{ "id": 2810754, "name": "THE PEOPLE ex rel. FRANCES MATHIS, Plaintiff-Appellant, v. JAMES BROWN, Defendant-Appellee", "name_abbreviation": "People ex rel. Mathis v. Brown", "decision_date": "1976-11-16", "docket_number": "No. 62950", "first_page": "783", "last_page": "789", "citations": [ { "type": "official", "cite": "44 Ill. App. 3d 783" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "306 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. 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Ed. 2d 32", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "379 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11740003, 11740111, 11739793, 11739858, 11740185, 11739643, 11739934 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/379/0822-05", "/us/379/0822-06", "/us/379/0822-02", "/us/379/0822-03", "/us/379/0822-07", "/us/379/0822-01", "/us/379/0822-04" ] }, { "cite": "193 N.E.2d 337", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "43 Ill. App. 2d 324", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5246385 ], "year": 1964, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0324-01" ] }, { "cite": "240 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "97 Ill. App. 2d 438", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2476251 ], "year": 1963, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/97/0438-01" ] }, { "cite": "257 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "121 Ill. App. 2d 280", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582680 ], "year": 1968, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0280-01" ] }, { "cite": "291 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. 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FRANCES MATHIS, Plaintiff-Appellant, v. JAMES BROWN, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court:\nThis case involves the right of a defendant in a paternity action to refuse to answer deposition questions based upon the privilege against self-incrimination found in the fifth amendment of the United States Constitution. Plaintiff, Frances Mathis, filed this action against defendant, James Brown, charging him as the putative father of her daughter, Patrice LaTasha Mathis, born October 14,1973. At a bench trial the court found in favor of defendant. The State now appeals and raises the following issues for our consideration: (1) whether defendant had the right or privilege to refuse to answer deposition questions in a paternity action; and (2) whether the court\u2019s finding was against the manifest weight of the evidence.\nPlaintiff filed her complaint on July 10, 1974, pursuant to the Paternity Act. (Ill. Rev. Stat. 1973, ch. 106\u00be, par. 51 et seq.) Defendant waived his right to a jury trial and both parties were ordered to take cross-depositions. At a deposition held on May 6, 1975, defendant refused to answer a series of questions concerning his relationship, if any, with plaintiff. The State subsequently presented to the trial court a certified copy of the questions which defendant had refused to answer and requested an order to compel him to answer or, in the alternative, to bar him from testifying at trial. The motion was denied, with the trial court noting that a paternity action has \u201cmany criminal aspects\u201d including the use of the word \u201caccused\u201d in the relevant statute, the appointment of a public defender pursuant to statute, and the statutory demand of an appearance bond. Although the trial court mentioned a few questions which should or should not be answered, it did not go through all of the questions which had remained unanswered. Another deposition was then held on May 12, 1975, and again defendant refused to answer several questions on advice of counsel. A second motion to compel answers was filed and denied by the trial court, citing its earlier ruling, and also stated that it would not hear each disputed question; that it would not compel defendant to make an admission; and that it would not compel answers to questions concerning sexual intercourse because such questions are very incriminating in paternity cases.\nThe trial then commenced with the State calling defendant as a section 60 witness. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) He testified that he had had sexual relations with plaintiff once in 1968 at her apartment, but denied having relations with her or seeing her socially on any other occasion. After defendant\u2019s testimony, plaintiff testified that she and defendant had maintained a sexual relationship since 1963; that between 1963 and 1965 they engaged in intercourse about twice a week; that after a separation from her husband she resumed relations with defendant from 1970 until April 1973; that she was seen socially with defendant several times; and that she had not had sexual relations with any other man from December 1972 through March 1973. Plaintiff\u2019s sister, Alice Yoa, and niece, Priscilla Prim, both testified that they had seen defendant and plaintiff together on social occasions: at plaintiff\u2019s apartment, at the home of her parents, and at a lounge.\nDarrell Holloway testified for defendant that during February 1972, plaintiff telephoned his wife three times; and that he remained on the extension. Holloway heard plaintiff teH his wife that she was pregnant, that the father was some man other than defendant, and that plaintiff had originally planned to marry that other man. On cross-examination Holloway said the conversations took place in 1974 and then changed the date to the fall of 1973. He also admitted that defendant had moved into his home before the trial but stated that they had not discussed his testimony.\nAt the completion of all evidence, the trial court found that defendant was not the father of the child. On behalf of the plaintiff, the State now appeals.\nI.\nWe note at the outset that, although a proceeding pursuant to the Paternity Act may have the appearance of a criminal prosecution, it is actually a civil proceeding. (Cessna v. Montgomery (1976), 63 Ill. 2d 71, 89, 344 N.E.2d 447; People ex rel. Meyers v. Glees (1926), 322 Ill. 189, 190, 152 N.E. 575; People ex rel. Harris v. Williams (1st Dist. 1972), 8 Ill. App. 3d 821, 823-24, 291 N.E.2d 323; Clark v. Brown (1st Dist. 1970), 121 Ill. App. 2d 280, 286, 257 N.E.2d 565.) The purpose of the proceeding is to determine the identity of the putative father, to provide support for the illegitimate child, and to prevent it from becoming a public charge. (People ex rel. Blackmon v. Brent (1st Dist. 1968), 97 Ill. App. 2d 438, 442, 240 N.E.2d 255; Cornmesser v. Laken (2nd Dist. 1963), 43 Ill. App. 2d 324, 328, 193 N.E.2d 337, cert. denied (1964), 379 U.S. 822, 13 L. Ed. 2d 32, 85 S. Ct. 43, rehearing denied (1964), 379 U.S. 924, 13 L. Ed. 2d 337, 85 S. Ct. 272.) In a paternity suit the plaintiff\u2019s burden of proof is by a preponderance of the evidence (People ex rel. Staples v. Prude (1st Dist. 1974), 18 Ill. App. 3d 269, 271, 309 N.E.2d 670; Schultz v. Peeler (5th Dist. 1973), 10 Ill. App. 3d 937, 938, 295 N.E.2d 252; People ex rel. Bucaro v. Johnson (1st Dist. 1972), 8 Ill. App. 3d 618, 624, 291 N.E.2d 9); and provisions of the Civil Practice Act are applicable unless a specific provision of the Paternity Act requires otherwise (Petrous v. Roberts (2nd Dist. 1973), 12 Ill. App. 3d 992, 994, 299 N.E.2d 322).\nThe State in this case followed the procedure set out by our supreme court rules: it presented to the court a certified copy of the questions which defendant had refused to answer. (Ill. Rev. Stat. 1973, ch. 110A, par. 207(b).) After each frustrated deposition the State moved to compel answers to deposition and, in the alternative, to bar defendant from testifying at trial. Each motion was denied. The record reflects that the court stated at the hearing on the second motion:\n\u201cTHE COURT: I am ruling as I did before, there has to be certain questions. Now, the proper way to handle this will be to com [sic] in and ask me for a rule to show cause why he didn\u2019t answer the questions, but this is not the proper way. I\u2019m not going over each and every one of these questions, unless you come in on a rule to show cause. You come in on a ulre [sic] to show cause where failure to answer questions I ordered him to answer. At this point I\u2019m saying we\u2019re on trial, let\u2019s get the case goin [sic].\u201d\nSupreme Court Rule 219(a), however, illustrates that the State properly moved the court for an order compelling answers. (Cf. Carlson v. Healey (2nd Dist. 1966), 69 Ill. App. 2d 236, 215 N.E.2d 831.) In responding to the motion, the trial court should have entered an order either denying the motion based upon the applicability of the fifth amendment privilege to each unanswered question or granting the motion with an enumeration of each question to be answered. Had the court clearly ordered defendant to answer certain designated questions and had defendant thereupon refused to comply, the court could have then invoked any of the sanctions authorized by our supreme court, including contempt proceedings. Ill. Rev. Stat. 1973, ch. 110A, par. 219(c).\nAlthough a party may claim the fifth amendment privilege in any proceeding, whether civil or criminal (People ex rel. Keith v. Keith (1967), 38 Ill. 2d 405, 410, 231 N.E.2d 387; People v. Rimicci (1st Dist. 1968), 97 Ill. App. 2d 470, 478, 240 N.E.2d 195), the propriety of invoking the privilege must be determined by the court when the question is presented to it in an appropriate fashion (People v. Conzo (1st Dist. 1939), 301 Ill. App. 524, 534-35, 23 N.E.2d 210). In making that determination the court should not be skeptical; instead, the court should be aware that \u201cin the deviousness of crime and its detection, incrimination may be approached and achieved by obscure and unlikely lines of inquiry.\u201d (People v. Burkert (1955), 7 Ill. 2d 506, 518, 131 N.E.2d 495.) Thus, it must be perfectly clear under all of the circumstances that the answers cannot possibly have a tendency to incriminate the party claiming the privilege. Hoffman v. United States (1951), 341 U.S. 479, 488, 95 L. Ed. 1118, 71 S. Ct. 814; cf. People v. Hartley (4th Dist. 1974), 22 Ill. App. 3d 108, 111, 317 N.E.2d 57.\nYet the mere assertion of constitutional privilege does not automatically insulate a party from the usual duty to comply with discovery. The deponent must have a reasonable ground to fear self-incrimination if he is compelled to answer (People v. Schultz (1942), 380 Ill. 539, 544, 44 N.E.2d 601); fanciful or imaginary dangers will not suffice (In re Holland (1941), 377 Ill. 346, 355, 36 N.E.2d 543). In the case at bar, therefore, the trial court should have scrutinized each disputed question and clearly ruled on the reasonableness of defendant\u2019s refusal to answer. The court\u2019s method of recognizing a fifth amendment claim proved both confusing and erroneous. That method permitted defendant to make potentially unjustified claims of self-incrimination. As defendant testified fully at trial, however, we must now determine if the court\u2019s erroneous procedure unfairly prejudiced the State.\nII.\nThe State maintains that the trial court\u2019s refusal to require defendant to answer the deposition questions concerning his social and sexual relationship with plaintiff imposed a significant burden on it in the preparation and trial of the cause. Yet the State itself first called defendant as a witness pursuant to section 60. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) In his examination defendant denied having been seen socially with the plaintiff and admitted that a single act of sexual intercourse had occurred in 1968. He answered all questions propounded to him by the State. Although this testimony was first elicited at trial rather than at the depositions, we do not believe the State was seriously prejudiced. In calling defendant as a section 60 witness, the State was not concluded by his testimony; in fact, the record clearly shows that defendant\u2019s testimony was rebutted by the countertestimony of the plaintiff, Yoa, and Prim.\nFurther, the State argues that it was unable to prepare its case to refute the testimony of defendant\u2019s witness, Holloway. The State neither took a deposition from Holloway, nor asked for a continuance in which to more thoroughly prepare for trial. Those failures are not chargeable to defendant; the State\u2019s own lack of preparation will not serve as a basis for reversal. We also note that the slow pace of the trial inured to the State\u2019s benefit, not prejudice. In complaining of Holloway\u2019s unexpected testimony, the State overlooks the fact that the first portion of the witness\u2019s testimony took place on June 16, 1975, and was not resumed until July 15, 1975. Thus, the State had an additional month in which to prepare for its cross-examination of Holloway.\nWe have already discussed the erroneous procedure used by the trial court in dealing with the motion to compel answers; as wrong as it was, however, we can see no prejudice to the State.\nHI.\nLastly the State contends that the trial court\u2019s finding was against the manifest weight of the evidence. Here defendant\u2019s testimony was supported by Holloway; the plaintiff\u2019s testimony was supported by her niece and sister. While we readily agree that in a paternity action the complainant is forced to prove her case by circumstantial evidence and such evidence is to be afforded great weight on appeal (People ex rel. Dalman v. O\u2019Malley (1st Dist. 1963), 43 Ill. App. 2d 95, 99, 192 N.E.2d 589), this case depends on the credibility of witnesses. The trial court stated on the day of its decision that after hearing the witnesses and observing their demeanor, it believed that defendant was not the putative father of the child. There is support in the record for that finding. As a consequence, we will uphold the trial court\u2019s finding; it is not against the manifest weight of the evidence. People ex rel. Wider v. Johnson (5th Dist. 1975), 26 Ill. App. 3d 192, 192-93, 324 N.E.2d 722; People ex rel. Walsh v. Kilbride (3rd Dist. 1974), 16 Ill. App. 3d 820, 823, 306 N.E.2d 879.\nFor the reasons herein stated the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nHAYES and JIGANTI, JJ, concur.", "type": "majority", "author": "Mr. JUSTICE DOWNING" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Sheldon Gardner and Ellis B. Levin, Assistant State\u2019s Attorneys, of counsel), for appellant.", "Ron Fritsch, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE ex rel. FRANCES MATHIS, Plaintiff-Appellant, v. JAMES BROWN, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 62950\nOpinion filed November 16, 1976.\nRehearing denied January 21, 1977.\nBernard Carey, State\u2019s Attorney, of Chicago (Sheldon Gardner and Ellis B. Levin, Assistant State\u2019s Attorneys, of counsel), for appellant.\nRon Fritsch, of Chicago, for appellee." }, "file_name": "0783-01", "first_page_order": 813, "last_page_order": 819 }