*1 believe testimony reject testimony the victim’s of Monica and to Booth, the robbing grandfather. sole defense witness admitted her who We conclude that there was sufficient support the record to defendant’s convictions. error, however,
There were
major
deprived
three
areas of
defendant
right
of his
Although any
to fair trial
this cause.
one of these
errors,
alone,
standing
trial,
may
require
say
not
a new
we cannot
their
impact
cumulative
beyond
was harmless
doubt or did
reasonable
contribute to his
People
conviction.
v. Weathers
62 Ill. 2d
Accordingly, this case reversed and remanded to the trial court for a new trial.
Reversed and remanded.
SULLIVAN, J„P. and MEJDA, J., concur. GIAMPA, Plaintiff-Appellant, v. ILLINOIS CIVIL SERVICE R. JOHN al., Defendants-Appellees. COMMISSION et (1st Division)
First District No. 79-1718 6,1980. Opinion filed October *2 Jaffe, of.Chicago, appellant. Lucius Echeles and Caroline both Julius Grimes, General, Scott, (Russell Jr., Attorney Chicago C. William J. General, Attorney counsel), appellees. Assistant opinion Mr. of the court: O’CONNOR delivered the JUSTICE Plaintiff, Community Services Giampa, employed R. as a John Supervisor by Delinquency I Prevention. After the Illinois Commission him, hearing. Prior to the plaintiff requested made Commis- objection, and the Illinois Civil Service over made, allowed, a motion to (Commission) sion hearing, officer made extensive charge. add a second After findings proved had recommended charges and found that both been Commission discharged. February On findings holding adopting entered an order officer’s discharge charges had such warranted proved been and that review, plaintiff from the trial court position. On administrative charge, upheld plaintiff’s first but reversed Commission as to the charge. oirthe second (1) *3 Plaintiff and rule appeals, contending the second vague upon unconstitutionally and charge which that based are overbroad; filing of the (2) hearing allowing erred in the officer the the charge; (3) hearing where plaintiff second was denied a sought order to officer denied for a continuance plaintiff’s motion Blanchard, complainant-victim, him to the subpoena enable Rosa-Linda witness; the in evidence (4) improperly a admitted the officer considered, test; improperly (5) results of a the evidence, fifth along plaintiff with fact invoked other though criminal against even privilege amendment self-incrimination pending; were then and charges upon alleged the same occurrences weight (6) discharge the decision manifest plaintiff the evidence. 1978, Personnel 23, Department of
On Director of the October following with the Commission: approved charges filed 25, 1978, charged “September Giampa was arrested John 18, by indicted a rape with he was and indecent liberties. October rape; three charge one County Jury Cook Grand on child; sexual charge of indecent indecent with a one liberties assault; of Mr. nature Due charge and one of intimidation. work, Giampa’s position brings him in contact with which juveniles, 2-785, according to Personnel Rule is initiated as there is concerning suitability reasonable contin- doubt ued Commission Delinquency Commission on [Illinois Prevention] employment.” 30,1978,
On plaintiff October requested hearing, a which was scheduled 30, 22, 1978, November 1978. On Attorney November General filed a motion with charge: following Commission to add the
“Conduct unbecoming a employee dealing juveniles state with 24, 1978, induced, aided, September on Giampa John abetted or encouraged a sub- taking minor of alcoholic stances or other intoxicating drugs.”
Plaintiff’s counsel copy received a of the second on November 1978. The Director of the Department approved of Personnel the second on November
At 30,1978, Schneider, on November Saddie Rosa-Linda godmother, Blanchard’s Rosa-Linda, testified that age good was in a frame of mind and normal plaintiff condition when left with her from Schneider’s home 24, 1978, at about September 11:30 a.m. on go shopping. Schneider testified that when returned about 3*2hours later, he told Schneider that get he could not Rosa-Linda out of the car and he was worried about the vomit the car. telephoned Schneider then putative mother, Rosa-Linda’s Mrs. Linda Blanchard.
Mrs. Linda Blanchard testified September that on at about p.m., 2:55 she received a telephone informing call from Schneider her that Rosa-Linda looked like she was dead. Mrs. Linda Blanchard ran over to plaintiff’s car, where she found light” Rosa-Linda “out like a and detected the odor of along alcohol with that of vomit.
Dr. Gentile, Ahuad Margaret nurse, Abdale and both testified that when Rosa-Linda was admitted to the emergency room of Belmont Community Hospital she semilethargic semiconscious and condition. Floyd H. testified that technologist employed he is a by Johnson
Clinical Laboratories, Inc., Bio-Tex performs quantitative testing of biological samples submitted Community Hospital. Belmont At 9 p.m., September 24,1978, performed he quantitative blood alcohol test on a blood sample bearing the name of Rosa-Linda Blanchard as well as an erroneous laboratory case *4 only number. This was the sample submitted September 24,1978, on from Community Hospital Belmont which blood quantitation alcohol was requested. analysis Johnson’s revealed that Rosa-Linda’s blood 92 mg% contained ethanol. The normal blood content of the human body is objected zero. Plaintiff to the results of the test and testimony regarding admission of Johnson’s report lab of his purpose which was admitted for the of clarification testimony. witness, fifth
Plaintiff but he claimed the was called as an adverse except privilege against questions amendment self-incrimination to all name, The concerning security those his address and social number. plaintiff privilege officer his fifth amendment and told advised along with the testify failure to would be considered other evidence.
At continuance hearing, plaintiff requested the conclusion of the this order denied subpoena Rosa-Linda Blanchard. The officer request. 30, 1979, finding
On issued her decision January 15, 1979, and, February charges proved had been adopted decision. The circuit court Commission officer’s upheld plaintiff’s discharge charge appeal this based on the second followed.
Plaintiff charge lodged against contends that the Second and the rule upon vague unconstitutionally is based are above, overbroad. the circuit charge, The second set out was found court discharge. to establish That falls within a basis for 2-785, subsection C of Personnel Rule which states: AR- FROM DISCHARGE RESULTING “SUSPENSION OR REST OR CRIMINAL INDICTMENT: The arrest or criminal suspension or grounds any employee indictment of shall not support and facts discharge arrest or indictment unless the either made known to the Director:
# # # concerning employee’s suit- C. doubt raised reasonable present in the ability employment for continued State assignment position. or this
If an under employee subject suspension is not or Rule, such place may, request employee, the Director at the final pending a employee pay, status without on indefinite leave to reimburse- guilt, subject or court determination of innocence 6, 1976.)” (Amended salary acquitted. ment of if June need not proceeding complaint or a an administrative judicial in a required pleadings precision be drawn with the same & Education (Strickland Registration Department proceeding. Com. Civil Service Guzell v. (1978), 60 Ill. App. 3d charge in an administra 351.) The as to respondent adequately the proceeding required tive to advise his defense. prepare intelligently to charges so that he will be able
ell 1309.) 389 N.E.2d Lyons (1979), Ill. 3d Hall v. (Strickland; App. 71 charge, a definite requires that of law process We are also mindful due as full, in administrative hearing impartial a fair adequate notice and and & Registration Department v. Saleson judicial proceedings. well as of Education App. Ill. (1968), 2d upon incident concerning the the charge related facts Also, was showing plaintiff is that there no
plaintiff’s discharge was based. charge the Because second prepare not able to his defense. intelligently to fully adequate charge rule was based were upon and the which the plaintiff against, reject plaintiff’s we advise what he would have to defend contention. hearing
Plaintiff’s is that officer erred second contention the allowing filing charge. disagree. the We of second time for request
Plaintiff
in order to allow
did not
a continuance
charge was
prepare
charge.
to
The second
defense
the second
plaintiff has not
original charge
based on the
same events as the
of the amendment.
any prejudice
demonstrated that he suffered
because
Further, we
Director
Personnel’s
consequence
find it of no
that the
until
approval of
the Commission
charge
the second
was not filed with
plaintiff
already
charge,
after
second
because
copy
had
received a
of the
to
approval
prior
second
filed
Commission
of the
was
with the
Service
v. Illinois Civil
Battle
hearing.
commencement
See
Com.
(1979),
App.
(amendment
charges
78 Ill.
3d
Plaintiff’s third
is that he
denied a
when
contention
by him
plaintiff’s
sought
officer
denied
motion
a continuance
in order to
him to
Blanchard. An adminis
subpoena
enable
Rosa-Linda
trative
it will allow
agency possesses broad discretion as to whether
Air
Control Board
(1967), 37
v.
Pollution
motion for a
Brown
continuance.
&
Registration
Wegmann Department
Ill. 2d
Education
Under the circumstances we find no abuse discretion due plaintiff’s request denial of Plaintiff’s lack of for a continuance. Wegmann.) (See diligence determining in this factor conclusion. he inquired Attorney Plaintiff General whether never the assistant argues to the motion testify. intended have Miss Plaintiff Blanchard testimony “any” filed Attorney requesting assistant General from conditions alleged protective victim be under taken certain Miss an call supports Attorney General would inference the assistant However, find this motion Blanchard as a we not do Attorney representation plaintiff by amounted to a the assistant to Although General that Miss plaintiff’s Blanchard would be a witness. timely counsel had notice of the and received the second days hearing, three attempt presence before the he to secure the made no of Miss her Blanchard. We find that the did not abuse officer denying plaintiff’s request discretion in for a continuance order enable subpoena alleged victim.
Plaintiff’s fourth improperly contention is that the admitted into evidence the results of the test (a) where “evidentiary chain” was properly established because there was no Blanchard, linking sample analyzed (b) Miss sample tested . destroyed opportunity before counsel had an subject it independent to an analysis. Initially, we apply note that the same strict rules of evidence *6 judicial proceedings apply proceedings do not in before administrative agencies. (Rauland Division, Corp. Sanitary v. Metropolitan Zenith Radio 756; (1971), 35, District 2 Ill. v. App. 3d 275 N.E.2d Mitchell Sackett 335, (1960),27 Ill. App. 833.) 2d 169N.E.2d Unless the failure to observe rights party the technical of a materially rules of evidence affects the him, injustice results such not to substantial to failure is sufficient reason 110, 1977, 275(2); set aside an agency’s par. decision. Ill. Rev. Stat. ch. (1978), 947, Hah App. v. Stackler 66Ill. Lo v. 3d 383N.E.2d Piccolo 1077, Department Registration (1972), & 3d 284 App. Education 5 Ill. of N.E.2d 420.
Dr. report Abdale testified in the lab that to the conclusion contained mgl the 92 percentage of ethanol in Miss Blanchard’s blood was purposes report the lab copy officer allowed a of evidence of part testing of the performed “clarification.” The lab technician who laboratory performed work the test and deter- the testified that he mg% argues mined the first percentage be ethanol. Plaintiff the foregoing evidence was erroneously admitted there because was no showing that the sample blood on which lab the performed the technician testing was taken from MissBlanchard.
We testi find a sufficient foundation established to admit sample. mony concerning analysis of the blood the results the Johnson by laboratory performs quanti testified that he was which employed Community biological by submitted Belmont testing samples tative 24, 1978, at Hospital. p.m. At 9 arrived work September Johnson proceeded perform quantitative sample on a alcohol test blood bearing Accompanying the name Rosa-Linda the blood Blanchard. sample was a note name, the patient’s contained the name hospital and the tests to performed. testified this was the Johnson only blood sample sent by Belmont Community Hospital on September 24, 1978,requesting blood alcohol quantitation. any suggestion Absent analysis of concerning the tampering, the evidence substitution or a sufficient establishing for lack made inadmissible sample is not of Miss not that sample was that the possibility foundation the remote 877, 369 3d App. Board Blanchard. See Ritenour v. Police destroyed sample the tested argues that because Plaintiff also indepen- it to an subject plaintiff’s opportunity before counsel had an into test admitting the blood erred analysis, dent internal responsible Defendants are disagree. evidence. We had no control. they laboratory over which procedures analyzing admitting not err find that officer did We Further, hearing officer if the even about the blood tests into evidence. substantial erred, by other findings supported had are the Commission’s did not the blood test regarding evidence. The admission of the evidence injustice in substantial result materially rights and did not affect 275(2); Lo Piccolo. 110, par. to him. Ill. Stat. ch. Rev. improperly hearing officer
Plaintiff’s fifth contention privilege amendment his fifth considered the fact that invoked evidence, though even along with the other self-incrimination then were alleged occurrence upon the same criminal pending. protects self-incrimination guarantee against
The constitutional imposition of leading testimony being give witness from forced to every possible from insulate a witness penalties, criminal but it does not Ill. Daniels (1978), 64 testimony. (Douglas v. resulting detriment from U.S. Palmigiano (1976), 425 In Baxter 90.) Court Supreme L. United States Ed. 2d 96 S. Ct. drawing of adverse held that the fifth not forbid amendment did *7 prison a testify at his failure to against prison inferences a State inmate for evidence, may be silence, along with other disciplinary proceeding. His holding This board. by disciplinary support used to an adverse decision proceedings disciplinary involving prison has not been confined to cases may board (see (disciplinary 477 v. (1st 1977), 560 F.2d Arthurs Stern Cir. disciplinary testify refusal at doctor’s to draw unfavorable inference from is by the Baxter court hearing)), principle find that the enunciated we applicable to the instant case. as well evidence
The in case relied on other hearing officer the instant is There discharged. ordering him plaintiff’s testify refusal to when requiring plaintiff in process to due nothing inherently repugnant keeping hearing and disciplinary giving testimony choose between at the his damage may silent, testimony at the though giving even his to loss of likely lead silent will most keeping criminal case and 477.) Because (See 1977), 560 F.2d Arthurs v. Stern (1st Cir. employment. 614
plaintiff’s discharge consequence was of his failure to not an automatic testify plaintiff right at the hearing, was not denied fifth amendment privileged against We find that fact self-incrimination. also criminal pending against plaintiff at time of the were does right against not violate his privileged to be self-incrimination. See Leadership Coalition Black v. 1340; Cianci (D. R.1.1979), 480 F. Supp. of Stern; Arthurs v. Long v. R. Marcello Island (S.D.N.Y. 1979), see also R. 465 Supp. F. 54.
Plaintiff’s final is discharge contention that the decision to from his position employment of against weight was the manifest evidence. action,
In an findings administrative the administrative review 110, prima agency (Ill. are considered Stat. ch. correct Rev. facie par. 274), and agency’s review or not the decision is limited whether (Kerr v. Police Board weight (1974), manifest evidence. 478; 59 Ill. 2d Consulting Agency, Inc. v. 319 Paramount N.E.2d (1979), Ill. App. 672.) 3d 394 N.E.2d It is not function Johnson of either the (West End reweigh trial court or this court to the evidence Savings & Loan 523,158 608; Association v. Smith (1959), 2d N.E.2d Consulting Agency, Johnson) Paramount Inc. v. or to determine the Consulting Inc. credibility Agency, v. Paramount the witnesses. Johnson; Hruby v. Board Fire & Police Commissioners Ill. & Police App. 3d Davenport Board Fire Commissioners (1972), 2 Ill.
The trial court second affirmed alleged unbecoming a state engaged “[cjonduct he “induced, aided, employee dealing juveniles” with or that he abetted encouraged taking minor substances or other of alcoholic intoxicating drugs.” presented The established that when Rosa- Linda plaintiff Blanchard she left Schneider’s home with was a normal condition, and in semilethargic when she returned 3%hours later she condition and smelled of It is inference alcohol and vomit. a reasonable plaintiff addition, responsible note for her condition. In we any did way attempt not explain incident. judgment County of the circuit court of is affirmed. Cook
Affirmed.
CAMPBELL, J., concurs. McGLOON, Mr. dissenting: JUSTICE below, For the majority’s holding reasons stated I with disagree Giampa’s privilege against self-incrimination was violated.
615 based discharge was Giampa’s The on which amended in the encouraging minor aiding, abetting, and inducing, accused of that drugs. Proof intoxicating taking of substances or other alcoholic abetted, Blanchard induced, aided, encouraged Giampa or Rosa-Linda her encouraged affirmatively necessarily would that he include evidence intoxicating substance. taking to take or approved her left Giampa that indicated presented The at evidence a.m., was Rosa-Linda 11:30 that Schneider’s home with Rosa-Linda at condition, home 31zhours she returned physical then normal that when The later, ill, mg%92 ethanol. she and that her contained was shopping Giampa evidence also revealed that had taken Rosa-Linda while transpired afternoon. the events which regarding No other evidence Giampa produced. was question was with Rosa-Linda on the afternoon in- Giampa findings her
Evidently, officer based duced, aided, silence in the face Giampa’s abetted Rosa-Linda day. In specific questions dealing with the events which occurred essence, his answer Giampa’s discharge entirely upon refusal to questions incriminating responses. called majority, v. 425 U.S. relying part Palmigiano on Baxter L. 47 Ed. 2d 96 S. Ct. concluded that Baxter, properly findings. In Giampa’s reaching considered her silence Supreme the United fifth did not States Court that the amendment held to drawing against forbid the inmate failure adverse inferences an conclusion, testify at prison In its disciplinary hearing. reaching court enunciated the following principles: against only protects Fifth ‘not the individual Amendment
“[T]he
being
himself in a criminal
involuntarily called
a witness
prosecution
questions
official
privileges
but also
him not
answer
criminal,
or
formal
put
proceeding,
him in
civil or
any
other
informal,
him in future
might
the answers
incriminate
where
(1973).
U.S.
77
proceedings.’
Turley,
criminal
4.14
Lefkowitz
if
but
hearings
proceedings;
not criminal
disciplinary
Prison
are
inmates are
furnish testimonial
compelled
proceedings
those
that might
proceed-
incriminate them in later criminal
ings,
they
immunity
required
must be offered ‘whatever
such
supplant
required
to ‘waive
privilege’
may
Id,.,
(1967);
U.S. 493
immunity.’
Jersey, 385
Garrity
at
v. New
v.Men
Broderick,
(1968);
273
Sanitation
Gardner v.
U.S.
308, 316, 47 L.
Commr,
U.S.
(1968).”(425
Sanitation
However, no transgressed in Baxter because principles these were not finding criminal and the proceedings pending against Palmigiano were guilt was his consequence not an automatic silence. agree may
Generally, I be drawn from silence adverse inferences However, case, at Giampa disciplinary hearings. in this was under indictment for crimes based on the same occurrence for which Also, above, sought. Giampa’s only as noted silence was the *9 induced, aided, Hence, basis finding for the that he I believe abetted. principles the case stated Baxter were violated this and would therefore hold that finding the adverse was erroneous.
I also disagree majority’s with the officer holding the properly Giampa’s request subpoena denied for a continuance order to presence Rosa-Linda. The of Rosa-Linda was irrelevant as to the initial they solely Giampa’s undisputed because were arrest and indictment. It charge was not until the that her amended was filed testimony became relevant. of this Defense counsel received notice charge only days three before the commenced. The amended Also, approved was not until the day hearing. before the counsel’s contact with Miss Blanchard was restricted the court the simul- by taneously pending criminal case. Recause of substantial difference in the the charges, nature of period prepare the short time counsel had amended placed by and the restrictions on counsel the criminal court, the failure to contact Rosa-Linda cannot attributed to lack of diligence.
Furthermore,
it was reasonable
Attorney
to assume
General
Rosa-Linda,
victim,
would call
charge.
the alleged
prove
the amended
The Attorney
request
testimony
General’s
that the
of Rosa-Linda be taken
in particular
assumption
manner
rendered
that she could be called as
a witness
Upon
more valid.
call
the failure to
Rosa-Linda defense counsel
justifiably
surprise.
claim
is
Surprise
granting
could
a basis for
a continu
290,
ance.
People
(1977),
See
66 Ill.
Lott
2d
N.E.2d
Admittedly, an
body
administrative
has
discretion in granting
broad
or denying
(Brown
a motion for a continuance.
v. Air Pollution Control
(1967),
However,
Ill.
754.)
Board
2d
227 N.E.2d
its discretion must
be exercised
judiciously
arbitrarily,
and a refusal to allow a
clearly
continuance
required
justice
the ends
is an
abuse
warranting
discretion
(Brown.)
process
reversal.
Administrative due
requires, in part,
full,
adequate
impartial hearing.
notice and a
fair and
(Lavin
v. Civil
(1974),
Service Com.
18 Ill.
3d
310 N.E.2d
citing
Department
Smith v.
412 Ill.
Registration
(1952),
& Education
332, 106
722.)
opportunity
within
is
rights
Included
these
procure the
attendance
a witness
case.
v. Illinois
vital
Lindeen
State Police
25 Ill.
(1962),
Merit
2d
Abuse of require discretion alone does not reversal of a board’s decision; however, when a against weight decision is the manifest evidence, reversal proper remedy. (Lindeen v. Illinois State Police Merit Board 206.) previously, As noted the Attorney presented General indicating Giampa no evidence aided, abetted, induced, encouraged or an Rosa-Linda to take intoxicat ing Hence, substance. the decision of the board was the manifest weight of the evidence and the denial of the continuance constituted reversible error. reasons,
For the above stated judgment I would reverse the trial court.
AETNA COMPANY, CASUALTY & Plaintiff-Appellant, SURETY v. LEWIS al.,
FREYER Defendants-Appellees. et (4th First Division) District No. 79-1673 Opinion 9,1980. filed October