author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REX ALLEN TAYLOR, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—0841
    Opinion filed June 4, 1990.
    Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E.

      Fitzgerald, and Kevin T. Noonan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Rex Allen Taylor (Taylor) appeals from the dismissal of his post-conviction petition. Taylor was convicted of the murder of his wife, Betsy Taylor (Betsy), and the attempted murder of his mother-in-law, Betty Jennings, based on the following undisputed facts. Taylor and Betsy were married in 1973. On June 30, 1977, Betsy filed a divorce petition and was given temporary custody of their son, but she continued to live with Taylor. On August 7, 1978, Betsy left Taylor and went to her parents, Betty and Louis Jennings. On August 9, 1978, Taylor broke through the Jenningses’ glass patio doors with a car jack, entered the Jenningses’ house, and stabbed Betsy several times. When Betty Jennings grabbed Taylor’s arm, he stabbed her in the chest. Subsequently, Taylor knelt over Betsy and stabbed her several more times.

At Taylor’s bench trial, an insanity defense was presented. The defense called two experts, Drs. James Cavanaugh and Melvin Seglin, who testified that Taylor was unable to conform his conduct to the requirements of the law on the day of the crimes. Additionally, the defense called two lay witnesses to testify on Taylor’s behalf. The State called its expert, Dr. Kaplan, who testified that Taylor was capable of controlling his impulses and was able to conform his conduct to the requirements of the law on the day of the crimes. Furthermore, the State called eight lay witnesses, including Betty Jennings. Betty Jennings testified that she felt Taylor was “in contact with reality” the day the crimes were committed. On October 6, 1980, the trial court convicted Taylor. On March 6, 1981, post-trial motions were heard and Taylor was sentenced to 30 years’ imprisonment.

Then on March 31, 1981, an article appeared in the Reader that stated:

“Of course, you might say, anybody who kills is insane. Mrs. Jennings, for one, felt that way. She had the habit, when Rex [Taylor] was first in custody, of announcing, ‘You know, don’t you, that Rex is crazy.’ An assistant state’s attorney told her to hush up. The man said Rex might seem crazy to her, but not to the eyes of the law.”

Subsequently on April 3, 1981, Taylor filed his appeal. His appellate brief was filed on November 18, 1981, and he did not file a reply brief. Taylor’s attorney participated in oral argument on July 12, 1982. On appeal, Taylor specifically raised the issue of whether he was proved sane beyond a reasonable doubt at the time of the offenses. On October 25, 1982, this appellate court affirmed Taylor’s conviction, holding that Taylor’s behavior was premeditated and intentional, not uncontrolled and impulsive as defense experts asserted, based on the following evidence: Betsy’s sister’s testimony that Taylor threatened to kill Betsy and her family several times; that Taylor rented a car and parked V-k blocks from the Jenningses’ residence to avoid detection; and that Taylor brought weapons with him. People v. Taylor (1982), 110 Ill. App. 3d 112, 118-19, 441 N.E.2d 1231.

On November 6, 1985, Taylor filed his petition for post-conviction relief. A hearing was held on February 10, 1987, and the trial court dismissed the post-conviction petition. Taylor appeals.

Taylor argues that he should be entitled to a post-conviction hearing since he alleged that the State knowingly used the allegedly perjured testimony of Betty Jennings. We disagree. The post-conviction proceeding inquires into constitutional issues involved in the original conviction that have not already been adjudicated or could have been adjudicated. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212, citing People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666.) Taylor’s argument, that Betty committed perjury, is based solely on the March 31, 1981, Reader article, which was discoverable before 30 days had elapsed after Taylor’s post-trial motions, and prior to filing his first appeal. Accordingly, Taylor has waived this issue on appeal since he knew of the alleged perjurious testimony before filing his first appeal, did not bring a timely post-trial motion, did not bring it to this court’s attention, did not argue it, nor ask for a stay to raise a motion in the trial court. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212; People v. Jones (1985), 109 Ill. 2d 19, 24, cert. denied (1986), 475 U.S. 1090, 89 L. Ed. 2d 735, 106 S. Ct. 1481; People v. Gaines (1984), 105 Ill. 2d 79, 87-88, 473 N.E.2d 868, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666.) Even if Taylor had not waived this issue, the claimed error was not manifestly against the weight of the evidence since the finding of Taylor’s sanity at the time he committed the offenses was supported by the State’s expert’s testimony as well as several other lay witnesses. Additionally, there was not any evidence that Betty Jennings’ alleged statements were based on the legal definition of insanity, rather than her subjective view.

Taylor also argues that he was denied due process because the State committed a discovery violation when it did not disclose Betty’s alleged statements to the Reader. He contends that the evidence actually existed; that it was in the State’s possession; that it was favorable to him; and that the State failed to disclose it despite a specific request for it. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) We disagree. Taylor has waived this argument as discussed above. Even if this argument had not been waived, a discovery violation did not occur. Betty’s statements did not favor Taylor after considering the statements’ context and the fact that the statements were double, if not triple, hearsay. In addition, the State did not fail to disclose specifically requested evidence. The defense only requested knowledge of favorable witnesses or physical evidence; they did not request Betty’s alleged statements. Additionally, Betty cannot be considered a favorable witness after Taylor stabbed her and killed her daughter. Moreover, the defense had ample opportunity to cross-examine Betty at trial regarding her beliefs.

In conclusion, the trial court properly dismissed Taylor’s petition for a post-conviction hearing because these issues were waived by not bringing a timely post-trial motion and by failing to raise such issues in connection with his prior appeal. Moreover, the trial court’s finding that Taylor was sane at the time he committed the offenses was not manifestly against the weight of the evidence. Finally, for the reasons discussed above, no discovery violation was committed. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYSIRICK WILSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1070
    Opinion filed June 4, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas J. Brosnan, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Patrick J. Finley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Lysirick Wilson was convicted, after a jury trial, of unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10—3(a)), and attempted criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1)) and sentenced to seven years’ imprisonment. Wilson appeals, arguing that the prosecution improperly attempted to impeach a witness and made improper remarks during closing argument. For the reasons below, we reverse and remand for a new trial.

At trial, the victim testified that on October 24,1986, Lysirick Wilson had come to her apartment for the ostensible purpose of discussing a Halloween party she was planning. Wilson’s fiancee, Tina Houston, and the victim’s boyfriend were brother and sister. The victim knew Wilson only as “Rick.”

The victim testified that she let Wilson into her apartment, where they talked briefly, and as she was letting Wilson out, he turned on her, threw her to the floor, unzipped her pants, and tried to force her legs apart. As the two struggled, the victim suggested they go to her bedroom. The ruse worked, and Wilson let her up. The victim pushed Wilson as hard as she could, ran to the kitchen, and grabbed a knife, severely cutting a finger in her haste to arm herself. She threatened Wilson with the knife, and he fled. The victim then sought help from a neighbor, who tended to the finger and called the police, who took the victim to the hospital. The hospital records indicated that the victim received stitches in her finger, complained of no other injuries, and that there were no bruises or other marks of a struggle.

On cross-examination, the victim admitted that Wilson had not threatened, slapped or punched her, and never exposed his penis to her or uncovered her genitalia. She also acknowledged making a phone call to Tina Houston on October 26,1986.

Tina Houston testified that on October 26, 1986, she received a call from the victim, who said that Wilson had attacked her. Houston said the victim also told her that Wilson had threatened to tell her boyfriend that he had seen another man in the apartment. (The victim had previously filed a complaint against her boyfriend for beating her after he had caught her with another man.)

On cross-examination, the prosecution asked Ms. Houston whether she had been convicted for forgery. Ms. Houston said no. Defense counsel objected, and during a sidebar conference, the prosecution was unable to provide proof of the conviction. The trial court sustained the objection and instructed the jury to disregard the question and answer.

The prosecution also asked Ms. Houston about a meeting before the trial with the assistant State’s Attorney, where he had asked her whether she knew of any reason why the victim would lie. Ms. Houston acknowledged the meeting, but stated that the assistant State’s Attorney had not identified himself, and that in response to his question, she had told him “no” and that she didn’t want to talk to him. The discussion was corroborated, however, by Mr. Larry Applebaum, a law clerk in the State’s Attorney’s office who had been present during the conversation. Mr. Applebaum testified that the assistant State’s Attorney had clearly identified himself before asking Ms. Houston any questions.

During closing arguments, the prosecution made several statements to which objections were sustained. The prosecutor also made two statements, quoted below, to which defense counsel did not object.

The jury found Wilson guilty, and he was convicted of unlawful restraint and attempted criminal sexual assault. Wilson appeals.

Wilson first challenges the attempt to impeach Tina Houston with an unsubstantiated prior conviction. The trial court sustained defense counsel’s immediate objection, however, instructed the jury to disregard both question and answer, ordered Ms. Houston’s answer stricken, and the alleged prior conviction was not mentioned again. The trial court’s actions were sufficient to avoid prejudice to Wilson. But the prosecution’s use of an unsubstantiated conviction, though not substantially prejudicial, was nevertheless improper.

Wilson also challenges several improper remarks by the prosecution during closing arguments. We find no prejudice where prompt objections were sustained and, where appropriate, the jury instructed. But two statements, to which defense counsel did not object, denied Wilson a fair trial, and although failure to object ordinarily waives review, we accept Wilson’s arguments because the evidence here was closely balanced and the errors substantial. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

The evidence, while sufficient to prove guilt, was not overwhelming. There were no eyewitnesses to the assault besides the victim; thus, the principal evidence against Wilson was the testimony of the victim. Tina Houston, however, testified that the victim had a motive to lie about the assault.

The verdict, therefore, rested on the jury’s determination of the relative credibility of the victim and Ms. Houston and the weight accorded their respective testimony. That determination, however, was directly addressed in the prosecutor’s statements, and we cannot determine whether the jury’s decision was based on the proper standards of review, or influenced by the prosecutor’s improper statements.

During closing arguments, the prosecution addressed the credibility of Tina Houston, stating:

“Counsel would have you believe my job as Assistant State’s Attorney as a representative of the People of the State of Illinois is to convict innocent people. It’s not my job. I represent all of the People of the State of Illinois, including the Defendant. It is my duty and obligation if I become aware that someone’s not guilty, to dismiss that case. That’s my obligation as a sworn officer of the Court. And we’ve got two hundred sixty or two hundred seventy other felony cases on this call that all need to be fully and properly prosecuted and investigated. I submit to you Ladies and Gentlemen that the defense case rises or falls on their evidence, on Tina Houston. Either she told you the truth or she lied. And she lied to you in this very courtroom.”

The State contends that it was making invited comments on Ms. Houston’s credibility.

The State may attack the credibility of a defense witness, but that attack must be based on the evidence. The tactic of expressing personal beliefs, or invoking the integrity of the State’s Attorney’s office, to attack the credibility of a witness has been condemned:

“It is fair to say that the average jury, in a greater or less degree, has confidence that [the obligations to produce proper convictions and prevent wrongful ones], which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” (Berger v. United States (1935), 295 U.S. 78, 88, 79 L. Ed. 1314, 1321, 55 S. Ct. 629, 633.)
“The State’s Attorney represents the People of the State of Illinois in the courtroom. The words he speaks carry the authority of the People and of the State. Thus, the State’s Attorney must choose his words carefully so that he does not use that authority to persuade a jury that there is a greater authenticity in what he says than in what the defense says.” (People v. Valdery (1978), 65 Ill. App. 3d 375, 378, 381 N.E.2d 1217.)

The reason for condemnation is self-evident: the fear that the jurors, relying on the integrity of the prosecutor, will defer to his or her judgment concerning the guilt of the accused or the credibility of a witness. However, “[i]t is the duty solely of the jury to determine the credibility of the witnesses and guilt or innocence of the accused; it is not the privilege of the prosecutor.” Valdery, 65 Ill. App. 3d at 378.

Here, the prosecutor did not refer to the evidence impeaching Ms. Houston. Rather, the prosecutor reminded the jury of his duties and obligations as a representative of the State and officer of the court, and his personal knowledge of the court call, then flatly declared that Tina Houston had lied. The statement clearly implied that the jury could believe Wilson was guilty because prosecution was tantamount to guilt, and that any doubts concerning Tina Houston could be resolved in favor of the State because the prosecutor’s declaration that she had lied was consistent with his obligation to reveal exculpatory evidence, if any. Because it is impossible to determine whether the jury exercised its independent judgment to assess Ms. Houston’s credibility, or was swayed towards its natural inclination to accept the word of the prosecution, we conclude that the prosecutor’s statement was substantially prejudicial.

Wilson also argues that the prosecutor improperly misstated the law. Addressing the defense theory of the case, the prosecutor stated:

“Is it curious to anyone the defense would have you believe everybody in this case is guilty except the Defendant? [State’s witness] Kondal committed perjury. The State’s Attorney is guilty of trying to frame someone. [The victim] is guilty.”

Wilson contends that the statement suggested an improper standard for review of the evidence. The State counters that it was making an invited comment on the defense theory.

To inform a jury that to believe the defense witnesses the jury must find that each of the State’s witnesses was lying is a misstatement of law that denies a defendant a fair trial. In People v. Ferguson (1988), 172 Ill. App. 3d 1, 526 N.E.2d 525, for example, the prosecution stated: “[T]o find the Defendant not guilty of the charges, he has before him, you have to believe he told you the truth. You have to feel [other defense witnesses] told you the truth. And that all of [the State’s witnesses] are liars and fools.” (Ferguson, 172 Ill. App. 3d at 13.) In People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931, the prosecution stated: “[Y]ou got [sic] to ask yourselves if you are going to believe *** the alibi witnesses. Is there one iota of truth in the testimony of the witnesses for the State. You have got to find that [witnesses for the State] are lying.” Cole, 80 Ill. App. 3d at 1107. See also United States v. Vargas (7th Cir. 1978), 583 E2d 380; United States v. Phillips (7th Cir. 1975), 527 F.2d 1021.

The proscription against misstatements of law includes statements that in effect distort the burden of proof by suggesting incorrectly what the jury must find to reach a certain verdict. The correct standard for consideration of the evidence in a criminal trial is not whether one side is more believable, but whether, taking all of the evidence into consideration, guilt as to every essential element of the charge has been proven beyond a reasonable doubt. People v. Crossno (1981), 93 Ill. App. 3d 808, 821-22, 417 N.E.2d 827.

Here, unlike Ferguson or Cole, the prosecutor’s statement was not an instruction to the jury concerning how it must consider the evidence. Despite the semantic distinction, the statement conveyed the same substantive message: Wilson carried a burden of proof to establish his innocence, and to meet his burden of proof, Wilson was required to show that the State’s witnesses had lied. Clearly, Wilson was not required to present any such proof, and the jury was not required to make any such finding. The prosecutor’s statement created doubt as to whether the jury applied the proper standard of proof in considering the evidence. It was, therefore, substantially prejudicial.

We note that the statements here were not as egregious as those that have previously justified reversal, but the issue is not one of degree. To invoke the integrity or authority of the State to endorse or discredit a witness, or misstate the burden of proof or standard of review, to any extent, compromises the fairness of the judicial process and shall not be tolerated. Accordingly, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

CAMPBELL and MANNING, JJ., concur.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LeCURTIS JOHNSON, a/k/a Lee Curtis Johnson, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—3866
    Opinion filed June 4, 1990.

      Michael J. Pelletier and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Sharon Jefferson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, LeCurtis Johnson, a/k/a Lee Curtis Johnson, appeals from the trial court’s determination on remand for a Batson hearing that defendant had failed to establish a prima facie case of race discrimination by the State in its use of peremptory challenges against black venirepersons. On appeal, defendant contends that: (1) he had sustained his burden of demonstrating a prima facie case of discrimination by the State, and (2) the trial court had prejudged defendant’s claim of racial discrimination, thereby denying him his due process right to an impartial fact finder. For the following reasons, the judgment of the trial court is reversed and the cause remanded.

This is defendant’s second appeal to this court. Defendant’s first appeal, decided in People v. Johnson (1986), 148 Ill. App. 3d 163, 498 N.E.2d 816 (Johnson I), was from his conviction for armed robbery. In Johnson I, defendant contended that: (1) the trial court had erred in admitting into evidence shotgun shells found in his apartment; (2) the cumulative effect of improper prosecutorial comments during closing argument denied him his right to a fair trial; (3) the trial court abused its discretion in sentencing defendant to 10 years’ imprisonment; (4) the trial court erred in denying defendant’s motion for a new trial predicated on newly discovered evidence; and (5) the State’s discriminatory use of peremptory challenges violated defendant’s constitutional rights. During the pendency of defendant’s first appeal, the United States Supreme Court decided Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, which held that a defendant may rely solely on evidence concerning the selection of the jury at his own trial to establish that a prosecutor had unconstitutionally exercised peremptory challenges against potential jurors solely on account of race. Pursuant to Batson, the defendant has the initial burden of establishing a prima facie case of racial discrimination in the prosecution’s use of peremptory challenges. If the trial court determines that defendant has met that burden, the burden then shifts to the prosecution to present race-neutral reasons for striking venirepersons who are members of defendant’s racial group. (476 U.S. at 96, 106 S. Ct. at 1723, 90 L. Ed. 2d at 87.) The issue of whether Batson was to be applied retroactively was still pending before the Supreme Court when this court filed its opinion in Johnson I.

In Johnson I, this court affirmed the judgment and sentence entered by the circuit court in all respects except as to the court’s ruling on the issue of the State’s discriminatory use of peremptory challenges. Regarding that issue, this court found that Batson applied retroactively to the case at bar and remanded the case for a hearing to determine whether the State had purposefully discriminated against blacks in executing its peremptory challenges, instructing the court that if it found that the State had not purposefully discriminated, it was to confirm the judgment and sentence. However, if the court found that the State had purposefully discriminated, it was to order a new trial.

On remand for the Batson hearing, defense counsel stated for the record that defendant is black and that six out of seven peremptory challenges used by the State were against black venirepersons. Defense counsel also acknowledged that two of the jurors finally selected were black and that the prosecutor was black. The State withheld any argument until the trial court made its ruling as to whether defendant had established a prima facie case of discrimination. The trial court then stated:

“If this were a case tried in one of our southern states like Florida, Georgia, Alabama, Tennessee, which have been noted for exhibiting prejudice against minority races, particularly blacks, then the numerical citation that [defense counsel] makes would appear to be more effective.
But to say that the elimination of the exercise of preemptory [s-ic] challenges in six out of seven persons is an invidious exhibition of racial discrimination, I don’t think applies under the setting we have in this geographical area.
One of the tests of Batson is that the facts and circumstances allow the inference that the prosecutor purposefully excluded prospective jurors from the jury on account of their race.
Now, certainly the record in this case must show, and the Appellate Court did recognize, that the prosecutor in this case, who led the prosecution, was Assistant State’s Attorney Pamela Spooner, who herself is black. She is no longer with the State and is in private practice.
And for me to conclude that she as a black person purposefully exercised preemptory [sic] challenges solely on a racial basis would not be consistent with what I know and have seen during the time that she practiced before this Court, nor do I think it is warranted by the evidence and the record made thus far in this case.
The Sixth Amendment, which was the original issue under which Batson granted certiorari, entitled the accused to a jury which can judge the case based upon the law and the facts.
Therefore, regardless of its racial composition if the jury is sworn that they will be impartial then the defendant has no cause to complain under the Sixth Amendment.
Inasmuch as this case has been sent back in order to dispose of it once and for all, I’m going to grant an evidentiary hearing in spite of the remarks that I have just made.”

Based upon the trial court’s remarks, defense counsel stated that he doubted whether defendant could get a fair hearing before the trial judge. The State responded that the case had been specifically remanded to the court that had heard the original jury selection. Without addressing defendant’s request that the cause be transferred, the trial court ¡found that defendant had failed to establish a prima facie case of race discrimination pursuant to Batson.

Subsequently, defense counsel filed a motion for reconsideration, requesting that: (1) the court reconsider its determination that defendant had failed to establish a prima facie case of racial discrimination and to grant him a hearing, and (2) the court recuse itself as the result of remarks made at the Batson hearing. In response, the State filed a memorandum of law, quoting answers made by the challenged black venirepersons during voir dire questioning. Following the quoted answers, the prosecutor for the Batson hearing, who was not the same prosecutor who had conducted the original voir dire, inserted her own comments as to why she thought the particular venireperson had been challenged. The trial court stated, “Now, I recognize that can be a conclusion by Mrs. Callum, who drew this memorandum, but nevertheless, I think it does provide a sufficient basis in law to excuse that juror.” The trial court then made the following findings of fact: (1) the prosecutor was black; (2) there were valid reasons for the State’s exercise of peremptory challenges; (3) there were two black jurors; and (4) nothing in the record supports a claim of purposeful discrimination in the jury selection process. Accordingly, the trial court concluded, as a matter of law, that defendant had failed to establish a prima facie case of discrimination and that he had been tried by an impartial jury and had received a fair trial. The trial court then confirmed the judgment. Defendant’s appeal followed.

Defendant initially argues that the trial court erred in finding that he had failed to establish a prima facie case of racial discrimination in the use of peremptory challenges. To establish a prima facie case, a defendant must show that the prosecutor exercised peremptory challenges to remove members of a cognizable racial group from the venire and that defendant is a member of that group. The defendant may then rely on the fact that peremptory challenges allow a prosecutor to discriminate in conjunction with other relevant circumstances to raise an inference that the prosecutor had used peremptory challenges to exclude venirepersons on the basis of their race. (People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351.) The relevant circumstances which a trial court may consider include: a pattern of challenges used against black venirepersons; the prosecutor’s questions and statements during voir dire; the disproportionate use of peremptory challenges against blacks; whether the excluded blacks share only race as a common characteristic; the level of black representation in the venire as compared to the jury; the race of the defendant and the victim; and the race of the witnesses. (People v. Mahaffey (1989), 128 Ill. 2d 388, 539 N.E.2d 1172.) In considering these circumstances, the trial court must be mindful that the exclusion of just one minority venireperson for racial reasons is unconstitutional and provides grounds for reversal. People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.

In Harris, at defendant’s Batson hearing, it was established that defendant was black, 2 of the 12 jurors had been black and that 15 of the State’s 20 peremptory challenges had been used to exclude blacks. Based on these findings, the trial court held that a prima facie case of discrimination had been established. In affirming the trial court, the supreme court found that there had been a “pattern of strikes” against black venirepersons and that the group against whom these strikes had been made shared race as their only common characteristic. Specifically, the court noted that the 15 black venirepersons who had been stricken ranged in age from 19 to 59; 12 were men; 3 were women; the occupations were: steelworker, hostess, therapist, housekeeper, fork lift operator, nurse, secretary and personnel manager. The Harris court concluded that the burden had shifted to the State to provide race-neutral explanations for excluding the black venirepersons. Moreover, the explanations must articulate which facts were “in fact” the basis for the allegedly discriminatory act. Harris, 129 Ill. 2d at 184.

Similarly in People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351, the supreme court affirmed the trial court’s determination that defendant had established a prima facie case of discrimination on the grounds that the prosecutor’s use of 16 of his 18 peremptory challenges to exclude black venirepersons evidenced a pattern of strikes against blacks, whose only common characteristic was race. See also People v. Harris (1989), 182 Ill. App. 3d 114, 537 N.E.2d 977 (prima facie case established when three of six challenges were used against black venirepersons); People v. Colley (1988), 173 Ill. App. 3d 798, 528 N.E.2d 223 (prima facie case established when four of eight challenges were used against black venirepersons); People v. Sims (1987), 154 Ill. App. 3d 528, 507 N.E.2d 178 (prima facie case established when six of eight challenges were used against black venirepersons); People v. Cannon (1987), 153 Ill. App. 3d 245, 505 N.E.2d 1272 (prima facie case established when five of six challenges were used against black venirepersons even though the victim was black and one black venireperson had been selected as an alternate juror).

In the present case, the record indicates that: defendant was black; the prosecutor was black; the prosecutor had exercised six of her seven peremptory challenges against black venirepersons; and two blacks served on the jury. Moreover, the only common characteristic shared by the challenged black venirepersons was their race. Although several of the challenged black venirepersons had been victims of crimes, this characteristic was equally true with respect to the non-black venirepersons who were not challenged. Further, all of the challenged black venirepersons who had been victims of crimes stated during voir dire that the fact that they had been victims of a crime would not influence their judgment as a juror.

The State argues that the fact two of the jurors were black and the prosecutor herself was black precludes a determination of prima facie discrimination. Contrary to the State’s assertion, Batson does not require a complete exclusion of a racial group to prove discrimination. (People v. Johnson (1987), 159 Ill. App. 3d 991, 513 N.E.2d 852.) In the present case, a distinct “pattern of strikes” was established against members of defendant’s racial group. As previously stated, use of a peremptory challenge for racial reasons against only one venireperson is unconstitutional. (People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) Moreover, we are not persuaded that merely because the prosecutor was black, she would not have discriminated against her own racial group. We do not deny that the race of the prosecutor is a relevant consideration for the trial court. However, in light of all of the other factors present in this case, it is not dispositive. Accordingly, we conclude that: (1) the trial court’s finding that defendant had failed to establish a prim a facie case of discrimination was against the manifest weight of the evidence, and (2) the burden to provide race-neutral explanations for the use of peremptory challenges against the black venirepersons shifted to the State.

Our determination that the burden shifted to the State, necessitates our review of the memorandum filed by the State with its response to defendant’s motion to reconsider. Pivotal facts in our analysis are that the memorandum was not prepared by the prosecutor who had conducted the original voir dire, and that the original prosecutor was not even consulted in the preparation of the memorandum. As a result, the memorandum contained quoted answers made by the challenged black venirepersons during voir dire questioning, which were annotated by the current prosecutor with her comments as to why she thought those particular comments had resulted in the State’s use of peremptory challenges. Although the trial court recognized that the annotations might be considered “conclusions” by the current prosecutor, the court nonetheless adopted the memorandum in its entirety as part of its opinion.

In our view, the memorandum was improperly considered for two reasons. First, pursuant to Batson, the burden to present race-neutral explanations for peremptory challenges does not shift to the State unless the trial court makes a finding that defendant has established a prima facie case of racial discrimination. In the present case, the trial court found that defendant had not established a prima facie case. When defendant moved for reconsideration, his motion did not seek reconsideration of any race-neutral explanations because none had been given at the original hearing. Instead, the motion sought reconsideration of the trial court’s finding that he had failed to establish a prima facie case of discrimination. If the trial court had vacated its original judgment and found that defendant had established a prima facie case of racial discrimination, then a hearing would have had to have been set for the State to present race-neutral explanations and for the defendant to challenge those explanations. The State’s explanations are only relevant when the State is required to rebut a prima facie case of discrimination. (See People v. Harris (1989), 182 Ill. App. 3d 114, 537 N.E.2d 977.) There was no such determination made in the present case. To allow a hearing under the present circumstances not only improperly shifts the burden of proof, but does so without any notice to defendant for preparation of his challenge to the State’s explanations.

Second, even if the burden had been properly shifted to the State, the State’s race-neutral explanation in the form of a memorandum predicated solely on speculation is insufficient to meet the Bat-son requirement. For this court to allow after-the-fact, speculative explanations for the use of peremptory challenges against members of minority racial groups would undermine the whole purpose for a Batson hearing. As stated by the supreme court in People v. Harris (1989), 129 Ill. 2d 123, 185, 544 N.E.2d 357, quoting Uviedo v. Steves Sash & Door Co. (5th Cir. 1984), 738 F.2d 1425, 1430, “It is beyond the province of a trial or a reviewing court to determine — after the fact — that certain facts in the record might have served as the basis for [a discriminatory act].” They must have “in fact” served as the basis for the act. Harris, 129 Ill. 2d at 184.

Defendant next argues that this court should remand his case for a Batson hearing before a different judge because the trial judge in this case had prejudged his case, thus denying him his due process right to an impartial factfinder. In response, the State denies that the trial judge prejudged the defendant’s case and contends that the trial judge was impartial.

A defendant’s right to an unbiased, open-minded trier of fact is rooted in the constitutional guaranty of due process of law. (People v. McDaniels (1986), 144 Ill. App. 3d 459, 494 N.E.2d 1275.) “ ‘Pre-judgment is the antithesis of a fair trial’ ” because a defendant is entitled to a fair and impartial trial before a court which does not render judgment until after trial. (McDaniels, 144 Ill. App. 3d at 462, 494 N.E.2d at 1278, quoting People v. Diaz (1971), 1 Ill. App. 3d 988, 993, 275 N.E.2d 210, 212.) In order to show bias or prejudice on the part of the trial court toward one of the parties, however, the record must show that there was active personal animosity, hostility, ill will or distrust toward the defendant and, absent such a showing, a court will not conclude that there was actual prejudice which prevented or interfered with a fair hearing. People v. Vance (1979), 76 Ill. 2d 171, 390 N.E.2d 867.

Applying the foregoing standards to the record in this case, there is no evidence that the trial court prejudged the defendant’s case. The record does not reveal any personal animosity, hostility, ill will or distrust on the part of the trial court toward the defendant. Further, the trial court’s comment that he did not believe that there was discrimination in this case was not made until after the defendant had presented his evidence.

The cases relied upon by defendant in support of his claim that the trial court had prejudged his case are distinguishable from the present facts. In those cases, the trial court clearly exhibited a bias against the defendant. (See, e.g., People v. Gurga (1988), 176 Ill. App. 3d 82, 83-84, 530 N.E.2d 1059 (on remand for resentencing, the trial court imposed the same sentence that it had originally imposed, commenting that it was “in complete and total disagreement” with the appellate court’s decision to remand and that “we have a 19th Century system of appeals”); People v. McDaniels (1986), 144 Ill. App. 3d 459, 462, 494 N.E. 1275 (court stated that the defendant’s claim of self-defense was “pretty ridiculous” before the first witness for the State had completed his testimony); People v. MacRae (1979), 78 Ill. App. 3d 266, 268, 397 N.E.2d 509 (upon remand for resentencing to consider whether the defendant was entitled to probation, the court sentenced the defendant to the original sentence of four to six years, stating that it disagreed with the appellate court and that the appellate court’s opinion “stinks”); People v. Ojeda (1969), 110 Ill. App. 2d 480, 249 N.E.2d 670 (trial court’s comments indicated that it believed the testimony of a police officer and would disbelieve the testimony of a defense witness).) Since there was no clear bias or prejudice in this case, we find that defendant was not denied his due process right to an impartial factfinder.

Based upon the aforementioned, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a continuation of the Batson hearing, at which the State is to provide race-neutral explanations for the use of peremptory challenges against black venirepersons. In the event the circuit court finds that the State did not purposefully discriminate, the court is directed to confirm the judgment and sentence. If the court finds that the State did purposefully discriminate, the court is directed to order a new trial.

Reversed and remanded with instructions.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      Subsequently, in Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708, the Supreme Court held that Batson was to be applied retroactively to all cases pending on direct review when Batson was decided.


author: JUSTICE BILANDIC

text:
    VIOLET DIVARCO, Plaintiff-Appellee, v. W.J. LAZYNSKI, INC., et al., Defendants (Baywood Construction Company, Intervenor-Appellant).
    First District (2nd Division)
    No. 1—88—3817
    Opinion filed June 5, 1990.

      James W. Ford, of Braun, Lynch, Smith & Strobel, Ltd., of Chicago, for appellant.
    Michael W. Rathsack, Dominic R. Fichera, and Charles A. Fanucchi, all of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

Intervenor, Baywood Construction Company (Baywood), appeals from an order of the circuit court denying its petition to impress a workers’ compensation lien on the proceeds plaintiff, Violet DiVarco, received in settlement of a Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) cause of action.

On June 22, 1977, plaintiff’s husband, Sam DiVarco, died from injuries incurred in the course of his employment by Baywood. As a result of Sam DiVarco’s death, Baywood’s workers’ compensation carrier, U.S. Insurance Group, made payments to plaintiff pursuant to the Illinois Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.).

In 1978, plaintiff instituted a third-party action against various defendants allegedly liable for the death of her husband. The initial complaint asserted liability on the theory of negligence. As the case progressed through the usual pretrial stages, the pleadings were amended. The negligence counts were dropped. At its final stage, before trial was to begin, Violet DiVarco was the only plaintiff and liability was asserted under the provisions of the Structural Work Act. Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.

Prior to trial, plaintiff entered into a settlement agreement with defendant Greeley and Hansen, Inc., and defendant W.J. Lazynski, Inc., and dismissed her action against the remaining defendant. The parties notified Baywood of the proposed settlement. This caused Baywood to intervene, for the use and benefit of U.S. Insurance Group (its workers’ compensation carrier), and assert a lien on the settlement proceeds pursuant to the Workers’ Compensation Act. Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).

After Baywood amended its petition, the trial court held a hearing. At the hearing, Baywood did not allege that there was any impropriety on the part of the parties in reaching a settlement and disposition of the Structural Work Act case. Baywood concedes that the amount of the settlement was fair and reasonable under the Structural Work Act. Baywood merely seeks to impress a lien on the proceeds so that it can recover the amounts it paid and will pay under the Workers’ Compensation Act. The trial court denied Intervenor Baywood’s petition to impress a workers’ compensation lien. It is from this order that Baywood appeals.

The issue before this court is whether a workers’ compensation lien attaches to the proceeds of a settlement based upon a complaint alleging violation of the Structural Work Act. Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.

I

- An employer who makes payments under the Workers’ Compensation Act has a right to impress a lien on the judgment or settlement paid by a third-party tortfeasor in certain instances.

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages ***. In such case, however, if the action *** is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, *** then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative ***.” Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).

Baywood contends that the denial of its petition to impress a lien on the settlement proceeds operates to frustrate the purpose of section 5(b), which is to prevent a double recovery by the same person for the same injuries. Baywood argues that both the Workers’ Compensation Act and the Structural Work Act compensate a decedent’s widow for her loss of support. Notwithstanding the specific wording of section 5(b), Baywood contends that a workers’ compensation lien should be impressed upon the proceeds plaintiff received in settlement of her Structural Work Act complaint in order to effectuate section 5(b)’s purpose of preventing double recoveries.

The Structural Work Act, upon which the settlements at issue were based, provides:

“[I]n case of loss of life by reason of [any] wilful violation [of this Act], a right of action shall accrue to the surviving spouse of the person so killed, *** for a like recovery of damages for the injuries sustained by reason of such loss of life ***.” Ill. Rev. Stat. 1985, ch. 48, par. 69.

Plaintiff disputes Baywood’s contention that plaintiff has received a double recovery by virtue of the Workers’ Compensation Act and the Structural Work Act. Plaintiff argues that a widow’s cause of action under the Workers’ Compensation Act is a derivative claim, based upon the rights of the employee to be compensated by his employer. In contrast, a widow’s cause of action under the Structural Work Act is an independent cause of action, personal to the widow, based upon her loss of support. We agree.

The Structural Work Act provides an independent cause of action accruing to the widow herself for her loss of support. The legislature created a right in the employer to impress a lien on settlement proceeds in certain specific instances. Under the plain language of section 5(b), an employer is entitled to impress a lien only on actions brought by and settlement proceeds paid to “the injured employee or his personal representative.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.5(b).) In the case at bar, the action upon which the settlement was made was not brought by the “injured employee or his personal representative.” The employee’s personal representative, by reason of his death, is not a party to the litigation and was not a party to the settlement of the litigation. The party plaintiff is the employee’s widow, in her own individual capacity, asserting her own personal claim under the Structural Work Act. She is the party to the settlement in her own personal capacity. Therefore, a section 5(b) lien does not apply.

The third district reached this same conclusion in Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill. App. 3d 100, 426 N.E.2d 614. The defendant’s compensation carrier sought to impress a workers’ compensation lien on proceeds paid to plaintiff for settlement of a Structural Work Act cause of action. In affirming the trial court’s denial of defendant’s petition to impress a lien, the court reasoned:

“As is clear from the *** language [of section 5(b)], the legislature has explicitly limited the employer’s lien to third-party actions in which the employee or his personal representative is the plaintiff. Under the express statement of the lien provision in question, it plays no part in actions brought by the employee’s widow as a person in her own right and based on a cause of action accruing to her.” 100 Ill. App. 3d at 102-03.

Plaintiff’s claim under the Workers’ Compensation Act is derivative, based upon her deceased husband’s right to be compensated by his employer for work-related injuries or death. Plaintiff’s cause of action under the Structural Work Act accrues to her, individually, and asserts her right to be compensated for the loss of her source of support. We therefore conclude that a lien under section 5(b) of the Workers’ Compensation Act does not apply to the facts of this case.

II

Intervenor asked the trial court to apportion the settlement proceeds paid to plaintiff by defendants between a Structural Work Act claim and a negligence claim. Since payment to plaintiff under a negligence claim would be derivative, the lien would attach. Intervenor asserts that the trial court abused its discretion by refusing to apportion. We disagree.

The Structural Work Act complaint was the only cause of action pending between the plaintiff and the defendants at the time of the settlement. Plaintiff has the right to choose the theory upon which she will proceed. Intervenor concedes that the settlement between the plaintiff and defendants, under the theory at issue, was reasonable. It is undisputed that the settlement was an arm’s-length transaction without any hint or suggestion of impropriety. Therefore, the only purpose for revising the settlement agreement would be to provide a fund for the intervenor to attach. That would be an abuse of discretion. We therefore conclude that the trial court properly refused to apportion.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


author: PRESIDING JUSTICE McMORROW

text:
      In re MARRIAGE OF GRACE McKEANEY MILLIKEN, Petitioner-Appellee, and JAMES MARK WILCOX MILLIKEN, Respondent-Appellant.
    First District (4th Division)
    No. 1—88—3252
    Opinion filed June 7, 1990.

      Ralph G. Scheu, of Chicago, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE McMORROW

delivered the opinion of the court:

A judgment for dissolution of the parties’ marriage was entered on July 3, 1985. On September 30, 1988, Grace McKeaney Milliken (petitioner) filed a petition seeking reimbursement from her former husband, James Mark Wilcox Milliken (respondent), for her repayment of a loan made by her brother to respondent during the marriage. Respondent appeals from the order of the trial court granting judgment for petitioner in the amount of $3,810, which represents $3,000 principal and $810 interest. Respondent also requested sanctions against petitioner pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611), for filing a petition which was not reasonably well grounded in law or fact.

This action concerns the following clause in the parties’ property settlement agreement:

“The HUSBAND shall be solely responsible for, and shall hold the WIFE harmless of any liability *** for the debt of the HUSBAND to F. Owen McKeaney, in the amount of $3,000.00”

Petitioner alleged that respondent never paid anything toward this obligation to F. Owen McKeaney, petitioner’s brother, and that on August 1, 1988, after repeated requests by her brother, she paid him the full amount of the loan plus 9% interest computed from the date of the judgment of dissolution. The petition then stated that “per the terms of the Judgment for Dissolution herein, Petitioner demands indemnification from Respondent in the amount of $3810.00.” Petitioner also sought attorney fees, costs and reimbursement for expenses if it became necessary for her to travel from California to testify at a hearing on this matter.

Respondent filed an answer to the petition in which he admitted that although he had proposed a repayment schedule to petitioner’s brother, he did not repay the debt. He asserted, however, that the debt was a matter solely between him and petitioner’s brother, and that the above-quoted clause in the property agreement did not impose a duty upon him to reimburse or indemnify her for any voluntary and gratuitous payment made by her to a third party of a debt for which she had no legal obligation in the first instance.

Respondent’s answer also included a request for sanctions against petitioner and/or her attorney on the grounds that the petition was not well grounded in fact or in law and that counsel failed to make a reasonable investigation into the facts or law. In support of respondent’s allegations that the petition was improper, filed in bad faith and brought to harass and needlessly increase the cost of litigation, respondent attached a copy of his attorney’s letter, sent prior to the filing of this petition, to petitioner’s attorney. In that letter, respondent’s attorney contended that the petitioner would be improperly seeking intervention of the domestic relations division of the circuit court in a matter which “lies outside the parameters of the dissolution proceedings”; that neither petitioner nor petitioner’s brother, a non-party to the proceedings, had standing to request the domestic relations division to assume jurisdiction of a subject matter over which no such jurisdiction existed; and that if she filed her petition, he would strongly oppose it on the basis of lack of jurisdiction and would ask for relief under section 2 — 611.

In her reply to respondent’s answer and petition for sanctions, petitioner argued that respondent had never denied the existence or validity of his debt to her brother but, rather, admitted, by virtue of his proposal, in late 1985, of a monthly repayment schedule to begin January 1987, that he owed the money and had no defenses for nonpayment of it. She also asserted that she had been concerned about “the possibility of *** being contingently liable on said debt (family support doctrine or some other similar theory) and that [she] wanted to protect [herself] from any liability in connection therewith.” She argued that were it not for this concern regarding her potential liability and an attendant desire by her to avoid such liability and/or litigation regarding the debt, there would have been no reason to have included the settlement agreement provision at issue, and that the reference to the debt in the agreement “must be taken as an acknowledgment by [respondent] that there was potential liability on the part of [petitioner] to her brother.” She maintained that the provision in the agreement was one of indemnification and that respondent’s contention that the proper course of action was for her brother to bring suit in the law division would render the provision for indemnification a nullity and would, itself, increase the cost of the litigation by compelling petitioner or her brother to file a new action.

On October 6, 1988, the court entered an order scheduling a hearing “as to jurisdiction only.” At that hearing, counsel for petitioner argued that in the judgment of dissolution, the court specifically reserved jurisdiction to enforce its terms. Respondent’s attorney responded that the retention of jurisdiction over the parties and to enforce the terms of a judgment, neither of which he disputed, did not extend to the subject matter of petitioner’s petition, i.e., a debt which, by the express terms of the provision at issue, was an obligation solely of respondent to a third party. He restated that petitioner’s alleged payment of the debt was gratuitous and that petitioner could not be held harmless from her own action of paying something which she had no legal obligation to pay. Counsel reiterated that the court lacked subject matter jurisdiction in this case.

The trial judge stated that it was undisputed that the debt was incurred by respondent while the parties were married and that by the terms of the settlement agreement respondent agreed that he “would hold petitioner harmless if she paid it.” On the basis of its interpretation of the clause at issue, the trial court found that petitioner’s demand for reimbursement was one pursuant to the terms of the judgment and, thus, that it had jurisdiction over the matter. The trial court then proceeded, without an evidentiary hearing, to enter judgment for petitioner for the amount of the loan, plus interest and costs.

Counsel for respondent immediately requested and was granted permission to make an offer of proof. Counsel pointed to the language of the settlement agreement specifically referring to the debt as “the debt of the husband” and argued that there was no conflicting evidence indicating that the debt was for a family expense or was otherwise a family debt which would cause plaintiff to be liable or contingently liable, as she asserted. Rather, counsel proferred, competent evidence existed to prove that the loan was not a loan to respondent but, instead, a loan through respondent to the theatre company of which he was the director. Counsel also pointed out that petitioner presented no evidence that she paid the amount she alleged she had paid to satisfy the debt.

Petitioner’s attorney acknowledged that no evidence had been presented on the question of payment of the debt, noting that he too understood that the hearing was to be limited to the question of jurisdiction. Counsel indicated his willingness to have the matter continued for the purpose of producing petitioner to testify as to payment of the debt but asserted that in those circumstances, he would renew his request for attorney fees and travel expenses.

The trial court declined to withdraw its ruling and reiterated its entry of judgment for petitioner in the amount of $3,800. Respondent’s timely appeal followed.

Opinion

Respondent contends that the trial court lacked jurisdiction over the subject matter of petitioner’s petition. Alternatively, he argues that the court’s entry of judgment for petitioner without an evidentiary hearing was reversible error.

Equity courts have no inherent power in dissolution cases. The jurisdiction of a court in a dissolution proceeding is limited to that conferred by statute. (In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 407 N.E.2d 746; Brickey v. Brickey (1976), 44 Ill. App. 3d 563, 358 N.E.2d 406.) Additionally, the final decree in a dissolution proceeding becomes a final and conclusive adjudication after the passage of 30 days from its rendition (Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5; Brickey, 44 Ill. App. 3d 563, 358 N.E.2d 406; In re Marriage of Kekstadt, 85 Ill. App. 3d 952, 407 N.E.2d 746). It is true that a court in a dissolution proceeding retains jurisdiction for the purpose of enforcing its orders relating to the provisions of the dissolution decree (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 272 N.E.2d 225; Waggoner, 78 Ill. 2d 50, 398 N.E.2d 5; In re Marriage of Miller (1982), 108 Ill. App. 3d 63, 438 N.E.2d 5). However, as the court in Miller noted, there is a distinct difference between enforcement and modification. The court has jurisdiction to modify a decree only if it finds a substantial change of conditions which justifies reopening the dissolution judgment. (Ill. Rev. Stat. 1985, ch. 40, par. 510(a); In re Marriage of Kekstadt, 85 Ill. App. 3d 952, 407 N.E.2d 706.) Moreover, when a court lacks subject matter jurisdiction, it cannot be conferred by stipulation, consent or waiver (In re Marriage of Kekstadt, 85 Ill. App. 3d 952, 407 N.E.2d 706; Hill v. Daley (1975), 28 Ill. App. 3d 202, 328 N.E.2d 142); and where subject matter jurisdiction is absent, the court should decline to proceed further in the cause. Hill v. Daley, 28 Ill. App. 3d 202, 328 N.E.2d 142; Toman v. Park Castles Apartment Building Corp. (1941), 375 Ill. 293, 31 N.E.2d 299.

In Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5, the property settlement agreement specified that the plaintiff was awarded the marital home subject to the indebtedness on it. Three months later, the plaintiff filed a petition for a finding of contempt by defendant, alleging that when she attempted to sell the house, she learned that there was a judgment lien and a second mortgage on the property, and sought to enforce, clarify or amend the decree to provide that she was to take title to the residence subject only to the first mortgage. The Illinois Supreme Court found that the substance of plaintiff’s petition was to compel defendant to remove the judgment lien and the second mortgage lien from the chain of title. The court then held:

“The decree did not provide that the defendant was to perform these acts. Thus, the plaintiff does not seek to enforce the terms of the decree, but instead to engraft new obligations onto the decree. The effect would alter the substance of the decree. *** Therefore, the trial court was without jurisdiction to entertain the plaintiff’s motion ***.” 78 Ill. 2d at 53-54.

See also In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 438 N.E.2d 957 (trial court lacked jurisdiction to enter an order compelling respondent to pay taxes and mortgage payments on the marital residence for a period not included in the property settlement agreement because the order constituted a modification of the agreement); Brickey v. Brickey (1976), 44 Ill. App. 3d 563, 358 N.E.2d 406 (trial court lacked subject matter jurisdiction to enter an order requiring respondent to reimburse petitioner for that portion of the previous year’s income tax overpayment which had been withheld from her wages because the order did not constitute enforcement of the decree but was an adjudication of property rights on which the decree, entered three months earlier, was silent).

In the instant case, the trial court’s determination that it was vested with jurisdiction over this matter and its entry of judgment for petitioner were based on its findings that the debt was incurred during the marriage and that irrespective “whether [it was] a legal debt or a moral debt [of petitioner]” respondent had agreed that he “would hold her harmless if she paid it.”

It is undisputed that the loan from petitioner’s brother was made during the marriage. However, petitioner did not show, or even expressly allege, that the debt was a marital debt for which she was legally or jointly liable. In the provisions of the settlement agreement assigning responsibility for debts, certain ones, including the one at issue, are specifically referred to as “the debt of the [HUSBAND or WIFE] to [a named individual].” Each party was also made solely responsible for other obligations, such as income taxes and doctor bills, which were simply referred to as “the debts due to [a named individual].” In our view, the inclusion of the language specifically designating certain debts as being the debts of each of the parties and the exclusion of such language with reference to various other debts indicates that the parties agreed that certain debts, including the one at issue, were individual rather than marital debts.

Moreover, the settlement agreement does not state, as the trial court remarked, that respondent “would hold her harmless if she paid [the debt].” (Emphasis added.) Nor does the provision at issue provide, as the petitioner asserted, that he would hold her harmless from any “claims upon the *** debt.” Rather, as set forth earlier, it specifies that “[respondent] shall be solely responsible for and shall hold [petitioner] harmless from any *** liability for the debt” (emphasis added), just as in the very next paragraph petitioner agreed to be solely responsible for certain of her debts and to hold respondent harmless from any liability for them.

It appears that the essence of the petition and of the trial court’s order in this case was that upon petitioner’s payment of the debt, she became subrogated to the rights of her brother as to payment. The doctrine of subrogation allows a person who, pursuant to a legal liability, is compelled to pay an obligation of another to obtain reimbursement from the party who is primarily liable. Thus, “as a general rule, when one not acting as a mere volunteer or intruder pays a debt for another who is primarily liable, the doctrine of subrogation applies.” However, Illinois courts have stressed the necessity for a legal liability to exist in order to invoke the subrogation doctrine. (Koshel v. Public Building Comm’n (1990), 199 Ill. App. 3d 545, _; Inland Real Estate Corp. v. Tower Construction Co. (1988), 174 Ill. App. 3d 421, 528 N.E.2d 421.) The voluntary assumption of the payment of a debt, irrespective of the motives of the payor, does not confer upon the payor the status of subrogee. Inland Real Estate Corp., 174 Ill. App. 3d 421, 528 N.E.2d 421.

Petitioner did not allege that the language of the settlement agreement made the debt her legal obligation nor did she present evidence that she had been found legally liable for it. Indeed, her reply to respondent’s answer merely states that she paid the debt after “repeated requests” by her brother for the amount owed because “there was some question about the possibility of [her] being contingently liable *** and that she wanted to protect herself from any liability” and to “avoid any potential liability or litigation in connection therewith.” The agreement does not, however, require respondent to reimburse petitioner for paying a debt which, by agreement of the parties, was expressly assigned solely to him simply because petitioner felt a moral obligation to do so and/or because she was concerned about the possibility of contingent liability and desired to avoid potential liability.

Consequently, in petitioning that respondent be compelled to reimburse her for payment of a debt for which legal liability to her had not been established, petitioner did not seek enforcement of the dissolution decree but, rather, alteration of it so as to engraft obligations not mandated in the original judgment of dissolution entered three years earlier. The trial court was therefore without subject matter jurisdiction to rule on petitioner’s petition. (Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5.) Thus, the order of the trial court ordering respondent to pay petitioner principal and interest totalling $3,810 is reversed for lack of jurisdiction.

Inasmuch as the trial court did not have jurisdiction to entertain the petition, we need not reach respondent’s contention that the trial court erred in entering judgment without an evidentiary hearing. Further, because the trial court entered judgment for petitioner, it did not consider respondent’s counterpetition for sanctions pursuant to section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). In view of our reversal of the trial court’s order, we remand the cause for further proceedings on the issue of sanctions.

Reversed and remanded.

LINN and JOHNSON, JJ., concur.

      The appellee has failed to file a brief in this appeal. However, because the issues before us are ones which can be decided from the record without the aid of an appellee brief, we are not prevented from deciding the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.