text:
      In re A.R.E.G. (The People of the State of Illinois, Petitioner-Appellee, v. A.R.E.G., Respondent-Appellant).
    Fourth District
    No. 4—88—0755
    Opinion filed August 24, 1989.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After entering an admission to a juvenile petition in Champaign County, A.R.E.G. was adjudicated a delinquent minor and placed on 18 months’ probation and ordered to serve 28 days in the Champaign County Detention Center. The respondent appeals and requests a new dispositional hearing.

A delinquency petition was filed on April 22, 1988, alleging the respondent was a delinquent minor for committing a misdemeanor retail theft. On August 12, 1988, while adjudication was pending on the original petition, a supplemental petition was filed alleging the respondent committed another misdemeanor retail theft. The State offered to dismiss the April 22, 1988, petition if the respondent would agree to an admission of the August 12, 1988, petition. In exchange for the respondent’s admission, the State agreed to abide by Court Services’ recommendation, and “under no circumstances *** recommend anything harsher than probation.”

The court accepted the respondent’s admission, found him to be a delinquent minor and scheduled a dispositional hearing for September 29, 1988. At the dispositional hearing the prosecutor informed the court two additional petitions had been filed against the respondent after the court accepted his admission to the August 12, 1988, petition. The prosecutor advised the court the State was abandoning the original agreement and would be presenting evidence in support of the two additional petitions. The record reflects defense counsel understood the change in the State’s sentencing recommendation and neither raised any objection, nor argued for enforcement of the original agreement.

Evidence was presented by both sides regarding the two new petitions charging the respondent with aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(6)), criminal trespass to real property (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 3(a)), and theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(d)(1)).

The prosecutor recommended the court commit the respondent to the Department of Corrections, Juvenile Division, and defense counsel requested community supervision. The court felt the Department of Corrections was an inappropriate placement,. but noted the State’s recommendation was not unreasonable in light of the minor’s additional delinquent activity. The court placed the respondent on 18 months’ probation including 28 days in the Champaign Detention Center. The respondent bases his appeal on the alleged prosecutorial breach of the plea agreement.

The present case raises the issue of whether the appellate court should consider an issue on review which has not been properly preserved at the trial court level. It is an accepted rule of law that issues not raised at trial are waived absent plain error. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Bailey (1988), 177 Ill. App. 3d 679, 532 N.E.2d 587.) The plain error exception to the waiver rule will be applied only when substantial rights of the defendant are affected or the evidence in the case is closely balanced. (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Such error is not present in this case.

The facts in the present case show the respondent received a disposition of probation because the court was unwilling to take the State’s recommendation. The respondent did not object to the alleged breach of the agreement and did not adequately preserve this issue for review.

On the merits, the respondent could not prevail on the basis of a prosecutorial breach of the plea agreement. He relies on People v. Davis (1981), 94 Ill. App. 3d 809, 419 N.E.2d 724, in which the prosecutor agreed to make no specific sentencing recommendation in return for the defendant’s plea of guilty to voluntary manslaughter. At sentencing, the prosecutor vigorously argued the defendant was not a good candidate for probation. The appellate court agreed the prosecution had breached the plea and remanded the action for a new sentencing hearing pursuant to Santobello v. New York (1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495. Santobello provides guidelines for State adherence to plea agreements and remedies for breach. Santobello holds when a guilty plea rests on the promise of a prosecutor and when that promise provides the inducement of the plea, the promise must be fulfilled.

The present case and Davis are factually dissimilar. The defendant in Davis did nothing to alter the conditions of the plea agreement. In this case, the respondent altered the circumstances of the agreement by engaging in additional delinquent activity during the time between his adjudication and dispositional hearing. The State argues an implied condition exists which provides the respondent will remain crime free pending disposition. We agree, and various jurisdictions support this position.

In Ohio v. Pascall (1972), 49 Ohio App. 2d 18, 358 N.E.2d 1368, the defendant pleaded guilty to burglary in exchange for the State’s recommendation of probation. Prior to sentencing on the burglary charge, the defendant was indicted, tried, and convicted of armed robbery and burglary. At defendant’s sentencing hearing on the first burglary conviction, the prosecutor did not recommend probation and the defendant was sentenced to the penitentiary. The defendant appealed based on breach. Pascall stated:

“A subsequent change, such as the conviction here of armed robbery, is sufficient to justify and excuse the prosecutor from fulfilling his promise to recommend probation.. To require the prosecutor to fulfill his promise, or to permit the defendant to withdraw his plea, would, in effect, reward the defendant for his unlawful conduct. The defendant’s conduct placed the prosecutor in a situation where he could not fulfill his promise because of the change of circumstances.” (Emphasis in original.)
(Pascall, 49 Ohio App. 2d at 20, 358 N.E.2d at 1369.)

Also, in Washington v. Yates (1975), 13 Wash. App. 116, 533 P.2d 846, the defendant was convicted of forgery and appealed based on prosecutorial breach of the plea bargain. The State agreed to recommend a deferred sentence if the defendant would plead guilty. The court held the agreement was breached when the defendant fled the State prior to sentencing. The Yates court stated:

“The understanding between the defendant and the prosecutor was breached by the defendant when he did not return for sentencing. Thus, the prosecutor was no longer required to recommend a deferred sentence for the defendant.” Yates, 13 Wash. App. at 118, 533 P.2d at 847.

Santobello holds a plea agreement entered into between the State and the defendant must be honored if breached by the State. In this case the breach was committed by the respondent due to his continued delinquent behavior prior to disposition. Under this change in circumstances, the State was not obligated to honor the original sentencing recommendation. While the issue of breach was not adequately preserved for review, we choose to address the respondent's failure to demonstrate good faith in regard to the spirit of the plea agreement.

The respondent argues the prosecutor’s recommendation of commitment to the Department of Corrections compelled the court to place stringent conditions on his probation. The disposition of this case is within the scope of the original agreement because the prosecutor initially agreed to recommend “nothing harsher than probation.” The respondent was not prejudiced. The respondent failed to preserve the issue for review. Further, no issue is actually presented as he breached the agreement yet still received the disposition bargained for. Respondent has no grounds to complain about the stringent conditions of probation given his additional delinquent behavior. His appeal is totally without merit.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMY L. COLEMAN, Defendant-Appellant.
    Fourth District
    No. 4—88—0722
    Opinion filed August 24, 1989.
    Modified on denial of rehearing September 25, 1989.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant was convicted of first degree murder, armed robbery, and robbery, in violation of sections 9 — 1, 18— 2, and 18 — 1, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1, 18 — 2, 18 — 1). The circuit court of Sangamon County sentenced defendant to a term of 30 years’ imprisonment for murder and 15 years’ imprisonment for armed robbery. The sentences were to be served concurrently. Judgment was not entered on the robbery conviction. Defendant appeals his convictions. We affirm.

On appeal, defendant argues: (1) the trial court erred in allowing the admission of prior inconsistent statements by prosecution witnesses because the witnesses did not have “personal knowledge” of the events discussed in their statements as required by section 115— 10.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1); and (2) the State’s Attorney committed reversible error in his opening statement by discussing the expected testimony of a prosecution witness who later failed to appear and testify at the trial. The pertinent facts follow.

The charges against defendant stem from an incident in which a woman was shot outside a residence at 726 North Seventh Street in Springfield. She died of her wounds at the hospital. The trial was held over three days, beginning August 9,1988.

In opening statement, the State’s Attorney detailed some of the evidence the State was going to produce. In particular, the State’s Attorney discussed the expected testimony of Cammona Gailes, who the jury was told had purchased the murder weapon for police from a co-defendant. Cammona Gailes did not testify at trial. She was subpoenaed, but she did not appear. Efforts to locate her were unsuccessful.

Detective Tom Murphy testified that he was approached by a woman named Cammona Gailes, who offered her help in regards to the murder investigation. Gailes’ nickname is “Mopey.” Murphy testified Gailes “flagged down” Murphy’s car at approximately 11:30 p.m. on April 13, 1988. After a discussion with police, Gailes agreed to purchase what was believed to be the murder weapon. Murphy gave her $70 to do so. At approximately 11:50 p.m. the next day, April 14, Gailes returned to the police with a .22 caliber handgun. Murphy testified on the second day of trial. He stated that he had made several attempts to locate Gailes, but he could not find her.

The gun was later examined scientifically, but the results were inconclusive.

On May 3, 1988, Detective Murphy arrested defendant at his place of employment and transported him to the police station. He and Detective Steve Pellegrini questioned defendant. Prior to questioning, defendant was given the Miranda warnings. Defendant initially denied any involvement in the incident. Murphy then showed defendant the .22 caliber handgun. Murphy testified that, at that point, defendant stated he had not been truthful. Defendant broke down crying and offered to tell the truth.

Murphy testified that defendant gave a verbal confession to robbing the victim of her purse. Defendant stated his companion, Deearlise Childrous, shot the victim after defendant had wrestled the purse from her. Following this verbal confession, defendant was asked to sign a written waiver of his Miranda rights. This he did. Defendant was also asked to give a written statement. Defendant agreed to do so, and Detective Murphy wrote the statement as defendant spoke. However, defendant did not sign the statement. Murphy was allowed to read defendant’s statement to the jury.

Detective Pellegrini testified and corroborated Murphy’s testimony concerning the circumstances surrounding the giving of defendant’s statement. Pellegrini stated that defendant read the statement after it was finished, but he declined to sign it.

Two witnesses, Angela Johnson and LaMarques Johnson, were called to testify for the State. Angela, 15 years old, and LaMarques, 16 years old, were both in the tenth grade. Both of the witnesses acknowledged that they had voluntarily approached the police with information concerning the murder. When questioned about the information at trial, the witnesses claimed they could not remember. Both of the witnesses acknowledged that they gave written statements to police. The witnesses were shown statements, which they acknowledged as their statements. However, both witnesses proved difficult and continued to claim lack of memory as to the events. The State’s Attorney was allowed to read from the witnesses’ statements in an attempt to refresh their memories. In their statements, the witnesses had stated they were present when defendant and Deearlise Childrous made incriminating statements in conversation to each other or to the witnesses. The court overruled defendant’s objections to the reading of the statements. The court found the statements to be prior inconsistent statements admissible under section 115 — 10.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1).

Defendant testified on his own behalf. He acknowledged that he was questioned by police on May 3, 1988. However, he stated the subject of the questioning was another murder — the death of a security guard at a local motel. Defendant denied making the statement which was read by Detective Murphy and denied any knowledge of the incident. He stated he had never seen the .22 caliber handgun before. The court allowed defendant’s statement to go to the jury, but did not allow the statements of Angela and LaMarques Johnson to go to the jury.

After retiring for their deliberations, the jury requested the statements of Angela and LaMarques Johnson: The court denied their request, stating “I have delivered to you all exhibits which you may receive.” The jury found defendant guilty of murder, armed robbery, and robbery.

Defendant first argues the trial court erred in allowing the State to read into evidence Angela and LaMarques Johnson’s prior statements to police. Defendant argues the statements were not admissible under section 115 — 10.1 because the witnesses did not have personal knowledge of the events discussed in their statements. Rather, the statements consisted of admissions against interest by defendant and a codefendant, which were heard by the witnesses who were present during these conversations. The following quotations are of the pertinent phrases from Angela’s statement read into the record by the State’s Attorney:

“Tommy said to Deearlise, ‘You shot her,’ and Deearlise said, ‘If he would not had snatched the purse I would not of had to shot her,’***.”
“Me, Tommy, and Theodis were at the house, and Mopey came over. I don’t know what her real name is, but that’s what people call her. The first time she came over me and Tommy were upstairs in his room. He went downstairs to answer the door, and I heard Mopey’s voice, and after she left Tommy came up and told me it was Mopey. We went back to his room, and [we] stayed up there for a while, and Mopey came back ***, I know it was Mopey because Tommy said she was coming back to buy the .22 that Deearlise had used to shoot the lady. I knew that it was the gun they used because Tommy and Deearlise both told me it was the one.”

The following quotation is from the statement of LaMarques, which the State’s Attorney read into evidence:

“I saw a black .22 caliber handgun with white grips and was eight to ten inches long in a holster laying on the couch. I started to pick the gun up, but Tommy told me not to touch it and get my fingerprints on it. He said that it was the gun used in the murder. Tommy told me that the night that it happened that he and Deearlise were out to make some money. Tommy told me that he didn’t get scratched and that he had already thrown his jacket away. Tommy told me he already sold the gun to a black female called Mopey.”

Section 115 — 10.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1) provides for the admissibility of prior inconsistent statements under certain specific conditions:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing, or other proceeding, or
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible for purposes of impeachment because such statement was not recorded or otherwise fails to meet the criteria set forth herein.”

The controversy in this case centers around subsection (c). Subsection (c) is written in the disjunctive. Defendant argues the witnesses’ statements do not meet the criteria found in subsection (c)(2) because the witnesses did not have “personal knowledge” of the events discussed in their statements. Defendant defines personal knowledge to mean the witness must have personally observed the underlying events. Simply overhearing incriminating statements made by a defendant is not enough. Defendant’s argument is supported by case law, legislative history, and secondary sources. It should be noted that under subsection (c)(1), if the statements were made at a previous proceeding where sworn testimony was received, the statements need not meet the personal knowledge requirement.

Our courts have generally summarized section 115 — 10.1 by stating that a prior inconsistent statement may be used as substantive evidence: (1) if it is inconsistent with the witness’ trial testimony; (2) the witness is subject to cross-examination at trial; (3) the statement explains an event within the personal knowledge of the witness; and (4) the witness acknowledged at trial that he had made the prior inconsistent statement. (People v. O’Neal (1985), 139 Ill. App. 3d 791, 794, 488 N.E.2d 277, 279; People v. Hastings (1987), 161 Ill. App. 3d 714, 719, 515 N.E.2d 260, 264.) In Hastings, the court briefly discussed the third requirement:

“The third requirement is that the statement must relate to circumstances, the subject matter of which is within that witness’ personal knowledge. To be within the personal knowledge of a witness, the witness must have observed, and not merely have heard, the subject matter underlying the statement. (Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 640 (1984).) In the instant case, the statements admitted into evidence concerned the observations of Fazell at the time of the occurrence. Therefore, being within the personal knowledge of Fazell, the third requirement is met.” (Hastings, 161 Ill. App. 3d at 720, 515 N.E.2d at 264.)

In Hastings, the court adopted the definition, asserted by defendant, that personal knowledge means more than being present when defendant makes incriminating statements. The witness must have personally observed the subject matter of his statement.

The definition of personal knowledge adopted in Hastings is supported by secondary sources. Justice Steigmann states in his article that he authored the Senate bill which became section 115 — 10.1. His assertion is that excluding hearsay statements of witnesses which are not based on personal observation is necessary to counter the coercion inherent in station house interrogations:

“Because (c)(2) statements, by definition, are not those made in the dignified, noncoercive atmosphere of a courtroom or hearing room, but instead are likely to be made during a police interrogation, a limitation was placed on the admissibility of such statements. This limitation requires that the statement be based on the personal knowledge of the witness, as opposed to what the witness was told by some third party. This limitation was imposed because of concerns about having words put in the mouths of witnesses under circumstances far different from those in a courtroom or a hearing room. Even in a grand jury inquiry, the questions are being asked by a prosecuting attorney, not a police officer, and 23 citizens and a court reporter are present to watch and record the proceedings. These are far different conditions from those in the usual stationhouse questioning.” (Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 640 (1984).)

The motivating force for Justice Steigmann and the legislators who sponsored the bill was an article written by Professor Graham of the University of Illinois Law School. Professor Graham supported the . narrower definition of personal knowledge, in which “only ‘first-hand hearsay’ would be admissible; admission-confessions, the least reliable and most damaging evidence to the criminal defendant, would not be admitted as substantive evidence even if the alleged admission is contained in a signed statement of the in-court witness, unless the declarant also had personal knowledge of the underlying event.” Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence: A Critical Review and Proposed Amendments of Federal Rules of Evidence 801(d)(1)(A), 613 & 607, 75 Mich. L. Rev. 1565, 1587-88 (1977).

The legislative discussion just prior to the final vote on section 115 — 10.1 incorporates a portion of Professor Graham’s law review article. One legislator was anxious that the legislative history be complete. He read into the record a portion of Professor Graham’s article, which specifically included the limited definition given to personal knowledge. 83d Ill. Gen. Assem., House Proceedings, Nov. 1, 1983, at 38 (statements of Representative Cullerton).

Against this backdrop of authority, the State argues the plain meaning of the statute allows for the admission of overheard incriminating statements uttered by a defendant. The statute requires that the prior statement concern “an event or condition of which the witness had personal knowledge.” (Ill. Rev. Stat. 1987, eh. 38, par. 115— 10.1(c)(2).) The State contends the plain meaning of the term “event” includes statements uttered by a defendant. Therefore, the State continues, there is no need to resort to legislative history or secondary sources.

We reject the State’s argument and find the overwhelming authority supports defendant’s interpretation of the personal knowledge requirement of section 115 — 10.1(c)(2). Using this more limited definition, it is clear that the statements of Angela and LaMarques Johnson were not admissible under subsection (c)(2). The statements consisted mainly of admissions — confessions of defendant and Deearlise Childrous overheard by the witnesses. Although we conclude that the statements were not admissible under subsection (c)(2), we need not reverse the result.

The State argues, in the alternative, that the witnesses’ statements were admissible under subsection (c)(1) as statements made in a prior judicial proceeding.

The record in this case contained the minutes of the grand jury proceeding of July 28, 1988, in which evidence was presented against defendant, and an indictment was eventually returned. Both Angela and LaMarques were called to testify before the grand jury.

Their testimony before the grand jury consisted of the following pattern. Each witness testified they gave a statement to police which was written down by Detectives Murphy and Pellegrini; the witnesses identified their signatures on the statements; the statements were read to the grand jury by the assistant State’s Attorney; the witnesses identified the statements as their own; and the witnesses verified the accuracy and truth of the statements. The State argues the process whereby the witnesses’ statements were read by the prosecutor and verified by the witnesses fulfills the requirement of making a statement “under oath at a trial, hearing, or other proceeding.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1(c)(1).) We agree.

A grand jury proceeding qualifies as a “trial, hearing, or other proceeding” under subsection (c)(1). Therefore, testimony given in a grand jury proceeding is admissible as a prior inconsistent statement. (People v. King (1986), 109 Ill. 2d 514, 527-30, 488 N.E.2d 949, 956-57; People v. Atkins (1987), 161 Ill. App. 3d 600, 611-12, 515 N.E.2d 272, 279; see also Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 640 (1984).) In this case, the prosecutor read the witnesses’ statements to the grand jury and carefully questioned the witnesses regarding the authenticity and the accuracy of the statements. We find this sufficient to qualify the statements as subsection (c)(1) statements and make them admissible as substantive prior inconsistent statements. In so finding, we emphasize that the facts now before us bring the case under subsection (c)(1) because the witness “under oath at a trial, hearing, or other proceeding” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1(c)(1)) not only admitted to having made a previous statement, but verified its accuracy, whereas subsection (c)(2)(B) would have applied if the witness at the grand jury hearing acknowledged having made such a statement but had not verified its accuracy. With regard to the first situation, where the witness restates the statement and verifies it, these circumstances cannot be distinguished from the normal questioning of witnesses that takes place at such hearings.

We note that section 115 — 10.1 is a relatively recent addition to the Code of Criminal Procedure of 1963. There are not many cases discussing the application of this section. Also, we note that the trial court in the instant case ruled the statements admissible under section 115 — 10.1 without explaining which subsection provided the basis for admissibility. We wish to add a postscript concerning the procedure that should be used at trial when the State seeks to admit the statements under subsection (c)(1). Where the State wishes to rely on the fact that prior statements were made under oath, we believe the better practice is to enter the record from the prior proceeding into evidence at the trial. The trial court would retain the discretion to allow the jury to receive that evidence, as well as the statements themselves. Nevertheless, it is better to have the prior proceedings before the trial court in order to clarify the basis for admissibility, and in order to allow the court and both parties to fully ascertain the circumstances surrounding the prior statements.

Defendant’s second argument is that the State’s Attorney committed reversible error when he discussed the expected testimony of Cammona Gailes, but then failed to produce her at trial. The State responds by pointing out the failure to produce Gailes was unintentional, and such errors have been held to be harmless.

The record indicates the State’s Attorney acted in good faith. The State’s Attorney explained the expected testimony of Gailes in his opening argument. The record indicates Gailes could not be found, although several attempts had been made to locate her. The testimony concerning Gailes’ purchase of the murder weapon was introduced through Detective Murphy. Outside of his error in opening statement, the State’s Attorney faithfully limited his discussion of Gailes’ participation in obtaining the murder weapon to the facts elicited from Detective Murphy.

An opening statement in a criminal case should be an outline of the facts which the prosecution, in good faith, expects to prove. (People v. Wills (1987), 153 Ill. App. 3d 328, 342, 505 N.E.2d 754, 763.) It is improper, at least with foreknowledge, to include matters in an opening statement which are not thereafter proved. (Wills, 153 Ill. App. 3d at 342, 505 N.E.2d at 763.) However, reversible error occurs only where such impropriety is attributable to the deliberate misconduct of the prosecution and results in substantial prejudice to defendant. (Wills, 153 Ill. App. 3d at 342, 505 N.E.2d at 763.) We find no reversible error occurred in this case. The failure of Gailes to testify was not intentional misconduct by the State. Further, in addition to the testimony of Detective Murphy, the fact that Gailes purchased the murder weapon was an inherent part of the prior statements of Angela and LaMarques Johnson. The State’s Attorney limited his discussion of Gailes to the testimony properly admitted into evidence. There was no prejudice to defendant.

For the reasons stated above, the order of the circuit court of Sangamon County is affirmed.

Affirmed.

SPITZ and GREEN, JJ., concur.


text:
      In re MARRIAGE OF RANDY GUSTAFSON, Petitioner-Appellant, and PAULA GUSTAFSON, Respondent-Appellee.
    Fourth District
    No. 4—89—0068
    Opinion filed August 24, 1989.

      Ronald E. Boyer, of Boyer & Thompson, Ltd., of Watseka, for appellant.
    Frederic M. Grosser, of Grosser & Hays, of Champaign, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Randy Gustafson filed a petition to transfer custody of his two minor daughters from respondent Paula Gustafson, n/k/a Paula Stone, to himself. The circuit court of Ford County denied the petition, and petitioner appeals.

Petitioner and respondent obtained a judgment for dissolution of marriage in June 1983. Under the terms of the dissolution, respondent was granted physical custody of the parties’ two children. However, the marital settlement agreement stipulated that both parents were fit parents. Petitioner was granted reasonable visitation rights.

Respondent gave physical possession of the two children to her parents in August 1988. Since that time, she has not exercised her parental rights, and the children have remained in the care and control of the maternal grandparents, Robert and Mildred Helen Stone.

In September 1988, petitioner discovered the children had moved in with the Stones, and he filed his petition for change of custody. The grandparents filed a petition to intervene in the proceedings and obtain custody of the children, pursuant to section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). The trial court denied the Stones’ petition, and we affirmed. (In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, 536 N.E.2d 1359 (Gustafson I).) In that opinion, we held the grandparents did not have standing to seek custody of the children under section 601(b)(2) simply because they had been given physical possession by the custodial parent without the knowledge or consent of the noncustodial parent. Because even the noncustodial parent has a paramount right to the care, custody, and control of his children, a third party must provide more than just evidence of physleal possession in order to show the children are “not in the physical custody of one of [their] parents.” Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).

On January 11, 1989, while the matter of the petition to intervene was pending in our court, the trial court held the hearing on the petition to change custody. A detailed review of the testimony from that hearing is necessary in order to resolve the issues in this case.

Petitioner called respondent as his first witness. She testified that the parties’ two daughters are 12 and 7 years old. Since 1983, respondent exercised her custodial rights to the children, as stated in the marital settlement agreement. Petitioner faithfully paid child support and exercised his visitation rights. In August 1988, respondent gave the girls to the Stones. She testified she did not intend to leave them with her parents permanently, but just until she could financially support them again. However, she was impeached with certain statements she made at the hearing on the petition to intervene, which implied the change in living arrangements was meant to be permanent. She now admitted making those statements, but stated, “It was not what I meant.” Respondent admitted that she had not been exercising any parental rights since August 1988, and that she had no plans at the present time to take her children back.

Later, during her case, respondent testified again. She explained that she lost her job in July 1988, and she could no longer financially care for her children. She gave the children to her parents “until [she] could get back on [her] feet again.” As of the date of the hearing, she had found no other employment and had little hope of doing so. She was receiving unemployment compensation. She claimed to have regular contact with her children, as the Stones lived nearby.

On cross-examination, respondent admitted she was living with a man to whom she was not married. The child support payments paid by petitioner go directly to the Stones for the benefit of the children.

When petitioner testified, he stated he had regularly and consistently exercised his visitation rights since the divorce. However, he lost his job in September 1988, and he is currently receiving unemployment compensation. His child support payments were reduced because of the loss of his job. As soon as he learned the children had moved to the Stones on what appeared to be a permanent basis, he filed his motion for change of custody.

Petitioner admitted he was living with a woman without the benefit of marriage. His girlfriend is also divorced, and she has physical custody of her two children. Petitioner and his girlfriend are engaged to be married, but they have not set a date. He owns a three-bedroom home. Because of savings and funds from a pension plan, he stated he would be able to financially support the children should the court transfer custody.

Mildred Stone testified for respondent. She stated that her daughter had not intended the living arrangement to be permanent. (This, of course, appears inconsistent with Stone’s position in Gustafson I.) Mildred corroborated respondent’s statement that it was only to continue until respondent regained some financial stability.

Respondent requested the court interview the children. The court declined to do so. Following that ruling, respondent requested further testimony from Mildred Stone concerning statements made by the children. The court allowed the testimony.

Mildred Stone testified, over objection, to several specific incidents which allegedly occurred while the children were with petitioner. She stated the children were locked out of the home on one occasion. On another occasion, the youngest child apparently saw her father naked. Mildred told of two more instances where the children were left alone at petitioner’s home while petitioner went bar hopping. Mildred also stated the girls had problems relating to petitioner’s girlfriend and her two daughters. They were afraid to voice their opinion to petitioner because they were afraid of receiving a beating. The girls told Mildred that petitioner drinks beer when he drives. The children did not want to leave their current home because of the friends they had made at school. Finally, Mildred mentioned the children had voiced their opinion that they do not want to live with petitioner.

On cross-examination, Mildred stated the girls never say anything good about visits with their father because “[tjhere aren’t any good things for them to talk about.” Mildred stated she kept a diary which recorded the bad things the girls said about petitioner. Although Mildred stated the girls were afraid of being beaten, she had never seen any bruises to indicate a beating had taken place.

Petitioner testified in rebuttal to Mildred’s testimony. He denied the incidents occurred that Mildred spoke about. He denied beating the children and threatening to beat the children. He did admit that there was some jealousy between his children and those of his girlfriend. He also admitted the children had stated a reluctance to live with him on a permanent basis.

The court denied the petition for change of custody. Based on the evidence, the court specifically found that respondent had “not surrendered custody of the children.” The court found “[t]he mother still exercises many elements of care, custody, and control” through her daily visits to the Stones’ residence. Thus, the situation was not a dispute between petitioner and the Stones, but rather a “normal” custody dispute between the children’s parents. The court found petitioner had shown a change of circumstances, as required by section 610 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 610), but petitioner had failed in his burden to show a change of custody was in the best interest of the children. The court’s judgment avoided any discussion of the hearsay testimony of Mildred Stone.

On appeal, petitioner argues: (1) the trial court’s decision to allow the children to remain with the Stones effectively eliminated his paramount right as a parent to the care, custody, and control of his children; (2) the trial court’s decision was contrary to the manifest weight of the evidence; and (3) reversible error occurred when the court admitted hearsay evidence of statements allegedly made by the children.

It took less than 65 pages to report the testimony portion of the July 11, 1989, hearing. Only four witnesses testified. The opinion in Gustafson I had not been filed.

We address only the alleged hearsay error. The trial court refused to interview the children. The following reason was given:

“The evidence as I understand it is closed. With respect to interviewing the children, I don’t like to put the children in a position where they feel there is pressure put on them. That they are making a decision where they’re in a position where they can be pressured by an adult and then have to worry about what adults are going to think about what they said in there, where they think they are responsible for the decision. I don’t think that what they can contribute would be substantial compared to the drawbacks that would result from the pressure put on them in that situation. They’ve got to go on living with all of these people so I exercise my discretion and decline to interview the children.”

The trial court’s reasoning would be an argument for always refusing to examine children in custody disputes. The position is contrary to respected authority and ignores the elements to consider when deciding the propriety of having children testify. (In re Cruz (1979), 76 Ill. App. 3d 565, 568, 395 N.E.2d 388, 390.) Section 606 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 606) gives courts adequate authority to protect the child witness.

Next, the court allowed the grandmother, Mildred Stone, to retake the witness stand and testify as to what the children suppos edly told her about the petitioner’s conduct and living conditions. The trial judge recognized the hearsay nature of the testimony but allowed it over objection. Hearsay evidence of the children’s preferences is allowed as an exception to the general rule. (In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 642, 420 N.E.2d 555, 560.) However, this evidence should be limited to state of mind and emotional state. (See In re Marriage of Sieck (1979), 78 Ill. App. 3d 204, 218, 396 N.E.2d 1214, 1224.) We know of no exception to the hearsay rule which would allow most of the testimony given by Mildred Stone.

Mildred Stone’s testimony was damning to the petitioner and highly prejudicial. It was from a party who attempted to obtain legal custody and was rebuffed, as shown by Gustafson I. Her testimony in Gustafson I, as to her daughter’s intentions, at least, appears to conflict with her testimony on January 11, 1989. The incentive to perjury was present. Reversible error exists.

This case involves the best interests of two young children. The importance of the ultimate decision requires a complete hearing. As indicated in Gustafson I, the facts surrounding the respondent’s relationship and the children with the Stones is an important part of the evidence. The trier of fact must carefully weigh this relationship. As a result, we conclude petitioner’s first two arguments should not now be considered on appeal.

This cause must be returned to the trial level for a completely new hearing. We are aware of the economic realities, but find this case is a proper one for a guardian ad litem for the children and home investigations by some suitable agency. Our opinion in Gustafson I must be given due consideration.

Reversed and remanded with directions.

SPITZ and GREEN, JJ., concur.


text:
    KATHY S. (JOHNSON) BLACKBURN, Special Adm’r of the Estate of Phillip M. Johnson, Sr., Deceased, et al., Plaintiffs-Appellees, v. BETTY LOUISE JOHNSON, Ex’r of the Estate of Wendell O. Johnson, Defendant-Appellant.
    Fourth District
    No. 4—88—0907
    Opinion filed August 24, 1989.

      Garry E. Davis, of Erickson, Davis & Murphy, Ltd., of Decatur, for appellant.
    Carl William Telford and Scott R. Guido, both of Carl William Telford, Ltd., of La Salle, for appellees.
    James Edward Tueth, of Regan & Tueth, of Decatur, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

This is an action for wrongful death. One count was based on intentional tort, the other on negligence. Plaintiffs’ counsel abandoned the intentional tort theory and argued for a verdict based on negligence. The jury returned a verdict for defendant on the intentional tort count, and for plaintiffs in the amount of $599,000 on the negligence count. The circuit court of Macon County denied defendant’s request for a judgment n.o.v. Defendant appeals.

The cause arises from a tragic alcohol-related altercation on July 4, 1981, at a trailer camping ground at Lake Shelbyville. Wendell Johnson and his wife, Betty, had retired for the night in their trailer. Their son, Phillip, who was intoxicated and had earlier argued with Wendell, came to the senior Johnson’s trailer, argued with Betty, and knocked her down. Wendell arose, confronted Phillip, and, in a fight, obtained a knife and inflicted fatal wounds.

The facts indicated that when Wendell arose, he exclaimed, “You hit my wife; you hit my wife!” Some evidence indicated he may have said, “I am going to kill you; I am going to kill you.” Phillip suffered 10 wounds, of which some were not serious, but the one to the heart and the one to the lung were both sufficient to cause the resulting death. Another camper testified he arrived at the end of the fight and saw Wendell crying, holding Phillip, and expressing his sorrow.

The principal issue relates to whether this fact situation can sustain a negligence verdict. Defendant argues an intentional tort took place and the jury verdict cannot stand. It is argued that Phillip had not attacked Wendell and was unarmed. However, the defense at trial was one of self-defense.

Judgment n.o.v. should be “entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Plaintiffs’ negligence theory of the case was that Wendell either (1) flailed or swung the knife, a dangerous instrumentality, in such a fashion as to injure Phillip, or (2) used excessive force in his self-defense, in that he should have known with the exercise of ordinary care that the use of deadly force was unreasonable.

This primary issue is interrelated with defendant’s objection to the trial court’s issue instruction. Defendant asserts the court instructed the jury in a legally inconsistent fashion. The court instructed the jury, concerning plaintiffs’ negligence claim, that plaintiffs contend Wendell was negligent in one or more of the following respects:

“Wendell 0. Johnson negligently flailed, slashed and swung a dangerous instrumentality, a knife, in such a manner as to strike Phillip M. Johnson, Sr., thereby causing his death; and/or Wendell 0. Johnson employed and engaged in an excessive use of force with a deadly weapon in defense of his person or of others or of his property at a time when Wendell 0. Johnson knew, or in the exercise of reasonable and ordinary care should have known, that the use of such force with a deadly weapon was unreasonable.”

Defendant maintains the second paragraph is incorrect because it suggests there was an intent on the part of Wendell. She believes this paragraph sets forth a theory of recovery that Wendell committed an intentional act negligently. She contends this is improper. Plaintiffs do not disagree that Wendell’s conduct in stabbing Phillip was intentional. Plaintiffs argue that Wendell’s negligence arose out of the decision of the necessity to use deadly force.

The parties’ arguments focus on different conduct. Defendant focuses on the act of the stabbing, and maintains this was done intentionally. She argues, therefore, that any recovery based on negligence is improper.

Plaintiffs point, not to the stabbings, but the conduct surrounding them. They believe Wendell’s negligence is based on a misperception of the need to use deadly force in self-defense. They, in essence, would find that a person using self-defense would have a duty to the other party to only use so much force as a reasonably prudent person would in that situation. In the case of deadly force, a person could only employ it if a reasonably prudent person would determine it was necessary to do so to avoid imminent harm or death to himself or others. Thus, whether the ultimate act (the stabbing) is intentional or not is immaterial. The focus is on the determination of the necessity of the use of the force. Therefore, under these facts, an intentional act can be performed negligently.

No case in Illinois has been found involving this situation. Defendant argues Hough v. Mooningham (1986), 139 Ill. App. 3d 1018, 487 N.E.2d 1281, is dispositive. There, in a personal injury action, plaintiff’s complaint contained count I based on negligence, and count II, containing the same facts, alleging wilful and wanton misconduct. The trial court found for plaintiff on both counts. On appeal, the appellate court determined the verdict was inconsistent because it was equivalent to a finding that the same conduct was negligent and also wilful and wanton. It noted in Illinois that this could not be. The court ultimately vacated the less serious count of negligence.

Defendant relies on language in Hough and insists plaintiffs’ negligence count must fail. The evidence is clear, she argues, that the stabbing was intentional or wilful. Therefore, pursuant to Hough, it could not also be negligent. However, it appears Hough is limited to the situation where judgment is entered based on two conflicting theories. This is not true of the present situation.

A review of the authorities reveals no consideration of this exact question. Both the Restatement of Torts and Prosser indicate that self-defense is a defense to an intentional tort. (Restatement (Second) of Torts §§63 through 76 (1965); W. Prosser, Law of Torts §19, at 108-12 (4th ed. 1971).) They also indicate that an excessive use of force can allow recovery. However, these discussions are contained in the section dealing with intentional torts. There is no reference to negligence. The closest language would be in Prosser where, in discussing the belief of the apparent necessity of the use of force, he states:

“The belief must, however, be one which a reasonable man would have entertained under the circumstances. The defendant is not required to behave with unusual courage, but neither is he free to behave with abnormal timidity, or to be a complete fool; and it is not enough that he really believes that he is about to be attacked, unless he has some reasonable ground for the belief. Evidence as to his state of mind and nerves, and the threats, past conduct, and reputation of his assailant which may have induced it, is important and admissible on the issue of what was reasonable, which is frequently one for the jury, but the standard to be applied is the external one of reasonable conduct.” W. Prosser, Law of Torts §19, at 109 (4th ed. 1971).

We note the use of the term “reasonable conduct” in Prosser, and the definition of “negligence” as “something which a reasonably careful person would do or *** not do” (Illinois Pattern Jury Instructions, Civil, No. 10.01, at 53 (2d ed. 1971)).

We are aware of possibly treading on new ground, but conclude the plaintiffs’ arguments have merit.

The evidence indicated both the Wendell Johnson and the Phillip Johnson families were holidaying together at Lake Shelbyville. Phillip’s children were in and out of Wendell’s trailer. Wendell and Phillip had gone with others to listen to music earlier in the evening. While Wendell and Phillip had argued, there was evidence of alcohol use by all, but to excess by Phillip. No underlying animosity was shown. The evidence could have justified a finding that Wendell overreacted in gaining control of his intoxicated son, who had struck his mother. The denial of judgment n.o.v. was proper.

We next address defendant’s contention that the trial court committed reversible error by limiting the cross-examination of Dr. Howard Penning. Dr. Penning, a pathologist, testified concerning the autopsy of Phillip. He stated that arteriosclerotic plaque significantly blocked the left descending coronary vessel. On cross-examination, defendant attempted to ask how this would have affected Phillip’s health in the future. The court sustained plaintiffs’ objection. Defendant maintains this is error since, in determining the amount Phillip could have contributed to his family in the future, it is necessary to consider his age, health, and life expectancy, and the effect this blockage would have on these is relevant.

No offer of proof was made and, therefore, it is impossible for this court to determine what the testimony would have been. A party cannot obtain reversal based on the failure to admit evidence without showing what the evidence would be, in order to allow a court of review to assess the prejudice inuring from the exclusion. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 722, 504 N.E.2d 781, 785; Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 569, 476 N.E.2d 1, 3.) The failure to make an offer of proof precludes defendant from raising this allegation of error. We need not discuss the speculative nature of the proposed testimony.

Two additional objections are made relating to instructions. As noted, defendant raised the affirmative defense of self-defense. Accordingly, she submitted a jury instruction which contained the language set forth in sections 7 — 1 and 7 — 2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 7 — 1, 7 — 2). Specifically, one indicated that the acts of Wendell would be justified if he reasonably believed they were necessary to prevent death or imminent bodily harm to himself or another.

Another instruction was based on the language of section 7 — 2 and provided that Wendell’s actions would be justified if he reasonably believed they were necessary to terminate the unlawful entry of Phillip into the trailer, or to prevent the commission of a felony. This was also refused. The jury was instructed that Wendell’s conduct and protection of his property were justified if he reasonably believed it was necessary to expel the intruder and, unless expelled, the intruder was likely to cause great bodily harm or death. Defendant believes that to so limit the instructions was prejudicial error.

Defendant asserts this is error because the tendered instructions contained the language set forth in sections 7 — 1 and 7 — 2 of the Code. She argues the evidence would have supported a finding that a forcible felony occurred. Section 2 — 8 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 8) sets forth the different conducts which constitute a forcible felony. The only one relevant to the present situation is the offense of aggravated battery. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.) Defendant believes this took place, arguing that Phillip committed an act of battery on his mother in a public place of accommodation. She also believes it was error to deny the second instruction since Phillip’s actions at the time he entered the trailer were violent, riotous, and tumultuous and, accordingly, section 7 — 2(a) was applicable (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 2(a)). However, the instructions defendant tendered at trial do not contain the language from section 7 — 2(a) which she now contends should have been there. Accordingly, her argument relating to section 7 — 2(a) is waived.

In Winn v. Inman (1983), 119 Ill. App. 3d 836, 457 N.E.2d 141, plaintiff sued under a theory of assault and battery, and defendant argued self-defense. The reviewing court approved the following instruction:

“ ‘A person is justified in defending himself if he reasonably believes that he is being threatened with immediate bodily harm.
In deciding whether a person is reasonable in his belief that he is being threatened with immediate bodily harm, you must determine whether a reasonable man who found himself in that person’s situation would have believed that he was threatened with immediate bodily harm.
A person, while defending himself, may only use such force as is reasonably necessary under the circumstances.’ ” (Winn, 119 Ill. App. 3d at 841, 457 N.E.2d at 145.)

We note the similarity with the instructions given in the present case.

In an earlier case, Ewurs v. Pakenham (1972), 8 Ill. App. 3d 733, 290 N.E.2d 319, the court did address the instruction necessary when deadly force is used. It specifically went to section 7 — 1 and approved using that part of the instruction which refers to imminent death or great bodily harm. Thus, there is precedent for giving instructions in civil cases incorporating parts of the Code.

Defendant’s argument fails for the lack of evidence which would support a finding of a forcible felony. As noted, the only forcible felony Phillip could have committed is aggravated battery. Defendant asserts Phillip’s conduct met this criterion since he committed a battery on his mother in a public place of accommodation, being the public campground. (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(8).) The essence of section 12 — 4(b)(8) is that the battery occurred in a public area, and the test of that is whether the area where the offense occurred is accessible to the public. (People v. Kamp (1985), 131 Ill. App. 3d 989, 993, 476 N.E.2d 768, 770; People v. Ward (1981), 95 Ill. App. 3d 283, 287-88, 419 N.E.2d 1240, 1244.) However, the evidence is clear that Wendell and his wife owned the trailer in which the event occurred and used it as a personal residence. The evidence would not support a finding of a forcible felony, and an instruction premised on a forcible felony being committed by Phillip would have been improper.

Defendant submitted her instruction No. 7, which is contained in the Illinois Pattern Jury Instructions, and which provided that the jury could consider whether a person was intoxicated, and that this could be considered, along with other factors, in determining if a person was contributorily negligent. (See Illinois Pattern Jury Instructions, Civil, No. 12.01 (2d ed. 1971).) The court refused it, finding defendant had not raised contributory negligence earlier and that Phillip’s contributory negligence should not affect the estate’s recovery.

Defendant asserts the court erred in denying this instruction and not instructing the jury as to comparative negligence. She notes the court’s statements that Phillip’s negligence should not affect the estate’s recovery were wrong. (See Illinois Pattern Jury Instructions, Civil, No. A45.05 (1986 Supp.); Tonarelli v. Gibbons (1984), 121 Ill. App. 3d 1042, 460 N.E.2d 464.) Accordingly, she believes the jury should have been instructed on comparative negligence.

Defendant never pleaded or raised comparative or contributory negligence prior to the jury instruction conference. Generally, no instruction need be given the jury concerning issues not raised by the pleadings. (Seward v. Griffin (1983), 116 Ill. App. 3d 749, 755, 452 N.E.2d 558, 564; Fisher v. Bogdanovic (1973), 10 Ill. App. 3d 311, 314, 293 N.E.2d 176, 178; 35 Ill. L. & Prac. Trial §232 (1958).) To instruct a jury on an issue not raised in the pleadings is error. (Mitch ell v. Four States Machinery Co. (1966), 74 Ill. App. 2d 59, 79, 220 N.E.2d 109, 118.) Further, the failure to plead an affirmative defense, which would likely take the opposite party by surprise, waives the asserted defense. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d); Spagat v. Schak (1985), 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 992.) It cannot be considered even if the evidence suggests the existence of such a defense. (Spagat, 130 Ill. App. 3d at 134, 473 N.E.2d at 992; Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 998, 466 N.E.2d 958, 977.) A claim of comparative or contributory negligence is such an affirmative defense. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d).

Apparently to circumvent this argument, defendant has filed a motion for leave to file an answer to plaintiffs’ second-amended complaint with this court, asserting for the first time the comparative negligence theory. It is too late to close the barn door. The allowance of such a motion would make a mockery of the trial court proceedings. Even if the evidence would support such a defense, if it is not interposed on the trial level by answer, it would not be considered on appeal. (Ellerby v. Spiezer (1985), 138 Ill. App. 3d 77, 80, 485 N.E.2d 413, 415.) Defendant’s motion for leave is denied.

It should also be noted that no instructions involving comparative or contributory negligence, other than the ones mentioned earlier, were offered by defendant. A party cannot complain of a failure to give an instruction unless he tendered the instruction to the court. People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248,1251.

The judgment of the circuit court of Macon County is affirmed.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE SPITZ

text:
      In re D.L.W. (The People of the State of Illinois, Petitioner-Appellee, v. D.L.W., Respondent-Appellant).
    Fourth District
    No. 4—88—0479
    Opinion filed August 24, 1989.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

The respondent minor, bom January 21, 1973, had been adjudicated delinquent and placed on probation. Thereafter, pursuant to proceedings on a petition to revoke his probation, the probation was revoked and he was committed to the Department of Corrections, Juvenile Division (DOC). This appeal followed.

This is another case wherein the sole issue on appeal is the failure to give statutorily required notice to a parent in a delinquency proceeding arising under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.). Section 5 — 25(6) of the Act states: “Disposition after revocation of probation or of conditional discharge shall be under section 5 — 22.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 25(6), formerly Ill. Rev. Stat. 1985, ch. 37, par. 705 — 3(8) (referring to the notice requirements of section 5 — 1).) Section 5 — 22(2) provides in part: “Notice in compliance with Sections 5 — 15 and 5 — 16 must be given to all parties-respondents prior to proceeding to a dispositional hearing.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 22(2) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 705 — 1(2) (referring to notice in compliance with sections 4 — 3 and 4 — 4)).) Under sections 5 — 15 and 5 — 16, notice by personal or substitute service is preferred, but where such service cannot be obtained for any of the listed statutory reasons, notice by certified mail or by publication is sufficient. (Ill. Rev. Stat. 1987, ch. 37, pars. 805 — 15, 805 — 16 (formerly Ill. Rev. Stat. 1985, ch. 37, pars. 704 — 3, 704 — 4).) Of particular note to the issue raised in this case is the provision on service of summons, set forth in section 5 — 15(5) of the Act, which provides:

“Service of a summons and petition shall be made by: (a) leaving a copy thereof with the person summoned at least 3 days before the time stated therein for appearance; (b) leaving a copy at his usual place of abode with some person of the family, of the age of 10 years or upwards, and informing that person of the contents thereof, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the person summoned at his usual place of abode, at least 3 days before the time stated therein for appearance-, or (c) leaving a copy thereof with the guardian or custodian of a minor, at least 3 days before the time stated therein for appearance.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 15(5) (formerly Ill. Rev. Stat. 1985, ch. 37, par. 704 — 3(5)).)

Similar notice requirements adhere when a delinquency petition or supplemental petition is filed, and section 5 — 15 further provides in pertinent part:

“(1) When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition.
***
(3) The summons shall be issued under the seal of the court, attested in and signed with the name of the clerk of the court, dated on the day it is issued, and shall require each respondent to appear and answer the petition on the date set for the adjudicatory hearing.” (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 15 (formerly Ill. Rev. Stat. 1985, ch. 37, par. 704 — 3).)

The type of notice required under the Act is clear, as is the legislative intent that notice be given prior to proceeding with the adjudicatory and dispositional hearings. Further, this court has stated the statutory provisions regarding notice are mandatory (In re J.W.M. (1984), 123 Ill. App. 3d 1036, 1037, 463 N.E.2d 1023, 1024) and failure to comply with statutory notice provisions may constitute reversible error. (In re J.I.D. (1988), 177 Ill. App. 3d 733, 736, 532 N.E.2d 549, 551.) With these precepts in mind, we consider the record before us in this appeal.

On January 5, 1987, a juvenile petition was filed alleging D.L.W. was a delinquent minor by reason of having committed the offenses of burglary, misdemeanor theft, and felony criminal damage to property. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 1, 16 — 1(e)(1), 21 — 1(a).) All offenses involved the break-in and theft from the Lincoln Avenue Mobile station in Urbana, Illinois. On January 8, 1987, a return of summons was filed in the circuit court, showing the minor and his mother and father, with whom he resided, had been notified that a hearing in the case would be held on February 4,1987.

On January 27, 1987, a supplemental delinquency petition was filed against D.L.W., alleging he had committed the offenses of residential burglary and felony theft. (Ill. Rev. Stat. 1987, ch. 38, pars. 19 — 3, 16 — 1(e)(1).) Upon filing the supplemental delinquency petition, the original January 5 delinquency petition was withdrawn and dismissed by the State.

On January 30, 1987, another return of summons was filed with the circuit court, showing the minor and his parents had been given notice to appear at a hearing on the delinquency petition on February 4,1987.

On February 4, 1987, an admonition hearing was conducted. The minor and his mother appeared personally, and counsel was appointed for the respondent minor. During the hearing, the trial court set the date of February 25, 1987, for the minor’s adjudicatory hearing. The minor’s father did not appear at the admonition hearing, nor did he receive formal notice of the adjudicatory hearing.

On February 9, 1987, based on a potential conflict of interest in the appointment of the public defender to represent the minor, the appointment was vacated and another attorney was appointed counsel for the minor and notified of the appointment.

On February 25, 1987, an adjudicatory hearing was conducted on the supplemental delinquency petition. The minor and his mother appeared personally and the minor was represented by counsel. The minor entered an admission to the charge of residential burglary and the theft count was withdrawn and dismissed by the State. The court accepted the admission and stipulation and, at the conclusion of the hearing, set the date of March 31, 1987, for the dispositional hearing. The minor’s father did not appear at the adjudicatory hearing, nor did he receive formal notice of the dispositional hearing.

On March 31, 1987, a second supplemental delinquency petition was filed, alleging D.L.W. had been involved in a residential burglary on March 29,1987. Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3.

At hearing on March 31, 1987, the minor appeared personally and with counsel. The minor’s mother appeared personally, and a representative of the Department of Children and Family Services (DCFS) made an appearance, as did a probation officer from the Court Services Department. The cause was continued to April 14, 1987, and the minor was detained pending that hearing.

On April 7, 1987, a return of summons was filed in the circuit court, showing the minor and his parents had been notified of the dispositional hearing scheduled for April 14.

On April 14, 1987, a dispositional hearing was conducted. The respondent minor appeared personally and with counsel. The minor’s mother appeared personally, as did a probation officer from the Court Services Department, a representative of DCFS, and a representative of CAR The minor was ordered to serve an 18-month term of probation, including as conditions that the minor cooperate with all placement alternatives imposed by DCFS and serve a five-day period of detention set to commence on November 25, 1987. The State also dismissed the second supplemental delinquency petition filed March 31, 1987. D.L.W.’s father did not appear at the dispositional hearing.

On April 22, 1988, a petition to revoke D.L.W.’s probation was filed in the circuit court, alleging the minor had not conformed to the conditions of probation in that he was involved in a felony theft when, on April 20, 1988, he took a 1983 Chevrolet Citation belonging to the Edgar County Children’s Home. (Ill. Rev. Stat. 1987, ch. 38, par. 16 — l(e)(3).) A warrant of apprehension issued against the minor and was executed the same day, with D.L.W. delivered to the Champaign County Youth Detention Center.

On April 25, 1988, a hearing was conducted on the State’s petition to revoke the minor’s probation. Prior to the hearing, no formal notice had been obtained on the minor or his parents. However, the minor appeared personally, as did his mother, along with a representative of the Court Services Department and a representative of DCFS. A public defender was appointed and appeared. The court conducted a detention hearing and issued an order for temporary detention. During the hearing, the court set May 3, 1988, as the date for the adjudicatory hearing.

On May 3, 1988, the minor appeared personally and with counsel. The minor’s mother appeared personally, as did a representative of DCFS. The minor was admonished and admitted and stipulated to the factual allegations of the petition to revoke probation. During the hearing, the court set the date of June 10, 1988, for the minor’s dis-positional hearing. The minor’s father was not present at the adjudicatory hearing, nor was he given formal notice of the dispositional hearing date.

For reasons not apparent from the record, the dispositional hearing was evidently reset for June 6, 1988. The record shows no formal notice given to the minor or his parents as to the rescheduled date for the dispositional hearing. On June 6, 1988, the cause was called for dispositional hearing. Counsel for respondent appeared, and the minor’s mother appeared personally, as did a probation officer from the Court Services Department, a representative of CCH, and a representative of DCFS. The minor did not appear personally and a warrant of apprehension was issued for the minor.

On Tuesday, June 28, 1988, the minor was taken into custody by the Champaign County juvenile authorities and placed at the Champaign County Youth Detention Center.

On Wednesday, June 29, 1988, the cause was called for dispositional hearing. The minor appeared personally and with counsel. No formal service had been obtained on the minor or his parents. Neither of the respondent’s parents appeared, although there were appearances by a representative of DCFS and the probation officer on behalf of the Court Services Department. The trial judge inquired as to whether the minor’s parents had been notified of this new date and time for hearing. The probation officer indicated she was not aware of any notification of the parents, and the detention officer indicated to the judge that the minor’s mother had been notified, at 9:25 a.m. that morning, that the minor’s hearing was set for that afternoon. The trial judge stated on the record:

“THE COURT: We are now talking 4:00, and this matter was set for around 2:45, 3:00, and was delayed, because I have been advised that [the minor] fled the custody of the Court Services officers upon being unhandcuffed at the time he was being brought into this courtroom, and had to be pursued, is that correct?
DETENTION OFFICER: That is correct, Your Honor.
THE COURT: And, while subsequently apprehended we lost our time slot, and that’s why he appears in handcuffs in court now *** and *** we are about an hour and some late on proceedings [from] where we were before. I mention all of this, because it appears to me that had the [respondent mother or respondent father], if they had any intent of being present this afternoon, they could have come by this point, since they live, I think, less than two miles away and I have not been contacted. Nor, to my knowledge, has anyone else been contacted by them saying they intend to come but were unable to do so, or had encountered some difficulty.”

The court ascertained that neither the prosecutor nor the probation officer had heard from the parents. The detention officer indicated the respondent’s mother had not indicated whether she intended to attend. The court thereupon ascertained that at the time the admission and stipulation were entered, the parties agreed to abide by the recommendations of the Court Services Department. The probation officer’s dispositional report recommended D.L.W.’s commitment to DOC. After argument of counsel, the court allowed the petition to revoke the minor’s probation and ordered D.L.W. committed to DOC.

On appeal, counsel for the respondent minor argues the phone call made by the detention officer on the morning of dispositional hearing is not notification sufficient to meet the requirements of the Act, relying on this court’s decision in J.I.D., which stated:

“Section 2 — 22(2) of the Act prescribes the notice which must be given, and that requirement was not met here. At least under the circumstances here, where parents were not notified of the date of the dispositional hearing at a hearing they previously attended or were not notified of or did not attend a previous hearing which was part of a chain of proceedings, each of which was set at the previous hearing and which culminated in the dispositional hearing, we hold the failure of the State to give section 2 — 22(2) notice to a parent showing sufficient interest in a minor to be reversible error.” (Emphasis in original.) (J.I.D., 177 Ill. App. 3d at 735-36, 532 N.E.2d at 551.)

And further:

“Little purpose is served by the statutory notice requirement if it is deemed to be merely directory without any sanction for noncompliance.” (Emphasis added.) (J.I.D., 177 Ill. App. 3d at 736-37, 532 N.E.2d at 552.)

The State concedes reversible error occurred here. We agree. If the protections of the Act are to have any meaning whatsoever, they must be given effect during the proceedings in the circuit court and are not to be ignored simply because it is expedient to do so.

Accordingly, for the reasons herein stated, the orders revoking the minor’s probation and committing him to DOC must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

LUND and KNECHT, JJ., concur.