author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE FALKNER, Defendant-Appellant.
    Second District
    No. 84—246
    Opinion filed February 27, 1985.
    Rehearing denied April 8, 1985.

      G. Joseph Weller and Robert Hirschhorn, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and William F. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Following a jury trial in the circuit court of Kane County on three counts of murder, defendant was convicted of the lesser offense of voluntary manslaughter (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2) and was sentenced to a 10-year term of imprisonment in the Department of Corrections. On appeal, defendant claims that the trial court erred in: (1) instructing the jury, over defendant’s objection, as to the lesser included offense of voluntary manslaughter where defendant had predicated his defense on the jury’s receiving no such compromise verdict; and (2) admitting evidence of the deceased’s surviving family and prior medical history and evidence of the defendant’s prior crimes or bad acts. We reverse.

On November 2, 1983, the deceased, 61-year-old Veo McGhee, went with his cousin, Larry McGhee, to their aunt’s (Lottie McGhee) house to discuss some bills which had not been paid to Lottie. Lottie ran a boarding house and rented out rooms to various individuals, including defendant. According to Larry McGhee, Veo had been taking care of Lottie’s bills. He became upset that her bills were not being paid and went to Lottie’s to talk with defendant about his failure to pay them. There was evidence that the deceased was intoxicated at the time he and his cousin went to Lottie’s.

When they arrived at Lottie’s, Larry waited while Veo went inside to talk with his aunt. Approximately 10 minutes later, defendant and another man, Micky Boyd, entered the house; several other men also came shortly thereafter. Veo “put them out” because they entered the house without knocking. Defendant was outside with Veo at that time, and the two men began arguing, although Larry McGhee could not hear exactly what was said. According to Larry, Veo was yelling. The two men then went back inside the house and Larry remained outside.

Ten to 15 minutes later, Larry became concerned and went inside to check up on Veo. After talking with Lottie for a few minutes, Larry heard Veo and defendant arguing again upstairs, although he could not understand what was being said. Larry then heard a scuffle upstairs which lasted about two minutes. When the scuffle ended, Larry went upstairs and saw defendant coming down the stairs, holding a bloody knife in his right hand; defendant’s sleeve and hand were also bloody. Defendant stated, “Veo shouldn’t have been *** with me.” He then continued downstairs with the knife.

Larry found Veo upstairs sliding down a hallway wall almost to the floor. Veo had blood on his face and shirt. Boyd was standing over Veo across the hallway and called to Larry to get an ambulance.

Paramedics were called to the scene but were unable to revive Veo, who died of stab wounds to his neck and left lower rib area. A search by police of the scene and of Veo’s clothing at the hospital revealed no weapon on or about Veo’s person. However, Officer Michael Perez did discover a bloody knife just north of Lottie’s house.

Several hours later, defendant was seen by police walking westbound towards the police station and Lottie’s house. He was placed under arrest and transported to the station, where he was processed. According to one of the arresting officers, defendant was “very intoxicated” at the time and could not even stand up.

The following morning, defendant was interrogated at the police station. After the Miranda rights were read to him, defendant gave a statement to police in which he admitted stabbing Veo McGhee. According to defendant, Veo came up to him and yelled that he (Veo) was taking over the house and that he wanted defendant out. Defendant stated that he would leave but could not take all his belongings with him at that time. Defendant then left the room, putting his knife in the waistband of his pants as he left. Defendant stated that when he reached the stairs, Veo again yelled to him, saying something to the effect, “Nigger, I’ll kill you.” At that point, defendant said that Veo placed his right hand into his right front pants pocket. Defendant thought Veo may have had a gun, so defendant took his knife and stabbed Veo. When asked how many times defendant had stabbed Veo, defendant stated “once,” although he “may have” stabbed him more than once, but “couldn’t remember.”

According to the statement, defendant then ran out of the house and down the street, throwing the knife away as he left. The knife was discovered where defendant said he had thrown it. Defendant went to his cousin’s house, where he continued to drink. Later he decided to turn himself in and was picked up on the way to the police station. Defendant also stated that Veo had threatened him in the past and that there were “indications” of a gun, although defendant had never seen Veo with a gun or carrying a gun. However, defendant said that Veo had told him in the past that he had a gun. Defendant identified the recovered knife as his own.

Cora Reid, Lottie’s sister and Veo’s aunt, testified that on several occasions when she would call Lottie, the phone was grabbed from Lottie’s hand and defendant got on and stated that if Veo came over, he would kill him. This happened approximately two days before Veo was killed. Lottie testified that she did not remember defendant ever taking the phone from her and threatening to kill Veo. However, Lottie was described by one State’s witness as being “senile.”

After hearing the evidence and arguments of counsel, the jury was instructed as to self-defense, murder and, over defendant’s objection, the lesser included offense of voluntary manslaughter. A guilty verdict was returned on the latter offense. Sentence was imposed and a timely appeal followed.

Defendant’s first contention is that the trial court erred in instructing the jury, over his objection, as to the lesser included offense of voluntary manslaughter where the defendant predicated his defense on the jury’s receiving no such compromise verdict. Defendant’s argument is, essentially, that he has the absolute “right” to determine whether the lesser offense of voluntary manslaughter should go to the jury, and that the trial court errs when it instructs the jury as to a lesser offense in the absence of a defendant’s consent or request. Defendant further argues that he had no notice that the State would seek a voluntary manslaughter instruction, and that his assumption that this theory would not be presented to the jury caused him to forego an intoxication defense, which he claims would have been effective against both the murder and voluntary manslaughter charges. The State, on the other hand, argues that it is entitled to an instruction on voluntary manslaughter (based on unreasonable belief) whenever the jury is also instructed on the theory of self-defense. We agree.

It is well settled in murder cases that if there is evidence which, if believed by the jury, would reduce the crime to manslaughter, an instruction defining manslaughter should be given. (People v. Lockett (1980), 82 Ill. 2d 546, 550, 413 N.E.2d 378.) Further, as a lesser included offense of murder, the offense of voluntary manslaughter need not be specifically alleged in the indictment, since an indictment for murder is deemed sufficient to apprise the defendant of all lesser included offenses. (People v. Simmons (1982), 93 Ill. 2d 94, 100, 442 N.E.2d 891; People v. Krogul (1983), 115 Ill. App. 3d 734, 735-36, 450 N.E.2d 20.) It is also well settled, however, that “ ‘if the evidence in a criminal case admits of but one conclusion, which is that the accused, if guilty at all, is guilty of the crime charged, it is error to give an instruction authorizing a conviction for a lesser offense [citations] ***.’ ” (People v. Rangel (1982), 104 Ill. App. 3d 695, 700, 432 N.E.2d 1141, quoting People v. Preston (1930), 341 Ill. 407, 420, 173 N.E. 383.) Thus, a defendant has a right to keep the jury from receiving instructions on lesser included offenses where, for example, the defense is alibi or mistaken identity. (People v. Rangel (1982), 104 Ill. App. 3d 695, 700, 432 N.E.2d 1141.) Similarly, in a homicide case, an instruction should not be given on the lesser included offense of voluntary manslaughter if the evidence clearly demonstrates that the crime was only murder and there is no evidence upon which a jury might find the defendant guilty of manslaughter. People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378.

In People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378, our supreme court held that if the evidence supports a self-defense instruction, it will also support a voluntary manslaughter instruction. A claim of self-defense exists where there is evidence that the accused reasonably believed his use of force was necessary in order to prevent imminent death or great bodily harm to himself (Ill. Rev. Stat. 1983, ch. 38, par. 7 — 1.) Thus, when the jury is given the self-defense instruction (see Illinois Pattern Jury Instructions (IPI), Criminal, No. 24 — 25.06 (2d ed. 1981)), it may conclude one of three things. First, it could conclude that the defendant did not have a subjective belief that use of force was necessary. In that case, the verdict should be murder. (People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378.) Second, it could determine that defendant had the subjective belief that use of force was necessary and that subjective belief was reasonable. In this case, defendant would be exonerated. Third, it could conclude that the defendant subjectively believed that use of force was necessary, but that this subjective belief was unreasonable under the circumstances. In this event, the jury should return a verdict of voluntary manslaughter (82 Ill. 2d 546, 552, 413 N.E.2d 378.) The only difference between a finding of self-defense and voluntary manslaughter lies in the reasonableness or unreasonableness of defendant’s subjective belief. Thus, the Lockett court concluded that a self-defense and a voluntary manslaughter instruction should be given when any evidence is presented showing that defendant had a subjective belief that use of force was necessary. (82 Ill. 2d 546, 552, 413 N.E.2d 378.) Further, the court held that it is the judge’s duty to determine if there was any evidence presented that the defendant had a subjective belief. (82 Ill. 2d 546, 553, 413 N.E.2d 378.) If the judge determines that such evidence was presented, the jury must then determine if the belief in fact existed, and, if so, whether that belief was reasonable or unreasonable. 82 Ill. 2d 546, 553, 413 N.E.2d 378.

Defendant argues that the foregoing rules apply only if he requests that the voluntary manslaughter instruction accompany the self-defense instruction, and not when such a request is made by the State. No authority is cited for this proposition. While our review of the relevant case law indicates that it is indeed the defendant who typically requests a voluntary manslaughter instruction (see, e.g., People v. O’Neal (1984), 104 Ill. 2d 399, 472 N.E.2d 441; People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378; People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756; People v. Manley (1982), 104 Ill. App. 3d 478, 432 N.E.2d 1103; People v. Glass (1981), 94 Ill. App. 3d 69, 418 N.E.2d 454), the rationale for requiring such an instruction whenever a self-defense instruction is also given is not that a defendant should have ultimate control over his case. Rather, we believe the rationale for requiring both instructions is that the jury should be fully and accurately instructed as to all the issues it is called upon to decide once the defendant has raised the issue of self-defense. Further, we believe that both parties have a right to request and receive a voluntary manslaughter instruction whenever a self-defense instruction is given.

This view finds support in several cases discussing a defendant’s alleged “right” to have the jury pass only upon his guilt or innocence of murder. In People v. Taylor (1967), 36 Ill. 2d 483, 488-89, 224 N.E.2d 266, the court stated, in dicta:

“To speak of the ‘right’ of a defendant to require the jury to pass only upon his guilt or innocence of murder is misleading. If a jury trial is waived, the judge determines from the evidence whether the defendant is guilty of murder or of some lesser included offense, and the defendant has no ‘right’ to restrict the judge’s determination to the question of his guilt or innocence of murder. (See, e.g. People v. Green, 23 Ill. 2d 584.) And if the evidence would support a verdict of manslaughter, a defendant will not be heard to complain that a manslaughter instruction was given, even though he did not request it. ***.
*** So it has been said, ‘The general statement contained in the cases, that a manslaughter instruction should be given where there is evidence justifying it, must be understood in the sense the duty exists when such instruction is offered by either side, when the circumstances justify it, ***.’ [Citation.]” (Emphasis added.)

The court concluded:

“When the evidence will support either charge and the prosecution does not tender an instruction on the lesser offense, the defendant has a choice, subject to the judge’s authority to instruct sue sponte [sic], of submitting one or both instructions.” (Emphasis added.) (36 Ill. 2d 483, 490, 224 N.E.2d 266.)

See also People v. Pierce (1972), 52 Ill. 2d 7, 11, 284 N.E.2d 279, finding no error in the trial court’s instructing the jury on voluntary manslaughter over defendant’s objection.

Pursuant to these authorities, it is evident that the trial court in the instant case did not err in instructing the jury, over defendant’s objection, as to the lesser included offense of voluntary manslaughter. The parties do not dispute, and our review of the record indicates, that there was evidence which would support a finding that defendant had a subjective belief that the use of force was necessary. Defendant’s statement to the police indicated that he stabbed the deceased only after he saw Veo reach into his pants pocket for what he believed was a gun. Veo was intoxicated and angry at the time of the incident, and defendant’s statement indicated not only that Veo had made prior threats to defendant, but also that there were “indications” that Veo possessed a gun. On the basis of this record, the trial court correctly concluded that there was some evidence that defendant had a subjective belief that the use of force was necessary. Accordingly, the court was required, upon defendant’s request, to submit the instruction on self-defense. (Cf. People v. Barnard (1984), 104 Ill. 2d 218, 231-32, 470 N.E.2d 1005 (where defendant did not request or desire a self-defense instruction).) This being the case, the question of the reasonableness of defendant’s belief was properly before the jury, which could either have concluded that the belief, if it in fact existed, was reasonable, and therefore that defendant’s actions were in self-defense, or that they were unreasonable, and therefore that the offense was voluntary manslaughter. (People v. Lockett (1980), 82 Ill. 2d 546, 553, 413 N.E.2d 378.) Under these circumstances, as stated in Taylor, the court has a duly to instruct the jury as to the lesser offense “ ‘when such instruction is offered by either side ***.’” People v. Taylor (1967), 36 Ill. 2d 483, 489, 224 N.E.2d 266.

Defendant’s next contention is that the trial court erred when it permitted the State to introduce, over defendant’s objection, evidence that the deceased lived with and cared for his 80-year-old uncle, that the deceased was in generally poor physical condition, and that the deceased was angry with the defendant over some allegedly unpaid bills.

With respect to evidence that Veo McGhee lived with and cared for his Uncle James, Lottie’s brother, the State concedes that this evidence was not particularly probative of the issues at trial. It, nevertheless, argues that its admission does not warrant reversal, citing the case of People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626, as support. We agree. In determining whether reversal is required, various factors should be considered, such as: (1) the sufficiency of the evidence against the defendant; (2) the severity of the sentence imposed; (3) whether the evidence was presented in such a manner as to cause the jury to believe it to be material; and, (4) whether the evidence was presented in an effort to relate it to the defendant’s punishment. (51 Ill. 2d 302, 306-08, 281 N.E.2d 626.) The court should also consider the desirability of affirming the conviction of an obviously guilty defendant and weigh this factor against the danger of deteriorating our procedural safeguards by ignoring their breach. 51 Ill. 2d 302, 308, 281 N.E.2d 626.

After reviewing these factors as they apply to the instant case, we conclude that the introduction of evidence that the deceased lived with and cared for his aged uncle was not reversible error. Notably, the defendant has not challenged the sufficiency of the evidence against him. In fact, there is ample evidence in the record to support defendant’s conviction for voluntary manslaughter. The sentence imposed here was only 10 years, well within the authorized range of penalties for voluntary manslaughter, a Class 1 felony. (See Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 2(c), 1005 — 8—1(4).) Further, the evidence was introduced through a series of only two questions posed by the State and was only momentarily referred to during closing argument to tie the deceased in with Lottie’s finances. Thus, it cannot be said that the evidence was presented in such a manner as to cause the jury to believe it to be material, or that it was presented in an effort to relate it to defendant’s punishment. Accordingly, on the basis of the factors outlined in the Wilson decision, the introduction of this evidence was not reversible error.

Similarly, we find no error in the admission of certain testimony to the effect that the deceased thought defendant was not paying his bills. Defendant characterizes this testimony as “prior crimes” or “bad acts” of the defendant which unduly prejudiced the outcome of the case. The challenged testimony was offered for the sole purpose of showing the state of mind of the victim when he went over to Lottie’s house on the day in question. The State argued that it was relevant on the question whether the victim went to the house in an aggressive manner to throw the defendant out or merely to talk with the defendant about his concern over unpaid bills. The court instructed the jury that the evidence should be considered only for this limited purpose. Further, evidence of a debtor-creditor relationship, even assuming the jury considered it as such, is not evidence of a crime, absent an indication of a criminal intent. Finally, both the prosecutor and defense counsel commented during closing argument that this evidence was only introduced to show the victim’s state of mind. Under these circumstances, we conclude that the introduction of this evidence was not error.

Finally, defendant challenges the admission of evidence regarding the decedent’s past medical history. This evidence was introduced through the testimony of the autopsy physician, who referred to a medical history prepared and compiled by another physician, who did not testify at trial. Defendant contends that this evidence was not responsive or relevant to the defendant’s theory of self-defense, i.e., that the decedent had a gun, and that the autopsy physician was not the “treating physician,” and thus the evidence was inadmissible hearsay.

Initially, it is clear that the challenged testimony was intended to have a bearing upon the reasonableness of the defendant’s belief that the use of force was necessary. Although defendant’s theory of the case was not that there was a physical altercation, but that the decedent had a gun, some evidence was introduced that there was a struggle, that the deceased was angry, intoxicated, and had made prior threats to the defendant. Given the fact that the State, at the time the evidence was introduced, did not know whether the defendant would also rely upon the evidence of a struggle, we believe the challenged testimony was relevant to the issue of the reasonableness of defendant’s belief.

However, we agree with the defendant, and the State apparently concedes, that this evidence was inadmissible hearsay not falling within the “treating physicians” exception to the hearsay rule. (See Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 1097, 410 N.E.2d 266; Messina v. Zody (1973), 13 Ill. App. 3d 566, 570, 300 N.E.2d 851; cf. People v. Gant (1974), 58 Ill. 2d 178, 185-86, 317 N.E.2d 564.) Although the State claims that the hearsay objection was waived, we do not agree with this contention. During argument on the challenged testimony, defense counsel stated: “Certainly I have one basis, and that being the fact that we’re not talking about treating physician, but relying on the records.” We believe this statement was sufficient to constitute an objection on the ground of hearsay and thus was not waived by defendant. The hearsay objection was also specifically alleged in defendant’s post-trial motion for a new trial.

It is generally held that where there is no reasonable possibility that a jury would have acquitted the defendant if the hearsay evidence had been excluded, admission of the evidence is harmless error. (People v. Griggs (1982), 104 Ill. App. 3d 527, 531, 432 N.E.2d 1176; People v. Hall (1980), 90 Ill. App. 3d 1073, 1077, 414 N.E.2d 201, cert, denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388.) In the instant case the only other evidence bearing upon the reasonableness of defendant’s belief was the fact that there were prior “indications” of a gun, that the decedent had made prior threats to the defendant, that there was a struggle, that the decedent was intoxicated and angry at the time of the incident, that the decedent reached into his pocket while saying, “Nigger, I’ll kill you,” that no gun was ever discovered, and that the defendant stabbed the decedent twice but could not remember the second time. We note that the challenged testimony spanned seven pages of trial transcript and was referred to in the prosecutor’s closing argument to negate any theory that the decedent was a physical threat to the defendant. Under these circumstances, we cannot determine the extent to which the jury considered the decedent’s allegedly “enfeebled” condition in passing upon the reasonableness of defendant’s belief that the use of force was necessary. We therefore conclude that the introduction of this testimony was not harmless error, and that the cause must be remanded for a new trial. See People v. Donaldson (1956), 8 Ill. 2d 510, 514, 134 N.E.2d 776; People v. Oden (1960), 20 Ill. 2d 470, 485,170 N.E.2d 582.

Accordingly, the judgment of the circuit court of Kane County is reversed and remanded for further proceedings.

Reversed and remanded.

NASH, P.J., and STROUSE, J., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    KATHLEEN CASEY et al., Plaintiffs-Appellees, v. DAVID BASEDEN et al., Defendants-Appellants.
    Fifth District
    No. 5—84—0259
    Opinion filed March 7, 1985.

      Michael F. Dahlen and Richard A. Green, both of Feirich, Schoen, Mager, Green & Associates, of Carbondale, for appellants.
    John Paul Womick & Associates, Chartered, of Carbondale, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

David Baseden and R. A. Williams, Inc., defendants, appeal from a judgment of the circuit court of Union County awarding Kathleen Casey, plaintiff, the sum of $140,000. The litigation between the parties resulted from an August 27, 1982, accident in which a truck driven by Baseden, an employee of R. A. Williams, Inc., struck the rear of plaintiff’s car. Following a jury trial, the jury assessed plaintiff’s damages at $200,000 and plaintiff’s comparative negligence at 30%. The trial court entered judgment on the verdict and denied defendants’ post-trial motion. On appeal, defendants raise numerous issues for our consideration. For the reasons which follow, we affirm the judgment of the circuit court.

Initially, defendants argue that four of the instructions given to the jury were erroneous. The first instruction challenged by defendants is plaintiff’s instruction No. 29, which stated:

“If you find for the plaintiffs on the issue of liability, and find that the plaintiffs have proven that they have sustained damages, then the defendants have the burden of proving that the plaintiff, Kay Casey, was contributorily negligent.”

Defendants contend that they do not have the burden of proving plaintiff’s contributory negligence, and that this instruction was erroneous. We disagree.

Prior to the adoption of the comparative negligence doctrine in Illinois, a plaintiff was required to establish that he had exercised due care for his own safety, and the absence of such a showing, or sufficient affirmative evidence of contributory negligence, was a complete bar to recovery. (Mueller v. Sangamo Construction Co. (1975), 61 Ill. 2d 441, 446, 338 N.E.2d 1.) In Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the case in which our supreme court adopted the comparative negligence doctrine, the court offered no opinion as to whether a plaintiff was still required to prove his freedom from contributory negligence or whether the burden of establishing a plaintiff’s contributory negligence rested now with the defendant. Subsequently, however, in discussing Mueller and other cases holding that a plaintiff must prove freedom from contributory negligence, the court stated that “Alvis v. Ribar has, of course, rendered these holdings obsolete.” (Long v. City of New Boston (1982), 91 Ill. 2d 456, 463, 440 N.E.2d 625.) In light of the court’s unequivocal rejection of these preAlvis holdings, we are unable to accept defendants’ argument that the burden of proving freedom from negligence continues to rest with plaintiff. On the contrary, we believe that the rationale for placing this burden on plaintiff no longer exists, and that the jury in this case was properly instructed.

The swift and universal acceptance of the contributory negligence doctrine during the nineteenth century has been attributed to a need to protect newly developing industries from juries overly sympathetic to injured plaintiffs. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 5-6, 421 N.E.2d 886.) Early in the judicial history of this State, our supreme court held that it was incumbent on the plaintiff in a negligence action to prove freedom from negligence on his part (Aurora Branch R.R. Co. v. Grimes (1852), 13 Ill. 585, 587); while the rationale for this holding was not expressed in Grimes, it seems clear that, in imposing an additional requirement on the plaintiff, the court furthered the policy of offering some degree of legal protection to railroads and other industries. While this may have been sound social policy at the time, the same considerations which prompted the adoption of comparative negligence support the conclusion that a plaintiff should no longer be required to plead and prove his own freedom from negligence. This was implicitly recognized as early as 1908, when the Federal Employers’ Liability Act (45 U.S.C. sec. 51 et seq.) was adopted; in cases tried under the Act, which recognizes the doctrine of comparative fault (45 U.S.C. sec. 53), the burden of establishing contributory negligence on the part of the plaintiff rests with the defendant (Fisher v. Chicago, Rock Island & Pacific Ry. Co. (1919), 290 Ill. 49, 56, 124 N.E. 831; see Illinois Pattern Jury Instructions (IPI), Civil, No. 160.10 (2d ed. 1971)). We see no reason why a similar rule should not be applied to ordinary negligence actions, as it is both logical and fair to hold that a defendant who stands to benefit from a showing that a plaintiff was contributorily negligent should have the burden of making that showing. Accordingly, we hold that the court did not err in giving plaintiff’s instruction No. 29. We note parenthetically that any error in giving this instruction was harmless, in view of the jury’s high apportionment of 30% negligence to plaintiff, whose car was struck in the rear by defendants’ truck, during daylight hours, while plaintiff’s car was stopped to make a left turn.

Defendants next contend that the court erred in giving the long form of IPI Civil No. 15.01. This instruction states:

“When I use the expression ‘proximate cause', I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.”

The court erred in giving the last two sentences of this instruction, as there was no evidence of any third party’s negligence. (Bass v. Washington-Kinney Co. (1983), 119 Ill. App. 3d 713, 722, 457 N.E.2d 85.) This error was harmless, however, as nothing in the verdict tends to suggest that the jury speculated as to possible additional causes of the accident, and there is nothing of record which would have operated to invite such speculation.

The next contention of defendants concerns the duty and agency instructions given to the jury. While defendants complain of the use of the word “himself” in the duty instruction (IPI Civil No. 70.01), claiming that it placed undue emphasis on the duty owed by the male defendant, this objection was not made at trial, and the issue is waived for purposes of review (Saunders v. Schultz (1960), 20 Ill. 2d 301, 314, 170 N.E.2d 163). As to agency, the court gave the following instruction (IPI Civil No. 50.01) at plaintiff’s request:

“The defendants are sued as principal and agent. The defendant, R. A. Williams, Inc., is the principal and the defendant, David Baseden, is its agent. If you find the defendant, David Baseden, is liable, then you must find that the defendant R. A. Williams, Inc., is also liable. However, if you find David Base-den is not liable, then you must find that R. A. Williams, Inc., is not liable.”

Over the objection of defendants, the court also gave IPI Civil No. 50.02:

“David Baseden was the agent of the defendant, R. A. Williams, Inc. at the time of this occurrence. Therefore, any act or omission of the agent at that time was in law the act or omission of the defendant, R. A. Williams, Inc.”

While defendants point out that the second instruction is largely repetitive of the first, we cannot say that reversible error occurred. It was undisputed that Baseden was in fact the agent of R. A. Williams, Inc., and the second reference to this agency relationship was not of such significance as to improperly sway the juror’s sympathies toward the plaintiffs and away from the corporate defendant. Under these circumstances, we cannot say that the giving of the second instruction, even if erroneous, was prejudicial to defendants.

The final instruction issue raised by defendants concerns two aspects of plaintiff’s instruction No. 24. The disputed parts of this instruction state:

“If you decide for the plaintiff, Kay Casey, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate her for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendants: * * *
C. The value of time and earnings lost and the present cash value of earnings reasonably certain to be lost in the future;
D. The reasonable expenses necessary for help in her home which were required as a result of her injury.”

While defendants assert that there was not sufficient evidence to justify the giving of these two sections of the instruction, examination of the record reveals otherwise. During direct examination, plaintiff testified as follows:

“Q. Let’s stay, if we can, just for a second, on the Goodyear Tire Store.
A. Okay.
Q. Had you reached an agreement with Carroll [plaintiff’s son] about how you were going to be paid?
A. No, it was oral:
Q. What was the oral agreement about how you were going to be paid?
* * *
A. He had said something about a hundred and seventy-five dollars a week, and he had asked me again, if that was enough, because I had done more work for him in my home, too.”

In order to recover lost earnings, all the law requires is that the plaintiff present evidence which will establish, with a fair degree of probability, a basis for the assessment of damages. (Tracy v. Village of Lombard (1983), 116 Ill. App. 3d 563, 575, 451 N.E.2d 992.) Plaintiff’s testimony regarding her plans to work at the tire store, if believed by the jury, was sufficient to meet this test. Defendants’ contention regarding the portion of the instruction concerning expenses related to help in the home is also without merit, as plaintiff testified that she employed a housekeeper for about 21 days and paid her “around” $25 or $30 per day.

In addition to the alleged errors in jury instructions, defendants raise three additional issues for our consideration. First, defendants claim that the court erred in excusing, without interrogation, nine prospective jurors who were insured by Country Companies, the company which served as defendants’ insurance carrier. It has been specifically held that this procedure does not constitute reversible error (Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 30, 418 N.E.2d 421), and we believe that the reasoning of Lynch applies with equal force here. While defendants also allege that the court erred in not allowing them to recross-examine plaintiff’s medical expert regarding certain diagnostic tests performed on plaintiff, it is well settled that the scope and extent of cross and re-cross-examination are within the discretion of the court (Johns-Manville Products Corf. v. Industrial Com. (1979), 78 Ill. 2d 171, 181, 399 N.E.2d 606), and we cannot say that the court abused that discretion here. Finally, defendants contend that the verdict is excessive. The evidence adduced at trial, however, showed that plaintiff suffered dizziness, muscle aches, headaches and periods of depression, that she was unable to work or drive a car, and that her injuries were of a permanent nature. In determining whether a verdict is excessive, we must analyze whether that verdict falls within the flexible limits of fair and reasonable compensation, or is so large as to shock the judicial conscience. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1030, 343 N.E.2d 65.) Upon application of this test to the instant case, we cannot say that the verdict is excessive.

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

Affirmed.

JONES, P.J., and WELCH, J., concur.


author: JUSTICE SCOTT

text:
    GERALD L. DAUGHTERS, Plaintiff and Counterdefendant-Appellee, v. JULIUS J. PRESTON, JR., et al., Defendants and Counterplaintiffs-Appellants.
    Third District
    No. 3—84—0395
    Opinion filed March 12,1985.
    Rehearing denied April 19, 1985.
    Edward C. Moehle, of Moehle, Swearingen & Day, Ltd., of Pekin, for appellants.

      James D. Reynolds & Associates, of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

Gerald L. Daughters filed this action in the circuit court of Tazewell County to quiet title to 14 acres of real estate which he purchased in November of 1980. The defendants, Julius and Bernadine Preston, and Richard and Wilma Mudd, answered Daughters’ complaint, alleging that they had been in possession of the premises for some 20 years prior to the purchase by Daughters. In addition, the defendants filed a countercomplaint against Daughters, affirmatively seeking to quiet their alleged title to the disputed tract. Upon the completion of a bench trial in the circuit court, a judgment was entered granting the relief prayed for by the plaintiff, Daughters. This appeal by the defendants followed.

The title history necessary to understand the factual basis for this dispute dates back at least as far as 1955. In that year, the defendants, Prestons, first acquired title to a lot on Fischer Road in Groveland Township of Tazewell County. Fischer Road runs east and west, and the “1955 lot” has 50 feet of road frontage and is 245 feet deep. In August 1958, the Prestons acquired a deed to a second lot on Fischer Road, this “1958 lot” being immediately to the west of the “1955 lot” and also being 50 feet east and west and 245 feet north and south.

On the same date, the Prestons acquired a deed to a one-acre parcel of land lying immediately north of the two lots previously described. Included in the legal description on the deed to the “1958 acre” is a 30-foot wide strip of land lying just north of the westerly extension of the northern boundary of the “1958 lot” and just west of the northerly extension of the western boundary of the “1958 lot.” This deed to the “1958 acre,” although delivered and dated August 2, 1958, was not recorded until a later date.

In 1960, the Prestons entered into a contract to purchase a strip of land 30 feet wide and lying immediately west of the western boundary of the “1958 lot.” A deed to this strip was acquired in 1966. The “1966 strip” is immediately south of the 30-foot strip described in the deed to the “1958 acre.” Again, this deed to the “1966 strip,” although delivered and dated December 7, 1966, was not recorded until a later date. On the same date, the Prestons executed and delivered a deed to the defendants, Mudds, which deed described and purported to convey the west 10 feet of the “1966 strip.” This deed, too, was not immediately recorded.

On November 20, 1980, the plaintiff, Daughters, received a deed to a 14-acre parcel immediately north of and adjacent to the land described in the deed to the “1958 acre.” The legal description in the Daughters deed included the 30-foot strip described in the deed to Prestons of the “1958 acre” and the entire length of the “1966 strip,” excepting therefrom the 10-foot strip described in the conveyance from Prestons to Mudds. It seems that a predecessor in title common to both the Prestons and Daughters, one Fred H. Milhahn, had conveyed the same 30-foot wide parcel twice, in 1958 and 1966, to the Prestons and in 1968 to Daughters’ grantor.

According to the plaintiff, Daughters, he discovered the Prestons’ claims to the disputed tract before he recorded his deed, but after acquiring same, and he talked to the Prestons and the Mudds to advise them of the situation. This prompted the Prestons to record the deeds they had previously received, and according to the recording information which appears on the face of the instruments, the deed to the “1966 strip” was recorded by the Tazewell County Recorder at 9:23 a.m. on November 24, 1980, and the deed to the “1958 acre” was recorded at 9:24 a.m. the same day. The Daughters deed, which included the disputed tract, was not recorded until 10:38 a.m. on the same November day.

At the trial of this cause in the circuit court, the plaintiff contended that he was a subsequent purchaser, i.e., that he purchased the disputed tract in 1980 subsequent to the Prestons’ purchases in 1958 and 1966, and that he did not have notice of the Prestons’ interest in the disputed tract. In asserting that he had paramount title to the disputed tract, Daughters relied on a section of “An Act concerning conveyances” which provides:

“All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record.” Ill. Rev. Stat. 1983, ch. 30, par. 29.

Daughters argues that at the time he purchased and received his deed, on November 20, 1980, the Prestons’ deeds were not filed for record, and therefore he was a subsequent purchaser and the claim of the Pres-tons, as represented by their deeds executed in 1958 and 1966, was void vis-a-vis his subsequent deed. In answer to this position, the Pres-tons and the Mudds presented evidence that Daughters had actual notice of their claim to the disputed strip, that they had perfected title to the property by reason of their continuous, hostile or adverse, actual, open and notorious and exclusive possession of the premises for 20 years (Ill. Rev. Stat. 1981, ch. 83, par. 1), and that they had perfected title to the property by reason of their possession of the premises and payment of taxes thereon for seven years (Ill. Rev. Stat. 1981, ch. 83, par. 6). There was, indeed, substantial evidence heard by the circuit court which supported the defendants’ position. There was considerable testimony that the plaintiff knew, or should have known, that the defendants were in actual possession of and made claim to the disputed tract. There was significant testimony concerning the acts of dominion and control that the defendants exercised over the property for a period of 20 years. Finally, the records of the Tazewell County treasurer supported the defendants’ contention that they had paid the taxes assessed on the premises for a period in excess of seven years. Nevertheless, the circuit court, weighing all the evidence, concluded that none of the affirmative matters proffered by the defendants was proved by a preponderance of the evidence. Accordingly, holding that the plaintiff was a subsequent purchaser without notice of the defendants’ claims, the trial judge entered a judgment for Daughters.

In his brief filed before this court, the plaintiff, Daughters, asserts that “[t]he critical time for determining whether the plaintiff was in fact a bona fide purchaser for value and without notice was the time he acquired his deed, not the time he recorded it.” (Emphasis in original.) It is apparent from the judgment rendered below that the trial judge held this same view. We believe the decisions of the reviewing courts of this State have taken a contrary position.

In a decision affirming the decree of the circuit court of Hancock County, wherein Stephen A. Douglas was the trial judge, the Illinois Supreme Court discussed this contrary position. The discussion occurred in the context of resolving a dispute over the ownership of lands located in Hancock County. It seems that Joseph B. Teas entered into an agreement for deed with James Doyle, and subsequently Teas executed and delivered a deed to the same premises to Charles Munson. In determining whether Munson had record notice of the prior agreement for deed, the court observed:

“The agreement of [Teas and Doyle] is dated the 23d of May, and is recorded on the 19th of June, 1835. Intermediate the date and recording of this agreement, on the 26th of May, the deed to Munson is dated, but it was not recorded till the 26th of June, seven days after the agreement was recorded. As the effect of a compliance with the recording act was to operate as constructive notice to all the world, that the object is as much accomplished by the recording of an agreement as of a deed. What then would have been the effect on Munson’s title, had Doyle received a deed with date and record the same as the agreement? Beyond all doubt, his deed being prior in date, and first on record, and bona fide, must take precedence of one subsequent in date and subsequently placed on record. The word subsequent, as used in the recording act, must have reference to the recording, and not to the date of the instrument, and such indeed is its literal and grammatical construction. As between the grantor and grantee, the transaction is complete upon the execution and delivery of the deed; but as between the grantee and third persons, without notice, the purchase may be said not to be complete till the title paper is left for record. So here, as between Teas and Doyle, the purchase was complete such as it was, upon the execution and delivery of the agreement, but as to third persons it was not complete, until the 19th of June, when the record was made; and by the same rule Munson’s purchase was not complete till the 26th, seven days after. As Doyle completed his purchase, such as it was, first, he must be entitled to the benefit of his superior vigilance and earlier date.” Doyle v. Teas (1843), 5 Ill. (4 Scam.) 202, 252-53.

The rule set forth in the Doyle case has been subsequently followed in other decisions. Reed v. Kemp (1855), 16 Ill. 445; Montague & Co. v. Aygarn (1911), 164 Ill. App. 596.

Applying the Doyle rule to the facts of the instant case, it is apparent that as between Daughters and his grantor, the transaction was complete upon execution and delivery of the deed on November 20, 1980; but as between Daughters and third persons, without notice, the purchase was not complete until the deed was left for record. The transactions between Prestons and their grantors were complete as to third persons on November 24, 1980, at 9:23 and 9:24 a.m., when the record was made. As the Prestons completed their purchase first, albeit only by one hour, they must be entitled to the benefit of their superior vigilance and earlier date. The strip of land deeded to the Mudds was specifically excepted from the Daughters’ deed, and it follows that Daughters has no claim to title thereto.

Based on the preceding analysis, we conclude that the decision reached by the circuit court was incorrect, and must be reversed.

Reversed.

STOUDER and WOMBACHER, JJ., concur.


author: JUSTICE KASSERMAN JUSTICE HARRISON,

text:
    ROBERT KERN et al., d/b/a Belleville General Contracting, Plaintiff-Appellee, v. JAMES F. RAFFERTY et al., Defendants-Appellants.
    Fifth District
    No. 5—83—0770
    Opinion filed March 7, 1985.
    Rehearing denied April 10, 1985.

      HARRISON, J., dissenting.
    David Ulkus, of Fleming & Fleming, of O’Fallon, for appellants.
    Storment & Read, of Belleville, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendants appeal from a judgment entered against them by the circuit court of St. Clair County in the amount of $4,902.72 on plaintiff’s suit to recover additional compensation for extras on a building and construction contract. Defendants raise two issues on appeal, namely: (1) whether the judgment is against the manifest weight of the evidence; and (2) whether the trial court improperly admitted plaintiffs’ exhibit No. 16 into evidence over defendants’ hearsay objection.

The dispute in this case involves an 8-foot by 47-foot room addition to defendants’ home which was built by the plaintiffs. The plaintiffs filed suit, contending that defendants owe them $8,269.21 for extra work they performed at defendants’ home. Defendants filed a counterclaim in the amount of $5,000, alleging there were numerous defects in the work done by the plaintiffs, such as leaks, bad wiring and poor carpentry.

The contract between the parties was oral, and the parties dispute its terms. Plaintiffs’ exhibit No. 13 and plaintiffs’ exhibit No. 13A represent memoranda of the parties’ differing positions as to the terms of the oral contract. Plaintiffs’ exhibit No. 13, which represents plaintiffs’ version of the contract, is an unsigned written proposal from the plaintiffs to the defendants for an 8-foot by 47-foot room addition to the rear of defendants’ home for the price of $12,500. This proposal specifically excluded interior and exterior painting, floor coverings, taping and mudding, heating or air conditioning, baseboard or trim, plumbing fixtures, electrical fixtures, extra electrical circuits, and underlayment material. Plaintiffs’ exhibit No. 13A, which represents the defendants’ version of the contract, is the same as exhibit No. 13 except for five additional items pencilled in by the defendants. Defendants allege, and plaintiffs deny, that plaintiffs agreed to these additions as part of the original contract.

It is conceded that defendants paid plaintiffs $12,500 on the original contract, plus an additional $3,800 for extra materials and fixtures which were admittedly authorized by the defendants. The dispute centers on plaintiffs’ claim for extra compensation set forth in plaintiffs’ exhibit No. 16, a six-page bill prepared by plaintiffs and sent to defendants, consisting of numerous itemized charges for work total-ling $8,269.21 which plaintiffs contend was in addition to the original contract. Defendants admit that all the work set forth on plaintiffs’ exhibit No. 16 was done by the plaintiffs; and, although they dispute the number of hours set forth on that bill, defendants do not dispute the hourly charge ($22.50). It is defendants’ contention that plaintiffs’ extra charges reflected in plaintiffs’ exhibit No. 16 do not represent additional work but rather are a duplication of charges for work which plaintiffs were already obligated to perform under the original contract. Plaintiffs deny this, claiming that plaintiffs’ exhibit No. 16 represents, in the most part, labor charges for the installation of the extra materials and fixtures which were admittedly authorized and for which plaintiff was paid $3,800 by the defendants. Defendants, on the other hand, contend that the $3,800 in extras which they ordered were primarily a substitution of better quality materials for what plaintiffs agreed to build or install under the original contract and that it should not take any longer to install a better quality item than a less expensive one. Defendants urge that, while they agreed to pay for the extra materials, they did not agree to pay for any extra labor. Defendants state further that while certain materials and fixtures were excluded under the contract, nothing was said about excluding labor for installation of these materials and fixtures. With respect to their counterclaim, defendants presented testimony and photographs in support of their contention that plaintiffs’ work was defective; however, they presented no evidence to the trial court establishing the cost of repairing the alleged defective work.

The trial court entered judgment against the defendants in the amount of $4,902.72. No findings of fact or explanations as to how this figure was reached were made by the trial court.

Defendants’ first contention on appeal is that the judgment is against the manifest weight of the evidence because the plaintiffs did not meet the burden of proof necessary to entitle them to additional compensation for alleged extra work. In this regard, the law assigns to the contractor seeking to recover for “extras” the burden of proving that (1) the work was outside the scope of the contract promises; (2) the extra items were ordered by the owner; (3) the owner agreed to pay, either expressly or by his conduct; (4) the extras were not furnished by the contractor as his voluntary act; and (5) the extra items were not rendered necessary by any fault of the contractor. (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 389-90, 226 N.E.2d 270, 276.) The proof must be by clear and convincing evidence that the items are extra and that the owner ordered them as such and agreed to pay for them. 79 Ill. App. 2d 377, 389-90, 226 N.E.2d 270, 276.

It is the duty of this court to determine on review whether the evidence supports the trial court’s finding. When a trial court fails to make detailed findings of fact, as in the instant case, this court must presume that the trial court found all issues and controverted facts in favor of the prevailing party. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 452 N.E.2d 804.) The conflicting testimony of plaintiffs and defendants required resolution of a credibility issue and the trial court apparently accepted the plaintiffs’, testimony. The trial judge, as the trier of fact in this case, is in a position superior to a court of review to determine credibility. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E .2d 624.) We will not overturn that determination barring a record clearly contrary to the trial court's finding. Pensgard v. Powers (1972), 8 Ill. App. 3d 646, 290 N.E .2d 642.

Our review of the record in the instant case indicates that, irrespective of which version of the evidence the trial court accepted as the contract (exhibit No. 13 or exhibit No. 13A), there was sufficient evidence to support the trial court’s ruling, and it cannot be said as a matter of law that the court’s judgment was against the manifest weight of the evidence. The record reflects that defendants ordered and agreed to pay for numerous extras outside the contract, namely, extra wiring, a sliding pocket door instead of a regular door, a pantry in the kitchen, a skylight in the kitchen, finish work and trim work around windows, the removal of the old bathroom floor, a bathroom door, a new roof on the front of the house, and a special tub. Although both parties agree that the kitchen floor underlayment was specifically excluded under the original contract, defendants contend that the labor charge for its installation was not. Thus, while admitting that the underlayment material itself was an extra, which they agreed to pay for, defendants claim the 16-hour labor charge for its installation was not an extra. However, the record fails to support this. It appears that the majority of plaintiffs’ charges for extra work set forth in plaintiffs’ exhibit No. 16 are labor charges relating to the installation of the $3,800 in extra materials and fixtures admittedly authorized by the defendants. We conclude that the plaintiffs did not agree to furnish the labor for the installation or construction of the $3,800 in extras free of charge. Further, the record fails to support defendants’ contention that plaintiffs’ exhibit No. 16 is a duplication of charges for work plaintiffs were already obligated to perform under the original contract. While there are some duplications, we find that the trial court made adjustments for this in its judgment. We further find that in spite of the fact that no evidence was presented to the trial court by the defendants in support of their counterclaim which would establish the cost of repairing the alleged defective work of the plaintiffs, the trial court made allowances for this in reaching the amount it awarded to the plaintiffs. We find that plaintiffs met the burden of proof necessary to entitle them to the money judgment they received and that the judgment is not against the manifest weight of the evidence.

Turning to defendants’ second assignment of error, defendants contend that the trial court improperly admitted plaintiffs’ exhibit No. 16 into evidence. Plaintiffs’ exhibit No. 16 is the six-page itemized bill in dispute, which the plaintiffs relied upon for the purpose of showing the extra work which they claim to have done for the defendants. The bill was prepared by Mr. Kern, one of the plaintiffs, who testified that the itemized charges on the bill were taken from weekly and daily records that were prepared at the job site. He testified that he prepared the bill about a month after completing the job, although the defendant, James Rafferty, testified he did not receive the bill until six months later. The defendants assert that the bill is hearsay that could only be admissible as a business record pursuant to Supreme Court Rule 236 and that plaintiffs failed to lay a proper foundation for its admissibility.

Supreme Court Rule 236 provides that a writing “shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. ***” (87 Ill. 2d R. 236.) We find that plaintiffs’ exhibit No. 16 was properly admitted into evidence by the trial court as a business record. We further find that even if plaintiffs’ exhibit No. 16 was not admissible as a business record, it would be admissible under past recollection recorded. See Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 248 N.E.2d 679.

For the reasons stated above, we affirm the decision of the circuit court of St. Clair County.

Affirmed.

EARNS, J., concurs.

JUSTICE HARRISON,

dissenting:

I respectfully dissent, because I agree with defendants’ contention that plaintiffs’ exhibit No. 16 was hearsay and improperly admitted in evidence. Plaintiffs’ exhibit No. 16 was merely a bill prepared by plaintiffs showing charges for extra work. As the majority indicates, this bill was prepared by Mr. Kern, who testified that the charges on the bill were taken from weekly and daily records that were prepared on the job site. He testified that he prepared the bill a month after completing the job. This court has recently ruled in A.J. Davinroy Plumbing & Heating v. Finis P. Ernst, Inc. (1980), 87 Ill. App. 3d 1047, 409 N.E.2d 372, that such a cost summary is not admissible as a business record.

Under Supreme Court Rule 236 (87 Ill. 2d R. 236), for a writing or record to be admissible as evidence of the occurrence of the work in question, it must be shown that such writing or record was made in the regular course of business and that it was in the regular course of business to make such record at the time of the occurrence or within a reasonable time thereafter. The bill in the case sub judice does not meet these requirements, because it was not shown to have been made in the regular course of business and it was not shown to have been made at the time of the occurrence or within a reasonable time thereafter. In fact, the bill was shown not to be a record of original entries but a compilation made from original entries.

Also, the bill could not properly be admitted as a past recollection recorded. When a witness testifies that he has made a report or memorandum of the occurrence at or near the time of its happening, but upon examination of the writing he has no independent recollection of the matter contained thereon except he knows that it is correct, then such a report is admissible in evidence. (Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 11, 248 N.E.2d 679.) There was simply no proper foundation for a past recollection recorded made in this case.

Since plaintiffs relied on plaintiffs’ exhibit No. 16, the bill, to show the extra work which they claim to have done and have failed to introduce any evidence as to its preparation and correctness other than inadmissible hearsay, the bill was not admissible in evidence. Therefore, I would reverse this cause and remand for a new trial.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT GOODSON, Defendant-Appellant.
    Fifth District
    No. 5—82—0301
    Opinion filed March 1, 1985.

      Randy E. Blue and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Robert Goodson, was charged by information with three counts of exploitation of a child. (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 19.2.) Defendant was found guilty after a jury trial in the circuit court of Madison County and was sentenced to a 10-year term of imprisonment on each count, those sentences to be served concurrently. Defendant has perfected this appeal.

To our knowledge, this is the first appeal to involve this statute. Effective August 26, 1981, section 11 — 19.2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 19.2) provides as follows:

“Exploitation of a Child. (A) A person commits exploitation of a child when he or she confines a child under the age of 16 against his or her will by the infliction or threat of imminent infliction of. great bodily harm, permanent disability or disfigurement or by administering to the child without his or her consent or by threat or deception and for other than medical purposes, any alcoholic intoxicant or a drug as defined in the Controlled Substances Act or the Cannabis Control Act and:
(1) Compels the child to become a prostitute; or
(2) Arranges a situation in which the child may practice prostitution; or
(3) Receives money or other property from the child knowing it was obtained in whole or in part from the practice of prostitution.
(B) For purposes of this Section, administering drugs, as defined in Subsection (A), or an alcoholic intoxicant to a child under the age of 13 shall be deemed to be without consent if such administering is done without the consent of the parents or legal guardian.
(C) Exploitation of a child is a Class X felony.”

On appeal, defendant contends that: (1) there was no evidence that the victim was confined, (2) the circuit court improperly instructed the jury as to the definition of “confine,” (3) the circuit court abused its discretion by refusing to order a psychiatric examination of the victim, and (4) the circuit court abused its discretion by denying defense counsel’s motion for continuance.

The evidence adduced at trial indicates that during September 1981, the victim, a female who was then 13 years of age, ran away from her Philadelphia, Pennsylvania, home and eventually resided with defendant in his apartment in St. Louis, Missouri. While living with defendant, the victim and several other females also living in defendant’s apartment engaged in the practice of prostitution. The victim received instructions from defendant and the other females living in the apartment. In particular, she was told to use an alias and to lie about her age. She was instructed as to how to solicit, how much to charge, what sexual acts to perform, how much she was required to bring in each night and what to say or not to say in case of arrest. Defendant would transport the victim along with the other females to one of several truck stops in both Illinois and Missouri, where the females would solicit truck drivers. Defendant would monitor the actions of the females by listening to them solicit over the CB radio or by making unannounced stops at the truck stops where they were supposed to be working. At the night’s end the females would return to the apartment with defendant or would hitch a ride back to the apartment with a truck driver. The victim gave the money she obtained from her prostitution to defendant, who provided her with room and board and some personal items for which she paid nothing. There was, however, testimony that defendant bought the victim a pair of boots and that in return the victim was expected to work and bring in an additional amount equal to twice the value of the boots.

The victim’s first night out was September 24, 1981. On that night she persuaded a truck driver to take her to Oklahoma with him. However, before they were able to leave she was found by one of the other females and was persuaded to return when she was told that another of the females had been beaten for returning without the victim. She worked every night until the middle of November, when she left with a truck driver. Thereafter, on November 21, 1981, the victim was arrested for being a runaway by authorities in Columbus, Indiana. She was temporarily placed in a foster home and was to be returned to her home in Philadelphia, Pennsylvania. The evidence indicated that the victim did not want to return home, so she escaped and returned to defendant.

Once she returned, the victim was sent back to solicit for and engage in prostitution at truck stops in both Illinois and Missouri. Shortly after her return, the victim again attempted to leave. However, she was again persuaded not to go; but on this occasion she was beaten by the defendant’s brother when she was found. The victim testified that on this occasion the defendant threatened to kill her. The victim further testified that she was beaten on three subsequent occasions, once by defendant when he was attempting to get information from her about another female withholding money from defendant and at another time when the victim didn’t bring in as much money as defendant wanted. On this last mentioned occasion defendant also had one of the other females beat the victim. The victim stated that she was beaten once more by defendant after she had entered a restaurant at one of the truck stops against defendant’s instructions. Shortly after this last beating, on December 31, 1981, the victim left the defendant’s apartment while everyone else there was asleep and was taken into the protective custody of authorities in Madison County, Illinois.

The victim testified that defendant told her that nobody ever leaves him and that if she ever left him she would be sorry. The victim recalled an incident where one of the other females had attempted to leave with a truck driver and the defendant had forced the driver to pull over by threatening to shoot the truck’s tires. That same female had shown the victim a gunshot wound the woman claimed she received when the defendant shot her. Another witness testified that the defendant kept a gun beside his bed in the apartment and would use it to keep the women in line.

Defendant contends that the evidence adduced at his trial demonstrates that the victim was allowed great freedom of movement and was therefore not confined in a manner prohibited by the statute. We are therefore requested to determine the meaning of the term “confine.”

Statutes, such as the one upon which the instant conviction is based, being designed to protect youth as well as punish offenders, should be construed to embrace those offenses contemplated by the legislature. This does not mean, however, that the courts should stretch the meaning of a statute to embrace other offenses not within its letter or spirit. (Acme Fireworks Corp. v. Bibb (1955), 6 Ill. 2d 112, 119, 126 N.E.2d 688, 692; Slocum v. People (1878), 90 Ill. 274, 278.) For the proper administration of the criminal law, the statutes should be applied only to those cases which the legislature evidently intended to include. (People v. Jones (1981), 99 Ill. App. 3d 882, 887, 425 N.E.2d 1279, 1282.) More simply stated, in the interpretation and construction of statutes, the intention of the legislature should be ascertained and given effect. “This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction.” (Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585, 587, quoting Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, 167 N.E.2d 169, 173.) The language of the statute should be given its plain and ordinary meaning. People v. Moore (1978), 69 Ill. 2d 520, 523, 372 N.E.2d 666, 668.

Defendant urges that the plain and ordinary meaning of the word “confine” is imprisoned, physically restrained or restricted in movement. We conclude that it was not the legislative intention to so limit the statute. Defendant’s definitions overlook the remaining balance of the statutory language which must all be considered if we are to properly ascertain the intent of the legislature. Confinement of a child is but one of the two elements of the offense of exploitation of a child. The remaining element is present when it is established that defendant either (1) compelled the child to become a prostitute, (2) arranged a situation in which a child may practice prostitution, or (3) received from the child the proceeds obtained by the child from prostitution. (Ill. Rev. Stat. 1983, ch. 38, pars. 11 — 19.2(A)(1), (2) and (3).) Obviously, imprisonment or physical restraint is not necessary in order for any of these prohibited activities to be accomplished. We conclude, therefore, that to be held accountable for the confinement proscribed by the statute, the interference with the victim’s free locomotion need not be absolutely restricted, as suggested by defendant. We are of the opinion that to constitute the confinement proscribed by the exploitation of child statute it must be shown that the child submitted against the child’s will or inclination to the control of the accused so that the accused was able to accomplish any of the prohibited activities. The offense is distinguished from that of juvenile pimping (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 19.1) by the fact that the child’s submission in the case at bar must have been brought about by the type of conduct specified by the statute, as for example in this case, by the infliction or threat of imminent infliction of great bodily harm.

When we consider the evidence adduced in the instant case in the light of the statute as interpreted above, we find sufficient proof of confinement against the child’s will as required by the statute. The victim was compelled to stay with defendant by threats of imminent infliction of great bodily harm, was made to engage in prostitution, was transported by defendant to those places where she was to practice prostitution, and was compelled to turn over the money obtained therefrom to defendant. To require that the situation be any more aggravated at the peril of the child would defeat the intended purpose of the statute.

Defendant contends that an instruction defining the term “confine” tendered by the State was erroneously given to the jury. The Illinois Pattern Jury Instructions, Criminal, do not contain instructions applicable to the offense of exploitation of a child. Accordingly, instructions were prepared by counsel. Supreme Court Rule 451 (87 Ill. 2d R. 451) provides that whenever IPI Criminal does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction thus given should be simple, brief, impartial and free from argument. The decision on whether to give such an instruction is within the scope of the circuit court’s discretion. (People v. Finley (1977), 49 Ill. App. 3d 26, 29, 363 N.E.2d 871, 874.) The instruction given stated:

“When I use the word ‘confine’ I mean that [the victim] reasonably believed, under all of the circumstances, that she was not free to absent herself or depart from any place or area designated by the defendant, and that such belief was caused or induced by the defendant’s use of force or threat of force.”

We believe the instructions given, taken as a whole, fully and fairly defined the applicable law in substantial conformity with the views herein expressed and under the circumstances did not cause prejudice to the defendant.

Defendant also contends that the circuit court abused its discretion in denying his pretrial motion to order a psychiatric examination of the victim to ascertain if she had a mental or emotional condition that would affect her competency or credibility. A defendant must present a compelling reason for a psychiatric examination of a complaining witness in a case involving a sex offense, and the denial of such a motion is not grounds for reversal unless the circuit court abused its discretion. (People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367; People v. Alexander (1983), 116 Ill. App. 3d 855, 862, 452 N.E.2d 591, 595.) Defendant’s assertion that the victim might be suffering from psychological problems is but conjecture based on the fact that the victim was a runaway. Psychological problems do not necessarily affect competency to testify. (People v. Middleton (1976), 38 Ill. App. 3d 984, 991, 350 N.E.2d 223, 229.) The mere likelihood thereof does not provide a compelling reason to order the psychiatric examination of the victim. The circuit court did not abuse its discretion in denying defendant’s motion.

We likewise find without merit defendant’s argument that the circuit court abused its discretion in denying his motion for continuance. A chronological review of the pretrial proceedings demonstrates no abuse.

Defendant was originally charged with two counts of juvenile pimping and three counts of exploitation of a child. The juvenile pimping counts were contained in an information filed January 13, 1982. That action was assigned No. 82 — CF—23. The exploitation of a child counts were contained in an information filed January 21, 1982. That action was assigned No. 82 — CF—44. The defendant was arraigned on all five counts on January 29, 1982, at which time he pleaded not guilty. Both cases were placed on the docket call for February 25, 1982. The report of proceedings from that hearing indicates that the trial date was set for March 5, 1982. However, the record sheets in both cases indicate that trial was set for March 1, 1982. For some reason that does not appear of record, the trial was not held on either of those dates. The next recorded proceedings was the March 17, 1982, hearing on the defendant’s motion for psychiatric examination. The report of proceedings from that hearing indicates that on the basis of an earlier motion for continuance by the defense, the trial date had been reset to March 22, 1982. Despite the fact that the trial dates for both cases had always been kept the same and that pretrial proceedings in both cases had been conducted simultaneously, defense counsel was allegedly under the impression that the trial of the juvenile pimping counts would precede the trial of the exploitation of a child counts. In an apparent attempt to clarify matters, the State sought an order consolidating the two cases for trial. The circuit court granted the State’s motion and consolidated the two cases for trial on March 22, 1982. Claiming that more time was needed to prepare for trial of the exploitation of a child counts, defense counsel moved for another continuance which the circuit court denied.

The decision of whether or not to grant a continuance to permit further time to prepare a case necessarily depends upon the facts surrounding the request. Such a decision is left to the sound discretion of the circuit court. (People v. Canaday (1971), 49 Ill. 2d 416, 427, 275 N.E.2d 356, 362; People v. Griffiths (1983), 112 Ill. App. 3d 322, 329, 445 N.E.2d 521, 529.) A motion for continuance cannot be said to have been improperly denied unless it appears that the refusal to grant the continuance has embarrassed the accused in the preparation of his defense and thereby prejudiced him. (People v. Canaday (1971), 49 Ill. 2d 416, 427, 275 N.E.2d 356, 362-63; People v. Griffiths (1983), 112 Ill. App. 3d 322, 329, 445 N.E.2d 521, 528.) The fact that the trial dates for both cases had always been kept the same and that pretrial proceedings in both cases had been conducted simultaneously belies any claim of surprise and the record shows that at trial the defendant’s attorneys appeared to be thoroughly prepared and conducted their representation with diligence and skill. Under these circumstances, we conclude that the circuit court’s denial of the continuance was not an abuse of discretion and did not result in any undue prejudice to the defendant.

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

Affirmed.

JONES, P.J., and EARNS, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re SHANE L. MEEK (The People of the State of Illinois, Petitioner-Appellee, v. Shane L. Meek, Respondent-Appellant).
    Fourth District
    No. 4—84—0534
    Opinion filed March 19, 1985.

      Daniel D. Yuhas and Deborah L. Rose, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Jeffrey K. Davison, State’s Attorney, of Decatur (Robert J. Biderman and Peter C. Drummond, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal lies from a finding of the circuit court of Macon County that the respondent, Shane Meek, was a person subject to involuntary admission to the Department of Mental Health on July 20, 1984. A notice of appeal was timely filed from the trial court’s writ of hospitalization and subsequently briefs were filed by the parties. Following the filings of the briefs, a motion to dismiss the appeal as moot was filed by the petitioner. The motion, and the objections thereto, were ordered taken with the case by this court.

Some factual background is necessary, as it forms the basis for our determination that the appeal should not be dismissed. On July 16, 1984, a petition for involuntary admission was filed. Following a hearing on July 20, 1984, the respondent was found to be a person subject to involuntary admission and was ordered hospitalized in the Department of Mental Health and Developmental Disabilities. It is from this order that the respondent appeals.

On July 23, 1984, the circuit clerk was ordered to file notice of appeal for the respondent, as the court had been advised that the respondent desired to appeal. The office of the State Appellate Defender was appointed to represent the respondent on appeal. The notice of appeal was filed on July 26, 1984, by the circuit clerk. However, on September 19, 1984, the respondent voluntarily reapplied for admission to the Adolf Meyer Zone Center, the mental health facility into which he had been committed.

Generally, the mootness doctrine does not apply to mental health cases. (In re Garcia (1978), 59 Ill. App. 3d 500, 375 N.E.2d 557.) This general rule was promulgated in recognition of exceptions to the mootness doctrine: (1) when dismissal would eliminate an entire class of cases from appellate review, and (2) where there are collateral legal consequences which survive the expiration of the order under review. In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153.

An initial order for hospitalization may not exceed 60 days pursuant to section 3 — 813(a) of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1983, ch. 911/2, par. 3 — 813(a)). Thus, it is apparent that such orders would normally come within the purview of the mootness doctrine and must be subject to the exception, since dismissal would eliminate an entire class of cases from appellate review, i.e., a single 60-day admission.

Moreover, it has been held that the question of the collateral consequences exception must be considered on a case-by-case basis. The reviewing court must examine the totality of circumstances, as an adjudication could return to plague a respondent in some future proceedings and could affect other aspects of the respondent’s life. Thus, Sciara allows the application of the mootness doctrine only where there are no possible future adverse collateral legal consequences.

Petitioner argues that (1) since the respondent herein has been discharged from his involuntary admission, this cause is moot, and the appeal should be dismissed; and (2) under this court’s decision in In re Wathan (1982), 104 Ill. App. 3d 64, 432 N.E.2d 670, respondent’s subsequent voluntary commitment has confirmed the findings of the trial court that he was in need of treatment for mental illness.

We find the circumstances of this cause to be distinguishable from those presented in Wathan. In that case, the respondent was the subject of a petition for involuntary admission on March 31, 1981, and was adjudicated a person subject to involuntary admission and ordered hospitalized. On June 3, 1981, a second petition for involuntary admission was filed and, after hearing, the respondent was again found to be a person subject to involuntary admission and was again ordered hospitalized. It was from this second order of involuntary admission that the respondent appealed. However, on August 25, 1981, the respondent applied for voluntary admission to the mental health facility into which he had been committed. This court held the mootness doctrine applicable, stating that the respondent’s actions merely confirmed the finding of the trial court that he was in need of treatment for mental illness, and that his own actions eliminated any possibility of future adverse collateral legal consequences. Although the record shows that the respondent in this case had two voluntary commitments prior to the involuntary commitment, which is the subject of this appeal, we find a qualitative distinction between voluntary and involuntary commitment. The point in Wathan was that the first commitment had not been appealed and stood for whatever collateral consequences might emanate therefrom. As this appears to be the respondent’s first involuntary commitment, we find this to be a case where the mootness doctrine does not apply. Petitioner’s motion is, therefore, denied.

Proceeding to the merits of the appeal, respondent argues (1) that his involuntary commitment must be reversed because the State failed to show by clear and convincing evidence that he was a danger to himself; and (2) that the trial court’s order subjecting him to involuntary commitment must be reversed because the State failed to introduce sufficient evidence on dispositional alternatives to hospitalization to permit the court to comply with statutory requirements thereon.

Under Illinois law, involuntary admission is not to be made unless necessary for the protection of the person or others from physical harm, as based on particular acts or significant threats of such harm. (Ill. Rev. Stat. 1983, ch. 9U/2, pars. 3 — 601, 3 — 701.) No respondent may be found subject to involuntary admission unless that finding has been established by clear and convincing evidence. (Ill. Rev. Stat. 1983, ch. 91V2, par. 3 — 808.) This standard requires a high level of certainty before finding an individual in need of mental treatment and curtailing his liberty, but does not place an impossible burden on the State in proving its case. (In re Stephenson (1977), 67 Ill. 2d 544, 556-57, 367 N.E.2d 1273, 1278.) We have reviewed the evidence in this case and believe that the State has met its burden.

The petition in this case was supported by the certificates of Linda Perry, out-patient therapist with Douglas County Mental Health, and Dr. Alfredo Jocson, staff psychiatrist at the Adolf Meyer Zone Center. Perry first met respondent on July 5, 1984, at the Douglas County jail, at which time his left wrist was mutilated and bleeding. Respondent told Perry he had cut his wrist with a razor blade deliberately, as he was depressed and had no reason to live. Perry took respondent back to Douglas County Mental Health to speak to Dr. Sellers, a registered psychologist. On July 11, 1984, respondent called Perry from the Illini Motel, and they had a general conversation. On Friday, July 13, 1984, respondent again called Perry and told her he was depressed and suicidal, and that he had no reason to live. Respondent at that time described how he was going to kill himself. Perry had three or four such phone conversations with respondent on that date. On the following morning, respondent again called Perry, and said he was still looking for options but was tired of living and could not go on. He described suicidal ideation and made suicidal threats. During that Friday and Saturday, Perry made numerous phone calls to the Champaign mental health authorities and the sheriff’s department regarding respondent’s suicidal ideation and his whereabouts. On Saturday, she called the sheriff’s department and requested they pick the respondent up. At that time, respondent voluntarily walked into the Douglas County jail. Perry went to the facility to see respondent, and noted he had fresh scratches on his left arm. Respondent told her he was depressed and did not want to live. At that time, Perry concluded that respondent was in danger of harming himself. Respondent was retained in jail on a disorderly conduct charge. On Monday, July 16, 1984, Perry signed the petition for respondent’s involuntary commitment.

Dr. Jocson testified that he spoke to respondent on July 16, 1984, and found him depressed at that time. Respondent admitted to Jocson that he had tried to harm himself by cutting his wrists. Jocson observed superficial scratches on respondent’s left wrist. Based on respondent’s past history and hospitalizations at Adolf Meyer Zone Center, Jocson concluded that respondent was in danger of harming himself within the near future.

Respondent took the stand and testified acknowledging that on three or four days in July he told Perry he wanted to kill himself. He further acknowledged that when he spoke to Jocson he told him he was depressed and was trying to harm himself. He testified that as of the date of the hearing, July 20, he no longer wanted to hurt himself.

According to the representations of the respondent’s counsel to the trial court at the beginning of the July 20 hearing, respondent had been hospitalized involuntarily since Monday, July 16, the date the petition was filed. Respondent compares the evidence produced by the State in this case to that found insufficient in In re Dieter (1977), 55 Ill. App. 3d 7, 370 N.E.2d 84. In Dieter, the respondent was alleged to have attempted suicide by cutting both wrists, yet the cuts were described as superficial scratches not requiring stitches. The respondent, Dieter, testified that she had been injured while playing with her cats, and no further testimony was offered to establish whether the scratches were more likely to be razor blade wounds or cat scratches. Likewise, no testimony was offered as to the respondent’s behavior during the three-day interim between her emergency hospitalization and the hearing, and none was offered establishing violent or unusual conduct demonstrating she would be a danger to herself or others. Contrary to respondent’s assessment of Dieter, we find that case distinguishable, as in this case respondent’s own testimony indicated that at the time of his involuntary admission he wanted to harm himself.

Respondent next complains that the decision to commit him was made with insufficient information as to whether involuntary commitment was appropriate because of alleged insufficiencies in the report before disposition. (Ill. Rev. Stat. 1983, ch. 911/2, par. 3 — 810.) He states that he has been prejudiced by the lack of detail in the report and testimony directed thereto, which precluded the trial court from considering the possibility that a less restrictive alternative treatment might have achieved the same goals of enabling him to function normally. The State argues that the respondent has waived this issue by his failure to present evidence as to other less restrictive environments which were available; or alternatively, that the issue is moot.

We find the doctrine of waiver applicable. Section 3 — 810 of the Code requires:

“Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.”

Contrary to respondent’s argument, the statute does not require a “detailed report” on treatment alternatives, and any objections available as to deficiencies in detail ought to be raised in the trial court. The report submitted in this case stated that the Adolf Meyer Zone Center would be the least restrictive facility available. Dr. Jocson also testified that commitment to the Department was the least restrictive environment. Respondent raised no questions below with regard to the adequacy of the report submitted to the court before disposition, and offered no suggestion as to a less restrictive alternative than that which was made. Under the circumstances of this case, we find the respondent’s failure to bring alleged deficiencies to the attention of the trial court to be comparable to the situation of a defendant who inspects a presentence report, but fails to bring deficiencies raised on appeal to the attention of the trial court. As the waiver doctrine has been applied in the latter case (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9), so may it be applied here.

Affirmed.

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