author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUAREZ HOWARD, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2158
    Opinion filed February 14, 1984.
    Rehearing denied March 13, 1984.

      Kenneth L. Jones, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE STAMOS

delivered the opinion of the court:

Juarez Howard, Andre Howard and Michael Sommerville were charged by indictment with murder, armed robbery, burglary, armed violence, home invasion, and conspiracy. Andre Howard entered into a plea bargain with the State and Juarez Howard and Michael Sommerville were tried together. All charges except those for murder and armed robbery were dismissed at various stages of the proceedings.

The first two trials resulted in mistrials. Prior to the third trial, a ruling was made to sever the trials of Sommerville and Juarez Howard. Following a third jury trial, Juarez was found guilty of murder and armed robbery and was sentenced to concurrent terms of 30 years for murder and 15 years for armed robbery. Defendant Howard appeals.

Juarez Howard (hereinafter defendant), Andre Howard, Michael Sommerville, Randall Rhodes, and Thurston “Butch” Rogers planned to rob a drug dealer who Andre knew. Everyone except Andre participated in the robbery. The group was to meet back at Andre’s apartment after the robbery.

On October 25, 1979, defendant, Michael, Randy and Butch went to the drug dealer’s apartment. Randy was carrying a knife, the rest of the group had handguns. Defendant and Michael entered the apartment and initiated the robbery. When Michael let Randy and Butch into the apartment, the victim, Bert Lee, lunged toward defendant. Defendant, Michael and Butch fired at Lee, striking him several times. Defendant then grabbed a bag of marijuana off the table and the group fled in different directions.

Soon thereafter, the group met back at Andre’s apartment and went their separate ways.

Chicago police investigators O’Leary and Seery were assigned to investigate the shooting of Bert Lee on the morning of October 26. They questioned Andre Howard at his apartment. He directed the officers to an apartment where one of the assailants, Randall Rhodes, and two others, James Tate and Michael Hyler, were arrested and taken to the police station for questioning. Andre also gave the officers the telephone number of another of the assailants named “Speedy.” Speedy is defendant’s nickname.

The investigators determined that Speedy’s phone number belonged to Daisy and Adair Sheats of 2409 East 78th Street, Chicago. The Sheats are defendant’s aunt and uncle. The officers went to the Sheats’ residence and conducted a search of a bedroom in the apartment where two handguns were found. One of the guns proved to have been used in the robbery/ murder of Bert Lee.

At approximately 10 p.m. on October 26, O’Leary and Seery arrested defendant as he was walking down the street. He was taken to the police station for questioning. The State’s evidence concerning defendant’s interrogation revealed the following:

An hour after defendant’s arrest, at about 11 p.m. on October 26, defendant gave an oral statement to Investigator O’Leary. The substance of that statement was virtually identical to the earlier summation of facts. At the conclusion of his statement, defendant told O’Leary about his asthmatic condition and O’Leary promised to get defendant’s medicine from his family.

Assistant State’s Attorney Roy talked with defendant at 2 a.m. on October 27, at which time he gave Roy an oral statement. At the conclusion of the statement, Roy asked defendant if he would give his statement to a court reporter and he said that he would.

A court reporter arrived at the station at 6:15 a.m. on October 27. Written statements were taken from Michael Sommerville, Randall Rhodes, and Andre Howard. At about 1:30 p.m., defendant’s written statement was taken. Defendant later signed the statement.

Defendant’s version of the interrogation differed from the State’s in several respects. Defendant claims that the police withheld his asthma medicine until after he confessed. He also asserts that O’Leary put a paper bag over his head and played Russian roulette with him until he confessed.

At the outset of the trial which is the subject of this appeal, defendant filed motions to quash arrest, suppress statements and suppress evidence. The motion to suppress evidence concerned the guns discovered in a bedroom in the apartment leased by Daisy and Adair Sheats. The State’s version of the search as revealed by the evidence is as follows:

Officers O’Leary and Seery went to the Sheats’ apartment at 2409 East 78th Street, where they were greeted by Mr. Sheats. The officers identified themselves and informed Mr. Sheats that they were investigating a homicide. The officers asked if Speedy was there and Mr. Sheats replied that he was not but that the officers were welcome to search his bedroom. Officer O’Leary then showed Mr. Sheats a consent-to-search form and asked him to sign it, which he did. Mrs. Sheats was present and signed the form as a witness. The form mistakenly referred to the Sheats’ address as 2402, rather than 2409, East 78th Street. The officers entered the bedroom and found two guns under some clothes on the floor. One of the guns had been used in the shooting. The officers also found a jacket which resembled one worn by one of the assailants.

The Sheats testified at the hearing on the motion to suppress and denied that they had consented to the search. According to them, the officers simply asked where Speedy’s room was and then proceeded to search it. They denied having signed a consent-to-search form. On cross-examination, however, Mrs. Sheats conceded that she could not remember whether or not she had signed a form. Mr. Sheats made this same concession. Mrs. Sheats also testified that the signatures on the form looked like hers and her husband’s. The court denied defendant’s motions to suppress and to quash arrest.

At the close of the first trial, the jury began deliberations just before 4 p.m. on Thanksgiving eve. Just before 10 p.m., the trial judge stated that he was not going to allow the trial to extend through Thanksgiving Day if it was not necessary. The judge then expressed his intention to call the jury out and question them about the possibility of reaching a verdict. Both the State and defense counsel objected. The court stated that if any of the jurors said that a verdict was possible, it would sequester the jury for the night and resume deliberations the following day, Thanksgiving. The jury was called out and each juror was asked about the possibility of reaching a verdict if deliberations continued. Eleven jurors replied that a verdict was not possible and the foreman said he was unsure. The court then declared a mistrial.

Following the second trial, the jury began deliberating at 7:30 p.m. The jury was sequestered for the night at 10 p.m. and they resumed deliberations at 9:30 a.m. the next day. At 2 p.m., the foreman sent a note to the judge informing him that the jury could not agree on a verdict. The judge called the jury out, gave them the Prim instruction (see People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601), and ordered them to continue to deliberate. At 9:30 p.m., the court called the jury out and asked them if it was possible that they could reach a verdict. Eight jurors responded “no,” three said “yes,” and one said “maybe.” The court then declared a mistrial over the objections of the State and defense counsel.

Following a third trial, a jury found defendant Juarez Howard guilty of murder and armed robbery and he was sentenced to concurrent terms of 30 years for murder and 15 years for armed robbery. Following a denial of his post-trial motions, defendant instituted this appeal.

Defendant first contends that mistrials were improperly declared in his first two trials and that therefore, the State was barred on double jeopardy grounds from reprosecuting defendant on the same charges involved in the earlier trials.

Section 3 — 4(a)(3) of the Criminal Code of 1961 provides that a subsequent prosecution is barred if a former prosecution “[w]as terminated improperly after the jury was impaneled and sworn ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a)(3).) With respect to the declaration of a mistrial, a proper termination occurs when, in the court’s opinion, there is a manifest necessity for a mistrial to be declared or the ends of public justice would otherwise be defeated. (People v. Bean (1976), 64 Ill. 2d 123, 128, 355 N.E.2d 17.) Defendant contends that there was no “manifest necessity” for the declaration of a mistrial in the earlier trials and that therefore, a third prosecution was barred.

When in the court’s opinion a jury is hopelessly deadlocked, it is clearly proper to discharge the jury. (See People v. Mays (1962), 23 Ill. 2d 520, 524, 179 N.E.2d 654.) There is no fixed minimum time that a jury must be allowed to deliberate before a mistrial is declared, and the court must be accorded great latitude in exercising its informed discretion in this respect. (People v. Preston (1979), 76 Ill. 2d 274, 283, 391 N.E.2d 359.) People v. Mays (1962), 23 Ill. 2d 520, 524, 179 N.E.2d 654, and People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591, cert. denied (1947), 331 U.S. 811, 91 L. Ed. 1831, 67 S. Ct. 1201, illustrate the breadth of the court’s discretion in deciding when a mistrial is warranted by a hung jury. In Mays, the court declared a mistrial based on a hung jury after only four hours of jury deliberation. In DeFrates, a mistrial was declared after only 45 minutes of deliberation. In both cases, the reviewing courts deferred to the decision of the trial courts because there was no showing that the trial courts had abused their discretion.

Here, the jury in the first prosecution had been deliberating over five hours when they were called back into court. The judge asked the foreman if a verdict had been reached and the foreman said “No.” The foreman went on to state that he did not foresee the possibility of a verdict being reached any time in the “very near future.” The judge asked the foreman if a verdict could be reached “at any time” and the foreman replied “No.” The court proceeded to poll the jury to determine if any of the jurors felt that there was a reasonable probability that they might arrive at a verdict. Eleven of the jurors felt that a verdict was not possible and one was unsure. The court then declared a mistrial.

The jury in the second prosecution deliberated for over 14 hours. After 21/2 hours of deliberation the first night, the jury was called back into court. The foreman indicated that he was unsure how long it would take the jury to reach a verdict and the court ordered the jury sequestered for the night.

The jury resumed deliberations at 9:30 a.m. the next day. At 2 p.m., the judge received a note from the foreman informing him that the jury could not agree on a verdict. The jury was then called back into court and was given the Prim instruction. (See People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) The jury resumed deliberations until 9:30 p.m. At that time, the jury was called back into court and each juror was asked if there was a reasonable probability that a verdiet would be reached. Eight jurors replied “No,” three said “Yes,” and one said “Maybe.” The court then declared a mistrial.

In the second prosecution, we find absolutely no evidence of an abuse of discretion. In the first prosecution, the judge expressed his desire that deliberations not continue into the following day, which was Thanksgiving, but the judge made it clear that if the situation required, the jury would deliberate through Thanksgiving Day. The court’s intentions in this respect were evidenced by his statement that if any of the jurors felt that a verdict could be reached, the jury would be housed for the evening. Beyond the court’s statement concerning Thanksgiving deliberations, the only arguable evidence of an abuse of discretion is the fact that only five hours of deliberation were allowed before a mistrial was declared. But, as was noted earlier, the length of deliberations is not a factor in determining if a mistrial was improvidently granted. (See People v. Preston (1979), 76 Ill. 2d 274, 283, 391 N.E.2d 359; see, e.g., People v. Mays (1962), 23 Ill. 2d 520, 179 N.E.2d 654 (four hours); People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591 (45 minutes); see also, e.g., People v. Partee (1977), 52 Ill. App. 3d 178, 367 N.E.2d 188 (4 hours 45 minutes).) Under the totality of the circumstances presented, it does not appear that the courts in the first two prosecutions abused their discretion in granting mistrials. Those mistrials did not, therefore, serve as a bar to the prosecution presented here.

Defendant next contends that the trial court erred in failing to grant defendant’s motion to suppress items seized during the warrantless search of defendant’s bedroom. This contention consists of two issués. First, did Daisy and Adair Sheats consent to a search of their nephew’s bedroom and, second, did the Sheats possess the authority to give a valid consent to search the bedroom.

As to the first issue, the evidence at trial consisted of the testimony of Mr. and Mrs. Sheats and Officer O’Leary. O’Leary testified that he and two other officers went to the Sheats’ residence where they were met by Mr. Sheats. After being told that the officers were looking for an individual known as “Speedy” in connection with a homicide investigation, Mr. Sheats informed the officers that Speedy was his grandson (actually, he was a nephew) but that he was not home at the time. Sheats then pointed toward defendant’s bedroom and told the officers that they were welcome to search it. Officer O’Leary produced a consent-to-search form and asked Mr. Sheats to sign it. Sheats read and signed the form after commenting that defendant had caused him a lot of problems. Mrs. Sheats signed the form as a witness. The officers then proceeded to search the room where they found a weapon used in the robbery/murder and a jacket similar to that worn by one of the assailants.

Mr. and Mrs. Sheats denied that they consented to the search of defendant’s room. They testified that the officers simply asked which room was defendant’s and then proceeded to search it. On cross-examination, however, both Mr. and Mrs. Sheats admitted that they could not remember if they had signed the consent forms. Mrs. Sheats conceded that the signatures on the forms looked like hers and her husband’s. Mr. Sheats’ driver’s license and a piece of paper with Sheats’ signature were entered into evidence. The court found that Mr. Sheats’ signature was on the consent-to-search form and that Mr. and Mrs. Sheats had voluntarily consented to have defendant’s room searched. Defendant’s motion to suppress was denied.

It is apparent from the foregoing summation that the evidence was merely conflicting on the issue of whether Mr. and Mrs. Sheats consented to the search. Under these circumstances, the resolution of the question is left to the trial court whose decision will be accepted on review unless clearly unreasonable. (People v. Peterson (1959), 17 Ill. 2d 513, 514-15, 162 N.E.2d 380; see People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1; People v. Salgado (1980), 83 Ill. App. 3d 653, 656, 404 N.E.2d 432.) Defendant asserts that it is clearly unreasonable to believe that Mr. and Mrs. Sheats gave their unsolicited consent to a search of their nephew’s room. But it appears that there are several plausible reasons why the Sheats may have consented to the search: to prove they had nothing to hide; to prove that their nephew had nothing to hide; or simply to cooperate with the police. The primary task involved in ruling on defendant’s motion to suppress was to resolve the conflicting testimony and to determine the credibility of the witnesses. These are questions left largely to the discretion of the trial court. We find the trial court’s conclusion that consent to search was voluntarily given to be reasonable and not an abuse of discretion.

The second issue involved in this contention is whether the Sheats possessed the authority to give a valid consent to a search of defendant’s bedroom. In cases involving third-party consent to search, the standard which determines if the consent was authorized is the common authority test. (See United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993.) Under that test, consent to search may be given by “persons generally having joint access [to the searched premises] or control for most purposes.” (415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7.) In cases in which it is established that defendant resides with parents or close relatives, and the parents or relatives consent to a search of defendant’s bedroom, it should be presumed that there is a common authority over the bedroom sufficient to authorize the consent to search. (See People v. Daniels (1971), 16 Cal. App. 3d 36, 43-44, 93 Cal. Rptr. 628, 631-32.) This presumption may be overcome by evidence indicating that defendant had exclusive possession of the searched premises. See People v. Daniels (1971), 16 Cal. App. 3d 36, 43-44, 93 Cal. Rptr. 628, 631-32; see also People v. Nunn (1973) , 55 Ill. 2d 344, 352-53, 304 N.E.2d 81, cert. denied (1974), 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608; State v. Peterson (Mo. App. 1975), 525 S.W.2d 599, 608-09.

In Illinois, the cases involving third-party consent to search by a parent or relative have focused on whether defendant has established his exclusive possession of the searched premises. (See, e.g., People v. Stacey (1974), 58 Ill. 2d 83, 89-90, 317 N.E.2d 24; People v. Nunn (1973), 55 Ill. 2d 344, 351-52, 353, 304 N.E.2d 81, cert. denied (1974) , 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608; People v. Johnson (1974), 23 Ill. App. 3d 886, 892-93, 321 N.E.2d 38.) Specifically, two factors indicative of exclusive possession which were noted by the courts in Stacey, Nunn and Johnson were whether the room was locked in defendant’s absence and whether defendant gave explicit instructions not to allow anyone into the bedroom. (See People v. Stacey (1974), 58 Ill. 2d 83, 89; People v. Nunn (1973), 55 Ill. 2d 344, 352-53; People v. Johnson (1974), 23 Ill. App. 3d 886, 892-93.) Where the evidence fails to establish these two factors, the attack on the third-party consent to search has failed. See People v. Stacey (1974), 58 Ill. 2d 83, 89; People v. Johnson (1974), 23 Ill. App. 3d 886, 892-93.

In the instant case, the State’s evidence established that the Sheats leased the apartment in which defendant resided. The evidence also revealed that defendant had his own bedroom in the apartment which was never locked. There was no evidence that defendant had instructed the Sheats not to enter his bedroom in his absence or that he had left instructions not to allow anyone else into the bedroom. Under these circumstances, we conclude that the Sheats possessed the requisite authority to consent to a search of defendant’s bedroom and find that the third-party consent to search in this case was authorized.

Defendant next contends that the State’s “deliberate destruction of discoverable material” requires that his conviction be reversed.

Supreme Court Rule 412 provides in pertinent part that the State shall disclose to defense counsel “any written or recorded statements and the substance of any oral statements made by the accused * * * and a list of witnesses to the making and acknowledging of such statements.” (87 Ill. 2d R. 412(a)(ii).) In the instant case, defendant objects to the destruction of handwritten notes taken by an investigator on one occasion and by an assistant State’s Attorney on another.

The notes concerned oral statements that defendant made to the investigator and attorney. The investigator destroyed his notes after establishing that the substance of defendant’s oral statement was contained in a police report. The assistant State’s Attorney destroyed her notes after noting in a memo to her superior that the substance of defendant’s oral statement was in conformity with a written statement signed by defendant. The police report was turned over to defense counsel during discovery; the memo was work product, and, therefore, not discoverable. See 87 Ill. 2d R. 412(j)(i).

Defendant contends that the handwritten notes taken by the investigator and assistant State’s Attorney might have contained evidence that defendant was coerced into confessing. Defendant asserts that these notes were discoverable and that their destruction requires that defendant be granted a new trial. But defendant misapprehends the purpose of discovery. It is not, as defendant would have us believe, to provide evidence in defendant’s defense. Rather, it is to prevent the production of surprise evidence or testimony which would serve to prejudice defendant’s case. See People v. Herrera (1981), 96 Ill. App. 3d 851, 856, 422 N.E.2d 95.

In the instant case, the substance of the handwritten notes were contained in the police report and in defendant’s written statement, both of which defendant obtained in discovery. Thus the destruction of the notes did not and, indeed, could not have resulted in the type of surprise testimony which the discovery rules were designed to prevent. Moreover, the manner in which the investigator and assistant State’s Attorney confirmed that the substance of their notes was documented elsewhere prior to destroying the notes clearly conforms with the discovery rules. The rules require only that the substance of any oral statements be disclosed. (87 Ill. 2d R. 412 (a)(ii).) They do not require that every documentation of these statements be disclosed. (See People v. Herrera (1981), 96 Ill. App. 3d 851, 856, 422 N.E.2d 95.) Thus, by ensuring that the substance of their notes were documented elsewhere before destroying them, the investigator and assistant State’s Attorney acted in conformance with the discovery rules. For all the foregoing reasons, we find that the handwritten notes were not discoverable material and that their destruction does not entitle defendant to a new trial.

Defendant next contends that the erroneous admission of irrelevant hearsay evidence substantially contributed to his conviction.

One of the weapons used in the robbery/murder was discovered in the bedroom of an apartment on the second floor of an apartment building at 2409 East 78th Street, Chicago. This apartment was leased by Daisy and Adair Sheats. In an effort to draw a connection between the discovery of this weapon and defendant, the State subpoenaed Mr. and Mrs. Sheats to testify that defendant’s bedroom was the room in which the weapon was found. The Sheats, however, failed to appear to testify.

In lieu of the Sheats’ testimony, the State introduced several rental agreements into evidence. The rental agreements were between Adair Sheats and the owner of the building at 2409 East 78th Street, Chicago. The subject of the agreements was the second-floor apartment at that address. The yearly agreements covered the years 1972-1982.

The rental agreements covering the period 1972 to September 1978 named the defendant as an occupant of 2409 East 78th Street. The subsequent agreements named only Adair and Daisy Sheats as occupants. The agreements were entered into evidence under the business records exception to the hearsay rule.

Defendant’s objection to the admission of the agreements is that they do not prove what the State contends they prove. The trial court found that the agreements tended to prove that defendant was living at 2409 East 78th Street at the time the murder weapon was found. But the rental agreements did not name defendant as an occupant after September 1978. The weapon was discovered on October 27, 1979. Thus, the rental agreements fail to prove that defendant was living with the Sheats at the time the murder weapon was discovered.

In addition to this irrelevant evidence, however, there was competent evidence produced by the State that defendant lived with the Sheats on October 27, 1979. Investigator James O’Leary testified that on that date, Mr. Sheats told him that defendant lived with the Sheats. In addition, Assistant State’s Attorney Roy testified that defendant gave 2409 East 78th Street as his home address. Thus, even though the rental agreements were erroneously admitted, defendant was not prejudiced thereby. We find that any error in admitting the rental agreements was harmless beyond a reasonable doubt.

Defendant’s next contention concerns several allegedly improper actions by the prosecution in its case in chief and rebuttal closing argument. Defendant concedes that, individually, these actions are insufficient to warrant a new trial. However, relying on the authority of People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924, defendant asserts that the cumulative impact of these alleged errors warrants a new trial. We will address the instances of alleged error individually before discussing their cumulative impact.

Defendant first cites approximately 10 instances in which the prosecution allegedly attempted to elicit inadmissible hearsay from a State witness. During the examination of Investigator James O’Leary, the State elicited testimony that O'Leary interviewed several witnesses connected with the murder for which defendant was charged. After establishing, as to each witness, that an interview was conducted, the prosecutor followed up with a question designed to elicit the substance of the interviews. In each instance, objections were immediately made and sustained before the witness could respond. As to several other instances cited by defendant, objections were made to improper answers rather than improper questions. In each of these instances, the objections were sustained and the jury was immediately admonished to disregard the answers. In one other instance, defendant’s objection to a question was overruled.

It is not ápparent that the foregoing instances of alleged prosecutorial misconduct were error. Each question noted above concerned a separate conversation. The prosecution did not persist in attempting to elicit testimony which the trial court had previously ruled was inadmissible. Each objection to an improper question was immediately sustained by the court and no improper testimony was thereby elicited. The only improper testimony resulted from unresponsive answers by the witness, not from an improper question. For the foregoing reasons, we find that the State’s questioning did not prejudice defendant in any way.

Defendant next cites two attempts by the State to put before the jury evidence that arrest warrants were issued for Daisy and Adair Sheats because of their failure to answer a subpoena. An issue before the jury was whether defendant lived with the Sheats and they had been subpoenaed to testify on this question. Because of what it perceived as an attack on Investigator O’Leary’s testimony that defendant lived with the Sheats, the State attempted to bring out the fact that a warrant for the Sheats’ arrest had issued.

While questioning Investigator O’Leary, the State elicited the fact that the Sheats had been subpoenaed to testify. The State then asked if an arrest warrant had been issued. Defense counsel immediately objected and a sidebar ensued. The court ruled that the fact that a subpoena had issued was proper but that the fact that an arrest warrant had issued was not admissible. The State asked no further questions of the witness.

Two days after Investigator O’Leary testified, the State called Investigator Johnson. Johnson had apparently been assigned the task of serving the arrest warrant on the Sheats. In response to an inquiry by the State as to what his present assignment was, Johnson replied, “this morning I received an arrest warrant signed by —Defense counsel immediately objected and the court ordered a sidebar. When it became apparent to the court that Johnson’s answer concerned the Sheats, the court prohibited any further questioning on the matter and the State ceased that line of questioning.

The only possible error which might have resulted from the preceding questions involves the prosecutor’s query as to whether a warrant had issued for the Sheats’ arrest. The court held that it was proper to bring out the fact that a subpoena had been issued and Investigator Johnson was never able to reveal that he was assigned the task of serving an arrest warrant on the Sheats. Neither of these factors can be said to have prejudiced defendant. And as to the prosecutor’s question as to whether an arrest warrant had issued, any prejudice that may have resulted is minimal because the witness, Investigator O’Leary, was not permitted.to respond to the question. Upon examining this point of error, we find that the prosecution’s unanswered query did not constitute a material factor in defendant’s conviction and that, had the question not been asked, the jury would not have reached a different conclusion. See People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.

Defendant’s next citation of alleged prosecutorial error concerns two references by the State to a pretrial ruling by the court. While cross-examining Investigator O’Leary, defense counsel sought to attack the validity of the consent-to-search form by eliciting testimony that the form read “2402 East 78 Street,” rather than “2409.” The State objected to defense counsel’s line of questioning by noting that “2409 East 78th Street, you [the court] made that determination. *** You ruled on that motion.” In response to a second attempt by defense counsel to point out the discrepancy between the true address and the address on the consent-to-search form, the State objected and said “you [the court] ruled on the authority [to search].” Defendant asserts that the prosecution’s comments were improper attempts to put before the jury the result of a pretrial hearing, citing People v. Carter (1979), 73 Ill. App. 3d 406, 392 N.E.2d 188. A closer examination of these comments, however, reveals that they were necessitated by defense counsel’s improper line of questioning.

Defendant’s questioning concerning the accuracy of the address on the consent-to-search form was essentially an attempt to raise in the minds of the jury a doubt as to Investigator O’Leary’s authority to conduct a search of defendant’s bedroom. But any attack on the validity of a search must be brought in a pretrial motion where the opportunity to do so exists. (See People v. Kahl (1978), 63 Ill. App. 3d 703, 380 N.E.2d 487.) Once the court has ruled on the motion to suppress, that ruling is binding on the parties in a subsequent trial proceeding. See People v. Holland (1972), 9 Ill. App. 3d 536, 541, 292 N.E.2d 547, affirmed (1974), 56 Ill. 2d 318, 307 N.E.2d 380.

In the instant case, the trial court denied defendant’s pretrial motion to suppress. Defendant failed to raise the issue of the incorrect address in support of his motion and was thereby precluded from raising the issue at trial. (See People v. Malaszenko (1979), 76 Ill. App. 3d 1, 5-6, 393 N.E.2d 1350.) Moreover, even if defense counsel had been allowed to raise the issue at trial, it should have been raised in a written motion to suppress and argued before the judge, not the jury. See Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(c).

Defense counsel’s attempt to put before the jury the question of Investigator O’Leary’s authority to search was clearly improper. Thus, any response by the prosecution to defense counsel’s improper actions could only be characterized as invited comment. Moreover, upon examining the prosecution’s comments, we conclude that they were not so prejudicial as to warrant a new trial. See People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.

Defendant next cites numerous comments by the prosecution in closing argument which defendant characterized as improper attacks on defense counsel which inflamed the jury and which warrant a new trial. The comments ranged from accusations that defense counsel was distorting the evidence, to references to counsel as a “high-priced lawyer” hired to get defendant off, to statements that counsel’s arguments are something he has presented “in every murder that he defends in this building.”

It is clearly improper to make statements about the conduct of defense counsel solely to arouse the antagonism of the jury against him. (People v. McKnight (1979), 72 Ill. App. 3d 136, 146, 390 N.E.2d 379.) It is also error to accuse counsel of fabricating his case. (See People v. Lavoy (1980), 91 Ill. App. 3d 639, 644, 415 N.E.2d 487.) But not every attack on defense counsel entitles defendant to a new trial. Only when the remarks can be said to have substantially prejudiced defendant or when it can be said that were it not for the remarks, the verdict would have been different do the remarks constitute reversible error. (See People v. Miller (1981), 101 Ill. App. 3d 1029, 1039, 428 N.E.2d 1038.) In light of defendant’s admissions of guilt made to Michael Hyler, Investigator O’Leary and Assistant State’s Attorney Roy, not to mention his written confession, it is unlikely that the jury would have reached a different verdict had the attacks on defense counsel not been made, and we doubt that the comments played a significant role in the conviction. See People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68.

Examining defendant’s argument of cumulative error, it becomes apparent that only the attacks on defense counsel can properly be characterized as “error.” Because that error was insufficient to warrant a new trial, it follows that defendant’s cumulative error argument must also fail.

Defendant’s final contention concerns the presentence report. Defendant contends that the report was deficient in that it failed to include information required by statute. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—2(a)(1).) For this reason, defendant asserts that his sentence should be vacated.

It appears, however, that defendant failed to object to the deficient report at the sentencing hearing and to raise the issue in his post-trial motion. He has therefore waived the issue on appeal. See People v. Collins (1982), 109 Ill. App. 3d 1076, 1080, 441 N.E.2d 935; People v. Gornick (1982), 107 Ill. App. 3d 505, 515, 437 N.E.2d 892; People v. Lane (1980), 91 Ill. App. 3d 827, 830, 414 N.E.2d 1249.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and BERLIN, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    LEZAK & LEVY WHOLESALE MEATS, INC., Plaintiff-Appellant, v. ILLINOIS EMPLOYERS INSURANCE COMPANY OF WAUSAU et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—0028
    Opinion filed February 16, 1984.
    Chuhak, Tecson, Kienlen & Feinberg, of Chicago (William J. O’Connor, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini and James M. Hoey, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Lezak & Levy Wholesale Meats, Inc., filed suit against Illinois Employers Insurance Company of Wausau (Employers) and Prairie State Cold Storage, Ltd., alleging that from September 15, 1976, until April 30, 1977, it placed approximately 5,000 cartons of wholesome meats with defendant Prairie State for freezing and storage. Plaintiff further alleged that on May 15, 1976, defendant Employers issued to Prairie State its “all risk” or “multi-peril” policy of insurance against all risk of physical loss or damage to the cold storage facility and all loss of personal property in said facility, which was to remain in force until May 15, 1979. Employers subsequently issued an “additional endorsement” to the policy, covering “additional insureds” which included plaintiff. Thereafter, in June of 1977, plaintiff discovered that approximately 637 cartons of its meat held by Prairie State had spoiled and were unfit for human consumption.

In its answer to plaintiff’s amended complaint, Employers set forth as an affirmative defense the policy’s exclusion of loss resulting from the breakdown of cooling equipment and machinery. The relevant policy provides that it insures against all risks of direct physical loss to personal property “subject to the provisions and stipulations herein” provided. The policy then provides, under the bold-faced, upper case heading “EXCLUSIONS”:

“This policy does not insure under this form against loss caused by *** failure, breakdown or derangement of machines
or machinery ***
* * *
This policy does not insure under this form against loss caused by or resulting from power, heating or cooling failure
* * * tf

The policy further expressly provides that its provisions apply to “any person or organization named *** as an additional insured.”

Plaintiff’s response to Employers affirmative defenses stated that: “Plaintiff admits that the policy of insurance herein sued upon, provides the endorsement and exclusions contained in defendant’s affirmative defenses, but otherwise denies the allegations of defendant’s affirmative defense.”

Counts II and III of plaintiff’s complaint, which were directed against the bailees, were dismissed and the cause proceeded to trial on count I against Employers. After hearing the evidence, the trial court ruled, over plaintiff’s assertion to the contrary, that the damage was caused by the failure of refrigeration machinery which fell within the purview of the policy exclusion. Plaintiff also argued below, and now raises on appeal, that the insurance certificate which it had received was the basis of its claim, and constituted the contract which should prevail over the terms of the underlying policy. In rejecting this assertion, the trial court first noted that plaintiff had admitted in its response to defendant’s affirmative defense that its claim was bottomed upon the policy of insurance. The court went on to find that, assuming that the certificate and policy are to be read together, that the terms of those documents, when read as a whole, plainly exclude coverage. The court specifically held that the certificate was not an independent undertaking and agreement which would supersede and ■vitiate the terms of the underlying policy. We agree, and affirm the trial court’s ruling.

Elliot Levy, president of plaintiff corporation, testified at trial. Levy identified the certificate of insurance which he received from Employers as the sole document he received pertaining to the meat stored at Prairie State. The subject certificate contains on its face the term “all risk” which is accompanied by a box containing an “x”, and also contains the terms “excluding,” “earthquake” and “flood,” each of which is accompanied by boxes marked “x”. The following line provides for a deductible amount of $100 which applies to “all losses.” The certificate clearly states, directly under its heading, however, that:

“This is to certify that the insurance policies (described below by a policy number) written on forms in use by the company have been issued. This certificate is not a policy or binder of insurance and does not in any way alter, amend or extend the coverage afforded by any policy referred to herein.”

The certificate also reiterates that the policy, which is specifically identified by number, “is subject to all of the terms, exclusions and conditions of such policy *** during the term(s) thereof.” On cross-examination, Levy testified that he had read the foregoing certificate, and specifically the statement therein that the certificate is not a policy or binder of insurance and that coverage is subject to all the terms, exclusions and conditions set forth in the policy. Levy further admitted that he did not contact either Prairie State, to whom the policy had been issued, or Employers, to review the policy.

Relying principally on J. M. Corbett Co. v. Insurance Co. of North America (1976), 43 Ill. App. 3d 624, 357 N.E.2d 125, appeal denied (1977), 65 Ill. 2d 581, plaintiff now appeals to this court for a finding that the clear, exclusionary language in the policy of insurance is not binding because that specific language was not included in the certificate of insurance which was the only document in plaintiff’s possession. Corbett is factually distinguishable from the instant case, however, and we find plaintiff’s reliance on that case to be misplaced. In Corbett, a certificate of insurance was issued to the plaintiff contractor which evidenced insurance purchased by a subcontractor, pursuant to a contract between the parties, for plaintiff’s benefit. The certificate also set forth a contracted-for indemnity agreement in which the subcontractor had broadly agreed to indemnify the plaintiff for “any and all claims *** incident to the work being performed under the contract.” Since the subcontractor had agreed to procure insurance for plaintiff, the certificate created the impression that the insurance procured would parallel the indemnity agreement. The actual policy, however, excluded liability arising from the use of rental vehicles. The court found that the certificate appeared to create an exception to that exclusion, implying that coverage would be afforded for any liability arising out of the contract, particularly where the certificate made no reference to the terms, conditions and exclusions in the policy and did not state that its terms did not modify coverage. The court then resolved the ambiguity in favor of the person to be indemnified. In contrast to the certificate in Corbett, the certificate issued by Employers specifically stated that it was not part of the policy and that the terms of the policy were controlling. Nor do we find ambiguity when reading the two documents in conjunction with one another. The certificate describes the general variety of coverage purchased, provides that it is not the policy and that it does not amend or expand the terms of coverage provided in the policy. The policy to which the certificate refers plainly provides that the coverage which it grants is “subject to exclusions,” which it then sets forth in clear and unambiguous language under the emphasized heading “EXCLUSIONS.” These facts simply do not permit the conclusion drawn by the court in Corbett, that the insured could not have realized that its coverage was subject to exclusions, particularly where, as here, plaintiff admitted an awareness that separate exclusions were to be enunciated in the policy itself. Our decision comports with the general rule that a certificate of insurance does not constitute a contract between the parties. See United States Pipe & Foundry Co. v. United States Fidelity & Guaranty Co. (5th Cir. 1974), 505 F.2d 88.

There is no question but that the parties here recognized that they were required to refer to the policy in order to ascertain their rights and obligations.

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

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


text:
    JOSEPH MUFICH, Plaintiff-Appellee, v. HEISLER GREEN CHEMICAL COMPANY et al., Defendants (Henrotin Hospital, Defendant-Appellant).
    First District (4th Division)
    No. 83—1160
    Opinion filed February 16, 1984.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Phillip B. Allen and James J. Stamos, of counsel), for appellant.
    Susan E. Loggans & Associates and William J. Harte, Ltd., both of Chicago (William J. Harte, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This cause is before us by virtue of our granting of defendant Henrotin Hospital’s application for leave to appeal pursuant to Illinois Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)).

Plaintiff Joseph Mufich filed a multi count complaint against several defendants, count V of which was directed against the hospital, plaintiffs employer. In his complaint, plaintiff alleged that on December 28, 1981, while in the course of his employment as an engineer at the hospital he injured his foot while pouring, cleaning or inspecting a chemical container which contained a chemical manufactured by another defendant and which had been sold and distributed to the hospital by that defendant. On December 30, 1981, plaintiff went to the emergency room facility at the hospital for medical care or treatment and was there negligently treated by emergency room personnel. As a proximate result of the negligence he suffered personal injuries for which the hospital was liable.

Plaintiff also filed a claim under the Workers' Compensation Act.

The hospital moved for dismissal of the action (count V) under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619) because section 5(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)) provides that an injured employee’s exclusive remedy against his employer for injuries sustained in the line of duty as an employee is solely under the provisions of the Workers’ Compensation Act. The trial judge denied the motion to dismiss but, under Supreme Court Rule 308, entered the requisite order identifying the question of law involved as “whether an employee may maintain a cause of action at common law against his employer/hospital for medical malpractice in the treatment of a work-related injury.”

In denying the hospital’s motion to dismiss, the trial judge held that this was a situation in which the dual-capacity doctrine applied, that is, when plaintiff was treated at the hospital the relationship between him and the hospital was that of patient and hospital and not that of employee and employer. We disagree.

Section 5(a) of the Workers’ Compensation Act provides (Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a)):

“No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.”

Section 11 of the Act provides (Ill. Rev. Stat. 1981, ch. 48, par. 138.11):

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.”

Section 8(a) (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(a)) requires that an employer provide and pay for all the necessary first aid, medical and surgical services, and all necessary medical, surgical and hospital services thereafter incurred, limited, however, to that which is reasonably required to cure or relieve from the effects of the accidental injury.

In McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 423 N.E.2d 876, plaintiff was injured during the course of his employment at the Caterpillar Tractor Company and was treated at the plant at various times by licensed physicians employed by Caterpillar on a full-time basis. After filing a claim and receiving an award under the Workers’ Compensation Act, he sued Caterpillar and the doctors for alleged negligence in the diagnosis and treatment of his injury. The trial court dismissed as to Caterpillar and one doctor and entered summary judgment in favor of the other doctors. The appellate court, one judge dissenting (McCormick v. Caterpillar Tractor Co. (1980), 82 Ill. App. 3d 77 (Webber, J., concurring in part and dissenting in part)), held that section 5(a), the exclusive remedy provision of the Compensation Act, did not bar common law tort action against Caterpillar because, by furnishing medical services to its employees directly rather than having them provided at outside facilities by private medical personnel, Caterpillar had subjected itself to tort liability under the “dual-capacity” doctrine. The supreme court, with one judge dissenting, reversed the appellate court’s holding that Caterpillar could not be sued under the dual-capacity doctrine.

The court stated:

“The question for us is whether an employee whose injury arose out of and in the course of employment is barred by the exclusive-remedy provision of the Workmen’s Compensation Act from recovering damages in a negligence action against the employer-company for aggravated injuries sustained in medical treatment by employees of the same company.” McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 356.

The court, after quoting the above-set-out sections 5(a), 8(a) and 11, stated:

“The respondent here, in providing medical services to its employees, was meeting a duty imposed upon it as an employer under the Workmen’s Compensation Act. That it chose to provide the services directly rather than through physicians hired independently does not alter the fact that medical services were rendered in response to the Act in its capacity as an employer. Larson states that it is clear that dual capacity will not be found simply because an employer has a number of departments with separate functions and operations. 2A A. Larson, Workmen’s Compensation sec. 72.80 (1976).” 85 Ill. 2d 352, 358.

The court then discussed Duprey v. Shane (1952), 39 Cal. 2d 781, 249 P.2d 8, upon which the majority of the appellate court had strongly relied, and upon which plaintiff in the case at bar also does, saying:

“There the plaintiff was employed as a practical nurse at her employer’s clinic and was injured in the handling of a patient. She was treated by her employer, Dr. Shane, a chiropractor, and another chiropractor employed by him. She later filed a personal injury suit against both chiropractors, whose treatments, she claimed, had aggravated her injury. The court held that her suit was not barred by the exclusive-remedy provision in California’s workmen’s compensation act. Upon first observing that a compensation award would not bar a personal injury suit against an independent physician engaged by an insurance company, the court stated: ‘[I]t would seem to follow that the employee does not lose his right to such an action simply because the employer who happens to be a doctor treats the injury. In such event, the employer-doctor is a “person other than an employer” within the meaning of *** [the] Labor Code. *** In treating the injury Dr. Shane did not do so because of the employer-employee relationship, but did so as an attending doctor, and his relationship to *** [plaintiff] was that of doctor and patient.’ (39 Cal. 2d 781, 793, 249 P.2d 8, 15.) Here Caterpillar Tractor provided treatment on the basis of the employer-employee relationship and not as a treating physician.
We would observe also that in Dixon v. Ford Motor Co. (1975), 53 Cal. App. 3d 499, 507, 125 Cal. Rptr. 872, 877, it was said that California courts, in decisions subsequent to Du-prey v. Shane, refused to extend its doctrine to different factual contexts. The court cited a treatise on workmen’s compensation laws in California to the effect that ‘ “The Duprey case represented a unique situation in which the employer was also a doctor. Subsequent attempts to extend its holding were unsuccessful.” ’
The circumstances in Dixon strongly resemble those here. A widow brought a wrongful death action against the Ford Motor Company and two employees of its medical staff for what she claimed was negligent treatment of her husband in the employer’s first-aid station, which she said caused her husband’s death. The court held that the dual-capacity doctrine was inapplicable and that the exclusive remedy was under the workmen’s compensation statute. Among the cases cited by the court was Deauville v. Hall (1961), 188 Cal. App. 2d 535, 10 Cal. Rptr. 511. There, where an employer had furnished medical treatment to an injured employee, it was claimed that the employee should be permitted to file an independent action where his original compensable injury ‘was aggravated by the carelessness of an unqualified doctor’ and that the negligence of other medical personnel in diagnosing the employee’s injury ‘[gave the employer] a status separate and apart from that of the employer ***.’ (188 Cal. App. 2d 535, 540, 10 Cal. Rptr. 511, 514.) The court rejected this argument and, in holding that the workmen’s compensation act provided the claimant’s exclusive remedy, stated that ‘there is nothing in the Act or the authorities to warrant an action in a court of law against an employer for the latter’s negligence in providing *** medical treatment.’ 188 Cal. App. 2d 535, 540-41, 10 Cal. Rptr. 511, 514.” McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 358-60.

The court then referred to two other out-of-State decisions which refused to allow a recovery under the dual-capacity doctrine where the Compensation Act contained an exclusive remedy provision, and concluded:

“For the reasons given, we hold that the Workmen’s Compensation Act provided the sole means of recovery for the plaintiff’s compensable industrial injury. That portion of the judgment of the appellate court which held that Caterpillar Tractor could be sued under the dual-capacity doctrine is reversed.” 85 Ill. 2d 352, 360.

In the case at bar, Henrotin Hospital was only fulfilling the statutory requirement that it had as an employer to provide and pay for medical services which are necessary in case of an industrial accident. It was acting in its capacity as employer rather than in an unrelated capacity. The fortuitous circumstance that it was itself a hospital with complete medical facilities cannot change that fact. To require it, in order to be protected by the exclusive remedy provision of the Compensation Act, to set up a separate facility or to hire doctors to render medical attention to its employees injured in the course of their employment, would be to require it to do something it was already equipped to do without those unnecessary steps. The dual-capacity doctrine has no application to the facts in the case at bar.

The trial court’s denial of the hospital’s motion to dismiss based on the exclusive-remedy provisions of sections 5(a) and 11 of the Workers’ Compensation Act was error. Accordingly, it is reversed and the cause remanded with directions to grant the motion.

Reversed and remanded with directions.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE GOLDBERG

text:
    MARY JACKSON, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF LABOR, Defendant-Appellant (Commonwealth Edison Company, Defendant-Appellant).
    First District (1st Division)
    No. 83—0987
    Opinion filed February 14, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellant Board of Review of Illinois Department of Labor.
    Legal Assistance Foundation, of Chicago (Timothy Huizenga and Marilyn F. Johnson, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The Board of Review of the Department of Labor (defendant) denied the claim of Mary Jackson (plaintiff) for unemployment compensation benefits. The circuit court reversed this decision and allowed compensation to plaintiff. The defendant has appealed.

Plaintiff has been employed as a janitor by Commonwealth Edison Company (employer) since 1966. She was discharged on May 5, 1982, for drinking intoxicating liquor while at work. A hearing was held before a referee on July 28,1982. Plaintiff appeared pro se.

The remarkable fact about this hearing is that the testimony was principally given by a supervisor of industrial relations and a staff assistant for the employer. These people read into the record written statements or reports which had been given to them by various other employees. The substance of these reports is that in October of 1981 plaintiff was placed on probation for drinking on the job. In January of 1982 she was seen sitting at a table with a can of beer in her hand. On February 10, 1982, she was found asleep in a chair with a beer can on a table. On April 6, 1982, she was found drinking a beer with her lunch. She was verbally warned against drinking on the job. On May 5, 1982, she was found at work with a half of a can of beer and half of a bottle of vodka. Plaintiff was then discharged.

Plaintiff testified that she may have had possession of the cans because she collected used cans for aluminum. Although plaintiff received no written warning, she admitted that she had been verbally warned about drinking beer while at work and she had been discharged for this reason. However, before the referee, plaintiff denied that she was ever seen with vodka and said that she had nothing “but a beer can and some pop cans.” Plaintiff had worked for this same employer for 16 years.

There is a serious issue as to the competency of the testimony on behalf of the employer. All of this evidence is undoubtedly pure hearsay. (See People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223.) It has been repeatedly held that hearsay is “inadmissible in an administrative proceeding.” (Nendza v. Board of Review (1982), 105 Ill. App. 3d 437, 443, 434 N.E.2d 470; Spaulding v. Howlett (1978), 59 Ill. App. 3d 249, 251, 375 N.E.2d 437, and cases there cited.) No objection was made to this hearsay because plaintiff acted pro se. However, the testimony given by plaintiff was clear and direct and entirely competent.

We need not be concerned with the hearsay problem because plaintiff conceded she had been warned against drinking beer at lunch, although the warning was verbal rather than written. Also, plaintiff sent a grievance letter to her union stating she was terminated for drinking on the job. At the hearing on appeal to the circuit court, plaintiff frankly told the trial court she had received hospital treatment for the disease of alcoholism after her discharge. The order of the circuit court from which defendant appeals found that plaintiff’s conduct “does not constitute ‘misconduct’ within the meaning of” the pertinent statute “because such use did not adversely impact on plaintiff’s employer ***.”

Therefore, the issue here is one of law as to whether the violations by plaintiff of the company policy regarding drinking on the job constituted “misconduct connected with [her] work” under section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 432(A)).

Plaintiff argues there was no showing in this case that her conduct harmed the employer in any manner. Therefore she urges that, as a matter of law, there is no “misconduct connected with the work.”

Plaintiff cites two decisions of this court:

Roundtree v. Board of Review (1972), 4 Ill. App. 3d 695, 281 N.E.2d 360. There, an employee of a detective agency was disqualified from compensation after he falsely represented on his employment application that he had never been convicted of a felony. The court placed significant emphasis on the fact that the employee’s misconduct placed the employer at risk of being found guilty of a misdemeanor under a statute prohibiting a detective agency from hiring a convicted felon (see Ill. Rev. Stat. 1967, ch. 38, par. 201 — 10b(l)). Roundtree v. Board of Review (1972), 4 Ill. App. 3d 695, 696-97.

Granite City Steel Division v. Board of Review (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931, appeal denied (1979), 75 Ill. 2d 590. There, an employee removed a red warning tag from a large piece of machinery and activated the power switch. This misconduct endangered the lives of fellow employees and the property of the employer. Citing Roundtree, this court denied compensation. The court held that each case involving “ ‘misconduct connected with the work’ ” “must be determined in accordance with the facts involved.” 68 Ill. App. 3d 264, 269-70.

The defendant cites two cases:

Winklmeier v. Board of Review (1983), 115 Ill. App. 3d 154, 450 N.E.2d 353. There the employee was discharged for having filed with the employer’s insurance company 13 false and fraudulent claims for medical treatment for his wife. The court placed significant emphasis upon the potential for substantial monetary loss to the employer resulting from the filing of false claims and denied benefits. (115 Ill. App. 3d 154, 156.) The court stated, “[a]n employer’s financial loss is a relevant factor in determining if a claimant should be denied benefits.” 115 Ill. App. 3d 154, 156.

Robinson v. Department of Labor (1983), 118 Ill. App. 3d 986, 455 N.E.2d 567. There, the employee asked a personnel manager for time off to handle a personal problem. The employee was correctly told this request should be made to the foreman. However, the employee left work for an unexplained absence of three full days. The employee had previously been disciplined for being absent. 118 Ill. App. 3d 986, 987-88.

In our opinion none of these cases is dispositive or governing here. The misconduct of the employee in all four cases (Roundtree, Granite City, Winklmeier and Robinson) is far more serious and far more deleterious to the interest of the employer than is apparent in the case at bar. It seems to us that Granite City is the most useful of these four cases. We refer particularly to the clear statement by the court there requiring us to determine each case “in accordance with the facts involved.” Granite City Steel Division v. Board of Review (1979), 68 Ill. App. 3d 264, 270.

In our opinion, the conduct of the employee in the case at bar is far less egregious than in any one of these four cited cases. We do not believe it is productive in this type of case to examine decisions in other jurisdictions. The issue here is simply a question of ascertaining the correct meaning and significance of the statutory language above cited. We stress again, as the careful trial judge pointed out, that we are not dealing here with the right of the employer to discharge. We are dealing simply and only with the meaning of this Illinois statute with reference to payment of unemployment compensation to plaintiff.

The decisive point is the presence here of a strong and specifically expressed public policy. The Unemployment Insurance Act of Illinois, enacted in the interest of the public welfare', speaks out against “Poverty, distress and suffering.” (See Ill. Rev. Stat. 1981, ch. 48, par. 300.) The legislature of Illinois expressly stated that unemployment “has become a serious menace to the health, safety, morals and welfare of the people of the State of Illinois.” (Ill. Rev. Stat. 1981, ch. 48, par. 300.) The entire purpose of the legislature in enacting this type of legislation and in creating the machinery for unemployment compensation was to safeguard unemployed people from the burden of poverty. It follows necessarily that this statute must be most liberally construed. See Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 104, 390 N.E.2d 333; Be-Mac Transport Co. v. Grabiec (1974), 20 Ill. App. 3d 345, 354, 314 N.E.2d 242; Huggins v. Board of Review (1973), 10 Ill. App. 3d 140, 143, 294 N.E.2d 32.

Proceeding with this rule of liberal statutory construction, it seems to us that the phrase “misconduct connected with the work” is sufficient to require a demonstration of some harm, or at least some degree of potential harm, to the employer. In the instant case there is no showing of harm or possibility of harm of any kind to the employer resulting from the plaintiffs conduct. Apparently her services as a janitor were properly performed. Thus, we are impelled to conclude that the statute should be so construed as to permit payment of unemployment compensation to plaintiff.

The order appealed from is therefore affirmed.

McGLOON and CAMPBELL, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARSHAM ZAKARIAN et al., Defendants-Appellants. THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALEM SABA, Defendant-Appellant.
    First District (1st Division)
    Nos. 82—1901, 82—2111 cons.
    Opinion filed February 14,1984.

      Lionel I. Brazen and Manuel Rosenstein, both of Chicago, for appellants Arsham Zakarian and Wahi Karabit.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Arsham Zakarian, Wahi Karabit and Salem Saba were charged by indictment with two counts of felony theft and four counts of unlawful use of recorded sounds. One count of theft and two counts of unlawful use of recorded sounds pertained to cassette tapes and recordings allegedly owned by Thomas Wiggins. The remaining counts pertained to similar property allegedly owned by Stanley Rashid. After a bench trial, defendants were found guilty of felony theft of property owned by Wiggins and of two counts of unlawful use of unidentified sound recordings. The trial court held that the latter offenses merged into the theft conviction. Zakarian was sentenced to 30 months’ probation and one year periodic imprisonment and fined $5,000. He was also ordered to make restitution in the amount of $10,000. Karabit was sentenced to 30 months’ probation and fined $1,000. Saba was sentenced to two years’ probation.

In appeal No. 82 — 2111, Saba filed a notice of appeal, but has not filed a brief. Therefore, in the exercise of our discretion under Supreme Court Rule 343 (87 Ill. 2d R. 343), we dismiss his appeal. First Capitol Mortgage Co. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

In appeal No. 82 — 1901, Zakarian and Karabit contend their conviction for felony theft should be reversed for the following reasons: (1) the State failed to prove that any property, as defined in the Criminal Code of 1961, was taken from Wiggins; (2) intent to permanently deprive Wiggins of the use and benefit of his property was not proved beyond a reasonable doubt; and (3) the evidence did not establish that the property exceeded $150 in value. Defendants also contend they were improperly convicted of unlawful use of unidentified sound recordings because they were not indicted for that offense and were not proved guilty beyond a reasonable doubt. Additionally, they contend the trial court erred in merging the offenses.

We affirm in part, reverse in part, and remand.

The following evidence was adduced at trial. Stanley Rashid testified that the company for which he worked, Rashid Sales, represented the recording company EMI Greece and distributed Arabic and Greek recordings in the United States. On December 1, 1981, Rashid, Thomas Wiggins, two Chicago police officers and an attorney from the Records Industry Association of America drove to Zakarian’s tape and record store. Rashid entered the store alone. He asked Karabit for a copy of the recording, “You Are My Love,” sung by the Arabic artist Omkalsoum. The recording is one in a repertoire of songs copyrighted in the United States and imported and distributed here by Rashid Sales. Rashid also requested a tape of an Assyrian song sung by Walter Aziz and two other Assyrian songs from the album “Yala Ruppy and Assyrian National.” Thomas Wiggins produced the latter recordings. Karabit copied the requested songs onto cassette tapes and from other tapes in the store and charged Rashid $11. Rashid left the store and gave the tapes to the two police officers. Rashid also identified photographs of the store and pointed out a high-speed duplicating machine used to record the tapes he had purchased.

Thomas Wiggins testified he was engaged in the manufacturing and wholesale distribution of musical recordings. He identified a recording agreement and master purchase agreements signed by Walter Aziz, Jermain Tamraz and Evin Aghassi. Through these agreements, Wiggins obtained exclusive rights to manufacture, sell, distribute, license or otherwise dispose of music produced under contracts with the artists. Wiggins produced recordings by these artists and had the exclusive right to manufacture products derived from the master recording.

On December 1, 1981, he listened to tapes which Rashid had given to police and recognized songs sung by_Tamraz and Aziz. He had not given defendants permission to sell recordings by these artists. In the three-week period after December 1, Wiggins’ sales increased from $600 to $7,000. Defendants stipulated that Wiggins was president of the recording company and that he owned rights to distribute and sell the recordings in question.

Detective Frank Nelligan testified he seized racks of cassette tape recordings from Zakarian’s store. He believed he seized 69 racks containing about 1,000 tapes. While at the store he saw equipment for reproducing tapes, a Xerox machine, copies of labels, and a machine for encasing tapes in plastic. Nelligan thought all the tapes he seized were numbered and labelled.

Defendants Wahi Karabit and Arsham Zakarian testified through an interpreter. Karabit testified that he sold tapes to Rashid on December 1, 1981. He was not employed by his brother Zakarian, but was working at the store that day because his brother was ill. Karabit further testified he did not know who owned the rights to the songs he recorded for Rashid and did not understand copyright principles. On cross-examination, Karabit identified a photo of the cassette recorder used to copy tapes, but could not answer questions concerning the operation of the machine.

Arsham Zakarian testified he received some tapes from his brother in Iraq and others from a store in Detroit. Many of the tapes recorded for sale in his store were reproduced from these. However, most of the tapes sold in his store were ready-made tapes purchased from Detroit and were sold without being duplicated. Twenty-eight companies in Detroit operated businesses similar to his. Zakarian further testified that he never purchased merchandise from EMI or Ninevah Record Company and none of the tapes seized in his store were manufactured by either company. Zakarian was not aware of recording rights to the songs on the tapes sold by his brother.

On cross-examination, Zakarian testified that he copied about 100 tapes each month. He used the Xerox machine to copy flyers and attached the flyers to the tapes. Total monthly sales of copied tapes amounted to $300 to $400. Most of the tapes seized belonged to him and were never duplicated for sale.

Defendants first contend they were not proved guilty of theft beyond a reasonable doubt where the State failed to prove that any property was taken from Wiggins. Indeed, there is no evidence that cassette tapes were taken from Wiggins’ possession by defendants. Our review of the record reveals that theft of tapes was not and could not have been the ground for defendants’ convictions. Rather, the basis for the convictions was the invasion of Wiggins’ exclusive recording rights. The State argues that by invading Wiggins’ recording rights, defendants deprived Wiggins of his royalties. The State maintains that the right to royalties is a thing of value and this is property which may be the subject of theft.

At common law, only tangible personal property could be the subject of larceny. Written documents such as deeds and contracts and things growing on, affixed to, or found on land partaking of the nature of realty were not considered property for the purpose of larceny. (W. LaFave & A. Scott, Criminal Law sec. 87, at 633 (1972).) Electrical energy and water power were also excluded subjects of larceny under common law. (People v. Menagas (1937), 367 Ill. 330, 11 N.E.2d 403.) By legislative enactment, things not embraced by larceny under common law are considered property for the purpose of our theft statute. Section 15 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 15 — 1) provides:

“As used in this Part C, ‘property’ means anything of value. Property includes real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found on land, or part of or affixed to any building; electricity, gas and water; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or models thereof which constitute, represent, evidence, reflect or record a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention, or improvement.”

Our research has not revealed, nor have the parties cited, any cases addressing the issue of whether rights to sound recordings are property subject to theft. Cases discussing the types of property embraced by our theft statute are scarce. However, earlier cases state that the test is not whether the property is corporeal or incorporeal or tangible or intangible. Rather, it is whether the property is capable of being taken and carried away by someone other than the owner. (Menagas; Woods v. People (1906), 222 Ill. 293, 78 N.E. 607.) In Menagas, the court held that electricity was personal property. Quoting from Woods, wherein illuminating gas had been held to be property subject to larceny, the court noted the characteristics of electricity which caused it to be included in the definition of property:

“ ‘There is nothing in the nature of gas used for illuminating purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of merchandise bought and sold like other personal property, susceptible of being severed from a mass or larger quantity and of being transported from place to place.’ That test is applicable to electrical energy, for it will be seen *** that electrical energy may likewise be taken and carried away. It is a valuable commodity, bought and sold like other personal property. It may be transported from place to place. While it is intangible, it is no less personal property and is within the larceny statute.” (People v. Menagas (1937), 367 Ill. 330, 338, 11 N.E.2d 403, 407.)

The principles enunciated in Woods were also relied on in Selman v. State (Alaska 1965), 406 P.2d 181. In Selman, the court held that natural gas was included in the meaning of the word “goods” used in the larceny statute because gas was not intangible but had substance and was capable of being possessed.

It should be noted, too, that our statute lists only items which may be physically possessed and carried away. Section 15 — 1 specifies documents, things partaking of the nature of realty, and items of an informational nature or copies thereof. It has also been stated that only property which is detectable or measurable by the senses or mechanical means (52A C.J.S. Larceny see. 2(e), at 408 (1968)) or property which can be moved (W. LaFave & A. Scott, Criminal Law sec. 87, at 633-34 (1972)) can be the subject of theft.

Applying the aforementioned principles to the case at bar, we find that the right invaded by defendants is not property as defined in section 15 — 1. While we do not dispute the State’s contention that the right has intrinsic value, we nonetheless find that the right does not possess the characteristics of property defined in section 15 — 1. The right is not a thing which may be taken and carried away, transported from place to place or moved. It cannot be detected by the senses or measured by mechanical means. We, therefore, find that the State failed to prove beyond a reasonable doubt that property was taken from Wiggins. Consequently, defendants’ convictions for theft are reversed.

Defendants further contend they were erroneously convicted of unlawful use of unidentified sound recordings because they were not indicted for that offense. However, indictment for one offense serves as an indictment for all included offenses even though included offenses are not specified in the indictment. (People v. Vasquez (1981), 97 Ill. App. 3d 1142, 424 N.E.2d 42; People v. Evans (1980), 87 Ill. App. 3d 714, 409 N.E.2d 562.) Thus, the issue is whether unlawful use of unidentified sound recordings is an included offense of unlawful use of recorded sounds.

Section 2 — 9 of the Criminal Code of 1961 provides in part:

“ ‘Included offense’ means an offense which
(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9.)

In other words, all the elements of the included offense must be part of the greater. People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289, citing People v. King (1966), 34 Ill. 2d 199, 215 N.E.2d 223.

Defendants were charged under two sections of the unlawful use of recorded sounds statute. These sections provide:

“(a) A person commits unlawful use of recorded sounds when he:
(1) Intentionally, knowingly or recklessly transfers or causes to be transferred without the consent of the owner, any sounds recorded on any sound recording with the purpose of selling or causing to be sold, or using or causing to be used for profit the article to which such sounds or recordings of sound are transferred.
(2) Intentionally, knowingly or recklessly sells, offers for sale, advertises for sale, uses or causes to be used for profit any such article described in subsection 16 — 7(a)(1) without consent of the owner.” (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 7(a)(1), (a)(2).)

The statute under which they were convicted provides:

“A person commits unlawful use of unidentified sound recordings when he intentionally, knowingly, recklessly or negligently for profit manufactures, sells, distributes, vends, circulates, performs, leases or otherwise deals in and with unidentified sound recordings or causes the manufacture, sale, distribution, vending, circulation, performance, lease or other dealing in and with unidentified sound recordings.” Ill. Rev. Stat. 1981, ch. 38, par. 16 — 8(a).

We have not discovered, nor have the parties cited, any cases construing the statutes in issue. Our goal then is to ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674; People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) The best evidence of the legislature’s intent is the language of the statute itself. (Robinson; Haron.) The evil to be remedied and the object to be attained may also be considered. People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31.

Clearly, the intent of the legislature in enacting sections 16 — 7 and 16 — 8 was to prohibit and punish sound recording piracy. A cursory examination of the relevant portions of section 16 — 7 indicates that the legislature intended to set out two separate offenses: transferring sounds and selling or using the items to which the sounds were transferred.

Proof of a violation of section 16 — 7(a)(1) requires proof that a person intentionally, knowingly, or recklessly transferred or caused the transfer of sounds, that the purpose of the transfer was the sale or use for profit of the article to which sounds were transferred, and that the transfer occurred without the-owner’s consent. Owner is defined as one who, “owns the master sound recording on which sound is recorded and from which the transferred recorded sounds are directly or indirectly derived.” (Ill. Rev. Stat. 1981, ch, 38, par. 16— 7(b)(2).) The latter element necessarily requires proof of ownership.

In interpreting section 16 — 7(a)(2), we are persuaded by the decision of the Florida Supreme Court in State v. Gale Distributors, Inc. (Fla. 1977), 349 So. 2d 150, wherein the court interpreted a statute similar to that in the case at bar. Section 543.041(2) of the Florida statutes provides:

“It is unlawful:
(a) Knowingly and willfully and without the consent of the owner, to transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with the intent to sell or cause to be sold for profit such article on which sounds are so transferred.
(b) To sell any such article with the knowledge that the sounds thereon have been so transferred without the consent of the owner.” (Fla. Stat. sec. 543.041(2) (1972).)

The court held that where subsection (b) incorporated by reference subsection (a), for the purpose of determining the articles prohibited from being sold, a violation of subsection (b) required proof of all the elements of subsection (a). 349 So. 2d 150, 153-54.

Here, section 16 — 7(a)(2) prohibits the sale or use of articles described in section 16 — 7(a)(1) and thus the elements of that offense must be proved to establish a violation of section 16 — 7(a)(2). Furthermore, the State must prove that a person intentionally, knowingly or recklessly sold or used or caused the sale or use of the article without the consent of the owner.

Regarding the elements of section 16 — 7, the trial court found it necessary for the State to prove that the recording from which the sounds were transferred was an identified sound recording. We believe this inference is reasonable in view of the differences between section 16 — 7 and section 16 — 8. A defendant dealing with identified sound recordings is put on notice that others may have rights to the recordings and is in a better position to attain copyright or ownership information pertaining to those recordings. His activities may be considered more culpable than those of another dealing with unidentified sound recordings who do not have similar information at hand. This theory is supported by the classification of crimes: unlawful use of recorded sounds under section 16 — 7 is a Class 4 felony (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 7(c)), but unlawful use of unidentified sound recordings is a Class B misdemeanor (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 8(b)).

Section 16 — 8 prohibits dealings in and with unidentified sound recordings. An unidentified sound recording is defined as, “a sound recording without the actual name and full and correct street address of the manufacturer, and the name of the actual performers or groups prominently and legibly printed on the outside cover or jacket and on the label or such sound recording.” (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 7(b)(5).) It is established by proof that a person intentionally, knowingly, recklessly or negligently, for profit, manufactures, sells, or uses unidentified sound recordings.

Comparing the elements of the aforementioned offenses, we find that section 16 — 8, unlawful use of unidentified sound recordings, is an included offense of section 16 — 7(a)(2). Section 16 — 7(a)(2) requires proof of a transfer, a sale or use for profit, ownership, lack of the owner’s consent to the transfer and sale, and identity. Proof of these elements would necessarily include proof of the elements of section 16 — 8, namely, that a person manufactured, sold of used an unidentified recording for profit. Even though section 16 — 8 is not phrased in the same manner as section 16 — 7(a)(2), the prohibited activities may nonetheless be construed in this manner.

However, section 16 — 7(a)(1) only prohibits the transfer of sounds for the purposes of a sale or use for profit. Other acts may establish a violation of section 16 — 8 and it would be possible to commit unlawful use of unidentified sound recordings the lesser offense, without committing unlawful use of recorded sounds under section 16 — 7(a)(1), the greater offense. Therefore, section 16 — 8 is not an included offense of section 16 — 7(aXl). People v. Rudd (1980), 90 Ill. App. 3d 22, 412 N.E.2d 982.

Third, defendants contend they were not proved guilty of unlawful use of unidentified sound recordings beyond a reasonable doubt.

However, the State proved that defendants sold or caused the sale of sound recordings for profit. Thus, the State proved the elements of section 16 — 8 beyond a reasonable doubt.

Because of our decision, we need not address the other issues raised by defendants. We also deny the State’s request for costs and fees in defending this appeal.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded for resentencing for the violation of section 16 — 8.

Judgments affirmed in part, reversed in part; cause remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.