author: PRESIDING JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE BOCLAIR et al., Defendants-Appellants.
    First District (4th Division)
    No. 80-1905
    Opinion filed April 29, 1982.
    Rehearing denied May 20,1982.
    Ralph Ruebner, Steven Clark, and Phillip Zisook, all of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and Bruce A. Cardello, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, three of the defendants, Tyrone Boclair, Jessie Scott, and Johnny Ollie, were found guilty of unlawful restraint, armed robbery, and armed violence (Ill. Rev. Stat. 1977, ch. 38, pars. 10 — 3(a), 18 — 2, 33A — 2). Defendant Frederick Chism waived a jury trial and the court found him guilty of the above charges. All defendants were tried simultaneously. Following a hearing in aggravation and mitigation, each defendant received a 7-year sentence for armed robbery and a 3-year sentence for unlawful restraint. No sentence was imposed on their convictions for armed violence.

On appeal, the following issues are raised for review: (1) whether defendants received a fair trial when other crimes evidence was introduced by the State and admitted into evidence by the trial court; (2) whether defendants received a fair trial when the prosecutor made an improper closing argument; (3) whether the trial court erred by sentencing defendants for armed robbery and unlawful restraint when both charges arose from a single act; and (4) whether the trial court erred by applying an unconstitutional statute which imposed a $500 fine on defendant Scott to be collected from his bond.

We affirm.

The following testimony was adduced at trial. The State’s first witness, James E. Harris, testified that at about 1:15 a.m., on August 20, 1979, he left the Turning Point Lounge, located at 60th and State Street, in Chicago, to go to his home 1 block away. A factory with a fenced-in lot is located between his home and the tavern. As he approached the fence, Harris was grabbed by his neck and armpits, pushed into the lot and thrown backwards onto the sidewalk. When he looked up, he saw four people standing over him. One of them held a butcher knife to his stomach. While he was held down, the men took his hat, ring, watch, and wallet with his identification, and his money clip containing five $1 bills. The men walked slowly through the gate and proceeded to 60th Street.

While Harris was on the ground, James Burton, a neighbor, came to help him. Harris went home and told his wife that he had been robbed and beaten. He and his wife went to 60th and State where they saw three of the robbers with the police. The police found the fourth person hiding nearby in the weeds. The police gave Harris his wallet back that night.

On cross-examination, Harris stated that he had been in the lounge for 2/2 hours. During that period, he consumed about three shots of gin mixed with tonic. Harris indicated that he was not under the influence of alcohol. He did not know which of the four men had grabbed him nor could he say which of them took his property nor which man held the knife.

Defense counsel asked Harris whether he remembered testifying at the preliminary hearing that the attack occurred at 12:45 a.m. He did not remember stating that exact time. The knife was held on him 2 or 3 minutes. He was certain that People’s exhibit No. 1 was in fact the actual knife.

Harris’ left elbow was injured during the robbery. He wore a cast for 2/2 months. Harris wore eyeglasses at the time of his testimony; he was not wearing them on the night in question. He stated the glasses are for reading purposes. That night, August 20, the lighting conditions were good and the vacant lot contained two floodlights.

Harris thought defendant Ollie held the knife to his stomach but he was not certain. He was unable to describe the clothing worn by any of the four men. (He did not view a lineup.) Defense counsel for Scott referred to the preliminary hearing at which Harris stated he saw four men when he “got up.” Harris did not recall making that statement and said that he saw the four men while he was on the ground. Defense counsel for Ollie read a question and answer from the preliminary hearing transcript in which Harris stated he was under a streetlight when he saw the four men. Harris stated he did not recall making the statement but said that a streetlight was in front of the area where he was robbed.

Harris stated he did not previously testify that anyone had a gun; he did not see a gun. Again, defense counsel read a question and answer from the preliminary hearing transcript in which Harris stated, “They had a butcher knife and they had a toy gun.” Harris did not recall making this statement nor did he recall stating that one man had a toy gun.

Harris testified that he was not cut with a knife. He did not recall testimony at the preliminary hearing in which he stated that the person with the knife cut him. Defense counsel asked Harris to look at Ollie. The witness stated that Ollie was one of the four men but he did not know how he participated in the incident. There were two men holding him down from behind his head while two others (one on each side of him) were taking his property.

Defense counsel for Chism cross-examined Harris outside the presence of the jury. The person who held the knife held it by the handle. Harris only saw the blade of the knife at the time of the robbery. During the robbery, defendants did not talk except to say, “Let’s cut him” and “We got enough. Let’s go.” He did not know which of the defendants took his property.

Robert Stevens, a Chicago police officer, testified that on August 20, 1979, he and his partner, Richard Gordon, were dressed in shabby, civilian clothes and riding in an unmarked police car. They were in the vicinity of 60th and State Street when a man ran into the intersection, waving his hands and yelling. The man approached the car. After the officers spoke with the man, Stevens drove west on 60th Street. He was looking for a group of black males. He noticed such a group about midway down the block. As he approached the men, they began running. He drove the car past the men to block their path. He left the car, drew his service revolver, and told the men to halt and that he was a police officer. The three men immediately stopped.

Officer Stevens conducted a protective search of the men. He recovered a rusty knife with a 10- to 12-inch blade and a brown wooden handle. He identified Ollie, Chism, and Boclair as the men he searched. Other police officers arrived. Mr. and Mrs. Harris and Burton, their neighbor, also arrived. Harris and Burton identified the three men but . said that one of the offenders was missing.

Officer Gordon proceeded in an easterly direction to search for the fourth man. He found defendant Scott in a weed-covered parkway between the curb and the sidewalk. A thorough search of the four men was conducted. Defendant Ollie had a knife in his possession, a crushable tan hat, a “yellow” metal Bulova watch and another Bulova watch. In defendant Scott’s possession was a “white” metal Seiko watch, a billfold containing five $1 bills, and a wallet containing food stamps. Officer Stevens thought there was another item taken from Scott, but he could not remember what it was. Boclair had in his possession a blue hat, two “yellow” metal rings, six $1 bills, a small utility knife, and a lighter. A search of Chism revealed a black leather wallet containing James Harris’ driver’s license and identification; two packages of cigarettes; two lighters, a dirty, gray pinstripe vest; and a silver-colored necklace. After the search, they went to the police station at 51st and Wentworth Avenue.

Officers Stevens and Gordon took all of the property recovered from defendants and placed it on a table. Harris viewed the items and identified as belonging to him a Bulova watch, the money clip containing five $1 bills, a “yellow” metal ring with a white stone, and the wallet with miscellaneous identification, including a driver’s license. He also identified and claimed the crushable tan hat. Harris signed for his wallet and identification; the remaining property was inventoried.

Stevens testified that the inventory slips indicated from which defendant the property was taken. The money was also inventoried. Officer Gordon prepared the inventory slips. Defense counsel requested that property unrelated to this offense be excluded and not shown to the jury. The court did not determine whether the items would go to the jury but allowed the State to elicit testimony concerning the property inventoried at the police station. Stevens stated that the police report did not indicate what property was taken from each defendant; however, the inventory reports did list the property taken from each defendant.

At the arrest scene, Stevens did not speak with Burton or Harris. At the police station, Harris told Stevens that five $1 bills and some change had been taken from him. The report stated that $8 was recovered. Stevens stated that the $8 consisted of $5 in bills and $3 in coins. Approximately $3 in coins was returned to Harris.

James Burton, testifying for the State, stated that he is employed by the Turning Point Lounge, but he was not an employee of the lounge on August 20, 1979. On the night of the robbery, he left the lounge at 1:30 a.m. and began walking north on State Street. As he crossed 60th and State, he saw some people near a fence. He saw defendant Scott peering through the fence. Burton walked past Scott and looked into the lot of the factory; he saw a man on the ground and three people standing over him. He saw defendant Ollie run toward Harris’ car which was parked in the lot. Burton yelled at Ollie to get away from the car and to leave the man alone. Someone stated, “Let’s go.” The three men walked toward the gate and Scott pushed it open. All four men began walking north on State Street. Burton helped Harris to his feet. While Harris was walking toward his house, Burton saw a police car approaching and flagged it down. He told the policemen what had occurred. The officers left, driving westbound on 60th Street. Burton could see that the police car had stopped in front of a group of people. He went to Harris’ home and brought Harris and his wife to the area where the police were standing. He told the police that a fourth man was involved. They found the fourth person hiding in the weeds.

On cross-examination, Burton stated that he had been known as James White and “Hoogey.” On the night in question, he had consumed two beers. Burton did not see a knife or a gun in anyone’s hand. The police car was unmarked, but he recognized it as a police automobile. He could not describe the clothes worn by any of the defendants.

Defense counsel for Ollie stated that one of the jurors had fallen asleep and was snoring during cross-examination. The court asked whether counsel wanted the juror to be excused, but counsel said that the juror had, by then, awakened.

People’s exhibits Nos. 2, 3, 4, 5, and 6, which were the crushable tan hat, the watch, wallet, money clip, and ring, were admitted into evidence. Defense counsel’s objection to the admission of inventory slips for the recovered property was overruled. People’s exhibits Nos. 7 through 11 were the inventory slips. People’s group exhibit No. 13 consisting of a “white” metal Seiko watch, a brown leather holder with food stamps, a brown cigarette lighter, and a tan wide-brimmed hat was admitted into evidence. People’s group exhibit No. 15, containing two cigarette lighters, a “white” metal necklace, a black leather money holder, two packages of cigarettes, and a gray vest, was admitted into evidence over defense counsel’s objection. People’s exhibits Nos. 16 through 18, the inventory slips referring to the five $1 bills, the black moneyholder, and a void inventory slip, were admitted into evidence over defense counsel’s objection. The State then rested.

Defendants Boclair and Scott rested. Sharon Pattanella was called as a defense witness. Her testimony was adopted by Boclair and Scott. She stated that she is an official court reporter and worked in that capacity during defendants’ preliminary hearing. Her notes from that preliminary hearing constituted defendant Ollie’s exhibit No. 1. Defendant Ollie’s exhibit No. 2 was a complete and certified transcript of the hearing. Counsel read from the transcript that Harris, referring to defendants, stated, “Well, they had a butcher knife and they had a toy gun.” Counsel read other testimony by Harris that was contradictory to his testimony at trial.

Defendant Ollie rested. Both sides gave closing arguments. Defendant Chism adopted the court reporter’s testimony and gave closing arguments. The jury found Boclair, Scott, and Ollie guilty of all charges; the court found Chism guilty of all charges. From those judgments and sentences, defendants appeal.

Defendants contend they were denied a fair trial when evidence of other crimes was admitted by the trial court. Defendants assert that introduction of property recovered from them upon their arrest, and unidentified by Harris, was prejudicial. The State urges that defendants waived this issue since it was not preserved for review in defendants’ motions for a new trial.

We agree with the State that this contention was waived on appeal by defendants’ failure to include it as grounds in their motions for a new trial. (73 Ill. 2d R. 366(b)(2) (iii); People v. Castile (1975), 34 Ill. App. 3d 220, 226, 339 N.E.2d 366, 370-71.) Further, this issue here does not rise to the status of plain error, considering the totality of the State’s evidence presented. 73 Ill. 2d R. 615(a).

Defendants contend they were deprived of a fair trial when, in the State’s closing argument, the prosecutor commented on the failure of defendants to testify, their failure to call certain witnesses, and stated that the jury would be making a mistake if it did not believe Burton, the State’s witness.

Defense counsel objected to the following remark made by the prosecutor:

“Mr. Harris identified things from each pile as if there were four men, five in a lineup and he picked out each thing that was his, each thing that came from one of those men and that fact remains uncontradicted, unrebutted and undenied.”

The objection to this statement was sustained by the trial court. The court stated that the jury will decide whether this was true. Specific reference to this remark and other alleged prejudicial remarks made by the prosecutor were not presented in defendants’ written motions for a new trial.

Defendants’ motions for a new trial set forth in a general way that the prosecutor made improper, inflammatory, and prejudicial remarks in his closing argument. In our opinion, failure to specify these errors in a motion for a new trial constituted waiver of these issues, and they cannot be urged as a ground for reversal on review. People v. Witherspoon (1975), 33 Ill. App. 3d 12, 21, 337 N.E.2d 454, 461.

Defendants urge this court to apply the holding in People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827. In Crossno, the evidence was closely balanced and the statements made by the prosecutor affected substantial rights of defendant and were considered in the appeal under the “plain error” doctrine. (93 Ill. App. 3d 808, 824.) In this case, the statements made by the prosecutor did not affect the substantial rights of defendants. Consequently, the plain error doctrine is inapplicable.

Defendants next contend the trial court erred by sentencing them for unlawful restraint and armed robbery when both charges arose from the same physical act. Defendants assert that the same physical conduct was the basis for both convictions; therefore, only a conviction and sentence for armed robbery should be entered.

Defendants accurately state the general rule that prejudice results to defendants in those instances where more than one offense is carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.) However, the King decision clarified the meaning of “act” by stating the following:

“ ‘Act’ * " “is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566.)

Applying this analysis to the facts before us, we are of the opinion that the offenses of unlawful restraint and armed robbery are based on separate acts, each requiring proof of a different element. (See Ill. Rev. Stat. 1977, ch. 38, pars. 10 — 3(a), 18 — 2.) The convictions and sentences for both offenses were, therefore, proper.

Defendants finally contend the trial court erred by imposing a $500 fine on defendant Scott from the money that he had posted as bond.

We disagree. The trial court may impose a fine as part of the sentence for a felony conviction. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 9—1(a)(1).) Further, the record does not indicate the fine was to be paid from the proceeds of the bond money. There was no error.

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

Affirmed.

LINN and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE JIG ANTI

license: Public Domain

text:
    FITCH/LAROCCA ASSOCIATES, INC., Plaintiff-Appellee, v. SAMUEL K. SKINNER et al., Members, Illinois Capital Development Board, Defendants-Appellants.
    First District (4th Division)
    No. 81-394
    Opinion filed April 29,1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Robert Orman, Assistant Attorney General, of counsel), for appellants.

      S. Joseph Formusa, of Rabens, Formusa & Classman, Ltd., of Chicago, for appellee.
   JUSTICE JIG ANTI

delivered the opinion of the court:

The plaintiff, Fitch/Larocca Associates, Inc. (Fitch), is an architectural firm which has been employed on various State of Illinois construction projects. The defendant, Illinois Capital Development Board (Board), is the State agency in charge of such projects. In order for architects to be eligible for employment on State construction projects, they must be prequalified to determine their responsibility by the Board. Immediately prior to this appeal, Fitch received notice from the Board that it intended to suspend Fitch’s prequalification status pursuant to Board rules. To stave off this result, Fitch brought the present lawsuit to enjoin the Board from taking any further action to suspend its prequalification status. The court issued a preliminary injunction to enjoin the hearing and then, when the court refused to dissolve this preliminary injunction, the Board brought the instant appeal.

Fitch does not dispute the fact that there may be a suspension hearing. The question is must the suspension hearing be held pursuant to the rules established by the Board itself or must the hearing be held under the provisions of the Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.). The determinative issue on appeal is whether or not the rules dealing with prequalification suspension hearings promulgated by the Board are preempted by the contested cases procedure of the Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1010). The parties agree that the important difference between the rules as promulgated by the Board and the contested cases procedure of the Administrative Procdure Act is in the type of hearing for which they provide. The Board rules provide for an informal hearing without the benefit of the rules of evidence, cross-examination and the opportunity to make and preserve a record of the proceedings. In addition, under Board rules a party is only notified of its prequalification suspension after a specially constituted committee has met and has recommended prequalification suspension to the Board. The party is then given 14 days to file a written statement with the Board setting forth reasons why the recommendation should not be accepted by the Board. Under the contested cases procedure of the Administrative Procedure Act, the rules of evidence apply and there is a right to cross-examination. In addition, the Act requires that the party be notified of any preliminary reports that the agency is about to use in its deliberation and the party is given an opportunity to contest that material. Relevant case law has amplified these safeguards under the contested cases procedure by holding that implicit in the provision for cross-examination is that there be witnesses and testimony presented by the agency and implicit in the application of the rules of evidence is an obligation to establish, in the first instance, a prima facie case. Scott v. Department of Commerce and Community Affairs (1981), 84 Ill. 2d 42, 53, 416 N.E.2d 1082.

A determination of whether or not the Board rules are preempted by the contested cases procedure of the Administrative Procedure Act depends upon a reading of three separate Illinois statutes. The relevant statutes are the Capital Development Board Act (Ill. Rev. Stat. 1979, ch. 127, par. 771 et seq.), the Administrative Procedure Act (Ill. Rev. Stat. 1979, ch. 127, par. 1001 et seq.) and the Illinois Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.6).

The Board was created by the Capital Development Board Act. Section 15 of the Capital Development Board Act adopts the provisions of the Illinois Administrative Procedure Act. The contested cases procedure of the Administrative Procedure Act apply whenever a State agency which is subject to the Administrative Procedure Act attempts to revoke a “license.” A “license” is specifically defined in section 3.04 of the Administrative Procedure Act as follows:

“ ‘License’ includes the whole or part of any agency permit, certificate, approval, registration, charter, or similar form of permission required by law.” (Emphasis added.)

Both parties recognize that this definition sets out two requirements for a finding that a “license” exists under the Administrative Procedure Act: (1) that there is a permission involved and (2) that this permission is required by law. Both parties are in agreement that prequalification is a permission.

However, both parties disagree and join issue over the question of whether or not prequalification is required by law. According to the Board, there is no law that requires prequalification. Therefore, prequalification is not a license as defined by the Administrative Procedure Act and the contested cases procedure of the Act does not preempt Board rules in prequalification suspension hearings. According to Fitch, there is a law that requires prequalification. That law is section 6(a — 1) of the Illinois Purchasing Act. Therefore, according to Fitch, prequalification is a permission required under law and thus a “license” as defined by the Administrative Procedure Act; so the more formal contested cases procedure of the Act preempts Board rules in prequalification suspension hearings.

An analysis of the Illinois Purchasing Act reveals that section 5 of the Purchasing Act generally requires that all purchases by State agencies shall be made in conformance with rules which shall be promulgated by the particular State agency making the purchase. Section 6 of the Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.6) deals with the contents of those rules and says that in preparing those rules the State agency may provide that prospective bidders be prequalified. However, the pertinent section of the Purchasing Act applicable to the instant case is section 6(a — 1) which specifically deals with construction contracts. It says that “In case of contracts for the construction of buildings, * * * the rules and regulations * * * shall provide that * * * architects * * * be prequalified to determine their responsibility.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 127, par. 132.6(a — 1).

The Board argues that the Purchasing Act only commands the Board to make rules for prequalification but does not specifically command that architects be prequalified. We agree that the statute does command the agency to make rules for prequalification. But, more importantly here, we also believe that the statute itself clearly says, and that the structure of the Act clearly indicates, that architects must be prequalified. Implicit in the statute’s command that the Board make rules for prequalification of architects is the command that, in fact, architects are required to be prequalified. This is clearly a “law” that architects be prequalified. Therefore, we agree with Fitch that prequalification is a license as defined by the Administrative Procedure Act because prequalification is required by law under section 6(a — 1) of the Illinois Purchasing Act.

By concluding that prequalification is a license as defined by the Administrative Procedure Act, we adopt Fitch’s position that since prequalification is a license, prequalification status can only be suspended in a hearing held under the contested cases procedure of the Administrative Procedure Act. Therefore, Board rules outlining the format for prequalification suspension hearings are preempted by the more formal provisions of the contested cases procedure of the Act.

The Board makes one other argument on preemption which is equally unavailing. Specifically, the Board argues that the legislature could not have intended the contested cases procedure of the Administrative Procedure Act to apply to prequalification suspension hearings because neither the organic legislation creating the Board nor the contested cases procedure makes provision for what the Board characterizes as the two “absolute prerequisites” to any “trial type” proceedings; the subpoena power and authority to administer oaths.

We do not believe that these “gaps” in any way serve to contradict our conclusion that the Administrative Procedure Act with its more formalized hearing procedures is appropriate in prequalification suspension hearings. As we have already discussed, the contested cases procedure of the Administrative Procedure Act delineates the boundaries of evidence admissibility, permits evidentiary objections, and grants the right to cross-examination. Such procedures in themselves afford Fitch greater safeguards than under existing Board rules. Also, these safeguards have been amplified by case law which holds that the Board must present witnesses and testimony and that the Board has the obligation to establish a prima facie case. (Scott v. Department of Commerce and Community Affairs (1981), 84 Ill. 2d 42, 416 N.E.2d 1082.) Thus, even without the subpoena power or a specific grant of authority to administer oaths, which in fact can be administered by notaries public (Ill. Rev. Stat. 1979, ch. 101, pars. 1 and 2), the relevant provisions of the Illinois Administrative Procedure Act impose upon the Board a greater obligation in handling Fitch’s possible prequalification suspension than it would bear under Board rules.

Therefore, for the above reasons, we hold that prequalification is a license, that the contested cases procedure of the Administrative Procedure Act applies to prequalification suspension hearings and that the trial court was correct in not dissolving the preliminary injunction because of Fitch’s likelihood of success on the merits.

Affirmed.

JOHNSON, P. J., and LINN, J„ concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MORTON EINSTEIN, Defendant-Appellant.
    First District (5th Division)
    No. 80-1985
    Opinion filed May 7,1982.

      Ira A. Moltz, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Gregory J. Ellis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant, a pharmacist, was charged in a 152-count indictment with forgery and theft in submitting false prescriptions to the Department of Public Aid. After a bench trial, he was convicted and sentenced to concurrent terms of 3 years and 4 months to 10 years on each of 142 counts of forgery and 10 of theft. On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in allowing the State to call a nonpracticing pharmacist as an expert witness; and (3) he was improperly sentenced.

Richard Abrams, president of Earns Associates, Inc. (Earns), a bookkeeping and financing company for major medical professions, testified that defendant did business with his company as Fullerton Kedzie Health Clinic (Pharmacy); that Earns advanced or lent money to defendant against prescriptions which defendant brought him in connection with welfare recipients; that when defendant came in with prescriptions, Earns would prepare a voucher describing the amount an account received, the service charge, and the amount of the next check payable to defendant; that Earns would then submit the prescription forms and all necessary papers to the Department of Public Aid for reimbursement; and that Earns did this type of work for many doctors, dentists, and pharmacists. Abrams identified microfilm copies of 71 prescriptions submitted to his company by defendant and checks, vouchers, and State warrants received by his company showing payment by the State on those accounts.

An assistant director of records with the State Comptroller’s Office testified that her office issues all warrants as payments for the vouchers submitted, and she identified the name of defendant on the vouchers and warrants in question.

A supervisor of the Medicare Vouchering Unit of the Department of Public Aid testified that a public aid recipient receives a green card as a means of identification and, when seeking medical services, he takes the card to a physician; that if a prescription is necessary, the physician completes a portion of a two-page prescription form (215 form) which the recipient then takes to a pharmacist who provides the prescribed drug, signs and dates the form, and completes other portions labeled order number, item number, quantity, name of manufacturer, charge and credit; that the first page of the form is retained as a record by the pharmacist, and the second is the billing device submitted to the Department for payment. He also testified that a manual sent to providers states that a pharmacist may receive prescriptions over the telephone from a physician and may sign a physician’s name with the physician’s consent.

John Bertulis, a special agent for the Illinois Department of Law Enforcement, was called by the State as an expert witness. He stated that he graduated in 1973 with a bachelor of science degree from the University of Illinois College of Pharmacy and is a licensed pharmacist; that he worked in pharmacies during the summers while in school and, under the supervision of a registered pharmacist, prepared “tens of thousands” of prescriptions; that he worked for two years after graduation as a pharmacist; and that, in his current job, he uses his expertise to act as a consultant to the Department in pharmacy and doctor investigation.

Defense counsel at that point was permitted to cross-examine the witness as to his qualifications, and it was brought out that he did not have a master of science or a Ph.D. in pharmacology; that he did not take any post-graduate courses, and did not belong to any pharmacology organization; and that the last time he acted as a registered pharmacist was in

1975.

Over the objection of defense counsel, Bertulis testified as to the medicinal purposes of particular drugs on the prescription forms in evidence and that the drugs prescribed for certain recipients would not have been prescribed by physicians because they were inappropriate for the medical problem of the patient.

An employee at the Kedzie and Diversey Currency Exchange, after identifying a signature card which defendant had filled out at the currency exchange, testified that she cashed business checks for him from Earns; that she recognized his signature because she had seen him write it three or four hundred times; and that defendant’s signature was on the back of checks shown to her.

A former document examiner with the Chicago Police Department testified as an expert witness over the objection of defense counsel that the known writing samples of defendant matched his signature on the Public Aid Department 215 forms in evidence.

Nathanael Burgos testified that as a high school student from 1974 to 1976, he was employed part-time by defendant at the Pharmacy; that beginning December 1974, defendant gave him blank 215 forms as well as two to three original prescriptions and asked him to copy the case identification number, the patient’s first and last name, address, doctor’s American Medical Association (AMA) number from the original to the blank forms, to make two check marks for refills, and to sign the doctor’s signature, and defendant then wrote in the item numbers, quantity, charge, and price; that he (Burgos) wrote out about three to four hundred forms each month; that he specifically remembered having copied the names Nilda Nieves and Linda Quintanna; and that he once saw defendant give another employee approximately 40 blank 215 forms and three to four originals. Burgos also identified his handwriting and that of defendant on the forms admitted into evidence.

Doctor Guziec testified that he had a patient named Brenda Lindsey in January 1975 whom he surgically treated for trauma to her nose; that Lindsey had also seen Dr. Dominguez-Gross for treatment; that he prescribed a medicine known as Rondomycin and post-operatively prescribed Tylenol #3; that he never authorized any prescriptions for her after January 20; and, when asked about drugs listed on eight prescription forms dated February 8 and March 19,1975, which had the name “Gross Gizie [sic]” on them, he stated that he rarely and in some cases never in his career had prescribed those drugs. He identified certain exhibits as prescriptions with the name “Gross Gizie [sic]” on them but testified that he was totally unfamiliar with those prescriptions. On cross-examination, he stated that he often spoke with pharmacists on the telephone and did not have an independent recollection of when he treated Lindsey.

Dr. Dominguez-Gross testified that she treated Brenda Lindsey, called Dr. Guziec for authorization to prescribe Tylenol #3, and signed the prescription “Dr. Gross/Guziec.”

Brenda Lindsey testified that she began receiving public aid in 1974; that Dr. Guziec performed surgery on her nose; that she was given a prescription by Dr. Dominguez-Gross, who treated her when Dr. Guziec was unavailable, which she filled at the Pharmacy; that she lost her green card in 1976; and that she never received the other prescriptions in evidence with her name on them.

Wilma Salley stated that she was a public aid recipient in 1974 and 1975; that she used her green card and went to the Pharmacy on one occasion to have a prescription filled and could not identify the 10 other prescriptions in evidence with her name on them.

Two pediatricians testified that they never prescribed certain medicines written on the prescriptions in evidence because they were not applicable to their field, and that they never signed nor authorized the prescriptions with their names on them. One of the doctors further testified that although he did prescribe certain medicine for Imelina Quintanna in 1973, he never prescribed medication for the child’s mother, Linda Quintanna, who was named on 11 of the prescriptions at issue. The State similarly elicited testimony from three other physicians to the effect that prescriptions in evidence bearing their names were not signed, written, or authorized by them.

Linda Quintanna, Theresa Styck, Angela Carmona and Nilda Nieves testified in substance that they were public aid recipients and that they had never received prescriptions shown to them in court. Nieves further stated that she had moved and lived at addresses different than those listed on the prescriptions with her name on them, and that after she moved she no longer went to the Pharmacy.

An employee of the AMA explained that all physicians in the United States have a personal medical education number and that certain AMA numbers listed on the prescriptions in evidence for particular physicians were either incorrect or nonexistent.

Dr. Gavrilovich, whose deceased father was also a doctor, stated that neither he nor his father prescribed certain drugs listed on prescriptions in evidence dated December 1974 and March 1975 which contained their names; that his father died in September 1974 and, prior thereto, had an office above defendant’s pharmacy for at least 12 years; that he believed defendant had a direct line to his father’s office; and that he helped his father out in the office, although he did not practice there.

The defénse called an agent of the Illinois Division of Criminal Investigation who testified that Brenda Lindsey and Wilma Salley told him that they had never had any prescriptions filled at the Pharmacy. A registered pharmacist then testified that he filled approximately 100,000 public aid prescriptions in 1974 and 1975; that nothing on the 215 form indicates whether the recipient presenting the green card is the person named on the card; and that there is no relation between the AMA number on the 215 form and acceptance of the form by the Department of Public Aid.

Opinion

Defendant first contends that his guilt was not proved beyond a reasonable doubt. He argues that the State’s evidence was exclusively circumstantial and failed to show the existence of a crime or that he was guilty of any wrongdoing.

Initially, we note that defendant was found guilty beyond a reasonable doubt of 142 counts of forgery and 10 counts of theft. Seventy-one convictions for forgery were based on section 17 — 3(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(a)(1)) and the other 71 convictions were based on section 17 — 3(a)(2) (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(a)(2)). Those sections provide:

“§17 — 3. Forgery.) (a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or

Five of the theft convictions were based on section 16 — 1(a)(1) of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)) and five on section 16 — 1(b)(1) (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(b)(1)). Those sections provide:

“§16 — 1. Theft.) A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
and
(1) Intends to deprive the owner permanently of the use or benefit of the property; or

Circumstantial evidence is sufficient to support a conviction as long as it leads to reasonable and moral certainty that the accused committed the offense. (People v. Larson (1980), 82 Ill. App. 3d 129,402 N.E.2d 732.) It is sufficient if the evidence, as a whole, satisfies the trier of fact of defendant’s guilt beyond a reasonable doubt (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6), and he is not required “to search out possible explanations compatible with innocence and elevate them to the status of reasonable doubt” (People v. Stone (1977), 46 Ill. App. 3d 729, 731, 361 N.E.2d 330, 332). “Forgery and theft are not crimes which are committed openly and notoriously. They are by nature secretive. Therefore, it is necessary that certain elements of those crimes be proved as logical deductions from the facts in evidence.” (People v. Toellen (1978), 66 Ill. App. 3d 967, 970-71, 384 N.E.2d 480, 483.) Further, in a bench trial, the credibility of witnesses and the weight to be given their testimony are for the trial court, and the reviewing court will not substitute its judgment unless proof is so insufficient that there appears a reasonable doubt of guilt. People v. Berland (1978), 74 Ill. 2d 286,385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 64.

Here, all six public aid recipients whose names were on the 71 prescriptions at issue testified that they had used their “green card” on at least one occasion at the Pharmacy and were unable to identify any of the prescriptions containing their names. Nieves additionally testified that she had moved since her first visits to the Pharmacy and had different addresses than those shown on the prescriptions. All of the doctors whose signatures appeared on the 71 prescriptions stated that they had never prescribed certain drugs named on the prescriptions because the drugs were inapplicable to their field. Both Dr. Guziec and Dr. Dominguez-Gross testified that on one occasion Dr. Dominguez-Gross had prescribed medication for Brenda Lindsey with Dr. Guziec’s approval, and Dr. Dominguez-Gross explained that she signed the prescription “Dr. Gross/ Guziec.” Neither she nor Dr. Guziec could account for additional prescriptions signed “Gross Gizie [sic].” Further, although Dr. Gavrilovich’s father had been dead since September 1974, there were several prescriptions dated December 1974 and March 1975 with his signature on them. The State also elicited testimony to the effect that certain physician AMA numbers on the prescriptions were nonexistent or incorrect, and the expert pharmacist testified that certain drugs listed on the prescriptions were inappropriate for the medical condition of the recipient.

A document examiner affirmed that defendant’s signature was on each of the 71 prescription forms, and a former employee of defendant explained that while working for defendant he was given hundreds of blank prescription forms and a few original prescriptions — including prescriptions for Nilda Nieves and Linda Quintanna — and was instructed to copy data from the originals and to sign the doctor’s name and that defendant would then complete the remaining portions of the form.

It was also shown at trial that the prescriptions at issue had been delivered to Farns, the company which served as a conduit for payment between the State and defendant. The president of Farns further identified certain vouchers, checks and State warrants showing payment by the State on certain accounts. Specific vouchers were also identified as having been paid by the State by an employee of the State Comptroller’s Office. Finally, defendant’s signature was identified on the back of checks shown to an employee of a nearby currency exchange who cashed defendant’s business checks from Farns and who stated that defendant had been in the exchange approximately 300 times in 1974 and 1975.

After our examination of the record, we are not left with a reasonable doubt of guilt. The evidence supports findings that defendant, with intent to defraud, filled out 71 public aid prescriptions without the authorization of the named physicians, in violation of section 17 — 3(a)(1) of the Criminal Code, and that, through Farns, he delivered them to the Department of Public Aid, in violation of section 17 — 3(a)(2). It is also clear that he obtained payments from the State with the intent to permanently deprive it of those funds, in violation of sections 16 — 1(a)(1) and 16 — 1(b)(1).

Defendant also asserts that the trial court erred in permitting a nonpracticing pharmacist to testify as an expert witness in pharmacy.

An expert witness is generally qualified to testify where he has knowledge in a given subject area beyond that of persons of common intelligence and ordinary experience (Sullivan v. Berardi (1980), 80 Ill. App. 3d 417, 399 N.E.2d 708; People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528), and the knowledge required to qualify as an expert may be obtained from study, experience, or both (Cannell v. State Farm Fire & Casualty Co. (1975), 25 Ill. App. 3d 907, 323 N.E.2d 418). It is within the discretion of the trial court to determine whether a witness is qualified as an expert, and the decision will not be overturned on review absent a finding of clear and prejudicial error. People v. Wade.

In the present case, the State preliminarily established that John Bertulis was a registered, licensed pharmacist with a degree from the University of Illinois College of Pharmacy; that during his 4-year training period, while working as an apprentice pharmacist under the supervision of a registered pharmacist, he prepared tens of thousands of prescriptions; that after graduation, from 1973 to 1975, he worked as a pharmacist filling prescriptions, dispensing medications, and acting as a consultant to medical professionals; and that, while employed by the Illinois Department of Law Enforcement, he has also acted as a consultant in pharmacy investigations and taught pharmacology to other law enforcement officers.

We believe that the education and experience of the witness exhibits knowledge and expertise in the field of pharmacy beyond that ordinarily shared by lay persons. Further, his testimony concerned the uses of drugs in prescriptions dated in 1974 and 1975, the years during which he was actively practicing, and this testimony was not negated by the defense. We are thus of the opinion that the trial court did not abuse its discretion in permitting Bertulis to testify as an expert.

Defendant next contends that the trial judge incorrectly convicted and sentenced him for 152 separate offenses because the multiple offenses were based on the same criminal act.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, it was held that when more than one offense arises from closely related acts and are not lesser included offenses, the court may properly enter convictions with concurrent sentences.

We believe it clear in the present case that the forgery offenses arose from distinct acts requiring different elements of proof. Seventy-one counts were based on fraudulently making or altering prescriptions (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(a)(1)), and the remaining forgery counts relate to issuing or delivering the prescriptions knowing that they were thus made or altered (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(a)(2)).

Although the theft convictions arose from acts closely related but distinctly separate from the.acts which form the basis for the forgery offenses, it appears that the convictions of theft under section 16 — 1(b) (1) must be vacated. There were five convictions under that section and five under section 16 — 1(a)(1), and it was held in People v. Fowler (1979), 72 Ill. App. 3d 491, 390 N.E.2d 1377, that sections 16 — 1(a) and 16 — 1(b) do not undertake to create separate and distinct offenses but, rather, to create a single offense of theft which may be performed in a number of ways. (See also People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770, where it was so held with respect to sections 16 — 1(a) and 16 — 1(d).) Thus, the five convictions under section 16 — 1(b)(1) will be vacated.

Where there is no indication from the record that a vacated conviction had any bearing on the sentence, it is not necessary to remand the cause for resentencing. (People v. Wilson (1981), 93 Ill. App. 3d 395,417 N.E.2d 146.) In the present case, the trial judge sentenced defendant separately on each of the 152 Class 3 felony convictions, and it does not appear that the five theft convictions under section 16 — 1(b)(1) had any bearing on the sentences on the other 147 counts. We find People v. Walton (1981), 94 Ill. App. 3d 903,419 N.E.2d 495, and People v. Guppy (1975), 30 Ill. App. 3d 489, 333 N.E.2d 576, cited by defendant in support of remanding this cause for resentencing, inapposite as those cases involved one sentence imposed for multiple convictions. (See People v. Worthen (1982), 105 Ill. App. 3d 386, 434 N.E.2d 423; People v. Carmickle (1977), 46 Ill. App. 3d 112, 360 N.E.2d 794.) Therefore, while five theft convictions and the sentences thereon must be vacated, we consider it unnecessary to remand for resentencing and affirm the sentences on the remaining 147 counts.

Defendant also argues that he was prevented from exercising a knowing and intelligent election of whether to be sentenced under the old or current sentencing code because the trial judge incorrectly admonished him as to the possible sentences which could be imposed.

The Unified Code of Corrections provides that a defendant has the right to elect to be sentenced under the law in effect at the time of the offense or under the statute in effect on the date of sentencing. (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 2—4(b).) However, no statute or supreme court rule mandates that specific admonitions be given (People v. Smith (1979), 74 Ill. App. 3d 796, 394 N.E.2d 53), or that defendant be informed by the sentencing judge prior to election of the particular sentences which he would impose under each act (People v. Finley (1980), 82 Ill. App. 3d 307,402 N.E.2d 769). All that is required of the trial judge is that he inform the accused of his right to an election (People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175), as it is the burden of counsel to explain the sentencing laws and to suggest to defendant what appears to be his best choice (People v. Finley; People v. Warfel; People v. Gunner (1979), 73 Ill. App. 3d 533, 392 N.E.2d 165).

At the sentencing hearing, the court informed defendant that he had the right to elect to be sentenced under either the old statute (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 8—1, 1005 — 8—2, 1005 — 8—4) or under the new sentencing law (Ill. Rev. Stat. 1979, ch. 38, pars. 1005 — 8—1, 1005 — 8—2, 1005 — 8—4). After informing defendant of the sentencing procedure under the old law and that the offenses for which he had been convicted were Class 3 felonies, the court explained sentencing under the new statute as follows:

“At present the Court no longer imposes indeterminate sentences. We now impose fixed or definite or determinate. For a Class III felony it would be somewhere between 2 and 5 years. However, the Court can impose what we call an extended term. If there are certain aggravating factors present the extended term would be somewhere between 5 and 10 years. And again, because there’s more than one offense the sentences would be consecutive, so that again it would be up to 20 years. But it would be for a fixed number of years, such as 2 or 4 or 12 or 20.”

Defendant acknowledged that he understood the court’s explanations and affirmed that he had discussed the differences in statutes with his attorney and that he wished to be sentenced under the statute in effect at the time of the offense. We therefore reject the contention that defendant was incorrectly admonished concerning the possible sentences which could be imposed.

Defendant finally suggests that the trial judge abused his discretion in sentencing him to the maximum term allowable by statute. The sentencing judge is normally in the best position to make a sentencing determination based upon the particular circumstances of each case, and the imposition of a sentence is a matter of judicial discretion which will not be altered on review absent an abuse thereof. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

It is clear that defendant’s sentence of 3 years and 4 months to 10 years was within the statutory sentencing guidelines for Class 3 felonies. (Ill. Rev. Stat. 1973, ch. 38, pars. 1005-8-1 (b)(4), 1005 — 8—1(c)(4).) Further, the record shows that the judge fully considered factors in mitigation and aggravation.

At the sentencing hearing, the court commented that it was appalled that a man of defendant’s education, financial condition, and standing in the community would commit such crimes and that he had used grade school and high school boys to fill out the prescription forms. The court also noted that, while there were many mitigating factors, defendant had utilized his position, his reputation, and the protection of the community to provide an easy means of committing the crimes and that it was important to deter others from doing the same.

In view of the serious and continuing nature of defendant’s conduct and the magnitude of forgery and theft offenses, we do not believe that the trial court acted arbitrarily or abused its discretion in sentencing defendant to the maximum term. The fact that he is well-educated, comes from a strong religious background, and has no prior record does not mandate a reduced sentence.

For the foregoing reasons, five theft convictions under section 16 — 1(b)(1) and the sentences thereon are vacated, and the remaining convictions and sentences for forgery and theft are affirmed.

Affirmed in part and vacated in part.

LORENZ and WILSON, JJ., concur.


author: JUSTICE PERLIN

text:
    BRENDA Y. FRYISON, Plaintiff-Appellee, v. CHRISTINE McGEE, Defendant-Appellant.
    First District (2nd Division)
    No. 81-1032
    Opinion filed April 27,1982.

      John F. Kneafsey, of Chicago, for appellant.
    Thomas J. Shannon, of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Brenda Y. Fryison (Fryison), sued to compel defendant, Christine McGee (McGee), to convey certain property to her pursuant to their contract for the sale of real estate. After defendant answered, Fryison moved for summary judgment. The trial court entered summary judgment in favor of plaintiff and ordered that the closing on the contract take place within 120 days from the date of the entry of the judgment. Defendant appeals from that judgment raising the following issues for our review: (1) whether defendant’s failure to file counteraffidavits in opposition to the motion for summary judgment resulted in the absence of any genuine issue of material fact; (2) whether the trial court’s order setting the closing date for 120 days after the date of the order was proper.

On November 21, 1979, plaintiff sued to enforce a contract for the sale of real estate between herself and defendant. Plaintiff alleged that she complied with all the terms of that contract and that she was at all times ready, willing and able to perform her part of the contract. Defendant filed a verified answer denying all of the material allegations of the complaint. On November 26, 1979, plaintiff moved for summary judgment and filed affidavits in support of her motion. In her affidavits plaintiff asserted that there was a valid contract between the parties for the sale of real estate; that she complied with the terms of the contract; that she secured a mortgage commitment; that the mortgage commitment was contingent on the completion of certain repairs; that she hired a contractor to make the repairs; that defendant refused to give the contractor access to certain areas of the building thereby preventing him from making the repairs; that she paid the contractor and obtained a waiver and release from him; and that she was at all times ready, willing and able to proceed to a closing on the contract. Plaintiff also filed affidavits of her contractor and real estate agent which corroborated her statements. In her response to plaintiff’s motion for summary judgment, defendant did not file counteraffidavits but relied on her verified answer to contravert plaintiff’s affidavit.

The trial court entered an order for summary judgment in favor of plaintiff and because plaintiff’s mortgage commitment lapsed while the suit was pending, the trial court ordered “that closing shall take place within 120 days after the date of this order.”

For the reasons hereinafter stated we reverse the judgment of the trial court.

Defendant contends that it was error for the trial court to enter summary judgment because genuine issues of material fact were presented by the pleadings and documentary evidence that were unresolved by the affidavits. Plaintiff argues that defendant’s failure to controvert the facts alleged in her affidavits by means of a counteraffidavit resulted in the absence of any genuine issue of material fact.

Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57(3)) provides that summary judgment will be rendered under the following circumstances:

* * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”

Here defendant filed no counteraffidavits in response to the motion for summary judgment. Under these circumstances facts contained in the affidavits in support of a motion for summary judgment are admitted and must be taken as true. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.) A verified answer to the complaint does not substitute for specific affidavits in a summary judgment proceeding. (Central Clearing, Inc. v. Omega Industries, Inc. (1976), 42 Ill. App. 3d 1025, 356 N.E.2d 852; Pekin Memorial Hospital v. Schilling (1970), 121 Ill. App. 2d 473, 257 N.E.2d 124; Laycock, Dispositive Pre-Trial Motions in Illinois, 9 Loy. Chi. L.J. 823, 841-42 (1978).) Defendant’s verified answer, however, can be considered for the purpose of determining what issues are raised by the controversy. (Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.) It is established that even though the party opposing the motion for summary judgment fails to file counteraffidavits, the moving party is not entitled to summary judgment unless the affidavits filed in support of the motion establish, as a matter of law, her right to the judgment. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47; Ohio Coal Co. v. Yacktman.) In determining whether a genuine issue of material fact exists, the court has the duty to consider the entire record and to construe the evidence strictly against the moving party and liberally in favor of the opponent. Spancrete of Illinois, Inc. v. Brickman; Lewis v. Illinois Institute of Technology (1977), 50 Ill. App. 3d 418, 365 N.E.2d 1079.

In the instant case the pleadings raise the issue whether plaintiff complied with all of the material terms of the contract. The contract provided, inter alia, that closing would take place 10 days after plaintiff notified defendant that plaintiff had obtained a firm mortgage commitment. Although plaintiff did not receive a firm mortgage commitment, she did obtain a mortgage commitment contingent upon the completion of certain repairs. Plaintiff hired a contractor to make the repairs, but defendant refused to permit the workmen into the building. On appeal, plaintiff maintains that her receipt of a contingent mortgage commitment and her good faith effort to make those repairs satisfied her contractual obligations requiring her to obtain a firm mortgage commitment. Plaintiff also argues that defendant’s knowledge of the attempt by the workmen to enter her building constituted constructive notice to defendant that plaintiff was ready to close. Defendant argues that under the contract she was not required to allow workmen on to her property to make repairs. She maintains that before she would allow any workmen into the building to make repairs, she would need additional liability insurance to protect her in the event one of the workmen was injured while on her property. Defendant contends that absent some express agreement in the contract which provides for the payment for such insurance, the contract did not require her to allow the workmen into her building. Defendant also argues that plaintiff did not give her adequate notice that plaintiff was prepared to consummate the contract.

The purpose of a motion for summary judgment is to determine the existence or absence of triable issues of fact, not to try them. (Diomar v. Landmark Associates (1980), 81 Ill. App. 3d 1135, 401 N.E.2d 1287.) The record discloses that plaintiff never received a firm mortgage commitment nor did she expressly notify defendant that she was ready to close as required by the contract. Under these circumstances, we cannot say that plaintiff’s right to judgment was free from doubt. Based upon our examination of the record in this case, we conclude a genuine issue of material fact exists as to whether plaintiff has complied with all of the material provisions of the agreement.

It is well settled that one seeking to recover on a contract must allege and prove that she has substantially complied with all of the material terms of that contract (Spancrete of Illinois v. Brickman; George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co. (1975), 32 Ill. App. 3d 249,336 N.E.2d 185). Here, plaintiff has not done so; accordingly, she has failed to establish her right to summary judgment as a matter of law. Therefore we believe summary judgment was inappropriate in this case.

In light of our disposition of the foregoing issue, it is unnecessary for us to reach the merits of the issue whether the trial court’s order setting the closing date for 120 days after the date of the order was proper. For the reasons hereinabove stated, we reverse the judgment of the trial court and remand for further proceedings not inconsistent with our determination herein.

Reversed and remanded.

DOWNING and HARTMAN, JJ., concur.


author: JUSTICE JIGANTI JOHNSON, P. J.,

text:
    STEVEN GREEN et al., Plaintiffs-Appellees, v. JOSEPH MYERS et al., Defendants-Appellants.
    First District (4th Division)
    No. 81-852
    Opinion filed May 13,1982.
    JOHNSON, P. J., dissenting.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellants.
    Samuel Alfassa, Ltd., of Chicago (Michael D. Stevens, of counsel), for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

When Claude Don Green died he had on deposit with the Retirement Board of the Municipal Employees Annuity and Benefit Fund of Chicago (Fund) approximately $13,200. Under the provisions of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. IO8J2, par. 8 — 171), that money would be paid to the widow in the form of an annuity in the amount of approximately $134 per month or, absent a widow, the entire amount would be paid in a lump sum to the heirs. The plaintiffs, Steven and Lynne Green, are the children of Claude Don Green. In this action, they contend that the Fund is about to distribute to money to Rosetta Green because Rosetta Green claims that she is the widow. They claim that Rosetta Green, who is not their mother, was never legally married to Claude Don Green or if in fact she was married to him that they were divorced prior to his death. The plaintiffs brought this action to enjoin the distribution to Rosetta Green and to have the court enter judgment declaring that they are entitled to the monies on deposit.

The Fund was served and the executive director of the Fund was present at the hearing on the temporary injunction, although he did not file an appearance personally or on behalf of the Fund. By the agreement of the parties present including the Fund’s executive director, the Fund was temporarily enjoined from distributing the deposits. Subsequently, the plaintiffs and Rosetta Green signed a consent agreement and without notice to the Fund the court entered judgment on the agreement. The judgment directed the Fund to distribute one-half of the money to the plaintiffs and one-half to Rosetta Green.

On March 10, 1981, the 29th day after entry of the judgment, the Fund filed an appearance and a motion to vacate or modify the judgment. The motion alleged that the terms of the judgment violated section 8 — 171 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108*2, par. 8 — 171). Two exhibits were attached to the motion. One was a copy of the membership record filed with the Fund by Claude Green listing Rosetta Green as his wife and Steven and Lynne Green as the “children of his blood.” The other exhibit was a copy of the marriage license of Claude Green and Rosetta K. Johnson, dated August 30, 1948. The circuit court refused to vacate or modify the judgment, and the Fund appeals from the denial of this motion.

The two issues presented on appeal are whether the plaintiffs and Rosetta Green may enter into an agreement that binds the Fund and whether the court in its discretion should have vacated the judgment upon a motion made within 30 days.

In response to the first issue, we do not believe that the plaintiffs and Rosetta Green through a consent judgment to which the Fund was not a party could legally bind the Fund to act in a certain fashion. The Fund is under a statutory duty to protect the deposits and to pay them out in benefits only in the manner designated by the legislature. (Stiles v. Board of Trustees (1917), 281 Ill. 636,118 N.E. 202; Gordan v. Board of Trustees (1966), 77 Ill. App. 2d 234, 222 N.E.2d 28; Esner v. Board of Trustees (1979), 68 Ill. App. 3d 541, 386 N.E.2d 288.) The duty to protect the deposits cannot be preempted by the agreement of the parties. The Fund is not merely a stakeholder, it is charged with a specific responsibility. Concomitant with the Fund’s duty is the right to participate fully in the trial court’s proceedings. The necessity of the Fund’s participation in the proceedings in the trial court is particularly compelling under the instant facts. By their agreement, the plaintiffs and Rosetta Green have bound the Fund to disburse money in a lump sum which, if Rosetta Green is not in fact the widow, is in direct derogation of section 8 — 171 of the Illinois Pension Code.

Our response to the second issue involves a consideration of section 50(5) of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 50(5).) This section directs the trial court in its discretion to set aside any final judgment upon “any terms and conditions that shall be reasonable” on a motion filed within 30 days after entry of the judgment. The overriding consideration under this section is whether or not substantial justice is being done between the litigants and whether it is reasonable under the circumstances to compel the parties to go to trial on the merits. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 270 N.E.2d 841; Ruggiero v. Attore (1977), 51 Ill. App. 3d 139, 366 N.E.2d 470; Difanis v. Martin-Trigona (1979), 73 Ill. App. 3d 352, 391 N.E.2d 1067.) This section should be liberally applied. (Randolv. Musselman (1976), 36 Ill. App. 3d 515,344 N.E.2d 273; Columbus Savings & Loan Association v. Century Title Co. (1977), 45 Ill. App. 3d 550,359 N.E.2d 1151.) A court, in liberaHy applying the concept of substantial justice, can consider the conduct of the moving party and weigh the possibility of hardship to the opposing parties. Keafer v. McClelland (1974), 23 Ill. App. 3d 1035,321 N.E.2d 136; Eden v. Eden (1975), 34 Ill. App. 3d 382, 340 N.E.2d 141.

e 3 Under the instant facts, we believe that substantial justice required the court to vacate the consent judgment. The Fund showed its interest in the proceedings by having the executive director of the Fund participate in the initial hearing and join in stipulating to the temporary injunction. The Fund did not receive notice that the plaintiffs and Rosetta Green were presenting their agreement to the court to have judgment rendered. There is no evidence in the record that either party to the agreement changed position in reliance on the agreement between the time the order was entered and the time the motion to vacate was filed. (Brown v. Drovers National Bank (1977), 54 Ill. App. 3d 593, 370 N.E.2d 30.) Also, the Fund’s claims merited the attention of the court. Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667.

For the above reasons, the decision of the trial court should be reversed and remanded.

Reversed and remanded.

ROMITI, J., concurs.

JOHNSON, P. J.,

dissenting:

I respectfully dissent and would base my reversal on general rule of law favoring compromise.

The Fund claims that it received no notice of the consent decree. However, it was served, although it did not answer, and its executive director appeared at the hearing on the temporary injunction. At the hearing on the motion to vacate, the trial court stated:

“THE COURT: The Board didn’t care. The Board was holding, what, $12,000, $13,000? And the parties were contesting this, the children of this fellow and the woman that he was living with, right, and the Board had the money. They didn’t care who they gave it to, as long as the Board was protected.”

The parties Steven and Lynne Green and Rosetta K. Green should not be required by the Fund to litigate the issue of whether Rosetta Green was the widow of Claude Don Green if they chose to settle. Adults having an interest in litigation have a personal right to negotiate and settle. (Ham v. Marshall (1964), 46 Ill. App. 2d 92, 94, 196 N.E.2d 377, 379.) Settlements are favored by the courts as a means of discouraging litigation. And family settlements are especially favored on grounds of public policy upholding the honor and peace of families. (Ham v. Marshall (1964), 46 Ill. App. 2d 92, 96.) Our supreme court stated:

“Courts of equity favor the settlement of disputes among members of a family by agreement rather than by resort to law, and the validity of such contracts has been repeatedly recognized by this court.” Stipanowich v. Sleeth (1932), 349 Ill. 98,103, 181 N.E. 632, 634.

Therefore, I would affirm the decision of the circuit court of Cook County.


author: JUSTICE O’CONNOR JUSTICE O’CONNOR

text:
    VIRGINIA MOHLER, Indiv. and as Adm’r of the Estate of Harold Mohler, Deceased, Plaintiff-Appellee, v. ROBERT W. BLANCHETTE et al., Defendants-Appellants.
    First District (1st Division)
    No. 80-3167
    Opinion filed April 19,1982.
    Supplemental opinion filed on denial of rehearing June 1,1982.
    Lord, Bissell & Brook, of Chicago (Cornelius P. Callahan and Hugh C. Griffin, of counsel), for appellants.
    John D. Hayes, of John D. Hayes & Associates, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This action was instituted by plaintiff, Virginia Mohler, widow of Harold Mohler and administrator of his estate, against defendants, Robert W. Blanchette, Richard C. Bond and John H. McArthur, trustees of Penn Central Transportation Company (Penn Central), to recover damages under the Federal Employers’ Liability Act, 45 U.S.C. §51 et seq. (1970), for a violation of the Safety Appliance Act, 45 U.S.C. §1 et seq. (1970), which allegedly caused the. death of her husband. Plaintiff’s complaint was originally filed in 1970. In 1974 the case was dismissed for want of prosecution with leave to refile the action within one year. Plaintiff refiled the case in 1975 and the case was tried in July of 1980. The jury awarded plaintiff $500,000. Penn Central appeals seeking a new trial, contending that (1) evidence that decedent died as a result of a heart attack was improperly excluded from evidence; (2) certain hearsay statements made by decedent were improperly admitted into evidence; and (3) plaintiff’s closing argument was improper. We affirm.

On December 28, 1967, decedent Harold Mohler was working as a brakeman in the caboose of Penn Central train No. 791 on its scheduled run from Kankakee, Illinois, to Zearing, Illinois. The train engineer Rene Benoit, the conductor D. Drazy and the brakeman Robert Shearer were riding on the engines. The train was just east of Reddick, Illinois, when it went into a recognized emergency situation called a “break-in-two” when the train broke into two sections. At the time the break occurred, the engineer Benoit was in the process of slowing down the train for a scheduled stop at Reddick. The speed of the train was estimated at between 10 to 15 or 20 to 30 miles per hour where the speed limit was 40 miles per hour. When the train broke in two sections, the train’s emergency brakes applied automatically. A “terrific noise” or “loud whoosh sound” was heard throughout the train, in both the engine and the caboose. Shearer testified that at any speed ranging from 10 to 25 miles per hour, the caboose stops “suddenly and you have to hang on because otherwise you’re going to get thrown on the floor” despite the fact that a good engineer could bring the engine section of the train to a smooth stop.

After the train stopped, a broken knuckle was discovered and a new one obtained from another train. After approximately a one-hour delay, the train continued on and eventually arrived at Streator, Illinois. At Streator, decedent went to the engine and asked Benoit what had happened at Reddick and was informed by Benoit of the emergency stop. Decedent then informed Benoit that he had been thrown against the wall of the caboose and had hit his head on the caboose wall. At that time, Benoit noted a cut on decedent’s ear. Shearer testified to seeing approximately a tablespoon of blood inside decedent’s ear.

When the train crew arrived at Zearing, they checked out at Ladd junction and proceeded by automobile to a local Holiday Inn. Shearer testified that Mohler seemed very tired, that he slumped down in the seat of the car and failed to respond to Shearer’s repeated attempts to communicate with him. Shearer shared a room with decedent that night. He testified that decedent was not his usual self and seemed unusually tired. On the return trip on the morning of December 29, Shearer noted that decedent seemed unusually tired and not too conscious of what he was doing. At Zearing, decedent prepared an accident report.

Decedent’s work assignment book indicates that he did not work all of his scheduled assignments after December 28, 1967. Mrs. Mohler explained the difference between the notations in the time book listed as “laid-in” and “laid-off.” The former indicated that decedent was available for work, but that the job was cancelled; the latter indicated that he called in that he would not be working. Although decedent did work on December 29 on the return run from Zearing to Kankakee, he “laid-off” on December 30 and 31. Subsequent to December 28, 1967, and up to January 19, 1968, decedent worked assignments both as conductor and fireman without incident. Shearer worked with decedent on January 11, 1968, and noted nothing unusual.

Mrs. Mohler and her family testified to numerous incidents witnessed by them during the period between December 28,1967, and January 19, 1968. Kathleen Mohler Tamasiewicz, a daughter, recalled a “very bad headache.” Caroline Mohler, another daughter, testified to seeing blood on the side of her father’s face and ear the day following the accident. She also related various incidents of unusual behavior: an episode where he abruptly left the room during a conversation with her, sat in a chair holding his head in his hands and did not respond to her questions; another incident of “moaning” and “making incoherent noises” while thrashing about in bed; and “listless” behavior at a New Year’s Eve party where he was observed in a trance-like state.

Mrs. Mohler testified to numerous instances of Mr. Mohler’s odd behavior: she noted that he was “particularly quiet” at the New Year’s Eve party where at one point he “disappeared” and was found lying down in one of the bedrooms; sitting in a chair holding his head and complaining that his head hurt; uncharacteristically striking his daughter over a triviality; and a staring episode on January 17. Decedent’s brother-in-law testified to Mohler’s “lethargic” behavior at the New Year’s Eve party.

Decedent’s mother, Mildred Mohler, testified to a conversation between decedent and herself. This testimony is subsequently set forth herein.

On January 17-18, 1968, decedent worked as a conductor on the regular run from Kankakee, Illinois, to Elkhart, Indiana. Norman Phillips worked as the rear brakeman and noted nothing unusual about Mohler on 1 that trip. On January 18 they stayed together at the Elkhart Y.M.C.A. and during the 22 hour and 50 minute layover he noted nothing that would make him think Mr. Mohler was in ill health or suffering from chest pains. On January 19, 1968, Mohler, Phillips and the rest of the train crew returned for work at the Robert Young railroad yard in Elkhart, Indiana, at approximately 3 a.m. Phillips went to the caboose, while Mohler went to the railroad tower to review instructions for the train. Approximately an hour later, Mohler came back to the rear of the train and climbed up into the caboose. Phillips testified that Mohler had just entered the caboose and did not respond to a question Phillips asked. Mohler had put his grip down when he suddenly collapsed to the floor, gasping for breath. Phillips told the railroad car inspector to call for an ambulance and a doctor. After three to five minutes later, Mohler’s eyes rolled back into his head, he stopped breathing and his pulse and heartbeat disappeared.

Dr. Deland Burns, plaintiff’s first medical witness, testified that at the request of Mohler’s brother-in-law, Dan Hequet, he performed an autopsy on Mohler’s body after it had been embalmed. Dr. Burns testified that it would have been much better to have performed the autopsy before embalming. The trocar, a pipe-like instrument used to insert embalming fluid, had totally penetrated Mohler’s heart and Dr. Burns attributed all the heart damage he found to that fact. He noted that Mohler’s heart was of normal size. Dr. Burns was unable to determine a cause of death. He testified to an abnormal accumulation of mucoid secretions in the lungs which obstructed some of the ramifications of the respiratory system, particularly the secondary bronchus to the right lower lobe and the tracheal bronchial tree. He stated that primary lung disease was not the cause of death and that the cause of death was not coronary related. While he was not able to determine an apparent cause, a focal central nervous system disturbance could be a primary initiating cause of death and could manifest itself in an occlusion of the tracheo-bronchial tree. Dr. Burns testified that head trauma can cause brain damage without being manifested in a skull fracture or even be perceivable to a person performing an autopsy three weeks later, and that he very well could have missed evidence for trauma. Dr. Burns agreed that if heart occlusions or arrhythmia occurred suddenly there might be no palpable change in the heart itself. He also testified that the trocar could have dislodged a preexisting heart occlusion so that it would not be observable.

Dr. Joseph Segarra, the plaintiff’s second medical witness, concluded that the cause of death was of primary central nervous system origin, in that the trauma to the brain resulted in a series of minor epileptic episodes manifested in the bizarre behavior witnessed by his family, leading to a disturbance in the respiratory mechanism which produced a constriction of the windpipes, leading to lack of oxygen and ultimately death. The minor epileptic episodes led to a laryngospasm which was indicated by the choking sounds heard by Phillips. He further testified that the lesions that lead to epileptic attacks can be very subtle and are only revealed upon sophisticated microscopic examination which involves the use of special stains to pick up the lesions. Dr. Segarra also observed that the decedent’s work assignment time book appeared to be a very well-organized book which, on the date following the date of the accident, became disorganized and jumbled, indicating further evidence of a change in Mohler’s behavior or cognitive abilities.

The Elkhart County Coroner, Dr. Westfall, was permitted to testify that he had no recollection of inquiring into the death of Harold Mohler on January 19, 1968, and that the summary and inquest of the death of Harold Mohler bore his signature, was made in the ordinary course of his business as coroner of Elkhart County on January 19, 1968, and states Mohler’s time of death as 5:45 a.m. Dr. Westfall was permitted to read from the report as follows:

“This 36-year-old man collapsed and died suddenly at the Robert Young Railroad Yard in Elkhart. I pronounced the victim dead shortly after, beside the tracks near the caboose in the railroad yard. There was no evidence of violence or foul play. I ordered the body moved to the funeral home pending further arrangements. The said deceased being a male of the age of 36 years, six feet and one inches in height, black hair, gray eyes, medium complexion, nativity white.”

Defendant submitted an offer of proof regarding the facts Dr. Westfall would have testified to if permitted: Pursuant to his official statutory duties as county coroner, Dr. Westfall interviewed witnesses and otherwise made an investigation into the facts surrounding Mohler’s death in an attempt to determine the cause of death. On January 30, 1968, Dr. Westfall embodied his findings in his official report which in pertinent part stated as follows:

“This 36 year old man collapsed and died suddenly after suffering severe chest pains shortly after he reported for work at the Robt. Young R.R. Yard in Elkhart. The victim was in apparent good health but slumped over from a seat in the caboose of train #L53 with severe chest pain and died within minutes. Artificial resuscitation was attempted by witnesses but was unsuccessful. I pronounced the victim dead shortly after beside the tracks near the caboose in the R.R. yards. There was no evidence of violence or foul play. I ordered the body moved to the funeral home pending further arrangements.
In my opinion death was natural due to:
1. Acute coronary occlusion.”

Defendants’ first medical witness, Dr. Leestma, noted that the weight of Mohler’s heart, as shown in Dr. Burns’ autopsy report, was abnormally heavy for his age and weight. Dr. Leestma testified that the cause of Mohler’s death was cardiac arrhythmia. He further testified that neither the events of December 28, 1967, nor the incidents of unusual behavior testified to by Mohler’s family changed his opinion as to cause of death. In his opinion, these incidents were not epileptic seizures of any kind. Dr. Leestma testified that in his experience sudden heart attack death often leaves no detectable physical abnormality. He stated during cross-examination that some type of head injuries could produce epileptic seizures within hours or days following head trauma and admitted that he had testified at his deposition that it was possible that the decedent had a seizure causing him to choke on his mucous, leading to anoxia and ultimately cardiac standstill. Dr. Leestma stated that in cases of head injury where the patient survives more than a few hours, microscopic examination of the brain can reveal lesions which are not apparent on gross examination of the brain. He further admitted that he testified at his deposition that no pathology or abnormality was demonstrated in the autopsy report of Mohler.

Defendants submitted an offer of proof as to facts Dr. Leestma would have testified to if he had been permitted: Dr. Leestma would have testified that pathologists, including himself, customarily rely on information such as that contained in Dr. Westfall’s coroner’s report in reaching conclusions as to the cause of death. Dr. Leestma would rely on such a document in this case, including the chest pain information contained therein as “very important” and “most significant” factor in support of his cardiac arrhythmia opinion.

Defendants’ second medical witness, Dr. John Hughes, testified that it was possible for an insignificant head injury to result in post-traumatic epilepsy, but that in his opinion Mohler’s death was not caused by post-traumatic epilepsy. Dr. Hughes also testified that pathological evidence of post-traumatic epilepsy may not be immediately visible upon examination by a pathologist or neuropathologist. He stated that the various incidents of unusual behavior testified to by Mohler’s family were not epileptic attacks or seizures. In Dr. Hughes’ opinion, the bump on the head suffered by Mohler on December 28,1967, had no causal connection with his subsequent death on January 19, 1968.

On rebuttal, plaintiff called Dr. Donal O’Sullivan, a pathologist and a lawyer. Dr. O’Sullivan testified on behalf of plaintiff that the weight of decedent’s heart was near but not beyond the maximum acceptable limit for a person of Mohler’s age and size. Dr. O’Sullivan further testified that in his opinion Mohler’s death was not primarily a cardiac death but was primarily a central nervous system death secondary to the head injury suffered by Mohler on December 28,1967.

Defendants’ first contention is that evidence that decedent died as a result of a heart attack was erroneously excluded. Pursuant to his duties as coroner (Ind. Code §17 — 3—17—4, recodified as Ind. Code §36 — 2—14—6 by Acts 1980, P.L. 212, sec. 1 amended by Acts 1981, P.L. 39, sec. 2), Dr. Westfall investigated the facts surrounding Mohler’s death. In his coroner’s report, he set forth his finding that Mohler had complained of severe chest pains just prior to his collapse in the caboose and stated his opinion that the cause of Mohler’s death was acute coronary occlusion. The trial court, relying on section 18 of “An Act to revise the law in relation to coroners” (Ill. Rev. Stat. 1979, ch. 31, par. 19) ruled that Dr. Westfall’s findings or conclusions were inadmissible. The trial court also ruled that defendants’ expert, Dr. Leestma, was precluded from relying on Dr. Westfall’s report as a basis for his opinion.

In Illinois, a coroner’s jury shall “inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts of and concerning the same, together with all material circumstances in anywise related to or connected with the said death, and make up and sign a verdict, and deliver the same to the coroner.” Ill. Rev. Stat. 1979, ch. 31, par. 15.

In Spiegel’s House Furnishing Co. v. Industrial Com. (1919), 288 Ill. 422, 123 N.E. 606, the court held that a coroner’s verdict was not admissible in proceedings for the adjustment of compensation under the Workmen’s Compensation Act. (Ill. Rev. Stat. 1919, ch. 48, par. 126 et seq.) Subsequently, the Illinois General Assembly added the following proviso to section 18 of “An Act to revise the law in relation to coroners” (Ill. Rev. Stat. 1979, ch. 31, par. 19):

“Provided, further, that in any suit or proceeding hereafter commenced for the recovery of damages arising from or growing out of injuries caused by the negligence of any person, firm or corporation resulting in the death of any person or for the collection of a policy of insurance, neither the coroner’s verdict returned upon the inquisition as provided herein, nor a copy thereof, shall be admissible as evidence to prove or establish any of the facts in controversy in said civil suit or proceeding.”

The instant case involves an Indiana coroner’s verdict (Ind. Code §17 — 3—17—7, recodified as Ind. Code. §36 — 2—14—10 by Acts 1980, P.L. 212, sec. 1) and not a “coroner’s verdict returned upon the inquisition as provided [pursuant to “An Act to revise the law in relation to coroners” (Ill. Rev. Stat. 1979, ch. 31, par. 1 et seq.)].” (Ill. Rev. Stat. 1979, ch. 31, par. 19.) However, we find that the Indiana coroner’s report here was properly excluded from evidence. In Indiana, the coroner with the aid of the police agency having jurisdiction in the area conducts an investigation “in order to determine how and in what manner [the deceased] came to his death and shall cause a medical investigation to be made in order to determine the cause of death.” Ind. Code §17 — 3—17—4, recodified as Ind. Code §36 — 2—14—6 by Acts 1980, P.L. 212, sec. 1 amended by Acts 1981, P.L. 39, sec. 2.

The verdict of an Illinois coroner’s jury is excluded from evidence because as a coroner has no judicial power, his verdict should not “be admissible as evidence in civil suits for the purpose of establishing personal liability against any individual in cases where the death of any person is charged or to establish a defense to such a suit, or for the purpose of establishing other issues between private litigants of the nature indicated in the cases just reviewed.” (Spiegel’s House Furnishing Co. v. Industrial Com. (1919), 288 Ill. 422, 430.) Although the Indiana coroner’s verdict is not the verdict of a coroner’s jury, but rather the verdict of the coroner himself after conducting an investigation with the aid of the police, the rationale behind the rule excluding the verdict of the Illinois coroner’s jury from evidence is equally applicable to the Indiana coroner’s verdict. We also note that in Indiana the coroner’s verdict is not admissible in a civil case to establish cause of death. (McCoy v. General Glass Corp. (1938), 106 Ind. App. 116,17 N.E.2d 473.) We find that the Indiana coroner’s verdict was properly excluded as evidence to prove or establish any of the facts in controversy in this case.

Because we find that the coroner’s report in the instant case was properly excluded from evidence, we need not address defendants’ argument that the report be admitted under the past recollection recorded exception to the hearsay rule.

Defendants also argue, however, that it was improper for the trial court to preclude defendants’ medical expert, Dr. Leestma, from stating his reliance on Dr. Westfall’s report as a basis for his own opinion that the cause of Mohler’s death was coronary arrhythmia.

In People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, our supreme court held that a medical expert could properly base his opinion upon the report of another doctor who did not testify. The Ward court quoted Federal Rule of Evidence 703 with approval as follows:

“ ‘The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.’ ” (61 Ill. 2d 559, 567.)

We note that in Wilson v. Clark (1981), 84 Ill. 2d 186,417 N.E.2d 1322, our supreme court adopted Federal Rules of Evidence 703 and 705 and stated that the trial procedures embodied in those rules would be applied to cases in which trial commenced on or after September 1,1981. The instant case was tried before September 1,1981, and therefore Wilson v. Clark is inapplicable. Dr. Leestma testified that Dr. Westfall’s report was the type customarily and reasonably relied upon by experts in the field of pathology. We find that under the authority of People v. Ward the testimony of Dr. Leestma that he based his opinion as to Mohler’s cause of death in part on the report of Dr. Westfall was admissible as an exception to the hearsay rule. However, we find that this error was harmless because Dr. Westfall’s findings that Mohler died as a result of a heart attack was merely cumulative to Dr. Leestma’s independent opinion that Mohler’s death was caused by cardiac arrhythmia. Clemons v. Alton & Southern R.R. Co. (1977), 56 Ill. App. 3d 328, 370 N.E.2d 679.

Defendants’ second contention is that the trial court erred when it permitted decedent’s mother, Mrs. Mildred Mohler, to testify concerning a conversation she had with decedent. The testimony to which defendants object is as follows:

“[Plaintiff’s Attorney]: Q. Now, at any time between that time and the time of his death, did you observe anything unusual about Skip?
A. Well, he was just — he didn’t seem lively. He just seemed like he had something on his mind and he was just — he just wasn’t like the old Skip.
Q. Do you recall any specific incidents during that period of time?
A. Well, he was going out on the road one night. It was early afternoon and he came in and I had just put a strip of metal between the carpeting and the kitchen. I had some linoleum put in the kitchen, and I put the screws in and I couldn’t tighten them, so I said, ‘Skip, would you tighten those screws for me,’ and he took the screwdriver and he tightened all the screws and when he came up, why, he put his hands on his head and he said — I said, ‘What’s the matter?’ And he said, ‘Oh, that damned accident. Ever since then — ’.
[Defense attorney]: I object to this testimony.
[The Witness]: And I said, ‘Well, you better not go out on the road,’ and he said, ‘Well, I got to make this trip.’
The Court: Will you hold it, ma’am, just a minute? When a lawyer objects, that means I have to rule on that, so you—
[The Witness]: Oh.
The Court: —hold off any further conversation.
[The Witness]: Oh, fine.
The Court: Objection as to what has just transpired is overruled. It may stand.”

Defendants argue that decedent’s statements constituted hearsay and, therefore, were clearly inadmissible.

Statements regarding the cause of an injury or condition are inadmissible (Recklein v. Industrial Com. (1929), 337 Ill. 37,168 N.E. 671) unless made to a treating physician. (Jensen v. Elgin, Joliet & Eastern Ry. Co. (1962), 24 Ill. 2d 383, 182 N.E.2d 21; Shell Oil Co. v. Industrial Com. (1954), 2 Ill. 2d 590, 119 N.E.2d 224.) Therefore, decedent’s statements made to his mother regarding the cause of his physical condition were inadmissible hearsay. However, we do not find this error warrants a new trial in this case. “When an appellant alleges prejudicial error in the admission of inadmissible hearsay, he alleges the admission probably or substantially controlled the result. 5 Callaghan’s Illinois Evidence, 214 (1964).” (Mehochko v. Gold Seal Co. (1966), 66 Ill. App. 2d 54,58-59, 213 N.E.2d 581.) We cannot say that the error in admitting the decedent’s statements regarding the cause of his condition “probably or substantially controlled the result” in this case. Therefore, we find the error to be harmless.

Defendants’ final contention is that plaintiff engaged in improper argument at closing which was so prejudicial as to require a new trial. Defendants argue that during plaintiff’s rebuttal, plaintiff made arguments and inferences regarding Mohler’s injury report, Mrs. Mohler’s hearsay testimony, Mohler’s work assignment and time book and the testimony of the railroad’s brakeman Benoit and that none of these items of evidence were mentioned during plaintiff’s initial closing argument. Defendants also note that during rebuttal argument plaintiff’s counsel put before the jury for the first time “blow up” exhibits of pages in the time book which had not been introduced into evidence. The rule to be applied by the trial court was restated in Enloe v. Kirkwood (1970), 120 Ill. App. 2d 117, 256 N.E.2d 459, where the court stated:

“The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him. North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 29 N.E. 899. The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court is, therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, of a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld. City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322, 163 N.E. 17. 0 * 120 Ill. App. 2d 117,123.

Defendants themselves introduced the subject of Mohler’s injury report and Mohler’s work assignment and time book during their final argument. We note that defendants made no objection to the “damned accident” statement made by plaintiff in rebuttal. Furthermore, reference to the testimony of Benoit was proper rebuttal to the argument by defendants’ counsel that the injury was insignificant. Defendants’ objection to the use of the “blowup” exhibits was sustained, and plaintiff was precluded from using them. Under the circumstances of this case, we cannot say that the trial court abused its discretion. A new trial is not warranted here.

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

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants have filed a petition for rehearing contending that the harmless error doctrine was wrongfully applied with reference to the exclusion of Dr. Leestma’s testimony that he based his opinion as to Mohler’s death in part on the report of Dr. Westfall.

Plaintiff has filed a petition for modification of the opinion contending (1) that this court incorrectly applied People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, to the above-mentioned testimony of Dr. Leestma and (2) that defendants’ objection to the testimony of decedent’s mother was waived because not properly raised or presented.

With reference to defendants’ contention, we have carefully reexamined the record and find in it nothing to change our holding that the exclusion of Dr. Leestma’s testimony was harmless.

With reference to plaintiff’s contentions, we adhere to our application of the Ward case as to Dr. Leestma’s testimony and, with reference to the testimony of decedent’s mother, reaffirm our holding as to the harmless error in its admission, but agree with plaintiff that defendants’ objection to it as hearsay was not specifically or properly raised at trial or sufficiently preserved in their post trial motion. Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 179-80, 399 N.E.2d 606; Wilson v. Clark (1981), 84 Ill. 2d 186,189-190,417 N.E.2d 1322; Brown v. Decatur Memorial Hospital (1980), 83 Ill. 2d 344, 348-53, 415 N.E.2d 337.

Defendants’ petition for rehearing and plaintiff’s petition for modification of the opinion are denied.

GOLDBERG and McGLOON, JJ., concur.