source: Caselaw Access Project

author: PRESIDING JUSTICE GORDON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL MAJOR, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 90—2591
    Opinion filed March 26, 1993.

      Rita A. Fry, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Clare Wesolik, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GORDON

delivered the opinion of the court:

Defendant was convicted of first degree murder following a bench trial and was sentenced to 30 years in the Illinois Department of Corrections. On appeal, defendant alleges that his conviction should be reversed for the following reasons: (1) the trial judge improperly admitted certain evidence and viewed all of the evidence in the light most favorable to the prosecution; (2) the trial judge erred in failing to consider whether there was a mitigating factor present which would reduce the offense to second degree murder; (3) the trial judge erred when he considered a factor inherent in the offense, that the victim died, in sentencing defendant; and (4) that the Illinois murder statute is unconstitutional.

Facts

Defendant, Darrell Major, was indicted for first degree murder and armed violence in connection with the death of Maurice Guider. The defendant waived his right to a jury trial, and a bench trial was held at which the following testimony was heard.

Patricia Guider, the victim’s sister and defendant’s girl friend, testified that on Sunday, April 23, 1989, she was at home watching television. At 11:30 p.m., defendant rang her doorbell and she let him in. She stated that she then • received a phone call from an ex-boyfriend which upset defendant and started an argument between them. Patricia stated that defendant told her to call her ex-boyfriend and tell him to stop calling. She refused, their argument continued and eventually she left the apartment and began to walk down the block to get some air with defendant following her. She returned to the building in which she resided and rang the doorbell of her other brother, Dennis Guider, who lived in a basement apartment in that building. After he let them into the building, she and defendant began to argue again.

She testified that after about five minutes of arguing, her brother Maurice, the victim, came upstairs and asked defendant to talk to him for a second. Standing face to face, the victim asked defendant why he and Patricia kept arguing. Patricia stated that defendant told her to tell her brother to get out of his face. Defendant then began walking towards her, as did the victim. She testified that defendant reached into his trench coat pocket, pulled out a gun, and fired at Maurice, striking him in the eye. Patricia said that when defendant shot the victim, they were standing about five feet apart. Her brother’s arms were at his side and he did not have anything in his hands when he was shot. She testified that her brother did not own a gun.

On cross-examination, she admitted that she was romantically involved with the defendant, but stated that she did not know that he was married at the time. She acknowledged that the victim and defendant knew each other for approximately V-lz years and that they got along well. She denied that the victim had been drinking on the night of the incident. Patricia also denied telling the officers at the scene that Maurice came towards the defendant immediately prior to the shooting.

Detective Nick Crescenzo testified that on the night of the incident he arrived at the Guider home. He and his partner searched the area for weapons and did not find any.

A stipulation was entered that a toxicologist report would show that the victim had a blood-alcohol level of 109 milligrams per deciliter.

The defense also called Detective Crescenzo, who testified that Patricia Guider told him that Maurice was walking toward defendant when defendant pulled out a gun and shot the victim at point-blank range. A stipulation was offered at this point that another police officer, L.H. Smith, would state that Patricia Guider told him the same thing on the night of the shooting.

Darrell Major, the defendant, testified that at the time of the incident he worked as a security guard at a hospital and was married. He had known and had been dating Patricia Guider for approximately V-k years and had told her on several occasions that he was married.

On April 23, 1989, defendant went to Guider’s and rang the bell. At this point, Maurice Guider, the victim, yelled at defendant from a van parked in front of the house. He went upstairs and after Patricia received a call from an ex-boyfriend, they began to argue over her contact with an ex-boyfriend and the fact that defendant was married.

Defendant stated that he noticed Maurice in the apartment and that he motioned for defendant to come into the living room. Maurice then rushed at the defendant, grabbed him by the arm, and dragged him into the living room. Defendant testified that he smelled alcohol on Maurice and that he was scared, indicating that Maurice was double his size. Defendant began screaming for Maurice to let him go, telling Maurice that he was drunk. Defendant testified that Maurice then shoved him into the hallway. He noticed that Maurice kept one hand concealed in his jogging suit. They continued to argue and then Maurice started to take his hand out of his jogging suit. Defendant testified that he saw the butt of a semi-automatic weapon in Maurice’s hand.

Defendant stated that Maurice then grabbed him. At this point, defendant took a gun from his coat pocket and shot Maurice, who was standing only about one foot away. Defendant fled by car and eventually threw the gun onto the roof of a grocery store.

Dennis Guider was called by the State as a rebuttal witness. He testified that he never saw a gun near the victim’s body at the time of the incident. Over objection, he testified that his brother did not own a gun. Patricia Guider was also called in rebuttal and testified that on the night of the incident she did not see Maurice with a gun. Over objection, she said that she had never seen him with a gun.

During closing arguments, defense counsel argued that Patricia Guider’s story that the victim and defendant were five feet apart when the shot was fired was inconsistent with the fact that stippling, a residue left by the gunshot, was found on the entrance wound indicating, without objection from the State, that the gun was fired from a distance of no more than two feet from the victim. The judge responded that just because the two individuals were five feet apart did not mean that the gun was five feet from the victim when the shot was fired. The trial judge indicated that the defendant’s arm could have been outstretched when he fired the shot. Defense counsel responded that there was no testimony to that fact at trial.

Defendant was subsequently found guilty of first degree murder and sentenced to 30 years in the Illinois Department of Corrections. In sentencing defendant, the trial judge stated:

“This Court has listened to the evidence here and in this sentencing hearing the Defendant has had a past exemplary record, as a man appears in a fit of temper and jealousy because he thought his girl friend hadn’t severed her relations with a former lover or maybe even then a present lover along with him. I don’t know. Another man lost his life, shot in the eye. A bigger, taller man shot in the eye. All the witnesses here say to me to have mercy for you. I am merciful, extremely so. It’s just too bad that neither I nor any man on this earth can extend any mercy to Maurice Guider, a man whose life you took. Senseless. Needless.”

Opinion

On appeal, defendant contends that (1) he was denied a fair trial because the trial court improperly admitted evidence that the victim never carried a gun and also improperly viewed the evidence in the light most favorable to the State; (2) that the trial court erred when it failed to consider mitigating evidence which would reduce the defendant’s offense to second degree murder because it misunderstood the relationship between self-defense and the second prong of the second degree murder statute; (3) that the trial court committed reversible error by improperly considering a factor inherent in the offense, that the victim died, when it sentenced defendant; and (4) the Illinois murder statute violates the due process guarantees of the United States Constitution and the Illinois Constitution.

Defendant first claims that he was denied a fair trial when the trial court improperly considered the rebuttal testimony that the victim did not own a gun and that he never carried a gun. The State correctly points out that this issue was not raised in defendant’s post-trial motion and is consequently waived. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

However, even if not waived, the admission of this testimony does not constitute reversible error. Defendant claims that the rebuttal testimony did not tend to disprove or negate his testimony, but only allowed the improper inference that the victim was a peaceful man. Defendant cites People v. Goodwin (1981), 98 Ill. App. 3d 753, 424 N.E.2d 429, for the proposition that the defendant was entitled to a trial where the judge did not have “a better picture of the deceased than was allowed by law.”

We disagree with the contention that the testimony as to the victim’s ownership and possession of the gun was improper rebuttal. In this case, the defense relied primarily upon the contention that the victim was holding a gun. Defendant testified to this effect. The testimony offered in rebuttal by the prosecution contradicted defendant’s testimony that he killed the victim because he saw the victim pull a gun on him. In this respect, the evidence is not designed to address the victim’s character as a peaceful man as was the case in Goodwin, but rather to help establish whether or not defendant owned or ever carried a gun. See People v. Gardner (1977), 47 Ill. App. 3d 529, 362 N.E.2d 14.

Moreover, even if error were present in the admission of the evidence, it was harmless. While the offending testimony allowed the inference that the victim was not carrying a gun at the time of the incident, there was direct testimony from Patricia Guider that the victim was not carrying a gun on that night. There was testimony from both Patricia and Dennis Guider that they did not see their brother with a gun on the night of the incident. This testimony was supported by Detective Crescenzo, who stated that he and his partner searched the apartment for weapons on the night of the incident and did not find any. As such, the only possible adverse effect that this testimony could have had was to further reinforce the direct testimony which was already present in the record. Therefore, any error which may have occurred as a result of the trial judge’s admission of the rebuttal testimony was harmless. Defendant’s contention that the trial judge improperly inferred that the victim was a peaceful man and defendant’s innuendo that the judge was unduly sympathetic to the victim as a result of that inference is wholly speculative and unwarranted. (People v. Puhl (1991), 211 Ill. App. 3d 457, 472, 570 N.E.2d 447 (“[i]n a bench trial as opposed to a jury trial, there is a presumption that the trial judge considered only competent evidence, and that presumption will be overturned only where this is an affirmative showing that the trial considered incompetent evidence”).) Moreover, it is common sense as well as common knowledge that the mere failure to carry a gun would not suffice to establish a person as peaceful or otherwise nonviolent.

Defendant also argues that the attempt by the judge to reconcile the disparity between Patricia Guider’s testimony concerning the distance between the victim and defendant when the shot was fired and the evidence of the stippling around the entrance wound was improper. Defendant urges that in attempting to resolve this disparity by hypothesizing that defendant’s arm was extended when he fired the shot, the trial judge abandoned the reasonable doubt standard and was improperly viewing the evidence in the light most favorable to the prosecution.

It is the function of the trier of fact to determine the credibility of witnesses and the inferences which can be drawn from the evidence presented. (People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247.) It is axiomatic that the fact finder’s role in the criminal justice process is to resolve conflicts in the evidence presented. (People v. Purnell (1984), 126 Ill. App. 3d 608, 467 N.E.2d 1160.) Where evidence presented is capable of presenting conflicting inferences, the matter is best left to the trier of fact for resolution. (People v. Campbell (1992), 146 Ill. 2d 363, 586 N.E.2d 1261.) A fact finder’s determination on such a question, like how far away defendant was from the victim when he fired the shot, will be overturned only “where the evidence is so palpably contrary to the verdict or judgment that it is unreasonable, improbable or unsatisfactory and, thus, creates a reasonable doubt of guilt.” (People v. Pintos (1988), 172 Ill. App. 3d 1096, 1101, 527 N.E.2d 312.) Consequently, we must assess the correctness of the trial judge’s decision in this light.

In this case, Patricia Guider testified that the victim was standing five feet away from defendant when he was shot. The physical evidence indicates that the shot was fired from a closer distance. The trial judge’s explanation of the apparent discrepancy is well within the bounds of inference allowed to the trier of fact. Moreover, even where not completely reconcilable, mere conflicting evidence is not a sufficient ground for reversal, and a verdict will not be disturbed unless the evidence is so improbable that it raises doubts as to the defendant’s guilt. (People v. Buchanan (1991), 211 Ill. App. 3d 305, 570 N.E.2d 344; People v. Brandon (1990), 197 Ill. App. 3d 866, 557 N.E.2d 1264.) The potential conflict presented by defendant does not reach this level. Even if the witness erred as to the distance, it would not necessarily vitiate the remainder of her testimony.

In asserting that the trial judge disavowed the reasonable doubt standard, defendant contends that the conclusions of the trial judge are manifestly less plausible than those of the defense. In support, defendant asserts that the evidence is very close. Defendant also notes that the evidence of the stippling is more consistent with his claim of self-defense than the explanation given by the trial judge and that his version of the events of that night is more internally consistent than Patricia Guider’s. He points to the fact that Patricia Guider was impeached by a prior statement as to whether the victim was walking toward the defendant when he was shot. He further points to the fact her testimony that the victim was sober and five feet from defendant when shot was contradicted by the physical evidence that the victim had been drinking and was shot from less than two feet away.

A conviction will not be reversed on appeal on the basis of insufficient evidence unless “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Here, the eyewitness testimony of Patricia Guider which described in detail the events as they unfolded is sufficient to support the verdict if believed by the trier of fact. (People v. Ahern (1983), 119 Ill. App. 3d 532, 456 N.E.2d 852; see also People v. Bradford (1989), 187 Ill. App. 3d 903, 916-17, 543 N.E.2d 918 (“[m]inor inconsistencies in testimony do not constitute grounds for reversal of a criminal conviction [citations], and the effect of minor testimonial discrepancies upon the credibility of the witnesses is a matter for the trial court’s determination”).) Nor should the defendant’s testimony be considered controlling merely because it is internally consistent. Many factors enter into assessing the credibility of witnesses and, considering our position as a reviewing court which has not had the benefit of observing these witnesses, we would be extremely reluctant to disturb the findings of the trier of fact assessing the credibility of those witnesses. (See People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313.) We find no error in the trial court’s resolution of this issue and no indication that the trial judge applied an incorrect standard in finding defendant guilty.

Defendant’s next contention is that the trial court misunderstood the relationship between self-defense and the second prong of the second degree murder statute, which requires that “[a]t the time of the killing [defendant] believes the circumstances to be such that, if they existed, would justify or exonerate the killing *** but his belief is unreasonable.” (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 2.) Defendant argues that as a result, the trial judge failed to consider a mitigating factor which would reduce the offense to second degree murder. According to defendant, the comments of the trial judge at the post-trial hearings indicate that he did not consider whether mitigating factors were present to reduce the charge to second degree murder because he thought that his rejection of the self-defense defense foreclosed any such reduction.

In reviewing a bench trial, there is a presumption that the trial judge follows the law unless the record shows otherwise. (People v. Stewart (1970), 130 Ill. App. 2d 623, 264 N.E.2d 557.) When questioned on the point at the post-trial hearing, the trial judge indicated that although he did not specifically announce his findings for the record, he nevertheless considered and rejected a reduction of the charge to second degree murder. In so doing, the trial judge unequivocally stated, “I found there was no second degree murder.” After reviewing the record before us, and in light of the trial judge’s express assertion, we have not found sufficient grounds from which to conclude that the trial court failed to properly consider the “imperfect self-defense prong” of second degree murder.

Defendant’s third contention on appeal is that the 30-year sentence he received for first degree murder was excessive because the trial judge improperly considered a factor inherent in the offense, that the victim died, when sentencing him. In response, the State denies any error and in the alternative contends that defendant waived any such error because he did not object below.

A defendant waives an alleged error on appeal when he fails to object at the sentencing hearing and include the allegations of error in his post-trial motion. (People v. Murray (1990), 201 Ill. App. 3d 573, 559 N.E.2d 174; People v. Diaz (1989), 189 Ill. App. 3d 473, 545 N.E.2d 399.) At the sentencing hearing here, defendant did not object when the trial court handed down the sentence or when it articulated the reasons for that sentence. The defendant also did not raise this alleged error in his post-trial motion. We therefore agree with the State that defendant has waived this issue for purposes of review.

Even if defendant had not waived this issue, we would determine that the trial court did not err in sentencing the defendant. It is well established that the trial court has considerable discretion in imposing a sentence which is within the statutory guidelines established in the Criminal Code. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The trial judge’s imposition of a sentence will not be reversed absent an abuse of discretion and such decision is cloaked with a presumption of correctness. People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708; People v. Choate (1979), 71 Ill. App. 3d 267, 389 N.E.2d 670.

A trial court commits reversible error when it considers an element inherent in the offense when sentencing the defendant. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) The rationale of this rule is that the legislature has already devised a certain range of punishment for the crime which is based on the crime itself as well as the elements which comprise it. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) Courts, however, have consistently refused to reverse a trial judge’s imposition of a sentence merely because the judge mentioned an element of the offense when defendant was sentenced. See Murray, 201 Ill. App. 3d at 579-80; People v. Barney (1982), 111 Ill. App. 3d 669, 679, 444 N.E.2d 518 (“[i]t is unrealistic to suggest that the judge sentencing a convicted murderer must avoid mentioning the fact that someone has died or risk committing reversible error”).

Here, the trial court did not indicate that it considered the death of the victim in aggravation, but only considered the circumstances of the crime in how it related to both mitigation and aggravation. The sentencing court can consider the force employed and the physical manner, as well as the nature of the circumstances of the offense, in which the victim’s death was brought about in sentencing the defendant. (Saldivar, 113 Ill. 2d at 269.) Consequently, defendant’s reliance on People v. Willis (1991), 210 Ill. App. 3d 379, 569 N.E.2d 113, where the trial court explicitly stated that it considered the death of the victim in aggravation, is unavailing. No error is committed by the mere mention of a factor inherent in the offense when imposing sentence for that offense. See People v. Bennett (1987), 159 Ill. App. 3d 172, 511 N.E.2d 1340; People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795; People v. Barney (1982), 111 Ill. App. 3d 669, 444 N.E.2d 518.

We note that the 30-year sentence was 10 years over the statutory minimum established in section 5 — 8—1 of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1.) Defendant claims that the only possible explanation for the length of this sentence was the trial court’s improper consideration of the death of the victim. We disagree. Notwithstanding defendant’s contentions to the contrary, the evidence offered in mitigation does not dictate that this court reduce defendant’s sentence to the 20-year minimum. The trial judge specifically acknowledged the witness’ prior exemplary record and the pleas for mercy on his behalf, but given the circumstances surrounding the crime, the trial court was well within its discretion in deciding that in light of all the evidence, including that offered in mitigation, that a 30-year sentence was appropriate.

Finally, we reject defendant’s contention that the Illinois homicide statute violates due process. The arguments presented by defendant here have been previously considered by this court and the statute has been consistently held constitutional. (See, e.g, People v. Collier (1992), 228 Ill. App. 3d 159, 161, 592 N.E.2d 444 (listing “plethora of recent decisions by this court” rejecting constitutional challenges to the Illinois homicide statute); People v. Willis (1991), 217 Ill. App. 3d 909, 577 N.E.2d 1215 (rejecting argument that required mental states of first and second degree murder were inconsistent, stating that section 9 — 2 does not violate defendant’s constitutional right to due process because it does not require defendant to negate an element of first degree murder); People v. Brown (1991), 218 Ill. App. 3d 890, 895, 578 N.E.2d 1168 (stating that defendant’s argument attacking the Illinois homicide statute as violative of due process because it requires defendant to negate an element of first degree murder “confus[es] self-defense with the second degree murder’s mitigating factor”); see also People v. Reeves (1992), 228 Ill. App. 3d 788, 593 N.E.2d 683; People v. Wright (1991), 218 Ill. App. 3d 764, 578 N.E.2d 1090; People v. Gore (1991), 212 Ill. App. 3d 984, 571 N.E.2d 1041.) In light of the ample precedent, we see no reason to consider defendant’s argument further.

For the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

MURRAY and McNULTY, JJ., concur.


author: JUSTICE COUSINS

text:
    S.B. LEXINGTON, INC., Plaintiff-Appellant, v. NEAR NORTH INSURANCE AGENCY, INC., Defendant-Appellee.
    First District (5th Division)
    Nos. 1 — 91—0712,1—91—1147 cons.
    Opinion filed March 26, 1993.

      Hopkins & Sutter, of Chicago (John F. Zabriskie, of counsel), for appellant.
    Katten, Muchin & Zavis, of Chicago (James E. Hanlon, Jr., of counsel), for appellee.
   JUSTICE COUSINS

delivered the opinion of the court:

Plaintiff-appellant S.B. Lexington, Inc. (Lexington), appeals the trial court’s judgment rendered against it in a breach of contract action brought against defendant, Near North Insurance Agency (Near North), to recover the balance of a fee Near North agreed to pay as consideration for the referral of a potential insurance client.

On March 15, 1990, a trial judge denied both parties’ cross-motions for summary judgment but found that the alleged contract did not violate the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.). A different trial judge was assigned to preside at trial.

On January 24, 1991, the second trial judge vacated the initial trial judge’s determination and on January 28, 1991, following a trial, found that Bernstein, and not Lexington, was the finder of the Rosenow Roofing account, that a contract existed, that Ted Bernstein was not properly licensed, and as a consequence, the contract was void because it violated provisions of the Illinois Insurance Code.

The issues presented for review are (1) whether the trial court erred in finding that the agreement was in contravention of section 507.1 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1985, ch. 73, par. 1065.54 — 1) and was thereby unenforceable, (2) whether compensation may be paid to a registered insurance firm for services where the representative who performed the services was not licensed, and (3) whether Lexington was a properly registered firm.

We reverse and remand.

Background

Lexington is an insurance brokerage company licensed by and registered with the State of Illinois. Lexington sells, among many other types of insurance, liability, property, and casualty insurance. Lexington is presently owned by Simon Bernstein. During the time relevant to these appeals, Lexington’s president, Richard Klink, was properly licensed to sell property and casualty insurance in Illinois.

Ted Bernstein (Bernstein) is Simon Bernstein’s son. He is licensed to sell life, accident, and health insurance. Bernstein has had a longstanding relationship with Lexington. From 1978 through 1980, Bernstein was a representative of Lexington. After that, he started his own firm, Tax Perks, which shared office space with Lexington. In 1984 or 1985, Bernstein started another company, Assured Enterprises, which currently shares offices with Lexington. Bernstein’s firms continue to broker business through Lexington.

Near North is a general insurance brokerage firm that deals in all types of commercial and personal insurance, and acts as broker and agent for various insurance companies on a nationwide basis. Its president is Michael Segal, who has held that position for almost two decades. Mr. Segal is an attorney and a certified public accountant.

Bernstein sold life insurance to Rosenow Roofing. Mr. Rosenow of Rosenow Roofing told Bernstein that his company was in need of property and casualty insurance because its coverage was going to expire. Rosenow asked Bernstein to assist him in finding replacement property and casualty insurance. Thereafter, Bernstein called a business associate who suggested that he call Nick Melas of Near North.

Bernstein called Melas, told him that he was trying to assist his client, and explained Rosenow Roofing’s situation. Melas told Bernstein that he could assist Rosenow Roofing. Bernstein gathered some data and arranged a meeting between the parties. Before meeting, Bernstein gave Tom Magner of Near North some information about the Rosenow Roofing account. Melas was unavailable.

The initial meeting was attended by Bernstein, Magner, two Rosenows, Rosenows’ attorney, and possibly Rosenows’ certified public accountant and/or comptroller. At this meeting, Bernstein made introductions, stated the meeting’s purpose, and left before its conclusion.

Magner scheduled and attended additional meetings with Rosenow Roofing personnel in which Bernstein did not participate. Magner made a proposal to Rosenow Roofing regarding property and casualty insurance coverage which Rosenow Roofing accepted.

Rosenow Roofing maintained coverage under policies brokered by Near North for one year during which Rosenow Roofing paid $815,895 in premiums. Near North earned $92,770.80 in commissions.

In trying to ascertain the amount of compensation that Lexington was to receive, Magner arranged a meeting between Segal and Bernstein. The meeting occurred in October 1985 at Near North’s office.

During this meeting, Bernstein testified that Segal told him that Near North would pay Lexington a fee equal to 45% of the first year’s commissions on the Rosenow Roofing account. Bernstein agreed and told Segal that Lexington would send a letter confirming their agreement.

Shortly thereafter, Bernstein notified Lexington’s president, Richard Klink, that, on Lexington’s behalf, he had accepted as compensation 45% of the first year’s commission. Klink confirmed the agreement by sending a letter to Segal dated October 7,1985:

“Dear Mr. Segal:
Enclosed is [sic] copy of registration of S.B. Lexington, Inc. as an insurance firm.
One of our representatives, Mr. Ted S. Bernstein, has placed a case (Hans Rosenow Roofing Company) with your firm.
The commissions on this case (45% to 50% of the total) should be paid to S.B. Lexington, Inc. as well as all commissions on cases placed with your firm in the future by Mr. Bernstein ***.”

According to Magner, Segal met with Magner and discussed the terms of Lexington’s fees and instructed him to write a confirmation letter.

In early November, 1985, Magner drafted a letter to Bernstein:

“Dear Ted:
I am writing this letter to confirm our various conversations regarding commissions payable to your firm.
Mr. Michael Segal had indicated to you that you would be receiving 50% of the gross commissions developed on the Hans Rosenow Roofing Company account. Actually, the percentage was something less than 50% (45%) since Michael was setting aside a share for me. You had accepted this, so from a practical standpoint, 45% of the gross commissions on the Hans Rosenow Roofing account will be paid to your firm***.”

The draft further provided that, because Rosenow Roofing paid its premiums in installments, Lexington would receive its fee in installments. The draft letter instructed Bernstein to contact the head of Near North’s accounting department to make payment arrangements.

Magner testified that the draft was approved by Near North’s executive vice-president after he made minor changes. This letter was sent to Bernstein.

Near North failed to pay Lexington. A Lexington assistant requested that Watkins, of Near North’s accounting department, pay Lexington 45% of commissions received by Near North with respect to the Rosenow Roofing account. Watkins drafted a memo:

“December 12, 1985
TO: MIKE SEGAL
FROM: DAN WATKINS
RE: Hans Rosenow Roofing Co., Inc.
Ted Bernstein of S.B. Lexington (a Sub-Broker) has called requesting his commission check. It is my understanding a 45% commission rate should be paid.
Attached are the Accounts Receivables for Hans Rosenow Roofing Co. Invoices which have been paid in full are highlighted and I based his commission split on 45% of $17,028.80 (Total Commission). Commission due Bernstein is $7,662.96.
O.K. to issue the check?_YES_NO.”

The “yes” blank was marked. Watkins then dispatched a check for $7,662.96 payable to Lexington.

Segal contradicts the above version. Segal testified that he had a meeting with Bernstein regarding a fee but that they did not reach an agreement. Segal contended that as Near North did all the work, no one had done enough to be considered a broker and the $7,662.96 check was considered a finder’s fee.

Lexington filed its original complaint -with the chancery division on June 26, 1986. On November 6, 1986, upon motion of Near North, the case was reassigned to the law division. Near North filed its answer and affirmative defenses.

More than three years later, this case was set to be assigned out for trial on December 8, 1989. Near North filed a motion for summary judgment claiming that the contract between it and Lexington was illegal under the Illinois Insurance Code. The assignment judge ruled that the motion would be ruled upon by the judge to whom the case was to be assigned. The matter was continued to March 27, 1990.

However, on January 24, 1990, Near North brought an emergency motion to have its summary judgment motion determined before the March 27, 1990, trial date. Near North’s summary judgment motion and Lexington’s cross-motion for summary judgment were assigned to Judge Edwin M. Berman, who denied both motions, but with respect to Near North’s Code defense, ordered:

“Pursuant to Section 2 — 1005(d) of the Illinois Code of Civil Procedure, this Court determines that there is no genuine dispute of fact, and as a matter of law the Illinois Insurance Code does not bar payment by Near North to S.B. Lexington, which payment is alleged in S.B. Lexington’s Complaint.”

The case was returned to the assignment judge, who ultimately assigned it to Judge Edward G. Finnegan.

Both parties moved that Judge Finnegan reconsider the portions of Judge Berman’s March 15, 1990, order adverse to their respective interests. Judge Finnegan denied both motions and vacated the previous trial court’s section 2 — 1005(d) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(d)) determination. The matter proceeded to trial.

The trial court thereupon ruled that (1) Mr. Bernstein, and not S.B. Lexington, was the finder of the Hans Rosenow Roofing account, (2) that Bernstein/Lexington did have an agreement with defendant Near North that it would be paid 45% of the commission paid on the Rosenow Roofing account, (3) that Bernstein was not licensed as a broker for property and casualty insurance, and (4) that as the agreement was in contravention of the Illinois Insurance Code, sections 507.1 and 499.1, the agreement was unenforceable.

Appeal was taken from this order.

Opinion

I

Lexington contends that the trial court erred in finding that the agreement was in contravention of section 507.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 1065.54 — 1) and was thereby unenforceable.

The cardinal rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the legislature’s intent, and in construing such a statute, the court must assume that the legislature did not intend an absurd result. Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.

When interpreting a statute, courts must give the language of that statute its plain and ordinary meaning, looking first to the statutory language. Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24, 50-51, 563 N.E.2d 465.

When terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings. Niven v. Siqueira (1985), 109 Ill. 2d 357, 366, 487 N.E.2d 937.

Section 507.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 1065.54 — 1) provides:

“No insurance company, insurance producer, limited insurance representative or registered firm shall pay, directly or indirectly, any commission, service fee, brokerage or other valuable consideration to any person for services as an insurance producer, temporary insurance producer or limited insurance representative, or for such services by the person’s members, officers, directors or employees, unless the person, and any member, officer, director or employee performing such service held a valid license regarding the class of insurance as to which such service was rendered, or unless the person was a properly registered firm at the time such service was performed. No person, other than a person properly licensed or registered in accordance with this Article at the time he performs services as an insurance producer, temporary insurance producer or limited insurance representative shall accept any commission, service fee, brokerage or other valuable consideration for such services. This Section shall not prevent payment or receipt of renewal or other deferred commissions to or by any person entitled thereto under this Section.” (Emphasis added.)

The trial court found that the contract was void because it violated provisions of the Illinois Insurance Code. Whether or not the trial court correctly interpreted and applied sections 507.1 and 499.1 is a question of law.

Reviewing courts determine questions of law de novo and give no deference to the trial court’s ruling. South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 365, 519 N.E.2d 1005.

The key words in the Code relative to the case at bar are set forth in the phrase “services as an insurance producer.” While this phrase is not defined, section 491.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 1065.38 — 1(b)) defines “insurance producer” as:

“an individual who solicits, negotiates, effects, procures, renews, continues or binds policies of insurance covering property or risks located in Illinois.”

The definition of “solicit” is to approach, to make petition to, to move to action, or to strongly urge. (Webster’s Third New International Dictionary 2169 (1986).) According to the definition, Bernstein, through Lexington, cannot be said to have solicited because the facts state that Rosenow Roofing contacted Bernstein for assistance in obtaining insurance. Thereafter, Bernstein called Near North, scheduled a meeting between Rosenow Roofing and Near North, went to the meeting, made introductions, stated the meeting’s purpose, and left the meeting before its conclusion. Therefore, Bernstein did not solicit.

“Negotiate” is defined as to communicate and confer with another so as to arrive through discussion at some agreement or compromise. (Webster’s Third New International Dictionary 1514 (1986).) The facts indicate that Bernstein did not discuss any particulars so as to arrive at some agreement or compromise. Therefore, Bernstein did not negotiate.

“Effect” is defined as to bring about a result. (Webster’s Third New International Dictionary 724 (1986).) We submit that the effect contemplated by insurance law is to bring about insurance. Near North contends that Bernstein was an insurance producer. However, the facts in the case at bar do not indicate that Bernstein brought about insurance. The insurance was brought about by Near North. The facts indicate that Bernstein introduced the broker (Near North) to the purchaser (Rosenow Roofing).

“Procure” is defined as to cause to happen, to bring something about. (Webster’s Third New International Dictionary 1809 (1986).) The same facts indicate that the insurance was procured by the broker, Near North.

Bernstein did not renew (reestablish), continue (maintain without interruption), or bind (constrain with legal authority) any insurance policies regarding Rosenow Roofing and Near North. Webster’s Third New International Dictionary 1922, 493, 217 (1986).

The evidence establishes that Bernstein did not offer any substantive advice about the Rosenow Roofing account to Near North. We note that Near North’s president, Segal, testified that he did not consider Bernstein to be a broker because Bernstein did not fill out applications, assemble underwriting submissions consisting of a lot of data, engineer reports, and ultimately sell the particular program to the prospective insured. Moreover, Segal testified that the check which was submitted to Lexington was not coded as being a broker’s commission or compensation. He testified that the check was a finder’s fee which was not in contravention of the Code. This testimony is in contradiction to Near North’s position that Bernstein was acting as an insurance producer.

Further, the fact that Segal considered the compensation that Lexington received from Near North as being a finder’s fee is consistent with the notion that Bernstein’s actions constituted a referral. A “referral” is the process of directing or redirecting to an appropriate specialist or agency. Webster’s Third New International Dictionary 1908 (1986).

We note that the Chief Counsel of the Illinois Department of Insurance, in connection with motions to reconsider, represented, in an affidavit, that:

“[w]here no substantive advice about any policy of insurance is offered to the consumer by a referring party and the referral is not part of a plan or practice of steering consumers generally to a particular insurance agency or product, it is the Department’s position that no ‘services as an insurance producer’ has [sic] taken place within the meaning of that phrase as used in Section 507.1 of the Illinois Insurance Code. ***
In those circumstances therefore, it is the Department’s position that Section 507.1 of the Illinois Insurance Code does not bar the payment of a referral fee by the agency to the referring party or to the entity on whose behalf the referring party acted.”

The interpretation placed on a statute by the agency charged with its administration and enforcement, while not binding, is generally accorded deference. City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146.

We agree with the opinion of the Chief Counsel of Insurance. The evidence established that Bernstein did not offer any substantial advice about any insurance policy to any consumer. Nor did the evidence establish a particular “plan or practice of steering” customers to Near North.

Further, the definition of “insurance producer” does not include the word “refer.” A person who makes a referral, as such, is not an insurance producer. It is not the province of the courts to inject provisions not found in a statute. In re Objection of Cook to Referendum Petition of Pierce (1984), 122 Ill. App. 3d 1068, 1072, 462 N.E.2d 557.

Bernstein, therefore, was not an insurance producer and the trial court erred in finding that the agreement between Lexington and Near North was in contravention of section 507.1 of the Illinois Insurance Code.

II

Lexington contends that even if Bernstein were considered to be an insurance producer, compensation may be paid to a registered insurance firm for services where the representative who performed the services was not licensed. We agree.

“No insurance company *** shall pay *** any commission, service fee *** to any person for services as an insurance producer *** unless the person *** held a valid license regarding the class *** or unless the person was a properly registered firm ***.” Ill. Rev. Stat. 1985, ch. 73, par. 1065.54-1.

Section 507.1 expressly provides for the payment of a fee to “a properly registered firm at the time such service was performed.” (Ill. Rev. Stat. 1985, ch. 73, par. 1065.54 — 1.) Bernstein admits that he was not licensed to sell property and casualty insurance. However, Richard Klink, Lexington’s president, was so licensed. The parties stipulated to this matter in joint exhibit 2:

“Near North Insurance Agency admits, for purposes of this trial, that Richard Karl Klink was licensed to sell both property and casualty insurance in the State of Illinois in 1985 ***.
Near North Insurance Agency admits, for purposes of this trial, that S.B. Lexington, Inc. was registered as an insurance agency in the State of Illinois in 1985.”

Therefore, Lexington was a registered firm at the time services were rendered and compensation may be paid.

Ill

Near North contends that Lexington was not a properly registered firm. We disagree.

Section 499.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 1065.46 — 1) provides:

“(a) Each firm required to register before acting as a registered firm pursuant to this Article shall appoint one or more licensed insurance producers to be responsible for the firm’s compliance with the insurance laws and Title 50 of the Illinois Administrative Code. Such individual or individuals shall submit to the Director a registration form and the fees required by Section 509.1. The Director shall prescribe the registration form and may require any documents reasonably necessary to verify the information contained in the registration form.
(b) The registered firm shall inform the Director in writing of a change in its business address within 30 days of such change.
(c) Each registered firm shall disclose its members, officers or directors who are authorized to act as insurance producers, and report any changes in such personnel to the Director within 30 days of such changes.”

Near North contends that Lexington was improperly registered because Lexington did not comply with section 499.1(c) because it neglected to update the list of insurance producers submitted to the Director of Insurance to include Bernstein.

Section 499.1(a) requires that firms appoint at least one licensed insurance producer to be responsible for the firm’s compliance with the insurance laws. As noted above, this requirement was satisfied.

Section 499.1(c) requires that each registered firm disclose its members who are authorized to act as insurance producers and to report any personnel changes within 30 days of such changes.

Lexington did not comply with subsection (c) because it did not report a change in its personnel. However, the applicable statute does not list any penalties (for example: invalidation of a firm’s otherwise proper registration) for failure to comply with this reporting requirement. Further, the meaning of the 1985 Code has been, made crystal clear by a subsequent amendment to the statute. Section 499.1(a) of the Illinois Insurance Code (Ill. Rev. Stat. 1991, ch. 73, par. 1065.46 — 1(a)), in pertinent part, provides:

“Such registration shall remain in effect as long as the firm pays the annual fee required by Section 509.1 of this Code *** by the date due, unless the registration is revoked or suspended pursuant to Section 505.1 of this Code.” (Emphasis added.)

It is our view that a firm is properly registered whether or not it discloses its officers (section 499.1(c)) or reports changes in location (section 499.1(b)). A firm is properly registered when it has complied with registration laws, the payment of fees, and has incurred no revocation or suspension.

For the foregoing reasons, we reverse and remand.

Reversed and remanded.

McNULTY and TULLY, JJ., concur.


author: JUSTICE O’CONNOR

text:
    RICHARD MOY, as Special Adm’r of the Estate of Choy Moy, Deceased, Plaintiff-Appellant, v. THE COUNTY OF COOK, Defendant-Appellee.
    First District (1st Division)
    No. 1 — 91—3372
    Opinion filed March 29, 1993.

      Levin & Perconti, of Chicago (David B. Wilson, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Karen A. Covy, James M. Varga, and Georgia A. Buglass, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Richard Moy, as special administrator of the estate of Choy Moy, appeals from the circuit court’s dismissal of his complaint.

We affirm.

This case arises from the death of Choy Moy on July 10, 1989, while he was an inmate at the Cook County jail. Plaintiff, filed a three-count complaint against defendant, the County of Cook (the County) “through its Sheriff, its Department of Corrections, its directors and its employees.” The complaint contained a factual core which was incorporated into all three counts. Moy was jailed at the Cook County jail on March 9, 1989. Upon his admission, a physical examination conducted at the Cermak Medical Center revealed that Moy needed an “abdominal evaluation” for a “distended bowel.” Moy, however, never received a “proper” abdominal evaluation, and in response to his complaints, the County gave him “over the counter” laxatives weekly. On July 9, 1989, at 7:50 a.m., “the defendant Cook County’s jail staff was made aware” that Moy was ill and was unable to control his bowel movements. Between noon and 1 p.m. paramedics were at the jail in the “day room” conducting their daily “rounds” to examine and treat inmates “needing treatment.” While there, the paramedics were told by Moy’s brother and cellmate, James, that Moy needed medication for high fever and diarrhea. Another inmate also informed the paramedics that Moy was too ill to come to the “day room.” Paramedic Dixon then responded that “if he [Moy] couldn’t come to the day room he [Dixon] couldn’t help him.” Moy died early the next morning.

In count I, plaintiff alleged that the County owed Moy a duty while he was incarcerated of providing Moy with medical care and of refraining from willful and wanton misconduct. Plaintiff charged that the County had breached this duty in numerous ways, including the failure to train and supervise the jail staff, which resulted in Moy’s wrongful death. Count II stated that prior to his death, Moy endured pain and suffering stemming from the County’s breach of duty. Count III alleged various civil rights violations under 42 U.S.C. §1983 (1988) (section 1983) in that the County had deprived Moy of his life in violation of the fourth, fifth, eighth, and fourteenth amendments of the United States Constitution.

The County filed a motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) in which it argued that the County’s duty with respect to the County jail was prescribed by statute and that plaintiff’s complaint did not allege any breach of that statutory duty. The County urged that, under the relevant statutes, the Cook County sheriff possessed the duty plaintiff had alleged in its complaint. The sheriff, it argued, was the proper party defendant under the circumstances alleged in the complaint.

Following arguments, the circuit court granted the County’s motion and dismissed the action. Plaintiff’s motion for reconsideration was denied, and this timely appeal followed.

Plaintiff contends that the County is responsible for the action of the sheriff pursuant to the principle of vicarious liability because it is financially responsible for the jail and because the Sheriff’s actions are performed on behalf of the entire County.

The only case to address this issue directly is Holda v. County of Kane (1980), 88 Ill. App. 3d 522, 410 N.E.2d 552. There, a divided appellate court held that the sheriff is a county officer whose common law and statutorily imposed duties are intended to benefit the County as a whole; thus, the County must be held liable on a respondeat superior theory for the negligence of the sheriff in the execution of his duties. (Holda, 88 Ill. App. 3d at 531.) Although the court recognized that the county board has no power to supervise, direct, or control the actions of the sheriff in the operation of the jail, the court did not believe that fact alone could preclude the application of the respondeat superior theory:

“The ‘control’ test is merely one of a number of justifications offered for the vicarious liability theory doctrine of respondeat superior. (Prosser, Torts §69, at 459 (4th ed. 1971).) While the degree to which the employee is subject to the control of the employer remains an important consideration in determining whether the employer will be held liable for the employee’s negligence on a vicarious liability theory, the absence of direct control does not, ipso facto, negate liability. This is particularly true with respect to a county officer, such as the sheriff, whose actions and duties involve a great deal of discretion, but yet are performed entirely on behalf of the county itself.
*** The sheriff is clearly a county officer whose actions are performed on behalf of the county. Like a corporation, a county can act only through its officers, servants, and agents (see Village of Wilsonville v. Earthline Corp. (1978), 65 Ill. App. 3d 392, 394, 383 N.E.2d 689, 691); like a corporation, therefore, a county should be held liable for the negligence of its officers, servants, and agents occurring in the course of county business.” Holda, 88 Ill. App. 3d at 532.

Justice Woodward, in his dissent, however, criticized the majority’s rationale by noting that the relationship between the county sheriff and the county board differs from that between a corporation’s board of directors and the corporation’s officers, agents, and employees. In the latter situation, a corporate board has the power to hire and fire if the directions of the board are not followed. The same cannot be said of the county board because the county board does not select and cannot discharge the sheriff. Holda, 88 Ill. App. 3d at 540-41 (Woodward, J., dissenting).

We agree with the rationale set forth in the dissent and decline to follow Holda.

In Illinois, the test of agency is whether the alleged principal has the right to control the manner and method in which work is carried out by the alleged agent and whether the alleged agent can affect the legal relationships of the principal. (Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302; Anderson v. Boy Scouts of America, Inc. (1992), 226 Ill. App. 3d 440, 589 N.E.2d 892, appeal denied (1992), 145 Ill. 2d 631, 596 N.E.2d 625.) The appellate court in Holda likened the county board to a corporation’s board of directors in order to meet this test of agency. However, our supreme court has recognized that

“[qjuasi municipal corporations, such as counties and townships, are at most but local organizations, *** and they are invested with but few characteristics of corporate existence.” (County of Cook v. City of Chicago (1924), 311 Ill. 234, 239, 142 N.E. 512.)

Moreover, counties, townships, school districts, cities, villages, and other municipal and quasi-municipal corporations are created under the authority of the legislature, to better accomplish the purposes of local government. (1 E. McQuillin, Municipal Corporations §2.13 (3d ed. 1987).) These municipal and quasi-municipal corporations derive their existence and all their powers from the legislature which created them. (Scates v. King (1883), 110 Ill. 456.) Therefore, a county board can exercise only such powers as are given by law or such as arise by necessary implication or are indispensable to carry into effect the object and purpose of their creation. (County of Cook v. Gilbert (1893), 146 Ill. 268, 33 N.E. 761.) In light of these principles, we must look to the specific statutory provisions regarding the office of sheriff and the county board in order to determine whether an agency relationship exists between them in the manner alleged in plaintiff’s complaint.

The sheriff is an office created by section 4(c) of article VII of the Illinois Constitution. As a result, the sheriff answers only to the electorate, not to the county board (Ill. Const. 1970, art. VII, §4(c)), and the powers and duties of the office are established by the legislature. The legislature has provided that the Cook County jail and the Cook County Department of Corrections are solely under the supervision and control of the Cook County sheriff, acting as warden of the jail. (See Ill. Rev. Stat. 1989, ch. 75, pars. 102, 103; see also Ill. Rev. Stat. 1989, ch. 34, par. 3 — 6017.) The legislature also has charged the sheriff with the responsibility for the “conduct” and “the hiring and training of all personnel necessary to operate and maintain the jail.” (Ill. Rev. Stat. 1989, ch. 75, par. 103.) The sheriff is further mandated by the legislature to “furnish necessary bedding, clothing, fuel and medical aid for all prisoners under his charge.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 75, par. 117.) The sheriff’s sole responsibility in this area is underscored by the fact that the legislature has decreed that “[n]o county board may alter the duties, powers and functions of county officers that are specifically imposed by law.” (Ill. Rev. Stat. 1989, ch. 34, par. 5 — 1087.) Although each county board is charged with the cost and expense of “keeping, maintaining and furnishing” its county jail (see Ill. Rev. Stat. 1989, ch. 75, par. 120), our courts have held that such “general” control “gave way” to the “specific” statutory provisions which provide that the sheriff shall have the custody and care of the jail in his county. People ex rel. Walsh v. Board of Commissioners (1947), 397 Ill. 293, 298, 74 N.E.2d 503 (only the sheriff may hire the persons necessary for the care and maintenance of the county jail); see also Dahnke v. People (1897), 168 Ill. 102, 48 N.E. 137 (conflict between authority of county board and sheriff resolved in favor of the sheriff’s independence).

The foregoing legislative provisions, as construed by our courts, indicate that the county board has no authority or control over the operation, staffing, and administration of the county jail — the duties allegedly violated by the County in plaintiff’s complaint. Indeed, the statutes manifest the sheriff’s independence, as an elected officer whose authority derives solely from statute and common law, from the control of the county board. Accordingly, we hold that an agency relationship does not exist between the County and the sheriff. Consequently, the principle of respondeat superior cannot provide a basis for the County’s liability as set forth in the complaint in this case.

We further hold that the circuit court correctly dismissed the section 1983 count, even if this court were to hold the County liable under a theory of respondeat superior. That must be so because section 1983 liability cannot be predicated upon the doctrine of respondeat superior. Thompson v. Duke (7th Cir. 1989), 882 F.2d 1180, cert. denied (1990), 495 U.S. 929, 109 L. Ed. 2d 496, 110 S. Ct. 2167, citing Monell v. Department of Social Services (1978), 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018; see also Baltz v. County of Will (N.D. Ill. 1985), 609 F. Supp. 992, 995; Thomas v. Talesky (N.D. Ill. 1983), 554 F. Supp. 1377, 1378-79.

A motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) attacks the sufficiency of a complaint and should be decided solely upon the allegations set forth in the complaint. (Perkins v. Collette (1989), 179 Ill. App. 3d 852, 534 N.E.2d 1312.) The motion should be granted only if it is clear that plaintiff cannot prove any set of facts under the pleadings which would entitle him to the relief requested. (Perkins, 179 Ill. App. 3d at 856.) Plaintiff’s complaint does not allege any such facts; accordingly, the circuit court correctly granted the motion to dismiss.

The order of the circuit court is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARCADIO MERCADO, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 91—1102
    Opinion filed March 30, 1993.

      Sheldon L. Banks, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Christine Cook, and Mark A. Ertler, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

A jury convicted defendant Arcadio Mercado of possession of a controlled substance with intent to deliver in violation of section 401.1(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(a)(1)), and the trial judge sentenced him to 20 years in the custody of the Illinois Department of Corrections. On appeal, he advances three assignments of error: (1) whether he had sufficiently shown that the trial judge was prejudiced against him, thus warranting a substitution of judges; (2) whether the judge unduly restricted his ability to impeach the credibility of a police informant with regard to his drug addiction; and (3) whether the judge abused his discretion by sentencing defendant to a 20-year term of imprisonment.

On July 22, 1988, defendant was arrested by agents of the Illinois State Police and the Federal Drug Enforcement Agency on a charge of possessing, with intent to deliver, 201.1 grams of heroin, for which he was subsequently indicted by a grand jury. In the two-year period before the action went to trial, defendant brought a series of motions including one to quash his arrest and suppress all evidence obtained as a result of his arrest, which he alleged to have been illegal, and another seeking to dismiss the indictment because it was alleged to have been returned in violation of article 112 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1985, ch. 38, par. 112 — 1 et seq.) Both motions were denied by the trial court after evidentiary hearings.

On November 28, 1990, the eve of defendant’s trial, his counsel requested that an interpreter be appointed for the benefit of his Spanish-speaking client, but the court denied the request. Thereafter, counsel, alleging that the court was biased against him and his client, moved for a substitution of judges. The court replied that although it felt counsel had acted unprofessionally, it harbored no ill will toward him or defendant. Defendant then filed a written motion for a substitution of judges pursuant to section 114 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5), and a hearing on the motion was held before Judge Reyna. After entertaining argument and reading the transcript of the proceedings which precipitated the motion, Judge Reyna denied it, finding that defendant presented insufficient evidence to demonstrate that Judge Kelley was biased against him. The case was consequently returned to Judge Kelley.

The following evidence was adduced at defendant’s trial. Special Agent Guerra, a six-year veteran of the Illinois State Police, who was assigned at that time to a narcotics interdiction unit, testified that on July 22, 1990, he received word that an individual known as “Kayo,” who was described as a 40-year-old Hispanic male driving a blue “Olds 88” with the license number FN 2686, would deliver a large quantity of heroin that day between 11 a.m. and 11:45 a.m. in the parking lot of a fast-food restaurant on the north side of the City of Chicago. A check of the Secretary of State’s motor vehicle records disclosed that an automobile matching that description was registered to an Arcadio Mercado residing at what later proved to be defendant’s address. Guerra and other agents of the State Police and the Federal Drug Enforcement Agency decided to pursue this lead and arranged a surveillance of the fast-food parking lot.

At 11:17, another agent on the scene radioed Guerra, informing him that a blue “Olds 88” with the correct license number, driven by an individual matching “Kayo’s” description, was approaching his position. After the Olds came to a stop, Guerra and his partner parked their vehicle behind it, and Guerra approached the driver’s window. With his weapon drawn, he tapped the window, informed the driver, defendant, that he was an agent of the Illinois State Police, asked him why he was in the parking lot, and finally requested that he exit the vehicle. After Guerra opened the car door, defendant alighted from the vehicle and told the officer that he was at the restaurant to have lunch.

Meanwhile, Guerra’s partner, Agent Glynn of the DEA, conducted a search of the vehicle and discovered a plastic bag which contained a brown powdery substance, two scales calibrated for measuring grams, and a bag containing what the officer believed to be cannabis. A field test established that the powder was an opium derivative, and a later police lab test conclusively found it to be heroin. Agent Glynn testified that while searching defendant’s vehicle, he reached under the dashboard where his experience had taught him that he would be likely to find the narcotics, and it was there that he found the heroin, scales and marijuana, as well as many small plastic envelopes which are often used to package small, salable quantities of heroin.

Defendant testified that he was the assistant manager of a grocery store where he had been employed for the past 12 years. On the day of his arrest, he went to the fast-food restaurant near his store to have lunch as he often did. He further testified that earlier that day, he met a man he knew as Griffin at a local gas station. There, Griffin informed him that he was experiencing difficulty with his car and asked defendant for a ride to his methadone treatment center. After defendant agreed to give him a ride, Griffin waited alone in the auto while he filled it with gasoline. Defendant disavowed any knowledge of the heroin or drug paraphernalia found in his car three hours later, and stated that Griffin was the only individual who had access to his automobile that day. On cross-examination, defendant admitted to knowing Griffin for at least a year before the incident and that he often lunched with him at the fast-food restaurant where he was arrested.

The State called Charles Griffin in rebuttal. He identified defendant for the record and denied that he met defendant at any gas station on the day in question or that he planted the heroin in his car. He also confessed to being a heroin addict. On cross-examination, defendant elicited that Griffin had been arrested for possession of “pills” and that although undergoing methadone treatment, he still persisted in using heroin periodically. The court sustained the State’s objections to questions inquiring how Griffin ingested heroin and a request to show the jury whether his arms were scarred by needle marks.

After deliberation, the jury found defendant guilty as charged. At the sentencing hearing, the State, seeking more than the minimum nine-year sentence, relied upon the quantity of the heroin seized and defendant’s prior drug crimes, a State conviction for possession and a Federal conviction for distribution of a controlled substance as factors in aggravation. Defendant mentioned his work experience, and his closely knit and deeply rooted family ties in mitigation and as tending to show his rehabilitative capacity. The trial court, citing his two prior drug-related convictions, and commenting that seven years in Federal correctional facilities had not dissuaded defendant from committing the instant crime, found that such a record militated against finding great rehabilitative potential in him. It also referred to the need to deter defendant and others and felt that a 20-year term would take some of the luster off drug trafficking. It therefore sentenced him accordingly, after which defendant filed a timely notice of appeal.

I

In his first allegation of error, defendant argues that Judge Reyna mistakenly denied his section 114 — 5(d) motion for a substitution of judges because the judge before whom his case was ultimately tried manifested prejudice against him. Thus, he asserts that due to Judge Reyna’s error, he was not tried before an impartial jurist and must be granted a new trial. The State offers two responses: (1) that defendant has not adequately preserved this issue for appeal because the record fails to contain a report of the proceedings held before Judge Reyna; and (2) that defendant did not bear his burden of establishing actual prejudice.

The State’s waiver argument is unavailing. Although the initial record filed in this case omitted a report of the proceedings before Judge Reyna, the State overlooks that with leave of this court, defendant filed a supplemental record which contains a transcript of that hearing.

Section 114 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5) provides the procedure to be used when an accused alleges that the judge before whom he is to appear is so prejudiced against him that he cannot receive a fair trial. Since defendant brought his motion seeking a substitution of Judge Kelley more than 10 days after being placed on that judge’s trial call, he was not entitled to an automatic change of venue, as allowed by section 114 — 5(a). His motion was therefore brought under the provisions of section 114 — 5(d), which states in pertinent part:

“[T]he State or any defendant may move at any time for substitution of judge for cause, supported by affidavit.” Ill. Rev. Stat. 1987, ch. 38, par. 114-5(d).

In construing this section, our supreme court has held that the burden of proving cause rests on the party asserting it. (People v. Hall (1986), 114 Ill. 2d 376, 406, 499 N.E.2d 1335, 1346-47; People v. Vance (1979), 76 Ill. 2d 171, 178, 390 N.E.2d 867, 870; see also In re C.S. (1991), 215 Ill. App. 3d 600, 601, 575 N.E.2d 1, 2.) None of our courts has held explicitly what the extent of that burden is, but, based on our examination of the cases interpreting section 114 — 5(d) to require that the movant establish not merely the possibility of prejudice, but also that prejudice tangibly exists (People v. Bianchi (1981), 96 Ill. App. 3d 113, 119, 420 N.E.2d 1187, 1192; People v. Nickols (1976), 41 Ill. App. 3d 974, 979, 354 N.E.2d 474, 479; People v. Breitweiser (1976), 38 Ill. App. 3d 1066, 1069, 349 N.E.2d 454, 457; People v. Robinson (1974), 18 Ill. App. 3d 804, 807, 310 N.E.2d 652, 655), and in light of the holding of the United States Supreme Court that it constitutes a violation of due process when a defendant is tried before a judge who is probably prejudiced (In re Murchison (1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625), we conclude that the appropriate quantum of proof is to show prejudice by a preponderance of the evidence. See Tone, Comment, Substitution of Judges in Illinois Criminal Cases, 1978 Ill. L.F. 519, 533 (theorizing that it is implicit in Illinois law that preponderance is the proper standard to test assertions of judicial prejudice); see also Ariz. R. Crim. P. 10.1(c) (17 Ariz. Rev. Stat. Ann. (West 1987)) (rule worded similarly to section 114 — 5(d), which expressly provides preponderance as the requisite burden of proof).

Another question which commands fresh scrutiny in Illinois is the standard to be employed in reviewing determinations. of charges of prejudice against the judiciary. In the past, the supreme court has manifested a clear deference to the trial court itself, finding it to be “in the best position to determine whether it has become prejudiced against the defendant.” (Hall, 114 Ill. 2d at 406, 499 N.E.2d at 1347; see also Vance, 76 Ill. 2d at 178, 390 N.E.2d at 870; People v. Polk (1973), 55 Ill. 2d 327, 336, 303 N.E.2d 137, 141.) Such deference suggests that the reviewing court should reverse only if the trial court’s finding of no prejudice constitutes an abuse of discretion. See People v. Goodwin (1973), 13 Ill. App. 3d 506, 301 N.E.2d 126 (abstract of opinion) (holding that the trial court did not abuse its discretion by denying motion to substitute which alleged that it was racially biased and thus could not fairly try an African-American defendant).

However, all but one of those cases were decided before the General Assembly amended section 114 — 5 to provide that a motion alleging actual prejudice must be resolved by some judge other than the one against whom the allegations are made. (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 5(d), as amended by Pub. Act 81 — 1066, §1, eff. September 26, 1979.) Those cases arose in a context where the judge alleged to be prejudiced refused to grant the motion for substitution because he found, presumably after some objective introspection, that he harbored no bias against the defendant. Thus, extreme deference was required of the reviewing court because the judge alleged to be prejudiced must be considered to have known beyond any doubt whether he or she was actually incapable of maintaining complete impartiality toward the defendant.

Conversely, under the present version of the statute, since the resolution of a section 114 — 5(d) motion will be made by some judge other than the one who is the subject matter of the motion, the judge who will pass upon whether prejudice exists has no unique insight into the thought processes of the judge who is alleged to be biased, and therefore, the highly deferential abuse of discretion standard no longer seems appropriate. Instead, the rendering judge is asked to resolve a question of fact: whether the trial judge can impartially preside over defendant’s trial. Consequently, in making this decision, the court is merely a trier of fact which, as "with all fact finders, must weigh the evidence.

Accordingly, we deem the proper standard of review to be that a determination of prejudice or absence of prejudice will stand unless it is against the manifest weight of the evidence. We have invariably held that factual findings are against the manifest weight only when they are clearly erroneous or where the record commands an opposite conclusion. See, e.g., Fakhoury v. Vapor Corp. (1991), 218 Ill. App. 3d 20, 28, 578 N.E.2d 121, 127, appeal denied (1991), 142 Ill. 2d 653, 584 N.E.2d 128.

Applying that standard to the facts of this case, it cannot be said that Judge Reyna erred when he found that the trial court was not biased against defendant or his counsel. Disqualifying a trial judge from hearing a case on grounds of prejudice “is not, of course, a judgment to be lightly made.” (Vance, 76 Ill. 2d at 179, 390 N.E.2d at 870.) The rule necessitating careful scrutiny of allegations of prejudice derives from the fact that a finding of bias will reflect unfavorably upon the judge, and that an allegation of prejudice “tends to disrupt the orderly functioning of the judicial system.” (Vance, 76 Ill. 2d at 179, 390 N.E.2d at 870.) However, when applying such close scrutiny, we also assume that we are to remain faithful to the overriding concern of section 114 — 5 which, of course, is to ensure that the accused receives a fair trial. Our supreme court has held that a party asserting bias must demonstrate something more than the subconscious predilections of a judge which are inherent in all persons. That “something more” has been described as conduct of the court which manifests “animosity, hostility, ill will, or distrust towards this defendant.” Vance, 76 Ill. 2d at 181, 390 N.E.2d at 872.

Defendant argues that the record here is replete with instances in which the trial court manifested its dislike of defendant’s attorney and, thus, its predisposition to rule against defendant. Defendant points to the court’s initial reluctance to appoint an interpreter and contends that such refusal, coupled with the court’s statement that defendant’s attorney was acting unprofessionally, provides a sufficient quantum of evidence of bias to require disqualification. In addition, when defense counsel refused to continue without an interpreter, the trial court threatened him with contempt; and in response to counsel’s for-the-record representation that he was no longer present in the court, it detained counsel and defendant in chambers. Defendant claims that this evidence allows for only one reasonable conclusion— that the trial court harbored animus toward his counsel and himself. He reasons, therefore, that Judge Reyna erred when he reached a contrary conclusion.

Since Judge Kelley affirmatively stated for the record that he had no anger or hostility toward defendant or his attorney, defendant, in effect, asks us to disbelieve that statement and conclude that given the activity of counsel, the court could be nothing but hostile toward him. However, “[w]e cannot presume a failure of impartiality of a trial judge even under extreme provocation.” Hall, 114 Ill. 2d at 407, 499 N.E.2d at 1347.

A comparison of the facts sub judice with the facts in Hall and the supreme court’s judgment in the case conclusively establishes that Judge Reyna’s determination of no prejudice here is not in error. In Hall, the defendant, while in chambers discussing the possibility of proceeding pro se, struck the trial judge in the head with his fists and a chair. Thereafter, the defendant, although not acting within the procedural confines of section 114 — 5(d), asked the court to recuse itself. The court denied the request and avowed for the record that it would be fair and impartial. After reviewing the record, the supreme court found that the trial court stayed true to its word, as it failed to show any unfairness, nor did it treat either party with anything less than an acute even-handedness at the subsequent trial; thus, the defendant did not sustain his burden to prove the trial judge’s lack of impartiality. See also People v. Jimenez (1989), 191 Ill. App. 3d 13, 547 N.E.2d 616 (affirming a finding of no prejudice toward the accused even where some unknown incident occurred which caused the trial court to clear the court and order the State to file attempted murder charges against the defendant), appeal denied (1990), 131 Ill. 2d 563, 553 N.E.2d 399.

The provocation before the court here was comparatively mild when juxtaposed to that in Hall and Jimenez. Defense counsel, on the day of trial, and after two years of proceedings in the cause, asked the court to appoint an interpreter. The court denied the request, reminding counsel that defendant had been able to understand English at the 25 or so prior proceedings conducted in the action. The court suggested that defendant may have had ulterior motives in making the request, i.e., to engender sympathy from the jury. Also, the court feared that the absence of the interpreter could raise doubts about the validity of those earlier uninterpreted proceedings.

Counsel protested that he would not proceed until an interpreter was present, and if the court would not appoint one, he would retain one at his own expense. The court refused the offer, and counsel proceeded to make a dramatic exit for the purposes of the record, stating that he was no longer present to protect his client’s interest. The court threatened to cite him for contempt, ordered him detained and held in chambers along with his client, while it attended to other matters. After approximately 45 minutes, it recalled defendant’s case and accepted the apology of counsel. Although it informed counsel that it deemed his conduct unprofessional, it rejected his assertion that the incident would visit the court’s alleged hostility toward counsel on defendant. Defendants are not entitled to extract blood oaths from trial judges attesting to their fairness.

Defendant cites no decision made by the trial court which could be construed as going back on its vow to remain neutral toward defendant and his counsel. In fact, defendant makes no claim that the trial court’s supposed bias against him played any role in the two decisions he now cites as errors in this appeal. Since the defendant points to nothing in the record either before, during or after trial which affirmatively establishes that the court was prejudiced, he fails to bear his burden of establishing prejudice. Moreover, we must remain true to the admonition in Hall that reviewing courts should be chary of mandating a substitution of judges where the defendant’s action brought about the alleged prejudice, lest it invite future misconduct contrived for that very purpose. (Hall, 114 N.E.2d at 407, 499 N.E.2d at 1347.) Accordingly, we agree with Judge Reyna’s determination and find that the trial judge was unbiased toward defendant.

II

Defendant next maintains that the trial court impermissibly interfered with his right to cross-examine a key witness for the prosecution when it sustained an objection made by the State. While cross-examining Charles Griffin, an informant who served as the intermediary between defendant and police and who arranged the “drug buy” for which defendant was on trial, defendant asked him if he bore any needle marks on his arm resulting from his admitted heroin addiction. He also inquired how the witness ingested heroin if not intravenously. The court sustained objections to both questions. Defendant claims that in so doing it grievously impaired his ability to impugn the credibility of this witness before the jury and that, therefore, he is entitled to a new trial. The State argues that in view of the overwhelming evidence establishing defendant’s guilt, any limitation of cross-examination was harmless error.

While the cross-examination of a witness which is designed to explain, modify or discredit anything to which the witness has testified on direct examination is a matter of right (People v. Barr (1972), 51 Ill. 2d 50, 51, 280 N.E.2d 708, 710; People v. Torres (1990), 200 Ill. App. 3d 253, 265, 558 N.E.2d 645, 654, appeal denied (1991), 136 Ill. 2d 553, 567 N.E.2d 340), the trial court retains the ability to limit its scope, and its decision to do so will not be disturbed unless it constitutes an abuse of discretion resulting in manifest prejudice to defendant. (People v. Sandoval (1990), 135 Ill. 2d 159, 194, 552 N.E.2d 726, 741-42; People v. Coleman (1991), 222 Ill. App. 3d 614, 626, 584 N.E.2d 330, 338, appeal denied (1992), 144 Ill. 2d 637, 591 N.E.2d 25.) In People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201, the court held that it amounted to such an abuse to preclude defense counsel from showing the jury the needle-mark scarred arm of a witness for the prosecution. The court found the question of whether one is a drug abuser important when assaying the weight to be afforded to his or her testimony. It reasoned that because

“ ‘the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars[ ] (People v. Boyd [1959], 17 Ill. 2d 321, 326)[,] [t]he presence of any scars evidencing a recent use of narcotics would not only affect the credibility of the witness insofar as the recent use of narcotics was concerned, but also might cast serious doubt upon the truth of the balance of his testimony.’ ” Strother, 53 Ill. 2d at 99, 290 N.E.2d at 204, quoting People v. Lewis (1962), 25 Ill. 2d 396, 399,185 N.E.2d 168, 169.

See also People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339 (reaffirming Strother’s holding that drug abuse is relevant to witnesses capacity for truthfulness). But see United States v. Robinson (7th Cir. 1992), 956 F.2d 1388 (questioning the validity of the belief that witnesses who used narcotics are more likely to be untruthful).

However, we recognize that our supreme court’s decisions in Lewis, Strother, and Adams must be modified by the elemental principle of cross-examination that allows the court to preclude inquiries which would be unduly harassing or repetitive. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Triplett (1985), 108 Ill. 2d 463, 475, 485 N.E.2d 9, 15; People v. Matthews (1990), 205 Ill. App. 3d 371, 413, 563 N.E.2d 1113, 1138.) After recognizing that this basic proposition is implicit in the rule of Strother, it is clear that in the case at bar, the trial court did not impermissibly interfere with defendant’s ability to cross-examine informant Griffin, and, therefore, defendant is not entitled to a new trial.

In People v. Givens (1985), 135 Ill. App. 3d 810, 825, 482 N.E.2d 211, 221-22, the defendant, citing Strother, argued that the court erred in not allowing him to offer the testimony of two individuals who would certify that a key State witness was a heroin addict. The court rejected the argument based on the fact that the State’s witness admitted using drugs for years and admitted that a few days before the incident to which he attested he took cocaine. The court held that the two impeachment witnesses would neither add to nor contradict the witness’ own words and that, thus, since the jury had sufficient information with which to assess the witness’ credibility, the court did not abuse its discretion by prohibiting the cumulative proof. See also People v. Ganci (1978), 57 Ill. App. 3d 234, 240, 372 N.E.2d 1077, 1082 (finding no error in court’s limitation of questioning concerning witness’ drug abuse so long as jury has sufficient evidence to make a reasoned assessment of his credibility).

Here, during direct examination, Griffin admitted that he was a heroin addict, and on cross-examination he reaffirmed that he abused drugs. Defendant further elicited that Griffin was currently undergoing methadone treatment and that even while under the' treatment, he had still used heroin occasionally. From that evidence, the jury could easily grasp that Griffin used heroin in the past, that he was under treatment currently for his addiction, and that he periodically disregarded treatment and used heroin. From such testimony, his credibility was more than sufficiently brought into question, and having him describe how he ingested heroin or showing the jury his needle-scarred arms would not add to his impeachment, but would only be redundant of evidence already before it.

The superfluous nature of the impeachment material defendant sought to offer here separates this case from Strother. There, after the defendant was rebuked in his effort to establish that the State’s witness used heroin only days before the trial, he surrendered his efforts to advise the jury of the witness’s drug abuse. It was consequently unable to use that information in determining if the witness was worthy of belief. Here, Griffin, by his own words, paraded his addiction before the jury; consequently, it had before it all it needed in order to be completely informed in its determination of his credibility. Since defendant gained all the benefit possible from Griffin’s testimony, he cannot successfully assert prejudice; therefore, the trial court did not abuse its discretion by limiting his questioning of Griffin.

Ill

In his final argument, defendant contends that the trial court did not consider his work history or his closely knit family in gauging his rehabilitative potential, and that it therefore erred by imposing upon him a sentence of 20 years. The State responds that defendant waived this issue by failing to make a contemporaneous objection to the judge’s meting out of an allegedly erroneous sentence, and that in any event, the court did not abuse its discretion by imposing a sentence well within the confines of the statutory guidelines.

The State’s first claim warrants scant attention because we have flatly rejected it only recently. In People v. Davilla (1992), 236 Ill. App. 3d 367, 387, 603 N.E.2d 666, 679, the State made the assertion that the defendant did not preserve the issue of the propriety of his sentence by not objecting to it at the hearing, but we held that a defendant need not make a record in order to preserve for review questions regarding sentencing.

With regard to the merits of defendant’s complaint, our supreme court has held consistently that the imposition of sentence is within the trial court’s discretion and that a sentence imposed will not be altered by a reviewing court unless the trial court abused its discretion. (See People v. Ashford (1988), 121 Ill. 2d 55, 88, 520 N.E.2d 332, 346; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 883; People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330.) Moreover, a sentencing court’s decision is cloaked with a presumption of correctness. People v. Choate (1979), 71 Ill. App. 3d 267, 274-75, 389 N.E.2d 670, 676.

Defendant offers nothing to rebut this presumption, nor, after a review of the record, could he, for the trial court fully complied with both the substantive and procedural aspects of sentencing as prescribed by the Unified Code of Corrections. (Ill. Rev. Stat. 1987, ch. 38, par. 1000 — 1—1 et seq.) Defendant was convicted of possessing with intent to deliver more than 100 grams but less than 400 grams of heroin (Ill. Rev. Stat. 1987, ch. 55 1/2, par. 1401), a Class X felony. The term of incarceration for that crime ranges from 9 to 40 years. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401.1(1).) Citing his recidivism, the court sentenced him to 20 years, a period well within the permissible range. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2 (providing that a history of prior criminal activity is a valid reason for imposing a more severe term of imprisonment).

Defendant contends that the court, in reaching this decision, looked only to the crime for which he was tried and his two prior drug-related convictions, paying no heed to his rehabilitative potential. However, where mitigating factors are presented to the court, it is presumed to have considered them in reaching its decision, even where it does not mention the factors or detail the weight it ascribed to them. (People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9, 14; People v. Boclair (1992), 225 Ill. App. 3d 331, 335, 587 N.E.2d 1221, 1224.) Here, not only does defendant fail to overcome this presumption, but we need not even invoke it to affirm the sentence imposed, for the court expressly considered and found lacking any likelihood that defendant could be rehabilitated. While passing sentence, it referred to the fact that defendant was married and had children, and it stated that it took those mitigating factors into consideration. But, given defendant’s two previous convictions for drug-related offenses, it found that he displayed a penchant for distributing narcotics. It felt that the only way to deter him and others from drug trafficking was to incarcerate him for a term longer than the seven years that he received for his earlier Federal drug crime conviction.

The trial court’s decision here manifests strict adherence to the admonition of the supreme court in People v. Heflin (1978), 71 Ill. 2d 525, 545, 376 N.E.2d 1367, 1376, that “[i]n [Illinois], the spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant.” Since the sentence imposed on defendant precisely comports with that rule, we have no cause to alter its sentencing determination.

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

Affirmed.

McCORMICK, P.J., and HARTMAN, J., concur.

       Although Hall was decided after the section was amended, the trial court may nonetheless be seen as determining its own bias because the defendant, while not moving in the trial court for a substitution of the judge, asserted on appeal that given what transpired in the court (defendant assaulted the judge with a chair), the court should have recused itself sua sponte, and its failure to do so was error. The Hall court employed the analysis more commonly relied upon to review a section 114 — 5(d) motion and found no prejudice.