author: JUSTICE SULLIVAN

text:
    THE BOARD OF EDUCATION OF COMMUNITY SCHOOL DISTRICT NO. 220, Plaintiff-Appellee, v. THE VILLAGE OF HOFFMAN ESTATES, Defendant-Appellant.
    First District (5th Division)
    No. 83—2514
    Opinion filed August 3, 1984.
    Richard N. Williams, of Hoffman Estates, for appellant.
    Margante Primozich Loew, of Brydges, Riseborough, Morris, Franke & Miller, of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant village of Hoffman Estates (village) appeals from the granting of summary judgment for plaintiff Board of Education of Community School District No. 220 (District) in an action seeking a declaration of District 220’s rights as a beneficiary under the terms of certain annexation agreements. The sole question before us is whether District 220 acquired any rights under the agreements which could not be altered by subsequent amendment mutually agreed to by the contracting parties.

The facts of the case are largely undisputed. In 1975, two groups of developers (Owners), desiring to have certain tracts of land annexed to the village, entered into annexation agreements with the village. Each agreement provided in relevant part that the Owners would pay to the village “the sum of $135 per residential unit as developed.” The funds paid were to be held in escrow “for the benefit of education,” and the agreements further provided that during the five-year period following execution of the agreements, the parties thereto would use their best efforts to cause the area annexed to be included within the boundaries of School District 15. If, at any time during the prescribed period, their efforts were successful, the funds were to be paid to School District 15. If, however, their efforts were unsuccessful, then at the end of the five-year period the escrowed funds were to be paid to District 220.

The Owners and the village were not successful in their attempts to have the area in question included within the boundaries of District 15, and shortly before the expiration of the five-year period, they amended their agreements, extending the period to nine years and providing that they would use their best efforts to cause the area to be included within the boundaries of “School Districts 15 or 54.” Again, if their efforts were unsuccessful, then at the end of the nine-year period the funds were to be paid to District 220. At all pertinent times, the land which is the subject of the annexation agreements has been "within the boundaries of District 220, and it has provided free education for the children residing in that area, as it is required to do under the Illinois School Code. (Ill. Rev. Stat. 1981, ch. 122, par. 10— 20.12.) The funds required by the agreements have been paid and are currently being held in escrow.

After the five-year period prescribed by the original annexation agreements expired, District 220 brought the instant action seeking a declaration that it was presently entitled to receive the escrowed funds on the ground that it was a donee beneficiary of the contracts between the Owners and the village, and that the contracting parties had no power to alter the terms of their agreements without its consent. The trial court granted summary judgment for District 220, ruling that, as a matter of law, execution of the agreements created a vested right, subject to divestment, in District 220, and that the purported amendments were therefore ineffective. Since the five-year period had elapsed, and the “divesting condition subsequent,” i.e., inclusion of the land within the boundaries of School District 15, had not occurred, the trial court ordered that the escrowed funds be paid to District 220. This appeal followed.

Opinion

The issue presents us with the question of when the rights of a third-party beneficiary under a contract become “vested”; that is, at what point is the third-party’s right to demand performance irrevocable and unamendable. The parties herein are in agreement that District 220’s status is that of a donee beneficiary, since the promise made for its benefit was a gift rather than a means of repaying some debt owed it by the village. This point being conceded, the sole issue is whether the Owners and the village retained any right to amend that portion of their agreements which conferred a benefit upon District 220.

It is established that third-party beneficiaries have enforceable rights under contracts made for their benefit. (See, e.g., Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 178 N.E. 498 (creditor beneficiary); Riepe v. Schmidt (1916), 199 Ill. App. 129 (donee beneficiary).) However, we are aware of only one case directly concerned with the question of subsequent revocation or amendment. In Bay v. Williams (1884), 112 Ill. 91, 1 N.E. 340, Bay purchased land from Newman and Sissons, promising as partial consideration therefore to pay certain notes owed by them to Williams. Subsequently, Sissons agreed to release Bay from that promise. When Williams sought to recover from Bay, he asserted the release as a defense, and the supreme court, in a divided opinion, held that the promise to pay “invests the person for whose use it is made with an immediate interest and right, as though the promise had been made to him. This being true, the person who procures the promise has no legal right to release or discharge the person who made the promise, from his liability to the beneficiary.” (112 Ill. 91, 97, 1 N.E. 340, 342-43.) Subsequent cases, relying on Bay, have stated that the rights of a creditor beneficiary become vested immediately upon execution of the contract (see, e.g., Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630; Pliley v. Phifer (1954), 1 Ill. App. 2d 398, 117 N.E.2d 678), although none of those cases involved an attempted rescission or modification of an original agreement. It appears that the same rule is applied to contracts made for the benefit of a donee beneficiary (see, e.g., Joslyn v. Joslyn (1944), 386 Ill. 387, 54 N.E.2d 475), but it seems to be based more on an analogy to the law of trusts or gifts than to the law of contracts. We are aware that this rule is contrary to that expressed in the Restatement (Second) of Contracts, which states that, in the absence of language in the contract making the rights of a third-party beneficiary irrevocable, “the promisor and promisee retain power to discharge or modify the duty by subsequent agreement” until such time as the beneficiary, without notice of the discharge or modification, “materially changes his position in justifiable reliance on the promise or brings suit on it or manifests assent to it at the request of the promisor or the promisee.” (Restatement (Second) of Contracts sec. 311 (1981).) Furthermore, it appears that the majority of jurisdictions have now adopted the rule as set forth in the Restatement (see 17 Am. Jur. 2d Contracts sec. 317 (1964); 17A C.J.S. Contracts sec. 373 (1963), and cases cited therein), perhaps on the theory that the parties to a contract should remain free to amend or rescind their agreement so long as there is no detriment to a third party who has provided no consideration for the benefit received.

In the instant case, the village does not contend that we should alter the rule established 100 years ago in Bay v. Williams (1884), 112 Ill. 91, 1 N.E. 340, a rule which apparently has not been considered in the light of modern trends in the law of contracts, and we therefore need not express our views thereon. Instead, the village asserts that the above rule is inapplicable where, as here, there are two possible beneficiaries of the promise, and the ultimate beneficiary could not be determined until certain specified events occurred. Under those circumstances, it maintains, no rights could have vested in District 220, since it was not assured of being a beneficiary of the promise, and the parties should therefore be free to alter their agreement. It is District 220’s position that the right became vested as soon as the Owners and the village executed the agreements, although the right was subject to divestment. Therefore, it posits, no amendment was possible. Unfortunately, although both sides cite several cases which purportedly support their arguments, none of the cases involve a situation even remotely analogous to the facts before us. All of the cases cited involved a single, identifiable beneficiary, whereas here, there are quite obviously two possible beneficiaries.

In considering this issue, we begin with the premise, accepted by most commentators, that a third-party beneficiary contract may exist even if the beneficiary is not named, not identifiable, or not yet in existence, so long as the beneficiary is identifiable or in existence when the time for performance arrives. These same commentators note, however, that such beneficiaries have no vested rights until they are identified, and that contracts made for their benefit may therefore be rescinded or modified by the parties thereto until such time as the beneficiaries are identified. (See, e.g., J. Calamari & J. Perillo, Contracts sec. 17 — 9 (2d ed. 1977); 4 Corbin, Contracts sec. 781 (1951); L. Simpson, Contracts sec. 122 (2d ed. 1965). See also 17A C.J.S. Contracts sec. 373 (1963).) We have indicated that such agreements are valid in Illinois, as where a contract provides that final payment will be withheld until a general contractor provides proof that all mate-rialmen and subcontracts have been paid. (See Town & Country Bank v. James M. Canfield Contracting Co. (1977), 55 Ill. App. 3d 91, 370 N.E.2d 630.) Clearly, under such contracts, the third-party beneficiaries are not identifiable until they provide materials or service, and it could never be seriously contended that they had any vested rights prior to that time which would preclude the contracting parties from modifying the agreement.

Our courts have never considered the question of modification or rescission under similar facts, although the few cases from other jurisdictions which have addressed the issue indicate that until the third-party beneficiary is identified, no vested rights arise. In Stanfield v. W. C. McBride, Inc. (1939), 149 Kan. 567, 88 P.2d 1002, Stanfield was awarded judgment for injuries he suffered when struck by an automobile owned by Miller-Morgan Motor Co. (Miller-Morgan) and driven with its consent by an employee of W. C. McBride, Inc. (McBride). McBride paid the judgment, then sought to recover from Miller-Morgan’s insurer, claiming that its employee was covered under the omnibus clause of Miller-Morgan’s automobile policy. The evidence disclosed that the omnibus clause had been stricken from the policy eight days before the accident occurred, and the court ruled that while McBride’s employee was a potential third-party beneficiary under the contract of insurance, he had no vested rights thereunder until such time as he became identified as an actual beneficiary, and the parties to the contract were free to modify or rescind their agreement prior to that time. Accord, Winchester v. Sipp (1960), 252 Iowa 156, 106 N.W.2d 55.

Similar reasoning is evident in Associated Teachers of Huntington, Inc. v. Board of Education (1973), 33 N.Y.2d 229, 351 N.Y.S.2d 670, 306 N.E.2d 791. There, a contract between the association and the school board provided that sabbatical leaves would be granted to as many as 3% of the staff per school term. Twenty-one teachers submitted applications, and it was understood that not all could be granted leave. Prior to considering the applications, the school board stated that, due to financial considerations, no leaves would be granted, and the association brought an action to enforce the agreement. The court noted that the individual teachers had no vested rights, since none was assured of being granted leave and the third-party beneficiaries under the contract had not yet been identified. However, the court went on to hold that the association, as promisee, had a right to enforce the contract.

While the cases cited are not directly on point, we believe that they are analogous. Here, although two entities are named in the contract, it could not be ascertained until certain events occurred which would be the third-party beneficiary. Thus, while it is true that the field of potential beneficiaries is much smaller than in the above-cited cases, ultimately — by the terms of the contract — there could be only one beneficiary of the funds held in escrow “for the benefit of education,” and that beneficiary could not be identified until the time for performance arose; i.e., until the land was included within the boundaries of School District 15 or five years elapsed, whichever event occurred first. It does not appear to us that District 220 was any more certain to be the beneficiary than was District 15 or that it had any greater claim to the funds than did District 15. District 220 points out that during that five-year period, it was providing education for the children residing in the area, and apparently asserts that we may conclude from that fact that the phrase “for the benefit of education” meant “for the benefit of District 220.” We disagree. District 220, in providing education for the children, was doing what it is required to do under the School Code, a duty which it might have had for only a short time should the school boundaries have changed. It appears to us from the language of the contract that the parties thereto intended to confer a benefit on whichever school district would be serving the area over the long term, and they apparently hoped that that district would be District 15 rather than District 220.

Based on the clear language of the contract, it is our view that District 220 was merely a potential beneficiary of the promise to pay certain specified sums for the benefit of education, and the undisputed facts establish that the actual beneficiary of the promise had not yet been identified at the time the village and the Owners modified their agreement. Since neither school district was identified as the beneficiary, neither had a vested right under the contract, and we hold that under those circumstances the parties were free to modify their agreement.

For the foregoing reasons, the order of the trial court is reversed, and the cause remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

LORENZ and PINCHAM, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JOHN M. KARNS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRENDA DEAN, Defendant-Appellant.
    Fifth District
    No. 5—83—0348
    Opinion filed July 31, 1984.
    Rehearing denied September 4, 1984.

      G. Edward Moorman, of Groshong, Moorman & Fahrenkamp, Ltd., of East Alton, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JOHN M. KARNS

delivered the opinion of the court:

Defendant, Brenda E. Dean, appeals from the judgment of the circuit court of Madison County revoking her sentence of probation and imposing a term of imprisonment.

In May 1982, defendant pleaded guilty to the offense of forgery (Ill. Rev. Stat. 1981, ch. 38, par. 17 — 3(a)(2)) following a charge that she knowingly and with the intent to defraud delivered to a grocery store clerk a check purported to have been made by another. She was sentenced to a period of two years’ probation.

In September 1982, the State filed a petition to revoke probation, charging that the defendant violated the terms of her probation in that she knowingly and and unlawfully acquired possession of a Schedule II controlled substance, phenmetrazine (Ill. Rev. Stat. 1981, ch. 56x/2, pars. 1206(a), (d)(3)), by presentation of altered official prescription forms to a pharmacist, in violation of section 406(b)(3) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1406(b)(3)).

At the probation revocation hearing, Francis E. Meyers, a Wood River police officer, testified that he was contacted by Marsha Bursner, a pharmacist, regarding three prescriptions she had received and which appeared to her to have been altered.

Bursner testified that the defendant presented two prescriptions from Dr. Suresh Chand on separate occasions in June and that both were filled. Among the drugs dispensed on each occasion was “Prelu-din,” which she testified was a manufacturer’s name for the generic drug phenmetrazine hydrochloride.

Dr. Chand, defendant’s personal physician, testified over objection that he wrote the original prescriptions at issue. In each instance, he testified, he had prescribed and written “Prelu-2” on his prescription pad, and in each instance it was altered to read “Preludin.” Dr. Chand also stated that the generic name for “Preludin” is phenmetra-zine hydrochloride.

Defendant contends that the trial court erred in admitting over objection Dr. Chand’s testimony because it violated the physician-patient privilege. In particular, defendant argues that Dr. Chand should not have been required to divulge the specific medication he prescribed, “Prelu-2,” because it was contrary to her right to protection from disclosure and an invasion of her right to privacy. We do not agree.

Section 8 — 802 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 8 — 802, formerly Ill. Rev. Stat. 1981, ch. 51, par. 5.1), provides in relevant part:

“Sec. 8 — 802. Physician and patient. No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient ***.”

None of the enumerated exceptions are applicable here.

Dr. Chand’s disclosure of the prescribed medication does not fall within the ambit of the statute. His testimony did not disclose any information which he had acquired from her. Rather, it is evident that Dr. Chand’s testimony merely established a variance between what was prescribed and what was presented to the pharmacist and acquired by the defendant.

Defendant also relies on “Illinois Revised Statutes, chapter 51, sec. 5.2” for the proposition that Dr. Chand’s testimony was precluded by the psychiatrist-patient relationship. Inasmuch as this section relating to this privilege was repealed by Public Act 80 — 1508, article II, section 5, effective January 9, 1979 (see Ill. Rev. Stat. 1979, ch. 51, par. 5.2), and defendant has failed to cite other pertinent statutory authority or make argument relating thereto, the issue is waived.

Defendant further challenges the sufficiency of the evidence to support her probation revocation. In this regard, she argues that since Dr. Chand’s testimony was incompetent and inadmissible evidence the court erred in relying upon it. She also contends that the evidence was insufficient to establish that either “Preludin’’ or “phenmetrazine hydrochloride” are controlled substances.

In proceedings to revoke probation the State has the burden of going forward with the evidence and proving the alleged violation by the preponderance of the evidence. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6—4(c).) Dr. Chand’s testimony was neither incompetent nor inadmissible. It was properly considered as some evidence regarding the issue of unlawful acquisition of a controlled substance.

Drs. Chand and Bursner both testified that “Preludin’’ is a trade name for phenmetrazine hydrochloride. Bursner further testified that “Preludin’’ is a “Class 2 narcotic” and a controlled substance. Phenmetrazine is a Schedule II controlled substance and so are “its salts.” (Ill. Rev. Stat. 1981, ch. 56V2, par. 1206(d)(3).) Hydrochloride is defined as “a compound of hydrochloric acid — used esp. with the names of organic bases for convenience in naming salts.” (Webster’s Third New International Dictionary 1108 (1971).) We believe the record is sufficient to support the trial court’s finding that phenmetrazine hydrochloride or “Preludin’’ are controlled substances.

Defendant next contends that her sentence should be vacated because the trial court failed to give her an opportunity to make a statement before sentencing. The sentencing hearing transcript clearly refutes this contention. It contains 12 pages of testimony from the defendant. Although the trial court did not specifically ask her if she wished to make a statement, the allowance of her testimony clearly satisfied the statutory requirement. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4—1(a)(5); People v. Miller (1979), 72 Ill. App. 3d 416, 390 N.E.2d 971.

Defendant next contends that her sentence should be vacated because the trial court improperly considered a pending theft charge as a basis for its sentence determination. While it is true that the trial court referred twice to the pending theft charge and while it is generally error for a trial court to consider arrests and charges not followed by convictions, it is nevertheless proper to consider such arrests and charges when a convicted defendant has, as here, made an application for probation. (People v. Andreano (1978), 64 Ill. App. 3d 551, 558, 381 N.E.2d 783, 789, and cases therein cited.) Mere reference to a pending charge does not, of itself, show the judge’s reliance thereon in imposing sentence. (64 Ill. App. 3d 551, 558, 381 N.E.2d 783, 789.) Moreover, at the hearing on defendant’s post-trial motion the trial court recognized this principle and further added:

“I wasn’t that concerned about it [the theft charge], although I commented on it and stated that I think there are other, certainly other stronger reasons and more clear reasons in the record which indicated that the Defendant is not a good risk for probation, and if that causes any problem, it really did not have any bearing on the sentence. I just commented on it, and the court will specifically disregard it. *** So I don’t think it had any great impact or any impact at all really on the sentence imposed by the Court; and that the sentence of the Court is substantially sustained by the other evidence before the Court.”

Indeed, the trial court stated that it recognized the defendant’s extensive criminal history, noting in particular her three retail theft convictions and two forgery convictions as well as “several other misdemeanor convictions.” In short, we find no merit in defendant’s contention that she was prejudiced by the trial court’s reference to the pending theft charge.

Defendant finally contends that her sentence should be vacated because the trial court improperly considered the specific length of a prior forgery conviction sentence in imposing the instant sentence. Upon her conviction for forgery in 1978, the defendant was sentenced to 28 months’ incarceration. In imposing the three-year sentence in the instant case, the court commented that sentences should get progressively more severe for repeat offenders and that it “would make no sense” to give a shorter sentence than the one defendant served for a prior same offense. We find nothing inherently wrong with these comments, nor has defendant cited any authority in support of her conclusion that such comments were improper. The record does not support defendant’s assertion that the sentence was not based upon the original offense. The court said,

“I think a sentence imposed on like felonies seem to give an indication of the history of the defendant in a way. It’s just another one of the many things which the Court will look at, and it was certainly not the sole reason the sentence was imposed. It was certainly not even a substantial reason why the sentence was imposed, but it is something which as I stated I looked at along with all the other matters in the case as part of the criminal history *** of the Defendant.”

As the State points out, here the sentence imposed was only one year in excess of the minimum for a forgery conviction, despite the fact that it was her third forgery conviction and despite her six other convictions. We find no error as alleged.

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

Affirmed.

JONES and HARRISON, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD G. CUNNINGHAM, Defendant-Appellant.
    Third District
    No. 3—83—0808
    Opinion filed August 10, 1984.
    Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Joan C. Scott, State’s Attorney, of Lewistown (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant-appellant, Edward G. Cunningham, was convicted of two counts of aggravated indecent liberties with a child and one. count of indecent liberties with a child after a stipulated bench trial in Fulton County. The trial court imposed a sentence of 12 years’ imprisonment for each of the two counts of aggravated indecent liberties and a sentence of 4 years for the one count of indecent liberties. All three sentences were made concurrent.

On appeal, the defendant contends that he was denied his constitutional right to effective assistance of counsel throughout the trial court proceedings because his public defenders labored under a conflict of interest. The public defenders had represented two potential adverse witnesses, who pleaded guilty to charges of sexual assault involving the same complainant as in two of the counts against the defendant.

The pertinent facts in this case are as follows. On April 12, 1983, the defendant sought counseling with Dr. Harold Iwashita, a registered psychologist. The defendant revealed that he had been having sexual contact with some children. Iwashita reported defendant’s conduct to the Department of Children and Family Services, which in turn contacted the Fulton County State’s Attorney. Sergeant Daly of the Fulton County sheriff’s office then conducted interviews with the defendant, his stepson, Gordon Griffith, and his three step-grandsons, David Griffith, Richard Roberts, and Joseph Roberts.

The interviews revealed frequent sexual contact among the members of the family. The defendant admitted to sexual contact with his three step-grandsons and with his stepson. The defendant was then charged by information with the above offenses. On April 14, 1983, Gordon Griffith and Richard Roberts were charged with taking indecent liberties with David Griffith. The trial court appointed Fulton County public defender Thomas Ramsey to represent all three men. On April 25, 1983, each entered a plea of not guilty, and they continued to be represented by the public defender.

On July 13, 1983, Richard Roberts, represented by public defender Ramsey, entered a negotiated plea of guilty to two counts of indecent liberties with a child. He received a sentence of 30 months’ probation, on condition that he spend 120 days in jail and seek mental health treatment. On July 15, 1983, public defender Ramsey filed a motion to suppress the defendant’s statements to the Fulton County authorities. The motion alleged that the statements were obtained only through a breach of a psychologist-patient privilege that existed between Dr. Iwashita and the defendant. On August 1, 1983, Gordon Griffith, represented by assistant public defender, John Clark, also entered a negotiated plea of guilty to one count of indecent liberties. Griffith received the same sentence as Roberts.

On September 13, 1983, a hearing was held on the defendant’s motion to suppress. After testimony was heard Ramsey informed the court that a possible conflict of interest existed because Richard Roberts and Gordon Griffith were potential witnesses for the State. Ramsey asked leave to withdraw as the defendant’s counsel if the motion to suppress was denied. The trial court later denied the motion. However, Ramsey did not subsequently file a written motion to withdraw.

On October 24, 1983, a stipulated bench trial was held at which the defendant was represented by attorney Clark. The defense stipulated to what Joseph Roberts, David Griffith, and Sergeant Daly would testify to if they were called as witnesses. The defense presented no evidence and the trial court convicted the defendant on all three counts. The trial court conducted a sentencing hearing on December 7, 1983. Sergeant Daly testified in aggravation as to the defendant’s statements on April 13, 1983, and the court took judicial notice of the files of Gordon Griffith and Richard Roberts. The court then imposed sentence.

The sole issue on appeal is whether the defendant was denied effective assistance of counsel due to a per se conflict of interest.

In criminal proceedings, a defendant is guaranteed the right to assistance of counsel by the constitutions of both the United States and the State of Illinois. (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, sec. 8.) The right to effective assistance of counsel requires that a defendant’s attorney “not represent conflicting interests or undertake the discharge of inconsistent duties.” (People v. Kester (1977), 66 Ill. 2d 162, 166, 361 N.E.2d 569, 571.) Once an attorney has received the confidence of a client, he cannot serve an interest adverse to that client regarding the same general subject matter of his representation, even after the termination of his services. (People v. Coslet (1977), 67 Ill. 2d 127, 132, 364 N.E.2d 67, 69-70; People v. Gerold (1914), 265 Ill. 448, 477, 107 N.E. 165, 177.) Thus, the Illinois Supreme Court has adopted a per se conflict of interest rule whereby a defendant need not allege or prove prejudice “in cases where a defense counsel, without the knowledgeable assent of the defendant, might be restrained in fully representing the defendant’s interests due to his or her commitments to others, with even closer scrutiny being applied where counsel is appointed for defendant.” People v. Coslet (1977), 67 Ill. 2d 127, 133, 364 N.E.2d 67, 70.

The defendant contends that he was denied effective assistance of counsel because Ramsey and Clark labored under a per se conflict of interest when they represented the defendant while at the same time representing Richard Roberts and Gordon Griffith, respectively. In support of this contention the defendant maintains that Gordon Griffith and Richard Roberts were potential witnesses against him because they were charged with sexual misconduct toward David Griffith, who was also the complainant for two charges against the defendant. The defendant further maintains that even though Griffith and Roberts had been convicted and sentenced, the attorneys’ obligation to Griffith and Roberts continued as to the subject matter of the representation and that the confidential relationship between his attorneys and the two potential State witnesses could have affected their representation of him. He also points out that evidence of his activities with Griffith and Roberts was presented in aggravation at sentencing.

In response, the State contends that no per se conflict of interest existed because the public defender’s office terminated its representation of Gordon Griffith and Richard Roberts before the defendant’s stipulated bench trial. Therefore, according to the State, the defendant had the burden of showing actual conflict at trial and resulting prejudice, and since he failed to do so, his convictions should be affirmed.

Initially we note that the defendant has not waived the conflict of interest issue. It is true that the defendant, Gordon Griffith, and Richard Roberts all appeared before the trial court on April 25, 1983, for arraignment. All three were represented by attorney Ramsey and all three pleaded not guilty. Thus, the defendant was aware of his attorney’s representation of Griffith and Roberts. However, a strong showing of an intentional and knowing waiver of a conflict of interests issue is required for there to be a waiver. (People v. Mathes (1979), 69 Ill. App. 3d 275, 281, 387 N.E.2d 39, 43.) Here, there is no indication in the record that the defendant was ever advised of either an existing or potential conflict of interest.

We now consider several cases cited by the defendant that we find persuasive. In People v. Johnson (1970), 46 Ill. 2d 266, 265 N.E.2d 869, the defendant was jointly indicted with Westley and Lewis. The public defender was appointed to represent all three defendants. Prior to the defendant’s trial, the indictment against Lewis was dismissed and he was granted immunity. In addition, Westley withdrew his plea of not guilty and entered a plea of guilty. Lewis testified for the State at the defendant’s trial. On appeal, the Illinois Supreme Court rejected the State’s argument that the dismissal of the indictment against Lewis terminated the attorney-client relationship between Lewis and the public defender and that therefore no conflict of interest existed. Thus, even though it was technically true that the attorney-client privilege was severed, the court refused to put form above substance and reversed the defendant’s conviction.

In People v. Drysdale (1977), 51 Ill. App. 3d 667, 366 N.E.2d 394, the defendant was charged with the offenses of burglary and theft. Called as a witness on behalf of the State at the defendant’s trial was a man whom the defendant’s attorney had represented at a prior involuntary commitment proceeding which resulted in an adjudication that the individual was in need of mental treatment. A per se conflict of interest was found to exist because of the possible inability of defendant’s attorney to effectively cross-examine the State’s witness. The court held that a per se conflict is found where “defense counsel’s past or present commitment to others raises the possibility of an unwillingness or inability to effectively represent a defendant and in such a situation a reversal will be warranted even without a showing of any actual prejudice resulting thereby.” People v. Drysdale (1977), 51 Ill. App. 3d 667, 670, 366 N.E.2d 394, 396.

In People v. Arreguin (1981), 92 Ill. App. 3d 899, 416 N.E.2d 402, the defendant was charged with the offense of criminal damage to property. His attorney’s law firm was retained by a hospital which was the defendant’s victim in an unrelated case then pending against the defendant. At the defendant’s sentencing hearing on the criminal damage to property case, the State presented in aggravation the testimony of an administrator from the hospital. The administrator’s testimony related to the misdemeanor previously committed by the defendant against the hospital. We found that a per se conflict of interest existed and thus there was no need for the defendant to show actual prejudice, even though counsel did not represent the defendant and the hospital with regard to the same offense.

The reasons for finding a conflict of interest in the present case are more compelling than in the cases cited above. In Johnson, the Illinois Supreme Court found that a conflict of interest existed even though the indictment against the State’s witness was dismissed and he was granted immunity prior to testifying against the defendant. Here, while both Griffith and Roberts had been sentenced prior to the defendant’s stipulated bench trial, they were both subject to ongoing sentences of probation. In Arreguin, a per se conflict of interest existed even though defense counsel had represented the State’s witness in a totally unrelated cause. Here, even though the defendant, Griffith, and Roberts were not codefendants, the charges against all three were interrelated. All three were charged with sexual misconduct involving David Griffith. Thus, the possibility that information gained from the two potential State witnesses could have affected the public defenders’ representation of the defendant was greater than in Arre-guin.

It is true that in Johnson, Drysdale, and Arreguin the State witnesses actually testified against the defendants either at trial or during sentencing. However, we find that this distinction is not crucial. In the present case a potential conflict of interest arose when Ramsey and Clark represented Roberts and Griffith while at the same time representing the defendant. Since Griffith and Roberts were possible State witnesses, both attorneys were subject to conflicting interests. This potential conflict of interest may have affected Ramsey’s decision to rely totally on the motion to suppress instead of also pursuing a psychological defense. It may also have affected counsels’ decision to proceed to a stipulated bench trial, which allowed them to avoid having to cross-examine Griffith and Roberts.

We find that a per se conflict of interest existed and that the defendant’s convictions must be reversed. While there has been no showing that either Ramsey or Clark failed to represent the defendant with diligence and resoluteness, such proof is unnecessary when, as here, a defendant is represented by counsel laboring under possible conflicts of interest. To require such proof would be unfair to the defendant, “for who can determine whether his representation was affected, at least, subliminally, by the conflict.” People v. Stoval (1968), 40 Ill. 2d 109, 113, 239 N.E.2d 441, 444.

We disagree with the State that People v. Kloiber (1981), 95 Ill. App. 3d 1061, 420 N.E.2d 870, and People v. Strohl (1983), 118 Ill. App. 3d 1084, 456 N.E.2d 276, require that we reach an opposite finding. In Kloiber, the defendant was charged with murder and armed robbery. The public defender who was appointed to represent the defendant had previously represented one of the State’s witnesses on an unrelated charge. After the State’s witness had been sentenced, he testified at the defendant’s trial regarding incriminating statements that the defendant allegedly made to him while they were both in the county jail. By contrast, in the present case, the charges against the defendant and the two potential State witnesses were related. Thus, there was a real possibility that confidential information received from Griffith and Roberts could have affected his attorneys’ representation of him.

Finally, the State cites People v. Strohl (1983), 118 Ill. App. 3d 1084, 456 N.E.2d 276, for the proposition that a per se conflict of interest may never exist in the absence of an existing active attorney-client relationship with a State’s witness at the time of the defendant’s trial. To the extent that Strohl so holds, we choose to be guided by the pronouncements of the Illinois Supreme Court in Johnson and Coslet, wherein the court indicated that a conflict of interest may arise even though an attorney no longer represents a client, since the attorney remains obligated not to disclose any confidences that he may have received from his client and not to represent conflicting interests.

For the foregoing reasons the judgment of the circuit court of Fulton County is reversed.

Reversed and remanded.

ALLOY, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    LEONARD BRONSTEIN, Plaintiff-Appellant, v. MICHAEL W. KAL-CHEIM, et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1381
    Opinion filed July 30, 1984.
    Wayne B. Giampietro, of Chicago (DeJong, Poltrock & Giampietro, of counsel), for appellant.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and Robert J. Milligan, of counsel), for appellee Charles I. Calisoff.
    Barry T. McNamara and Jean MacLean Snyder, both of Chicago (D’An-cona & Pflaum, of counsel), for other appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises out of an action brought in the circuit court of Cook County by plaintiff, Leonard Bronstein, against his former attorneys, Michael W. Kalcheim, Kalcheim & Kalcheim, Ltd., and Charles I. Calisoff. Plaintiff alleged that he incurred tax liabilities as a result of his reliance on allegedly negligent advice he received from defendants in a divorce proceeding. The trial court dismissed the action on grounds that it was barred by the dismissal with prejudice of a prior lawsuit brought by plaintiff against the defendants. Plaintiff appeals the dismissal. We affirm.

The record shows that plaintiff has attempted three times to sue these same defendants on the same cause of action. In each of the three lawsuits, plaintiff alleged that defendants represented him in a divorce action, and that they gave him incorrect advice regarding the tax consequences of a proposed settlement for the divorce. Specifically, in each suit plaintiff alleged that defendants, as his attorneys, advised him that if he would agree to pay the sum of $14,000 to his wife, Lenore Bronstein (Lenore) as part of their divorce settlement, the payment would constitute income to her and would thus be deductible from plaintiff’s gross income in the year paid. The complaint further alleged that at the time this advice was given defendants knew that the $14,000 payment would actually be used by Lenore to satisfy certain attorney fees and unpaid marital debts and therefore would not be tax deductible to plaintiff.

The complaints further alleged that plaintiff, relying upon defendants’ advice, made the $14,000 payment and deducted it on his income tax return for the year in question. When he subsequently was audited by the Internal Revenue Service, the deduction was disallowed on the basis that it was not the type of payment contemplated by the applicable section of the Internal Revenue Code. As a result, a deficiency in the amount of $7,252.05 was assessed against plaintiff. On June 19, 1981, the United States Tax Court upheld the determination by the Internal Revenue Service.

Plaintiff filed his first lawsuit against defendants, referred to now as Bronstein I, in January 1979, which was prior to the tax court’s ruling. This suit was predicated on an implied indemnity theory. The one-count amended complaint alleged that defendants had, by their acts, impliedly indemnified him to the extent of the tax savings he would have had if his deduction was allowed. Additionally, plaintiff prayed in the amended complaint “that defendants be found to have been negligent and to pay the plaintiff all damages arising out of such negligence.” Defendants filed a motion to strike and dismiss the amended complaint on grounds that plaintiff had not pleaded facts sufficient to establish breach of duty and damages.

In September 1979, the trial court granted defendants’ motion and dismissed Bronstein I with prejudice. In November 1980, the dismissal was affirmed on appeal. (Bronstein v. Kalcheim & Kalcheim, Ltd. (1980), 90 Ill. App. 3d 957, 414 N.E.2d 96.) This court stated that it need not reach the issue of defendants’ alleged negligence because plaintiff’s action was premature in that his tax liability had not yet been determined in the tax court. (90 Ill. App. 3d 957, 959-60.) The court proceeded to hold, however, that the trial court properly dismissed the amended complaint because no theory of indemnity was applicable. 90 Ill. App. 3d 957, 960.

Plaintiff filed his second suit, Bronstein II, in December 1979, which was only two months after the dismissal of Bronstein I and was prior to this court’s above mentioned decision. Defendants filed a motion to dismiss Bronstein II on res judicata grounds. In June 1980, the trial court granted the motion and dismissed Bronstein II with prejudice. Plaintiff never appealed the dismissal.

In June 1982, two years after the dismissal of Bronstein II, plaintiff filed his third lawsuit, Bronstein III. It is this third lawsuit which forms the basis for the present appeal. The allegations in the complaint filed in Bronstein III are based on the same operative facts as those set forth in the two previous suits. However, there is a difference in legal theories: in Bronstein I, plaintiff sued on a theory of implied indemnity; in Bronstein II, plaintiff sued for implied indemnity as well as for negligence and wilful misconduct, while only these two latter theories are set forth in Bronstein III. Additionally, when the first two cases were filed and decided, the tax court had not yet ruled against plaintiff, although the Internal Revenue Service had disallowed the deduction at issue.

Defendants filed motions to dismiss Bronstein III on inter alia res judicata grounds. The trial court granted the motion in a written opinion, holding that the dismissal with prejudice of Bronstein II constituted a bar to the bringing of any subsequent action involving the same parties and the same cause of action. The trial court dismissed Bronstein III with prejudice, and this appeal followed.

On appeal, plaintiff argues that the trial court erred in finding that Bronstein III was barred under the doctrine of res judicata. This doctrine provides that a dismissal on the merits rendered by a court of competent jurisdiction is conclusive of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim or cause of action. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122, 382 N.E.2d 1217.) Hence, the dismissal of Bronstein II operates as a bar to the instant suit if: (1) both suits involve the same parties or privies and the same cause of action; and (2) the dismissal of Bronstein II was an adjudication on the merits. Here, plaintiff concedes that Bronstein I, II and III all involve the same parties or their privies and the same cause of action. He disagrees, however, that the dismissals of Bronstein I and II were adjudications on the merits.

Supreme Court Rule 273 specifies what constitutes an adjudication on the merits. It provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (58 Ill. 2d R. 273.)

Therefore, under this rule' involuntary dismissals are deemed adjudications on the merits unless one of two sets of exceptions apply. The first exception requires that a statute or the order itself specify that the dismissal is not on the merits. The second exception identifies three bases for dismissal which shall not constitute adjudications on the merits — lack of jurisdiction, improper venue or failure to join an indispensable party. Here, the dismissals of Bronstein I and II were involuntary and did not fall within these two exceptions. Accordingly, the dismissals were adjudications on the merits under Supreme Court Rule 273. Moreover, the dismissals in each case were with prejudice. This court has made it clear that a dismissal with prejudice is an adjudication on the merits (Van Slambrouck v. Marshall Field & Co. (1981), 98 Ill. App. 3d 485, 487, 424 N.E.2d 679), and is deemed to be conclusive of the rights of the parties as if the matter had proceeded to trial and had been resolved by a final judgment adverse to the plaintiff (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 156, 421 N.E.2d 278).

We note that plaintiff erroneously relies on Kutnick v. Grant (1976), 65 Ill. 2d 177, 357 N.E.2d 480, and Gilbert v. Braniff International Corp. (7th Cir. 1978), 579 F.2d 411. Neither case involved a disposition on the merits. In Kutnick, a statute specified that the plaintiff’s suit could be refiled. In Gilbert, the order of dismissal itself specified that plaintiff could amend his complaint. Therefore, both cases fall within the first exception contained in Rule 273. As such, neither case is controlling in the case before us.

Plaintiff further maintains that Bronstein II was premature, and cites a number of cases holding that a dismissal on grounds that a suit is premature is not an adjudication on the merits. These cases are inapplicable, however, because Bronstein II was not dismissed on grounds that it was premature. Rather, it was dismissed with prejudice because the trial court ruled that the dismissal of Bronstein I was a res judicata bar to Bronstein II. The dismissal of Bronstein II, whether or not erroneous, was an adjudication on the merits. Brown v. Schoenberg (1970), 121 Ill. App. 2d 342, 257 N.E.2d 539.

In this appeal from the dismissal of Bronstein III, plaintiff apparently is seeking to establish that the dismissal of Bronstein II with prejudice was erroneous. However, the question of whether that dismissal was erroneous is not to be considered by this court in determining whether the dismissal operates as a res judicata bar to the instant suit. (Brown v. Schoenberg (1970), 121 Ill. App. 2d 342, 346-47, 257 N.E.2d 539.) If plaintiff indeed believed that an error was made in the adjudication of Bronstein II, his proper recourse was to directly appeal the dismissal of that suit. (Bass v. Scott (1979), 79 Ill. App. 3d 224, 225, 398 N.E.2d 236.) Having elected not to so appeal, plaintiff can not now attempt to relitigate that dismissal by filing a third lawsuit.

We note that the doctrine of res judicata serves to promote judicial economy by requiring parties to litigate, in one case, all rights arising out of the same set of operative facts, and it further prevents the unjust burden that would be suffered by a party who otherwise would be forced to continuously relitigate what is essentially the same case. (Landrum v. Time, D.C., Inc. (1980), 85 Ill. App. 3d 985, 990-91, 407 N.E.2d 777.) Here, Bronstein I, II and III represent the continuous litigation which the res judicata doctrine seeks to prevent. Accordingly, to eliminate the unjust burden of defending such relitigation, we are compelled to affirm the dismissal of Bronstein III.

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

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.

      Michael Kalcheim originally was named as a defendant in Bronstein I, but his name was dropped from the caption in the amended complaint, presumably upon discovery that the law firm of Kalcheim & Kalcheim, Ltd., of which Michael Kalcheim was an officer, was a professional corporation and could be sued as such. Similarly, in Bronstein II the law firm was named, but not Michael Kalcheim. However, the claims against the law firm in these two suits were based on allegations against Michael Kalcheim that are identical in substance to those in the present suit. In Bronstein I and II, Michael Kalcheim is described as an “agent” of party defendant Kalcheim & Kalcheim, Ltd., which the earlier complaints alleged acted “by and through” him.


author: JUSTICE LORENZ

text:
    LOSAY KENDOR, Plaintiff-Appellant, v. THE DEPARTMENT OF CORRECTIONS et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1267
    Opinion filed August 10, 1984.

      Rick Allen White, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Losay Kendor appeals from a circuit court order which affirmed the decision of defendant Civil Service Commission (Commission) to discharge him from employment with defendant Department of Corrections (Department). Plaintiff maintains that the Commission erred in receiving certain evidence and that the Commission’s decision was contrary to the manifest weight of the evidence. The following facts taken from the administrative record are material to our decision.

Plaintiff was employed as a parole counselor for 10 years prior to his discharge on June 21, 1980. A parolee under plaintiff’s charge, Jamie Soto, contacted the Cook County State’s Attorney’s office in April of 1980 to report that plaintiff had solicited a bribe. R. B. Son-neveld, an investigator for the Illinois Department of Law Enforcement (IDLE), was assigned to investigate the charge, and on May 6, 1980, he directed Soto to call plaintiff and arrange a meeting. The initial call ended inconclusively, and Sonneveld waited for plaintiff’s return call, but finally left Soto’s apartment. Soto called Sonneveld later that day and said that the meeting was set for the next day. Son-neveld requested and received $150 from the State’s Attorney’s office.

On May 7, 1980, Sonneveld and another agent went to Soto’s apartment, where Sonneveld gave Soto $100 to place in a windowed envelope and $50 to put in his pocket. When plaintiff’s car approached, Sonneveld and the other agent secreted themselves in a closet. Sonneveld heard Soto say that he had the money and ask whether they were finished; plaintiff replied yes, they were finished, and asked if Soto would accompany him out of the apartment.

The IDLE agents placed plaintiff under arrest, searched him and read him his rights. Plaintiff possessed the envelope containing $100 of the funds obtained from the State’s Attorney’s office. The agents recovered from Soto his parole discharge papers, dated October 4, 1979, as well as the remaining $50. Sonneveld testified that plaintiff claimed to be in the process of arresting Soto, but he recalled that the conversation occurred en route to the station rather than at the scene, as plaintiff believed.

On cross-examination, counsel for plaintiff asked Sonneveld to relate what Soto had said concerning his release from parole. Sonneveld stated:

“Mr. Soto had a telephone conversation with Mr. Kendor. In that phone conversation Mr. Kendor told Mr. Soto that he had gotten Mr. Soto off of parole or got him discharged from parole. He then asked Mr. Soto where he was employed and how much he made and he told him. Mr. Soto responded he worked at AT&T I believe and he made $159 a week and I believe the response from Mr. Kendor was ‘It will cost you $150 for your discharge papers.’ ”

Plaintiff’s supervisors, Gerald Gist and Eriberto Campos, testified that plaintiff had spoken to them about bribes in the weeks preceding May 7, 1980. Gist advised plaintiff to document any bribe offer and suggested that plaintiff prepare a letter describing the circumstances, mail it to himself, and then retain the sealed letter. In a second conversation between plaintiff and Gist, plaintiff mentioned “a guy from Texas” who had offered a bribe. Campos recalled that he and plaintiff had discussed an incident involving a parole officer who had been arrested for bribery. Also, Campos stated that plaintiff came into his office in late April or early May and asked what Campos would do if offered a bribe; Campos said he would call the State’s Attorney’s office to have the person arrested. Both supervisors stated that parole discharge papers could be delivered either in person or by mail, and Gist stated that when an arrest was planned in advance, “normal procedure” was to arrange for more than one agent to participate in the arrest.

Plaintiff testified that he received Soto’s discharge papers in November of 1979, after Soto had departed for Michigan pursuant to a travel permit. Plaintiff was aware that such papers could be mailed to parolees, but explained that he had been unable to locate Soto. Although he testified in his criminal trial that he had tried to contact Soto by mail and by telephone, at the administrative hearing plaintiff could not recall mailing anything to Soto in Michigan. Plaintiff stated that Soto offered the bribe during the first telephone conversation between the two after Soto’s return from Michigan, despite the fact that plaintiff notified Soto in the same conversation that he had already been discharged from parole.

Plaintiff testified further that he had earned an associate’s degree in law enforcement, a bachelor’s degree in criminal justice and political science, a master’s degree in criminal justice, and he had been taught the importance of documenting a criminal investigation. He expected the cashier’s check or money order which he had requested of Soto to serve as documentation, but he did not examine the envelope containing cash before the arrest. Plaintiff stated that he had been trained to seek guidance from his superiors when he was uncertain, and for this reason, he initiated several conversations concerning bribery. However, plaintiff’s recollection of these conversations differed markedly from that of Gist and Campos: he recalled that Gist advised placing the proceeds of the bribe in an envelope to be mailed to himself, and Campos said if he was offered a bribe, he would effect the arrest personally. Plaintiff also recalled mentioning Soto’s name several times, but said that he was sketchy about the details because he did not trust anyone in the parole office.

Although an administrative subpoena had been served upon Soto, he did not appear on the initial hearing date, September 23, 1980, and the Department of Corrections was granted a continuance over plaintiff’s objection in order to secure Soto’s attendance. The Attorney General filed a petition to enforce the subpoena, and the circuit court issued an order in October of 1980 commanding Soto to obey the subpoena. Hearing dates of November 21 and December 30, 1980, were continued due to illness of the hearing officer. The hearing was rescheduled for January 9, 1981, and Soto received notice of the new date by certified mail, but again failed to appear. Counsel for the Department of Corrections represented to the hearing officer that the Attorney General’s office had received a message indicating that Soto was ill; the hearing was continued to February 6, 1981, again over plaintiff’s objection, and Soto was again notified by certified mail.

When Soto failed to appear for the February 6 hearing, the Department of Corrections moved to admit the transcript of Soto’s testimony from plaintiff’s criminal trial into evidence to become part of the administrative record. Counsel for the Department stated that the person who answered Soto’s phone said that he was out of town and then hung up. After accepting briefs and argument, the hearing officer ruled that the transcript should be received into evidence.

The hearing officer found that clear and convincing evidence indicated plaintiff solicited and accepted a bribe, and recommended that plaintiff be discharged. The Civil Service Commission adopted the findings of the hearing officer and rendered its final decision in accordance with the recommendation on April 16, 1981. On April 26, 1983, in an action brought by plaintiff under the Administrative Review Act, the circuit court of Cook County affirmed the Commission’s decision. Plaintiff appeals.

Opinion

Plaintiff first contends that the Commission erred in considering the transcript of Jamie Soto’s testimony. He argues that the transcript was inadmissible hearsay and that Soto was not legally unavailable so as to justify its admission under the prior sworn testimony exception to the hearsay rule. Plaintiff points to the hearing officer’s explicit finding that the case turned upon the credibility of Soto and that of plaintiff, but also notes that the hearing officer never observed Soto’s demeanor, an important factor in assessing credibility.

Defendants rejoin that Soto’s continued absence despite diligent efforts to secure his presence amounted to legal unavailability and brought the transcript within the former testimony exception to the hearsay rule. Defendants also argue that plaintiff was not prejudiced by the admission of the transcript.

The Illinois Administrative Procedure Act provides in pertinent part:

“The rules of evidence and privilege as applied in civil cases in the Circuit Courts of this State shall be followed. However, evidence not admissible under such rules of evidence may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.” (Ill. Rev. Stat. 1979, ch. 127, par. 1012(a).)

Under the Administrative Review Act, failure to observe the technical rules of evidence will not justify reversal of any agency determination unless a party’s rights are materially affected and the error results in substantial injustice. (Ill. Rev. Stat. 1979, ch. 110, par. 275(2).) The opportunity to test a witness by personal cross-examination is fundamental to our fact-finding process, which process includes the adjudicative function of administrative bodies (see Ill. Rev. Stat. 1979, ch. 127, par. 1012(b); Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 373, 406 N.E.2d 863), and so hearsay evidence is generally inadmissible in administrative proceedings. (Goranson v. Department of Registration & Education (1980), 92 Ill. App. 3d 496, 501, 415 N.E.2d 1249.) Illinois recognizes an exception to the hearsay rule for former testimony, provided that the witness is unavailable and that “the matter in issue and the parties are essentially the same in both causes.” George v. Moorhead (1948), 399 Ill. 497, 501, 78 N.E.2d 216; E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 804.2 (4th ed., 1984).

The proponent of evidence is under a duty to exercise good faith and reasonable diligence to secure the presence of witnesses; what constitutes “good faith” and “reasonable” efforts is determined on a case-by-case basis after careful review of the particular facts and circumstances. (People v. Brown (1977), 47 Ill. App. 3d 616, 365 N.E.2d 15.) A similar set of facts presented the same issue for consideration in Buckley v. Cronkhite (1979), 74 Ill. App. 3d 487, 393 N.E.2d 60. There, the proponents served a subpoena upon the witness and received her assurance that she would appear; when she did not, the proponents made several attempts to contact her in person and by phone. Noting that the proponents’ failure to enforce the subpoena was not dispositive, the Buckley court found that diligence was shown. 74 Ill. App. 3d 487, 491, 393 N.E.2d 60.

In the circumstances of this case, we believe that the Department of Corrections showed diligence in its efforts to secure Soto’s presence at the administrative hearing. The Department subpoened Soto, and when he failed to appear, it sought and obtained an order enforcing the subpoena. The Department attempted to assure that Soto was notified of each continuance, and repeatedly tried to reach him by phone. Although plaintiff urges that the Department might have obtained a second order enforcing the subpoena or used more coercive language in its notice letters, we note that plaintiff opposed a continuance, which would have permitted the Department to take additional steps. In any case, we agree with the court in Buckley that the proponents’ omissions, while relevant to diligence, are not dispositive where, as here, ample affirmance steps demonstrate good faith. We conclude that Soto’s absence despite reasonable efforts to secure his presence amounted to unavailability, and the admission of his prior sworn testimony was not error.

Moreover, we would find that the admission of the transcript, if error, did not so prejudice plaintiff as to warrant reversal. On the facts, we note that counsel for plaintiff elicited Soto’s version of events in hearsay form from Sonneveld. And although the issue was characterized as one of credibility, the hearing officer’s findings actually turn upon the inherent plausibility of the witnesses’ respective stories rather than upon a resolution of particular conflicting statements.

In addition, the nature of the evidence and the proceedings tended to ameliorate the danger of considering the transcript. Soto testified under oath and was subjected to extensive cross-examination, facts generally understood to enhance the reliability of hearsay. (See Ohio v. Roberts (1980), 448 U.S. 56, 69-71, 65 L. Ed. 2d 597, 609-11, 100 S. Ct. 2531, 2540-41; People v. Kite (1981), 97 Ill. App. 3d 817, 823-24, 423 N.E.2d 524.) The preference for live testimony is based on the ability to observe the witness’ demeanor, and while recognizing its importance, we believe the preference is more meaningful in a jury trial than in an administrative proceeding, where facts are determined by a hearing officer who presumably understands the inherent dangers of hearsay evidence. (See generally 3 K. Davis, Administrative Law Treatise sec. 16:3 (2d ed. 1980).) In sum, we hold that admission of the transcript was not error, and if error, did not warrant reversal.

Plaintiff also contends that the Commission’s determination was contrary to the manifest weight of the evidence. He points to evidence that he discussed bribe offers with his supervisors, he attempted to arrange the bribe at the parole office, he requested a cashier’s check or money order from Soto, he asked Soto to accompany him out of the apartment after the exchange and he told investigators that he had planned to arrest Soto. Plaintiff argues that in view of this reliable evidence and his acquittal of criminal bribery charges, the Commission could not have found clear and convincing evidence of his guilt.

The standard of review of factual determinations by administrative bodies is whether such findings are contrary to the manifest weight of the evidence. (Starkey v. Civil Service Com. (1983), 97 Ill. 2d 91, 97, 454 N.E.2d 265.) In order for a finding to be against the plain and evident weight of the evidence, an opposite conclusion should be clearly apparent. (In re Application of County Collector (1978), 59 Ill. App. 3d 494, 499, 375 N.E.2d 553.) Our review is guided by the manifest weight standard, notwithstanding the standard of proof applicable at the administrative level. (See Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53-54, 426 N.E.2d 1276; cf. Starkey v. Civil Service Com. (1982), 105 Ill. App. 3d 904, 435 N.E.2d 176 rev’d (1983), 97 Ill. 2d 91, 454 N.E.2d 265 (standard of review limited to manifest weight without regard to standard of proof).) Of course, whether the correct standard of proof was applied is a fully reviewable legal question (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14, 398 N.E.2d 198), but we need not reach the parties’ argument concerning the standard of proof in this case, because we find that the Commission’s determination of bribery is supported by clear and convincing evidence.

Although undisputed evidence indicated that plaintiff requested a cashier’s check or money order from Soto and that plaintiff asked Soto to leave the apartment with him, the inference drawn by plaintiff, that he intended to arrest Soto, is far from apparent. Other evidence claimed by plaintiff to be undisputed was in fact disputed, as for example, the attempt to arrange the bribe at the parole office, which plaintiff stated Soto rejected and which Soto said plaintiff rejected. Too, the inferences to be drawn from plaintiff’s conversations with his supervisors and his statements after arrest depend upon whose version is believed. Our scrutiny of the record has revealed no fact which points to a conclusion opposite that of the Commission.

The hearing officer found that plaintiff’s conduct was illogical if he intended to arrest Soto. Plaintiff sought his supervisors’ advice concerning procedures in bribe situations, then ignored the advice. He was trained to document criminal investigations, but he made no attempt to document this investigation. He trusted no one in the Department, but did not think to report the bribe outside the Department, nor did he articulate any reason for such widespread distrust. He failed to arrange for a backup officer at the arrest.

Further, the hearing officer found plaintiff’s version of the bribe itself fundamentally implausible. She reasoned that if plaintiff advised Soto that he had been discharged from parole for months, as plaintiff ought to have done and said he had done, then Soto would have no reason to offer the bribe. The hearing officer correctly noted that the “clear and convincing” standard of proof did not require proof beyond a reasonable doubt, the standard upon which plaintiff was acquitted of criminal charges. (See In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 13-14, 398 N.E.2d 198, and authority cited therein.) The Commission found, through its hearing officer, that clear and convincing evidence indicated plaintiff solicited and accepted a bribe. The finding was not contrary to the manifest weight of the evidence; thus, the Commission’s decision must be sustained.

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

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE RAY, JR. (Impleaded), Defendant-Appellant.
    First District (2nd Division)
    No. 83—106
    Opinion filed August 7, 1984.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Robert A. Alvarado, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

After a jury found defendant guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1), attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 8 — 4 and 18 — 2), and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2), he was sentenced to a natural life term of imprisonment. Defendant appeals from his conviction and sentencing, raising as issues whether: (1) various instances of prosecutorial misconduct denied him a fair trial; (2) evidence of his identification at an uncounseled lineup was improperly admitted; (3) the circuit court erroneously denied his motion to discharge his jury panel; and (4) his sentence was excessive.

On June 29, 1981, John Stewart was shot to death during an attempted armed robbery in a take-out restaurant. The following day, Chicago police officers signed a complaint naming defendant as the perpetrator, and a warrant for defendant’s" arrest was issued. Defendant was arrested on August 1, 1981, and was placed in a lineup at the district police station, but no attorney was present on his behalf.

Prior to trial, the circuit court denied defendant’s motions: to suppress identification testimony and defendant’s statements based on alleged violations of his right to counsel; to suppress his statements based on voluntariness; to discharge his jury panel; and to conduct a hearing to determine how his venire was selected.

At trial, the State introduced evidence to the effect that at about 11 p.m. on June 29, 1981, two men in a van were involved in a “commotion” with three pedestrians who were standing in front of the van at 69th and Wentworth. When the light on 69th turned green, one of the pedestrians told the driver of the van to “[pjull it over,” which he did, to the east side of Wentworth. Defendant was recognized as one of the men by a witness who passed within three feet of him. The witness knew defendant’s family and was a friend of his brother. Defendant drew a gun, went up to the passenger side of the van, put his arm inside and a shot went off. The van pulled away. Defendant and his companions proceeded to the entrance of a restaurant near the southeast corner of 69th and Wentworth. The lighting was very good, as the restaurant “lights up the whole corner.” While his companions remained outside, defendant entered the restaurant and pulled the gun on the “guy that was inside.” The victim put his hands up in the air, and words appeared to be exchanged. When several shots rang out, the men on the street ran south on Wentworth, followed closely by defendant. The victim went to the door, crouching and holding his chest, and peered outside. Defendant turned around, fired another shot, and the victim fell back into the restaurant. The witness named defendant to police as the offender. That night, he identified defendant’s picture from a group of photographs he was shown. He also identified defendant in a lineup on August 1,1981.

The driver of the van testified and essentially corroborated the evidence related to the shooting incident involving the van. He and his brother returned to the scene later that night and told police what had taken place earlier. The next day he was shown some pictures and he selected that of defendant as the man who had fired the gun in the van. On August 1, 1981, he viewed a lineup and identified defendant as the assailant. The van driver’s brother testified in similar fashion, corroborating his brother’s testimony. He selected defendant’s photograph from a number of pictures he was shown by police the next day; he also identified defendant at a lineup conducted on August 1, 1981.

The proprietress of the restaurant at 6903 South Wentworth testified that the victim, a regular customer, entered her restaurant at about 11:20 p.m. on June 29, 1981, and placed and paid for his order. A man then entered the restaurant, crouching, with his right hand extended, and approached the victim. She heard three shots and called police, who arrived shortly thereafter. The victim was lying on the floor, along with his money and his Crown Royal bag. Although she saw the assailant’s face, she could not positively identify him.

A witness from the Cook County medical examiner’s office testified that the victim’s death was caused by “a gunshot wound of the chest involving the heart and lungs.”

For the defense, witnesses testified to certain factual discrepancies in the testimony given by some of the State’s witnesses and that the two shooting occurrence witnesses viewed the lineup individually and made “tentative” identifications of defendant. The defense then rested.

After being found guilty, defendant waived his right to have a jury determine whether to impose the death sentence, sought by the State. The court, however, found sufficient mitigating factors to preclude imposition of the death penalty. Defendant’s motion for a new trial was denied and, at a separate sentencing hearing, the court sentenced defendant to a natural life term of imprisonment. This appeal followed.

I

Defendant initially contends that he was denied a fair trial because of repeated acts of prosecutorial misconduct during closing argument. We are compelled to agree. Our examination of the State’s rebuttal argument reveals a litany of remarks so vituperative and inflammatory that they could only have created an atmosphere inimical to the even-handed dispensation of justice and thus resulted in prejudice to defendant. We shall examine only the most flagrant instances of this misconduct to illustrate the bases for this conclusion.

First, the prosecutor repeatedly attacked the professional integrity of defense counsel, charging him with, “lying” some 16 times, as well as with trying to “confuse” and “intimidate” the jury in an effort to win defendant’s acquittal, a practice which our courts have condemned (e.g., People v. Emerson (1983), 97 Ill. 2d 487, 497, 455 N.E.2d 41; People v. Starks (1983), 116 Ill. App. 3d 384, 394, 451 N.E.2d 1298), as serving merely to antagonize the jury and try the lawyers rather than the issue of guilt. (People v. Suggs (1977), 50 Ill. App. 3d 778, 783, 365 N.E.2d 1118; see also People v. Polenik (1950), 407 Ill. 337, 348, 95 N.E.2d 414.) Such remarks are “inflammatory in the extreme,” regardless of the strength of the State’s case. People v. Brown (1983), 113 Ill. App. 3d 625, 630, 447 N.E.2d 1011.

The State argues that the remarks were “invited” responses to defense counsel’s failure to produce certain evidence “promised” by his opening statement. The State may properly comment on such failure (People v. Durso (1968), 40 Ill. 2d 242, 253, 239 N.E.2d 842, cert. denied (1969), 393 U.S. 1111, 21 L. Ed. 2d 807, 89 S. Ct. 923; but see People v. Britt (1974), 22 Ill. App. 3d 695, 707-08, 318 N.E.2d 138), but repeated references to it as counsel’s “lying” transcended the scope of any “invitation” and were merely inflammatory. The State’s contention, that other references to “lying” were invited when defense counsel interrupted the prosecutor’s rebuttal argument to state that codefendant Michael Williams “ha[d] pled guilty and it was part of the deal that he would not testify for us,” cannot be sustained. Although the interruption was improper, there is no record indication that the substance of counsel’s remark was untrue and merited characterization as counsel’s “lies.” Lastly, defense counsel’s statement in closing argument that defendant’s lineup identification was unduly suggestive because he alone in the lineup wore a white shirt was supported by testimony of a prosecution witness who conceded on cross-examination that defendant was the only man in the lineup photograph wearing a long-sleeved white shirt. Such evidence dissipates the claimed invitation to respond to counsel’s “lying.” The profusion and gratuitous nature of the prosecutor’s accusations made counsel’s alleged prevarication the prevailing theme of the State’s rebuttal argument, were extremely prejudicial, and could serve no purpose other than to inflame the passion of the jury. People v. Suggs (1977), 50 Ill. App. 3d 778, 365 N.E.2d 1118; People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011.

The prosecutor, furthermore, misstated applicable law. As one example, it was stated, “Ladies and gentlemen, the defendant has been cloaked with innocence, but now that innocence is gone because the hand of guilt *** pointed to the defendant, Willie Ray.” The presumption of an accused’s innocence continues until the jury is convinced otherwise beyond a reasonable doubt. People v. Bradford (1979), 78 Ill. App. 3d 869, 876, 397 N.E.2d 863.

Prejudicial prosecutorial comments were made as to defendant’s failure to testify by arguing that defense counsel misled the jury in his opening statement by saying that defendant “would get up there and he would say *** that he did not do it, but he was there.” A criminal defendant has an absolute right not to testify; any comment by the State directing the jury’s attention to that decision violates his rights under the fifth and fourteenth amendments to the Constitution. (Griffin v. California (1965), 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Burton (1969), 44 Ill. 2d 53, 56, 254 N.E.2d 527; People v. Dixon (1982), 91 Ill. 2d 346, 350-51, 438 N.E.2d 180.) The prejudice accruing to defendant was exacerbated here not only because the remark misstated the substance of counsel’s opening statement — which never suggested that defendant would testify — but also because defendant’s objection to the remark was not sustained. See People v. Thomas (1980), 89 Ill. App. 3d 592, 602-03, 411 N.E.2d 1076.

Other prosecutorial remarks, impermissibly intimating the existence of favorable State evidence inadmissible at trial because of defendant’s objections, were extremely prejudicial because “an insinuation which leaves the jury to speculate may be more prejudicial than erroneously admitted specific proof” (People v. Emerson (1983), 97 Ill. 2d 487, 497; see also People v. Weinger (1981), 101 Ill. App. 3d 857, 868-69, 428 N.E.2d 924), and constitute reversible error (People v. Barnes (1982), 107 Ill. App. 3d 262, 268, 437 N.E.2d 848; People v. Lopez (1980), 89 Ill. App. 3d 456, 457, 411 N.E.2d 1071). The remarks made include the following:

“*** I have been waiting, because I have all of this that says that that is a lie; and you would have known that it was a lie, you would have known that Willie Ray wasn’t just there, but Willie Ray pulled the trigger ***.
* * *
I wish I could give you my file as you sit there to go back in there, but I’m not allowed to because that is the law, and this man [defendant] has hid behind those rights, those rights that he took away from John Stewart.”

“I have all this” could be understood to suggest that the prosecutor was referring to unpresented evidence, an interpretation buttressed by her use of “would have known.” The subsequent statement was also highly prejudicial. The State’s contention that it was “invited” by defense counsel’s interruption concerning codefendant Williams’ guilty plea is baseless.

Apparently responding to defense counsel’s asking in argument why a witness chose not to speak to defense attorneys prior to trial, the prosecutor said: “I’ll tell you why ***. He’s afraid of him [defendant]. He was afraid of him, just like Doris Hamilton was afraid of him.” After an objection, the prosecutor suggested that the witness moved out of the State in fear of defendant, and that a second witness moved after his name was put into a police report, adding that “he’s afraid for his life, and he has a right to be.” Finally, the prosecutor argued: “They [defense counsel] are trying to intimidate you, just like he [defendant] intimidated the witnesses, just like he *** is working through the lawyers to intimidate you in the courtroom.” Prosecutorial comments which suggest that witnesses were afraid to testify because defendant had threatened or intimidated them, when not based upon any evidence in the record, as here, are highly prejudicial and inflammatory. (People v. Brown (1983), 113 Ill. App. 3d 625, 630; People v. Dace (1983), 114 Ill. App. 3d 908, 920, 449 N.E.2d 1031.) The prejudicial effect here was compounded by the suggestion that defense counsel was himself employing similar tactics with the jury. The State’s contention that these comments were “invited” is meritless. See People v. Cagle (1983), 113 Ill. App. 3d 1024, 1028, 448 N.E.2d 893.

An improper intimation that defendant had a prior criminal history was made when the prosecutor stated that “when the police were looking for Willie Ray they were looking for him by name and by serial number” (see People v. Patterson (1976), 44 Ill. App. 3d 894, 899, 358 N.E.2d 1164; People v. Johnson (1981), 102 Ill. App. 3d 122, 129, 429 N.E.2d 905); and that defendant did not confess because “the man is too wily and too crafty, and he’s been on the streets too long.” See People v. Weathers (1975), 62 Ill. 2d 114, 120, 338 N.E.2d 880).

Other comments suggested that defendant was manipulating his constitutional rights to escape conviction. The prosecutor argued that “this man has hid behind those rights”; she concluded her argument by stating: “It’s about time the Constitution that this man is hiding behind is put in back of him, because it’s been his shield for a year and it’s over.” Comments which imply that an accused should be penalized for exercising his constitutional rights are improper. People v. Meredith (1980), 84 Ill. App. 3d 1065, 1073, 405 N.E.2d 1306.

The following remarks were more severely prejudicial:

“[T]hat is another one of his rights *** [defendant is entitled to] not only Public Defenders who work full time *** but Public Defenders who are part of the elite murder task force.
* * *
They are people who defend murderers for a job ***. [Counsel is] one of the elite people in America on a murder task force Public Defender ***. He does it for a living. We may have two hundred cases *** but we don’t have two hundred murderers on this call, and that’s all they do. That’s not all we do.”

To hold, as the State urges, that these remarks were “invited” by defense counsel’s having told the jury that they were public defenders would strain credulity.

Prosecutors are allowed wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to defendant (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200; People v. Pittman (1982), 93 Ill. 2d 169, 176, 442 N.E.2d 836), considering the content of the language used, its relationship to the evidence, and its effect on defendant’s right to a fair and impartial trial (People v. Brown (1983), 113 Ill. App. 3d 625, 630-31; People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634).

In the instant case, eyewitness testimony strongly established defendant’s guilt; reversal, nevertheless, may be warranted. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880; People v. Starks (1983), 116 Ill. App. 3d 384, 396; People v. Campbell (1983), 115 Ill. App. 3d 631, 637-38, 450 N.E.2d 1318; People v. Giangrande (1981), 101 Ill. App. 3d 397, 401, 428 N.E.2d 503.) Taking cognizance of the rule that some constitutional errors, which, in the setting of a particular case, are so unimportant and insignificant that they may be deemed harmless under Federal and State constitutions (United States v. Hasting (1983), 461 U.S. 499, 507-12, 76 L. Ed. 2d 96, 105-09, 103 S. Ct. 1974, 1980-82), our review of the entire record here compels the conclusion that the cumulative impact of the numerous improper remarks ineluctably deprived defendant of a fair and impartial trial. (People v. Whitlow (1982), 89 Ill. 2d 322, 341, 433 N.E.2d 629; People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298; People v. Scaggs (1982), 111 Ill. App. 3d 633, 637-38, 444 N.E.2d 674; People v. Weinger (1981), 101 Ill. App. 3d 857, 866.) The prosecutor’s actions in this case read like a veritable hornbook of “do nots.” They were opprobrious and inexcusable, thwarting and wrecking the State’s otherwise well-prosecuted and strong case. The State’s interest in a criminal prosecution is not that it must win at all costs, but to assure that justice is done, and it is a prosecutor’s duty as much to refrain from improper methods calculated to produce a conviction as it is to employ legitimate techniques to secure a just conviction, striking hard blows, but not foul ones. See Viereck v. United States (1943), 318 U.S. 236, 248, 87 L. Ed. 734, 63 S. Ct. 561.

The responsibility for restraining prosecutorial misconduct rests also with the circuit court. The circuit court is vested with power to compel courtroom decorum and must conduct proceedings in a manner such as will inspire respect for the law and administration of justice. (People v. Bimbo (1924), 314 Ill. 449, 454, 145 N.E. 651; People v. Shaw (1981), 98 Ill. App. 3d 682, 688, 424 N.E.2d 834.) Argument of counsel, as here, which is seriously prejudicial, should be terminated by the court sua sponte and the jury instructed to disregard it. (People v. Moore (1956), 9 Ill. 2d 224, 232, 137 N.E.2d 246.) Where this is done, but the prosecutor continues thereafter to resort to similar improprieties, the court must take further action to control the argument, which may include the imposition of appropriate sanctions. People v. Stock (1974), 56 Ill. 2d 461, 472-73, 309 N.E.2d 19.

The circuit court in the present case initially directed the jury not to consider argument as evidence; yet, the misconduct was permitted to continue unabated. The court responded to most of defendant’s objections by noting that it was “taking argument.” From such a response it is unclear whether the objections were being sustained or overruled. The record reveals that several of defendant’s objections were never ruled upon by the court; indeed others, as illustrated by the following excerpts, were answered by the prosecutor herself:

“[Prosecutor]: *** Well, what they neglected to tell you, ladies and gentlemen, is that that is another one of his rights, and he has a right to not only Public Defenders who work full time in the criminal justice system, but Public Defenders who are part of the elite murder task force.
[Defense counsel]: Objection. There is no evidence of that. I’m not—
[Prosecutor]: They are people who defend murderers for a job.
THE COURT: Pardon me-
[Prosecutor]: That is their living. He is an expert at this, and don’t let him tell you any differently.
* * *
[Defense counsel]: Objection, Judge. There is no evidence of that in the record.
THE COURT: We’re taking argument.
[Defense counsel]: I ask the jury be admonished to disregard it.
[Prosecutor]: I’m sure you would *** [counsel].
THE COURT: All right, do you want me to deal with both of you at the close of this case? Let’s proceed.
[Prosecutor]: This is rebuttal, if I may continue.
THE COURT: This is rebuttal. You are presenting rebuttal argument. Let us proceed with rebuttal argument.”

It is regrettable that the misconduct in this case occurred in the context of evidence pointing to defendant’s guilt; nevertheless, the conviction must be reversed and the cause remanded for a new trial.

II

Because of the result reached here, the issues concerning defendant’s sentencing and his motion to discharge his venire need not be considered. Defendant’s contention that the circuit court erroneously admitted evidence of his identification at an uncounseled lineup, however, may recur at retrial.

Testimony regarding an identification made at an uncounseled lineup for which counsel is mandated is subject to a per se rule of exclusion (Gilbert v. California (1967), 388 U.S. 263, 272, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 283, 387 N.E.2d 1071); however, where an independent basis for identification is shown, such evidence is not subject to per se exclusion. (Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 387 N.E.2d 1071.) Prior to the instant lineup, defendant was named as the offender by a witness who knew him and who also selected defendant’s picture from an array of photographs. Two other witnesses, who had ample opportunity to observe defendant while he assaulted them, also identified defendant’s photograph prior to viewing the lineup. Their identification of defendant as the offender was based on their observation of him other than during the allegedly improper lineup; accordingly, their in-court identification was properly admitted. (People v. Williams (1980), 91 Ill. App. 3d 631, 634-35, 414 N.E.2d 1235.) Similarly, the admission of testimony concerning the lineup identification itself was harmless beyond a reasonable doubt. See People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272; People v. Swift (1980), 91 Ill. App. 3d 361, 365, 414 N.E.2d 895.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand the cause for a new trial.

Reversed and remanded.

STAMOS and DOWNING, JJ., concur.