author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WAYNE YARBROUGH, Defendant-Appellant.
    Second District
    No. 80-854
    Opinion filed February 8, 1982.

      Mary Robinson and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Cynthia Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Billy Wayne Yarbrough was tried and convicted in Winnebago County of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2). The defendant was sentenced to a minimum term of six years in the Department of Corrections. He filed a timely notice o.f an appeal.

Defendant allegedly robbed Dale Reinhold, the owner, and Debbie Edwards, an employee, of K. C.’s Disco in South Beloit. The robbery occurred about 2:30 a.m. on December 22, 1979. The two victims were about to get into Reinhold’s truck in the parking lot of the disco after having locked up for the night. The defendant approached them, gun drawn, announced it was a stickup and demanded “the receipts.” Reinhold advised him the receipts were in the safe inside the disco, and the victims were forced back inside, the safe was opened, and two money bags and a .357 chrome-plated magnum pistol in a holster were removed by the robber. The robber began to leave the disco but was deterred by the sight of car lights through the glass front door of the disco. Reinhold and Edwards lost sight of the defendant in the darkness within the disco, and Reinhold produced a pistol he had been carrying in his belt and fired a shot. Then he and Edwards, believing the robber might still be on the premises, called the police. The police arrived and searched the premises, did not find the robber or the money bags, but did observe the .357 magnum pistol on the floor near the front door. Subsequently, the police received a “tip” that they should show the defendant’s photos to the victims. Photos of six other persons who were physically similar to the defendant were assembled and shown to the victims separately. They each chose defendant’s photograph.

Defendant was arrested. At the preliminary hearing, Reinhold failed to identify him, but Ms. Edwards did, and the trial court determined that probable cause existed. At the trial of the cause both victims positively identified defendant and he was convicted in a jury trial. A new trial motion was filed and denied, after which the defendant was sentenced to the Department of Corrections. A post-trial motion in the usual form was filed, and thereafter a supplemental post-trial motion was filed by the defendant. The supplemental motion for post-trial relief alleged, inter alia, with supporting affidavits, that the defendant’s brother, Willie Joe, not the defendant, had committed the robbery at K. C.’s. The trial court held an evidentiary hearing on the supplemental petition. Willie Joe Yarbrough, defendant’s brother, testified that he, Willie Joe, had committed the robbery. Willie Joe’s girl friend, Patricia Smith, testified at the evidentiary hearing that Willie Joe showed her a bag of money from which he gave her $250 after she helped count the bag’s contents, and she testified that Willie Joe told her it was stolen out of a truck parked at K. C.’s Disco on December 22.

The trial court denied the supplemental motion for new trial, stating that because it did not believe Willie Joe or Patricia Smith that the defendant had not met his burden of proof showing the conclusiveness of his newly discovered evidence, nor had the defendant been diligent in presenting it to the court. Notice of appeal was then timely filed.

In this appeal the defendant makes three major contentions:

I. He was not proven guilty beyond a reasonable doubt.
II. He was denied a fair and impartial consideration of the post-trial motion when the court “suggested” that he be given a lie detector test and later upon its own inquiry was informed that no “beneficial” evidence had resulted from the “investigation.”
III. That the court erred in not granting a new trial after the evidentiary hearing conducted pursuant to the supplemental post-trial motion.

It is defendant’s first contention that the eyewitness identifications of him were not credible and were unsupported by any objective corroborating evidence that a robbery, in fact, had occurred. The defendant in contrast asserts the alibi evidence he presented was credible and uncontroverted by the State and that therefore reversal was warranted.

Positive identification by one credible witness is sufficient to sustain a conviction. (People v. Novotny (1968), 41 Ill. 2d 401), provided the defendant is observed under conditions which would allow a positive identification to be made. (People v. Reed (1980), 80 Ill. App. 3d 771.) The robber was described by the witnesses as a black male, about 150-160 pounds, 5'10" to 6' tall, in his early twenties, wearing jeans, boots, a dark jacket and a stocking cap on his head, but not covering his face. Reinhold also said he had a “puffy cheek,” although Edwards made no mention of this feature. The parking lot was lighted by mercury vapor lights on the roof of the disco, there was a street light about 50-55 feet away from the door ■ through which the victims and the robber entered the disco, a lighted “Exit” sign above the dóor, a small light on the cash register, and florescent lights in the anteroom of the small office in which the safe was located and was itself lighted by a bare, 100-watt bulb.

Clearly, the victims had ample opportunity to view the robber, notwithstanding the defendant’s contention the victims were more likely to have been focusing on the robber’s weapon than his features. Despite the fact Reinhold’s identification of the defendant at trial was somewhat weakened due to his prior inability to identify him at the preliminary hearing, Edwards’ identifying testimony was clear, and it alone would have been sufficient to convict if the jury found her credible. This is true even if the defendant presented uncontradicted alibi evidence or more witnesses to support the alibi defense than were called to identify him. (People v. Menendez (1980), 84 Ill. App. 3d 1140, 1142; People v. Setzke (1961), 22 Ill. 2d 582.) Defendant’s alibi evidence presented an issue of fact to be determined by the jury, along with its determination of the credibility of the witnesses. People v. Johnson (1980), 94 Ill. App. 3d 200, 207.

The defendant’s alibi was that he and a friend, Roger Beckham, left for Atlanta, Georgia, about 4:30 p.m. on December 21 to visit Beckham’s grandmother. The defendant claims he could not have committed the robbery since at 2:50 a.m. on December 22 he was “half way to Nashville.” Our review of the record causes us to conclude that the jury could easily have rejected the defendant’s contention as to his alibi defense due to the numerous inconsistencies in his witnesses’ and his own testimony. Although the defendant may indeed have traveled to Georgia on December 22, his arrival time in Atlanta was of critical importance since he could conceivably have committed the robbery immediately before leaving for Georgia and still have arrived in Atlanta later on December 22. According to the testimony Atlanta is a 15- to 15M-hour trip. The jury could also have considered the great potential for fabrication of the alibi defense since defendant, while out on bond, drove to Georgia to pick up the witnesses and transported them to Rockford for the trial itself. In sum, we believe the State sustained its burden of proof beyond a reasonable doubt, and reversal on this point is not warranted.

A motion by the State to strike two authorities cited by the defendant in his brief was ordered to be taken with this appeal. The authorities cited were two articles, one from the Journal of Applied Psychology: Gorenstein and Ellsworth, Effect of Choosing an Incorrect Photograph on a Later Identification by an Eyewitness, 65 J. Applied Psychology 616 (1980). The other was Bazelon, Eyewitness News, 13 Psychology Today 102 (March 1980). They were cited in support of the defendant’s contention that Reinhold’s identification of the defendant was not sufficiently credible to sustain a finding of guilty beyond a reasonable doubt because Reinhold was suffering from “weapon focus” coupled with a “commitment factor” arising out of the assertedly unduly suggestive photo lineup. This court in People v. Dixon (1980), 87 Ill. App. 3d 814, found expert opinion testimony on the vagaries of eyewitness identification was properly denied at trial since it was a subject within the common knowledge of the jury. But more crucial to the issue in this particular case is the fact that these writings were not presented to the trial court and were not presented to this court. Since they have never been submitted they cannot be considered and shall not be by this court. The State’s motion, therefore, must be granted.

The second thrust of the defendant’s appeal is that he was denied a fair and impartial consideration of his post-trial motions when the trial court suggested that a lie detector test be given to Yarbrough and later, upon the court’s inquiry, was informed that no “beneficial” evidence had resulted from that investigation.

Section 8b of the act relating to lie detector tests provides:

“In the course of any criminal trial the court shall not require, request or suggest that the defendant submit to a polygraphic detection deception test, commonly known as a lie detector test[,] to questioning under the effect of thiopental sodium or to any other test or questioning by means of any mechanical device or chemical substance.” Ill. Rev. Stat. 1979, ch. 38, par. 155—11.

The People contend that this issue is waived for failure to object. Considering the unambiguous restriction placed on the trial court by this statute, we find no merit in the State’s waiver argument, however. We believe the trial court’s action in this regard amounts to plain error. It is clear , the trial court here did not observe the restriction in section 8b, to-wit:

“I am going to say this to the prosecution, again without any reflection on the facts of this case, and whatever they do is certainly up to them, and I’m not—I don’t want to know whether you do anything or not; but in some cases of this type where there is only identification by eyewitnesses and there is no other corroborating evidence and there appears to be an alibi, that from time to time the state’s attorney’s office has given lie detector tests to a defendant to insure that they do have the right man. While that isn’t the sole test, by any means, nor is it one that is admissible in evidence, there are times when that can be used, along with all the other available facts that the State has, to determine whether, in fact, an innocent man may have been convicted. I want to make it clear that I am not saying an innocent man is convicted. I am just saying that under the evidence there is no corroboration. I would suggest that. I don’t want to know the answer whether you do it or you don’t do it, because it is only a matter that the State, if it conducts a lie detector test, felt that was conclusive, the State would come in and move to vacate. The Court does not want to know the results or even whether you conducted one, because I cannot take that into consideration, but I suggest it. I know it has been done in the past in the state’s attorney’s office.”

Then, immediately after the post-trial motion arguments were heard, and before the court commented or decided the merits of the post-trial motion, the trial judge asked:

“THE COURT: * * 0 I take it, Mr. Fuenty [assistant State’s Attorney] that there is no new evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant?
MR. FUENTY: Certain investigative procedures were performed subsequent to the trial. As a result of these investigative procedures which Mr. Beu participated in, there is no new evidence available to the Defendant. In fact, all of the results of that investigative procedure are in the hands of Mr. Beu.”

Polygraph evidence is not admissible in the State of Illinois; any stipulation to the contrary constitutes an attempt to change the legal standards for admissibility, which is an unacceptable result. (People v. Baynes (1981), 88 Ill. 2d 225.) Baynes found the admission without objection of polygraph evidence in that case rose to the level of plain error which impinged upon the integrity of the judicial system. (88 Ill. 2d 225, 230-31.) The defendant’s assertion in his brief that the trial court improperly assumed the role of a prosecutor by suggesting a polygraph test is not without some support. It has been stated that discretion in the administration of polygraph exams is an adjunct to the discretionary powers of the State in prosecuting criminal conduct. People v. Smeathers (1975), 26 Ill. App. 3d 1027.

Contrary to the State’s assertion otherwise, we believe the second-quoted passage from the record strongly indicates the court was seeking information as to the results of the “certain investigative procedures.” Further, it made no comment about the decision on the merits of the post-trial motion until it had determined there was no “new evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant.” It would appear that the trial court withheld exercise of its discretion until it was possessed of that last little bit of information which, under the sequence of events, must have been considered by it to be conclusive. Similar to the posture of the court in People v. Nimmer (1962), 25 Ill. 2d 319, 321, we believe it could be said that just before it ascertained the results of the test “the court did not then entertain an unalterable or conclusive conviction of guilt.” The Nimmer court granted the defendant a new trial due to that court’s improper suggestion as to the use of, and reliance on, a polygraph exam. There, however, the court was also the trier of fact and its intent to rely on the exam was manifestly evident. Here, by contrast, it would appear the trial court could have been swayed by the favorable results of a lie detector test, but it was not absolutely certain. Further, the jury, not the court, was the fact finder. In that respect, the trial court’s only task was to determine whether, as a matter of law, the verdict could not stand; the defendant’s motion was the equivalent of a motion to direct a verdict of acquittal. (People v. Wallerstedt (1979), 77 Ill. App. 3d 677.) Accordingly, the trial court was required to view the evidence and the inferences in the light most favorable to the State. (People v. Tibbs (1978), 57 Ill. App. 3d 1007.) In determining whether the trial court abused its discretion in deciding a motion for a new trial, the reviewing court will consider whether the jury’s verdict was supported by the evidence and whether the losing party was denied a fair trial. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549.) We believe the jury’s verdict was supported by the evidence and that the defendant received a fair trial. Accordingly, we believe the trial court’s suggestion concerning lie detector tests, while error, was harmless beyond a reasonable doubt.

The third argument advanced by the defendant on appeal is that the circuit court erred in denying his motion for a new trial after hearing seven witnesses including and in particular that of his brother, Willie Joe, who testified that about 2:30 going on 3 a.m. on December 22, 1979, he was in South Beloit, he was armed with a weapon, he noticed a man and a lady walking out of K. C.’s Disco, and'he asked them to stop and asked them for money. He testified he pulled out the handgun and pointed it at them and asked them for money. Willie Joe Yarbrough testified that the man said that the money was inside, and the man unlocked the door and they all went in. The man opened the safe, and Willie Joe removed two money bags and a hand gun from the safe and then he told them not to come out of the room until he left, after which he left the building.

We find no ground for reversal in the argument. The circuit court did not abuse its discretion in denying the motion.

A succinct and often-cited summary of criteria to be considered in reviewing the circuit court’s denial of a motion for a new trial is found in People v. Baker (1959), 16 Ill. 2d 364; the court there said:

“A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. [Citations.]” 16 Ill. 2d 364, 373-74.

In an earlier case, the court also held:

“Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.” People v. Holtzman (1953), 1 Ill. 2d 562, 569.

Judged by these standards, there was no abuse of discretion.

Although the evidence of Willie Joe Yarbrough’s confession would have been conclusive as to the defendant’s guilt or innocence had it been believed by the jury, that evidence must also “be of such conclusive character that it will probably change the result on retrial.” (People v. Baker (1959), 16 Ill. 2d 364, 374.) The court here heard the new evidence, which, as the State details in its brief, was fraught with inconsistencies from the testimony of the victims at trial. The trial court also had to consider the fact that neither of the victims recognized Willie Joe. This fact must be contrasted with their earlier positive identification of the defendant as the robber at trial. Although Reinhold’s identification of the defendant may have been somewhat impeached, it must be taken into consideration that Debbie Edwards identified the defendant as the robber on three separate occasions: at the photographic lineup, the preliminary hearing and at trial. Under these circumstances the probability of a different result being reached in a retrial is rather remote. We cannot, therefore, conclude the trial court abused its discretion in denying the defendant’s motion for a new trial.

The judgment of the circuit court of Winnebago County is therefore affirmed.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY LUTZ, Defendant-Appellant.
    Second District
    No. 81-315
    Opinion filed February 8, 1982.

      Robert H. Heise, of Wheaton, for appellant.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perico and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Gary Lutz, was tried by jury and convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2(a)). He was thereafter sentenced to six years’ imprisonment and appeals, contending: (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court erred in denying his motion to suppress the identification testimony of the robbery victim which had resulted from suggestive police procedures.

Shortly after midnight on the morning of August 27, 1980, John Hartgerink was employed at a Standard Oil station in West Chicago. He was sitting within the cashier’s hut between the pumps when two men wearing nylon stocking masks over their heads burst through the door. One was armed with what appeared to be an automatic pistol, and the other had a can alleged to contain mace which he sprayed into Hartgerink’s face. Hartgerink testified that although he was temporarily blinded, his vision cleared within seconds. He then put on his glasses and clearly saw both robbers in the station’s fluorescent lights. The gunman held his weapon to Hartgerink’s head and demanded all of the money, dumping the cash drawer into a pillow case himself when Hartgerink failed to respond quickly enough. The gunman told Hartgerink to turn around and tapped the gun barrel against his head to remind him he was armed and then ripped the telephone off the wall. The robbers fled on foot into the woods behind the station with about $236 in cash; the entire episode lasted four to six minutes. Hartgerink then ran to a nearby public phone and called police, who arrived shortly. When they searched the woods behind the station, they recovered a motorcycle belonging to defendant, and its engine was still warm.

Later that morning defendant called police and reported his motorcycle stolen. He advised the officers he had been at a local drivein theater with Gregory Blevins on the night in question and the bike had been stolen while they watched the show.

Officers Jerry Dolan and John Steele of the West Chicago police department investigated the robbery. Officer Dolan informed defendant and Blevins that they were suspects and asked them to take polygraphs, to which they agreed. On the morning of August 29, the two came voluntarily to the West Chicago police station, but refused to proceed with polygraphs. That morning Officer Steele had summoned Hartgerink to the station to take a polygraph to confirm that a robbery had occurred, a standard procedure of the West Chicago police department. As Hartgerink entered the police station through the double set of glass doors at the entrance, he saw defendant and Blevins sitting in the foyer area. He made no sign of recognition but walked into the hall and encountered Officer Dolan, informing him that the robbers were in the station and pointing them out. The officers then procured an “instant” camera to make photographs for a lineup. Fourteen photos of seven individuals were taken, both full face and profile of their heads and shoulders. Defendant and Blevins were two of the seven, four were males in defendant’s age group, the seventh was a woman; each wore a nylon mask. The 14 photos were randomly arranged on a desk; upon viewing them Hartgerink identified defendant as the gunman and Blevins as his accomplice.

Defendant persisted in his original story that his motorcycle had been stolen until shortly before trial, when Blevins admitted he was the robber who sprayed mace on Hartgerink and inculpated defendant as the gunman. Blevins pleaded guilty to a reduced charge of robbery and testified for the State at defendant’s trial in return for a term of imprisonment of three years.

In trial, defendant testified he was at a drivein movie with Dan Maloney at the time of the robbery and that Blevins borrowed the motorcycle during the movie, returning several hours later without it. Defendant further testified that Blevins admitted to him he had robbed the gas station with an unnamed accomplice and had abandoned the motorcycle to evade police. Defendant stated he had lied to the police about the motorcycle being stolen to protect Blevins, his long-time friend, and to provide him an alibi.

Defendant initially argues he was not proved guilty beyond a reasonable doubt for three reasons. First, that due to the mace shot into Hartgerink’s eyes, it was impossible for him to see his assailants and identify them.

Defendant has submitted to this court within his brief certain scientific data analyzing the effects of mace on human test subjects. Included is a 1967 report prepared for the Department of the Army, Edgewood Arsenal, Maryland, by an unknown author, entitled “Characteristics of Riot Control Agent CS,” a form of mace. Also included is a 1969 publication from the International Association of Chiefs of Police entitled “ETC Bulletin” which evaluates police equipment technology and describes the effects of CN and CS formulations of mace. The State has moved to strike this material from defendant’s brief as no showing has been made that defendant has the requisite scientific knowledge to interpret the data or ascertain its correctness. The State further contends this is an improper attempt to offer new evidence not of record in the trial court. We agree, and the publications will be stricken.

Attachments to briefs not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record. (Kazu bowski v. Kazubowski (1970), 45 Ill. 2d 405, 415, 259 N.E.2d 282, 289, cert. denied (1970), 400 U.S. 926, 27 L. Ed. 2d 186, 91 S. Ct. 188; Silny v. Lorens (1979), 73 Ill. App. 3d 638, 642-43, 392 N..E.2d 267, 270-71.) The proper place to present and analyze such data is in the trial court. No evidence was presented in trial identifying the substance sprayed at Hartgerink’s face other than Blevin’s representation of it as “mace,” and its chemical composition, age, strength or condition is not shown. Nor was evidence offered in trial describing the effects of mace or similar products in such circumstances.

Whatever was in the can and sprayed at Hartgerink, he testified he was not disabled or blinded other than momentarily, which was substantiated by Blevin’s testimony. Extensive cross-examination explored this question before the jury. The credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn therefrom are for the jury to determine (People v. Alvarez (1981), 93 Ill. App. 3d 111, 116, 416 N.E.2d 1217, 1221; People v. Randall (1980), 84 Ill. App. 3d 888, 893, 405 N.E.2d 1269, 1274), as was the reliability of the victim’s identification of defendant as the robber in this case (People v. Jackson (1977), 69 Ill. 2d 252, 261, 371 N.E.2d 602, 606; People v. Warfel (1979), 67 Ill. App. 3d 620, 623, 385 N.E.2d 175, 178, appeal denied (1979), 75 Ill. 2d 589). We see no basis upon which to set aside its determination.

Secondly, defendant argues that a reasonable doubt of his guilt is raised because Gregory Blevins’ testimony implicating defendant in the robbery was motivated by a plea bargain between Blevins and the State and therefore cannot support his conviction. In exchange for his testimony the offense charged against Blevins was reduced from armed robbery to robbery, other pending charges were dropped and a three-year minimum term of imprisonment recommended. Initially, we note that Blevins admitted his guilt and implicated defendant before any such agreement was reached. Even uncorroborated accomplice testimony is competent evidence which alone may sustain a conviction if it satisfied the jury beyond a reasonable doubt, and promises of leniency in exchange for testimony go merely to the weight, not admissibility, of such testimony. (People v. Miller (1981), 94 Ill. App. 3d 725, 729, 419 N.E.2d 78, 81; People v. West (1977), 54 Ill. App. 3d 903, 906, 370 N.E.2d 265, 268.) In the case at bar, Blevins’ testimony was in fact corroborated by the victim of the crime.

Finally, defendant contends he was not proved guilty beyond a reasonable doubt because of contradictions in the testimony of the State’s witnesses, the lack of tangible evidence linking him to the crime and the fact that his alibi witness, Don Maloney, was unimpeached.

Discrepancies or conflicts in testimony affect only the weight to be given to it and the trier of fact is free to accept or reject as much or as little as it pleases of a witness’ testimony in a criminal prosecution. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1009-10, 418 N.E.2d 112, 123-24; People v. Alvarez (1981), 93 Ill. App. 3d 111, 116, 416 N.E.2d 1217, 1221.) The discrepancies suggested by defendant include, inter alia, whether defendant wore a windbreaker or a t-shirt on the night in question; whether the weapon used was a .45 automatic pistol or a B-B gun; which robber entered the station first; and, whether or not Hartgerink was seated immediately prior to the robbery. Minor inconsistencies in testimony such as these do not themselves render the testimony unworthy of belief or destroy credibility of the witnesses but go only to the weight to be accorded such testimony. People v. DeJesus (1981), 94 Ill. App. 3d 1018, 1020, 419 N.E.2d 510, 512; People v. Jackson (1980), 89 Ill. App. 3d 461, 468, 411 N.E.2d 893, 899.

As to the lack of tangible evidence, it is clear that a conviction may be sustained on circumstantial as well as direct evidence and inferences drawn therefrom (People v. Boyd (1980), 88 Ill. App. 3d 825, 851, 410 N.E.2d 931, 950, cert. denied (Nov. 30, 1981), 50 U.S.L.W. 3439; People v. Toolate (1976), 45 Ill. App. 3d 567, 569, 359 N.E.2d 1062, 1064); direct evidence was presented here. Defendant’s motorcycle, still warm, was found near the robbery scene; defendant was positively identified as the gunman by the victim and one robber admitted guilt and testified defendant was his accomplice. The adequacy of proof to support a conviction depends upon the facts of each case. (People v. Klisnick (1979), 73 Ill. App. 3d 148, 156, 390 N.E.2d 1330, 1335.) Clearly, this verdict is well supported by the record and not so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of guilt; we will not disturb it. People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331, 334; People v. Davis (1981), 95 Ill. App. 3d 161, 166-67, 419 N.E.2d 682, 686.

Defendant also argues his alibi was unimpeached as Don Maloney testified defendant was with him at the time of the robbery and, therefore, guilt has not been established. We note this witness was impeached by the version of events given by the State’s witnesses and by his own testimony on cross-examination. He admitted he had no independent recollection of the date and time of the movie when defendant was alleged to be with him. Further, the precise time he was with defendant, critical to the alibi, was premised on his guess of the running time of the average motion picture, which he speculated was 2& hours. Even were his recollections unquestionable, the jury was free to reject the testimony of an alibi witness even if uncontradicted. (People v. Garza (1981), 92 Ill. App. 3d 723, 729, 415 N.E.2d 1328, 1334; People v. Hunt (1980), 90 Ill. App. 3d 496, 501, 413 N.E.2d 215, 218.) In trial, defendant’s mother gave yet another version of his location on the night in question.

Defendant’s second principle contention relates to the merits of his motion, which the trial court denied, to suppress any in-court identification of him by the victim, John Hartgerink, on the ground that his stationhouse identification was so impermissibly suggestive as to taint subsequent identification by the witness. Several issues are raised within this general argument.

Defendant argues that the confrontation between himself and Hartgerink at the West Chicago police station constituted an impermissible and suggestive showup. While the practice of showing suspects singly to witnesses for identification and not as part of a lineup has been condemned (United States v. Wade (1967), 388 U.S. 218, 230-31, 18 L. Ed. 2d 1149, 1159, 87 S. Ct. 1926, 1934; People v. Ward (1978), 63 Ill. App. 3d 864, 869-70, 380 N.E.2d 883, 887, appeal denied (1978), 71 Ill. 2d 621), it is not always improper. Whether the confrontation violated a defendant’s right to due process by unfairly focusing on him depends upon the totality of the circumstances surrounding the identification. (Stovall v. Denno (1967), 388 U.S. 293, 302, 18 L. Ed. 2d 1199, 1206, 87 S. Ct. 1967, 1972; People v. Speck (1968), 41 Ill. 2d 177, 193, 242 N.E.2d 208, 217, rev’d on other grounds (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279.) Evidence of even an unnecessarily suggestive identification may nevertheless be admissible if reliability is shown using the totality standard. (People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, 1317, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) There is nothing in the record of this case to demonstrate that police officers in any way improperly induced the witness to make this identification. While defendant was in the police station, he had come there voluntarily and was not visibly in custody. If he had taken the polygraph as expected, he would have been elsewhere. Hartgerink was not informed robbery suspects were at the station, and it is apparent that the confrontation between defendant and victim was fortuitous. The identification of defendant as the gunman by Hartgerink, based on this confrontation, was immediate, spontaneous and unqualified. An identification based upon an accidental encounter, where unprompted and positive, is not an impermissible showup and does not taint the in-court identification by the witness where the police neither arranged the chance encounter or suggestive circumstances. (People v. Braxton (1980), 81 Ill. App. 3d 808, 816, 401 N.E.2d 1062, 1067-68, appeal denied (1980), 81 Ill. 2d 584; People v. Fultz (1975) , 32 Ill. App. 3d 317, 339-40, 336 N.E.2d 288, 306-07, appeal denied (1976) , 61 Ill. 2d 602; People v. Wright (1970), 124 Ill. App. 2d 223, 230-31, 260 N.E.2d 265, 269.) The trial court did not err in refusing to suppress this identification.

Defendant next contends that he was prejudiced by the use of a photographic lineup rather than an actual lineup as he was then in custody. However, there is no legal necessity an identification be made in a lineup; the practice of showing photographs of suspects to witnesses has been approved as essential to law enforcement and is not prohibited even if defendant is in custody. People v. Duarte (1979), 79 Ill. App. 3d 110, 119, 398 N.E.2d 332, 339; People v. Philson (1979), 71 Ill. App. 3d 513, 520, 389 N.E.2d 1223, 1228-29.

Defendant then argues that because of physical disparity in the subjects portrayed, the photographic lineup was suggestive and emphasized him. Of the six subjects shown in addition to defendant, two weighed in excess of 200 pounds while defendant weighed 125 pounds, two had mustaches while defendant was clean-shaven, and one was a woman. Alleged suggestiveness in a constitutionally valid pretrial identification procedure affects only the weight of an identification and not its validity. (People v. Caliendo (1980), 84 Ill. App. 3d 987, 997-98, 405 N.E.2d 1133, 1141, appeal denied (1980), 81 Ill. 2d 594.) Again, the touchstone is reliability of identification based upon the totality of the circumstances. (People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, 1317, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) For an identification to require exclusion, it must result from impermissible suggestiveness which gives rise to a substantial likelihood of irreparable misidentification. (People v. Hatcher (1977), 45 Ill. App. 3d 374, 390, 359 N.E.2d 1157, 1169-70, appeal dismissed (1977), 66 Ill. 2d 626.) No such likelihood exists here. The photographic identification made merely confirmed the victim’s prior identification of defendant as the gunman. As a nylon mask distorts facial features, the police apparently sought a second identification as an additional.precaution. Nor is there a requirement that all subjects in a lineup be physically identical, and differences in size or appearance between defendant and the other subject go to the weight and not the admissibility of the identification. (People v. Kavanaugh (1980), 85 Ill. App. 3d 783, 788-89, 408 N.E.2d 23, 28; People v. Miller . (1977), 55 Ill. App. 3d 421, 427, 370 N.E.2d 1155, 1160.) The fact that some had mustaches while defendant did not is also of no consequence. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 1015, 418 N.E.2d 124, 128.) Further, the photos portray the subjects from the chest up making it difficult to gauge their weight or relative body size. The inclusion of a woman’s photograph is of no consequence here as both she and defendant had shoulder length hair. The trial court correctly determined that the photographic lineup was not impermissibly suggestive; even had it been suggestive it could not have tainted the in-court identification of defendant because the victim had already unequivocally identified him as the gunman before the lineup occurred.

Defendant also argues that the in-court identification of defendant by John Hartgerink should have been suppressed as it did not have an origin independent of suggestive police procedures. We have determined that no suggestive procedures were employed but, in any event, the in-trial identification would be permissible if an independent origin for it could be shown. (People v. Lomax (1980), 89 Ill. App. 3d 651, 657, 411 N.E.2d 1212, 1216; People v. Richard (1980), 88 Ill. App. 3d 247, 252, 410 N.E.2d 459, 464.) Factors to be considered to determine an independent origin are: the length and quality of the witnesses’ opportunity to observe (here four to six minutes in a well-lit area); the degree of attention displayed by the witness (high, as Hartgerink was confined with the robbers in a small area with a weapon pointed at his head); any discrepancies with the prior description given by the witness and defendant’s actual description (Hartgerink described the robber as about 25 pounds heavier and 2 inches taller but otherwise similar); circumstances of the witness’ prior identification (Hartgerink identified defendant spontaneously and with certainty); and length of the time lapse between the crime and the identification (Hartgerink initially identified, defendant approximately 40 hours after the crime and at trial approximately 6 months later). (United States ex rel. Moore v. Illinois (7th Cir. 1978), 577 F.2d 411, 414, cert. denied (1979), 440 U.S. 919, 59 L. Ed. 2d 471, 99 S. Ct. 1242; People v. Hatcher (1977), 45 Ill. App. 3d 374, 388, 359 N.E.2d 1157, 1168, appeal dismissed (1977), 66 Ill. 2d 626.) Hartgerink’s in-court identification was clearly based upon his observation at the scene of the crime and was properly admitted.

Accordingly, the judgment of the circuit court of Du Page County will be affirmed.

SEIDENFELD, P. J., and REINHARD, J., concur.


author: JUSTICE LONDRIGAN

text:
    ROBERT CARROLL et al., Plaintiffs-Appellants, v. LLOYD R. HURST, Defendant-Appellee.
    Fourth District
    No. 16795
    Opinion filed February 4, 1982.

      Curtis W. Myers, of Pontiac, for appellants.
    Robert W. Travers, of Fellheimer Law Firm, of Pontiac, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Plaintiffs appeal from a decision of the trial court dismissing their petition for an injunction against the defendant, Lloyd Hurst. The trial judge impaneled an advisory jury which heard the evidence in the case and which answered, in favor of the defendant, six special interrogatories. The court adopted the findings of the advisory jury and entered a decree dismissing counts I and II of plaintiffs’ complaint.

Plaintiffs filed a complaint on June 29,1978, alleging that defendant’s operation of a junkyard and salvage operation on his property (1) was not a valid nonconforming use under the Livingston County zoning ordinance, (2) that even if the use was a valid nonconforming use such status had been lost due to the expansion and alteration of the use by the defendant; and (3) the use of the property by the defendant as a junkyard constituted a private nuisance.

Defendant is the owner of an 11.56-acre tract located in Rooks Creek Township, Livingston County. The land in question is primarily agricultural and is located southwest of the city of Pontiac. Plaintiffs are owners of land which is either adjacent to or near the tract in question. None of the plaintiffs reside within less than one mile of the defendant’s property.

The property was originally a portion of a tract owned by Clarence Law, Sr., who purchased the land in 1964. Mr. Law started a junk business on the site in 1962. He operated the junk business until 1968, when he entered into business with Percy Decker. Decker operated the Pontiac Scrap Yard. No active junking operation was in existence on the Rooks Creek property at this time; it was used as an area to store excess scrap. Percy Decker closed the Pontiac Scrap Yard in 1972 and gave the junk to his son, Bill. Clarence Law, Sr., gave his permission to Bill Decker to store junk on the Rooks Creek property. Decker hauled junk out to the property on a regular basis.

Defendant testified that, when he purchased the property in 1978, approximately 80 to 100 wrecked vehicles and used machines were present on the property. Some of the junk had been hauled from the Pontiac Scrap Yard after it closed in 1972. Between 1972-and 1978, Bill Decker made weekly trips to the property with loads of junk. Decker would haul small loads to the Rooks Creek site until he had accumulated enough junk to haul to the scrapyard in Peoria. He did not haul scrap out as quickly as he hauled it in, creating an ever-increasing inventory of scrap on the property.

Decker did not unload the junk in any set pattern. He put the scrap down wherever he wanted. He estimated that the junk covered a seven-acre area. Decker indicated that about one-half of the junk was located on the portion of the tract now owned by the defendant.

There was conflicting testimony about the number of vehicles present on the tract between 1972 and 1978 and the number present at the time of the hearing. Clarence Law, Sr., testified, in a somewhat confusing manner, that between 80 and 100 cars were present on the tract in 1972 and a similar number in 1978, although he thought “Bill was getting more in and not hauling as much out.” He testified that he thought the defendant had 340 or 400 cars on the property at the time of the hearing.

Defendant testified that he moved approximately 100 cars to the property after he bought the property in 1978. He stated that about 200 cars were located on the property at the time of the hearing.

Plaintiffs also presented testimony on the alleged harmful effects on . adjacent properties caused by the operation of the junkyard. Plaintiff Richard Roberts testified that the storage of vehicles adjacent to Pike Creek slows the flow of water from his property to the south. Roberts also testified that he had difficulty renting out a house on property he owned near the Hurst property. On cross-examination, Roberts admitted that the rental property had only been vacant since March of that year and that he had had several inquiries about the property in response to a newspaper ad. Roberts also complained about the noise coming from the Hurst property late at night.

Jake Bauman testified that he owned property adjacent to the tract in question. In March of 1979, a flood of exceptional size occurred in the area around Pike Creek. Bauman stated that he saw “three or four tires” that had been washed off defendant’s property; however, none of the debris ended up on Mr. Bauman’s land.

The trial judge submitted six special interrogatories to the jury. The jury answered all six interrogatories in a manner favorable to the defendant. The trial judge incorporated the jury’s answers to the special interrogatories into a “judgment order” dated June 3,1980.

The Livingston County zoning ordinance became effective on February 1,1974. It provided:

“The lawful use of a building or premises, existing at the time of the effective date of these regulations, may be continued although such does not conform to all the provisions thereof, except as hereinafter provided.” Livingston County zoning ordinance, §25.0.

Plaintiffs contend that the operation of a junkyard by the defendant was not a valid nonconforming use under the Livingston County zoning ordinance because neither the defendant nor his predecessors had a license as required by section 5—301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 9552, par. 5—301). Section 5—301 provided, at the time of the enactment of the zoning ordinance:

“No person in this State shall, except as an incident to the servicing of vehicles, or persons licensed as a new vehicle dealer or as a used vehicle dealer under this Chapter, carry on or conduct the business of:
1. Selling used parts of or used accessories for vehicles; or
2. Wrecking or dismantling vehicles for resale of the parts thereof; or
3. Rebuilding wrecked or dismantled vehicles; or
4. Possess 2 or more inoperable vehicles subject to registration for more than 30 days; or
5. Engage in the business of storing, disposing, salvaging or recycling of vehicles, vehicle hulks and the parts thereof; unless licensed to do so in writing by the Secretary of State under this Section.”

Plaintiffs argue that since neither defendant nor his predecessors had a valid permit under section 5—301, defendant’s use of the property was not a lawful one. Therefore, plaintiffs argue, defendant’s junkyard does not fit the definition of a nonconforming use set forth in section 25.0 of the Livingston County zoning ordinance and an injunction should therefore issue.

As a general rule, the illegality of a prior use will result in a denial of protected status for that use under a nonconforming use exception to a zoning plan.

Some courts have carved out an exception to this general rule where the purpose of the statute that has been violated is not related to the land use or zoning. In Trailer City, Inc. v. Board of Adjustment (Iowa 1974), 218 N.W.2d 645, the failure of the owners of a mobile home park to renew a license required by the State board of health did not void the park’s status as a nonconforming use. A similar result was reached in Board of Selectmen v. Monson (1969), 355 Mass. 715, 247 N.E.2d 364.

Other courts adhere strictly to the general rule. In New York, the fact that the use was permitted by a prior zoning ordinance, in the absence of a valid certificate of occupancy, did not render the use “lawfully established” within an exception for nonconforming uses in a new zoning resolution. (Smalls v. Board of Standards & Appeals (1961), 28 Misc. 2d 147, 211 N.Y.S. 2d 212.) The courts of Vermont have held that where a junkyard owner had not procured a license under a junkyard licensing statute for the past 15 years, his use was illegal and not entitled to protection as a nonconforming use. In re Chamberlin (1976), 134 Vt. 359, 360 A.2d 100.

The Dlinois cases dealing with the question of whether an illegal use can be a valid nonconforming use under a zoning ordinance have usually involved violations of statutes designed to regulate the use of land. In County of Cook v. Triem Steel & Processing, Inc. (1958), 19 Ill. App. 2d 126, 153 N.E.2d 277, the defendants owned and operated a garbage dump within one mile of a municipality. This violated a preexisting ordinance banning garbage dumps within one mile of any municipality. The court held that an illegal use could not be a nonconforming use. See also City of Rockford v. Sallee (1970), 129 Ill. App. 2d 75, 262 N.E.2d 485.

In Eggert v. Board of Appeals (1963), 29 Ill. 2d 591, 195 N.E.2d 164, the defendant converted a three-apartment frame building into a seven-apartment frame building in 1946, without the required building permit. In 1957, the City of Chicago enacted an ordinance which imposed a minimum lot-size requirement of 2,500 square feet per dwelling unit. Defendant was in violation of the ordinance, but claimed nonconforming-use status. The supreme court held that defendant’s illegal use was not a nonconforming use. The court stated:

“But where, as here, a permit for alteration is not only unobtained, but legally unobtainable because the alterations are themselves unlawful, no right of nonconforming use can be acquired by doing the prohibited acts.” 29 Ill. 2d 591, 596, 195 N.E.2d 164, 167.

We think the better rule is to make a distinction between violations of statutes designed to regulate land use as opposed to violations of statutes whose purpose is totally unrelated to land use planning. The purpose of section 5—301 is, in large part, to prevent the easy disposal of stolen vehicles. (Ill. Ann. Stat., ch. 951/2, par. 5—301, Source Comment, at 305 (Smith-Hurd 1971).) The statute was not designed as an aid in land use planning or environmental protection. Therefore, we hold that defendant’s failure to obtain a license under section 5—301 does not operate to deny nonconforming-use status to the property in question.

Plaintiffs also argue that, assuming arguendo that the use qualifies as a nonconforming use, the changes in the use of the property since 1978 constitute an illegal extension of a nonconforming use. In particular, plaintiffs point to the large increase in the number of junked vehicles present on the property since it was purchased by the defendant.

In Dube v. City of Chicago (1955), 7 Ill. 2d 313, 131 N.E.2d 9, the court found that plaintiffs’ use of their property amounted to an extension of a nonconforming use. The court said:

“Courts have recognized that the employment of new instrumentalities and methods may constitute an objectionable extension of an existing nonconforming use where they operate to change the original nature and purpose of the undertaking. [Citations.] So also an expansion of a use to land not formerly used may be an illegal extension or enlargement of the previous nonconforming use. [Citations.] Though the new use and the old may fall within the general category of ‘manufacturing’ it is the particular use and not the general classification which governs. (Wechter v. Board of Appeals, 3 Ill. 2d 13.) 0 * It may be, as plaintiffs contend, that a mere increase in the volume of business is not an expansion of a nonconforming use, but much more than an increase in volume is here involved * * 7 Ill. 2d 313, 322, 131 N.E.2d 9, 13-14.

Thus, plaintiffs must show that a change in the nature or purpose of the undertaking has occurred. A mere increase in business does not constitute an illegal extension. This is in accord with the law in other jurisdictions. (See City of Central City v. Knowlton (Iowa 1978), 265 N.W.2d 749; Worthington v. Everson (1967), 10 Ohio App. 2d 125, 226 N.E.2d 570; Kent County Planning Inspector v. Abel (1967), 246 Md. 395, 228 A.2d 247.) The nature of defendant’s use of his property has not changed. The only change in the situation is a significant increase in the number of junked cars on the premises. The trial court found that no expansion of the nonconforming use had taken place since February 1, 1974. We view this finding as being in accord with the manifest weight of the evidence.

Plaintiffs alleged that the junkyard operated by the defendant constitutes an actionable private nuisance and that the trial court’s finding that the defendant’s use of the property was not a nuisance was against the manifest weight of the evidence.

A private nuisance is an invasion of another’s interest in land in a substantial manner, done either negligently or intentionally and unreasonably. (Woods v. Khan (1981), 95 Ill. App. 3d 1087, 420 N.E.2d 1028). The invasion must cause a substantial annoyance to the affected landowner, without taking into account any special sensitivities the landowner may have. The trial court must balance the harm done to the plaintiffs against the benefit caused by the defendant’s use of the land and the suitability of the use in that particular location. Woods; O’Brien v. City of O’Fallon (1980), 80 Ill. App. 3d 841, 400 N.E.2d 456.

A reviewing court will not overturn an order of the trial court refusing injunctive relief against a private nuisance unless the order is contrary to the manifest weight of the evidence. (City of Chicago v. Commonwealth Edison Co. (1974), 24 Ill. App. 3d 624, 321 N.E.2d 412; Fink v. Board of Trustees (1966), 71 Ill. App. 2d 276, 218 N.E.2d 240.) In the case at bar, the trial court’s order was not against the manifest weight of the evidence. An examination of the testimony showed that, while some junk did wash off the defendant’s property during floods, none of it landed on property owned by any of the plaintiffs. No testimony was given that defendant’s use of his land created an unsightly view; indeed, under Illinois law, a landowner does not have a right to a pleasing view of his neighbor’s land. (Cf. Stanek v. County of Lake (1978), 60 Ill. App. 3d 357, 376 N.E.2d 743.) Plaintiffs also failed to establish any decline in the value of adjacent properties attributable to the defendant’s use of his property. The trial court’s finding that defendant’s use of the property did not constitute a nuisance is supported by the weight of the evidence.

Plaintiffs contend that the trial judge erred in incorporating into the judgment order a finding that plaintiffs’ claim against defendant is barred by laches. We decline to decide this question, having already determined that plaintiffs are not entitled to injunctive relief under any of the theories advanced at trial.

Plaintiffs submit that the trial court erred in impaneling an advisory jury on its own motion and then failing to either instruct the jury or apply the law to the jury’s findings.

Section 63 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 63) provides that the trial court, in a case seeking equitable relief, may direct that an issue or issues be tried by a jury. The impaneling of an advisory jury is within the discretion of the trial court. (Kjellesvik v. Shannon (1976), 41 Ill. App. 3d 674, 355 N.E.2d 120.) The jury’s verdict is only advisory; the trial court is free to accept or reject the jury’s findings, in whole or in part. The court may impanel a jury under section 63 even though the parties in the proceeding object. See Fleming v. Fleming (1980), 85 Ill. App. 3d 532, 406 N.E.2d 879.

Plaintiffs’ argument that the trial court erred in instructing the jury is not significant. The trial court was not bound by the findings of the jury, and the findings contained in the judgment order of June 3,1980, “* 0 * are those of the court, and they will not be disturbed unless contrary to the manifest weight of the evidence. [Citation].” (Ray v. Winter (1977), 67 Ill. 2d 296, 307, 367 N.E.2d 678, 684.) We find that the decision of the trial court is supported by the weight of the evidence and that plaintiffs have failed to show any prejudice resulting from the trial court’s action.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

WEBBER and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDGAR CHRISTOPHER WATSON, Defendant-Appellant.
    Fourth District
    No. 17065
    Opinion filed February 4, 1982.

      Frederic M. Grosser, of Grosser and Hays, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Donald R. Parkinson, Assistant State’s Attorney, and Heidi Ladd and Timothy Andrew Swain, law students, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The defendant was convicted of the involuntary manslaughter of 23-month-old Shalita Stewart. He was sentenced to 2 years’ imprisonment.

Shalita died of an infection which resulted from burns suffered while she was under the defendant’s care. Medical testimony showed that Shalita suffered circumferential burns on her lower extremities caused by immersion in a hot liquid. She had no burns above the waist. Very few of her burns were splash burns, i.e., those that might be caused by the splashing of a hot liquid.

Several witnesses at trial testified regarding the defendant’s out-of-court statements. Shalita was burned on September 3,1980. Shortly after Shalita was admitted to the hospital on that date, the defendant spoke with a registered nurse there. The defendant told the nurse that, at the time of Shalita’s accident, a pan of eggs was boiling on the stove. The defendant heard another child in the apartment crying and went to investigate. When the defendant left the kitchen, Shalita apparently pulled the pan of boiling water off of the stove and onto herself.

Also on September 3, the defendant told a hospital social worker a somewhat different story. Shalita and her brother were in the bathroom. The toilet overflowed. While the defendant went into the bathroom to see what was going on, Shalita went into the kitchen. There, she grabbed a pan of boiling eggs and tipped the contents of the pan onto herself.

On September 4, 1980, a Department of Children and Family Services’ investigator for Child Protective Services visited the defendant at home. The defendant related the previous days’ events to the investigator. The defendant and Shalita were in the bathroom. When the defendant flushed the toilet, it overflowed. While he was cleaning up, he heard a scream coming from the kitchen area. There, he found Shalita sitting on the kitchen floor with a pot, that had formerly held boiling water and eggs, overturned between her legs. Water and eggs were on the floor. The defendant wrapped Shalita in a blanket and put her on the sofa. Then he went downstairs to ask a neighbor to call an ambulance and to call Shalita’s mother. When the investigator entered the kitchen, she observed a ring of a sticky substance on the kitchen floor along with some eggshells. The defendant showed her a two-quart sauce pan with a handle which had, according to the defendant, contained the eggs. The ring of sticky substance was located in front of the stove. The circumference of the pot fit the circumference of the ring on the floor.

The paramedic from the ambulance service who answered the call about Shalita also testified. He stated that, when he drove up to the house, he was told that a baby had been burned and was inside. When he entered the house, he looked into the kitchen area but did not notice any water or a pan on the floor.

On appeal, the defendant argues that the admission of his out-of-court statements resulted in improper impeachment by contradiction. The defendant’s characterization of this evidence is incorrect. As the defendant did not testify, he could not be impeached.

The defendant’s various versions of how Shalita’s injury occurred were attempts to absolve himself of any blame. He told several people that Shalita pulled a pan of water off of the stove and onto herself. However, Shalita’s burns were not of the type which would result from the splashing of hot liquid. Also, the paramedic testified that he saw no water or pan on the floor. Thus, other evidence presented at trial showed the falsity of the defendant’s out-of-court statements. A defendant’s false exculpatory statement has independent probative value as evidence of consciousness of guilt and is admissible. (People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153.) Therefore, we find that the trial court did not err when it admitted these false exculpatory statements into evidence.

The defendant next claims that the evidence was insufficient to prove him guilty beyond a reasonable doubt of involuntary manslaughter.

A reviewing court will not set aside a guilty verdict unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to the guilt of the accused. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) After a careful review of the record, we find the verdict to be supported by the evidence. Medical testimony showed that the child had been immersed in a hot liquid. There was no evidence to support any other theory as to how the injury occurred. Shalita was under the sole care of the defendant at the time she was injured.

In his closing argument, the prosecutor referred to defendant’s out-of-court statements. He said, “what we do have in the way of explanation of how these burns took place to her is a totally unbelievably, at best improbable tale. Realistically and based upon the medical testimony you have heard, an out-and-out lie what was told [sic].” A defense objection to this statement was overruled. The prosecutor made several other references to the improbability of defendant’s version of events and also constructed a scenario regarding the origins of Shalita’s immersion burns. The defendant argues that the prosecutor’s closing argument was improper and unduly prejudicial.

While we would wish for more restraint and less theatrics from the prosecutor, we do not find the State’s closing argument to be improper or unduly prejudicial. As the medical evidence so completely refuted defendant’s out-of-court statements, legitimate inferences could be drawn to suggest that the defendant was lying. The prosecutor’s closing argument was properly based upon evidence in the record and legitimate inferences therefrom. (People v. Mitchell (1975), 35 Ill. App. 3d 151, 341 N.E.2d 153; People v. Bost (1980), 80 Ill. App. 3d 933, 400 N.E.2d 734.) The scope, substance, and style of closing argument must be left to the discretion of the trial court, who is in a superior position to determine the real effect of any statement which might be considered prejudicial. (People v. Bloodworth (1979), 68 Ill. App. 3d 341, 385 N.E.2d 904.) In the case at bar, we find no abuse by the trial court of this discretion.

The defendant next argues that the trial judge improperly granted the State’s motion to excuse a juror who had already been selected and sworn; the basis for the motion was the juror’s failure during voir dire to reveal the full extent of his own and his brother’s criminal records.

Although we do not have a transcript of the voir dire or of the prosecutor’s first expression of doubt concerning the juror’s candor, the record does contain the transcript of the hearing on the State’s motion. At the outset of the hearing the trial judge, prosecutor, and defense counsel summarized the earlier events, and no question is raised concerning the accuracy of the summary. We deem the record sufficiently complete for us to address this issue. Cf. Hehir v. Bowers (1980), 85 Ill. App. 3d 625, 407 N.E.2d 149 (in'absence of transcript of voir dire or substitute for one, question regarding juror’s answers during voir dire will not be considered).

Before opening statements were made the trial judge considered the State’s motion to excuse the juror. According to the summary presented at the start of the hearing, after the selection of the 12 original jurors but before the selection of alternate jurors the prosecutor expressed his doubt whether the juror in question had been completely honest in answering several questions during voir dire. Asked about his and his family members’ experiences with the criminal justice system, the juror had said that his one brush with the law was a traffic conviction and had not mentioned a brother with a criminal record. The trial judge told defense counsel that given the State’s plan to excuse the juror he could use all four of his remaining peremptory challenges during the selection of the alternate jurors; defense counsel agreed to the use of the peremptory challenges but did not agree to the intended removal of the juror.

After the details described above were summarized at the hearing, the prosecutor listed the convictions that constituted the juror’s and his brother’s records. One of the juror’s offenses resulted in probation under section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 51/2, par. 710); the prosecutor also said that the juror had been convicted of shoplifting, unlawful use of weapons, and theft. A second person believed by the prosecutor to be related to the juror was also mentioned.

The juror was then questioned by the parties. The prosecutor listed the four offenses that he had already described to the court and defense counsel; the juror remembered and acknowledged three of the four. The juror replied affirmatively to the prosecutor’s question whether a brother had “been involved with the criminal justice system several times.” Defense counsel also questioned the juror. The juror said that he had not mentioned all his convictions during voir dire because he had not known “that that would have anything to do with it. I thought it was dropped.” The juror then replied negatively to the question whether his or his brother’s experiences would advantage or disadvantage the State or the defendant and affirmatively to the question whether he could be fair to both sides.

The State then argued that the juror’s incomplete answers during voir dire justified his dismissal for cause. Defense counsel objected to this and to the exercise of a peremptory challenge. The trial judge excused the juror but viewed the State’s motion as a peremptory challenge rather than one for cause.

Once a juror has been selected and sworn, neither side may peremptorily challenge him. (People v. Curran (1918), 286 Ill. 301, 121 N.E. 637.) By the time the prosecutor told the trial judge and defense counsel that this particular juror may have answered several questions incompletely, the juror had been selected and sworn; the State’s objection to him therefore came too late. Had the juror’s false answers during voir dire pertained to his ability to render a verdict based only on the evidence adduced at trial and free from preconceived opinions, then the trial court would have acted properly in removing him from the jury. Cf. People v. Oliver (1977), 50 Ill. App. 3d 665, 365 N.E.2d 618 (juror’s disqualifying state of mind concealed during voir dire but discovered after delivery of verdict; trial court should have granted defendant’s motion for new trial).

The defendant does not argue that any of the 12 persons who decided his guilt was biased. Although trial and conviction by a biased jury is never harmless error (Oliver), the defendant has not shown and indeed does not allege that the dismissal of this juror resulted in prejudice. A defendant’s right to trial by an impartial jury does not mean that he is entitled to have a particular person serve on the jury. (People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.) Thus, although the trial court erred in entertaining and granting the State’s tardy motion to excuse the juror, the mistake was harmless.

The defendant was originally charged with four counts of involuntary manslaughter. He made a pretrial motion to dismiss each of the four counts of the indictment for failure to state an offense. Counts I and II were dismissed. Counts III and IV were not. The defendant claims that the trial court erred in its refusal to dismiss counts III and IV. We disagree. Both counts charge the offense in the language of the statute. They are sufficiently specific to have enabled the defendant to prepare his defense and to protect him from double jeopardy. They state the date and place of the offense and fully identify the defendant and the victim. They set out the cause of death and the act which led to the death. Thus, the specificity of these counts renders them sufficient. People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244.

The defendant also complains that the counts charge him with an omission without alleging a corresponding duty. The defendant did have a duty to watch out for the well-being of the child, Shalita. He had a duty to prevent her from being immersed into water hot enough to cause great bodily harm or death. Although counts III and IV do not specifically state the nature of the defendant’s duty, they imply all the elements of his duty. The counts say that Shalita was a 23-month-old baby and allege that she was immersed into water hot enough to cause death or great bodily harm. The caretaker of a child has a duty to protect the child from harm.

The defendant made a pretrial motion for a bill of particulars requesting information regarding the specific physical acts peformed by him and the instrumentality used. This motion was denied. The defendant claims that the trial court erred by denying this particular motion. We disagree.

The decision to grant a bill of particulars lies within the sound discretion of the trial court. (People v. Lanzotti (1978), 61 Ill. App. 3d 451, 378 N.E.2d 369.) The trial court’s denial of the bill of particulars was certainly not an abuse of its discretion. Judge Jensen said that the defendant had received sufficient opportunity to gain information through the discovery process. The court also said that it did not know what additional information the defendant could possibly want.

The defendant made several motions asking the trial court to require the State to elect which count it would proceed upon. All motions on this subject were denied. The defendant argues that the State should have been required to make such an election. This claim has no merit. In a case involving only one offense, the prosecution may proceed under as many counts as are necessary to meet the variations of proof required and will not be required to elect one or the other. People v. Cobetto (1975), 32 Ill. App. 3d 696, 336 N.E.2d 505; modified on other grounds (1977), 66 Ill. 2d 488, 363 N.E.2d 854.

During the trial, Jerry Otto testified that he became involved in the investigation of Shalita’s injuries because he was a social worker and had to keep aware of reported child abuse. A defense objection to this statement was sustained and the jury was instructed to disregard it. Debra Taylor said at trial that she visited the defendant’s residence because her office had received a report of suspected child abuse. A defense objection to this statement was sustained and the jury was instructed to disregard it. Defense counsel also objected to Taylor’s recital of a conversation between herself and the defendant concerning the final outcome of Shalita’s injury. According to Taylor, the defendant said “jail is what could happen.” Again, the defense objection to this statement was sustained, and the jury was instructed to disregard it. Defense counsel eventually moved for a mistrial on the grounds that the testimony described above was highly prejudicial, but the trial court denied the motion.

The defendant now argues that his motion for a mistrial should have been granted. The authority to declare a mistrial is within the discretion of the trial court and is not subject to review in the absence of an abuse of discretion. (People v. Chaffin (1971), 49 Ill. 2d 356, 274 N.E.2d 68.) We find no abuse of discretion here.

In another claim of procedural error, the defendant argues that his motion for a directed verdict should have been granted. Upon a motion for a directed verdict, the trial judge must construe the evidence most strongly in favor of the party against whom the motion is directed, and when there is evidence which either supports his side of the case or upon which reasonable minds might reach different conclusions the motion must be denied. (People v. Tibbs (1978), 57 Ill. App. 3d 1007, 373 N.E.2d 624; People v. Tatum (1966), 77 Ill. App. 2d 178, 222 N.E.2d 177.) In the instant case, medical evidence strongly supported the theory that Shalita was immersed in water hot enough to burn her. Defendant’s own out-of-court statements implied that he was the only adult present in the household when this injury occurred. Thus, the trial judge was correct in denying the defendant’s motion for a directed verdict.

The defendant tendered his instructions 3 and 4, which were modified versions of Illinois Pattern Jury Instructions, Criminal, No. 7.08 (hereinafter IPI). These instructions contained verdict forms for each count of. the indictment. The defendant’s instructions 3 and 4 were refused. The State’s instruction 11(b), which was IPI Criminal No. 7.08, was given over the defendant’s objection. The defendant contends that the trial court erred by giving the State’s instruction and by refusing his proposed instruction. IPI Criminal No. 7.08 correctly stated the governing law in this case and gave due consideration to the facts. Under these circumstances, Supreme Court Rule 451(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 451(a)) mandates that the IPI instruction shall be used.

The defendant cites People v. Gauwitz (1980), 80 Ill. App. 3d 362, 400 N.E.2d 92, for the proposition that it is proper for the court to give two sets of verdict forms when the indictment charges different acts. We find Gauwitz to be distinguishable. In Gauwitz the defendant objected to the giving of four verdict forms. These forms consisted of IPI Criminal Nos. 26.02 and 26.05. We said there that the instructions as a whole properly conveyed to the jury the nature of the situation. In Gauwitz we did not say that two sets of verdict forms had to be given.

Defendant’s final argument is that his 2-year sentence of imprisonment is an abuse of discretion. The appellate court cannot substitute its judgment for that of the trial court merely because it would balance the factors involved in sentencing differently. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) It is apparent from the record that the trial court here properly considered factors in both aggravation and mitigation. The trial judge also gave the reasons behind his sentencing decision. The defendant’s sentence does not represent an abuse of discretion.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.


text:
    ANDREW C. SCHNACK, III, Plaintiff-Appellee, v. DAVID CRUMLEY, Defendant-Appellant.
    Fourth District
    No. 17284
    Opinion filed February 4, 1982.
    Modified on denial of rehearing March 15, 1982.

      David Crumley, of Quincy, for appellant, pro se.

    Scholz, Staff & Palmer, of Quincy (James L. Palmer, of counsel), for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant appeals the trial court’s denial of his motions for costs under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41), which were filed in the trial court after this court reversed, without remand, a previous judgment against defendant for legal fees which plaintiff sought as a result of services rendered. A motion to dismiss the appeal for lack of jurisdiction, filed by plaintiff, was ordered taken with the case.

The parties are well aware of the underlying facts surrounding this litigation and they need not be restated in detail here. The question before this court is-one of procedure and concerns the ability of a trial court to entertain a motion for section 41 costs on behalf of a litigant who has obtained a reversal, without remand, of the underlying judgment on appeal.

The operative facts indicate that defendant’s claim for section 41 costs arose for the first time in defendant’s prayer for relief in his third post-trial motion filed after judgment was entered against him after a trial on the original complaint. An examination of the three post-trial motions, two of which were filed more than 30 days after judgment was rendered against defendant, reveals that defendant raised a number of legal and factual issues which defendant claimed supported judgment in his favor or a new trial. Nowhere, however, in any of these motions are any facts or allegations presented which specifically delineated those portions of the pleadings or testimony upon which defendant relied to support his claim for section 41 costs. Following a hearing on all three motions, the trial court, without differentiating between the various claims, denied all of the post-trial motions in their entirety.

On direct appeal, defendant again presented to this court various legal and factual questions concerning the propriety of the judgment entered against him in the trial court. Defendant, however, never briefed nor specifically argued the question of the propriety of the denial of section 41 costs, though in his prayer for relief to this court defendant again asked that section 41 costs be granted.

On August 13,1980, this court entered a Rule 23 order in Schnack v. Crumley (1980), 86 Ill. App. 3d 1200 (Rule 23 order). In that order, we reversed the judgment of the trial court because the complaint failed to state a cause of action since the record did not demonstrate that plaintiff had been assigned the claim against defendant from a partnership of which plaintiff had earlier been a member and to which defendant might have otherwise owed the fee in question. Since that holding was dispositive of the case, this court chose not to express an opinion upon defendant’s other major contention, that being that the judgment should be reversed because plaintiff undertook employment that was adverse to defendant’s interests. No petition for rehearing was filed from that order.

In due course, the mandate from this court issued reversing, without remand to the trial court. Thereafter, defendant filed an entirely new motion for costs under section 41 which the trial court ultimately dismissed for lack of jurisdiction.

Defendant’s first contention, that the mandate filed in the trial court upon reversal of the prior cause, was sufficient, in and of itself, to award him costs under section 41, is without merit. The language of the mandate to the effect that “appellant recover costs of and from said appellee” applies only to costs generated by the appeal and has nothing to do with any claim for section 41 costs.

Defendant’s next contention is that his motion for section 41 costs, filed within 30 days of the filing of the mandate in the trial court is timely under section 41. That argument is based upon language of section 41 which states that motions for costs under the statute must be made “within 30 days of the judgment or dismissal.” Defendant contends that “judgment” was not rendered until the mandate was filed. We do not agree.

Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41) states:

“Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.
The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party.
Where the litigation involves review of a determination of an administrative agency, the court shall include in its award for expenses an amount to compensate a party for costs actually incurred by that party in contesting on the administrative level an allegation or denial made by the State without reasonable cause and found to be untrue.”

In interpreting section 41, courts have uniformly held that section 41 motions are timely only if filed within 30 days of the underlying judgment. (People ex rel. Henderson v. Redfern (1968), 104 Ill. App. 2d 132, 243 N.E.2d 252.) The remedy in this provision is clearly limited to matters before the trial court, primarily in connection with pleadings, and requires that relief be sought at. the trial level. (Henderson.) A motion for section 41 fees which, is first addressed to a trial court after a mandate issues from the direct appeal is not timely since it does not satisfy the requirements of section 41 with respect to the timing or the substance of a petition thereunder. Henderson.

Therefore, the question is whether defendant sufficiently raised and preserved the issue of section 41 costs either at the trial level following the entry of the original judgment against him, or on appeal.

We note at the outset that defendant’s succession of post-trial motions was in direct violation of the rule that there be but a single post-trial motion. (Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610.) Nevertheless, the trial court chose to entertain all three of defendant’s post-trial motions, and we cannot conclude that the trial court abused its discretion in denying section 41 relief. Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 370 N.E.2d 1106.

Even a most liberal reading of the three post-trial motions filed by defendant leads us to the conclusion that he did not properly raise this issue in the trial court in the first instance. Nowhere in the substance of the motions does defendant ever set forth any of the specific pleadings or testimony of plaintiff which defendant claims are untrue by virtue of other facts adduced at trial or through discovery. This sort of specificity is necessary when the trial court is presented with motions for section 41 costs since plaintiff must have an opportunity to challenge and defend allegations of untruthful pleadings. It is not sufficient that the facts are ultimately adverse to the pleadings as set forth in the trial court. It must be demonstrated not only that certain allegations are untrue but that the person against whom the sanction is sought knew them to be untrue at the time they were made. (Year Investments, Inc. v. Joyce (1963), 44 Ill. App. 2d 367,195 N.E.2d 21.) Sections 41 is penal in nature and must be invoked only in those cases falling strictly within its terms. (Rago v. Cosmopolitan National Bank (1967), 89 Ill. App. 2d 12, 232 N.E.2d 88.) Without specific allegations pertaining to particular pleadings, there was nothing from which the trial court could make a section 41 finding favorable to defendant. Hence, it was not an abuse of discretion for the trial court to deny costs on that basis.

Defendant, however, argues that the issue was preserved for review in this court on the direct appeal because the denial of costs was predicated, at least in part, upon the trial court’s refusal to overturn the judgment already entered against the defendant. We disagree for two distinct reasons.

Post-trial motions which alleged error or which cite grounds for relief without sufficient specificity are not claims which are preserved for review. (Williamson v. Opsahl (1981), 92 Ill. App. 3d 1087, 416 N.E.2d 783; Huff v. Illinois Central R.R. Co. (1972), 4 Ill. App. 3d 113, 280 N.E.2d 256; City National Rank & Trust Co. v. Almond (1963), 42 Ill. App. 2d 314, 192 N.E.2d 297.) Since defendant’s post-trial motion alleges only generally that he is entitled to section 41 relief without specifics supporting that claim, no error in that regard was preserved for review. Compare People v. Nunez (1974), 24 Ill. App. 3d 163, 320 N.E.2d 462.

Moreover, Supreme Court Rule 341(e)(7) (Ill. Rev. Stat. 1979, ch. 110A, par. 341(e)(7)) provides:

“(e) Appellant’s Brief. The appellant’s brief shall contain the following parts in the order named: « « tf
(7) Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. As to cases involving constitutional questions appealed directly from the circuit court to the Supreme Court, see Rule 302(b). Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal, excerpts or abstract where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

In his direct appeal to this court, though defendant again prayed for section 41 relief from this court, the defendant did not set forth at any point in the arguments in his brief the specific pleadings upon which he relied to demonstrate his entitlement to section 41 relief. As a consequence, defendant waived the issue in this court notwithstanding that a motion or argument concerning section 41 relief would be inappropriate if presented to the appellate court in the first instance. Cf. Brooks v. Goins (1967), 81 Ill. App. 2d 12, 225 N.E.2d 707.

Because defendant waived this issue at both the trial level and on appeal, a subsequent motion for costs in the trial court upon the filing of the mandate was not timely and was properly dismissed. Accord, Cohn v. Receivables Finance Co. (1972), 7 Ill. App. 3d 869, 288 N.E.2d 894; Ford Hopkins Co. v. Faber (1970), 121 Ill. App. 2d 143, 257 N.E.2d 227.

Motions for section 41 costs are a separate and distinct remedy to penalize litigants who plead false matters which subject the litigant to unnecessary expense and harassment. (King v. King (1978), 57 Ill. App. 3d 423, 373 N.E.2d 313.) Section 41 was not intended, however, in some oblique manner to prevent harassment by vexatious or frivolous pleadings in all cases. (Hearst Corp. v. Associated Trade Press, Inc. (1968), 98 Ill. App. 2d 360, 240 N.E.2d 386.) The litigant must find sanctions elsewhere than in section 41 for relief from such abuse. (Sarelas v. Alexander (1971), 132 Ill. App. 2d 380, 270 N.E.2d 558; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.) If a party believes he has been subject to untrue pleadings, tactically he should not attempt to substantiate that claim by seeking reversal of the trial court’s action. Rather he should directly prosecute for costs or fees under section 41. (Myers v. Myers (1977), 51 Ill. App. 3d 830, 366 N.E.2d 1114.) If defendant felt that he had a viable claim for section 41 costs which this court overlooked in its Rule 23 order, his remedy was to petition for rehearing to this court asking that this court address that particular issue. Without such a motion for rehearing, this court could not address the issue which had otherwise not been briefed and argued previously to the court. It is for this reason that the prior Rule 23 order reversed the judgment without remand. There was simply nothing else presented to this court by defendant by way of briefs or argument which would have authorized this court to raise and consider the issue on its own.

Plaintiff contends that the subsequent motion filed by defendant could not be entertained by the trial court because reversal without remand brings an end to the litigation divesting the court of further jurisdiction to entertain motions with regard to the case. While we do not disagree with that conclusion as a general proposition of law, we are not persuaded that the problem is one of jurisdiction.

Plaintiff has not cited any authority suggesting that failure to file a timely section 41 motion represents a jurisdictional defect. Though the practical effect of the untimely filing may be the same, the trial court does not lack jurisdiction to entertain the motion. In the absence of objection, we conclude that the failure to timely file a motion may be waived in the same fashion, for example, as the statute of limitations may be waived by the parties. Though the trial court, in this case, ultimately concluded that he lacked jurisdiction to entertain the motion, á review of the record also indicates that the court was of the opinion that defendant had not properly presented the issue for consideration nor preserved it for review on direct appeal. We perceive no error in the trial court’s dismissal of defendant’s motion under these circumstances. Henderson.

Defendant’s final contention is that this court should sanction plaintiff for his unprofessional conduct under the authority of Supreme Court Rule 61(c)(10) (Ill. Rev. Stat. 1979, ch. 110A, par. 61(c)(10)), and various sections of the Code of Professional Responsibility (Ill. Rev. Stat., 1980 Supp., ch. 110A, art. VIII, Rule 1—101 et seq.). This argument is also without merit.

Disciplinary proceedings and sanctions are strictly within the province of the supreme court which has stated that the disciplining of attorneys is in the nature of an original proceeding in which the Attorney Registration and Disciplinary Commission and its various officers, as well as the inquiry board, the hearing panel, and the review board, serve as agents of the supreme court in administering the disciplinary functions that have been delegated to them. (In re Mitan (1979), 75 Ill. 2d 118, 387 N.E.2d 278.) Any sanctions based on alleged professional misconduct must be addressed to the Disciplinary Commission which is vested with the authority to consider such matters and which is the proper forum for such actions rather than this court.

Plaintiff’s motion to dismiss is denied, and the judgment of the Adams County circuit court is affirmed.

Affirmed.

WEBBER and TRAPP, JJ., concur.