author: PRESIDING JUSTICE WEBBER

text:
    ARCHER DANIELS MIDLAND COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Fourth District
    No. 4—83—0297
    Opinion filed November 16, 1983.

      Wayne L. Bickes, of Rosenberg, Rosenberg, Bickes, Johnson & Richardson, Chartered, of Decatur, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Vincent W. Moreth, Assistant Attorney General, of counsel), for respondents.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Petitioner, Archer Daniels Midland Corporation (ADM), appeals from an order of the respondent, Illinois Pollution Control Board (Board), which found it to be in violation of certain provisions of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1001 et seq.) and of regulations promulgated thereunder. The Board imposed a fine of $40,000.

The case proceeded on a complaint of the Illinois Environmental Protection Agency (EPA), which, after amendments, contained seven counts, all of which related to ADM’s discharge of contaminated storm water. Process waste water is not involved. All of the alleged violations stemmed from what in the record is called ADM’s West Plant.

The ADM West Plant is located in the far northeastern section of Decatur and is located upon approximately 25 acres of land. The facility is a soybean extraction plant, a corn germ extraction plant, and a vegetable oil refinery. Products manufactured there include soybean oil, soybean meal, corn germ meal, and corn oil.

A small stream meanders from the area of the West Plant into Lake Decatur, the municipal reservoir of that city, which is about two miles south of the plant. At its southern terminus just before emptying into Lake Decatur the stream has been dammed to create what is called Homewood Fishing Club Lake, an artificial body of water covering about two acres to a depth of five to six feet. The Homewood Fishing Club was incorporated in 1914 and about 16 residences have been erected around its lake. The record discloses that approximately 30 persons lived there at the time of the hearing. The area between the ADM West Plant and the Homewood Fishing Club is heavy industrial, containing among other things railroad rights of way, railroad switching yards, and a public high school. It is the contamination of this stream and the Homewood Fishing Club Lake which is at issue here.

The complaint alleged that on six named occasions, July 20, 1975; June 20, 1978; June 30, 1978; July 1, 1979; January 7, 1979; and July 28, 1979, ADM permitted effluents from its West Plant to be discharged into the stream thus contaminating the Homewood Fishing Club Lake; other allegations were that a fish kill had occurred as a result of the contamination for which the Board ultimately charged ADM $1,008; and that at various times during the period involved, the last being between April 10, 1981, and September 20, 1981, ADM had violated the provisions of its National Pollutant Discharge Elimination System (NPDES) permit.

In the record ADM did not seriously contest the violations; rather it contended that they were the result of accidents, that the pollution came from the intervening territory between it and the Homewood Fishing Club Lake, and that no feasible solution to its problem existed.

As has been indicated, only storm water is involved in this case. ADM’s storm water becomes contaminated when rain flushes spilled raw grain or processed grain products into its storm water collection system.

Several witnesses explained how ADM’s storm water collection system operated. Rainfall is collected at the West Plant by storm sewers located in various areas throughout the plant, which themselves hold 300,000 gallons. In 1975, flow from these sewers entered a wet well containing multiple pumps. In dry weather, flow to the wet well was pumped to a process water treatment facility. Following treatment, flow from the process water treatment facility discharged into the system of the Sanitary District of Decatur. In wet weather, storm water was pumped to a 200,000 gallon tank referred to as a storm water clarifier. The tank was originally designed to clarify the water that it held. Overflow from the clarifier would discharge into the Homewood tributary. This system did not operate according to design, and the function of the clarifier was changed to that óf a retention tank in 1976. A “first flush” system was then employed. The first water to drain from the plant during a rain is generally the most polluted. Under the first flush system, the clarifier retains as much of this initial storm water as its capacity will allow. The collected water is then discharged to the process water treatment system. Whenever overflow or bypassing of the storm water clarifier occurs, the water is discharged into the Homewood tributary. A one-inch rain was estimated to generate approximately 700,000 gallons of storm water runoff.

In 1975, ADM’s West Plant was issued its first NPDES permit for discharge of contaminated storm water. The NPDES permit included a schedule for compliance calling for construction of facilities to achieve compliance with effluent limitations by June 30, 1977. On June 18,1980, the EPA reissued an NPDES permit for the West Plant with an effective date of July 18, 1980. Effluent limitations and monitoring conditions for discharging contaminated storm water were specified in the reissued NPDES permit. pH was to be maintained between 6.0 and 9.0. Limitations were placed upon various contaminants including Biochemical Oxygen Demand (BOD), suspended solids, and oil and grease. Monitoring results were required to be recorded by ADM on separate monthly Discharge Monitoring Reports and submitted quarterly to the EPA.

BOD is a measure of the oxygen removal effect that decaying organic matter has on water. Organic material such as soybean meal and soybean oil is high in BOD and has an adverse effect on water quality as it decomposes. Bacteria in the water respond to organic matter by utilizing it as a food source. When excessive amounts of organic matter are present in the water, the bacteria utilize oxygen at a rapid rate as they feed, depleting or even eliminating the oxygen supply available for other aquatic life.

ADM conceded that on five separate instances it discharged contaminated effluent into the Homewood tributary.

On July 20, 1975, the clarifier tank overflowed for several hours as a result of a 21k inch to 3 inch rainfall. After this incident ADM employed its first flush system.

On June 22, 1978, the first flush of a heavy rain drained directly into the Homewood tributary. ADM was in the process of installing larger and more efficient pumps to the holding tank at the time the rain began. As a result, none of the initial water was pumped into the holding tank.

On January 7, 1979, the pumps to the holding tank failed; water standing in the lines to the pumps froze. The level of contaminated water in the holding tank rose and a discharge of effluent resulted. After the incident, ADM devised a method of draining the lines to the pumps so that water would not freeze there.

On July 28, 1979, the clarifier holding tank overflowed during a heavy rain. An employee failed to shut off the pump when the holding tank had filled. The material floating at the top of the tank is the most highly contaminated of the retained water. It was this water that flowed into the Homewood tributary. An automatic shut-off system was installed after this discharge.

Another incident occurred on June 26, 1981. The holding tank was being emptied into the process water treatment tank and the debris and materials at the bottom of the holding tank were being cleaned out. A discharge hose was run from the bottom of the tank into a drain that was thought to lead to the process water treatment facility. Instead, the drain emptied into the storm water system which, in turn, flowed into the Homewood tributary. The drain was later filled with concrete so as to avoid repetition of a similar incident.

In addition, letters from ADM to the EPA showed that on July 3, 1976; July 19, 1976; January 11, 1977; May 4 through 6, 1977; June 10, 1978; June 30, 1978; and July 1, 1978, ADM allowed discharges of contaminated storm water from their holding tank to occur. Each letter was sent by ADM notifying the EPA of a bypass. ADM’s own discharge monitoring reports (DMRs) for the months of August 1980 through September 1981 established that ADM had on numerous occasions discharged contaminated effluent which exceeded permitted levels of pollution.

Other witnesses testified as to the fish kills in the Homewood Lake. There were three occasions, and in each instance there was an oily scum on the surface of the lake similar in appearance to that in ADM’s holding tank. On one occasion even the hardiest of species, black bullheads, perished.

The complainant EPA also produced as witnesses two current and one past property owners living upstream from the lake but downstream from ADM. All of them testified with varying degrees of vehemence as to their displeasure and anger with the condition of the lake and the stream.

ADM presented extensive evidence concerning its environmental efforts; these included concreting of areas for easier cleaning, installation of dust collecting systems, installing large pumps for the holding tank, enclosing the transfer systems between elevators; the total expenditures over the five or six years preceding the hearing were in the neighborhood of $4,500,000.

Of particular significace to our disposition regarding this case is the testimony of ADM’s West Plant manager, who told of a meeting held among ADM personnel, legal counsel for the EPA, and members of the EPA staff. According to the manager, it was recommended that ADM employ an outside engineering firm to make a study of their environmental problems. Thereafter, such a firm, Clark-Dietz, was engaged, and it recommended that a larger holding tank with a 600,000 gallon capacity be constructed. However, it cautioned that even with such capacity, a large enough rain would cause it to overflow and the same problem as now existed would recur. The estimated cost of the larger tank was $600,000.

An ADM vice president testified that the company knew of no engineering solution to the problem of heavy rains, but if one were found, the company stood ready to spend upwards of $1,000,000 to solve it.

It was also made a part of the record that ADM had the capacity to pump all of its storm water into the system of the Decatur Sanitary District, but that it is limited by the District as to how much storm water may be diverted into its system. In addition, substantial evidence was produced showing that ADM plays a significant role in central Illinois’ social, cultural, and economic life and that there is no other suitable location for the West Plant, which is located in conformity with local zoning ordinances.

The record also demonstrates that both parties indulged in considerable legal omphaloskepsis. The Board attempted to show possible pollution of Lake Decatur, but its only evidence of this was the observation of a local airplane pilot who once observed an oil slick on Lake Decatur which appeared to have its origin in the Homewood Fishing Club Lake. No evidence or complaint was received or heard from the Decatur authorities. ADM presented much testimony which pointed the finger at grain spills on the railroad rights-of-way which exist between it and Homewood and at a local high school also located in that area. However, other evidence indicated that all grain spills on the railroad were promptly cleaned up by it and in any event the drainage on the railroad and its switching yards is in another direction. No sensible theory was offered regarding the high school.

James Levis, the research economist for the EPA, testified that he had made a calculation concerning the amount of money that a company saved by “late compliance” with environmental standards. The calculation was made using the United States Environmental Protection Agency’s “Noncompliance Penalty Formula.” Levis testified that he had been given a $600,000 figure as the capital cost which had been delayed. This figure represented the amount of money ADM estimated it would cost to install the 600,000 gallon holding tank. He then made a calculation using financial data from ADM, and he estimated the useful life of the equipment at 20 years. Levis stated that he made two calculations. One calculating the savings for ADM from August 1975 to present. The other estimating their savings from July 1977 through the present for the late expenditure of the $600,000. The 1975 calculation showed a savings to the company of $108,089.70, and the 1977 calculation showed a savings of $53,233.76. Levis testified that the formula was complicated and the calculations were made by computer. Levis was of the opinion that calculations based upon the formula accurately reflected the amount of money a corporation saved by delaying capital expenditures for necessary environmental improvements.

As has been indicated, the Board issued an order finding that ADM was in violation and imposing a fine of $40,000. One member of the Board concurred specially, believing that the fine should have been $50,000. On appeal ADM raises two issues: (1) that the Board’s findings were against the manifest weight of the evidence, and (2) that the fine was arbitrary and unsupported by the evidence.

As to the first issue, it appears to be endemic in these pollution cases that vast quantities of evidence are introduced at the hearing, much of it cumulative and uncontroverted. Such is the case here. We have carefully examined the hearing record and have attempted to point out the salient elements in our recitation of the facts. We observe generally for the guidance of hearing officers in these cases that the “weight” of the evidence refers to its quality, not its quantity.

It is fundamental that a reviewing court may not overturn a decision of the Board unless it is found to be against the manifest weight of the evidence. Southern Illinois Asphalt Co. v. Pollution Control Board (1975), 60 Ill. 2d 204, 326 N.E.2d 406; City of Monmouth v. Pollution Control Board (1974), 57 Ill. 2d 482, 313 N.E.2d 161.

As has already been said, ADM did not seriously contest the violations, but readily admitted that on five occasions it discharged contaminated effluent, and its own discharge monitoring reports established numerous other violations of its permit. It argues that the five violations were the result of human and mechanical error. This may offer a reason for the violations, but it is not tantamount to an excuse. At most, the reasons are significant only to the extent that they influenced the Board in its application of a civil penalty.

As to the argument that the pollution found its source in the intervening territory, we find it completely without merit. The evidence was clear that any grain spills on the railroad were at times different from the violations alleged in the complaint, and there was further evidence that they were all promptly cleaned up. Furthermore, there was testimony from railroad personnel that the drainage on their right-of-way and nearby switchyard was in a direction away from the stream feeding the Homewood Fishing Club Lake.

ADM’s principal argument is that no technology exists by which the problem can be cured and points to the testimony regarding the Clark-Dietz report. As a preliminary matter, the Board now objects that this testimony was hearsay. The objection is without merit. It was developed by the Board in its examination of ADM’s plant manager. The Board cannot now complain about an evidentiary error which it itself generated.

However, ADM cannot avail itself of the same error. Under section 31(c) of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1031(c)), once the EPA has made a prima facie case of violation, the burden shifts to the respondent to show that compliance would pose an arbitrary or unreasonable hardship. ADM did not carry this burden. It presented no expert evidence even though it was faced with an engineering problem. While the Board cannot complaint about the admission of the testimony regarding the Clark-Deitz report, it is not required to accept it.

This case differs in this respect from Metropolitan Sanitary District v. Pollution Control Board (1975), 62 Ill. 2d 38, 338 N.E.2d 392, relied upon by ADM. In that case the District was fined $1,000 for pollution caused while a trickling water filter seal was being replaced. The supreme court vacated the fine because there was no evidence in the record to rebut the contention that there was no practical or economically feasible way to eliminate the problem. The District presented the testimony of its chief of maintenance and operations that while the seal was being replaced, the filter has to be shut down, and any alternate means of treating the effluent were impractical. No such expert testimony exists in the record in the instant case.

Moreover, the record demonstrates affirmatively that the Decatur Sanitary District could treat ADM’s effluent if ADM were permitted to discharge it into the District’s system. If the District can treat it, it must be treatable, as the Board found. All that the record shows in ADM’s favor in this context is that it was unaware of an alternative solution. It thus fell short of proving that compliance would impose an arbitrary or unreasonable hardship.

In a variety of other instances ADM argues that the Board ignored mitigating factors. The evidence was conflicting in nearly every instance and was resolved against ADM and in favor of EPA and after examination of each, we cannot say that the Board was in error. One deserves brief comment. It was apparent that only about 30 persons were directly affected by the violations. By commenting on this, the Board seems to admit that the violations do not spell the crack of doom for western civilization. However, it then proceeds to speculate without any foundation other than the observation of the pilot, who also was a resident in the Homewood Fishing Club, that the violations might or could affect a larger number of people, viz, those taking their water from Lake Decatur. Such bootstrapping scarcely builds confidence in the Board as an impartial public agency.

In our opinion the findings of the Board are not against the manifest weight of the evidence. We cannot say the same about the imposition of the fine nor its amount.

It is abundantly clear that the Board relied on Levis’ testimony in assessing the fine and that testimony is based on several spurious assumptions. In addition, there was no foundation for other portions of it.

First, he used a figure of $600,000 as the prime base for calculations. Notwithstanding the fact that the Board itself has objected to that figure in this court, it is a fictitious one. It represents money not spent on something which would not solve the problem — it represents an absence of evidence, not the presence of evidence of what it would cost to correct the violations.

Furthermore, Levis testified that he assigned a 20-year useful life to the fictitious tank and admitted that he pulled this figure “out of the air,” and that a different useful life figure would have yielded a different result.

Of significance also is the fact that Levis testified that his formula was so complex that he could not explain it and that at least a portion of it was generated by a computer. He did not present the computer data upon which the machine performed its calculations nor attempt to explain the computer’s result. This subject has been dealt with in Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E.2d 1238, and Puleo v. Department of Revenue (1983), 117 Ill. App. 3d 260, 453 N.E.2d 48. The rationale of those cases is that when computer evidence is introduced, some explanation of it is in order so that the opposing party may cross-examine to determine whether the garbage-in-garbage-out syndrome applies.

The Board argues that there are other portions of the Environmental Protection Act which would sustain such a fine. The brief answer is that those sections were not considered in arriving at the $40,000 figure, which is said to be ADM’s savings by not installing the $600,000 tank. In the absence of any evidence of the nature and cost of a successful solution to ADM’s problem, it is clear that ADM’s purported savings cannot be calculated.

The Board also argues that the $40,000 is de minimis for a corporation of ADM’s size and stature and at least twice in the course of its order recites ADM’s over-all net profits. We are not aware of any authority which makes the ability to pay the proper basis for a civil penalty, and in the case of a multiplant corporation, it ignores any internal accounting system which might attribute the entire penalty to one profit center.

We will not be understood as saying that a penalty is, or is not, justified under the circumstances here present. That is the prerogative of the Board. What we do say is that the penalty here was assessed upon improper and incompetent evidence and must therefore be vacated.

By supplemental citation of authority the Board has called our attention to the recent case of Wasteland, Inc. v. Pollution Control Board (1983), 118 Ill. App. 3d 1041. In that case the appellate court upheld the imposition of a civil penalty based upon savings made by the violator. The court’s opinion does not recite what evidence was received to substantiate the savings, stating only, “The figures for those substantial cost savings, as well as for the profits from site operations, were in the record.” (118 Ill. App. 3d 1041, 1055.) Of greater significance, and what in our opinion distinguishes Wasteland from the instant case, is the court’s emphasis in Wasteland of the violator’s “continuing blatant disregard for requirements and procedures designed to protect the environment while permitting useful operations.” (118 Ill. App. 3d 1041, 1055.) There is no such case here. Quite the opposite is true. The record clearly establishes that ADM has spent $4,500,000 for environmental improvements and stands ready to spend another $1,000,000 if a solution can be found.

The findings by the Board of the violations set forth in its order are affirmed. The penalty is vacated and the cause is remanded to the Board for another determination as to whether under all the circumstances present any penalty is justified; and if so, to calculate it in conformity with the views expressed in this opinion.

Affirmed in part, vacated in part, and remanded with directions.

MILLS and MILLER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    HOWARD LEE, Petitioner-Appellant, v. IVAN PAVKOVIC, M.D., Director of the Illinois Department of Mental Health and Developmental Disabilities, et al., Respondents-Appellees.
    First District (5th Division)
    No. 82—941
    Opinion filed October 28, 1983.
    Modified on denial of rehearing December 9, 1983.

      Mark J. Heyrman, of Edwin E Mandel Legal Aid Clinic, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Kip R. Owen, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Petitioner, Howard Lee, appeals from the judgment of the circuit court which denied his petition for a writ of habeas corpus by which he had sought his release from the custody of the Illinois Department of Mental Health and Developmental Disabilities (hereinafter the Department). The Department has maintained custody of petitioner since 1977, pursuant to a court order which committed him following a finding that he was not guilty of murder by reason of insanity. Petitioner raises three issues for review. First, he contends that the trial court erred in retroactively applying the amended post-acquittal confinement statute to him in violation of the ex post facto clauses of both the lili-nois and United States Constitutions. Second, he asserts that in the absence of a hearing, his confinement violates due process principles. Third, he argues that, in the absence of a hearing, his commitment violates his right to equal protection. For the reasons which follow, we affirm and remand with directions.

As a prelude to our discussion of the facts of this case, we observe that the legislature has at various times amended the statutes pertaining to our disposition of this appeal. Because the timing and applicability of these statutes forms the crux of each of the issues before us, we will note these statutory developments in our factual discussion.

On January 20, 1977, petitioner was found not guilty of murder by reason of insanity after a bench trial. On February 3, 1977, the trial court found that petitioner had not recovered from his insanity and committed him to the custody of the Department of Mental Health pursuant to section 5 — 2—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b)). This statute authorized confinement for an “initial period not to exceed 12 months.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b).) The order of confinement “shall be in the form of and shall produce the same effects and subsequent review proceedings as an order of hospitalization under the Mental Health Code of 1967 [Ill. Rev. Stat. 1975, ch. 911/2, pars. 6 — 6, 9 — 6] ***. The admission, detention, care, treatment, and discharge of the defendant after such order shall be under the Mental Health Code.” Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-4(b).

Article X of the Mental Health Code provided two methods by which a person could obtain release from the custody of the Department of Mental Health. First, he could petition for discharge. (Ill. Rev. Stat. 1975, ch. 911/2, par. 10 — 1.) The standard for release under this section was “that the patient is no longer in need of hospitalization for mental treatment ***.” (Ill. Rev. Stat. 1975, ch. 911/2, par. 10 — 1.) The Mental Health Code defined a person in need of mental treatment as one who, as a result of a mental disorder, “*** is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs.” (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 1 — 11.) The second method by which a committed person could obtain release was for the superintendent of the hospital in which the person was hospitalized to grant an absolute or a conditional discharge. (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 10 — 4.) The standard for release under this section was that the patient should be released if he “*** is no longer in need of hospitalization under such rules and regulations as may be adopted by the Department.” (Ill. Rev. Stat. 1975, ch. 91 1/2, par. 10 — 4.) Although the statute required that notice of an absolute discharge be provided to the court which had entered the original order of hospitalization, the Mental Health Code did not provide for judicial review of the decision to discharge a patient. Ill. Rev. Stat. 1975, ch. 91 1/2, par. 10 — 4.

On August 1, 1977, Public Act 80 — 164 became effective, amending section 5 — 2—4 of the Unified Code of Corrections. This act effected two major modifications of the existing statute. First, it replaced the former 12-month initial confinement period with an indefinite period of commitment, limited to the maximum length of time which the defendant could have served had he been convicted of and received the maximum sentence for the most serious crime for which he was acquitted by reason of insanity. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b).) The second change in the statute was the requirement that notice of a proposed discharge be provided to both the circuit court and the State’s Attorney, either of whom could object. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(d)(2).) In such a case, the superintendent could not discharge a patient until after a hearing (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(d)(2)), and the decision to discharge was then no longer that of the superintendent but that of the court (Ill. Rev. Stat. 1977, ch. 38, pars. 1005 — 2—4(g), (h) and (i)).

On February 3, 1978, petitioner’s initial commitment period expired.

Effective January 1, 1979, the Mental Health Code of 1967 was repealed and replaced with the Mental Health and Developmental Disabilities Code (the MHDDC) by Public Act 80 — 1414. (Ill. Rev. Stat. 1979, ch. 911/2, par. 6 — 106.) Under the MHDDC, a person transferred to the custody of the Department of Mental Health by the Department of Corrections under the Unified Code of Corrections may be released “*** only as provided in the Unified Code of Corrections, as now or hereafter amended.” Ill. Rev. Stat. 1979, ch. 9IV2, par. 3 — 200.

On September 18, 1980, Public Act 81 — 1497 became effective. This statute substantially changed the procedure which followed a determination of not guilty by reason of insanity. The Act provides that after such a finding or verdict:

“(a) *** the defendant shall be ordered to the Department of Mental Health and Developmental Disabilities for an evaluation as to whether he is subject to involuntary admission or in need of mental health services. The order shall specify whether the evaluation shall be conducted on an inpatient or outpatient basis.
The Department shall provide the Court with a report of its evaluation within 30 days of the date of this order. The Court shall hold a hearing as provided under the Mental Health and Developmental Disabilities Code of 1978 to determine if the individual is: (a) subject to involuntary admission; (b) in need of mental health services on an inpatient basis; (c) in need of mental (health services on an outpatient basis; (d) a person not in need of mental health services. The Court shall enter its findings.
If the defendant is found to be subject to involuntary admission or in need of mental health services on an inpatient care basis, the court shall order the defendant to a facility of the Department of Mental Health and Developmental Disabilities. * * * >>

(Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(a).)

The Act also adopted this classification system in discharge proceedings. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(h).) Public Act 81 — 1497 also provided that “[tjhis amendatory Act shall apply to all persons who have been found not guilty by reason of insanity and who are presently committed to the Department of Mental Health and Developmental Disabilities.” Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005-2-4(1).

On January 11, 1982, petitioner filed his petition for a writ of habeas corpus. After a hearing on March 8, 1982, the trial court denied the petition in a docket entry, the only order of record. Petitioner’s brief, however, contains a copy of an additional order dated April 14, 1982. This written order, relying on the case of People v. Thiem (1980), 82 Ill. App. 3d 956, 403 N.E.2d 647, calculated the maximum time which petitioner could have served had he been convicted of and received the maximum sentence for the most serious offense charged. The court concluded that petitioner’s commitment would expire “no later than December 16, 1983.” Petitioner’s notice of appeal, filed on April 6, 1982, recites that an appeal is taken from the order and findings of the circuit court entered on March 8, 1982, and from the judgment entered pursuant thereto.

Opinion

Petitioner contends that the trial court erred in retroactively applying the amended post-acquittal confinement provisions of the Unified Code of Corrections to him by calculating a new period of criminal confinement. The trial court’s order of April 14, 1982, however, does not appear in the record. The reproduction of that order in petitioner’s brief bears a circuit court docket number different from that designating the proceedings now before us. The notice of appeal was filed on April 6, 1982, and states that an appeal is taken from the order and findings entered March 8, 1982, and from the judgment entered thereon. Since the notice of appeal was filed before the order which petitioner would have us review, that order is not part of the judgment appealed from, but instead was entered in another case. Supreme Court Rule 301 provides that an “appeal is a continuation of the proceeding.” (87 Ill. 2d R. 301.) Inasmuch as the appeal is a continuation of the circuit court proceeding, the notice of appeal cannot vest jurisdiction in this court over an order entered in a different proceeding. This is a deficiency of substance and not merely one of form. (See Cliftonstrode, No. 2, Inc. v. Kent (1982), 110 Ill. App. 3d 525, 528, 442 N.E.2d 666.) Accordingly, we cannot consider petitioner’s attack on the order of April 14, 1982.

Nonetheless, we must consider petitioner’s other assertions of error in the context of the denial of his habeas corpus petition. Before considering these constitutional issues, however, we must first determine whether petitioner is legally in custody under our statutes; that is, we must determine whether the trial court correctly denied the petition for a writ of habeas corpus. Petitioner alleged that he was being held without legal authority by the Department in that his period of lawful confinement had expired. If proved, this allegation is a basis for the issuance of a writ of habeas corpus. Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 229, 437 N.E.2d 712; Ill. Rev. Stat. 1981, ch. 110, par. 10 — 124(2).

On February 3, 1977, the trial court committed petitioner to the custody of the Department of Mental Health, pursuant to section 5— 2 — 4(b) of the Unified Code of Corrections which, at the time, authorized confinement for an “initial period not to exceed 12 months.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b).) Petitioner was thus lawfully committed to the custody of the Department of Mental Health as of February 3,1977.

Public Act 80 — 164 became effective on August 1, 1977, and did not contain an express provision for retroactive application. (See Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4; compare Ill. Rev. Stat., 1980 Supp., ch. 38, par. 1005 — 2—4(b).) This statute is not invoked by the commission of the underlying offense but by the ensuing acquittal by reason of insanity. (People v. Valdez (1980), 79 Ill. 2d 74, 81, 402 N.E.2d 187.) The order committing petitioner had already been entered when the Act became effective. Since the Unified Code of Corrections provided that all proceedings after the original commitment order “*** shall be under the Mental Health Code” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 2—4(b)), the subsequent amendment to the Unified Code of Corrections could have no effect on petitioner. This act has recently been held to be applicable only prospectively. (Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 232, 437 N.E.2d 712.) This holding provides additional support for not applying the Act to petitioner. People v. Thiem (1980), 82 Ill. App. 3d 956, 403 N.E.2d 647, is distinguishable from the instant case in that the commitment order in Thiem was entered after the effective date of Public Act 80 — 164 and the Act therefore was applicable in that case. We therefore conclude that Public Act 80 — 164 is not relevant to our disposition of this appeal and that the Act did not affect the Department’s custody of petitioner.

Since an order of confinement entered under the Unified Code of Corrections produced the same effects as an order of hospitalization under the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b)), petitioner was lawfully within the custody of the Department of Mental Health under a civil commitment when his initial period of commitment expired. The provisions of the Unified Code of Corrections, as indicated above, were no longer relevant to petitioner’s commitment and his potential discharge was governed exclusively by article X of the Mental Health Code of 1967. (Ill. Rev. Stat. 1977, ch. 91 1/2, pars. 10 — 1, 10 — 4; Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 232, 437 N.E.2d 712.) However, petitioner did not file a petition for discharge and the Department of Mental Health did not initiate discharge proceedings. Petitioner did not, therefore, qualify for either of the two routes to discharge and was accordingly within the Department’s lawful custody at this time.

On January 1, 1979, the Mental Health Code of 1967was repealed and replaced with the MHDDC. Although petitioner’s initial period of “criminal” confinement had expired by this time, the Act applied to him because the original commitment order was treated as an order of admission under the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b)), and petitioner was therefore subject to that code’s provisions. Because petitioner had not sought or otherwise been granted a discharge under the relevant provisions of the Mental Health Code of 1977 (sections 10 — 1 and 10 — 4), he was lawfully in the custody of the Department of Mental Health when the MHDDC took effect. Raimondo v. Pavkovic (1982), 107 Ill. App. 3d 226, 231, 437 N.E.2d 712.

Because petitioner’s acquittal by reason of insanity occurred before the effective date of the amendments to the Unified Code of Corrections, the only provisions of that statute now relevant to petitioner are those establishing the procedures governing discharge from a civil commitment which follows a criminal commitment. (Raimondo; Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(1).) These provisions were established by Public Act 81 — 1497 effective on September 18, 1980. Petitioner contends that these provisions may not be applied to him because such application would violate the ex post facto provisions of the Illinois and United States Constitutions. “[A]n amendatory act may be retroactively applied where the legislature so intended and where the statute affects the remedy or matters of procedure.” (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034.) Section 5 — 2—4(1) of the amendatory act indicates the legislative intent to apply the act retroactively: “This amendatory Act shall apply to all persons who have been found not guilty by reason of insanity and who are presently committed to the Department ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(1).) The changes effected by the Act are merely procedural in that they alter the method by which discharge may be procured but do not eliminate the existence of the remedy. “Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be deprived by such application.” (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034.) Petitioner points to several “rights” which he contends are abridged by application of the amended statute. These “rights,” however, all pertain to procedural considerations. As Maiter points out, “[tjhere exists no vested right in any particular mode of procedure.” (82 Ill. 2d 373, 391, 415 N.E.2d 1034.) Accordingly, we conclude that the amendment affecting discharge procedures may be applied to petitioner.

Neither petitioner nor the Department has initiated discharge proceedings under the Unified Code of Corrections. We must therefore hold that petitioner is lawfully in the custody of the Department at this time and that the trial court correctly denied the petition for a writ of habeas corpus. See Ill. Rev. Stat. 1981, ch. 110, par. 10 — 124 (2).

Petitioner asserts that his confinement without a hearing violates due process and equal protection principles. We have already noted, however, that the original order of commitment served as an order of commitment under the Mental Health Code of 1967. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—4(b).) Petitioner did in fact receive a hearing, which resulted in the original order of commitment and a finding that petitioner had not recovered from his insanity at that time. The United States Supreme Court has recently determined that “a finding of not guilty by reason of insanity is a sufficient foundation for commitment of an insanity acquittee for the purposes of treatment and the protection of society.” (Jones v. United States (1983), 463 U,S. 354, 366, 77 L. Ed. 2d 694, 706, 103 S. Ct. 3043, 3050.) The court in Jones also held that “an acquittee’s hypothetical maximum sentence [does not provide] the constitutional limit for his commitment.” (463 U.S. 354, 368, 77 L. Ed. 694, 708, 103 S. Ct. 3043, 3052.) Accordingly, we hold that the absence of a second hearing on the expiration of petitioner’s initial “criminal” period of commitment does not offend due process.

Petitioner next asserts that his commitment without a post-expiration hearing violates equal protection principles because persons acquitted of crimes by reason of insanity now are entitled to such a hearing. “ ‘A statute classifying persons or objects is not unconstitutional because it affects one class and not another, provided that it affects all members of the same class alike and provided that the classification is not arbitrary, but based on some substantial difference in circumstances properly related to the classification.’ ” (People v. Valdez (1980), 79 Ill. 2d 74, 83, 402 N.E.2d 187, quoting Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 512, 368 N.E.2d 105.) Merely because the legislature sees fit to change the law does not give rise to an equal protection attack on those who, at some previous time, did not have the benefit of the new statute. People v. Grant (1978), 71 Ill. 2d 551, 561, 377 N.E.2d 4 (equal protection not violated by failure to allow sentencing election under new statute).

We hold, therefore, that petitioner has not demonstrated any constitutional or statutory impediments to his continued confinement with the Department. As petitioner points out, however, he has not received a hearing on his status since his commitment began. Considerations of fairness and substantial justice indicate that we remand this cause to the circuit court with directions to consider the petition for a writ of habeas corpus as a petition for discharge under the Unified Code of Corrections. See People v. Rink (1983), 97 Ill. 2d 533, 543-44.

For the reasons stated, the order denying the petition for writ of habeas corpus is affirmed and the cause remanded with directions above set forth.

Affirmed and remanded with directions.

WILSON, P.J., and SULLIVAN, J., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SOLOMON FINKLEA, Defendant-Appellant.
    Second District
    No. 81—704
    Opinion filed November 10, 1983.

      Earl Washington and Joshua Sachs, of Chicago, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Solomon Finklea, appeals his conviction for murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1) in the circuit court of Winnebago County on the basis that his incriminating statements were elicited in violation of his constitutional rights when he was not informed during police interrogation that an attorney retained to assist him was present and wished to see him. Because the trial court did not err in finding that defendant was not in custody during that interrogation, however, we affirm.

On the morning of November 17, 1980, Loretta Fricks was found dead in her Rockford apartment, which she shared with defendant and their son. A subsequent autopsy revealed that the deceased died from asphyxia due to manual strangulation. That same morning, defendant was questioned about the death by police at the police station. While he was there, an attorney who said that he was retained by defendant’s family to assist defendant appeared at the station, but was refused access to defendant by police. In response to police questioning, defendant gave incriminating statements which were later used at trial. After a hearing, defendant’s pretrial motion to suppress the statements was denied. After a jury trial, defendant was convicted of murder and sentenced to 20 years’ imprisonment, from which judgment he now appeals.

Defendant’s sole contention on appeal is that his fifth amendment right to silence and his sixth amendment right to counsel were violated by an in-custody interrogation by police without permitting him to communicate with an attorney retained for him by his family. The challenged interrogation resulted in incriminating statements by defendant which the prosecution used at trial.

We note initially that defendant’s sixth and fourteenth amendments right to counsel is not truly at issue here. That right does not arise until the commencement of adversary judicial criminal proceedings (Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232; People v. Smith (1982), 93 Ill. 2d 179), a circumstance clearly not present here. Although defendant cites Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, which found a sixth amendment violation when the police during interrogation denied the defendant’s request for an opportunity to consult with his attorney, that case has since been viewed more accurately as a decision designed to protect the fifth and fourteenth amendments privilege against self-incrimination. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882; People v. Smith (1982), 93 Ill. 2d 179, 189.) The opinion in Smith, upon which defendant relies for the proposition that it was a constitutional violation for the police to deny access to him by the attorney retained to represent him, was predicated solely upon the fifth and fourteenth amendments; the supreme court there refused to consider the correctness of the appellate court’s analysis in terms of the general sixth amendment right to counsel. 93 Ill. 2d 179,185.

Although defendant was read his constitutional rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, he contends that the rule of Miranda was violated by the police when they continued to interrogate him without informing him of the presence of an attorney retained by his family to represent him. However, the rule of Miranda applies only to questioning initiated by law enforcement officials after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612.) The decision in People v. Smith (1982), 93 Ill. 2d 179, the case which defendant argues compels a holding that the police conduct here violated his constitutional rights, was an elaboration on the waiver component of the rule of Miranda. Smith held that when the police, prior to or during a custodial interrogation, refused an attorney appointed or retained to assist a suspect access to the suspect, there can be no knowing waiver of the fifth amendment right to counsel during interrogation if the suspect has not been informed that the attorney was present and asking to consult with him. (93 Ill. 2d 179, 189.) Thus, it is essential that we first determine whether defendant was in fact in custody during the challenged interrogation.

In determining whether a statement was made in a custodial setting, a court must look to all of the circumstances surrounding the questioning, with no single factor deemed controlling, and then objectively evaluate whether a reasonable, innocent person would have believed that he was free to leave or was expressly or impliedly bound to remain in the presence of police. (People v. Wipfler (1977), 68 Ill. 2d 158; People v. Savory (1982), 105 Ill. App. 3d 1023, 435 N.E.2d 226; People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175.) Numerous factors are to be considered in the inquiry: the location, time, length, mood and mode of the interrogation; the number of police officers present and the presence or absence of friends or family of the accused; any indicia of formal arrest of the subject including physical restraint, show of weapons or force, booking, fingerprinting or informing the person he is under arrest; the manner in which the person questioned got to the place of interrogation, i.e., voluntarily on his own, in response to a police request, or on a verbal command indicating compulsion; whether he voluntarily assists police in their interrogation; whether the subject is allowed to walk within and from the location of the interrogation unaccompanied by police; and the age, intelligence, and mental makeup of the accused. People v. Savory (1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226, 230, and cases cited therein; see Annot., 31 A.L.R.3d 565 (1970).

The following specifics were adduced at the hearing on defendant’s motion to suppress. On the morning of November 17, 1980, defendant was brought to the police station in a police van by two police officers, at least one of whom was uniformed. He testified that he was told at the apartment that he was not under arrest but that the police wanted to question him about the death of Loretta Fricks. At the police station, defendant was questioned by two different policemen on and off between 9:01 a.m. and 12:39 p.m. During the questioning, defendant and both policemen were seated and the police used a normal speaking tone of voice. Throughout the questioning, only defendant and Officers Oldenburger and Bland were present. None of the indicia of formal arrest were employed: there was no physical restraint, show of weapons or force, booking, or fingerprinting. No handcuffs or other restraints were used. Both defendant and Officer Bland testified that defendant was informed during the questioning that he was not under arrest. He was not told that he was under arrest until later in the afternoon when the results of the autopsy were received, long after his statements had been given. Defendant was read his Miranda rights, signed a waiver form, and gave two statements which were typed and which he signed. In the second of those statements, defendant admitted grabbing the deceased by the throat while they were tussling, after which she lay motionless. Defendant was permitted to go to the bathroom and was offered food and drink. Between the two statements, he was left alone in the interview room. After each statement, he was permitted to make a phone call. The police testified that defendant was free to leave at any time during the morning questioning. Defendant was 34 years old, could read English, had an 11th grade education and had worked some complicated assembly line tasks at a Chrysler plant.

Viewed objectively, these facts support the trial court’s finding to the effect that a reasonable, innocent person of defendant’s age and intelligence would not have believed that he was bound to remain in the presence of the police under the circumstances recited. Defendant emphasizes that he was the “target” of the investigation. However, the United States Supreme Court has held that the focus of a suspicion is not the test for the applicability of the Miranda procedures, but rather Miranda applies only to custodial interrogations. (Beckwith v. United States (1976), 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612; see Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711.) The fact that police suspicions may have shifted during the course of the interrogations does not render the situation a custodial one. (People v. Miller (1980), 91 Ill. App. 3d 1031, 415 N.E.2d 538.) While defendant was interrogated at the police station and was read his Miranda rights, these facts do not per se render the interrogation custodial. (People v. Wipfler (1977), 68 Ill. 2d 158; People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979; People v. Sanders (1981), 103 Ill. App. 3d 700, 431 N.E.2d 1145.) Nor do these facts in conjunction with the fact that defendant was driven to the police station by police officers determine that defendant was in custody. (See Reed; Sanders.) Rather, we rest our conclusion that the trial court’s finding was not error upon the fact that defendant was informed more than once that he was not under arrest and there was nothing in the objective behavior of the police that should have dispelled the belief of the defendant that he was free to leave.

Having decided that a reasonable, innocent person would not have believed that he was under restraint, it is unnecessary for us to determine the intent of the officers. (People v. Wipfler (1977), 68 Ill. 2d 158, 167.) We note, however, that to the extent that the police refusal to permit the attorney to communicate with defendant at the police station is relevant to. the custody determination, it relates to the intention of the officers and not to defendant’s objective understanding of his status.

Since defendant was not in custody, Miranda does .not apply. Defendant has not cited authority, and we can find none, for the proposition that incriminating statements resulting from noncustodial interrogation by police must be excluded if the accused has not been informed that an attorney retained to assist him is present and wishes to see him. While we do not mean to condone the police conduct in this case, defendant has failed to show how that conduct compels the exclusion of his statements. We hold that defendant’s motion to suppress his incriminating statement was properly denied and evidence of the statement was properly admitted at trial. Accordingly, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

VAN DEUSEN and UNVERZAGT, JJ., concur.


author: JUSTICE REINHARD

text:
    BITUMINOUS CASUALTY CORPORATION et al., Plaintiffs-Appellees, v. EDWARD WILSON et al., Defendants-Appellants (Edward Wilson, Plaintiff-Appellant, v. Frisch Contracting Service Company, Defendant-Appellee).
    Second District
    No. 82—1026
    Opinion filed November 10, 1983.

      Walter J. Binder, Jr., of Abbamonto, Szura & Binder, of Cary, for appellant.

      James A. Campion, of Holstrom & Green, of Woodstock, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Edward Wilson, who is the plaintiff in a common law negligence suit against defendant Frisch Contracting Service Company (Frisch), and a defendant in a separate suit for declaratory judgment brought by Frisch and Bituminous Casualty Corporation (Bituminous), against him and T.C. Bakas & Sons (Bakas), not a party to this appeal, appeals from an order in the declaratory judgment suit finding that any remedy he might have is pursuant to the Workers’ Compensation Act and from a subsequent order in the negligence suit based upon that finding dismissing his complaint.

Wilson raises the following issues for our review: (1) whether the trial court erred in finding the person who allegedly injured him was a loaned employee to Wilson’s employer, T.C. Bakas & Sons; (2) whether the question of loaned employee status should have been decided in a jury trial; and (3) whether the trial court erred in deciding the ultimate issue in the pending negligence suit in the declaratory judgment action.

Since the procedural background of the matter as reflected in the record is somewhat unusual, we set forth this history and the pertinent facts. On April 21, 1976, Wilson filed his complaint based upon common law negligence against Frisch alleging that an employee or agent of Frisch (Jerome Kehl) was negligent in the operation of an endloader and on September 11, 1974, injured Wilson who was employed and working as a welder for Bakas. Frisch answered the complaint generally denying all the allegations of the complaint, requesting a jury trial, and the parties thereafter filed various discovery documents. On April 7, 1978, Frisch and Bituminous, who was Fris-ch’s liability carrier, filed a separate complaint under a new file number for declaratory relief against Wilson and Bakas seeking a declaration that Wilson was a fellow employee of Jerome Kehl, that Wilson, as a fellow employee of Kehl, was excluded from coverage under the terms of its policy with Frisch, and that Wilson’s exclusive remedy was under the Workers’ Compensation Act. Wilson answered the complaint and, after numerous continuances, the case was set for trial on May 15, 1980. No jury demand by either party appears in the trial court record of the file for this declaratory judgment action. On May 15 this case proceeded to trial before the court without a jury.

Gregg Bakas, who was president of Bakas in September 1974, testified that in September 1974 Bakas was a subcontractor on a job and was to put in railroad spurs in Cary, Illinois; that he arranged to rent from Frisch certain equipment and an operator for the job; that he advised Frisch that the Frisch employee, Jerome Kehl, was to report to the Bakas supervisors to be told what and how to do the job; that a Bakas foreman supervised the job, and as a part of his supervision, he would direct Kehl and tell him how thick to put the stone and how to pick up rails and move them, just like he would for Bakas employees; and that Bakas paid Frisch $1,428.88 for Kehl’s services and equipment rental.

Jerome Kehl testified that he was employed by and on the payroll of Frisch in the fall of 1974; that he operated heavy equipment and did some incidental laboring; that on September 10, 1974, he reported to the job site where a spur line was being put in; that when he arrived at the job site a Bakas employee told him what work Bakas was doing at the site, what his job was, and that he should follow the instructions of the men there; that while on the job site he was told what to do by the “Bakas people” and in what manner to do it; that he worked at the site September 10 and 11; that on September 11, the date of the accident to Wilson, he was dumping stone over the rails and ties, so that Bakas employees could lift them up, and back-dragging to leave a smooth surface; that on September 10 he also carried ties in the endloader; that he did this work in the order that “Ba-kas people” told him; that no other Frisch employees were at the job site during his work; that he was originally instructed by Marvin Frisch to contact the “Bakas people” who were to tell him what to do; that his time sheets showed that he spent eight, five, two, and one-half hours at the job site from September 10 through September 13 respectively; that when he left work on September 11 he left because “Bakas people” told him that was all the work required of him that day; and that at no time during work on that job did Frisch personnel come over and direct him in the manner in which he was to do anything and that he was entirely supervised by “Bakas people.” On cross-examination he stated that “Bakas people” had to tell him how to dump stone over the rails since he had never done that on a railroad spur job before; that this job was more difficult because he was working with different material than normal and Bakas wanted it set and dragged in a certain way; that he was in Bakas’ complete supervision; that the Bakas foreman could tell him to go home or fire him from the job site; and that no one had to tell him how to operate the machinery although they did tell him what to do with the stone and railroad ties.

Marvin Frisch, president of Frisch, testified he was contacted by Bakas and agreed to rent equipment and an operator, at a specified hourly rate, to move railroad ties, railroad rails, and to place ballast; that he told Kehl to report to the site and get his directions while there from “Bakas people”; that Frisch had no contract itself in regard to the spur line job; that Frisch personnel did not supervise Kehl while he was on the job site; that it is normal in his business when they send people out on an hourly basis to have “no direction and control over it,” and that it is the custom in the business in this situation for the employee to take his direction and control from the other party and not Frisch; and that he would think the lessee would be able to send back equipment or an operator if dissatisfied, but had never had the precise circumstance occur. On cross-examination he stated that on many occasions he rented out equipment and men and that it is normal in the usual course of business to send out an employee on an hourly basis to the job site of another who was not an employee of Frisch’s.

Gregg Bakas was recalled as a witness and testified that he never discussed with Frisch the right to fire one of its employees off the job site; that he felt he did not have that authority; and that he could tell such an employee to stop work if he was doing something Bakas did not want him to do.

Following the May 15, 1980, hearing, the next entry in the record is a notice of motion filed on February 26, 1982, by Wilson requesting a ruling on the “motion for summary judgment previously filed.” The next entry in the record is a notice filed on October 8, 1982, by Frisch and Bituminous moving the court to enter an order which was stated to be attached. The next entry is an order continuing the Frisch and Bituminous’ motion to October 15, 1982. On October 15, 1982, the trial court entered a written order which stated, inter alia, that the cause had come on for hearing on a motion for summary judgment and that the court had heard testimony. The court then found that Kehl was a fellow employee of Wilson and therefore that Wilson’s exclusive remedy was pursuant to the Workers’ Compensation Act. In oral argument, all parties agree that the references to a motion for summary judgment are in error and that the declaratory judgment action was decided in a bench trial.

On October 15, 1982, upon Frisch’s and Bituminous’ motion to dismiss based upon the finding in the declaratory judgment suit, the trial court dismissed Wilson’s negligence action.

On November 12, 1982, Wilson filed identical motions in both suits asking that the October 15, 1982, order in the declaratory judgment suit be vacated, alleging, for the first time, that it was improper to determine the ultimate issue of the pending negligence suit in the declaratory judgment action. The motions were both denied.

Wilson first contends that the trial court abused its discretion by granting declaratory judgment on the issue of whether or not Kehl was a loaned employee where that determination was the ultimate issue of fact in an underlying and separate negligence action brought by him. While we are familiar with general principles of law in that regard, which are set forth in Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, and Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24, and while trial courts should adhere to these procedural practices, Wilson made no such contention in the trial court until his post-trial motion which was filed some four weeks after the court’s decision and approximately 21lz years after the trial. Hence, any possible error was waived. (Allstate Insurance Co. v. Elliott (1980), 89 Ill. App. 3d 140, 143, 411 N.E.2d 1072; Byron Material, Inc. v. Ashelford (1975), 34 Ill. App. 3d 301, 306, 339 N.E.2d 26.) Throughout most of the trial court proceedings, Wilson acquiesced in the procedure which determined the rights of the parties in the declaratory judgment action. Not until after the trial court had entered its order deciding the issues did Wilson object to the procedure. We conclude that this acquiescence, in effect, invited any error which might inhere in this procedure and precludes Wilson from complaining now. See In re Marriage of Davies (1983), 95 Ill. 2d 474, 477-78, 448 N.E.2d 882.

Although Wilson also claims he was denied a trial by jury in the declaratory judgment action, it is clear in this record that he failed to file a jury demand in that suit which therefore waives his right to a jury. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1105; see Fox v. Fox (1956), 9 Ill. 2d 509, 513-14, 138 N.E.2d 547.) Where a declaratory judgment proceeding requires the determination of issues of fact triable by a jury they shall be tried and determined in the same manner as in other civil actions. (Ill. Rev. Stat. 1981, ch. 110, par. 2— 701(d); see Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 148, 199 N.E.2d 797.) Here, Wilson, by not filing a jury demand and by proceeding to trial on the issue involved, without requesting a jury, waived his right to a jury. See Fox v. Fox (1956), 9 Ill. 2d 509, 513-14, 138 N.E.2d 547; Ogren v. Graves (1976), 39 Ill. App. 3d 620, 624, 350 N.E.2d 249.

Turning to the question of whether Kehl, an employee of Frisch, was a loaned employee to Bakas, we reiterate the applicable, well-settled principles of law. An employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing the special service. (A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 346-47, 412 N.E.2d 477; Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) The main criterion for determining when a worker becomes a loaned employee is whether the special employer has control of the employee’s services. (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 389, 385 N.E.2d 664.) The question of control ordinarily presents a question of fact for the jury, which must weigh such factors as the matter of hiring, the mode of payment, the right to discharge, and the manner of direction. (74 Ill. 2d 379, 389-90, 385 N.E.2d 664.) However, the mere fact that the employee does not receive his wages from the special employer will not defeat the finding of a loaned-employee situation. A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 349, 412 N.E.2d 477.

Here, the evidence established that Frisch personnel were not on the job site and did not supervise Kehl’s work, that Kehl worked the number of hours each day as directed by Bakas, that Kehl was told by Frisch to get his directions from the “Bakas people,” that “Bakas people” told Kehl what to do, that “Bakas people” had to tell Kehl how to do certain job functions since Kehl had never done a railroad spur job before, and that Kehl could be required to stop work at the site or be replaced for this job at the direction of Bakas. The fact that Kehl exercised control over the equipment and was on the payroll of Frisch is insufficient to preclude a finding that Bakas had the right to control the manner of the work and a finding of a loaned-employee situation. (See A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 349, 412 N.E.2d 477.) While it has been generally stated that a person cannot become an employee of the second employer unless the second employer has the power to discharge or fire the employee (Connolly v. People’s Gas Light & Coke Co. (1913), 260 Ill. 162, 166, 102 N.E. 1057; Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 719, 394 N.E.2d 1230; Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 832, 383 N.E.2d 1242), Bakas could stop Kehl’s work and have Frisch replace him which implies the power to discharge or terminate employment, so far as Bakas was concerned. See Fransen Construction Co. v. Industrial Com. (1943), 384 Ill. 616, 627-28, 52 N.E.2d 241.

The question of control ordinarily presents a question of fact (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 390, 385 N.E.2d 664), and a reviewing court will reverse only when that decision is against the manifest weight of the evidence. (M & M Electric Co. v. Industrial Com. (1974), 57 Ill. 2d 113, 117, 311 N.E.2d 161; Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 719, 394 N.E.2d 1230.) Under the facts here, the evidence supports the trial court’s finding that Kehl was a loaned employee. The decisions in Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 171 N.E.2d 60, and Robinson v. McDougal-Hartmann Co. (1971), 133 Ill. App. 2d 739, 272 N.E.2d 513, chiefly relied upon by Wilson, do not persuade us otherwise. In both cases, the trier of fact found that no loaned-employee situation existed. Those findings were ultimately upheld on review as questions of fact for the jury which were supported by the evidence, and were not, as a matter of law, incorrect. Similarly here, the question is one for the trier of fact, and we conclude there was ample evidence of the exercise of control by Bakas over Kehl to support the trial court’s finding that Kehl was a loaned employee of Bakas.

For the reasons stated, the judgment of the circuit court of Mc-Henry County is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD MERCADO, Defendant-Appellant.
    Second District
    No. 83—223
    Opinion filed November 10, 1983.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorney’s Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Richard Mercado, was found guilty of three offenses of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3(a)) arising from an automobile collision in which three persons were killed. He was also convicted of driving while under the influence of alcohol (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501(a)(1)) and of driving with a blood alcohol concentration of .10% or more (111. Rev. Stat. 1981, ch. 95 1/2, par. 11 — 501(a)(2)). Defendant was sentenced to concurrent terms of three years’ imprisonment for each reckless homicide conviction and concurrent 364-day terms for the driving under the influence of alcohol convictions.

On appeal, defendant does not contest the sufficiency of the evidence to support his convictions, but contends (1) two of the three convictions for reckless homicide must be vacated as having arisen from the same act; (2) one of the driving while under the influence of alcohol convictions must be vacated on the same grounds; and (3) the cause should be remanded for resentencing if any of his convictions are vacated because the trial judge may have been influenced by a vacated conviction in imposing sentence.

We vacate one conviction and sentence for driving under the influence of alcohol and in all other respects affirm the judgment of the circuit court.

Defendant contends first that as more than one offense may not be carved from the same physical act (People v. Manning (1978), 71 Ill. 2d 132; People v. King (1977), 66 Ill. 2d 551, 566, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273), two of the reckless homicide convictions must be vacated. He argues his single act in this instance was driving the automobile which caused the three deaths, citing People v. Holtz (1974), 19 Ill. App. 3d 781.

In Holtz, one of defendant’s two convictions for involuntary manslaughter was reversed where both arose from defendant’s act of pulling the steering wheel of a car from the driver’s control, causing the car to swerve into another car killing its two occupants, the court noting there could be but one conviction of crime for a single act (19 Ill. App. 3d 781, 790). A different, and we think more persuasive, conclusion has been reached in later cases where the courts have considered the fact defendant’s act was directed against multiple victims.

In People v. Grover (1981), 93 Ill. App. 3d 877, defendant was convicted of reckless homicide and three counts of reckless conduct arising from an automobile collision. The majority of the panel on the reviewing court rejected defendant’s argument that since the death and injuries resulted from his single act of driving, the reckless conduct conviction must be vacated. The court noted a distinction existed between cases where multiple offenses were committed against single victims and single acts directed against multiple victims. In finding defendant was properly convicted of all four offenses it noted that the reckless homicide and each of the three reckless conduct offenses required proof of facts the others do not; that injury occurred to separate persons and their identity (93 Ill. App. 3d 877, 882-83). See also People v. Davis (1982), 105 Ill. App. 3d 129, 135; People v. Washington (1977), 53 Ill. App. 3d 36; People v. Smith (1980), 86 Ill. App. 3d 575, 585; People v. Bigsby (1977), 52 Ill. App. 3d 277, 283; People v. Thomas (1976), 43 Ill. App. 3d 328, 330.

The distinction between acts affecting only one victim and those affecting multiple victims was also noted in People v. Butler (1976), 64 Ill. 2d 485, 487-89. We conclude defendant was properly convicted of three offenses of reckless homicide against the three victims.

The State concedes that one of defendant’s convictions for driving under the influence of intoxicating liquor must be Vacated as both are dependent upon the same conduct. Accordingly, we vacate the conviction and sentence imposed for the offense premised upon section 11 — 501(a)(2) of the Illinois Vehicle Code as charged in count

IV of the information.

We do not agree with defendant’s final assertion that having vacated one of the convictions, remandment for a new sentencing hearing is required. It is apparent from the record of the sentencing hearing that the trial judge did not consider the now vacated conviction in imposing sentence for the other offenses. The judge expressed the basis for imposition of maximum sentences for each offense and there is no suggestion the court was influenced by the now vacated conviction in doing so. See People v. Alejos (1983), 97 Ill. 2d 502; People v. Taylor (1983), 114 Ill. App. 3d 265, 271; People v. Owens (1982), 109 Ill. App. 3d 1150,1160.

Accordingly, the judgment of conviction and sentence imposed under count IV of the information will be vacated and in all other respects the judgment of the circuit court will be affirmed.

Judgment vacated in part and affirmed.

LINDBERG and UNVERZAGT, JJ., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES EDWARD THOMAS, Defendant-Appellant.
    Second District
    No. 82—265
    Opinion filed November 10, 1983.

      G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. "Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a bench trial the defendant, Charles Edward Thomas, was convicted of robbery and sentenced to a two-year term of probation, conditioned on serving 60 days of periodic imprisonment and paying restitution. He appeals, contending that he was not proved guilty of the offense beyond a reasonable doubt.

The victim testified that on October 13, 1982, she had tucked her purse under her left arm pit with the straps down as she walked towards the entrance to a supermarket. When she started to step upon the cement slab at the entrance, an individual whom she noticed standing on the slab quickly moved and “punched the purse from under my arm and ran.” She did not see the party directly and did not know which hand he used. She said that she wore a light fall jacket and later noticed that she had a “red streak” on the inner part of her arm, about an inch wide and five inches long. There was no further description of the “streak.” She said that she showed it to the store manager but did not show it to the police when they arrived.

The defendant testified that he was not present at the scene.

Robbery requires “the use of force” or “threatening the imminent use of force.” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1.) “Thus, if no force or threat of imminent force is used in the taking, there is no robbery, although the act may constitute a theft.” (People v. Patton (1979), 76 Ill. 2d 45, 48.) In Patton, the victim’s purse, which she was carrying in her finger-tips at her left side, was “swift[ly] grab[bed]” throwing her arm back “a little bit.” (People v. Patton (1979), 76 Ill. 2d 45, 47.) The court concluded that this was not proof of force under the statute, stating the rule from Hall v. People (1898), 171 Ill. 540, 542-43, that when an article is taken “without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand,” the offense is theft from the person rather than robbery. People v. Patton (1979), 76 Ill. 2d 45, 50.

The degree of force necessary to prove robbery “must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied, or by putting him in such fear as to overpower his will.” (People v. Williams (1961), 23 Ill. 2d 295, 301.) “Larceny from the person” and not robbery is proved when property is taken from the person without violence or intimidation and without any struggle for its possession. (People v. Williams (1961), 23 Ill. 2d 295, 301.) Any doubt must be resolved in favor of the lesser offense. People v. Williams (1961), 23 Ill. 2d 295, 301.

It is clear that the gist of the offense of robbery from the person of another is not related to the force used on the object taken but to the force or intimidation directed at the person of the victim. (People v. Patton (1979), 76 Ill. 2d 45, 49.) Where, as here, there has been no claim of intimidation, the emphasis must be placed on the overcoming of resistance by force. If there were a struggle, implying resistance and a reaction to force, the taking would have been robbery. (People v. Patton (1979), 76 Ill. 2d 45, 50.) Here, the only evidence of force must be found in the victim’s testimony that the taking resulted in a “red streak” on her arm. The State invites us to adopt a rule that whenever a purse snatching victim is injured to any degree, sufficient force to sustain a robbery conviction automatically exists, regardless of the severity of the injury. We decline to do so. Under the circumstances of this case the State was required to prove “sensible or material violence to the person.” (People v. Patton (1979), 76 Ill. 2d 45, 50.) We conclude that the record does not meet that test.

The cases cited by the State are distinguishable. In Klein v. People (1885), 113 Ill. 596, the handbag was grabbed with such force that the victim’s arm was bruised, rending it lame for several days. In People v. Kennedy (1980), 88 Ill. App. 3d 365, 368-69, there was a struggle for the property, in the course of which the victim was pushed against a wall. In People v. Huntington (1983), 115 Ill. App. 3d 943, 945, the defendant “tore the purse” from the victim with such force that she spun one-quarter of the way around and lost her balance.

As Patton instructs us, there is little practical distinction between robbery and larceny from a person; “ ‘[t]he two crimes approach each other so closely that cases may arise where it may be doubtful upon which side of the line they should fall. Still, it is the duty of courts *** to resolve such doubts in favor of the accused.’ ” People v. Patton (1979), 76 Ill. 2d 45, 50.

We have no doubt from the record in this case that the defendant was proved guilty beyond a reasonable doubt of theft from the person, with which he was also charged. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a).) The difficulty, however, is that the trier of the facts made no finding at any time that defendant was guilty of theft, and the defendant was not convicted of that offense. Generally, the adjudication of guilt of one crime without any finding that a separate crime has been committed is acquittal of the separate crime charged. (People v. Hinkle (1951), 408 Ill. 533, 534-35.) In Hinkle, proof that the accused knowingly received stolen property did not support a conviction under an indictment charging him with larceny. The court concluded that the adjudication of guilt of larceny without any finding on the count charging receiving stolen property was equivalent to an acquittal on the latter count. (408 Ill. 533, 535.) The State suggests that under People v. Romo (1980), 85 Ill. App. 3d 886, 893, we have the power to reduce the offense of robbery to theft in the event we conclude robbery has not been proved. Romo, however, is based on the premise that theft is a lesser included offense of robbery. We cannot accept this premise in view of the expression by our supreme court in People v. McCarty (1983), 94 Ill. 2d 28, 34-35, that robbery as defined by the legislature is not a “type of theft” but a separate crime against property.

The judgment of the circuit court of Winnebago County is reversed.

Reversed.

UNVERZAGT and HOPF, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS (Village of Lake in the Hills), Plaintiff-Appellee, v. EDWARD F. WIATR, Defendant-Appellant.
    Second District
    No. 82—795
    Opinion filed November 10, 1983.

      Ralph E. Madsen, of Madsen, Clark & Baudin, of Crystal Lake, for appellant.
    Theodore Floro, State’s Attorney, of Woodstock, and David W. McArdle, of Zukowski, Poper, Rogers & Flood, of Crystal Lake (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Edward Wiatr, was convicted of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 11 — 501(a)(2)) and speeding (Ill. Rev. Stat. 1981, ch. 95 1//2, par. 11 — 601(b)). He was thereafter sentenced to a one-year term of probation, with nine days’ periodic imprisonment, and a fine of $100. Defendant appeals contending (1) his convictions for violation of these State statutes were void absence evidence in the record that his prosecution by a village attorney was authorized by the State’s Attorney; and (2) that the trial court erred in refusing to declare a mistrial or to strike the testimony of a witness who violated a sequestration order.

Defendant was arrested in the village of Lake in the Hills on March 23, 1982, by village police officer Robert Hughes for driving while intoxicated and traveling 72 miles per hour in a 55 miles per hour zone. Officer Hughes testified in trial that he observed defendant’s car weaving and clocked its speed on a radar machine. After stopping him, the officer smelled alcohol on defendant’s breath and administered field sobriety tests which defendant failed to perform correctly. The officer testified it was his opinion that defendant was speeding and was under the influence of alcohol. Sergeant James Wales of the village police department testified he came to the scene of defendant’s arrest and smelled alcohol on defendant’s breath. Defendant was taken to the police station where Sergeant Wales gave defendant a breathalyzer test, the results of which were introduced in trial showing the alcohol content to be .2%. The sergeant further testified he witnessed defendant attempting to perform physical sobriety tests administered by Officer Hughes, which defendant was unable to perform correctly, and that it was his opinion defendant was under the influence of alcohol.

Defendant testified he had consumed only three beers during the two hours preceding his arrest, and witnesses called by him testified defendant was not under the influence of intoxicating liquor.

Defendant’s primary contention is that his convictions must be reversed as the record of this case fails to disclose that the village attorney had permission from the State’s Attorney to prosecute him for these violations of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 1 — 100 et seq.). The State agrees that a municipal attorney is authorized to prosecute such offenses only with the written permission of the State’s Attorney, but argues defendant has waived that issue by failing to challenge the authority of the village in the trial court, and, that proof of such delegation need not be presented in each case absent such challenge.

Section 16 — 102 of the Illinois Vehicle Code provides, in part:

“The State’s Attorney of the county in which the violation occurs shall prosecute all violations [of chapters 11 through 15 of the Code] except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State’s Attorney.” Ill. Rev. Stat. 1981, ch. 95½, par. 16 — 102.

Prior to January 1, 1974, only the State’s Attorney could prosecute a violation of the Illinois Vehicle Code. (Compare Ill. Rev. Stat. 1971, ch. 95 1/2, par. 16 — 102, with DI. Rev. Stat. 1981, ch. 95V2 par. 16 — 102.) Since an amendment in 1974, however, the State’s Attorney is permitted to delegate his authority, when the violation has occurred within a municipality, to the municipal attorney. It is well established that before the. amendment a municipality had no power to prosecute a violation of a State statute (City of Rockford v. Watson (1969), 108 Ill. App. 2d 146, 150, 246 N.E.2d 458), nor could the State’s Attorney on behalf of the People of the State of Illinois prosecute an action for violation of a municipal ordinance. People v. Rowe (1972), 9 Ill. App. 3d 460, 464, 292 N.E.2d 432.

The Illinois citation and complaint issued to defendant in the present case by the arresting officer was captioned “People of the State of Illinois v. Wiatr, Edwart T.” and charged him with violations of the State statutes, not a local ordinance. Subsequent motions and pleadings in the record are labeled “People of the State of Illinois (Village of Lake in the Hills) v. [def.].” It is also clear that the case was prosecuted in the circuit court by a village attorney, although an assistant State’s Attorney did appear at the sentencing hearing. There is nothing contained in the record of this case, however, indicating whether or not the State’s Attorney of McHenry County gave written permission to the village attorney to conduct this prosecution, as is authorized by section 16 — 102 of the Illinois Vehicle Code.

The First District of this court considered similar circumstances in three companion cases decided since the amendment of section 16— 102. In Village of Hoffman Estates v. Spychalski (1975), 33 Ill. App. 3d 83, 337 N.E.2d 463, the village sought to appeal from an order which had dismissed a complaint for violation of the Illinois Vehicle Code for want of prosecution. The complaint had apparently been brought in the name of the People of the State of Illinois by the village and it was prosecuted by the village attorney. The reviewing court found that the village had no right to prosecute for a violation of the Illinois Vehicle Code and, as the record before it failed to disclose that the municipal attorney had been given written permission by the State’s Attorney to prosecute the violation, the appeal was dismissed. (See also Village of Hoffman Estates v. McWaters (1975), 33 Ill. App. 3d 87, 88, 337 N.E.2d 465; Village of Hoffman Estates v. Johnson (1975), 33 Ill. App. 3d 88, 90, 337 N.E.2d 467.) The Spychalski court relied upon City of Chicago v. Berg (1964), 48 Ill. App. 2d 251, 199 N.E.2d 49, a case decided prior to the 1974 amendment to section 16 — 102 of the Illinois Vehicle Code, where it was held that a criminal complaint for violation of a municipal ordinance brought by the municipality in the name of the People of the State of Illinois was defective and the judgment based on it was void (48 Ill. App. 2d 251, 257.) In Spychalski, the court concluded, on the authority of Berg, that the appeal must be dismissed. See also People v. Koetzle (1976), 40 Ill. App. 3d 577, 579, 352 N.E.2d 433.

We note that when City of Chicago v. Berg was decided in 1964 the complainant municipality had no authority by statute to prosecute a case in the name of the State nor could it obtain such authority by written delegation from the State’s Attorney. However, in the present case, as in Spychalski, the right to prosecute the Illinois Vehicle Code violations was authorized by section 16 — 102, and it may well have been delegated to the respective municipalities by the State’s Attorney. It is not apparent on the record of this case that such authority was not and could not be so delegated, as was true when Berg was decided. If the authority to prosecute was, in fact, delegated by the State’s Attorney, the statutory requirement has been met and the village was the proper prosecuting party.

Defendant does not suggest the insufficiency of the complaints charging him with these offenses (see, e.g., People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437), nor does he assert the trial court lacked subject-matter jurisdiction (Ill. Const. 1970, art. VI, sec. 9). In reliance upon Spychalski, he contends only that as proof of a delegation of prosecutorial authority to the village is not found in the record of this case his convictions are void.

Where they have chosen to delegate authority to prosecute Illinois Vehicle Code violations to a municipality, it is probable the State’s Attorneys of the various counties do so in more than one way. Some may give such permission on a case by case basis; others do so by a general letter of permission to the municipality. (See City of Decatur v. Curry (1976), 39 Ill. App. 3d 799, 800, 804, 350 N.E.2d 816.) To require, as urged by defendant, that the municipal attorney offer proof in the record of each case that prosecutorial permission has been given by the State’s Attorney appears to be an unreasonable and unnecessary burden to impose on the municipal attorneys and State’s Attorneys and would also unduly burden the record keeping responsibilities of the circuit clerks. An analogous argument to that offered by defendant might be to require that the record establish that the prosecutor and trial judge hold their respective offices.

The record of this case does not disclose that the authority of the village to prosecute this case was challenged by defendant in the trial court, nor did he raise this issue in his post-trial motion, and it is therefore waived. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091; People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227.) Nor do we consider this issue to give rise to a jurisdictional prerequisite not subject to the waiver rule. See People v. Bradford (1975), 62 Ill. 2d 21, 22, 338 N.E.2d 182; In re Custody of Sexton (1981) , 84 Ill. 2d 312, 319-21, 418 N.E.2d 729; People v. Harding (1966), 34 Ill. 2d 475, 482-83, 216 N.E.2d 147; People v. Rehfeldt (1982) , 103 Ill. App. 3d 368, 371, 431 N.E.2d 450.

We decline to follow Village of Hoffman Estates v. Spychalski and conclude defendant has waived this issue by failing to raise it in the trial court.

Defendant also contends the trial court erred in failing to grant a mistrial or strike the testimony of Sergeant Wales when it was determined he had spoken to Officer Hughes in violation of the court’s sequestration order. He further argues that the sanction imposed by the court of prohibiting further testimony regarding the walking test performed at the police station was error requiring reversal.

Whether a witness who has violated an exclusion order should be permitted to testify or whether such testimony should be stricken from the record or a mistrial declared is within the discretion of the trial court, whose determination will not be disturbed on appeal absent a clear abuse of discretion. (People v. Gibson (1969), 42 Ill. 2d 519, 525, 248 N.E.2d 108.) The party asserting the existence of an abuse of discretion bears the burden of proof. (People v. Decker (1974), 19 Ill. App. 3d 86, 94, 311 N.E.2d 228, appeal denied (1974), 56 Ill. 2d 588.) A violation of a court order prohibiting witnesses from talking to one another does not result in the automatic exclusion of a witness’ testimony because it punishes a litigant by depriving him of testimony which may be material to his case without fault of his own. (People v. Johnson (1977), 47 Ill. App. 3d 362, 369, 362 N.E.2d 701.) The dominant inquiry is whether the exclusion or inclusion of the testimony would prejudice the affected party.

With regard to the trial court’s denial of defendant’s request for a mistrial or for the striking of Sergeant Wales’ testimony, no prejudice resulted. Defendant argues that the record reveals that Sergeant Wales’ description of defendant’s performance of the sobriety tests was “patterned” after that given by Officer Hughes. He points to specific testimony in which certain similar words were used and argues the improbability of defendant performing the two tests in the same manner, assuming two sets of tests were given. This argument must fail, however, because although defendant had the opportunity to question Officer Hughes as to the contents of his conversation with Sergeant Wales, he never explored the specific information conveyed and thus his conclusion that Sergeant Wales’ description was patterned after that given by Officer Hughes is mere speculation. (See People v. Schott (1976), 39 Ill. App. 3d 266, 274, 350 N.E.2d 49, cert. denied (1977), 429 U.S. 1097, 51 L. Ed. 2d 544, 97 S. Ct. 1115.) Indeed, the evidence adduced during the examination of Officer Hughes reveals that he did not know that Sergeant Wales said the tests were given at the police station and that he asked Wales only whether he was present when the second set of tests was administered.

Defendant also argues that the order entered by the court precluded him from interrogating Officer Hughes before the jury about the conversation in order to impeach his credibility. Courts have held that a litigant’s ability to examine a witness before the jury can alleviate prejudice resulting from a violation of a court exclusion order. (See Bulliner v. People (1880), 95 Ill. 394, 400; People v. Farris (1980), 82 Ill. App. 3d 147, 154-55, 402 N.E.2d 629, appeal denied (1980), 81 Ill. 2d 595.) However, although the sanction entered by the trial court differed from that requested by defendant in that defendant wanted Sergeant Wales’ testimony to be stricken, defendant never objected to the order entered by the trial court when it was entered. Furthermore, defendant never attempted to examine Officer Hughes before the jury about his conversation with Sergeant Wales, and it is unknown whether the trial court would have forbidden such an examination.

Generally, where the trial court refuses to allow a witness to testify, the affected party must show that he was deprived of material testimony without his own fault. (People v. Johnson (1977), 47 Ill. App. 3d 362, 369, 362 N.E.2d 701.) In this case, defendant was deprived of the ability to impeach the testimony of both Sergeant Wales and Officer Hughes by showing that they engaged in a conversation in which they may have discussed their testimony. Although this impeachment evidence could be material in a close case, since Officer Hughes’ testimony while a witness for the State occurred prior to the violation of the court order and, combined with the breathalyzer test results, clearly shows defendant’s guilt for driving while under the influence of alcohol and speeding, no reversible error occurred.

Accordingly, the judgment of the circuit court of McHenry County is affirmed.

Affirmed.

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

      The opinion also states “the action was brought in the name of Village of Hoffman Estates.” (33 Ill. App. 3d 83, 85.)