Ill. App. 3d 951, 954, 404 N.E.2d 1042, 1045 citing People v. Berof (1937), 367 Ill. 454, 11 N.E.2d 936.

Indirect contempt occurs outside the presence of the court and is therefore dependent for its proof upon extrinsic evidence. (People v. Jashunsky (1972), 51 Ill. 2d 220, 223-24, 282 N.E.2d 1, 4.) If some of the essential elements of the contempt are not personally observed by the judge, so that he must depend on statements made by others for his knowledge about those essential elements, the accused must be afforded notice, a fair hearing and an opportunity to defend. (Johnson v. Mississippi (1971), 403 U.S. 212, 215, 29 L. Ed. 2d 423, 426, 91 S. Ct. 1778, 1780.) Conversely, direct contempt, because it is not dependent upon extrinsic proof, may be adjudicated and punished summarily without the filing of charges, pleadings or trial. People v. Thor (1972), 6 Ill. App. 3d 1045, 1049, 286 N.E.2d 769, 772.

Where, as here, defendant has been accused of indirect criminal contempt and where a punitive sanction is sought, the State has the burden of proving the accused guilty beyond a reasonable doubt. (People v. Edwards (1979), 69 Ill. App. 3d 626, 629, 387 N.E.2d 969, 971.) Whether defendant has been proven guilty of indirect criminal contempt beyond a reasonable doubt is a question of fact to be determined by the trial court, and its decision will not be disturbed unless it is against the manifest weight of the evidence or the record discloses an abuse of discretion. In re Estate of St. George (1981), 99 Ill. App. 3d 388, 390, 426 N.E.2d 6, 7.

Here, the allegedly contemptuous conduct occurred outside the presence of the court, i.e., defendant’s conduct was neither heard nor seen by the trial judge. Therefore, extrinsic evidence was necessary to substantiate the charged contempt. While it is true that the defendant subsequently admitted, in open court, making the offending remark, and while under some circumstances this could justify the court’s summarily punishing it as direct contempt, such is not the case here. Because Judge Samuels ordered the cause transferred for reassignment prior to trial, the judge presiding at the contempt trial had no personal knowledge of the allegedly contemptuous conduct. Thus, the addition of defendant’s admission did not bring all the essential elements of the contempt within the judge’s personal knowledge so as to obviate the need for extrinsic proof. The State was, therefore, not relieved of its burden of proving defendant guilty beyond a reasonable doubt.

The State’s burden, in the instant case, was not to prove that defendant made the offending remark, for the fact that he made it was undisputed. What the State must here have proved is that the remark, while reprehensible and totally inappropriate for a court of law, was, by legal standards, contemptuous. We find that the State failed to meet its burden.

Criminal contempt is a crime and, as such, consists of an intent and an act, both of which must be proved beyond a reasonable doubt. (City of Chicago v. Hart Building Corp. (1969), 116 Ill. App. 2d 39, 49, 253 N.E.2d 496, 501, cert. denied (1970), 398 U.S. 950, 26 L. Ed. 2d 290, 90 S. Ct. 1870.) The intent or mens rea required to sustain a conviction for criminal contempt has been rather circuitously defined as

“*** an intent ‘to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law in to disrepute.’ ”

People ex rel. Kunce v. Hogan (1976), 37 Ill. App. 3d 673, 683, 346 N.E.2d 456, 466, aff’d in part and rev’d in part on other grounds (1977), 67 Ill. 2d 55, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750.

This requisite state of mind has been more precisely but variously expressed by the courts as “intentional” (People v. Edwards (1979), 69 Ill. App. 3d 626, 629, 387 N.E.2d 969, 971), “with intent to undermine the court’s authority” (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 891, 364 N.E.2d 430, 435), “wilful” (People v. Douglas (1979), 73 Ill. App. 3d 520, 521, 392 N.E.2d 75, 77), “wilful and knowing” (People v. Page (1979), 73 Ill. App. 3d 796, 801, 392 N.E.2d 411, 413), “knew or should have known of wrongful conduct” (In re Magnes (1972), 8 Ill. App. 3d 249, 254, 290 N.E.2d 378, 392), and “with knowledge of the nature of one’s act” (In re Watts (1978), 66 Ill. App. 3d 971, 974, 384 N.E.2d 453, 455). It has also been held that whether contempt has been committed depends upon the act and not on the alleged intention of the offending party (People v. Haas (1981), 100 Ill. App. 3d 1143, 1148, 427 N.E.2d 853, 857), and that the failure of the prosecution to prove the state of mind of the defendant is not fatal because a contemptuous state of mind may be inferred from a contemptuous act (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 60-61, 364 N.E.2d 50, 52, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750).

The seeming disparity displayed by the aforementioned decisions would appear to make the task of discerning the mens rea necessary to support a finding of criminal contempt a formidable one. However, a closer examination of the existing law reveals that (1) a single, consistent mens rea may be readily distilled from what at first blush appear to be inconsistent mental states, and (2) whether proved affirmatively or inferred from the character of the offending act itself, intent must, in all cases, be present. People v. Roush (1983), 112 Ill. App. 3d 689, 691, 445 N.E.2d 1230, 1232.

“Intentional,” as used in the context of criminal contempt, appears to be synonymous with “volitional” or “voluntary” as opposed to “involuntary” or “unconscious.” (People v. Reeves (1974), 23 Ill. App. 3d 579, 582, 319 N.E.2d 567, 570.) “Knowingly” and “wilfully” are, in this context, equivalent in meaning such that conduct performed “knowingly” or “with knowledge” is performed “wilfully.” (People v. Albarran (1976), 40 Ill. App. 3d 344, 347, 352 N.E.2d 379, 382; Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5.) And, finally, where, as here, an offense is defined in terms of a particular result, a person is said to act knowingly when he is consciously aware that his conduct is practically certain to cause the result. People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442, 445.

The single, consistent mens rea that emerges from the distillation of those cases expressing the necessary intent for criminal contempt is essentially that which was set forth by the seventh circuit in United States v. Seale (7th Cir. 1972), 461 F.2d 345, 368:

“The minimum requisite intent is better defined as a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful.”

Here, conduct is wrongful if it embarrasses, hinders, or obstructs the court in the administration of justice. Applying this standard to the instant case, the issue then becomes whether the State showed by evidence or by reasonable inference drawn from the character of the offending act itself that defendant knew or should have known that the vile remark whispered to prosecuting counsel during the course of a hearing would embarrass, hinder, or obstruct the court in the administration of justice.

While we find that it would be obvious to any citizen that the vile language used by defendant has no place in a court of law or, for that matter, in polite society, we cannot conclude that defendant knew or should have known that the whispered remark would affront the dignity of the court or obstruct it in the administration of justice. The only way such knowledge reasonably could be imputed to defendant is if he could have foreseen the particular and actual effect of his conduct, for it is the effect, namely, Mr. Garza jumping up and loudly repeating the remark in front of the judge and jury, which embarrassed and obstructed the court.

As counsel for both sides point out, and as was pointed out by this court at oral argument, Mr. Garza had several options open to him by which he could have brought the offensive remark to the attention of the court. Given the serious nature of the presentencing hearing during which defendant whispered the remark, and the fact that the State was urging that the jury sentence the convicted murderer to death, the option that Mr. Garza chose, that of loudly repeating the offensive remark so as to disrupt the entire proceeding, was, to put it mildly, unforeseeable.

Because a contemptuous state of mind may be inferred from a contemptuous act (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 61, 364 N.E.2d 50, 52, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750), the issue of whether defendant had the intent requisite for criminal contempt cannot be resolved without determining if the act itself was contemptuous. In making this determination, we must bear in mind that, while intent may be inferred from proof of the surrounding circumstances and from the character of the act (People v. Siegel (1983), 94 Ill. 2d 167, 171, 445 N.E.2d 762, 764), inferences which constitute elements of the offense, such as the requisite state of mind, should be based directly on established facts and not pyramided upon intervening inferences. People v. Davis (1977), 50 Ill. App. 3d 163, 168, 365 N.E.2d 1135, 1138.

The facts adduced at trial show only that (1) defendant made the offending remark, (2) the presiding judge did not hear the offending remark nor witness any loud or boisterous conduct by defendant after he left the witness stand, (3) two spectators overheard the remark, (4) the remark consisted of vulgar, highly offensive language and (5) was directed at Mr. Garza, an officer of the court. The State offered no proof that any of the jurors heard defendant’s remark.

In In re Little (1972), 404 U.S. 553, 30 L. Ed. 2d 708, 92 S. Ct. 659, the United States Supreme Court drew a distinction between merely uttering a profanity and doing so in a loud and boisterous manner. (404 U.S. 553, 555, 30 L. Ed. 2d 708, 710-11, 92 S. Ct. 659, 660. ) In Little, a State court had held a defendant in contempt when he stated in an argument that the court was “biased” and had “prejudiced” his case. On certiorari, the court reversed, finding that there was no indication that defendant’s statements were uttered in a boisterous tone or in any way actually disrupted the proceedings.

“ ‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. *** [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.’ [Citation.] ‘Trial courts *** must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.’ [Citation.]” (In re Little (1971), 404 U.S. 553, 555, 30 L. Ed. 2d 708, 711, 92 S. Ct. 659, 660.)

Little has been followed in Illinois in People v. Roberts (1976), 42 Ill. App. 3d 604, 606-07, 356 N.E.2d 429, and People v. Hanna (1976), 37 Ill. App. 3d 98, 345 N.E.2d 179.

In Hanna, defendant had been found in contempt for a statement made out of the presence of the jury but before spectators in the courtroom and addressed to the trial judge. Relying on Little to reverse the trial court decision finding contempt, the Hanna court stated:

“The essence of the Little opinion seems to be that an isolated, disparaging statement not made in loud voice or boisterous manner but offensive to the sensibilities of the judge, although embarrassing to the court and derogating from its dignity, is not contempt.” (People v. Hanna (1976), 37 Ill. App. 3d 98, 99, 345 N.E.2d 179, 180.)

Similarly, this court has held that the mere use of street vernacular which does not cause an imminent threat to the administration of justice does not usually constitute contempt. People v. Wilson (1975), 35 Ill. App. 3d 86, 88, 341 N.E.2d 34, 36.

Here, the offensive remark was made not to the trial judge but to the assistant State’s Attorney. This distinction falls away, however, when we note that the assistant State’s Attorney and any attorney taking part in the judicial process is an officer of the court. The same tough standard should therefore be applied to him as is applied to the court itself. This standard dictates that defendant’s act, a whispered epithet not made in a boisterous manner and posing no imminent threat to the administration of justice but offensive to the attorney to whom it was directed, does not constitute contempt. An officer of the court engaged in trial, like the trial judge himself, must be able to “thrive in a hardy climate.”

In order for misconduct to constitute criminal contempt, there must be a union or joint operation of contemptuous act and criminal intention. (12 Ill. L. & Prac. Contempt sec. 21 (1983).) For the reasons stated above, we must necessarily find that no such union exists. In doing so, we stress that the vulgarity used by defendant, while not having been shown to satisfy the essential elements of criminal contempt, was thoroughly reprehensible and is in no way condoned by this court.

Our finding that the State failed to prove beyond a reasonable doubt that defendant’s act displayed either the mens rea or the actus reus requisite for criminal contempt makes it unnecessary for us to reach the issues of the appropriateness of the sentence imposed or the alleged denial of a fair trial.

For the reasons set forth, we reverse the decision of the trial court.

Reversed.

JOHNSON and ROMITI, JJ., concur.