author: Mr. PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAL J. ELLISON, Defendant-Appellant.
    First District (2nd Division)
    No. 79-1308
    Opinion filed September 15,1981.

      James J. Doherty, Public Defender, of Chicago (Robert D. Click and Suzanne Xinos, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was indicted for involuntary manslaughter (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3(a)) and concealment of the homicidal death (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3.1(a)) of Tammy White, an alleged transsexual (victim). Defendant was charged with having recklessly injected silicone into the victim, which resulted in her death minutes later, and having thereafter concealed this cause of death from the authorities. Defendant was convicted on both counts in a jury trial and received concurrent sentences of 1 to 3 years. The principal factual issue at trial was whether the silicone injection, rather than one of several other possible causes suggested by defendant, resulted in the victim’s death. On appeal, defendant challenges the jury’s determination on this issue, claiming that it was just as likely that the victim died from a Darvon overdose, anaphylactic shock or “silicone transferring.” For the reasons set forth below, we affirm.

The State presented the following case at trial. Jerry Lawrence, a Chicago Police Department homicide investigator, testified that at 7 p.m. on December 5,1974, he was assigned to investigate the death of a person in an apartment on North Marine Drive in Chicago. He entered that apartment and saw the victim in a reclining chair. Defendant and one April Vaugine (April) were standing nearby. Defendant explained that he, April, and the victim had gone to supper earlier and returned to defendant’s apartment. The victim went into the bathroom where she remained for about 30 minutes. She returned to the den and sat in the reclining chair. Shortly thereafter, the victim said “I think I am on a trip,” then went into convulsions. The convulsions stopped and defendant summoned an ambulance. No mention was made of the injection. Upon searching the apartment, Lawrence discovered a large quantity of different medications which defendant explained were prescribed for him for various ailments. Defendant stated that he owned and operated Silico Chemical Co., a wholesaler of industrial chemicals, which bought silicone in bulk and packaged it for sale to industrial clients. Lawrence removed the victim’s clothing so that the evidence technician could photograph the corpse. He inspected her body for wounds, bruises, cuts or any other evidence of violence but found none. On cross-examination, Lawrence testified that the victim’s purse contained 18 orange pills and 19 red pills, all of which he believed were Darvon. The pills were inventoried but he did not know if they were ever subjected to chemical analysis.

Michael Page testified that on December 5, 1974, he was employed by Dependable Ambulance Service and drove an ambulance to an address on North Marine Drive. When he arrived, he saw the victim sitting in a chair. He examined her and determined that she had been dead “for a little while.” The only persons in the apartment when he arrived were defendant, the victim, and two women. He called the police and they arrived shortly thereafter. Prior to the police photographs of the corpse, he noticed a small puncture mark under the victim’s left breast.

April Vaugine testified that she was born in Los Angeles, California in 1944 as Paul Edward Vaugine. In 1969, she received a sex change operation in Morocco, after which she changed her name to April. She was introduced to defendant in 1967 for the purpose of arranging silicone injections. Defendant injected silicone into her bust, hips and face for $50 to $75 per injection. She ultimately received between fifty and sixty such silicone injections between 1967 and 1969. She was present on numerous occasions when defendant administered silicone injections to a number of people at the same visit and his procedure was always the same. The person who was to receive the silicone injection would indicate the part of the body where the silicone injection was desired. The person would then disrobe, defendant would clean the skin with alcohol, mark off the area with an eyebrow pencil, and inject an anesthetic with a hypodermic needle. He never would take a medical history, nor ask if any drugs were used nor ask about one’s background. He did not use a stethoscope. After the anesthetic injection, he filled the same syringe with liquid silicone. He always used the same syringe, without cleaning it, for both the anesthetic and the silicone. He then would administer the silicone injection into the area where the anesthetic had been injected. Defendant would then use the same syringe on succeeding patients.

On December 5, 1974, at about 5:30 p.m., April and the victim went to see defendant for the purpose of receiving silicone injections. The three of them first went out to supper, then returned to defendant’s apartment. The victim undressed and defendant looked at her breasts and commented that whoever had administered the prior silicone injections had done a poor job. Defendant did not ask the victim anything about her health or prior medical history. Defendant then cleaned the victim’s breasts with alcohol and made five pencil marks under each, then cleaned and marked the victim’s hips. As usual, defendant only had one syringe. Defendant filled the syringe with anesthetic from a small vial. The liquid anesthetic in the vial was crystal clear, like water, but the same liquid after being drawn into the syringe was “cloudy” and looked “like dishwater.” Defendant then injected this cloudy substance into five different places under each of the victim’s breasts and then into her hips.

The victim immediately complained that she felt nauseous and went into the bathroom. Shortly afterwards, the victim returned still complaining of nausea and laid down on the couch. Within a minute, the victim began perspiring, her arms and upper body began shaking and she had difficulty breathing. She mumbled “I am on a trip,” then completely stopped moving. Defendant said something was wrong and began massaging her chest. He phoned an ambulance, then told April that they had to dress the victim before the ambulance arrived. He removed the pencil marks from the victim’s breasts, then he and April dressed her. He instructed April that if questioned, she should say only that they came up to the apartment for some drinks. When the police arrived, that is the story she related. She went home and the next day defendant called and said that “everything was okay” because the coroner had ruled that the cause of death was Darvon poisoning. Defendant called her again in February of 1976 and asked her to “stick to” the original story. In May of 1976, the state’s attorney’s office contacted her and she ultimately promised to give a statement if granted prosecutorial immunity, which she was given.

Patricia Gill testified that she was employed as an administrative assistant by Dalcorn, Inc., a silicone manufacturer. Dalcorn had sold various quantities of silicone to defendant from 1970 to 1973. Defendant, like all its silicone purchasers, was required to submit an affidavit that the silicone would not be used for injections into humans.

Norton Ross testified that he had been defendant’s partner in the ownership of Silico Chemical Co. since 1957. Because the future success of the business became questionable, he withdrew as a partner in 1972. Rudy Cistaro, a registered embalmer and funeral director, testified that he embalmed the body of the victim on December 10, 1974. During the embalming procedure, he noticed puncture marks under both of the victim’s breasts.

A stipulation was agreed upon indicating that subsequent to burial, the state’s attorney’s office began an investigation into the circumstances surrounding the death and, on February 5, 1976, an order was obtained requiring the remains to be disinterred. On February 10,1976, the remains were delivered to the Cook County morgue.

Dr. Joseph Claparols, a pathologist with the Cook County Coroner’s office, testified that on December 5, 1974, he performed the original autopsy on the victim. He took tissue samples from various organs in the event that a microscopic tissue examination became necessary after the initial autopsy. His autopsy concluded that the cause of death was a Darvon overdose. He noticed abnormalities in the victim’s lungs; however, he “* * 0 took a chance and signed the protocol without taking into account the lung pathology * ° e.”

Dr. Everette T. Solomons, chief toxicologist with the Georgia State Crime Laboratory in Atlanta, testified that in March of 1976, the tissue samples taken by Dr. Claparols were subjected to an atomic absorption spectrophotometry and an infrared spectrum test to determine the level of silicone in the various tissues. There was an extremely large concentration of silicone oil in the breast tissue. This would indicate that the breast area was the injection site for the silicone. Silicone particles were also found in the spleen, kidney, liver and lungs with the largest concentration, other than in the breast tissue, in the lungs.

Dr. Victor Levine, a physician specializing in pathology and formerly the chief pathologist for the Cook County Coroner’s office, testified that on February 10,1976, he performed a second autopsy after the remains of the victim were disinterred. He obtained tissue samples from various organs. He also secured those previously taken by Dr. Claparols. After identifying photographs which he had taken of the Claparols’ tissues, Levine testified that the microscopic photographs of the lung tissue showed a number of abnormalities called vacuoles. A vacuole is an entirely abnormal, rounded empty space in the lung tissue. The numerous vacuoles found were caused by silicone particles. When foreign matter, such as silicone, enters the body, the body produces defensive cells to combat the matter. Small defensive cells begin to form from 15 seconds to several hours after the matter enters the body; however, giant cells do not begin to develop until foreign matter has been in the body for at least three weeks. The tissue samples of the victim’s lungs indicated that some of the vacuoles were being “attacked” by giant cells and some by normal cells. In some instances no cells had yet formed. Since only a small number of the vacuoles were attacked by giant cells, he concluded that most of the other vacuoles had entered the lungs just 15 seconds to several hours before death.

Dr. Levine had reviewed Dr. Solomons’ toxicology report concerning the amount of silicone in the lung tissue. Based on this report, Levine’s examination of the remains, and the analysis of the Claparols’ tissue samples, it was Levine’s opinion that the victim “died as a result of pulmonary insufficiency, and the pulmonary insufficiency was caused by the presence of silicone vacuoles which blocked the capillaries of the lungs so completely that ° 0 ° [she] was no longer able to breathe properly and that caused * * * [her] death.” The symptoms exhibited by the victim, including shaking, nausea, dizziness, and inability to breathe, which occurred after the injection and prior to death, would be consistent with the finding that pulmonary insufficiency due to silicone vacuoles caused the death. If there was silicone oil suspended in the anesthetic in the syringe, it would be consistent with the above opinion. Sometimes a person experiences an allergic reaction to a local anesthetic which might vary from hives to respiratory difficulty to an “extreme reaction” known as anaphylactic shock. If the victim had suffered from anaphylactic shock, she could not have been revived by medical treatment due to the lung conditions previously described.

On cross-examination, Dr. Levine testified that he was familiar with an article published by the American Academy of Forensic Sciences authored by Drs. Solomons and Jones concerning a Georgia case study involving death from silicone injections. Dr. Levine did not base any part of his diagnosis or opinion on this Georgia case, although he compared the two. In an attempt to establish his “silicone transfer” theory, defense counsel elicted from Dr. Levine testimony that it is possible for something to be “carried from elsewhere [in the body] into the lung and it can be any number of things and * * * different sizes of things and there are blood clots that are so big that a single blood clot itself gets caught in the e ° e pulmonary artery * * 0 and this is death from a pulmonary embolism.” Death from such a cause can occur sometimes in three to four or eight to 10 minutes. Pulmonary embolism can be caused by silicone or other matter traveling from one part of the body to another. The symptoms exhibited by the victim prior to death are similar to the symptoms exhibited by a person experiencing anaphylactic shock or by a person who had taken “massive doses” of Darvon.

Dr. Michael Schaffer, chief toxicologist for the Cook County Medical Examiner’s office, testified concerning the Toxicology Report compiled in December of 1974. The report indicates the presence of 2.0 milligrams of Darvon in the victim’s gastric contents, the equivalent of about 1/32 of a single capsule of Darvon. The bile contained 6.4 milligrams percent of Darvon, a “significant” level. The report made no distinction, however, between pure Darvon and its metabolite. A metabolite is the substance remaining from Darvon which has already interacted with bodily substances, i.e., the combination of dissolved Darvon and body fluids. It is essential to distinguish between pure Darvon and its metabolite because the latter is nontoxic. Because the report failed to distinguish between the two, and because of the methodology employed, it could not be stated with certainty that the Darvon found in the victim’s bile was a lethal quantity, even if the 6.4 milligrams represented pure Darvon.

Dr. Robert J. Stein, chief medical examiner of Cook County, testified that he received the original autopsy protocol and the Claparols’ samples. It was his opinion that silicone pulmonary emboli caused the victim’s death. He disagreed with Dr. Claparols’ initial determination that the cause of death was Darvon poisoning. After discussing the silicone content of the lung cells and vacuoles, he concluded that the introduction of organosilicone played a major role in the victim’s death, an acute reaction, “[sjuddenly, within * minutes or so” of death. On cross-examination, Dr. Stein testified that it is possible for silicone to be injected into the body and repose in various portions thereof for days, weeks, or months, then later travel to another part of the body. Sometimes a giant cell which has begun to attack a silicone vacuole where it has reposed will rupture and expel the silicone, thus allowing it to travel to a different part of the body. As he “wasn’t there,” he conceded that he could not say precisely when the silicone entered the body. Dr. Stein also indicated that a local anesthetic rarely causes anaphylactic shock and that in this case, based on the absence of eosinophils, granular white blood cells, in all probability, the victim did not die from anaphylactic shock. The State then rested.

The defense called the following witnesses. Robert Mattia and Gary Anderson both testified that the victim had been a heavy Darvon user but neither had witnessed her consume any Darvon on December 5,1974, the day of her death. Dr. Kenneth Costich, a pathologist with Northwest Hospital, testified that it was his opinion that the victim died of anaphylactic shock from a local anesthetic. On cross-examination, he testified that he had never studied the pathology of individuals who died from anaphylactic shock or from a silicone injection. He had never performed an autopsy on an individual who had died from a drug overdose or anaphylactic shock and had never read or conducted studies relating to death caused by Darvon.

Dr. George Christopoulos, a physician specializing in internal medicine at Hines V.A. Hospital and formerly a chief toxicologist with the Cook County Coroner’s office prior to 1975, testified concerning the 1974 Toxicology Report. In his opinion, there is no significance between Darvon and its metabolite and that the 6.4 milligrams percent of Darvon found in the victim’s bile could be fatal. The symptoms of Darvon poisoning are those exhibited by the victim. On cross-examination, he conceded that if an individual experienced an acute emboli in the lung capillaries due to a recent injection of silicone, the immediate cause of death would be pulmonary embulose rather than Darvon poisoning. The defense then rested.

In rebuttal, the State called Dr. Brian Fínkle, director of the Center for Human Toxicology at the University of Utah. He testified that the institute conducted a major study, funded by the F.D.A. and involving over a thousand cases, which concluded that the metabolite of Darvon plays only a minor role in Darvon’s toxicity. He had reviewed the 1974 Toxicology Report and considered the Darvon in the gastric content to be very low and nonlethal. The 6.4 milligram percent in the bile means very little for analytical purposes because it does not distinguish between pure Darvon and its metabolite. Assuming the 6.4 milligram percent was a gross figure of Darvon plus its almost harmless metabolite, this amount would not be fatal. The symptoms exhibited by the victim just prior to death would not be those associated with Darvon poisoning. On cross-examination, Dr. Finkle testified that while the methodology requiring a distinction to be made between Darvon and its metabolite was employed prior to 1976, it did not become more widely used until after 1976. The State rested.

Upon the foregoing evidence, the jury returned a verdict of guilty on both charges, from which defendant appeals.

I

Defendant asserts that the State failed to prove him guilty beyond a reasonable doubt, relying on the hypothesis of innocence doctrine, which provides that where the evidence of defendant’s guilt is entirely circumstantial, the evidence must adequately show that there is no reasonable hypothesis of defendant’s innocence. (People v. Hansen (1955), 5 Ill. 2d 535, 538-40, 126 N.E.2d 243; People v. Wilson (1948), 400 Ill. 461, 480, 81 N.E.2d 211.) The circumstantial evidence must produce a reasonable and moral certainty that defendant committed the crime. (People v. Berland (1978), 74 Ill. 2d 286, 308, 385 N.E.2d 649.) The trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence taken together satisfies the trier of fact beyond a reasonable doubt of defendant’s guilt (People v. Williams (1977), 66 Ill. 2d 478, 485, 363 N.E.2d 801). The State is not required to establish guilt beyond any possibility of a doubt. (People v. Branion (1970), 47 Ill. 2d 70, 77, 265 N.E.2d 1, cert, denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2213.) Whether or not a reasonable hypothesis of innocence has been shown is to be determined by the jury sitting as the trier of fact (People v. Foster (1979), 76 Ill. 2d 365,373-74,392 N.E.2d 6), and this determination will not be disturbed on review unless the proof is so unsatisfactory as to cause a reasonable doubt of guilt to appear. (People v. Warmack (1980), 83 Ill. 2d 112, 128, 413 N.E.2d 1254.) The jury is not required to raise every potential explanation compatible with innocence to the status of reasonable doubt but instead is entrusted with determining whether a reasonable hypothesis of innocence exists. People v. Ware (1980); 82 Ill. App. 3d 297, 302-03, 402 N.E.2d 762; People v. Branion.

The jury sitting in the case sub judice was presented with ample evidence demonstrating that defendant recklessly injected the victim with silicone which was connected with her death. First, April Vaugine’s testimony sufficiently established that defendant injected the victim with silicone minutes before her death. She observed that defendant customarily employed the same syringe for both the anesthetic and silicone injection on succeeding patients. The fluid in the syringe prior to the fatal injection contained a cloudy substance although the fluid in the anesthetic vial had been crystal clear. The inference therefore available is that when the anesthetic was drawn into the syringe, the syringe contained silicone oil remaining from a prior injection, and that it was this cloudy mixture of silicone and anesthetic which was injected into the victim. The inference is further supported by the immediate death of the victim attributed by expert testimony to silicone pulmonary emboli.

The jury was presented with expert testimony supporting the conclusion that the silicone injected in fact caused the death. The testimony of Drs. Levine and Stein established that the victim’s lungs contained both silicone vacuoles which had been in the lungs for at least three weeks, based upon the existence of giant cells around some vacuoles, and a large amount of silicone vacuoles which had arrived in the lungs from within 15 seconds to several hours before death, based upon the absence of any defensive cells whatsoever around those vacuoles. According to these experts, the symptoms exhibited by the victim after the injection were those that would be expected from silicone pulmonary emboli. Based on their separate analyses, Drs. Levine and Stein concluded that death was caused by suffocation from the silicone vacuoles in the lungs resulting from defendant’s injection. Accordingly, the jury’s verdict was well founded upon the evidence.

Defendant argues that “silicone transfer,” anaphylactic shock, or a Darvon overdose could each individually explain the victim’s death, and that any one of them constituted a reasonable hypothesis of innocence which precluded his conviction. Defendant’s tendered explanation as to the “silicone transfer” theory concedes that silicone in the lungs caused the victim’s death; however, defendant asserts that it was not silicone from his injection which traveled to the victim’s lungs, but instead was silicone previously injected into her body by someone else, which had reposed in one part of the body and then, coincidentally, moved to the lungs at the same time as defendant injected the victim. Defendant’s support for this theory is the cross-examination testimony of Dr. Stein that it is possible for silicone to enter the body, then repose in one part and later travel to a different part of the body; yet, none of the witnesses testified that the numerous vacuoles in the victim’s lungs which caused death had arrived there in this manner. The testimony indicated that for a silicone vacuole to travel from one part of the body to another, it must first “escape” from a defensive cell which had engulfed it. According to the State’s evidence, each cell acts independently upon each individual silicone vacuole. Because the cause of death was numerous vacuoles in the lungs, numerous reposed vacuoles would have had to escape from the defensive cells at about the same time and then all travel to or already be strategically present in the same location, the victim’s lungs. The improbability of this occurring was asserted by the expert witnesses. It was well within the jury’s province to reject this theory as a reasonable hypothesis of innocence.

The next defense explanation, that the victim died from the anesthetic which was injected, not from silicone, is based substantially upon the cross-examination testimony of Drs. Levine and Stein. Dr. Levine testified that he believed the victim died from pulmonary emboli and that the victim’s symptoms after injection were consistent with this diagnosis. Although he conceded that anaphylactic shock “might” cause those symptoms, he asserted that anaphylactic shock would be an “extreme reaction” to a local anesthetic and that the victim would have died anyway from the silicone vacuoles in the lungs. Dr. Stein testified that a local anesthetic rarely would cause anaphylactic shock. He concluded that in this case, in all probability, it had not occurred because of the absence of eosinophils. In their opinions there was no evidence that anaphylactic shock caused the death, only that the symptoms “might” have been those of shock. The jury could have properly accepted the conclusion of Dr. Stein that anaphylactic shock had not occurred in rejecting this theory as a reasonable hypothesis of innocence.

Defendant’s last tendered explanation is that the victim died from a Darvon overdose, and not from the injection. According to defendant, the victim had previously taken Darvon at some point in time and it was only coincidental that she died right after the injection. This theory is bottomed upon evidence given by both Mattia and Anderson that the victim had been a heavy Darvon user for years. Parenthetically, neither witnessed such use on the day of her death. Dr. Christopoulos testified that in his opinion, the 6.4 percent milligrams in the victim’s bile “could be fatal” and that the physical symptoms exhibited by the victim prior to death are those that would be expected from Darvon poisoning. Lastly, Claparols’ original autopsy on December 5, 1974, found that the cause of death was from Darvon. It was the jury’s function to determine the witnesses’ credibility, weigh the evidence and resolve conflicts therein. The jury could have considered Dr. Claparols’ finding diminished by his admission that he “took a chance and signed the protocol without taking into account the lung pathology.” It could also have deemed Dr. Christopoulos’ opinion as contradicted by other expert witnesses. Both Drs. Schaffer and Finkle testified that it is critical to determine what portion in the body is pure Darvon and what portion is a Darvon metabolite. The latter is not lethal and therefore not relevant in determining whether the cause of death was from Darvon. Because the test results from the victim did not distinguish between Darvon and its metabolite, it was not subject to precise analysis. The 6.4 percent gross figure of Darvon found in the bile would not be fatal. Finally, the symptoms were not those of Darvon poisoning. Dr. Schaffer, chief toxicologist of the medical examiner’s office, could not say that even if the 6.4 milligrams were pure Darvon present in the bile, such a level would be lethal, and Dr. Finkle, director of a toxicology center, who had conducted a major test on this very issue, concluded that Darvon was not the cause of death. Dr. Christopoulos was a practicing physician who did not distinguish between Darvon and its metabolite. He had not been associated with the Coroner’s office since 1975 and the new methodology of distinguishing between Darvon and its metabolite had not been widely employed until 1976. Thus, the value of his testimony could have been assessed by the jury as outweighed by those with greater expertise in the field. We find no basis for reversal of the jury’s convictions in this regard.

II

The defense next argues that the State failed to prove the occurrence of a homicide and therefore failed to prove homicide concealment. (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3.1(a); People v. Stiles (1977), 46 Ill. App. 3d 359, 363, 360 N.E.2d 1217.) The evidence as detailed above, supports the State’s claim that it did not prove the homicide. The State’s assertion that it proved the concealment through defendant’s acts of dressing the victim after the injection and death, instructing April to omit mention of the fact that an injection had been given, and otherwise concealing the nature of the death from the authorities, also finds support in the record.

III

Defendant’s final argument concerns Illinois Pattern Jury Instruction, Criminal No. 3.02 (1968). This instruction provides that:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [the] [a] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”

The State tendered only the first paragraph of this instruction and defendant’s objection that the second paragraph should also be given was overruled. Defendant argues that because this case involved only circumstantial evidence on the principal issues, the omission of this second paragraph was reversible error under People v. French (1978), 59 Ill. App. 3d 353, 375 N.E.2d 502. In that case it was held that when all the evidence is circumstantial, it is permissible, not mandatory, for the trial court to give this second paragraph of the instruction (59 Ill. App. 3d 353, 361). The court held that the omission was error only where justice has been denied or where it appears that the verdict resulted from such error. We find that neither condition exists in the record before us. See also People v. Cox (1979), 71 Ill. App. 3d 850, 861, 389 N.E.2d 1238; People v. Boose (1978), 65 Ill. App. 3d 127, 132, 382 N.E.2d 532; People v. Hammers (1976), 35 Ill. App. 3d 498, m507-08, 341 N.E.2d 471, cert, denied (1976), 429 U.S. 1002, 50 L. Ed. 2d 614, 97 S. Ct. 534.

For the foregoing reasons, we cannot disturb the jury’s finding of defendant’s guilt of involuntary manslaughter and concealment of a homicide. We therefore affirm.

Affirmed.

STAMOS and DOWNING, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
      In re MARRIAGE OF SAMUEL ASCH, Petitioner-Appellee, and DEIRDRE ASCH, Respondent-Appellant.
    First District (2nd Division)
    No. 80-1641
    Opinion filed September 15,1981.

      Jacobs, Camodeca & Timpone, of Chicago (William R. Jacobs, II, and Jerome Marvin Kaplan, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Samuel E. Asch petitioned for dissolution of his marriage to Deirdre R. Asch. Final judgment for dissolution of marriage was entered on September 5, 1979, and was modified by the partial granting of respondent’s post-trial motion on May 7, 1980. Respondent appeals the adequacy of the trial court’s award of maintenance and the trial court’s action reserving jurisdiction to review the maintenance award after three years.

Samuel and Deirdre Asch were married on December 19, 1945. On November 30, 1977, after 32 years of marriage, Samuel petitioned for dissolution of the marriage, alleging that respondent was guilty of extreme and repeated mental cruelty. When the petition was filed petitioner was 50 years of age and respondent 52 years of age. The parties have four children, all but one of whom were self-supporting at the time of trial. Petitioner was a self-employed insurance agent and respondent was unemployed. Respondent had been employed for brief periods during the marriage, including work at a hotel, as a physician’s assistant, as a volunteer for the Lincoln Park Zoo, as a photographer, and in the past few years has led a number of safaris in Africa.

The grounds for dissolution were uncontested. On July 16, 1979, the trial court concluded, inter alia, that petitioner had provided the sole support for the family during the marriage and that both parties were in relatively good health. The court valued the marital property and divided it as follows. Property apportioned to petitioner as part of the settlement consisted of:

Petitioner’s gross income was approximately $43,000 in 1978. He claimed expenses of $3,542 per month and respondent claimed expenses of $2,290 per month. The court awarded respondent $90 per week rehabilitative maintenance for three years. This award was based on the court’s determination that respondent was unable to financially maintain herself at that time but would be able to do so upon procurement of appropriate employment.

On October 4, 1979, respondent filed a post-trial motion seeking an increase of the maintenance award to $1,500 per month and requesting the court to vacate that portion of the judgment limiting maintenance to three years. Acting on that motion, the trial court increased the award from $90 to $150 per week. The court also ruled that, in light of In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868 (holding that while the trial judge is authorized to make awards of limited duration, such awards should not be based on speculation as to the future condition of the parties), the maintenance order would be modified to eliminate the automatic termination after three years. Instead, the maintenance would continue for three years, at which time the court would determine whether respondent had made appropriate and reasonable efforts to procure suitable employment and maintain herself financially.

Respondent’s first contention on appeal is that the trial court abused its discretion in awarding her only $150 per week. In support of her position respondent cites the 34-year duration of the marriage, the fact that petitioner had been the sole support of the family during the marriage, that respondent did not have the ability to maintain herself financially, that she had received a disproportionately low share of the marital property, that her needs exceeded $150 per week and that petitioner had sufficient income to meet her needs.

The awarding of maintenance is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless it amounts to an abuse of discretion or is against the manifest weight of the evidence. (Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 203, 387 N.E.2d 346; see Hoffmann v. Hoffmann (1968), 40 Ill. 2d 344, 349, 239 N.E.2d 792; Stotlar v. Stotlar (1977), 50 Ill. App. 3d 790, 800, 365 N.E.2d 1097.) Absent an abuse of discretion, a reviewing court should not substitute its discretion for that of the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.) Such an abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. See Lee, at 1127.

Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act allows for the awarding of maintenance only where the spouse seeking maintenance “(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment * * °, or (3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1979, ch. 40, par. 504(a)(1).) The trial court found that at the time of the dissolution respondent was not fully able to provide for her reasonable needs. Upon deciding that maintenance was warranted, the court looked to the six factors set out in section 504(b) of the Act to determine the proper amount of maintenance. (See In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 1029.) The factors include the financial needs and resources of the party seeking maintenance, the time needed to acquire education or training that will enable that party to find appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age, physical and emotional condition of the parties and the ability of the spouse from whom maintenance is sought to meet his own needs. (See Ill. Rev. Stat. 1979, ch. 40, par. 504(b).) With the exception of marital misconduct (see Ill. Rev. Stat. 1979, ch. 40, par. 504(b)), the court is also permitted to consider factors not listed in the Act. See In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 658, 409 N.E.2d 321.

The trial court explained the basis for its decisions when it announced the property settlement and maintenance award. In addition to the $150 per week in maintenance, respondent can generate income from the property apportioned her in the settlement. Included in this property is $1,000 of stock and a condominium unit with $13,000 equity. If these assets are liquidated and added to the $34,000 in cash allotted to respondent, she will have $48,000 available to generate income. The trial court found this to be adequate to maintain her until she could obtain suitable employment and support herself independent of petitioner. Respondent counters that $150 per week does not enable her to maintain the standard of living she enjoyed during the marriage. As the trial court noted, however, there was insufficient money to permit both parties to live apart at the same standard of living to which they had become accustomed during the marriage. See Simmons, at 661.

In deciding on the amount of the maintenance award, the trial court applied the factors set out in the Act to the factual determinations it made from the evidence introduced at trial. A review of the record does not reveal an abuse of discretion by the trial court, nor does it show that the maintenance award is against the manifest weight of the evidence. This court will not substitute its discretion for that of the trial court. (See Lee, at 1127.) The maintenance award of $150 per week is affirmed.

Respondent’s second contention on appeal is that the trial court abused its discretion by reserving jurisdiction for three years to review the maintenance award and ascertain that respondent has made a reasonable effort to procure suitable employment and maintain herself financially. The trial court did not set an automatic termination date for maintenance payments. The court merely set a date when it would review the award to ascertain whether respondent at that time still meets the prerequisites to an award of maintenance: that she lacks property to provide for her needs and is “unable to support [herself] through appropriate employment” or is otherwise without sufficient income. (Ill. Rev. Stat. 1979, ch. 40, par. 504(a).) The Historical and Practice Notes to section 504(b)(2) of the Act, dealing with rehabilitative maintenance (the type awarded in the case at bar), help to explain the intentions of the drafters of the Act. The Notes state that section 504(b)(2) “creates an affirmative obligation on the part of the spouse seeking maintenance to seek employment, where plausible, and this reflects one of the most important changes brought about by this Act.” (Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical and Practice Notes, at 529 (Smith-Hurd 1980).) By reserving the right to review the award after three years to determine whether respondent has made reasonable efforts to find suitable employment, the trial court has chosen a practical alternative designed to avoid the speculation often inherent in future maintenance awards. Rather than speculate regarding the necessity of maintenance three years hence (see Pieper, at 845), the trial court added an element of flexibility to its order. If at the end of the three years the court determines that respondent has reasonably sought employment and failed to find anything suitable, the court will undoubtedly decide that the maintenance should continue, possibly at a higher amount. If, however, respondent has chosen not to seek employment and begin supporting herself, the court could then deny her further maintenance. Having already determined that respondent is able to support herself, the court could justifiably end the maintenance, finding it improper under section 504(a). Alternatively, it is possible that respondent will have found employment that would not provide adequate support. Acting on a motion for modification, .the court could then provide for maintenance in a suitable amount.

Respondent has cited no authority preventing the trial court from reserving jurisdiction as done by the court below. Each of the cases she cites deals with maintenance awards containing automatic termination dates. (See, e.g., Pieper, at 845; In re Marriage of Rosan (1972), 24 Cal. App. 3d 885, 897, 101 Cal. Rptr. 295, 303-04.) In fact, this court has recently held that such reservation of jurisdiction will serve the interests of justice in certain cases. (In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 569, 425 N.E.2d 1146.) As previously discussed, the maintenance order in the present case does not contain an automatic termination date. On the contrary, the court below specifically amended its original order to provide that the termination of payments not be automatic. The trial court fashioned its order to allow for changes in the conditions of the parties. The method adopted appears to be in the best interests of all concerned and is not an abuse of discretion.

The judgment below is affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.

       We note that the trial court failed to make value determinations as to certain marital assets. Such a failure may not comply with the requirements of a recent decision of this court (In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561,565, „ chose not to raise that issue, we will not consider it. _ N.E.2d_). As the parties


author: Mr. JUSTICE ST AMOS

text:
      In re MARIO GOMEZ, a Minor—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. MARIO GOMEZ, Respondent-Appellee.)
    First District (2nd Division)
    No. 80-2096
    Opinion filed September 15,1981.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Thomas A. Gibbons, Assistant State’s Attorneys, of counsel), for the People. •
    James J. Doherty, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellee.
   Mr. JUSTICE ST AMOS

delivered the opinion of the court:

Mario Gomez, a minor, was named respondent in four petitions for adjudication of wardship. The four petitions, all stemming from a single incident, charged that respondent had committed aggravated battery, armed robbery, armed violence, and attempt (murder). The trial court made a finding of “no probable cause” as to each of the four petitions and released respondent from custody. The State has appealed. Respondent has moved to dismiss the State’s appeal, arguing that the trial court’s findings are not appealable.

One witness, John Palcu, testified at the probable cause hearing. Palcu is the alleged victim and is also an investigator for the State’s Attorney’s office. On the evening of May 21, 1980, Palcu was on duty in Blue Island, Illinois. He stopped to use the telephone in a public park. Palcu was wearing plain clothes and was driving an unmarked car. While Palcu was out of his car, respondent approached and made vulgar remarks to Palcu and to a woman passerby. Respondent then rode a short distance on his bicycle and hailed two individuals in a passing car. Respondent and the two occupants of the car then returned to where Palcu was standing. As the three subjects ran toward him, Palcu identified himself as a police officer. Undeterred, the three individuals set upon Palcu, punching and kicking him. One of the three (the driver of the car) produced a pistol and forced Palcu to surrender his revolver. When the beating stopped, respondent left on his bicycle and the other two attackers departed in the car. As the car pulled away, the individual in the passenger seat fired two shots at Palcu. Palcu testified that the artificial lighting in the park was sufficient to enable him to see his attackers clearly. At the hearing, Palcu identified respondent as the person on the bicycle. The trial court made findings of “no probable cause” with respect to aggravated battery, armed robbery, armed violence, and attempt (murder). The assistant State’s Attorney asked for the basis of the rulings and the trial court answered, “No sufficient evidence.” The trial court did not immediately dismiss the petitions but stated that he would set the matter for trial if the State wished. After a brief interval, the State asked that the petitions be dismissed “pursuant to the finding of no probable cause.”

Respondent argues that the dismissal on the State’s motion was a voluntary dismissal and as such is not appealable. To characterize the dismissal as voluntary, however, misconstrues the record. The State asked for the dismissal “pursuant to the finding of no probable cause.” The word “pursuant” suggests that the prosecutor was cognizant of section 3 — 6(1) of the Juvenile Court Act, which states that, “[i]f the court finds that there is not probable cause * * * it shall release the minor and dismiss the petition.” (Ill. Rev. Stat. 1979, ch. 37, par. 703 — 6(1).) In light of section 3 — 6(1), the State’s request for a dismissal merely ensured that the trial court’s disposition of the petitions complied with the applicable statute.

The notion that the State voluntarily sought dismissal of the petitions is further dispelled by the written order of the trial court. This order was entered October 30, 1980, nunc pro tunc to June 30,1980 (the date of the probable cause hearing), and states that the petitions are dismissed pursuant to section 3 — 6(1). Since the dismissal was mandated by statute, it cannot have been “voluntary” with respect to the State.

Nevertheless, the fact that the dismissal was not voluntary does not resolve all questions concerning the appealability of the order. Respondent contends that the State cannot appeal from a finding of “no probable cause.” At the threshold is the issue of finality: the reviewing court generally has jurisdiction only over final judgments. (See Commonwealth Loan Co. v. Baker (1968), 40 Ill. 2d 506, 508, 240 N.E.2d 682.) This court has held that a finding of no probable cause is not a final judgment. (People v. Harkness (1975), 34 Ill. App. 3d 1, 3, 339 N.E.2d 545.) In both civil and criminal cases, there is no appeal from a nonfinal order unless the appeal is specifically authorized by statute or rule. See People v. Miller (1966), 35 Ill. 2d 62, 67, 219 N.E.2d 475.

The State has cited no specific rule authorizing the instant appeal. Rather, the State argues that the order of the trial court falls within “those instances whereby the substantive effect of the judgment would be the dismissal of the indictment, information or complaint.” (See People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, quoting People v. Rotramel (1972), 5 Ill. App. 3d 196, 198, 282 N.E.2d 484.) We agree that the “substantive effect” of an order should be considered and we find that the order below was not final in its “substantive effect.”

A final and appealable order terminates the litigation on the merits. (See People v. Culhane (1975), 34 Ill. App. 3d 158, 159, 340 N.E.2d 63.) It is difficult to see how the trial court’s order in the case at bar effects such a termination. Nothing prevents the State from gathering more evidence and drawing up new petitions in another attempt to show that probable cause exists. No double jeopardy problem arises as long as the State is not involved in proceedings “aimed at reaching a final determination of [respondent’s] guilt or innocence of the offense charged.” (People v. Chatman (1967), 38 Ill. 2d 265, 270, 230 N.E.2d 879.) Successive proceedings to establish probable cause are barred only if they amount to harassment. See People v. Overstreet (1978), 64 Ill. App. 3d 287, 289, 381 N.E.2d 305.

The State acknowledges that a dismissal for want of probable cause is not final or appealable in adult criminal cases, but the State maintains that this is not the rule with respect to juvenile court adjudications. The State argues that the wording in section 3 — 6(1) of the Juvenile Court Act (“If the court finds that there is not probable cause * * * it shall release the minor and dismiss the petition”) requires a dismissal that is final and conclusive by virtue of the principle of res judicata. The State’s reasoning in this respect is circular. The doctrine of res judicata applies only to final judgments. (See People v. Kidd (1947), 398 Ill. 405, 408, 75 N.E.2d 851.) The dismissal of a petition for adjudication of wardship cannot have a res judicata effect unless it is final. No wording in section 3 — 6 convinces us that the legislature intended to impose such finality on the findings made at the detention hearing.

We conclude that the litigation was not necessarily terminated by the trial court’s findings and that no statute or rule permits an interlocutory appeal of this type. (Cf. Ill. Rev. Stat. 1979, ch. 110A, par. 604(a) (detailing the grounds for the State’s appeal in criminal cases).) In People v. Kent (1972), 54 Ill. 2d 161, 295 N.E.2d 710, our supreme court (Schaeffer, J.) stated:

“We know of no Illinois authority, however, which holds that an order releasing an accused for want of probable cause is appeal-able, or that it is in any way conclusive upon the prosecution.” (54 Ill. 2d 161, 164.)

The instant case provides us with no compelling reason to depart from the accepted rule. The appeal is therefore dismissed.

Appeal dismissed.

DOWNING and PERLIN, JJ„ concur.


author: Mr. JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANGEL LUIS GARCIA, Defendant-Appellant.
    First District (1st Division)
    No. 80-253
    Opinion filed September 21, 1981.

      Irwin L. Franzin, of Chicago, for appellant.
    Richard M. Daley, State's Attorney, of Chicago (Marcia B. Orr, Mark E. Thompson, and Susan Fleming, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant was charged by information with the offense of possession of 30 grams or more of a substance containing heroin. After a bench trial, defendant was found guilty and sentenced to the Department of Corrections for a term of four years. Defendant now appeals.

On appeal, defendant argues that: (1) he was not proved guilty beyond a reasonable doubt of the offense of possession of a controlled substance; (2) the State failed to adequately establish the chain of custody and possession of the substance; and (3) he should have been found guilty of a lesser charge because no evidence was introduced as to the weight of the plastic bags in which the substance was found.

We affirm.

On October 14, 1977, Officer Ricardo Abreau went to the Federal Drug Enforcement Agency to obtain $4,600 to purchase heroin from defendant. Abreau met Officers Thomas Kinsella and Thomas Nuestrom at the corner of North Avenue and Ashland in Chicago at 7 that evening. The three agreed that Abreau would signal the other two officers once he had seen the heroin. He then went alone to meet defendant at the corner of North Avenue and Claremont. He told defendant he wanted to purchase 6 ounces of heroin. Defendant told Abreau to meet him at the garage in the alley behind 1620 North Claremont in 20 minutes.

After 20 minutes had passed, Abreau went to the designated location. Defendant was standing in front of the garage and three or four people stood in the garage working on a car. Defendant informed Abreau that he was only able to procure 4 ounces of heroin. When Abreau agreed to accept the smaller amount, defendant showed him a brown paper bag which contained four clear plastic bags containing a chunky brown substance.

Once he had seen the substance, Abreau signaled the other officers. As the officers approached defendant, he threw the brown paper bag to the ground. Nuestrom retrieved the bag and placed it in his pocket. Abreau and defendant then went to the vice control division of the narcotics office.

Officers Nuestrom and Kinsella drove together to the police station. Nuestrom did not remove the bag from his pocket until one hour after defendant’s arrest. The parties stipulated to the fact that each of the four bags contained 23.94 grams of heroin.

One relative and three friends of defendant testified that they were in or around the garage during the incident. All four testified that they never saw a brown paper bag or anything thrown to the ground. Defendant testified on his own behalf. He claimed that he was in the back of the van at the time of his arrest and that he had neither heroin nor a brown paper bag.

The trial court found defendant guilty and sentenced him to four years in the Department of Corrections. Defendant appeals his conviction.

First, defendant argues that he was not proved guilty beyond a reasonable doubt of the offense of possession of a controlled substance. Defendant claims that since one relative and three of his friends who were present at the scene of the alleged drug transaction testified that they did not see defendant with a brown paper bag, there is a reasonable doubt as to his guilt. Essentially, defendant is arguing that the trial court erred in choosing to believe the State’s witnesses rather than defendant’s witnesses. The trial court, sitting as trier of fact, is in a position superior to that of a reviewing court for purposes of assessing the credibility of witnesses and conflicting evidence. (People v. White (1978), 69 Ill. App. 3d 830, 840, 387 N.E.2d 728; People v. DeWitt (1978), 66 Ill. App. 3d 146, 148-49, 383 N.E.2d 694, affirmed (1979), 78 Ill. 2d 82, 397 N.E.2d 1385.) We are unwilling to reverse a conviction on the ground that the trial court chose to believe the State’s witnesses rather than those of the defense,

Additionally, defendant argues that the State’s failure to call Officer Nuestrom to testify demonstrates the weakness of the State’s case. We have held that the testimony of a single law enforcement officer is enough to support a conviction in a narcotics case. (People v. Mickelson (1975), 32 Ill. App. 3d 813, 815, 336 N.E.2d 806.) Here, Officers Abreau and Kinsella testified that they observed defendant offer the heroin to Abreau outside the garage at 1620 North Claremont and then throw the brown paper bag on the ground. Their testimony corroborated each other’s as to the events surrounding the planned surveillance and arrest. It was unnecessary for the State to call Officer Nuestrom to further corroborate the accounts given by the other two officers. We conclude that defendant was proved guilty beyond a reasonable doubt.

Second, defendant argues that the State failed to adequately establish the chain of custody and possession of the four plastic bags containing a brown powdery substance. In People v. Pagliara (1977), 47 Ill. App. 3d 708, 365 N.E.2d 72, the defendant raised a similar argument. The court noted that the State is not required to exclude all possibility of tampering. All that is required is that there be a reasonable probability that the article had not been changed in any respect. 47 Ill. App. 3d 708, 714.

In the present case, although Officer Nuestrom did not testify, Officer Kinsella testified that he was with Nuestrom from the time Nuestrom picked the bag up off the ground until the time the contraband was inventoried at the crime laboratory. Defendant presented no evidence which would indicate that the substance was in any way tampered with or altered. In the absence of any such evidence, we must find that the chain of custody was sufficiently proved. People v. Pagliara (1977), 47 Ill. App. 3d 708, 365 N.E.2d 72; People v. Richards (1970), 120 Ill. App. 2d 313, 256 N.E.2d 475.

Lastly, defendant argues that the State failed to meet its burden of proving defendant guilty of possession of 30 grams or more of a substance containing heroin, a class 1 felony. (See Ill. Rev. Stat. 1979, ch. 5@z, par. 1402(a)(1).) It was stipulated that if the lab technician who analyzed the substance were to testify, he would state that the total weight of the four clear plastic bags and the substance contained therein was 95.7 grams. Defendant maintains that since there was no testimony as to the weight of the bags themselves, he can only be found guilty of a lesser charge.

Defendant asks us to believe that the weight of the four bags was in excess of 65 grams. Not by a long stretch of the imagination can. we conjecture this to be true. We therefore reject defendant’s final contention as well.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD COLEMAN, Defendant-Appellee.
    First District (1st Division)
    No. 80-1253
    Opinion filed September 21,1981.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Pamela L. Gray, Assistant State’s Attorneys, of counsel), for the People.
    Giovanñini & Goldberg, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

The defendant was charged with the offense of possession of a controlled substance. At a preliminary hearing, wherein defendant declined to testify, defendant’s motion to suppress was denied and a finding of probable cause was made. Thereafter, an information was filed charging defendant with two counts of possession of a controlled substance, heroin and cocaine. During a bench trial, after the People had rested their case-in-chief, the defendant was allowed to re-open the motion to suppress the arrest and physical evidence and defendant was allowed to testify in support of the motion. Over the objections of the State, the said motion was sustained. The People have prosecuted this appeal pursuant to Supreme Court Rules 604(a)(1) and 606 (Ill. Rev. Stat. 1977, ch. 110A, pars. 604(a)(1), 606).

On appeal, the People have raised the following issues: (1) whether a defendant who declines to testify in support of his motion to suppress is barred by collateral estoppel from relitigating the motion, 6 months later, in order to offer his own testimony which cannot be characterized as newly available; and (2) whether the stop of the car in which defendant was a passenger was proper where the car was speeding and whether the search of defendant’s coat was proper where defendant abandoned his coat at the scene when he fled from the police.

On September 18, 1971, at the preliminary hearing, defendant presented the testimony of Officer Robert Whalen in support of his motion to suppress. Officer Whalen testified that on August 1, 1979, at 9 p.m., he was in his marked squad car at 4041 West Lake Street. At that time, he saw a car leave from a parked position at a high rate of speed. He followed the car for 1 to 1% blocks, travelling over 35 miles per hour. The car continued to pull away from the officer. The posted speed limit was 30 miles per hour. The car stopped at Lake Street when he activated the “Mars” light. The car made a right turn and was in the process of pulling over to the curb, when defendant opened the front passenger’s door, alighted from the car and started to run. Defendant was holding a coat in his hand which caught on the car’s open door. Following an unsuccessful chase of defendant, he returned to defendant’s coat which had fallen on the ground. He went through the pockets of the coat and recovered several plastic bags containing heroin and cocaine.

During cross-examination the objection of the People was sustained when the officer was asked by defense counsel to state his purpose in pulling the car over. In rebuttal, the defense called Officer Wflialen and was allowed over the People’s objection to question the witness concerning events preceding those testified to previously by the officer. Officer Whalen testified that at 8:45 p.m. on August 1, 1977, he saw defendant standing by a parked car on Washington Street. He did not question defendant at that time. He did, however, approach defendant that night prior to seeing him in the car which had stopped. Defendant was stopped about 10 minutes before the car in which he was riding was stopped. At that time, defendant was approached by Officer Whalen in the 4100 block of West Washington. Defendant was asked “why he ran from us,” and conducted a protective search for the officer’s safety. After the conversation, defendant was released.

After defendant was released, the officer drove into an alley and observed defendant as he looked up and down the street and then entered an abandoned building. After a few minutes, defendant came out of the building carrying a jacket that he had been wearing when he walked in. Defendant looked up and down the street again, and then ran east on Washington Street and got into a car. It was at that point that the officers saw the car pull off. The court denied the People’s motion to strike the officer’s rebuttal testimony and made a finding of probable cause. An information was subsequently filed.

At trial, the People presented the testimony of Officers Henk and Whalen whose testimony was substantially the same as the previous testimony given by Officer Whalen at the preliminary hearing. Additionally, Officer Henk testified that the car was stopped due to defendant’s actions and due to the manner in which the car took off and its rate of speed. He testified that during his initial stop of defendant, and the patting down of defendant’s jacket, that there was nothing in the pockets of said coat at that time. Officer Whalen added that the car was stopped because it had sped off, its tires were squealing and he felt the car might be involved in some activity. He also testified that he did not feel anything in the defendant’s jacket pocket during his initial stop of defendant.

Following a stipulation regarding the nature of the substances recovered, the People rested. Defense counsel then moved to re-open the motion to suppress that was conducted before a previous judge. Defense counsel argued that the previous judge did not allow or consider evidence regarding the officers’ state of mind or intentions at various times when defendant was stopped. Counsel further argued that the illegal activity of the police officers caused defendant to flee and that, therefore, defendant did not actually abandon his coat. The court reserved its ruling. Later defendant filed a written motion to suppress the arrest and physical evidence asserting that the additional evidence which was not available was that the police stopped defendant’s car because the tires were screeching and because they wanted to find out if defendant was involved in any criminal activity. Counsel argued that those reasons raised the importance of the officers’ state of mind to show that the coat was not abandoned.

Defendant claimed that the first time that defense counsel was allowed to inquire as to the reason for the officers’ initial stop of defendant was during their testimony at trial and that the court found that such stop was a custodial arrest even though he was not taken to the station, and no charges were filed at that time. Defendant further asserts on appeal that the court found that the reason given for the initial stop of defendant by said officers was newly discovered evidence, first becoming available to the defense at trial, and on that basis granted defendant’s motion to re-open defendant’s motion to suppress evidence over the State’s objections.

The testimony of defendant contradicted that of the arresting officers in several particulars. Defendant testified that when he first saw the police car drive past him he was standing on the driver’s side of his friend’s car in the street, not ducking down behind the passenger side as testified to by the officers. Defendant ran across Washington Street because he thought he saw his girl friend in the alley north of Washington Street. Defendant did not notice any police officers shouting at him to halt as he ran across the street. When defendant was initially stopped by the officers and asked why he ran from them, defendant responded “I didn’t run from you, I had no reason to run from you.” During his initial stop the officers searched him by going into his jacket and patting his pockets. During his initial stop, and while still outside of the squad car, one of the officers had a long black club in his hand. While in the squad car one of the officers threatened to hit the defendant in the head with his billy club. While defendant was in the squad car one of the officers asked defendant the name of his girl friend, and defendant gave them the name. While defendant was in the squad car one of the officers left the car to check on defendant’s girl friend’s name and address, and returned to the car and said that the name and address given by defendant checked out. While in the squad car one of the officers threatened to lock the defendant up for disorderly conduct. One of the officers then told defendant to get out of the neighborhood, and defendant was released from the squad car.

Defendant further testified that after he was released from the squad car he went up on the porch and waited for his nephew to return. Defendant sat on the porch until he saw his nephew’s car pull up. As defendant was running toward his nephew’s car he saw the police car drive past him.

Defendant further testified that as his nephew pulled his car from the curb that the tires did not screech, and that his nephew was driving at the regular speed limit. As the car in which defendant was riding was pulled over to the curb by the police, defendant told the other persons in the car “I am not going to let them jump on me and hit on me.” Defendant testified that he ran because the police had threatened him. When defendant ran out of the auto his jacket was left on the front seat of the car. Defendant’s jacket did not fall to the ground as he exited the car. As a result of the testimony of defendant, the court stated:

“But there is much too much in the police version of what happened which corroborates the defense version of what happened. The police say he ran, he says he ran. There is nothing wrong in running. He hadn’t committed any crime at that time. The police searched him, stopped him after that, asked him why he ran. They said he said because he likes to run. He said he told them he was running because he was trying to find somebody, and they inquired as to why he was in the neighborhood; and according to him, told him he better get out of the neighborhood, not to be found there again, they would be rough on him.”

Again, after both sides had rested, the court further stated that:

“Well, now still all he has done is run and leave an abandoned building and what he has left is a jacket. What is the basis for them to search his jacket. They have already searched it, patted him down and everything, found nothing. Why would they search it now, because he left the abandoned building. Well, evidently assuming that he must have picked up something in the abandoned building and he is about to — that is good police action I guess if they know there is a distribution center some place, they suspect he is a runner or dealer so they put two and two together and they move in and they might very well have frustrated some criminal activity, if so that activity was frustrated and the heroin never got to where it was going; but just because it is good police work doesn’t mean that we can accept it in court. Under the circumstances, I will sustain the defendant’s Motion to Suppress.”

The People urge that defendant was not entitled to a second hearing on his motion to suppress, six months after the first, for the sole purpose of offering the testimony of the defendant, which had always been available, and that the ruling of the court was manifestly erroneous, in the absence of either newly available evidence or exceptional circumstances.

The State has asserted that the doctrine of collateral estoppel barred relitigation of the issue of whether defendant’s coat was abandoned and argues that Illinois law is clear that when a defendant moves to suppress evidence and his motion is denied, the defendant is not entitled to a subsequent hearing on the same motion unless he can show exceptional circumstances or new evidence which could not have been brought out or was not available at the first hearing. In support of its position the State has cited People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283, and People v. Armstrong (1973), 56 Ill. 2d 159, 306 N.E.2d 14, which cases involved multiple prosecutions, wherein the supreme court extended the collateral estoppel doctrine to motions to suppress evidence which were denied at the preliminary hearing and then raised anew at post-indictment, pretrial proceedings. In People v. Armstrong the court stated:

“° ° ° the doctrine of collateral estoppel bars the relitigatión of an order sustaining the validity of a search, in the absence of additional evidence or peculiar circumstances there mentioned.” (56 Ill. 2d 159, 161.) .

Moreover, in People v. Holland (1974), 56 Ill. 2d 318, 307 N.E.2d 380, where the -trial judge had refused to rehear a second motion to suppress evidence at trial, the court stated:

« there has been no suggestion of exceptional circumstances or any evidence in addition to that submitted upon the first hearing which had become available for submission in connection with the motion to suppress.” 56 Ill. 2d 318, 321.

Defendant contends that the trial court in the instant cause did not abuse its discretion in allowing defense counsel to reopen a motion to suppress evidence where there was present both additional evidence not available during the first hearing, and where there were exceptional circumstances surrounding the discovery of said evidence which necessitated the additional testimony of the defendant on said motion. Counsel for defense in response to an inquiry as to what additional evidence did he have to produce responded,

“My intention is to produce the testimony of the defendant as to what prompted him to run from that car and that testimony I expect will include a series of events leading up to that stop.”

Earlier in the proceedings in response to an inquiry from the court as to additional information, counsel for the defendant stated:

“° 0 ° the one thing that is not in there, which is the crucial element that I was trying to get to, the officer’s state of mind when he stopped the vehicle. The judge previously, specifically had not allowed him to answer. When he considered this, he considered it strictly as to whether it bore on the officer’s credibility.”

Defense counsel then indicated that he did not know what the officer’s state of mind was at the time and based on that state of mind the testimony of defendant would bear on the ultimate issue. The previous judge had sustained objections to defendant’s attempt to elicit from the officers why the car had been stopped and would not allow the officer’s state of mind into evidence. Defendant argues that the first time that counsel was allowed to elicit from either of the officers the actual reason for the stop of said car was during their testimony before the trial judge. It was at this time that it became apparent that the stop of said car was not for the purpose of issuing a traffic citation to the driver, but to further investigate defendant’s activities. It was this newly discovered evidence of the officer’s state of mind that defendant moved to re-open his motion and suppress evidence. This was done at the close of the State’s case in chief.

The State argues that the ultimate issue of fact, whether defendant’s coat was abandoned, was thoroughly and completely litigated at the preliminary hearing before a previous judge and that both Armstrong and Hopkins bar the relitigation in the absence of additional evidence or exceptional circumstances.

We agree with the contention of the State that the record does not support the charge by defendant of exceptional circumstances in this case as were found to be present in People v. Stiles (1981), 95 Ill. App. 3d 959, where the issue was the effective assistance of counsel at the prior hearing. It follows that support, if any, for the position of defendant must be found to satisfy the test of newly discovered evidence. Defendant, in his testimony at trial, sought to present evidence in addition to that submitted upon the first hearing. People v. Holland.

The general principles as to what constitutes newly discovered evidence are largely set forth in decisions considering motions for a new trial on the ground of newly discovered evidence. The established rule is:

“* ” ° that a new trial will only be granted for newly discovered evidence where it is shown that it could not have been produced on the trial by the use of reasonable diligence, and if the evidence is cumulative in character it must be conclusive, necessarily leading to a change in result.” (People v. Grady (1942), 381 Ill. 224, 233, 44 N.E.2d 880, 884.)

Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor and must be closely scrutinized. (People v. Dukes (1960), 19 Ill. 2d 532, 169 N.E.2d 84.) The evidence must not be merely cumulative and should be of such conclusive character that it will probably change the results if a new trial is granted. People v. Dukes; People v. Ilich (1975), 25 Ill. App. 3d 334, 323 N.E.2d 509.

The precise question for our resolution is whether the so-called newly discovered evidence of the officer’s state of mind and the reasons for stopping the car justifies the granting of a rehearing of defendant’s motion to suppress. One factor to be considered is whether the matters set forth at trial could have been presented in the first hearing. Defendant has cited People v. Colletti (1978), 61 Ill. App. 3d 289, 377 N.E.2d 1276, for his position in that the defendant’s testimony alone was sufficient new evidence to warrant a reconsideration of his previously denied motion to suppress. In People v. Colletti, the court stated:

“The major issue in this case is whether a defendant charged under the Illinois statute with having ‘obtained control’ over stolen property on a certain date may have that charge dismissed prior to trial by introducing proof at a hearing that he gained possession of the property much earlier in time, so that the statute of limitations had run prior to commencement of his prosecution. A secondary issue is whether the testimony of the defendant is to be considered new evidence so that the defendant is not barred from relitigating the issue whether the statute of limitations has run where he did not testify at the first hearing but did at the second. We hold that the second hearing was proper under the circumstances, but that the indictment should not have been quashed before the State had the opportunity to prove at trial the specific offense charged.
The focus of the hearing on defendant’s second motion centered on his claims as to when he first acquired the property at issue. Defendant sought to establish that he acquired the property in 1968, therefore preventing his prosecution in 1974 because the statute of limitations had run.” (61 Ill. App. 3d 289, 290-92.)

The court held that it was obvious that additional evidence was presented on the issue of the dates and acquisition of certain property involved in the theft charged and ruled that the court did not err in hearing the second motion even though the same issue had been ruled upon earlier.

We do not find the Colletti case to be controlling here for the reason that the court found that it was obvious that additional evidence was presented on the matter of dates which was critical to the case and that the defendant’s testimony did not “become available after the first hearing to suppress.” The court ruled that the basis for the denial of the first motion was predicated on the testimony of a lieutenant that defendant told him that defendant acquired the property in 1974 and defendant did not testify except by use of an affidavit as to his residence. In the second motion defendant contended that he acquired the property in 1968 and that the prosecution was barred by the statute of limitations. We do not have the benefit of the defendant’s testimony on the issue of the dates, but the court stated that it was obvious that additional evidence was presented. We infer that the court was presented with conflicting evidence as to when the defendant first acquired the property in issue, 1968, or 1974, and it was only after the parties had fully presented their evidence that the court was in a position to determine the merits of defendant’s claims when he actually acquired the property. The court found that defendant, prior to trial, could not seek to change the relevant dates contained in the indictment by presenting contrary proof on the matter. The court sustained the defendant’s motion on the grounds that defendant’s testimony given under oath had not been overcome.

Colletti may be distinguished on the crucial facts of that case as found by the court and we do not find similar factors present in the case at bar. We do not find that the testimony of the defendant in the instant case met the tests of exceptional circumstances or newly discovered evidence, or additional evidence, as prescribed by the supreme court in the Hopkins, Armstrong and Holland cases, and defendant has not demonstrated that the evidence sought to be introduced had become available for submission in connection with the motion. In the absence of such proof of additional evidence or newly discovered evidence the motion to relitigate should have been denied. (See People v. Moore. (1976), 37 Ill. App. 3d 777, 347 N.E.2d 331; see also People v. Nelson (1981), 97 Ill. App. 3d 964.) It cannot be said that the first motion is a rehearsal or-dry run for a second motion and error was committed in granting said motion. See People v. Douglas (1981), 100 Ill. App. 3d 181, 426 N.E.2d 950.

Because of the conclusion reached we need not address the second issue raised by the parties for the reasons stated in People v. Hopkins, and the judgment of the circuit court of Cook County is hereby reversed and said cause is remanded for a new trial.

Reversed and remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


text:
    LIBCO CORPORATION et al., Plaintiffs-Appellants, v. WARE ADAMS, Defendant-Appellee.
    First District (1st Division)
    No. 80-1325
    Opinion filed September 21,1981.

      Arnold, Pagniucci, Sachnoff, Schrager, Jones, Weaver, Rubenstein, Ltd., of Chicago, for appellants.
    Ware Adams, of Chicago, for appellee, pro se.

   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Plaintiffs filed an action for damages based on alleged libelous statements contained in a letter. The trial court dismissed the third amended complaint on the ground that the letter was absolutely privileged. Plaintiffs appeal.

On appeal, plaintiffs contend that (1) the communication was not absolutely privileged even though made between two attorneys; (2) the conditional privilege to report judicial proceedings is not applicable to the communication; and (3) the statements cannot be innocently construed.

We affirm.

Plaintiff Clyde Engle is chairman of the board of plaintiff Libco Corporation. Plaintiff Lowell E. Sachnoff is an attorney who represents Libco and Engle in various matters. Defendant Ware Adams is also an attorney.

The action below was predicated on the contents of a letter written by defendant Adams to James Nesland, a Colorado attorney. At the time the letter was written, defendant and Nesland were involved in separate proceedings against, inter alia, Libco and Engle. Nesland represented Outdoor Sports Industries, Inc. (OSI), a Colorado corporation, in an action against Libco and Engle for violation of the Securities Exchange Act. Adams had initiated an action on behalf of the beneficiaries of the Reliable Employee’s Profit Sharing Plan Trust against Libco, Engle, and others for violation of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. §1001 et seq. (1976)). Adams also represented defendants in another action brought by Libco.

In preparing for litigation, Adams had requested from Nesland a copy of the Securities and Exchange Commission Schedule 13D filed by Libco and Engle. Apparently Libco and/or Engle had purchased shares of OSI stock and under section 78m(d) of the Williams Act (15 U.S.C. §78m(d) (1976)) were required to file a 13D schedule with the target company OSI.

In his letter, Adams thanked Nesland for forwarding the schedules. He explained his legal strategies and theories in the ERISA action. He was prepared to argue that Libco and Engle purchased OSI stock and stock in other corporations with trust funds and that Engle was profiting personally from an unlawful use of the funds. This argument was founded on disclosures in the 13D schedule. He believed that the initial purchase of OSI stock was a prohibited transaction and suggested that, on this basis, Nesland could challenge Engle’s voting of shares in OSI. He advised Nesland not to transfer the OSI case from Colorado to Chicago and expressed his reasons for such advice. He also commented on the merits of another case in which he was involved wherein Libco and Sachnoff were his adversaries.

Plaintiffs alleged in the third amended complaint that the contents of the letter were defamatory. In count I, Libco and Engle alleged that Adams intended to publicly defame them by charging them with illegal business practices. They further alleged that Adams published false statements knowing that the statements were false and that their reputations were injured by the statements in the letter. In count II, Sachnoff charged that he was defamed by false statements in the letter which portrayed him as a dishonest, untrustworthy, and unethical practitioner, and that his professional reputation was injured thereby. The statements to which plaintiffs objected were set forth in the complaint.

Defendant filed a motion to dismiss the third amended complaint. After reviewing legal memoranda filed by the parties and hearing oral arguments, the trial court granted defendant’s motion. The court found that the communication was absolutely privileged and based its finding on the principles set forth in Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762, and the Restatement of Torts (Restatement (Second) of Torts §586 (1977)).

Plaintiffs contend that the trial court erred in dismissing the complaint. They recognize that the absolute privilege protects communications between attorneys, but argue that the attorneys must be involved in the same case. Thus, they maintain that defendant’s letter to Nesland was not protected by the privilege because Nesland was not involved in litigation with defendant.

The absolute privilege protects anything said or written in a legal proceeding. (Weiler v. Stern (1978), 67 Ill. App. 3d 179, 384 N.E.2d 762; Made v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 290 N.E.2d 912; Restatement (Second) of Torts §586 (1977).) Out-of-court communications between attorneys are protected (Dean v. Kirkland (1939), 301 Ill. App. 495, 23 N.E.2d 180) as well as communications between attorneys and their clients. (Weiler.) The only requirement is that the communication pertain to proposed or pending litigation. (Weiler; Made; Restatement (Second) of Torts §586, Comment c, at 248 (1977).) The pertinency requirement is not applied strictly (Weiler; Made), and the communication need not be confined to specific issues involved in the litigation. Restatement (Second) of Torts §586, Comment c, at 248 (1977).

The purpose of the privilege is to secure to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients. (Restatement (Second) of Torts §586, Comment a, at 247 (1977).) It is based on the tenet that conduct which would otherwise be actionable should escape liability because the defendant is furthering an interest of social importance. Weiler, citing Prosser, Torts §114, at 776 (4th ed. 1971).

None of the cases cited by the parties involves the identical factual situation as is presented in this case. However, based on the foregoing legal principles and the theories supporting the privilege, we conclude that the communication was absolutely privileged. Adams and Nesland shared common opponents. The ERISA action filed by Adams was of interest to Nesland and his corporate client OSI, and the letter itself was relevant and pertinent to pending litigation. Furthermore, in advising Nesland to refrain from transferring an action from Colorado to Chicago, Adams was acting in a professional capacity.

If we were to restrict the applicability of the privilege as plaintiffs have urged, we would risk limiting an attorney’s ability to zealously represent and assist the public. Under the circumstances in this case, we believe that the public interest outweighs the possibility of harm to plaintiffs and that the communication should therefore be privileged.

Plaintiffs also contend that the conditional privilege for report of judicial proceedings is not applicable to this case and that the alleged defamatory statements cannot be innocently construed. However, we need not address these issues because of our holding that the communication was absolutely privileged.

In his brief, defendant argues that he is entitled to attorney’s fees under section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 41.) The trial court denied defendant’s motion for costs and fees, but defendant did not file a notice of appeal. Because no appeal was filed, this court lacks jurisdiction to determine the issue. Danaher v. Knightsbridge Co. (1978), 56 Ill. App. 3d 977, 372 N.E.2d 862.

For the foregoing reasons, we affirm the order of the circuit court of Cook County dismissing plaintiff’s complaint.

Order affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.