author: PRESIDING JUSTICE WHITE

text:
    JANE BARTHOLOMEW, Plaintiff-Appellant, v. LAVERT CROCKETT et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—2401
    Opinion filed March 6, 1985.

      Baskin, Server, Berke & Weinstein, of Chicago (Susan R Malone, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (William R. Wallin, Assistant Attorney General, of Chicago, of counsel), for appellee Lavert Crockett.

      Conklin & Adler, Ltd., of Chicago (John S. Roadhouse and Peter V. Bustamante, of counsel), for other appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Jane Bartholomew brought this action against defendant, Lavert Crockett, for personal injuries sustained as a result of a motor vehicle collision and against her former attorneys, Paul Caghan, David Wittenberg and Wittenberg & Caghan, Ltd. (attorneys), for malpractice in handling the aforementioned claim. Appellant’s two-count amended complaint was dismissed as to all defendants.

The amended complaint alleges that on June 2, 1980, Bartholomew was driving her automobile in the course of her employment as a nurse inspector for the Illinois Department of Public Health, going to one of the nursing homes where she was assigned. She was proceeding in a westerly direction on Taylor Street in Chicago. She had come to a complete stop behind traffic to allow another vehicle to make a left turn when her car was struck from the rear by a motor vehicle driven by Crockett. At the time of the collision, Crockett was operating a State-owned vehicle in the course of his employment as a truck driver for the University of Illinois. As a result of the collision, Bartholomew alleges that her car was damaged and that she sustained extensive injuries.

The amended complaint further alleges that on or about June 3, 1980, Bartholomew retained David Wittenberg and Paul Caghan of the law firm of Wittenberg and Caghan, Ltd., to represent her in all claims arising out of the above-mentioned occurrence, against the State of Illinois as her employer for workers’ compensation and against Crockett and his employer for his negligence. Thereafter Bartholomew entered into two retainer agreements which provided for payment to the attorneys of 20% of the award from the Industrial Commission for workers’ compensation claims and for payment of 40% of the recovery on all other claims.

On January 8, 1981, the attorneys filed a statutory notice of claim for personal injuries against the State of Illinois in the Illinois Court of Claims. This claim was filed late, more than eight days beyond the time allowed by statute, and named the State as the defendant instead of the Board of Trustees of the University of Illinois. The attorneys later filed a complaint in the court of claims for property damages only, identifying Crockett as an agent of the State. Further, the attorneys filed a workers’ compensation claim against the State of Illinois as Bartholomew’s employer. They settled her property damage claim against the State of Illinois, instructing her to execute a general release in favor of the State and Crockett.

Subsequently, Bartholomew became dissatisfied with the attorneys’ overall performance and discharged them upon learning that they had filed an untimely statutory notice of claim. She then retained the attorney who is representing her in this appeal.

Bartholomew’s amended complaint in count I alleged that Crockett was negligent in speeding, failing to retain control of his vehicle, and otherwise operating his vehicle in a negligent manner. In count II of her complaint, she charged that the appellee attorneys failed to file a proper notice of claim with the court of claims, negligently advised plaintiff to sign a general release, and improperly named the State of Illinois rather than the Board of Trustees of the University of Illinois as the employer of Crockett.

The trial judge granted Crockett’s motion to dismiss on the basis that Bartholomew and Crockett were co-employees, each acting within the scope of his employment at the time of the incident, and that the action is barred by section 5(a) of the Workers’ Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 138.5). The judge granted the attorneys’ motion on the grounds that plaintiff failed to state a cause of action for malpractice because she had suffered no damages as a result of the alleged negligence of the attorneys. This appeal followed.

Bartholomew argues that the trial court erred in dismissing her claims because (1) the Board of Trustees of the University of Illinois is separate and distinct from the State of Illinois for purposes of section 5(a) of the Workers’ Compensation Act, (2) an employee of the Board is not immune from claims based on his negligent operation of a motor vehicle because the injured party is employed by the State of Illinois, and (3) she stated a cause of action against her former attorneys for legal malpractice.

The first issue to be considered is whether the Board of Trustees of the University of Illinois is a legal persona separate from the State of Illinois. We note that at the time of the incident, both Bartholomew and Crockett were acting in the scope of their employment. Bartholomew contends that Crockett is not an employee of the State because the Board is a legal entity separate and distinct from the State of Illinois, and that the Board and the State are not the same employer for purposes of section 5(a) of the Workers’ Compensation Act. She therefore asserts that Crockett is not immune from suit on a common law negligence claim by her. We agree.

Section 5(a) of the Workers’ Compensation Act provides in pertinent part:

“Sec. 5. (a) No common law or statutory right to recover damages from the employer, *** or employees * * * for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).)

The Illinois Supreme Court has construed this section to mean a common law action against a co-employee is precluded if the parties come within the Act and the accidental injury arose out of and in the course of the employment. Chmelik v. Vana (1964), 31 Ill. 2d 272, 201 N.E.2d 434; Brooks v. Carter (1981), 102 Ill. App. 3d 635, 430 N.E.2d 566.

It is uncontested that Bartholomew is an employee of the State of Illinois. The question here is whether the Board of Trustees of the University of Illinois, which employed Crockett, can be considered the State of Illinois under section 5(a) of the Workers’ Compensation Act. On numerous occasions, Illinois courts have discussed the status of the university in relation to the State. The Board has been described as a public corporation, endowed with all the powers and duties of public corporations, and was established by the legislature for the purpose of conducting and operating the university. People ex rel. Board of Trustees v. Barrett (1943), 382 Ill. 321, 46 N.E.2d 951; Spalding v. People (1898), 172 Ill. 40, 49 N.E. 993.

In Barrett, our supreme court examined at length the relationship between the Board and the State. It held that the Board, as a corporation, was distinct and separate from the State. The court concluded that the university is not a State agency but an agent for the State. “The distinction, while subtle, is very real *** [b]oth State agencies and agents for the State are created by the legislature, but the former are governmental in nature while the latter are proprietary or administrative.” (Decker v. University Civil Service System Merit Board (1980), 85 Ill. App. 3d 208, 213-14, 406 N.E.2d 173.) The Barrett court described the status of the Board as follows:

“[The Board] functions solely as an agency of the State for the purpose of the operation and administration of the university, for the State. In doing this, it functions as a corporation, separate and distinct from the State and as a public corporate entity with all the powers enumerated in the applicable statutes, or necessarily incident thereto. It has and can exerelse no sovereign powers. It is no part of the State or State government.” (Emphasis added.) (People ex rel. Board of Trustees v. Barrett (1943), 382 Ill. 321, 343.)

Moreover, in Board of Trustees v. Industrial Com. (1969), 44 Ill. 2d 207, 254 N.E.2d 522, the Illinois Supreme Court considered the relationship of the Board to its employees when the Board attempted to appeal to the circuit court an award of the Industrial Commission in favor of an employee. The employee argued that his claim against the Board was a claim against the State for purposes of section 19f of the Workers’ Compensation Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.19f(l)). The Board argued that it was not an agency of the State of Illinois, and therefore not within the section 19f preclusion. Our supreme court agreed, holding that claims by university employees were not the same as claims by State employees, because the Board is a corporation separate and distinct from the State and subject to being sued as any public corporation. Thus, the Board and its employees, unlike the State or its employees, are permitted to appeal Industrial Commission decisions to the circuit court.

The Barrett and Industrial Commission cases are not the only decisions in which the Board asserted that it is separate and distinct from the State of Illinois. Recently, the Board asserted the same and the appellate court adopted the conclusion of the aforementioned decisions in McKenna v. Board of Trustees (1980), 90 Ill. App. 3d 992, 414 N.E.2d 123, and Decker v. University Civil Service System Merit Board (1980), 85 Ill. App. 3d 208, 406 N.E.2d 173. In these cases, nonacademic employees of the University of Illinois sought to obtain payment of prevailing wages, contending they were either State employees or at least employees of a State officer, agent or authority. The court in both cases held that the university is not an agency of the State within the meaning of the Personnel Code (Ill. Rev. Stat. 1977, ch. 127, par. 391), but is “separate and distinct from the State.” McKenna v. Board of Trustees (1980), 90 Ill. App. 3d 992, 996; Decker v. University Civil Service System Merit Board (1980), 85 Ill. App. 3d 208, 214.

We conclude that Crockett, who is employed by the Board of Trustees of the University of Illinois, is not an employee of the State for purposes of section 5(a) of the Workers’ Compensation Act. Accordingly, we hold that Bartholomew and Crockett are not co-employees within the meaning of section 5(a) of the Workers’ Compensation Act, and that Crockett is not immune from Bartholomew’s common law negligence claim against him.

Crockett places great reliance on Ellis v. Board of Governors (1984), 102 Ill. 2d 387, 466 N.E.2d 202, Williams v. Medical Center Com. (1975), 60 Ill. 2d 389, 328 N.E.2d 1, and Kane v. Board of Governors (1976), 43 Ill. App. 3d 315, 356 N.E.2d 1340, in support of his argument that the University of Illinois is a State agency. In these cases the Boards and the Commission were characterized as “arms of the State of Illinois” (State agencies) for purposes of sovereign immunity, meaning that claims against these entities are cognizable exclusively in the Illinois Court of Claims pursuant to the Court of Claims Act. (Ill. Rev. Stat. 1983, ch. 37, par. .439.8(d).) In neither case was the court addressing the issue of whether employees of such entities are to be considered State co-employees.

Even assuming arguendo that Crockett is a State employee, his contention that all claims against him were required to be asserted in the Court of Claims is without merit. “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1983, ch. 127, par. 801), precludes the State, not individuals, from being sued in another forum; nor is Crockett within the exclusive jurisdictional purview of the Court of Claims (Ill. Rev. Stat. 1983, ch. 37, par. 439.8). The Illinois Appellate Court, on numerous occasions, has held that non-governmental activities of State employees can form the basis of a negligence action in the circuit court, and such claims are not required to be asserted in the Court of Claims. (Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048, 386 N.E.2d 885; Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131.) Similarly, the court in Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 373 N.E.2d 486, found that the Board of Trustees of Southern Illinois University could be sued only in the court of claims, but that this restriction did not apply to the employee defendant.

More specifically, Illinois courts have held that a government employee cannot use governmental immunity as an affirmative defense or as a shield to preclude circuit court jurisdiction in automobile negligence cases. (Hering v. Hilton (1958), 12 Ill. 2d 559, 147 N.E.2d 311; Gocheff v. State Community College (1979), 69 Ill. App. 3d 178, 386 N.E.2d 1141; Pree v. Hymbaugh (1959), 23 Ill. App. 2d 211, 162 N.E.2d 297.) The defendants in each case were operating motor vehicles on the public highway in a negligent manner. The opinions in those cases, in effect, stated that the fact of government employment could not be used as a shield. The duty imposed on the defendants was held to be the same duty imposed on all other persons operating motor vehicles on the public highways. We believe this to be sound law. In Gocheff, the court specifically noted that:

“*** [T]he acts of negligence alleged to have been committed by [defendant] relate not to obligations incurred solely by virtue of his employment with [the State community college], but rather to duties automobile drivers owe to one another.” (Gocheff v. State Community College (1979), 69 Ill. App. 3d 178, 184.)

Accordingly, we hold that even if Crockett were a State employee, he could not use his employment as a shield against suit in the circuit court.

Crockett contends further that a suit which involves the State’s self-insurance plan is a suit against the State and is cognizable solely in the court of claims. Conversely, Bartholomew argues that the circuit court does not lose jurisdiction merely because the Board participates in a State-sponsored insurance program which insured Crockett and the vehicle driven by him.

We believe the coverage of Crockett and the vehicle by a State-sponsored insurance program has no jurisdictional effect. Generally, State employees are not exempt from liability for their own acts of negligence merely because they were acting within the scope of their employment. See Gocheff v. State Community College (1979), 69 Ill. App. 3d 178; Watson v. St. Annes Hospital (1979), 68 Ill. App. 3d 1048; Madden v. Kuehn (1978), 56 Ill. App. 3d 997.

Specifically, in Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207, the defendant was a State trooper who was involved, while on duty, in an automobile collision in which plaintiffs were injured. The trooper moved to dismiss the complaint on the grounds that the circuit court lacked subject-matter jurisdiction, relying upon section 35.9(m)(3) of the Civil Administrative Code (Ill. Rev. Stat. 1977, ch. 127, par. 35.9(m)(3)), the predecessor of section 35.9(1)(3) (Ill. Rev. Stat. 1979, ch. 127, par. 35.9(1)(3), which is applicable here. The circuit court refused to dismiss the complaint, and the appellate court affirmed. The court noted that the statute in question concerns two situations:

“*** [A]ny other person while using a licensed motor vehicle owned, leased, or controlled by the State of Illinois with the authorization of the State of Illinois, provided the actual use thereof is within the scope of such authorization and within the course of State service.” Ill. Rev. Stat. 1979, ch. 127, par. 35.9(h).
The first involves suits in tort against a State employee operating a vehicle covered by State self-insurance provisions; in this situation, the State shall defend, indemnify and hold the employee harmless against the tort claim, in any proper judicial forum. The second situation expressly involves claims against the State as a self-insurer, and requires those claims to be brought in the court of claims. (Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 776.)

The Kaiser court found that in the former case, jurisdiction was proper in the circuit court, while in the latter, the court of claims might have sole jurisdiction.

Crockett contends that the Kaiser case is inapplicable because section 35.9(m) was amended subsequent to the holding in Kaiser. We disagree. Although there are numerous amendments to the provision, the General Assembly retained the provision that “the State of Illinois shall defend, indemnify and hold harmless such employee against any claim in tort filed against such employee for acts or omissions within the scope of his employment in any proper judicial forum ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 127, par. 35.9.) It was this provision as well as the one referring to the court of claims upon which the Kaiser court relied. Crockett’s interpretation of the statute would render the “any proper judicial forum” provision meaningless if the claims could only be filed in the Court of Claims. We do not believe the legislature intended its amendments to render that provision meaningless.

Crockett argues in his brief that Bartholomew’s execution of a general release of claims against him and the State of Illinois bars this suit. We note that the understanding of the parties was that the release concerned only the claims for property damage. Nevertheless, Crockett raised the issue of the release as a defense. The record shows, however, that on February 22, 1983, Crockett withdrew the issue of the release from consideration by the court and the release is therefore not an issue in this appeal.

Lastly, Bartholomew argues that the court erred in dismissing her legal malpractice claim against her former attorneys and in ordering summary judgment in the attorneys’ favor.

A motion for summary judgment will be granted if the pleadings, depositions and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Federal Deposit Insurance Corp. v. Maris (1984), 121 Ill. App. 3d 894, 460 N.E.2d 367.) We believe the attorneys’ right to summary judgment is clear and free from doubt. Tunic v. Village of Willow Springs (1983), 120 Ill. App. 3d 800, 458 N.E.2d 1132.

In order to state a cause of action for legal malpractice, the plaintiff must plead the existence of an attorney/client relationship; a duty arising from that relationship; a breach of that duty; causation and actual damages. Cook v. Gould (1982), 109 Ill. App. 3d 311, 440 N.E.2d 448; Chicago Red Top Cab Association, Inc. v. Gaines (1977), 49 Ill. App. 3d 332, 364 N.E.2d 328; Trustees of Schools v. Schroeder (1971), 2 Ill. App, 3d 1009, 278 N.E.2d 431.

Since damage is an element of a professional malpractice claim that is not presumed, Bartholomew bears the burden of pleading and proving that damages resulted. This burden entails establishing that “but for” the attorneys’ negligence, the client would have successfully defended or prosecuted the underlying suit. Zych v. Jones (1980), 84 Ill. App. 3d 647, 406 N.E.2d 70; Miller v. Schultz (1977), 53 Ill. App. 3d 721, 368 N.E.2d 1141.

We agree that Bartholomew’s claim against the Board for personal injuries is precluded because of her former attorneys’ failure to file timely statutory notice of claim. However, this failure did not deprive Bartholomew of a cause of action for her personal injuries against Crockett. As we have held in this appeal, she has a valid cause of action against him for her personal injuries.

Since it is yet to be determined (by the trial court in her revived claim) whether Bartholomew may recover against Crockett, it is impossible to ascertain whether the attorneys’ negligent .conduct resulted in actual damages to her. Bartholomew will have sustained actual damages for a cause of action in legal malpractice only after she fails to recover or fails to fully recover on her personal injury claim against Crockett or if the release defense, which is not before us, is ultimately sustained.

On this basis, Bartholomew, in her complaint, failed to meet her burden of pleading sufficient facts showing that damages resulted from the attorneys’ failure to file timely the statutory notice of claim for personal injuries against the Board of Trustees of the University of Illinois. (Zych v. Jones (1980), 84 Ill. App. 3d 647.) Without the element of actual damages, Bartholomew’s cause of action for legal malpractice has hot yet accrued and is therefore nonexistent. (Trustees of Schools v. Schroeder (1971), 2 Ill. App. 3d 1009.) Accordingly, we hold that the court below properly found that Bartholomew failed to show that she suffered any damages as a result of the attorneys’ conduct and summary judgment for the attorneys was properly granted.

For the aforementioned reasons, we reverse the summary judgment entered for defendant in count I and remand; and we affirm the summary judgment entered for defendants in count II.

Reversed and remanded in part and affirmed in part.

McGILLICUDDY and RIZZI, JJ., concur.

      Section 19f of the Workers’ Compensation Act precludes judicial review by the circuit court of Industrial Commission decisions in all actions against the State of Illinois.

      As a driver of a motor vehicle registered to the State, Crockett is considered a State employee only for purposes of section 35.9(h). Section 35.9(h) defines employee, inter alia, as:

      Section 35.9(1) is presently cited as Ill. Rev. Stat. 1983, ch. 127, par. 63b4(k).


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL L. DRAKE, Defendant-Appellant.
    Second District
    No. 84—395
    Opinion filed March 6, 1985.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Paul L. Drake, pleaded guilty to burglary in the circuit court of Kane County and was sentenced to 12 months’ probation and to pay costs and restitution. He later pleaded guilty to theft at a hearing on a petition to revoke his probation. His probation was extended by six months and he was sentenced to 90 days in the Kane County jail. A second petition to revoke his probation was filed alleging his commission of retail theft under $150 (Ill. Rev. Stat. 1983, ch. 38, par. 16A — 3). Specifically, he was charged with the retail theft of 12 steel files of three different types from the Ace Hardware store in Elgin.

After a hearing on the petition, the defendant was found guilty of retail theft in violation of the terms of his probation and was sentenced to 30 months’ probation with no credit for time served and to six months in the Kane County jail with credit for time served since March 2, 1984.

The defendant contends in this appeal that he was denied a fair revocation hearing because the court considered improper hearsay evidence, and that the State failed to prove by a preponderance of the evidence that he violated his probation.

Elgin police officer Mike Turner had stopped and was questioning two juvenile suspects on an unrelated incident at about 11 a.m. on October 19, 1983, in Elgin. He observed the defendant walking behind the Helm TV business at 201 National Street, saw him walk over to a window on the west side of the building and continue around to the rear of the building. When the defendant saw squad cars, he put something inside his jacket. Turner radioed Elgin police department Captain Gopher to stop the defendant and check what was inside his coat. Turner testified he did not see the defendant bend down or pick anything up off the ground when he was near Helm TV.

Captain Gopher testified he approached the defendant, asked him if he had anything in his coat, and that the defendant said no. The defendant opened his coat upon the officer’s request, and the officer found 12 files therein. The files were not in a sack or package, and. there was no sales receipt with the files, although the officer could not recall whether he asked the defendant if he had a sales receipt. When asked where he got the files, the defendant stated he found them on the ground behind Helm TV. Gopher said there was no dirt or mud or snow “or anything” on the files. Gopher testified each of the files had an “Ace” sticker on it, and that there are two Ace Hardware stores in Elgin. The one nearest the Helm TV store was the one on the east side of Elgin on North Spring and Kimball. The other store, the Lillian Street store, was located about lsk to 2 miles from the Helm TV store.

There was conflicting and contradictory testimony as to whether the defendant was “booked” at that time in the manner that term ordinarily implies, i.e., taken to the police station, fingerprinted, photographed, and so forth, or whether he was just asked for pertinent information such as his name, address, phone number and so forth at the scene. In either instance, the testimony was consistent on the point that the defendant was not held that day, but was released.

The manager of the Lillian Street Ace Hardware store on the west side of Elgin, Del Logston, testified Officer Turner arrived at the store on October 19 at about 3 p.m. and showed him some files. Files similar to the ones found on the defendant’s person, not the actual files which were allegedly stolen (which had been replaced in the store inventory and subsequently sold), were presented at trial for demonstrative purposes. Over the defendant’s hearsay objection, Logston testified he identified the 12 files Turner showed him as ones carried by that store by virtue of “our stock number and our store number and our Ace price tag on the files.” He testified the store number was a distinctive one, No. 6319, as opposed to the North Spring and Kimball store, No. 49. Logston testified he proceeded to the file section of the store, and there he found three empty peg hooks. Logston testified there was an inventory conducted of that section of the tool department on Sunday, October 16, 1983. The normal procedure during inventory is to “put in the inventory book the quantity on hand and, if need be [to] order sufficient quantity necessary to restock.” Over the defendant’s hearsay objection, Logston testified there was nothing in the October 16 inventory book about needing to order the three types of files that were kept on the three pegs found empty on October 19.

A store employee, Sheila Gutierrez, testified she saw the defendant in the store the morning of October 19, 1983, and saw him walk down several aisles, including the tool aisle where she was doing price changes. She could see the cash register from where she was, and could have heard it there, too, if a sale had been rung up. She did not see the defendant buy anything. She testified she also saw the defendant in the store the day before, October 18, in the paint-pet area. He did not buy anything that day either. She identified the defendant two weeks later from a photographic lineup of eight to 10 pictures. The defendant was also identified in court by Gutierrez, Gopher, and Turner.

Fair Hearing/Improper Hearsay Evidence

The defendant correctly asserts that one of the elements of the offense of retail theft which the State was required to prove was that the defendant had taken possession of or carried away the subject files from the Ace Hardware store. (See People v. Wynn (1980), 84 Ill. App. 3d 591.) Defendant further asserts that the only evidence of this element was derived from the testimony of Del Logston, whose testimony was based on his reading of the store code number found on the price stickers affixed to the files. The defendant contends the manager’s testimony and the store stickers were inadmissible hearsay.

The defendant argues the circumstances of the case at bar distinguish it from this court’s decision in In re TD. (1983), 115 Ill. App. 3d 872, where it was held that the label on a tube of glue was competent evidence that the glue contained the prohibited substance Toluol, and that the corpus delicti had been proved by the prosecution. The underlying rationale there was that the label was statutorily required, thereby imparting a high degree of trustworthiness. The defendant asserts no such reliability factor is present here and that, but for the code number on the stickers identifying the particular Ace Hardware store, there was no way of identifying the origin of the steel files.

We note that the basis of the defendant’s objection as argued at trial was that, unless the files allegedly taken by him were produced at trial, or at least a photograph of files was produced, any testimony by Logston concerning his identification of the files as having originated from his store by reason of the code number on the label was hearsay and inadmissible. As such, the defendant’s objection was properly overruled.

It has been established that the credible testimony of one witness is sufficient to sustain a defendant’s conviction, even though that testimony may be contradicted by the accused. (People v. Hasty (1970), 127 Ill. App. 2d 330.) The fact that the item or items allegedly stolen are not produced in court is legally immaterial. People v. Banks (1974), 17 Ill. App. 3d 512, 515; People v. Hasty (1970), 127 Ill. App. 2d 330, 335; cf. People v. Connell (1980), 91 Ill. App. 3d 326, 335 (even though merchandise allegedly not paid for was not in evidence at trial, store manager’s testimony as to items found in defendant’s possession and their approximate value was sufficient proof of the items allegedly stolen).

It has been held that:

“[t]he basis for excluding evidence under the hearsay rule lies in the fact that an opportunity to ascertain the veracity of the testimony is absent [citation], and not that the evidence offered may technically fall within the definition of the term. Thus, the essential requirement of the testimonial offering is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the fact asserted. [Citations.]” People v. Rogers (1980), 81 Ill. 2d 571, 577-78.

Clearly, Logston was available at trial for cross-examination as to his ability to identify items carried in stock in his store. Logston testified that the difference between the files produced at trial for demonstrative purposes and the files he was shown on October 19, 1983, was that in addition to the words “Ace price,” the price itself, and the item stock number, each sticker had his store code number, 6319. Further, he testified he knew the store number for the east side Ace Hardware store was No. 49.

In In re T.D., this court found its analysis there was consistent with the general rule regarding trade inscriptions:

“That rule, as summarized by leading commentators, provides that ‘[inscriptions, signs, tags, or labels purported to have been affixed in the course of business and indicating ownership, control, or origin, should be considered self-authenticating. The basis for self-authentication of these items is the day-to-day reliance by members of the public on their correctness and the unlikelihood of fabrication.’ E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 902.6, at 498-99 (3d ed. 1979).” In re T.D. (1983), 115 Ill. App. 3d 872, 877.

The stickers on the files obviously were used to facilitate the day-to-day operation of the business. The store manager’s testimony concerning the origin of the files was based on his own personal knowledge and observation of the stickers. As such, it was clearly admissible, and competent evidence.

The defendant also argued that the use of Logston as a witness denied him the right to confront and cross-examine witnesses (U.S. Const., amends. VI and XIV: Ill. Const. 1970, art. I, sec. 8) since Logston had no personal knowledge of the steel files.

We find the issue is patently nonmeritorious, and People v. Marselle (1974), 20 Ill. App. 3d 1012, is clearly distinguishable. There, a critical piece of evidence, a letter containing “first- and second-degree” hearsay statements, was admitted and the first- and second-degree declarants were not produced in court, so that the defendant there had no opportunity to confront or cross-examine them.

Corpus Delicti

The defendant asserts the State’s proof failed to establish the corpus delicti in this case; to wit, that he exerted unauthorized control over merchandise from Ace Hardware with the intent to permanently deprive the store of the use and benefit of said merchandise. He points out no one testified to anything more than that he was observed in the store, that the October 16 inventory of files showed no need to order more at that time, and three days later, all the files were gone. The defendant contends the State’s proof allows the alternate conclusions that the store could have sold the files, or that someone else could have stolen the merchandise and later abandoned it, after which he could have found it as he told the police. He concludes that because an essential element of the State’s proof was inadmissible hearsay, vacation of the revocation of his probation is mandated. Additionally, he raises the question whether he indeed was the person stopped, arrested and/or booked on the 19th, since he adamantly denied at the hearing that it was he, and Officer Turner gave contradictory testimony as to whether he was taken to the police station on that day.

Addressing the last point first, the officer’s contradictory testimony presented only an issue of credibility to be resolved by the trier of fact. Further, the defendant was positively identified in court by Officer Turner and Captain Gopher as the person they stopped on the 19th and from whom the steel files were recovered, regardless of the conflict in testimony as to the subsequent disposition of the defendant.

There is no dispute here that at a hearing on a petition to revoke a defendant’s probation, the State need only establish a violation of a condition of probation by a preponderance of the evidence, and the determination by the trial court will be reversed only when it is contrary to the manifest weight of the evidence. People v. Owens (1983), 116 Ill. App. 3d 51; People v. Wadelton (1980), 82 Ill. App. 3d 684.

“Proof by a preponderance of the evidence is not the same as proof by clear and convincing evidence. The preponderance of the evidence has been defined as evidence sufficient to incline an impartial and reasonable mind to one side of an issue rather than the other. (Moss-American, Inc. v. Fair Employment Practices Commission (1974), 22 Ill. App. 3d 248, 259, 317 N.E.2d 343, 351.) A proposition proved by a preponderance of the evidence is one that has been found to be more probably true than not. [Citation.].” In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 13.

The term corpus delicti has been defined as “ ‘proof of the fact that a crime has actually been committed and that someone is criminally responsible therefor.’ [Citations.]” (People v. Thomas (1981), 98 Ill. App. 3d 852, 858, cert, denied (1982), 456 U.S. 993, 73 L. Ed. 2d 1289, 102 S. Ct. 2276.) The corpus delicti may be proved by circumstantial evidence or by the defendant’s own testimony given in defense, which may be judged by its improbabilities. (People v. Daniels (1983), 113 Ill. App. 3d 523, 531; see generally People v. McNeal (1983), 120 Ill. App. 3d 625, 630.) Intent and unauthorized control can be proved by circumstantial evidence. (People v. Meyer (1982), 110 Ill. App. 3d 673.) Where an element of the State’s case is proved circumstantially, the proof must be of a conclusive nature, producing a reasonable and moral certainty of the defendant’s guilt and excluding any reasonable hypothesis of innocence. (People v. Williams (1980), 85 Ill. App. 3d 850, 858; People v. Trapps (1974), 22 Ill. App. 3d 1029, 1032-33.) Where two equally reasonable hypotheses exist, the one consistent with innocence must be adopted. (People v. Ibom (1962), 25 Ill. 2d 585, 594.) However, the trier of fact need not accept the defendant’s version of the facts, but may consider its probability in light of the surrounding circumstances. People v. Heidorn (1983), 114 Ill. App. 3d 933, 935.

The defendant’s version of the facts, i.e., that he found the files, when considered in light of the surrounding circumstances, does not present a reasonable hypothesis of innocence. Officer Turner said when the defendant noticed the squad cars, he put something inside his coat. Shortly thereafter, when confronted by Captain Gopher, the defendant denied he had anything in his coat when, in fact, he did, and the 12 steel files were recovered from inside his coat. A defendant’s false statement has been construed as evidencing a consciousness of guilt (People v. McQueen (1983), 115 Ill. App. 3d 833, 837), and the court here, as the trier of fact, was entitled to weigh the reasonableness of his explanation that he found the files against the fact that he lied in response to a direct question asked by a police officer.

Del Logston’s testimony concerning the identification of the stolen property was not inadmissible hearsay as argued by the defendant. In People v. Talach (1983), 114 Ill. App. 3d 813, the court found in fact that the inability of the State’s witnesses in that case to identify the stolen coffee as having come from the particular Jewel store in question was not fatal to its case. Because ownership of the item in question is not an element of proof in a retail theft offense, whereas it is in a theft offense (People v. McNeal (1983), 120 Ill. App. 3d 625), it does not appear that any defect in the evidence going to the exact origin of the steel files would be fatal to the State’s case, so long as there is evidence that the item was merchandise displayed, held, stored or offered for sale. People v. McNeal (1983), 120 Ill. App. 3d 625, 628.

The circumstantial evidence presented here was that the defendant was seen in the store the day before and on the day in question; he did not purchase anything either time; he was seen about one hour later on the day in question about lsk to 2 miles away from the store; when he noticed a squad car, he put “something” in his coat; when asked about it later, he denied anything was in his coat; when 12 steel files with Ace Hardware stickers were discovered in his coat, he said he found them on the ground behind Helm TV; the officer who first observed the defendant behind Helm TV testified he did not see the defendant bend down or pick up anything from the ground; when the files were recovered from the defendant’s coat they were clean and bore no trace of dirt or moisture; the store manager identified the files as having come from his store; three empty peg hooks were found where the files had been on display; and a store inventory completed three days earlier showed no need to order more files at that time. We conclude the State sustained its burden of proof by a preponderance of the evidence.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

HOPE and STROUSE, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN TRIMBLE, Defendant-Appellant.
    First District (3rd Division)
    No. 83—974
    Opinion filed February 27, 1985.
    James J. Doherty, Public Defender, of Chicago (Clyde Lemons, Jr., Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Cuomo, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Following a jury trial, defendant Brian Trimble was convicted of murder, attempted murder, armed violence and aggravated battery. The court entered judgments on the murder and attempted murder convictions. Defendant was sentenced to the Illinois Department of Corrections for an extended term of 65 years for murder and for a term of 30 years for attempted murder, the sentences to run concurrently.

Pertinent trial testimony was as follows. Late on the evening of July 3, 1982, defendant sat with two other men in a station wagon. The car was parked across the street from a pool hall located on 47th Street in Chicago. Defendant was carrying a gun he had picked up earlier that evening at the home of one of his companions. Victims Lamar Celestine (Celestine) and Edwin Jenkins (Jenkins) walked past the pool hall and stopped to look inside. Defendant had known Celestine for approximately 15 years and had previously loaned him a sawed-off shotgun. A few days prior to July 3, 1982, defendant asked for the gun back but Celestine told him that it had been stolen from his house. Defendant called the two victims over to the car. He asked Celestine to get into the car, suggesting that they go shoot some dice. Jenkins, whom defendant did not know, asked if he could accompany the men and was told that he could. The car turned onto Champlain Street and into a dark alley. Defendant got out of the car.

There is a dispute as to what happened next. Celestine testified that Jenkins got out of the car and was shot in the back as he ran away. Defendant then looked into the car and shot Celestine in the thigh. As Celestine stumbled from the car and tried to run away, defendant shot him in the back and in the arm. Celestine remembered nothing further until he woke up in the hospital.

Defendant and the driver of the car both testified that Celestine got out of the car and that defendant again asked for the return of the shotgun. Celestine replied, “I’m going to give it to you just like you asked for it,” and put his hand into his jacket. Defendant then fired at Celestine and wounded him. Jenkins began to get out of the car, saying he had nothing to do with the missing gun. Defendant testified that he shot Jenkins because he thought Jenkins was reaching for a gun.

After the shootings, defendant got back in the car and said, “Let’s go,” and they drove away. Celestine identified him from photographs he was shown at the hospital and defendant was arrested on July 4, 1982. It was stipulated by the parties that Dr. Mitra Kalelkar of the Cook County medical examiner’s office if called to testify would state that Jenkins was killed by a single gunshot wound that entered his back and exited the left chest wall. The jury found defendant guilty of murder, armed violence, attempted murder and aggravated battery. Defendant appeals.

Defendant first contends (1) that there was no basis for imposing an extended-term sentence for murder; (2) that the 30-year extended-term sentence for attempted murder was improper; (3) that the court’s refusal to admit into evidence the victim’s prior conviction to show his violent character denied defendant an essential part of his defense; and (4) that the prosecutor’s remarks during closing argument were inflammatory and constituted reversible error.

Defendant argues that his sentence for 65 years for Jenkins’ murder was improper because the court found no aggravating factors to warrant the imposition of an extended-term sentence. Section 5— 5 — 3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)) provides that the court may impose an extended-term sentence for exceptionally brutal or heinous behavior indicative of wanton cruelty. Defendant argues, however, that there was no brutality or heinousness in Jenkins’ murder beyond that inherent in any murder.

A trial court’s decision regarding sentencing will not be overturned on appeal absent an abuse of discretion. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) In evaluating the brutality and heinousness of an offense, the trial court must analyze the entire spectrum of facts surrounding the incident. (People v. Rivera (1984), 126 Ill. App. 3d 197, 466 N.E.2d 1144; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823, cert, denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490.) This court has previously noted that the degree of brutality or heinousness must be exceptional to justify the imposition of an extended-term sentence. People v. Fieberg (1982), 108 Ill. App. 3d 665, 439 N.E.2d 543.

In People v. La Pointe, our supreme court discussed the meanings of brutality and heinousness: “ ‘Heinous’ is defined by Webster’s Third New International Dictionary (unabridged) as ‘hatefully or shockingly evil: grossly bad: enormously and flagrantly criminal’; ‘brutal’ includes ‘grossly ruthless,’ ‘devoid of mercy or compassion: cruel and cold-blooded.’ ” (People v. La Pointe (1981), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.) At the sentencing hearing in the instant case, the court emphasized that defendant did not know Jenkins but did know he was not involved with the missing shotgun. Nonetheless, defendant shot Jenkins in the back as he ran away. The court found that the cold, calculated manner in which the murder had been carried out demonstrated a complete cruelty.

The record indicates that the court carefully analyzed defendant’s behavior and found it to be brutal. The imposition of an extended-term sentence for Jenkins’ murder was not an abuse of discretion.

Defendant also contends that the extended-term sentence for 30 years for attempted murder was improper. Based on his reading of the record, defendant argues that the court imposed a second extended-term sentence which must be vacated because a defendant can receive an extended-term sentence only for the most serious offense for which he is convicted. The statutory sentence for attempted murder is not less than six years and not more than 30 years. (Ill. Rev. Stat. 1981, ch. 38, pars. 8 — 4(c)(l), 1005 — -8—l(a)(3).) There is nothing in the record to indicate that the court imposed anything more than the statutory maximum for this offense. Therefore, we find it unnecessary to address this argument.

Defendant next argues that the trial court erred by refusing to allow into evidence one of Celestine’s prior convictions to show his violent character. Defendant attempted to prove Celestine’s character for violence by introducing his 1981 conviction for unlawful use of a weapon. Our supreme court recently held that where the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the first aggressor and defendant may show it by any appropriate evidence. (People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018.) The court found that a victim’s prior convictions for crimes of violence were reliable evidence of a violent character. The court noted that although such evidence is ordinarily inadmissible because of the risk of prejudice to the defendant, where a victim’s propensity for violence is in issue, the danger of prejudice to defendant lies in refusing to admit the evidence. In Lynch, defendant attempted to introduce the victim’s three prior convictions for battery. The supreme court stated that battery is prima facie probative enough of aggressive and violent tendencies to be admissible. 104 Ill. 2d 194, 203, 470 N.E.2d 1018, 1021.

The State argues that Lynch is distinguishable from the instant case. The offense of unlawful use of a weapon prohibits a large number of acts, most of which are nonviolent: possessing, carrying, purchasing, selling or manufacturing certain kinds of weapons. (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1.) The State further argues that Celestine’s character for violence and aggression was proved by other evidence. His 1976 conviction for armed robbery was admitted, and defendant testified as to Celestine’s reputation for violence. We agree with the State that there was admitted sufficient appropriate evidence of Celestine’s violent and aggressive character. A conviction for unlawful use of a weapon is not particularly probative of a violent character. The exclusion of Celestine’s prior conviction was not error.

Defendant’s final contention is that certain of the prosecutor’s remarks during rebuttal argument were inflammatory and constituted reversible error. Improper remarks during closing argument are reversible error where they result in substantial prejudice to the defendant or where they serve no purpose but to inflame the jury. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Where, however, defense counsel provokes the allegedly improper comments by his own improper closing argument, he cannot claim error. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671, cert, denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858; People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890; People v. Brown (1984), 122 Ill. App. 3d 452, 461 N.E.2d 71.) We find from an examination of the record that the complained-of remarks were responses to arguments made by defense counsel.

Additionally, the trial court is in a better position than a reviewing court to determine the prejudicial effect, if any, of remarks made during arguments. Unless there is an abuse of discretion, its ruling should be upheld. (People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324; People v. Pittman (1984), 126 Ill. App. 3d 586, 467 N.E.2d 918.) After overruling defendant’s objection, the court cautioned the jury that they were to decide the case on the evidence and the law and not on sympathy or prejudice. It further admonished the jury not to put themselves in the position of either the defendant or the victims. Additionally, the court instructed the jury to disregard the attorneys’ remarks, directed it to consider only the evidence presented and advised that closing arguments are not evidence. (Illinois Pattern Jury Instructions, Criminal, Nos. 1.01 and 1.03 (2d ed. 1981).) Such instructions have been held to cure prejudice resulting from improper remarks during closing argument. People v. Johnson (1984), 122 Ill. App. 3d 532, 461 N.E.2d 585; People v. Mahon (1979), 77 Ill. App. 3d 413, 395 N.E.2d 950; People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.

We find that the prosecutor’s remarks during rebuttal argument did not constitute reversible error.

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

Affirmed.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM L. FRANKLIN, Defendant-Appellant.
    First District (4th Division)
    No. 83—160
    Opinion filed February 14, 1985.
    Rehearing denied April 2, 1985.

      Steven Clark, of State Appellate Defender’s Office, of Chicago (Douglass G. Hewitt, of Winston & Strawn, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Elizabeth Loredo Rivera, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, William Franklin, appeals his conviction for murder (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)) after a bench trial in which he was sentenced to a term of 100 to 300 years. He raises two issues for review: (1) whether the trial court erred in denying the motion to quash his arrest and to suppress its fruits, and (2) whether the exclusion of defense counsel from an in camera hearing on his motion to strike the State’s answer to discovery violated his constitutional rights to due process of law, confrontation of adverse witnesses, and effective assistance of counsel.

We affirm.

Defendant was charged with the murder of James Rowland in a park in Markham on May 14, 1976.

Defendant moved to strike the State’s answer to discovery because it did not provide the address of Calvin Williams, its principal witness against defendant. The State gave Williams’ address as “do State’s Attorney of Cook County” because revealing his residence would risk grave and substantial harm to Williams.

On July 7, 1982, the trial court conducted an in camera proceeding. The transcript was sealed but it has been made a part of the record on appeal. At the proceeding, Williams, Assistant State’s Attorneys Scott Arthur and Terence Burns and a court reporter were present. Defendant’s attorney was not present. Williams was questioned by Arthur. Williams testified that defendant was his uncle, his mother’s brother. Defendant had made an admission to Williams in connection with the Rowland homicide and also in connection with another offense.

In January 1982, Williams revealed these admissions to the State’s Attorney and was placed in protective custody. Previously, Williams lived with his mother- in Markham, where they had been residing since 1973 or 1974. Before that, the family resided in Gary, Indiana.

Williams testified at defendant’s preliminary hearing. Also present were two of Williams’ uncles, defendant’s brothers. Both brothers had histories of violent acts. One brother told a friend of Williams’ that Williams had better change his statement about defendant “or else.” The other brother, who lives in the Chicago area, told Williams’ mother that he wished Williams was not involved in the case because he would hate to see Williams hurt.

Williams also testified that defendant associated with drug dealers and extortionists. The trial court ruled that the State’s Attorney did not have to reveal Williams’ address.

At a suppression hearing on July 27, 1982, defendant testified that on May 25, 1976, at 10:30 p.m., he was driving south in the vicinity of 82nd and Halsted streets, in Chicago. The police signaled him to stop. Two police officers exited their squad car, and one officer approached defendant and asked for his driver’s license and vehicle registration. Defendant did not have the latter. The officer told defendant to get out of the car, which he did. The officer conducted a pat-down search and removed bullets from defendant’s pocket. The officer asked defendant whether he had a firearms registration. Defendant did not. The officer handcuffed and formally arrested defendant and then searched the car for 30 to 45 minutes. The officers had no warrant to arrest defendant. Defendant did not own the car which he was driving.

Thomas Kelly, a Chicago police officer, testified that on May 25, 1976, at 10:30 p.m., he was on routine patrol in a marked car in the vicinity of 82nd Street and Halsted. He noticed a 1974 Oldsmobile traveling south with the headlights off. Kelly made a U-turn to curb the vehicle and parked the police car four to five feet behind the Oldsmobile. As Kelly approached the car, defendant exited his car. Kelly informed defendant of the violation and asked defendant for his driver’s license and proof of ownership of the automobile. Defendant said he had his license and that the car was his. Defendant withdrew his license from his pocket. As he handed the license to Kelly, the latter noticed that defendant’s hand was shaking visibly. Kelly asked defendant for registration papers; he did not have them.

After defendant handed Kelly his license, he (defendant) took one or two steps toward the curb, away from Kelly. His eyes moved from left to right at a rapid rate and his hand shook. His hand went toward his right pocket, but did not enter the pocket, and then back to his side. Then defendant took another step toward the curb. Finally, he stepped onto the curb and his hand went toward his right pocket again. At that point, Kelly made a pat-down search of defendant for safety reasons.

Kelly found .45-caliber bullets in defendant’s pocket. He asked defendant whether he had a firearms identification; he did not. Kelly arrested defendant, advised him of his rights, and handcuffed him. Kelly opened the door to the Oldsmobile and observed a revolver below the driver’s seat. Kelly noticed that the vehicle identification numbers on the dashboard and passenger door were different. A check of the numbers revealed that the vehicle had been stolen. On cross-examination, Kelly admitted that defendant did not threaten him in any way.

At the close of the hearing, the trial judge ruled that the police officer’s pat-down search of defendant was proper and denied defendant’s motion to quash the arrest and suppress evidence.

At trial, the principal witness against defendant was his nephew, Calvin Williams, 22 years old. Williams testified that on May 14, 1976, he was 15 years old and living in Markham. At 10:30 or 11 p.m., he was in a park with two friends. As they were walking, they heard gunshots. They ran toward a footbridge where they saw a man standing; the man then ran from the scene. Williams recognized the man as defendant. Williams saw the victim lying on the ground and he saw what appeared to be blood. Williams went to his home, a block away. A few hours later, defendant came to Williams’ home. Defendant had been living with the Williams family. Defendant said he had to leave for a few days and that he had shot a man near the footbridge. It was not until January 1982 that Williams informed the police of defendant’s statements.

The victim died of multiple gunshot wounds. Expert testimony established that cartridges found in the vicinity of the victim were fired from the revolver seized from defendant.

At the close of trial, the judge found that the victim was killed by bullets fired from the weapon seized from defendant, that defendant shot the victim, and that Williams was a credible witness. He found defendant guilty of murder and sentenced him to a term of 100 to 300 years. Defendant appeals.

Defendant argues at length that the trial court erred in denying his motion to quash arrest and to suppress evidence. He claims that the stop-and-frisk which occurred on May 25, 1976, and which resulted in seizure of the weapon linking him to the Rowland homicide was unreasonable and violated his fourth amendment rights. The police officer was not justified in making a search for weapons because of the offense — a minor traffic violation, driving with headlights offer because of defendant’s failure to produce the vehicle’s registration, or because of defendant’s “nervous” behavior. Defendant’s conduct— his trembling hands, his eyes moving from side to side, the stepping away from the police officer and toward the curb — was subject to a variety of interpretations and inferences. However, the police officer could not reasonably infer that he was in potential danger. Nervousness is a natural response to a stressful situation such as a confrontation with police. Defendant cites People v. Reed (1967), 37 Ill. 2d 91, 227 N.E.2d 69, People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935, and People v. Dotson (1976), 37 Ill. App. 3d 176, 345 N.E.2d 721, for the proposition that furtive looks, gestures, and movements do not justify the inference that the individual may be armed and is dangerous.

Defendant further argues that his conduct should have dispelled any fear the officer may have had for his safety. Defendant engaged in idle gossip with the officer; defendant was cooperative, responsive, used no profane or abusive language, and complied with the officer’s requests in a prompt and diligent manner. Defendant claims that the police officer used the stop-and-frisk procedure as a subterfuge to conduct a general search to detect criminal activity, a subterfuge which is manifestly unconstitutional.

To justify a stop-and-frisk, a police officer must have knowledge of sufficient facts at the time of the encounter to create a reasonable suspicion that the person in question has committed, or is about to commit, a crime. (People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327, 330, citing, among others, Terry v. Ohio (1968), 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) The fact that an officer has reason to stop a citizen does not necessarily justify the further intrusion of a search for weapons. The officer may conduct a pat-down search only if he has reason to believe that he is dealing with an armed and dangerous individual. Here again the officer’s belief is not judged by the probable cause test. He need only have the reasonable belief that either his safety, or that of others, is in danger. People v. Smithers (1980), 83 Ill. 2d 430, 434-35.

In the instant case, the officer was justified in stopping defendant for the traffic violation. The trial court properly concluded that the officer reasonably believed he was in danger because of defendant’s conduct — his eyes shifting from side to side, his moving away from the officer, and his trembling hand moving toward his pocket. The cases cited by defendant are inapposite. In People v. Reed (1967), 37 Ill. 2d 91, 227 N.E.2d 69, and People v. Mills (1983), 115 Ill. App. 3d 809, 450 N.E.2d 935, the court ruled that defendant’s nervous behavior did not justify a search of an automobile. In the instant case, defendant’s behavior justified a pat-down search. After the officer discovered the bullets and defendant informed him that he did not have a firearms registration, the officer was justified in arresting defendant and searching the car. The instant case is distinguishable from People v. Dotson (1976), 37 Ill. App. 3d 176, 345 N.E.2d 721. In Dotson, defendant’s nervous behavior consisted of sticking his hands in his pocket and shifting his weight, behavior which, in the court’s opinion, suggested the individual was trying to keep warm on a cold day. (37 Ill. App. 3d 176, 177.) We hold that the trial court properly denied defendant’s motion to quash arrest and to suppress evidence.

Defendant also argues at length that the trial court erred in excluding his attorney from the in camera hearing on his motion to strike the State’s answer to discovery. Defendant contends that this exclusion violated his constitutional rights to due process of law, to confront adverse witnesses, and to effective assistance of counsel. Defendant acknowledges that where the personal safety of a witness may be jeopardized by disclosure, a defendant is not entitled to the address of a witness. The State, however, has the burden of proving actual and substantial risk of physical harm and that this risk outweighs the usefulness of disclosure to defendant.

The testimony of Calvin Williams was essential .to defendant’s conviction. Thus, his credibility was of serious importance. Defendant should have had the opportunity of testing Williams’ credibility. Defendant cites People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, as illustrative of the procedural safeguards which due process required in the instant case. In Dace, the appellate court instructed the trial court to hold an in camera hearing in the presence of prosecutors and defense counsel to determine whether certain privileged information was relevant or material to the impeachment of a witness. 114 Ill. App. 3d 908, 915.

In his reply brief, defendant contends that because he was excluded from the in camera hearing and was unaware of grossly prejudicial, inflammatory and patently improper material, his ability to make informed and intelligent decisions relating to the exercise or relinquishment of myriad constitutional and procedural rights was effectively and completely destroyed. His lack of knowledge impacted on other critical decisions which might have ameliorated the taint of error. Thus, his right to effective assistance of counsel was rendered meaningless and compromised his right to a fair trial.

Supreme Court Rule 412 provides that the State shall provide to defense counsel “the names and last known addresses of persons whom the State intends to call as witnesses.” (87 Ill. 2d R. 412(a)(1).) The court may deny disclosure if it finds that there is substantial risk to any person of physical harm or intimidation resulting from such disclosure which outweighs any usefulness of the disclosure to counsel. (87 Ill. 2d R. 412(i).) Upon request of any person, the court may permit a showing of cause for denial or regulation of disclosures to be made in camera. 87 Ill. 2d R. 415(f).

In our opinion, defendant was not prejudiced by the exclusion of counsel from the in camera hearing. Defendant does not argue that the trial court erred in refusing to disclose Williams’ current address; rather, he argues that the trial court erred in excluding defense counsel from the hearing. While the better practice would have been to have defense counsel present (cf. People v. Malone (1983), 114 Ill. App. 3d 55, 448 N.E.2d 562 (better practice for trial court to refrain from comment)), defendant suffered no prejudice. The trial court heard extensive arguments by defendant for disclosure of Williams’ address at proceedings on February 23 and 25, April 6, and June 30, 1982, and defendant submitted a memorandum of law in support of his position. Thus, before the in camera proceeding, the trial court was well informed on defendant’s position. Defense counsel was aware of the previous addresses where the witness had lived prior to his disclosure to authorities of admissions made by defendant. Williams’ move to a new address was necessitated by his desire for protection from defendant. Defense counsel was given an opportunity to interview Williams before trial and vigorously cross-examined him at trial.

We have not found a case confronting the precise issue raised here, but there are cases which suggest that an in camera proceeding pursuant to Supreme Court Rule 412(a)(i) is not a critical stage of a trial to which a defendant has an absolute right to be present. (See People v. Buss (1983), 112 Ill. App. 3d 311, 445 N.E.2d 894; People v. Jenkins (1975), 30 Ill. App. 3d 1034, 333 N.E.2d 497.) The case cited by defendant in support of his argument, People v. Dace (1983), 114 Ill. App. 3d 908, 449 N.E.2d 1031, is distinguishable from the instant case. In Dace, the appellate court instructed the trial court to determine in the presence of opposing counsel whether certain information was relevant or material to the impeachment of a witness. (114 Ill. App. 3d 908, 915.) In the instant case, the trial court merely had to determine whether the witness’ address should be revealed, information which would not of itself affect the credibility of the witness. We conclude that the exclusion of defense counsel from the in camera hearing did not violate defendant’s constitutional rights.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE SCHNAKE

text:
    THE DEPARTMENT OF REVENUE, Plaintiff-Appellant, v. THOMAS J. ANDERSON, d/b/a Anderson’s Pharmacy, Defendant-Appellee.
    Second District
    Nos. 83—1144, 84—306 cons.
    Opinion filed March 15, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Theodore J. Craig, Rosalyn B. Kaplan, and Patricia Rosen, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This is a consolidation of two appeals filed by the Illinois Department of Revenue against the defendant, Thomas J. Anderson, d/b/a Anderson’s Pharmacy, with the second action also naming the garnishees, Ronald E. and Karen K. Lippens. Both appeals arise from the same collection action.

On March 6, 1981, the Illinois Department of Revenue filed suit under section 2 of the Retailers’ Occupational Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 441) and the Municipal Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—1), as effected by the municipality of Dixon, for unpaid taxes, penalties and accrued interest through March 31, 1981, of $38,919.07. The suit also asked for additional interest from April 1, 1981, to the date of judgment at the rate of 1% per month ($236.33 monthly). The 1% per month interest rate was the statutory rate then in effect under section 5 of the Retailers’ Occupational Tax Act (Ill. Rev. Stat. 1979, ch.. 120, par. 444). Effective September 17, 1981, however, the statute was amended raising the rate to 2% per month.

The trial court entered judgment for the plaintiff on October 12, 1983. This judgment included interest from April 1, 1981, to October 11, 1983, figured at the rate of 1% per month. On November 10, 1983, the plaintiff filed a motion to modify the judgment asking that the interest from October 1, 1981, to October 11, 1983, be recalculated at the amended 2% rate. The court denied the plaintiff’s motion on December 28, 1983, and the plaintiff filed this appeal on December 30. 1983.

We note initially that the appellee has filed no brief in this appeal; however, we believe the record and claimed errors are such that we can decide the merits without the aid of an appellee’s brief. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.) Nor does the record of the proceedings or a certified affidavit in lieu of the transcript pursuant to Supreme Court Rule 323(c) (87 Ill. 2d R. 323(c)) appear in the record on appeal. However, since this issue involves a question of law, the absence of the transcript or its substitute does not bar this court’s review. Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App. 3d 452, 454.

While the trial court did not state its reasons for denying the plaintiff’s post-trial motion to modify, the record does indicate that the defendant objected to the motion on the basis that the plaintiff had not amended its complaint to request the increased interest and was therefore guilty of laches in asking for the increased interest after judgment had been entered. We disagree. It has been held that the fact that the complaint does not ask for interest is of no consequence since, where it is provided for by statute, it will be read into the complaint. (Madison Park Bank v. Field (1978), 64 Ill. App. 3d 838, 843.) The defendant is presumed to know the law or, in this case, the change in the law. (Livingston v. Meyers (1955), 6 Ill. 2d 325, 334.) Therefore, here, the fact that the plaintiff failed to amend its complaint to ask for the higher interest rate is of no consequence since the higher rate is provided for by statute.

The facts, as they relate to the second appeal, occurred after the original judgment was entered. On November 10, 1983, the plaintiff filed an affidavit of nonwage garnishment naming the Lippens as garnishees. Thereafter the Lippens filed answers to interrogatories admitting that they had a contract to purchase real estate from the defendant and his wife and that a payment of $16,140 was due on March 1, 1984. The plaintiff then filed a second affidavit for nonwage garnishment on February 22,1984.

The garnishees filed a counterclaim for interpleader on February 27, 1984, stating that they were uncertain as to whom to make the March 1 payment, and the court ordered them to deposit the payment with the clerk of the court. On March 6, 1984, the court denied the plaintiff’s request for a turnover order and ordered that the money deposited be delivered to the defendant. The court reasoned that since the defendant could not have asserted a claim under the contract until March 1, 1984, when the payment was due, there was no indebtedness when the garnishment proceedings were filed. The plaintiff argues that the court erred, as a matter of law, in denying its motion for a turnover order.

We need not decide this issue since it is moot under the September 12, 1984, stipulation between the plaintiff and defendant in which the defendant has assigned all future payments under the real estate contract with the garnishees to the IRS until the judgment is satisfied. While the Attorney General concedes that the issue is moot, he asks that we decide the issue since it is a matter of public interest capable of repetition. We do not believe, however, that this case is a proper exception to the mootness doctrine, particularly since we do not have the benefit of briefs and arguments in opposition to the Attorney General’s position.

For the reasons stated above, judgment of the circuit court of Lee County is reversed and the cause is remanded for a recalculation of the interest to be awarded.

Reversed and remanded.

UNVERZAGT and LINDBERG, JJ., concur.


author: JUSTICE BILANDIC

text:
    EARL L. SHELDON, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    First District (2nd Division)
    No. 84—1155
    Opinion filed February 26, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Thomas P. Marnell, Assistant Attorney General, of Chicago, of counsel), for appellant.
    George E. Downs, of Palatine, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiff, Earl L. Sheldon, filed an action in the circuit court of Cook County for administrative review of the decision of defendant, Jim Edgar, Secretary of State for Illinois (Secretary), denying his petition for reinstatement of driving privileges. The circuit court reversed, finding the Secretary’s determination to be against the manifest weight of the evidence. On review, the Secretary maintains that the entry of this reversal order was erroneous. We agree.

The record shows that on May 18, 1978, plaintiff was convicted for the third time of driving while under the influence of an intoxicating liquor. (Ill. Rev. Stat. 1977, ch. 951/2, par. 11- — 501(a).) His first conviction occurred in October of 1973; his second conviction occurred in November of 1975. Following plaintiff’s third conviction, his license was revoked pursuant to section 6 — 205(a)(2) of the Illinois Vehicle Code (HI. Rev. Stat. 1977, ch. 951/2, par. 6 — 205(a)(2)).

On March 7, 1980, plaintiff was issued a restricted driving permit for a period of one year. Plaintiff’s application for reissuance of this permit was denied by the Secretary on December 15, 1981. Thereafter, plaintiff filed a petition for administrative review of the Secretary’s refusal to reissue the restricted driving permit. Following a hearing held on March 11, 1982, the circuit court reversed the Secretary’s decision and remanded the cause for a reevaluation of plaintiff’s application for reinstatement of his driving privileges.

Pursuant to the court’s mandate, a formal hearing was held before the Secretary on April 12, 1982. During this hearing, plaintiff was asked to submit to an alcohol evaluation, as well as to enroll in an alcohol-related driver remedial course. Plaintiff’s initial response to this request was, “I would, if I could get there, but I have no way of getting there.” Plaintiff later admitted, however, that he eventually refused to comply with the Secretary’s request. As a result, on July 13, 1982, the Secretary denied plaintiff’s application for reinstatement of his driving privileges.

On August 10, 1982, plaintiff filed a second petition for administrative review. Following a hearing held on March 3, 1984, the circuit court again reversed the Secretary’s determination and remanded the cause for purposes of reinstating plaintiff’s driving privileges. It is the propriety of this reversal order which the Secretary now contests on appeal.

I

The initial question for resolution is whether the circuit court erred in ruling that the Secretary’s refusal to reinstate plaintiff’s driving privileges was against the manifest weight of the evidence.

Section 3 — 110 of the Administrative Review Law provides, in pertinent part, that “the findings and conclusions of the administrative agency on questions of fact are to be considered prima facie true and correct.” (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110.) “This statute has been construed to mean that courts may not interfere with the discretionary authority vested in administrative bodies unless that authority is exercised in an arbitrary or capricious manner [citation] or the administrative decision is against the manifest weight of the evidence [citations].” (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085.) Consequently, a court of review is not to reweigh the evidence or make an independent determination of the facts; rather, our sole function here is to ascertain whether the final decision of the administrative agency is just and reasonable in light of the evidence presented. Odell v. Village of Hoffman Estates (1982), 110 Ill. App. 3d 974, 980, 443 N.E.2d 247; Nendza v. Board of Review (1982), 105 Ill. App. 3d 437, 442-43, 434 N.E.2d 470.

The key inquiry in the case at bar turns on whether the Secretary’s denial of plaintiff’s petition for reinstatement of his driving privileges was just and reasonable in light of the requested objective evidence that was not presented by plaintiff prior to such denial.

The evidence submitted by plaintiff at the April 1982 hearing was substantially the same as that submitted by him at the October 1981 hearing. It consisted of his own testimony that the last time he drank an alcoholic beverage was in September of 1977; that he had joined Alcoholics Anonymous in March of 1978, but dropped out in October of 1979 because the meetings depressed him; that he was gainfully employed as a bartender and handyman at a local club; and that during the one-year period in which he was allowed to operate a motor vehicle under a restricted driving permit, he did not have any traffic violations. Moreover, several of plaintiffs friends submitted letters stating that, in their opinion, he has maintained a condition of sobriety and, in fact, no longer drinks alcoholic beverages.

The evidence introduced by the Secretary at the hearing consisted of plaintiffs driving record which indicated that he had been convicted of driving while under the influence three times in a five-year period. The first conviction occurred on October 16, 1973; the second conviction occurred on November 13, 1975; and the third conviction occurred on May 18, 1978. Other than his attendance at Alcoholics Anonymous and his hospitalization for approximately one month at some point subsequent to his first driving while under the influence conviction, plaintiff conceded that he had never received any formal or informal treatment or counseling for alcohol abuse.

The secretary, through his hearing officer, requested that plaintiff submit to an alcohol evaluation and enroll in an alcohol-related driver remedial course pursuant to the prevailing policy. (See Secretary’s Procedures and Standards sec. III(B)(1) (1981), effi Jan. 1, 1982.) Plaintiff initially assented, indicating only an unavailability of transportation; however, as he admitted in his second petition for administrative review, he thereafter refused to comply with the hearing officer’s request. As a result, the Secretary entered an order on July 13, 1982, denying plaintiff’s application for reinstatement of his driving privileges. Plaintiff now asserts that since he drove on a restricted permit for one year without any traffic violations, he should at least be entitled to a renewal of said permit.

The Illinois Vehicle Code, which grants the Secretary the authority to either reinstate driving privileges or to issue restricted driving permits (see Ill. Rev. Stat. 1981, ch. 951/2, pars. 6 — 206, 6 — 208), has been construed by our supreme court to make “it clear that, once driving privileges are revoked, the restoration of such privileges is not automatic.” (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, citing People v. Turner (1976), 64 Ill. 2d 183, 186, 354 N.E.2d 897.) Rather, it is up to the Secretary, “after investigation,” to make the determination “that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare.” Ill. Rev. Stat. 1981, ch. 951/2, par. 6 — 208(b).

Regarding the present case, it is clear that the Secretary properly exercised his discretionary authority, particularly in view of plaintiff’s obstinate refusal to comply with the hearing officer’s request. The record of the April 1982 hearing is totally devoid of any professional assurances that plaintiff could fully appreciate the vital need to avoid drinking intoxicating beverages prior to, or during, his operation of an automobile. The necessity of a professional opinion that plaintiff has recognized and, more importantly, controlled his drinking problem was obvious where, in his own words, he “went off the deep end *** [and] couldn’t handle it.”

Plaintiff’s record of three convictions within five years for driving while under the influence evinces an utter disregard for the lives of pedestrians, other motorists and his own life as well. To routinely allow plaintiff a fourth opportunity to get behind the wheel of a car would, in essence, eviscerate “the Secretary’s duty to insure the public safety and welfare ***.” (Emphasis added.) (Murdy v. Edgar (1983), 117 Ill. App. 3d 1091, 1097, 454 N.E.2d 819, aff’d (1984), 103 Ill. 2d 384.) This holds especially true where that fourth chance, if the Secretary had allowed it here, would be predicated solely on: (1) self-serving claims of sobriety and promises to refrain from alcohol consumption; (2) gainful employment; (3) driving under a restricted permit without a traffic violation; and (4) letters from friends. Speculation and uncertainty should be reduced to a minimum. In our estimation, an alcohol evaluation and successful completion of a driver remedial course would provide the Secretary with objective evidence of the purported improvement in plaintiff’s condition. It would benefit both the plaintiff and the general public because, together, they are exposed to the same risk of harm from motorists who are not qualified to drive on our highways.

Deaths and injuries attributable to driving while under the influence have reached epidemic proportions. Stricter licensing and enforcement laws and procedures have become a trend throughout the country to reduce and control this highway carnage. Keeping with the times, the Secretary adopted a policy which later became a regulation requiring an alcohol evaluation and enrollment in an alcohol-related driver remedial course in certain cases. (See 92 Ill. Admin. Code, ch. II, sec. 1001.440 (1984).) Applicants for driving privileges have, for years, routinely submitted to objective testing in order to detect visual and other physical disorders. (See Ill. Rev. Stat. 1983, ch. 951/2, par. 506 — 1 et seq.) Thus, in our view, the alcohol evaluation and driver remedial course combine to form an objective test which the Secretary can impose in order to properly serve the public interest and meet the problems of our time. Although this test may seem a bit harsh to those involved, “even the appearance of harshness tends to fade when compared to laws now existent in many countries where the convicted driver’s loss of freedom by immediate incarceration is more drastic than in this country as opposed to the relatively minor deprivation of not being able to drive a motor vehicle legally.” Doe v. Edgar (7th Cir. 1983), 721 F.2d 619, 623.

Very simply, the Secretary requested plaintiff’s cooperation in the endeavor to help him both recognize and rectify his past irresponsible, life-threatening behavior. The inconvenience suffered by plaintiff would be minimal, while the benefit to the public would be enormous. Further, we believe that if plaintiff was truly serious about demonstrating reform in his past driving behavior, he would have cooperated with the request of the hearing officer.

“In short, if there is anything in the record which fairly supports the action of the agency, the decision is not against the manifest weight of the evidence and must be sustained on judicial review.” (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 654, 456 N.E.2d 998.) Here, what is clear from the record is plaintiff’s refusal to cooperate with the Secretary prior to the July 1982 denial of his petition for reinstatement of driving privileges. Such obstinacy is certainly not indicative of reform in plaintiff’s repeated disregard for the lives of other people as well as his own. We conclude that plaintiff was correctly given the option of: (1) not driving; or (2) presenting the Secretary with the requested objective evidence that would be a step toward removing a stigma that plaintiff, alone, created.

The Secretary’s July 1982 finding that plaintiff would endanger the public safety and welfare was not, in our opinion, against the manifest weight of the evidence. Therefore, the circuit court’s reversal of this finding was erroneous.

II

It is plaintiff’s contention that the promulgation of the Secretary’s “Provisions for Alcohol and Drug Related Revocations and Suspension” (92 Ill. Admin. Code, ch. II, sec. 1001.440 (1984)) unconstitutionally transcends the scope of authority granted to the Secretary by section 2 — 104 of the Illinois Vehicle Code. (Ill. Rev. Stat. 1981, ch. 951/2, par. 2 — 104.) Alternatively, plaintiff argues that section 2 — 104 is unconstitutional in application. The threshold issue for resolution, however, is whether these constitutional questions have been properly preserved for review. We find that they were not.

“It is a well settled principle of judicial restraint that constitutional questions not presented to the trial court may not be raised for the first time on appeal.” (In re Adoption of McFadyen (1982), 108 Ill. App. 3d 329, 338, 438 N.E.2d 1362, cert, denied (1983), 460 U.S. 1015, 75 L. Ed. 2d 486, 103 S. Ct. 1259; see also Nugent v. Miller (1983), 119 fil. App. 3d 382, 387, 456 N.E.2d 640.) A thorough examination of the record reveals that the constitutional issue as to both section 1001.440 and the internal policy statement that preceded its codification was neither raised in, nor ruled upon by, the circuit court during any stage of the proceedings below. The same holds true for plaintiff’s alternative challenge regarding the constitutionality of section 2 — 104 of the Illinois Vehicle Code. In addition, no reason has been advanced as to why plaintiff failed to argue these issues at the trial level. We thus consider plaintiff’s constitutional claims as having been waived for purposes of appellate review.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

PERLIN and HARTMAN, JJ., concur.

      Both of plaintiff's petitions for administrative review state, in contradiction, “[t]hat subsequent to June 27, 1978, the Petitioner ceased and desisted from drinking any sort of intoxicating liquors.”

      We note that the Secretary’s policy requiring an alcohol evaluation as well as enrollment in an alcohol-related driver remedial course was not in force when plaintiff was issued his restricted driving permit in March of 1980.

      ‘‘[D]runken-driver killers are more numerous than previously suspected. Governor Thompson says, ‘60 to 70 percent’ of the dead drivers in Illinois who were tested for alcohol had been drinking.” Chicago Sun-Times, January 11,1984 at 41.