People v. Cully
Annotate this Case
No. 2--95--1381
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, ) No. 95--CF--261
)
v. )
)
MILTON A. CULLY, JR., ) Honorable
) Conrad F. Floeter,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Following a jury trial, defendant, Milton A. Cully, Jr., was
convicted of practicing medicine without a license in violation of
section 50 of the Medical Practice Act of 1987 (Act) (225 ILCS
60/50 (West 1994)). Defendant appeals, contending that (1) it was
unconstitutional for the State to use an underlying statute that
allows the nonrenewal of a medical license when the licensee has
defaulted on an educational loan (20 ILCS 2105/60(5) (West 1994))
in conjunction with section 50 of the Act; (2) the trial court
erred when it refused to instruct the jury that knowledge was an
element of the offense; and (3) prosecutorial misconduct denied
defendant a fair trial.
Defendant was self-employed as a licensed chiropractic
physician in Algonquin, Illinois, from July 31, 1989, through July
31, 1993. On April 5, 1993, the Illinois Department of
Professional Regulation (Department) sent defendant two documents.
One of the documents was entitled "NOTICE OF ORDER OF REFUSAL
TO RENEW" (Nonrenewal Notice). The Nonrenewal Notice provided, in
relevant part:
"PLEASE TAKE NOTICE that pursuant to Illinois Revised
Statues [sic] (1991), Chapter 127, Paragraph 60(5) [now 20
ILCS 2105/60(5)] the Director of the Department of
Professional Regulation signed the attached ORDER which
provides that the Department shall refuse to renew your
license because your Illinois Education Loan is in default.
The Department's Order also provides that renewal shall
be denied until a satisfactory repayment schedule has been
established with the Illinois Student Assistance Commission
(ISAC) and approved by the Department. Please contact the
ISAC to determine the terms of a repayment schedule.
***
You are hereby advised that you are to cease practice as
of July 31, 1993. PRACTICE BEYOND THAT DATE MAY SUBJECT YOU
TO CRIMINAL PROSECUTION AND DEPARTMENT PROSECUTION FOR
UNLICENSED PRACTICE.
YOU ARE FURTHER NOTIFIED that you have a right to
judicial review of all final administrative decisions of this
Department, pursuant to the provisions of the 'ADMINISTRATIVE
REVIEW ACT', (Illinois Revised Statutes (1991), Chapter 110,
Paragraph 3-101 et. seq.)."
The second document was entitled "ORDER OF REFUSAL TO RENEW"
(Nonrenewal Order). The Nonrenewal Order stated that the
Department was ordering the nonrenewal of defendant's license to
practice as a chiropractic physician effective July 31, 1993. The
Nonrenewal Order also stated that the Department would continue to
refuse to renew defendant's license until a satisfactory repayment
schedule was established with the ISAC and approved by the
Department.
Defendant's license expired on July 31, 1993, and the
Department has not renewed it. Nonetheless, defendant continued to
practice chiropractic medicine until March 31, 1995, when he was
arrested for practicing medicine without a license.
At trial, defendant testified that, in response to the
Nonrenewal Notice and the Nonrenewal Order, he met with an ISAC
representative for the purpose of stopping the nonrenewal of his
license. The balance of defendant's educational loan at that time
was $12,025.56. Defendant acknowledged that his monthly payments
on the loan were $160, but he had not made any payments. In April
1993, defendant paid the ISAC a total of $800 on the loan. Accrued
interest resulted in a loan balance of $11,304.21 following
defendant's April 1993 payments. Defendant testified that after
the April 1993 payments, he may have made additional payments to
the ISAC, but admitted that if he did, "there weren't many of
them." Defendant testified that he just did not have enough money
to make additional payments on the loan.
Defendant further testified that after going to ISAC and
making the payments in April 1993 he thought his license was "in
good status." Defendant admitted that he understood that his
license was due to expire as of July 31, 1993, but testified that
he thought his license would remain in good status after that date
because he "was still in dialog" with the ISAC. The trial court
did not allow defendant to elaborate as to the details of this
dialog, but did allow defendant to testify that he was in regular
contact with the ISAC, had brought his financial records to the
ISAC representatives, and had contact with the ISAC regarding his
license as recently as October 1994.
On cross-examination, defendant acknowledged that his license
to practice chiropractic medicine in Illinois expired on July 31,
1993. Defendant also acknowledged that the license which expired
July 31, 1993, was the second license he had received from the
Department and that prior to its expiration he had displayed the
license in his office by framing it and hanging it on a wall.
On cross-examination, defendant also testified as follows:
"Q. Mr. Cully, you knew the Department of Professional
Regulations did not renew your license, and in fact, that it
was expired on July 31, 1993; is that right?
A. Yes.
Q. You never got anything in the mail and never got
a new license; is that right?
A. That's correct.
Q. You never filled out an application and sent in
the fee; did you?
A. That's correct."
The jury found defendant guilty of practicing medicine without
a license. The offense is a Class 4 felony for the first violation
and a Class 3 felony for subsequent violations. 225 ILCS 60/59
(West 1994). The trial court sentenced defendant to 24 months of
conditional discharge, fined him $500, ordered him to pay $1,000 in
costs for public defender services, and ordered him to perform 200
hours of public service work. Defendant's appeal followed the
denial of his motion for a new trial.
On appeal, defendant first raises the issue of whether the
State's application of section 50 of the Act to defendant was
unconstitutional. Section 50 (225 ILCS 60/50 (West 1994))
describes the offense of practicing medicine without a license.
Section 60(5) of Act 2105 of the Civil Administrative Code (Act
2105) (20 ILCS 2105/60(5) (West 1994)) is also relevant. Section
60(5) of Act 2105 allows the Department to deny the renewal of a
medical license to any person who has defaulted on an educational
loan guaranteed by the ISAC. Defendant contends that the
Department's use of section 60(5) of Act 2105 in conjunction with
section 50 of the Act was both a violation of equal protection and
an unlawful exercise of the State's police power in violation of
defendant's due process rights to pursue the practice of
chiropractic medicine under the Illinois and United States
Constitutions.
The right to pursue a profession is not a fundamental right
for due process purposes. Potts v. Illinois Department of
Registration & Education, 128 Ill. 2d 322, 330 (1989). Thus, the
appropriate standard of review is the rational basis test. Bernier
v. Burris, 113 Ill. 2d 219, 228-29 (1986), citing Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483, 488, 99 L. Ed. 563, 572,
75 S. Ct. 461, 464 (1955).
Under the rational basis test, a court will uphold a statute
if the statute bears a rational relationship to a legitimate
legislative purpose and is neither arbitrary nor discriminatory.
Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 368 (1986).
Because a statute is presumed to be valid, a party challenging a
statute has a substantial burden in attempting to establish that
the statute is unconstitutional, and the party challenging the
statute has the burden of proving that it is irrational. Potts,
128 Ill. 2d at 332.
The parties agree that the principles set out in People v.
Lindner, 127 Ill. 2d 174 (1989), should guide courts in applying
the rational basis test. These principles require a court to (1)
identify the public interest that the statute in question is
intended to protect; (2) examine whether the statute bears a
reasonable relationship to the public interest; and (3) determine
whether the method used to protect or further the interest is
reasonable. Lindner, 127 Ill. 2d at 180.
However, the parties do not agree on the rule governing the
determination of whether the statute bears a rational relationship
to the public interest. The State contends that the court may
hypothesize reasons for the legislation, even if such reasons did
not motivate the legislature in enacting the statute. In the
State's view, the court should uphold the statute if there is any
conceivable basis for finding a rational relationship. Defendant
counters that Lindner rejected the State's argument and held that
the scope of review under the rational basis test is limited to a
consideration of whether the statute bears a rational relationship
to its stated purpose.
In applying his view to this case, defendant asserts that the
purpose of the Act is to protect the public health. Defendant
argues that section 60(5), the statute allowing the nonrenewal of
a medical license when a license holder defaults on an education
loan, does not bear a rational relationship to the interest of
protecting the public health. Defendant also argues that the
method used by section 60(5) is not a reasonable method to further
the interest of protecting the public health. Based on this
analysis, defendant concludes that the State's use of section 60(5)
in conjunction with section 50 of the Act did not satisfy the
rational basis test and was therefore unconstitutional.
The State first responds that the question presented by
defendant is not properly before this court. The State reminds us
that defendant is appealing from a conviction of practicing
medicine without a license and that the trial court which convicted
him was not the tribunal which decided that defendant's license was
not renewable. The State observes that the nonrenewal of
defendant's license was the result of an administrative action.
The State argues that defendant should have resolved the nonrenewal
of his license through administrative proceedings before continuing
his practice rather than taking it upon himself to defy the
Department's action and practice without a license. We agree.
Section 41 of the Act (225 ILCS 60/41 (West 1994))
specifically provides for judicial review of all final
administrative decisions pursuant to the Administrative Review Law
(735 ILCS 5/3--101 et seq. (West 1994)). When, as in this case,
the act empowering an agency expressly adopts the Administrative
Review Law, then the procedure set out in the Administrative Review
Law exclusively governs judicial review of the final administrative
decision. 735 ILCS 5/3--102 (West 1994).
In this case, defendant seeks review of the final
administrative decision to deny the renewal of his license.
However, the appropriate means for defendant to obtain judicial
review of the nonrenewal of his license was to file a complaint
concerning that matter within 35 days of the decision. See 735
ILCS 5/3--103 (West 1994). Defendant did not do that. Thus, that
decision is not properly before us. The only question properly
before us is whether defendant practiced medicine without a valid
license.
Defendant contends on appeal that seeking review of the
Department's decision pursuant to the Administrative Review Law
would have been futile. Defendant argues that the circuit court
would not have stayed the criminal trial pending judicial review of
the administrative decision. However, defendant does not explain
why judicial review of the decision which was effective July 31,
1993, could not have been accomplished before the criminal
proceedings began following defendant's arrest on March 31, 1995.
It is readily apparent that defendant chose not to seek
judicial review of the Department's decision by way of the
procedures set out in the Administrative Review Law, but instead
opted to flaunt the nonrenewal of his license and practice without
it in defiance of section 50 of the Act. For these reasons, the
issue is not properly before this court.
Even if, arguendo, defendant's constitutional argument were
properly before us, the argument would fail. Defendant has
interpreted Lindner too narrowly. Defendant contends that Lindner
stands for the proposition that in applying the rational basis test
a court is limited to determining whether there is a rational
relationship between the statute in question and the stated purpose
of the statute.
A careful reading of Lindner shows that the court in that case
did not limit itself to the stated purpose of the statute in
question there. In determining the public interest of the statute
in question in Lindner, the court stated that "the legislature's
intent is to be determined from the statute in its entirety,
including the subject it addresses." Lindner, 127 Ill. 2d at 182.
The court also stated that "we consider not only the statement of
purpose" set out in the statute. Lindner, 127 Ill. 2d at 181.
The Lindner court next addressed the State's argument that the
court must consider "any conceivable basis for the challenged
provision." Lindner, 127 Ill. 2d at 183. Although the court
stated that it was not persuaded by that argument, the court
nonetheless considered the bases which the State offered and
determined that, notwithstanding these bases, the statutes in
question failed to pass the reasonable basis test and were
therefore unconstitutional. Lindner, 127 Ill. 2d at 184-85.
In this case defendant contends that the only public interest
which we should consider in determining whether section 50 of the
Act and section 60(5) of Act 2105 have a rational relationship to
the purpose of the Act is the protection of public health.
Defendant asserts that this is the stated purpose of the Act.
However, defendant does not cite the Act as authority for this
view, and in our review of the Act we were not able to locate such
a stated purpose.
We do not dispute that public health is one of the public
interests that the Act is intended to protect. However, reading
the Act in its entirety leads us to conclude that defendant's
position is unduly narrow. Our supreme court stated the interests
to be protected by the Act in a way which more fully reflects the
Act read in its entirety when it noted that "the State has a
legitimate interest in regulating medical professionals in order to
protect the public welfare" (Potts, 128 Ill. 2d at 330).
Stating the public interest to be protected by the Act in this
way encompasses sections of the Act which are not necessarily
directly related to medical competency, but which are nonetheless
proper parts of the Act. For example, section 9(B)(1) of the Act
requires that applicants for a license be of good moral character.
225 ILCS 60/9(B)(1) (West 1994). In addition, section 22 of the
Act lists a number of grounds which allow the Department to revoke
or suspend a license. 225 ILCS 60/22 (West 1994). Many of these
grounds are not directly related to medical competency. These
grounds include conviction of a felony and engaging in
dishonorable, unethical, or unprofessional conduct likely to
deceive, defraud, or harm the public. 225 ILCS 60/22(A)(3)(5)
(West 1994).
With this more expansive public interest in mind, we conclude
that section 50 of the Act and section 60(5) of Act 2105 bear a
reasonable relationship to the purpose of the Act. It is
reasonable for the State to not renew a medical license when the
licensee culpably defaults on an educational loan and the loan has
enabled the licensee to pay for the education that is a
prerequisite for the license. If the licensee culpably does not
repay the loan, this calls his moral character into question and
could constitute conduct which defrauds or harms the public.
We also conclude that the method used to protect the interest
is reasonable. Not renewing the license of a licensee who defaults
on an educational loan serves as an incentive to repay the loan.
The threat of nonrenewal is a deterrent to nonpayment.
For these reasons, we hold that the State's use of section
60(5) of Act 2105 in conjunction with section 50 of the Medical
Practice Act does not violate the due process clauses of the
Illinois and United States Constitutions. Therefore, the State's
use of these statutes in this case was not unconstitutional on due
process grounds.
Defendant next contends that the State's use of section 60(5)
of Act 2105 in conjunction with section 50 of the Act violated his
constitutional equal protection rights. Defendant asserts that the
objective of the Act is only to protect public health. Defendant
argues that classifying him as a doctor who has not repaid an
educational loan and using that classification to decide to not
renew his license is not reasonably related to public health and is
therefore unconstitutional on equal protection grounds.
In equal protection analysis, where the classification in
question does not affect a fundamental right or discriminate
against a suspect class, the standard for judging the
constitutionality of the classification is the reasonable basis
test. Miller v. Department of Professional Regulation, 276 Ill.
App. 3d 133, 144 (1995), citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 517, 96 S. Ct. 2513, 2516 (1976);
Cutinello v. Whitley, 161 Ill. 2d 409, 417 (1994). As seen above,
the right to pursue a profession is not a fundamental right; thus
courts reviewing statutes that regulate professions apply the
rational basis test. Potts, 128 Ill. 2d at 330. Accordingly, we
will apply the rational basis test in this case.
Our supreme court recently set out the principles guiding
courts in applying the rational basis test in the context of an
equal protection claim. The court stated:
"Whether a rational basis exists for a classification
presents a question of law, which we consider de novo.
Cutinello v. Whitley, 161 Ill. 2d 409, 417 (1994). Under the
rational basis test, a court's review of a legislative
classification is limited and generally deferential. People
v. Shephard, 152 Ill. 2d 489, 502 (1992). The court simply
inquires whether the method or means implied in the statute to
achieve the stated goal or purpose of the legislation is
rationally related to that goal. Fumarolo v. Chicago Board of
Education, 142 Ill. 2d 54, 74 (1990). The legislation carries
a strong presumption of constitutionality (People v.
Blackorby, 146 Ill. 2d 307, 318 (1992)), and if any set of
facts can reasonably be conceived to justify the
classification, it must be upheld (Shephard, 152 Ill. 2d at
502)." Jacobson v. Department of Public Aid, 171 Ill. 2d 314,
323-24 (1996).
Under these principles, defendant's equal protection claim
fails. As established above in the due process analysis, the means
employed in using section 60(5) of Act 2105 in conjunction with
section 50 of the Act were rationally related to the goal of the
Act. Consequently, the State's use of these statutes did not
violate defendant's equal protection rights.
Defendant next contends that the trial court erred when it
refused to instruct the jury that knowledge was an element of the
offense of practicing medicine without a license. Over defendant's
objection, the trial court gave the jury the State's instructions
which did not include knowledge or any other mental state as an
element of the offense. In doing so, the trial court refused to
give the jury defendant's instruction which included knowledge as
an element of the offense.
In its ruling, the trial court noted that section 50 of the
Act (225 ILCS 60/50 (West 1994)), which defines the offense, does
not contain any language regarding knowledge as an element of the
offense. The trial court then concluded that the legislature
therefore intended to make the offense an absolute liability
offense.
Section 50 provides:
"Any person who practices medicine in all of its
branches or treats human ailments without the use of drugs
or operative surgery including, but not limited to,
treatment or diagnosis of any physical or mental ailments or
conditions including, but not limited to, deformities,
diseases, disorders, or injuries without a valid license
under the laws of this State shall be sentenced as provided
in Section 59." 225 ILCS 60/50 (West 1994).
Section 59 of the Act makes the first violation of section 50 a
Class 4 felony and subsequent violations Class 3 felonies. 225
ILCS 60/59 (West 1994).
Defendant contends that the trial court erred when it
concluded that the offense was an absolute liability offense. We
agree.
Section 4--9 of the Criminal Code of 1961 (Code) (720 ILCS
5/4--9 (West 1994)) governs absolute liability offenses. Section
4--9 provides:
"Absolute Liability. A person may be guilty of an
offense without having, as to each element thereof, one of
the mental states described in Sections 4--4 through 4--7
[including knowledge] if the offense is a misdemeanor which
is not punishable by incarceration or by a fine exceeding
$500, or the statute defining the offense clearly indicates
a legislative purpose to impose absolute liability for the
conduct described." 720 ILCS 5/4--9 (West 1994).
As our supreme court has noted, the committee comments to
section 4--9 reveal that the legislature intended to limit the
scope of absolute liability. People v. Gean, 143 Ill. 2d 281, 285
(1991). The committee comments provide, in relevant part:
"This section is intended to establish, as an
expression of general legislative intent, rather strict
limitations upon the interpretation that mental state is not
an element of an offense, although the express language of
the provision defining the offense fails to describe such an
element. ***
* * *
In addition to permitting a construction requiring
absolute liability in offenses punishable by incarceration
or by a fine of not more than $500, the second part of
section 4--9 expresses the policy that in other offenses not
including a mental state in the definition only a clearly
indicated legislative intent to create absolute liability
should be recognized, and in all other instances, a mental-
state requirement should be implied as an application of the
general rule that an offense consists of an act accompanied
by a culpable mental state ***." 720 ILCS Ann. 5/4--9,
Committee Comments--1961, at 169-72 (Smith-Hurd 1993).
It is evident from the language of section 4--9 and from the
committee comments that, contrary to the view expressed by the
trial court, the mere absence of expressed statutory language
describing a mental state does not lead per se to the conclusion
that no mental state is required. Gean, 143 Ill. 2d at 286.
Rather, in accordance with section 4--9, where an offense is a
felony, courts will imply a mental state element in the offense
unless a clear legislative intent to impose absolute liability is
evident. 720 ILCS 5/4--9 (West 1994); see People v. Farmer, 165 Ill. 2d 194, 203 (1995).
Based on these principles, because the offense of practicing
medicine without a license is a felony, we will imply a mental
state element in the offense unless a clear legislative intent to
impose an absolute liability is evident. There is nothing in the
language of section 50 to suggest a legislative intent to make the
offense an absolute liability offense. In addition, our review of
the legislative history of section 50 reveals nothing to suggest
that the legislature intended to make the practice of medicine
without a license an absolute liability offense. Accordingly, we
will imply a mental state element in the offense.
Having concluded that the offense of practicing medicine
without a license is not an absolute liability offense, we must
determine which mental state element applies to the offense. Under
section 4--3(b) of the Code, when a statute defining an offense
which is not an absolute liability offense does not prescribe a
particular mental state, then either intent, knowledge, or
recklessness is applicable. 720 ILCS 5/4--3(b) (West 1994). In
this case, we agree with defendant that knowledge is the
appropriate mental state element of the offense. Thus, the State
had to prove that defendant practiced medicine with the knowledge
that he did not have a valid license.
Anticipating this result, the State contends that, even if
there was a mental state element for the offense, the trial court
was not required to instruct the jury as to the mental state
element. The State argues that, where the mental state element for
an offense is implied, an instruction as to the mental state is not
required.
It is not always error to omit an implied mental state from
jury instructions. People v. Garland, 254 Ill. App. 3d 827, 832
(1993). However, where the implied mental state is specific
enough, a jury instruction as to the mental state is required.
People v. Adams, 265 Ill. App. 3d 181, 187 (1994). We conclude
that the implied mental state of knowledge with respect to the
offense of practicing medicine without a license is specific enough
to require an instruction. Accordingly, the trial court erred when
it refused to give the jury defendant's instruction which included
knowledge as a mental state element of the offense.
The State next contends that any error in improperly
instructing the jury was harmless. The State argues that
defendant's guilt was so clear and convincing that the jury could
not reasonably have found defendant not guilty.
Error in giving or refusing instructions does not always
require reversal. People v. Jones, 81 Ill. 2d 1, 9 (1979).
Reversal is not required when the evidence of a defendant's guilt
is so clear and convincing that it would be unreasonable for the
jury to find the defendant not guilty. Jones, 81 Ill. 2d at 9.
In this case, the instructional error was the omission of an
instruction that knowledge is a mental state element of the
offense. However, defendant's knowledge that he was practicing
medicine without a valid license was blatantly evident from the
circumstances. There is no doubt that defendant received the
Nonrenewal Notice and Nonrenewal Order. These documents plainly
advised defendant that his license would not be renewed and to
cease practice as of July 31, 1993. The documents clearly notified
defendant that continuing to practice after July 31, 1993, could
subject him to criminal and Departmental prosecution for unlicensed
practice. The documents also advised defendant that the renewal of
his license would continue to be denied until both a satisfactory
repayment schedule was established with the ISAC and the
Department's approval was given.
Defendant may have taken some steps to establish a repayment
schedule with the ISAC. However, the record is devoid of any
evidence to suggest that defendant obtained the Department's
approval for the plan.
Defendant admitted that he knew his license had expired, but
he nonetheless continued to practice chiropractic medicine. After
his license expired, defendant took the expired license off the
wall in his office where it had been displayed. Defendant did not
take any of the routine steps that he had taken in the past to
renew his license such as completing an application form for the
renewal of the license and submitting the appropriate fee.
On this record, defendant's knowledge that he no longer had a
valid license after July 31, 1993, was blatantly evident.
Consequently, any error in failing to instruct the jury that
knowledge was an element of the offense was harmless.
Defendant next contends that he is entitled to a new trial
because of various instances of prosecutorial misconduct.
Defendant asserts that the State's misconduct denied him a fair
trial. The claimed misconduct by the State included: (1)
references throughout the trial to defendant's lack of insurance,
particularly malpractice insurance; (2) references to defendant's
failure to pay taxes; (3) references to defendant's submitting
insurance claims when he was not licensed; (4) deliberately
misleading the jury during rebuttal closing argument by suggesting
that defendant encouraged a presumed patient to pursue a fraudulent
worker's compensation claim; and (5) inflaming the jury by
referring to defendant as "Dr. Deadbeat" in rebuttal closing
argument. Defendant argues that the State improperly sought to
portray defendant as a bad person and that the portrayal created a
bias against defendant which prevented him from receiving a fair
trial.
The State responds by contending that defendant waived most of
these claimed errors by failing to object to them. The State also
asserts that any claimed errors that were not waived were either
cured by the trial court or were harmless.
Our review of the record indicates that in all but two of the
instances of claimed misconduct defendant did not object at trial.
When a party fails to raise issues at the trial level through both
an objection at trial and a post-trial motion, the issues are
waived and the party may not raise the issues on appeal. People v.
Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant concedes that he did not object to many of the
claimed errors. However, he contends that we should review the
claimed errors under the plain error rule. The plain error rule
permits a reviewing court to consider issues which have been waived
by an accused where (1) the evidence is closely balanced, or (2)
the error is so fundamental and of such magnitude that it denies
the accused a fair trial. People v. Lucas, 151 Ill. 2d 461, 482
(1992). In this case, the evidence was not closely balanced and
the waived claimed errors, neither individually nor cumulatively,
were not so fundamental or of such magnitude as to deny defendant
a fair trial. Accordingly, we will not consider any of the claimed
errors except the two claimed errors to which defendant objected.
The first claimed error that defendant objected to occurred
during the State's rebuttal argument when a prosecutor stated that,
because defendant did not have malpractice insurance, defendant's
employees could have been found liable if there had been an injury
to one of defendant's patients. Defendant's attorney objected by
stating, "That is a point of law that has not been brought into
issue." The trial court sustained the objection and instructed the
jury to disregard the statement.
A defendant faces a substantial burden when seeking a reversal
based on improper remarks made during closing argument. Even if a
prosecutor's remarks exceed the bounds of proper comment, a
reviewing court should not disturb the verdict unless it can be
said that the remarks in question resulted in substantial prejudice
to the accused, such that absent those remarks the verdict would
have been different. People v. Byron, 164 Ill. 2d 279, 295 (1995).
Under these principles, the prosecutor's statement in this
case that defendant's employees could have been liable because
defendant did not have malpractice insurance did not constitute
reversible error. The statement came after the jury had already
heard an abundance of evidence regarding defendant's practice of
medicine without a license. Under these circumstances, the
statement was not substantially prejudicial.
In addition, the trial court sustained defendant's objection
to the statement and clearly instructed the jury to disregard the
statement. This cured any error that occurred. See People v.
Cobb, 186 Ill. App. 3d 898, 916 (1989).
The other instance of claimed prosecutorial misconduct that
defendant objected to also occurred during the State's rebuttal
argument. Defendant contends that the prosecution made several
references to defendant as "Dr. Deadbeat" during its argument and
that these references were improper and prejudicial to defendant.
Our review of the record revealed two separate instances where
the State referred to defendant as Dr. Deadbeat during its rebuttal
argument. Defendant objected to one of the references, but the
trial court allowed the reference to stand.
On appeal, the State maintains that defendant sought to
portray himself as an honest man who, due to bad luck, fell behind
on his financial obligations through no fault of his own. The
State contends that the references to defendant as Dr. Deadbeat
were therefore fair comments to try to negate defendant's portrayal
of himself.
The State is allowed substantial latitude in closing argument.
People v. Pecoraro, 144 Ill. 2d 1, 16 (1991). It is improper,
however, for counsel to resort to name calling. See People v.
Johnson, 119 Ill. 2d 119, 139-40 (1987). Although we recognize
that, under certain circumstances, ridicule may be used
legitimately as an argument technique, we do not approve of the
prosecutor's "Dr. Deadbeat" comments because we view them as
falling into the category of unnecessary name calling. We believe
that the trial court should have sustained defendant's objection to
the comments.
However, even if the State's references to defendant as Dr.
Deadbeat were improper, it cannot be said that the references
resulted in such substantial prejudice to defendant that the
verdict would have been different absent the references. The
evidence that defendant knowingly practiced medicine without a
license was overwhelming. Any verdict other than guilty in the
face of this evidence would have been unreasonable.
Based on the foregoing, we affirm defendant's conviction of
practicing medicine without a license.
Affirmed.
BOWMAN and RATHJE, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, ) No. 95--CF--261
)
v. )
)
MILTON A. CULLY, JR., ) Honorable
) Conrad F. Floeter,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
Following a jury trial, defendant, Milton A. Cully, Jr., was
convicted of practicing medicine without a license in violation of
section 50 of the Medical Practice Act of 1987 (Act) (225 ILCS
60/50 (West 1994)). Defendant appeals, contending that (1) it was
unconstitutional for the State to use an underlying statute that
allows the nonrenewal of a medical license when the licensee has
defaulted on an educational loan (20 ILCS 2105/60(5) (West 1994))
in conjunction with section 50 of the Act; (2) the trial court
erred when it refused to instruct the jury that knowledge was an
element of the offense; and (3) prosecutorial misconduct denied
defendant a fair trial.
Defendant was self-employed as a licensed chiropractic
physician in Algonquin, Illinois, from July 31, 1989, through July
31, 1993. On April 5, 1993, the Illinois Department of
Professional Regulation (Department) sent defendant two documents.
One of the documents was entitled "NOTICE OF ORDER OF REFUSAL
TO RENEW" (Nonrenewal Notice). The Nonrenewal Notice provided, in
relevant part:
"PLEASE TAKE NOTICE that pursuant to Illinois Revised
Statues [sic] (1991), Chapter 127, Paragraph 60(5) [now 20
ILCS 2105/60(5)] the Director of the Department of
Professional Regulation signed the attached ORDER which
provides that the Department shall refuse to renew your
license because your Illinois Education Loan is in default.
The Department's Order also provides that renewal shall
be denied until a satisfactory repayment schedule has been
established with the Illinois Student Assistance Commission
(ISAC) and approved by the Department. Please contact the
ISAC to determine the terms of a repayment schedule.
***
You are hereby advised that you are to cease practice as
of July 31, 1993. PRACTICE BEYOND THAT DATE MAY SUBJECT YOU
TO CRIMINAL PROSECUTION AND DEPARTMENT PROSECUTION FOR
UNLICENSED PRACTICE.
YOU ARE FURTHER NOTIFIED that you have a right to
judicial review of all final administrative decisions of this
Department, pursuant to the provisions of the 'ADMINISTRATIVE
REVIEW ACT', (Illinois Revised Statutes (1991), Chapter 110,
Paragraph 3-101 et. seq.)."
The second document was entitled "ORDER OF REFUSAL TO RENEW"
(Nonrenewal Order). The Nonrenewal Order stated that the
Department was ordering the nonrenewal of defendant's license to
practice as a chiropractic physician effective July 31, 1993. The
Nonrenewal Order also stated that the Department would continue to
refuse to renew defendant's license until a satisfactory repayment
schedule was established with the ISAC and approved by the
Department.
Defendant's license expired on July 31, 1993, and the
Department has not renewed it. Nonetheless, defendant continued to
practice chiropractic medicine until March 31, 1995, when he was
arrested for practicing medicine without a license.
At trial, defendant testified that, in response to the
Nonrenewal Notice and the Nonrenewal Order, he met with an ISAC
representative for the purpose of stopping the nonrenewal of his
license. The balance of defendant's educational loan at that time
was $12,025.56. Defendant acknowledged that his monthly payments
on the loan were $160, but he had not made any payments. In April
1993, defendant paid the ISAC a total of $800 on the loan. Accrued
interest resulted in a loan balance of $11,304.21 following
defendant's April 1993 payments. Defendant testified that after
the April 1993 payments, he may have made additional payments to
the ISAC, but admitted that if he did, "there weren't many of
them." Defendant testified that he just did not have enough money
to make additional payments on the loan.
Defendant further testified that after going to ISAC and
making the payments in April 1993 he thought his license was "in
good status." Defendant admitted that he understood that his
license was due to expire as of July 31, 1993, but testified that
he thought his license would remain in good status after that date
because he "was still in dialog" with the ISAC. The trial court
did not allow defendant to elaborate as to the details of this
dialog, but did allow defendant to testify that he was in regular
contact with the ISAC, had brought his financial records to the
ISAC representatives, and had contact with the ISAC regarding his
license as recently as October 1994.
On cross-examination, defendant acknowledged that his license
to practice chiropractic medicine in Illinois expired on July 31,
1993. Defendant also acknowledged that the license which expired
July 31, 1993, was the second license he had received from the
Department and that prior to its expiration he had displayed the
license in his office by framing it and hanging it on a wall.
On cross-examination, defendant also testified as follows:
"Q. Mr. Cully, you knew the Department of Professional
Regulations did not renew your license, and in fact, that it
was expired on July 31, 1993; is that right?
A. Yes.
Q. You never got anything in the mail and never got
a new license; is that right?
A. That's correct.
Q. You never filled out an application and sent in
the fee; did you?
A. That's correct."
The jury found defendant guilty of practicing medicine without
a license. The offense is a Class 4 felony for the first violation
and a Class 3 felony for subsequent violations. 225 ILCS 60/59
(West 1994). The trial court sentenced defendant to 24 months of
conditional discharge, fined him $500, ordered him to pay $1,000 in
costs for public defender services, and ordered him to perform 200
hours of public service work. Defendant's appeal followed the
denial of his motion for a new trial.
On appeal, defendant first raises the issue of whether the
State's application of section 50 of the Act to defendant was
unconstitutional. Section 50 (225 ILCS 60/50 (West 1994))
describes the offense of practicing medicine without a license.
Section 60(5) of Act 2105 of the Civil Administrative Code (Act
2105) (20 ILCS 2105/60(5) (West 1994)) is also relevant. Section
60(5) of Act 2105 allows the Department to deny the renewal of a
medical license to any person who has defaulted on an educational
loan guaranteed by the ISAC. Defendant contends that the
Department's use of section 60(5) of Act 2105 in conjunction with
section 50 of the Act was both a violation of equal protection and
an unlawful exercise of the State's police power in violation of
defendant's due process rights to pursue the practice of
chiropractic medicine under the Illinois and United States
Constitutions.
The right to pursue a profession is not a fundamental right
for due process purposes. Potts v. Illinois Department of
Registration & Education, 128 Ill. 2d 322, 330 (1989). Thus, the
appropriate standard of review is the rational basis test. Bernier
v. Burris, 113 Ill. 2d 219, 228-29 (1986), citing Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483, 488, 99 L. Ed. 563, 572,
75 S. Ct. 461, 464 (1955).
Under the rational basis test, a court will uphold a statute
if the statute bears a rational relationship to a legitimate
legislative purpose and is neither arbitrary nor discriminatory.
Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 368 (1986).
Because a statute is presumed to be valid, a party challenging a
statute has a substantial burden in attempting to establish that
the statute is unconstitutional, and the party challenging the
statute has the burden of proving that it is irrational. Potts,
128 Ill. 2d at 332.
The parties agree that the principles set out in People v.
Lindner, 127 Ill. 2d 174 (1989), should guide courts in applying
the rational basis test. These principles require a court to (1)
identify the public interest that the statute in question is
intended to protect; (2) examine whether the statute bears a
reasonable relationship to the public interest; and (3) determine
whether the method used to protect or further the interest is
reasonable. Lindner, 127 Ill. 2d at 180.
However, the parties do not agree on the rule governing the
determination of whether the statute bears a rational relationship
to the public interest. The State contends that the court may
hypothesize reasons for the legislation, even if such reasons did
not motivate the legislature in enacting the statute. In the
State's view, the court should uphold the statute if there is any
conceivable basis for finding a rational relationship. Defendant
counters that Lindner rejected the State's argument and held that
the scope of review under the rational basis test is limited to a
consideration of whether the statute bears a rational relationship
to its stated purpose.
In applying his view to this case, defendant asserts that the
purpose of the Act is to protect the public health. Defendant
argues that section 60(5), the statute allowing the nonrenewal of
a medical license when a license holder defaults on an education
loan, does not bear a rational relationship to the interest of
protecting the public health. Defendant also argues that the
method used by section 60(5) is not a reasonable method to further
the interest of protecting the public health. Based on this
analysis, defendant concludes that the State's use of section 60(5)
in conjunction with section 50 of the Act did not satisfy the
rational basis test and was therefore unconstitutional.
The State first responds that the question presented by
defendant is not properly before this court. The State reminds us
that defendant is appealing from a conviction of practicing
medicine without a license and that the trial court which convicted
him was not the tribunal which decided that defendant's license was
not renewable. The State observes that the nonrenewal of
defendant's license was the result of an administrative action.
The State argues that defendant should have resolved the nonrenewal
of his license through administrative proceedings before continuing
his practice rather than taking it upon himself to defy the
Department's action and practice without a license. We agree.
Section 41 of the Act (225 ILCS 60/41 (West 1994))
specifically provides for judicial review of all final
administrative decisions pursuant to the Administrative Review Law
(735 ILCS 5/3--101 et seq. (West 1994)). When, as in this case,
the act empowering an agency expressly adopts the Administrative
Review Law, then the procedure set out in the Administrative Review
Law exclusively governs judicial review of the final administrative
decision. 735 ILCS 5/3--102 (West 1994).
In this case, defendant seeks review of the final
administrative decision to deny the renewal of his license.
However, the appropriate means for defendant to obtain judicial
review of the nonrenewal of his license was to file a complaint
concerning that matter within 35 days of the decision. See 735
ILCS 5/3--103 (West 1994). Defendant did not do that. Thus, that
decision is not properly before us. The only question properly
before us is whether defendant practiced medicine without a valid
license.
Defendant contends on appeal that seeking review of the
Department's decision pursuant to the Administrative Review Law
would have been futile. Defendant argues that the circuit court
would not have stayed the criminal trial pending judicial review of
the administrative decision. However, defendant does not explain
why judicial review of the decision which was effective July 31,
1993, could not have been accomplished before the criminal
proceedings began following defendant's arrest on March 31, 1995.
It is readily apparent that defendant chose not to seek
judicial review of the Department's decision by way of the
procedures set out in the Administrative Review Law, but instead
opted to flaunt the nonrenewal of his license and practice without
it in defiance of section 50 of the Act. For these reasons, the
issue is not properly before this court.
Even if, arguendo, defendant's constitutional argument were
properly before us, the argument would fail. Defendant has
interpreted Lindner too narrowly. Defendant contends that Lindner
stands for the proposition that in applying the rational basis test
a court is limited to determining whether there is a rational
relationship between the statute in question and the stated purpose
of the statute.
A careful reading of Lindner shows that the court in that case
did not limit itself to the stated purpose of the statute in
question there. In determining the public interest of the statute
in question in Lindner, the court stated that "the legislature's
intent is to be determined from the statute in its entirety,
including the subject it addresses." Lindner, 127 Ill. 2d at 182.
The court also stated that "we consider not only the statement of
purpose" set out in the statute. Lindner, 127 Ill. 2d at 181.
The Lindner court next addressed the State's argument that the
court must consider "any conceivable basis for the challenged
provision." Lindner, 127 Ill. 2d at 183. Although the court
stated that it was not persuaded by that argument, the court
nonetheless considered the bases which the State offered and
determined that, notwithstanding these bases, the statutes in
question failed to pass the reasonable basis test and were
therefore unconstitutional. Lindner, 127 Ill. 2d at 184-85.
In this case defendant contends that the only public interest
which we should consider in determining whether section 50 of the
Act and section 60(5) of Act 2105 have a rational relationship to
the purpose of the Act is the protection of public health.
Defendant asserts that this is the stated purpose of the Act.
However, defendant does not cite the Act as authority for this
view, and in our review of the Act we were not able to locate such
a stated purpose.
We do not dispute that public health is one of the public
interests that the Act is intended to protect. However, reading
the Act in its entirety leads us to conclude that defendant's
position is unduly narrow. Our supreme court stated the interests
to be protected by the Act in a way which more fully reflects the
Act read in its entirety when it noted that "the State has a
legitimate interest in regulating medical professionals in order to
protect the public welfare" (Potts, 128 Ill. 2d at 330).
Stating the public interest to be protected by the Act in this
way encompasses sections of the Act which are not necessarily
directly related to medical competency, but which are nonetheless
proper parts of the Act. For example, section 9(B)(1) of the Act
requires that applicants for a license be of good moral character.
225 ILCS 60/9(B)(1) (West 1994). In addition, section 22 of the
Act lists a number of grounds which allow the Department to revoke
or suspend a license. 225 ILCS 60/22 (West 1994). Many of these
grounds are not directly related to medical competency. These
grounds include conviction of a felony and engaging in
dishonorable, unethical, or unprofessional conduct likely to
deceive, defraud, or harm the public. 225 ILCS 60/22(A)(3)(5)
(West 1994).
With this more expansive public interest in mind, we conclude
that section 50 of the Act and section 60(5) of Act 2105 bear a
reasonable relationship to the purpose of the Act. It is
reasonable for the State to not renew a medical license when the
licensee culpably defaults on an educational loan and the loan has
enabled the licensee to pay for the education that is a
prerequisite for the license. If the licensee culpably does not
repay the loan, this calls his moral character into question and
could constitute conduct which defrauds or harms the public.
We also conclude that the method used to protect the interest
is reasonable. Not renewing the license of a licensee who defaults
on an educational loan serves as an incentive to repay the loan.
The threat of nonrenewal is a deterrent to nonpayment.
For these reasons, we hold that the State's use of section
60(5) of Act 2105 in conjunction with section 50 of the Medical
Practice Act does not violate the due process clauses of the
Illinois and United States Constitutions. Therefore, the State's
use of these statutes in this case was not unconstitutional on due
process grounds.
Defendant next contends that the State's use of section 60(5)
of Act 2105 in conjunction with section 50 of the Act violated his
constitutional equal protection rights. Defendant asserts that the
objective of the Act is only to protect public health. Defendant
argues that classifying him as a doctor who has not repaid an
educational loan and using that classification to decide to not
renew his license is not reasonably related to public health and is
therefore unconstitutional on equal protection grounds.
In equal protection analysis, where the classification in
question does not affect a fundamental right or discriminate
against a suspect class, the standard for judging the
constitutionality of the classification is the reasonable basis
test. Miller v. Department of Professional Regulation, 276 Ill.
App. 3d 133, 144 (1995), citing City of New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 517, 96 S. Ct. 2513, 2516 (1976);
Cutinello v. Whitley, 161 Ill. 2d 409, 417 (1994). As seen above,
the right to pursue a profession is not a fundamental right; thus
courts reviewing statutes that regulate professions apply the
rational basis test. Potts, 128 Ill. 2d at 330. Accordingly, we
will apply the rational basis test in this case.
Our supreme court recently set out the principles guiding
courts in applying the rational basis test in the context of an
equal protection claim. The court stated:
"Whether a rational basis exists for a classification
presents a question of law, which we consider de novo.
Cutinello v. Whitley, 161 Ill. 2d 409, 417 (1994). Under the
rational basis test, a court's review of a legislative
classification is limited and generally deferential. People
v. Shephard, 152 Ill. 2d 489, 502 (1992). The court simply
inquires whether the method or means implied in the statute to
achieve the stated goal or purpose of the legislation is
rationally related to that goal. Fumarolo v. Chicago Board of
Education, 142 Ill. 2d 54, 74 (1990). The legislation carries
a strong presumption of constitutionality (People v.
Blackorby, 146 Ill. 2d 307, 318 (1992)), and if any set of
facts can reasonably be conceived to justify the
classification, it must be upheld (Shephard, 152 Ill. 2d at
502)." Jacobson v. Department of Public Aid, 171 Ill. 2d 314,
323-24 (1996).
Under these principles, defendant's equal protection claim
fails. As established above in the due process analysis, the means
employed in using section 60(5) of Act 2105 in conjunction with
section 50 of the Act were rationally related to the goal of the
Act. Consequently, the State's use of these statutes did not
violate defendant's equal protection rights.
Defendant next contends that the trial court erred when it
refused to instruct the jury that knowledge was an element of the
offense of practicing medicine without a license. Over defendant's
objection, the trial court gave the jury the State's instructions
which did not include knowledge or any other mental state as an
element of the offense. In doing so, the trial court refused to
give the jury defendant's instruction which included knowledge as
an element of the offense.
In its ruling, the trial court noted that section 50 of the
Act (225 ILCS 60/50 (West 1994)), which defines the offense, does
not contain any language regarding knowledge as an element of the
offense. The trial court then concluded that the legislature
therefore intended to make the offense an absolute liability
offense.
Section 50 provides:
"Any person who practices medicine in all of its
branches or treats human ailments without the use of drugs
or operative surgery including, but not limited to,
treatment or diagnosis of any physical or mental ailments or
conditions including, but not limited to, deformities,
diseases, disorders, or injuries without a valid license
under the laws of this State shall be sentenced as provided
in Section 59." 225 ILCS 60/50 (West 1994).
Section 59 of the Act makes the first violation of section 50 a
Class 4 felony and subsequent violations Class 3 felonies. 225
ILCS 60/59 (West 1994).
Defendant contends that the trial court erred when it
concluded that the offense was an absolute liability offense. We
agree.
Section 4--9 of the Criminal Code of 1961 (Code) (720 ILCS
5/4--9 (West 1994)) governs absolute liability offenses. Section
4--9 provides:
"Absolute Liability. A person may be guilty of an
offense without having, as to each element thereof, one of
the mental states described in Sections 4--4 through 4--7
[including knowledge] if the offense is a misdemeanor which
is not punishable by incarceration or by a fine exceeding
$500, or the statute defining the offense clearly indicates
a legislative purpose to impose absolute liability for the
conduct described." 720 ILCS 5/4--9 (West 1994).
As our supreme court has noted, the committee comments to
section 4--9 reveal that the legislature intended to limit the
scope of absolute liability. People v. Gean, 143 Ill. 2d 281, 285
(1991). The committee comments provide, in relevant part:
"This section is intended to establish, as an
expression of general legislative intent, rather strict
limitations upon the interpretation that mental state is not
an element of an offense, although the express language of
the provision defining the offense fails to describe such an
element. ***
* * *
In addition to permitting a construction requiring
absolute liability in offenses punishable by incarceration
or by a fine of not more than $500, the second part of
section 4--9 expresses the policy that in other offenses not
including a mental state in the definition only a clearly
indicated legislative intent to create absolute liability
should be recognized, and in all other instances, a mental-
state requirement should be implied as an application of the
general rule that an offense consists of an act accompanied
by a culpable mental state ***." 720 ILCS Ann. 5/4--9,
Committee Comments--1961, at 169-72 (Smith-Hurd 1993).
It is evident from the language of section 4--9 and from the
committee comments that, contrary to the view expressed by the
trial court, the mere absence of expressed statutory language
describing a mental state does not lead per se to the conclusion
that no mental state is required. Gean, 143 Ill. 2d at 286.
Rather, in accordance with section 4--9, where an offense is a
felony, courts will imply a mental state element in the offense
unless a clear legislative intent to impose absolute liability is
evident. 720 ILCS 5/4--9 (West 1994); see People v. Farmer, 165 Ill. 2d 194, 203 (1995).
Based on these principles, because the offense of practicing
medicine without a license is a felony, we will imply a mental
state element in the offense unless a clear legislative intent to
impose an absolute liability is evident. There is nothing in the
language of section 50 to suggest a legislative intent to make the
offense an absolute liability offense. In addition, our review of
the legislative history of section 50 reveals nothing to suggest
that the legislature intended to make the practice of medicine
without a license an absolute liability offense. Accordingly, we
will imply a mental state element in the offense.
Having concluded that the offense of practicing medicine
without a license is not an absolute liability offense, we must
determine which mental state element applies to the offense. Under
section 4--3(b) of the Code, when a statute defining an offense
which is not an absolute liability offense does not prescribe a
particular mental state, then either intent, knowledge, or
recklessness is applicable. 720 ILCS 5/4--3(b) (West 1994). In
this case, we agree with defendant that knowledge is the
appropriate mental state element of the offense. Thus, the State
had to prove that defendant practiced medicine with the knowledge
that he did not have a valid license.
Anticipating this result, the State contends that, even if
there was a mental state element for the offense, the trial court
was not required to instruct the jury as to the mental state
element. The State argues that, where the mental state element for
an offense is implied, an instruction as to the mental state is not
required.
It is not always error to omit an implied mental state from
jury instructions. People v. Garland, 254 Ill. App. 3d 827, 832
(1993). However, where the implied mental state is specific
enough, a jury instruction as to the mental state is required.
People v. Adams, 265 Ill. App. 3d 181, 187 (1994). We conclude
that the implied mental state of knowledge with respect to the
offense of practicing medicine without a license is specific enough
to require an instruction. Accordingly, the trial court erred when
it refused to give the jury defendant's instruction which included
knowledge as a mental state element of the offense.
The State next contends that any error in improperly
instructing the jury was harmless. The State argues that
defendant's guilt was so clear and convincing that the jury could
not reasonably have found defendant not guilty.
Error in giving or refusing instructions does not always
require reversal. People v. Jones, 81 Ill. 2d 1, 9 (1979).
Reversal is not required when the evidence of a defendant's guilt
is so clear and convincing that it would be unreasonable for the
jury to find the defendant not guilty. Jones, 81 Ill. 2d at 9.
In this case, the instructional error was the omission of an
instruction that knowledge is a mental state element of the
offense. However, defendant's knowledge that he was practicing
medicine without a valid license was blatantly evident from the
circumstances. There is no doubt that defendant received the
Nonrenewal Notice and Nonrenewal Order. These documents plainly
advised defendant that his license would not be renewed and to
cease practice as of July 31, 1993. The documents clearly notified
defendant that continuing to practice after July 31, 1993, could
subject him to criminal and Departmental prosecution for unlicensed
practice. The documents also advised defendant that the renewal of
his license would continue to be denied until both a satisfactory
repayment schedule was established with the ISAC and the
Department's approval was given.
Defendant may have taken some steps to establish a repayment
schedule with the ISAC. However, the record is devoid of any
evidence to suggest that defendant obtained the Department's
approval for the plan.
Defendant admitted that he knew his license had expired, but
he nonetheless continued to practice chiropractic medicine. After
his license expired, defendant took the expired license off the
wall in his office where it had been displayed. Defendant did not
take any of the routine steps that he had taken in the past to
renew his license such as completing an application form for the
renewal of the license and submitting the appropriate fee.
On this record, defendant's knowledge that he no longer had a
valid license after July 31, 1993, was blatantly evident.
Consequently, any error in failing to instruct the jury that
knowledge was an element of the offense was harmless.
Defendant next contends that he is entitled to a new trial
because of various instances of prosecutorial misconduct.
Defendant asserts that the State's misconduct denied him a fair
trial. The claimed misconduct by the State included: (1)
references throughout the trial to defendant's lack of insurance,
particularly malpractice insurance; (2) references to defendant's
failure to pay taxes; (3) references to defendant's submitting
insurance claims when he was not licensed; (4) deliberately
misleading the jury during rebuttal closing argument by suggesting
that defendant encouraged a presumed patient to pursue a fraudulent
worker's compensation claim; and (5) inflaming the jury by
referring to defendant as "Dr. Deadbeat" in rebuttal closing
argument. Defendant argues that the State improperly sought to
portray defendant as a bad person and that the portrayal created a
bias against defendant which prevented him from receiving a fair
trial.
The State responds by contending that defendant waived most of
these claimed errors by failing to object to them. The State also
asserts that any claimed errors that were not waived were either
cured by the trial court or were harmless.
Our review of the record indicates that in all but two of the
instances of claimed misconduct defendant did not object at trial.
When a party fails to raise issues at the trial level through both
an objection at trial and a post-trial motion, the issues are
waived and the party may not raise the issues on appeal. People v.
Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant concedes that he did not object to many of the
claimed errors. However, he contends that we should review the
claimed errors under the plain error rule. The plain error rule
permits a reviewing court to consider issues which have been waived
by an accused where (1) the evidence is closely balanced, or (2)
the error is so fundamental and of such magnitude that it denies
the accused a fair trial. People v. Lucas, 151 Ill. 2d 461, 482
(1992). In this case, the evidence was not closely balanced and
the waived claimed errors, neither individually nor cumulatively,
were not so fundamental or of such magnitude as to deny defendant
a fair trial. Accordingly, we will not consider any of the claimed
errors except the two claimed errors to which defendant objected.
The first claimed error that defendant objected to occurred
during the State's rebuttal argument when a prosecutor stated that,
because defendant did not have malpractice insurance, defendant's
employees could have been found liable if there had been an injury
to one of defendant's patients. Defendant's attorney objected by
stating, "That is a point of law that has not been brought into
issue." The trial court sustained the objection and instructed the
jury to disregard the statement.
A defendant faces a substantial burden when seeking a reversal
based on improper remarks made during closing argument. Even if a
prosecutor's remarks exceed the bounds of proper comment, a
reviewing court should not disturb the verdict unless it can be
said that the remarks in question resulted in substantial prejudice
to the accused, such that absent those remarks the verdict would
have been different. People v. Byron, 164 Ill. 2d 279, 295 (1995).
Under these principles, the prosecutor's statement in this
case that defendant's employees could have been liable because
defendant did not have malpractice insurance did not constitute
reversible error. The statement came after the jury had already
heard an abundance of evidence regarding defendant's practice of
medicine without a license. Under these circumstances, the
statement was not substantially prejudicial.
In addition, the trial court sustained defendant's objection
to the statement and clearly instructed the jury to disregard the
statement. This cured any error that occurred. See People v.
Cobb, 186 Ill. App. 3d 898, 916 (1989).
The other instance of claimed prosecutorial misconduct that
defendant objected to also occurred during the State's rebuttal
argument. Defendant contends that the prosecution made several
references to defendant as "Dr. Deadbeat" during its argument and
that these references were improper and prejudicial to defendant.
Our review of the record revealed two separate instances where
the State referred to defendant as Dr. Deadbeat during its rebuttal
argument. Defendant objected to one of the references, but the
trial court allowed the reference to stand.
On appeal, the State maintains that defendant sought to
portray himself as an honest man who, due to bad luck, fell behind
on his financial obligations through no fault of his own. The
State contends that the references to defendant as Dr. Deadbeat
were therefore fair comments to try to negate defendant's portrayal
of himself.
The State is allowed substantial latitude in closing argument.
People v. Pecoraro, 144 Ill. 2d 1, 16 (1991). It is improper,
however, for counsel to resort to name calling. See People v.
Johnson, 119 Ill. 2d 119, 139-40 (1987). Although we recognize
that, under certain circumstances, ridicule may be used
legitimately as an argument technique, we do not approve of the
prosecutor's "Dr. Deadbeat" comments because we view them as
falling into the category of unnecessary name calling. We believe
that the trial court should have sustained defendant's objection to
the comments.
However, even if the State's references to defendant as Dr.
Deadbeat were improper, it cannot be said that the references
resulted in such substantial prejudice to defendant that the
verdict would have been different absent the references. The
evidence that defendant knowingly practiced medicine without a
license was overwhelming. Any verdict other than guilty in the
face of this evidence would have been unreasonable.
Based on the foregoing, we affirm defendant's conviction of
practicing medicine without a license.
Affirmed.
BOWMAN and RATHJE, JJ., concur.
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