author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOMMIE DALE et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—86—0515, 1—86—0716 cons.
    Opinion filed September 29, 1989.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant Tommie Dale.
    Randolph N. Stone, Public Defender, of Chicago (Linda J. Seeley, Assistant Public Defender, of counsel), for appellant Clarence Dukes.
    Cecil A. Partee, State’s Attorney, of Chicago (Paula Carstensen, Special Assistant State’s Attorney, and Inge Fryklund, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Tommie Dale and Clarence Dukes (defendants) were charged with murder, rape, home invasion, residential burglary and robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1, 11 — 1, 19 — 3, 18 — 1). Prior to defendants’ trials, the trial court granted defendants’ motions for severance. Following the simultaneous bench trial of Dale and jury trial of Dukes, in which evidence applicable only to Dale’s case was heard outside the presence of the jury, defendants were found guilty of all charges. For their murder convictions, the trial court imposed extended-term sentences of 60 years for Dale and 80 years for Dukes. Defendants also received concurrent sentences of 30 years for rape and home invasion, 15 years for burglary and seven years for robbery.

Dale appeals his sentences on the ground that they are excessive. We affirm.

Dukes appeals his convictions and sentences, contending the following: (1) the trial court committed reversible error in denying his motions to quash his arrest and suppress his statements; (2) he was denied a fair trial by the trial court’s refusal to pose certain questions to the venire; (3) he was denied equal protection of the laws due to the State’s exercise of peremptory challenges; (4) his sixth amendment right to confrontation and the rule against hearsay were violated by the introduction of certain evidence concerning his codefendant; (5) prejudicial error occurred in the introduction of improper rebuttal testimony of a collateral matter; (6) he was not proven guilty beyond a reasonable doubt; (7) he was denied a fair trial by improper prosecutorial comments during closing argument; (8) his constitutional rights were violated when he was found “death eligible” because the Illinois death penalty statute is unconstitutional; (9) the trial court relied on improper sentencing guidelines; and (10) his sentence is excessive and unfairly disparate to his codefendant.

Because the United States Supreme Court decision in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, decided during the pendency of this appeal, is retroactively applicable to the case at bar (Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708), it is necessary that we remand Dukes' case to the trial court for a two-part hearing on his contention that he was denied equal protection of the laws by the State’s purposeful discrimination in the selection of jurors against a cognizable racial group, of which Dukes is a member. The record here demonstrates that 9 of 12 of the State’s peremptory challenges were exercised on black prospective jurors, where the final venire consisted of four blacks. In light of the Illinois Supreme Court’s comments in People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, and the United States Supreme Court’s language in Batson, we believe the determinations necessary to both facets of the Batson hearing — in which the defendant must first make a prima facie showing of purposeful discrimination, and, if the defendant meets this burden, the State must then come forward with a racially neutral explanation for the exclusion of the jurors — are appropriately to be made by the trial court, consistent with the dictates of the Batson opinion.

If the trial court finds that the State has purposefully discriminated in the selection of jurors, Dukes’ conviction and sentence must be vacated and he is entitled to a new trial consistent with this opinion. If the court finds that Dukes has not made out a prima facie case of racial discrimination, or that the State has presented sufficient neutral explanations to rebut Dukes’ prima facie case of racial discrimination, Dukes’ convictions and sentence will be affirmed.

The lengthy evidence introduced in the case at bar will be narrated as follows. The evidence offered in connection with the trial court’s denial of Dukes’ pretrial motions to quash his arrest and suppress his statements will be set forth later in the opinion as the issues pertinent to those facts are addressed. The evidence adduced at the trials of both defendants is detailed below.

Eddie Thompson, a 38-year-old previously diagnosed schizophrenic, testified for the State as follows: On November 13, 1983, at approximately 11 p.m., she and her 60-year-old husband, Joe Thompson, who suffered from curvature of the spine, were at the “Your Place Lounge,” a bar located around the corner from their 2333 East 70th Place apartment. While at the bar, Joe introduced Eddie to a man named “Tommie.” After a few drinks, the Thompsons proceeded to their apartment, but Eddie later returned to the bar to retrieve her missing keys. An argument ensued between the Thompsons upon Eddie’s return to the apartment without the keys, and Joe thereafter locked Eddie out of the apartment.

Eddie returned to the bar at approximately 1 a.m. to call the police. There, she told Tommie that she was locked out of her apartment, requested his assistance, and offered to let him sleep on the couch with her. Tommie and Eddie then went to the Thompson apartment.

Following Joe’s refusal to open the apartment door, Tommie kicked the door in and grabbed Joe. Eddie told Tommie to leave Joe alone and gave Joe bus fare to leave the apartment upon Tommie’s demand. Tommie proceeded to take the rest of Eddie’s money, approximately $38, and a second purse from her bedroom. Tommie left. The police came to the Thompson apartment and left.

Tommie later returned to the Thompson apartment with a second man whom Eddie had never seen before. Eddie invited them into the apartment. Joe and the second man began fighting. When Joe fell to the floor, the second man kicked him in the head and mouth. Both men threatened to kill Eddie if she told anyone. They then ransacked the apartment. The second man struck Eddie and broke her nose. Both men told Eddie and Joe to remove their clothing. Tommie told Eddie to lie on the couch and then inserted his penis into her vagina. The second man thereafter performed the same act on Eddie. Both men gathered electrical cords from .the apartment. The second man tied up Joe and Eddie with the cords, during which time Tommie packed clothing and food in two black and burgundy suitcases. Joe was tied to a chair with the cord wrapped around his neck “Chinese style,” with the cord extending to his wrists and ankles, which were tied behind his back. Both men then left.

Subsequent to the men leaving the apartment, Eddie broke loose from the cords and untied Joe. She thought he was dead at this time. Eddie waited an hour and a half until daybreak and then went to her aunt’s house to call the police.

Lula Thompson, Eddie’s aunt, testified that around dawn on November 13, 1983, Eddie came to her house and stated that two men had beat them and raped her in their apartment. She noticed bruises and swelling on Eddie’s face at the time.

Dr. Jung Wang testified that he treated Eddie at Jackson Park Hospital on November 14, 1983, for a broken nose and a bruised and swollen face. A genital exam revealed no injuries, tearing or discharge. Eddie told Wang at that time that two men broke in, tied her up, raped her, and beat up her husband.

Dr. Edmond Donghue, deputy chief medical examiner, testified that Joe Thompson died from ligature strangulation. Sixteen external injuries to his head and neck area were found, consistent with a beating.

Police crime scene investigator Thomas Reynolds collected blood, cloth, cords and fingerprints from the Thompson apartment at 10:15 a.m. on November 14, 1983. John Olegniczak, a latent fingerprint examiner, testified that a fingerprint was identified as matching defendant Dale’s left index finger. Officer Edward Triggs testified to the ransacked condition of the apartment, which he observed on November 13, 1983. He also testified that he spoke to Eddie briefly at the crime scene and that her face was bruised and swollen. Photographs depicting the apartment and Eddie on the day in question were entered into evidence.

Douglas Middleton, the bartender at the “Your Place Lounge” on the evening of November 13, 1983, testified that on that evening, Joe, Eddie and Dale were at the bar, all of whom he knew from contacts on previous occasions. Dukes arrived after Joe and Eddie had left the bar, at which time Dale first introduced Dukes to Middleton. Eddie reappeared at the bar, and Dale later left with her to provide assistance in entering her apartment. Dale returned 45 minutes later, and Dale and Dukes remained at the bar until they left together at closing at approximately 3 a.m. Although Middleton knew Dale by his first and last name, he did not give the last name to the police until November 7, 1984. Middleton identified Dale in a lineup on November 8, but did not identify Dukes because he was afraid of him.

Detective Grefshiem testified to the investigation leading to the arrest of defendants. He stated that, although Middleton had previously denied knowledge of the incident, he had a conversation with him on November 7, 1984, a year after the incident. Following this conversation, Detectives Grefshiem and Markham proceeded to Dale’s home at 1850 South Drake and arrested him as he was leaving the building.

After a conversation with Dale, the detectives returned to Dale’s home and recovered a black and burgundy suitcase from Dale’s grandmother. The detectives then proceeded to Dukes’ apartment at 1847 West Lake Street, where they arrested him.

On the evening of November 7, 1984, Eddie tentatively identified Dale in a lineup, but did not identify Dukes. Middleton viewed a second lineup conducted on November 8 and identified Dale, but did not identify Dukes. On cross-examination, Grefshiem reasserted that he observed Dukes in the lineups on November 7 and November 8 and admitted that he had testified at an earlier hearing that he did not see Dukes after 7 p.m. on November 7.

Outside the presence of the jury, a stipulation was entered that Dale gave a written statement, transcribed by court reporter Janet Lupa, to Assistant State’s Attorney John Kinnane on November 8, 1984. In this statement, Dale stated that he was at the “Your Place Lounge” on November 13, 1983, with his brother, Dukes. A woman told him she had been locked out of her apartment, and he and Dukes accompanied her to her apartment to render assistance. At the apartment, Dukes kicked the door in, hit Joe several times, and raped Eddie while Dale packed things in a suitcase. Dukes left the suitcase at their mother’s home.

Assistant State’s Attorney Ray Brogan read to the jury a court-reported statement purportedly made by Dukes on November 9, 1984, in which Assistant State’s Attorneys Brogan and Lynch, Detective Glynn and court reporter Janet Lupa were present. The statement indicates that on November 13, 1983, Dukes received a telephone call from his brother Dale, who stated, “Clarence, come on down to the bar and have a couple drinks with me. There is a bitch down here dying to fuck.” Dukes went to the “Your Place Lounge,” where a woman offered Dukes and Dale $45 to assist her in entering her apartment. All three arrived at Eddie’s apartment at approximately 1 a.m.

Dale kicked the door open, and they entered the apartment. A man in his late fifties swung at Dale, who in turn hit him and knocked him down. Dale told the man to take off his clothes and tied him up “Chinese style,” with a rope around his head, neck and arms. The woman offered both Dale and Dukes $45 if they would have sex with her. Dale had sex with her first, then Dukes had sex with her while Dale ransacked the apartment. Before they left, Dale tied the woman to a chair with a lamp cord. They each took one black and maroon suitcase as they left. At the end of this statement, Dukes stated that he had not been mistreated by police and that he had been given coffee and cigarettes.

Brogan further testified to the jury, over defendant’s objection, that he was aware of another statement made by someone else and that he checked Dukes’ statement against it and found Dukes’ statement to be accurate.

Court reporter Lupa testified that at the time she took Dukes’ court-reported statement, she did not observe him being mistreated and that she took a photograph of Dukes, introduced as an exhibit, which accurately depicted his appearance at the time.

Dukes testified to the events surrounding his arrest and post-arrest detention. At the time of his arrest on November 7, 1984, at 6 p.m., the police, with guns drawn, came to his door and stated that his brother Dale had been killed and asked him to accompany them to the police station. He had not eaten since lunch that day, and his only opportunity to sleep during his upcoming detention was in a “bullpen” on a steel bench, where he did not sleep too much. After standing in a second lineup, Grefshiem took him to a small room and beat him on the chest. Later, after talking to the assistant State’s Attorney, he agreed to sign a statement so that he would not be hit anymore. The statement he signed was not true.

On cross-examination, Dukes denied stating at his motion to suppress hearing that he never spoke to an assistant State’s Attorney at the police station. He admitted signing and initialing the court-reported statement, but stated he was unaware of its content. He further admitted the truthfulness of portions of the statement, namely, that he was in the bar and that he saw his brother and the woman who testified in court there.

The following stipulations were read to the jury. When Detective Triggs arrived at the apartment on November 13, 1983, Eddie stated she wanted no service. Dukes saw a doctor at Cook County jail on November 13, 1984, and told him he had chest pains and that he was recently hit in the chest. His chest showed palpitive pain over the fourth, fifth, and sixth ribs on the left side. Karen Smith Thompson, an expert microanalyst, found no sperm in the vaginal smear taken from Eddie.

Subsequent to the introduction of the defense evidence, the following rebuttal evidence was introduced by the State. Assistant State’s Attorney Lynch testified that he and Detective Steven Glynn were present for the court-reported statement of Dukes and that he did not see Grefshiem at the station that night. Glynn testified that he and his partner, Detective Regan, continued with the investigation of the case at 4:30 a.m. on November 8, 1984, after which time Grefshiem went off duty. At approximately 8:45 p.m., Glynn showed Dukes Dale’s statement, at which time Dukes stated he would tell the truth. Dukes made an oral statement at that time to him.

Further stipulations were entered at this time. Andre Watkins, medical intake worker at Cook County jail, would testify that he examined Dukes on November 9, 1984, and that Dukes did not complain of chest pain. A body chart made at the time of Dukes’ admittance to Cook County jail showed no bruises. Court reporter Christina Adams would testify that the transcription of Dukes’ testimony at the June 21, 1985, motion to suppress hearing was a true and accurate account of Dukes’ testimony.

Addressing Dukes’ remaining contentions on appeal, we commence with the two constitutional claims asserted by Dukes to support his contention that the trial court erred in denying his pretrial motions to suppress his statements. Dukes argues under his fifth amendment claim that his statement was not voluntarily given due to emotional and physical cruelty inflicted upon him by police officers. Under his fourth amendment claim, Dukes maintains that his arrest was invalid because police officers did not have probable cause or a warrant for his arrest, and he argues that his statements given subsequent to the arrest must be suppressed due to the taint of this illegality.

With regard to Dukes’ fifth amendment claim, the test courts have utilized to determine whether confessions are voluntarily given is whether, under the totality of the circumstances, the confession has been made freely and voluntarily and without compulsion (People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371), or whether the defendant’s will was overborne at the time so as not to be the product of a rational intellect and free will (Townsend v. Sain (1963), 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745; People v. O’Leary (1970), 45 Ill. 2d 122, 257 N.E.2d 112). The trial court need be convinced only by a preponderance of the evidence that the statement in question was voluntary (Lego v. Twomey (1972), 404 U.S. 477, 489, 30 L. Ed. 2d 618, 627-28, 92 S. Ct. 619, 627; People v. Reed (1984), 123 Ill. App. 3d 52, 59, 462 N.E.2d 512, 518), and our review of the voluntariness question is limited to whether the trial court’s finding is against the manifest weight of the evidence (e.g., People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606; People v. Kincaid (1981), 87 Ill. 2d 107, 117-18, 429 N.E.2d 508, 512; People v. Daugherty (1987), 161 Ill. App. 3d 394, 397, 514 N.E.2d 228, 231; People v. Reed (1984), 123 Ill. App. 3d 52, 59, 462 N.E.2d 512, 518). Dukes claims two factual circumstances support his contention that his statement was not voluntarily given: first, his lack of food and sleep during a 33-hour detention period, and, second, a physical beating inflicted upon him by a police officer. In reviewing the evidence presented concerning these allegations on review, this court may consider both the evidence introduced at the suppression hearing, as well as the evidence adduced at trial. (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Summers (1981), 100 Ill. App. 3d 170, 426 N.E.2d 937.) Consideration of trial testimony is permitted because the trial court’s pretrial suppression ruling is not final and may be changed at any time prior to final judgment. (Caballero, 102 Ill. 2d at 35-36, 464 N.E.2d at 229.) The trial evidence relating to Dukes’ confession has been previously summarized; that presented at the suppression hearing follows.

Detective Markham testified that after Dukes’ arrest at 6 p.m. on Wednesday, November 7, 1984, he and Grefshiem escorted him to a conference room at “Area One,” where they advised him of his Miranda rights. After questioning Dukes briefly at approximately 7 p.m., they left him alone in the interview room until 9 p.m., at which time he was placed in a lineup and afterwards again left alone in the interview room. During this time in the interview room, Dukes was not questioned or handcuffed. At approximately 1 a.m., Markham took Dukes to the lockup, where he remained until 3:20 p.m. on November 8. At that time, Dukes was placed in a second lineup and afterwards given Miranda warnings and questioned briefly by Markham. Markham offered Dukes some food at this time, but Dukes refused his offer.

Detective Glynn testified that after Markham went off duty, he and his partner Regan took Dukes, at approximately 9 p.m., from the lockup to the “Area One” interview room. There, he was again advised of his Miranda rights. After Glynn read parts of Dale’s statement to Dukes, Dukes indicated he would tell the truth. Dukes then gave an oral statement. Dukes was never hit or threatened, and he never asked to see an attorney.

Assistant State’s Attorneys Brogan and Lynch spoke to Dukes around 11 p.m. for approximately 30 to 45 minutes. At approximately 2:15 a.m., Dukes gave a court-reported statement after again being advised of his Miranda rights.

Dukes testified that he had not had dinner prior to his arrest at 6 p.m. on November 7, and he had nothing to eat until he had a bologna sandwich on Friday morning, November 9, after his court appearance at 26th and California. While at the “Area One” police station at 51st and Wentworth, Dukes stated he lost track of time as he was taken back and forth from “room 202” to three lineups. Then he was taken to the lockup, where he slept.

Later, he was escorted back to “room 202” and handcuffed to a bar against the wall. On questioning by Grefshiem, Dukes stated he did not want to talk. Grefshiem pointed his finger between Dukes’ nose and eye and said, “you’re going to make a statement,” and proceeded to hit him several times in the chest. Grefshiem left and returned with Dale’s statement. Grefshiem hit Dukes again in the chest, but Dukes refused to give a statement. Grefshiem left and returned with some papers. Dukes signed the papers because he thought they were release papers.

Dukes requested to see a doctor when he was admitted to Cook County jail on Friday, November 9, but was told the doctor would not be in until Monday. When he saw the doctor on Monday, the doctor instructed him to take Tylenol for his chest pain.

On cross-examination, defendant first stated that he did not remember seeing a paramedic at the jail on November 9, but then testified that he spoke with a man who questioned him about his physical condition. He stated the man did not examine his chest. He further stated on cross-examination that he never spoke to Detective Glynn or Assistant State’s Attorneys Brogan or Lynch and that no court reporter came to the police station to take his statement.

On rebuttal, Grefshiem testified that he never struck Dukes and that he was not present at “Area One” when Dukes gave his statements to Glynn, Brogan and Lynch. The only time Grefshiem spoke to Dukes was at 7 p.m. on November 7,1984.

After reviewing the trial and suppression hearing evidence concerning the totality of the circumstances here, we hold that the trial court’s finding that the State proved the voluntariness of Dukes’ confession by a preponderance of the evidence was not against the manifest weight of the evidence. The State’s evidence indicates that during the period of Dukes’ detention, he was repeatedly advised of his Miranda rights and did not request an attorney. Dukes was not questioned for lengthy periods of time. There were extended intervals between questioning when Dukes was left unattended without handcuffs, including a night and half day in the lockup, where Dukes admitted he slept. Dukes did not request food from any of the officers testifying at trial, and at some point he was offered food. Further evidence indicated that Dukes did not complain to an assistant State’s Attorney of mistreatment or appear to those present at his court-reported statement to be mistreated, that Grefshiem was not present at the police station when Dukes gave his statement, and that no signs of chest injury were found when he was first admitted to the county jail. This evidence sufficiently supports the trial court’s finding.

We reject Dukes’ arguments urging us to find to the contrary. As to his physical beating claim, Dukes concedes that the trial court resolved the issue of his and Grefshiem’s credibility at the motion to suppress hearing. He argues, however, that the testimony from Dr. Lindenberger at trial as to his November 13 findings of chest injuries, together with his own testimony, demonstrate that he was injured while in custody, thereby requiring the State to prove by clear and convincing evidence that the injuries were not a result of police brutality. He further maintains that the State did not meet this burden because, under People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, a mere denial by the police is not sufficient to meet this standard.

We find this contention without merit. First, the standard Dukes cites applies only where it is clearly established that defendant received injuries while in police custody. (See Wilson, 116 Ill. 2d 29, 40, 506 N.E.2d 571, 586, citing People v. La Frana (1954), 4 Ill. 2d 261, 267, 122 N.E.2d 583, 586.) Unlike Wilson, where the evidence showed the defendant had only slight injuries at arrest but extensive injuries several hours later after giving a statement, Dr. Lindenberger’s findings of palpitive and muscular chest pain four days after Dukes’ admission to the county jail and after his confession does not clearly establish that Dukes was injured while in police custody before giving his statement. Second, even assuming the State was required to meet a higher standard of proof, we believe the above-mentioned evidence satisfied the State’s burden.

As to Dukes’ claim relating to his lack of food and sleep while in detention, Dukes cites cases where courts have considered the deprivation of food and sleep from a defendant for a lengthy period of time as factors in finding the defendant’s statement involuntary. (Payne v. Arkansas (1958), 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Reed, 123 Ill. App. 3d 52, 472 N.E.2d 512.) These eases are distinguishable from the instant case in numerous respects, including the fact that the courts in those cases found the police deliberately attempted to induce a confession by withholding food and sleep.

In the case at bar, the trial court found the officers’ testimony that defendant was not handcuffed, that he was not questioned for lengthy periods of time, and that he was at one point offered some food to be credible. The court also found no credible evidence that Dukes was subjected to physical or mental coercion. This finding is supported by Dukes’ contradictory testimony at trial and at the suppression hearing concerning the circumstances of his statement.

Nonetheless, Dukes asserts that since his testimony that he did not eat anything during the 33 hours between his arrest and the time he signed the court-reported statement was not contradicted by the State’s witnesses at the suppression hearing or at trial, his testimony cannot be disregarded. The cases upon which he relies in support, People v. Rhoads (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512, and Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336, involve police officers who were in a position to readily deny the defendant’s claim. In Rhoads, the court emphasized that the officer present at trial was in a unique position to rebut the defendant’s claim of promises made by the officer. It found that the officer’s failure to rebut gave credence to defendant’s charge. Likewise, in Haynes, the court noted “this testimonial void is the more meaningful in light of the availability and willing cooperation of the policemen who, if honestly able to do so, could have readily denied the defendant’s claim.” (Haynes, 373 U.S. at 510, 10 L. Ed. 2d at 519, 83 S. Ct. at 1341.) Here, the officers at the suppression hearing and at trial were not in Dukes’ presence during the entire period of his detention and were not in the position to testify as to whether he was given food at any time. Moreover, since the trial occurred some time after Dukes’ arrest, it cannot be said that the police could have readily contradicted Dukes’ testimony.

Turning to Dukes’ fourth amendment claim, he maintains that his statements were the fruits of an illegal arrest and therefore should be suppressed. While Dukes did not raise this issue in his post-trial motion, the issue was raised in the pretrial motion to suppress and orally at the post-trial motion. Under these circumstances and because the claim involves substantial rights, we will not find a waiver here. See 107 Ill. 2d R. 615; People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.

The following evidence was adduced at the pretrial suppression hearing concerning Dukes’ arrest. Detective Markham testified that he had learned from Eddie Thompson in December 1983 that the crimes in issue had been perpetrated by two black males. She had met one of the perpetrators, who was slightly built, about 5 feet 5 inches and 130 pounds, at the “Your Place Lounge” and knew him by the name of “Tommie.” Eddie also told the police that two black and burgundy suitcases were taken by the offenders.

Markham testified that after pursuing the investigation for almost a year, he and Grefshiem learned from Douglas Middleton, the bartender at the “Your Place Lounge,” that Dale was at the lounge on the night of the murder, that the bartender had seen him leave the bar with Eddie, later return to the bar, and finally leave the bar at approximately 3 a.m. with a person whom Dale had introduced to the bartender as his brother.

Markham further testified that they then arrested Dale at 1:45 p.m. on November 7, 1984. Dale gave an oral statement implicating his brother Dukes to Grefshiem and Markham, in which he stated that Dukes had accompanied him from the “Your Place Lounge” to the Thompson apartment, where Dukes committed the offenses, and that a suitcase taken during the home invasion was at his mother’s home.

Upon concluding their conversation with Dale at 2:30 p.m., Markham and Grefshiem looked unsuccessfully for Douglas Middleton for a possible lineup identification and procured a Bureau of Identification sheet and photo of Dukes. They next went to the home of the defendants’ mother, where a black and maroon suitcase was recovered from defendants’ grandmother. The officers then proceeded to Dukes’ apartment at about 6 p.m.

After Markham announced that he was a police officer and looking for Dukes, a woman invited him into the apartment and summoned Dukes from another room. The officers then placed Dukes under arrest at the front door.

Testifying in his own behalf, Dukes stated that at the time of his arrest, he was in his apartment with his girlfriend when he heard a knock at his apartment door. The officers announced that they were police. He opened the door to observe plaincothes police officers with guns. They told him his brother had been shot and asked him to go with them. Dukes accompanied them to the police station.

Dukes’ initial argument in support of his fourth amendment contention is that the police lacked probable cause in their warrant-less arrest. To meet their burden of establishing probable cause, the State must prove that the police had reasonable grounds to believe that an offense had been committed and that the arrestee had committed it. (People v. Martin (1977), 46 Ill. App. 3d 943, 361 N.E.2d 595.) The probable cause determination is a commonsense, practical question to be determined by the totality of the circumstances, and the information relied upon to establish probable cause to arrest must be supported by some indicia of reliability. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) The trial court’s finding of probable cause will not be disturbed on review unless manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.

Dukes argues that the officers’ information as to his identity is insufficient for probable cause because it consists solely of the uncorroborated statements of a suspect attempting to shift blame. Information from a suspect which implicates another may provide sufficient grounds for probable cause where the information is buttressed by corroborating evidence. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998; People v. Johnson (1989), 187 Ill. App. 3d 756.) In James (118 Ill. 2d 214, 514 N.E.2d 998), the supreme court found sufficient reliability in a suspect’s implication of a codefendant to establish probable cause where the suspect was not absolved of criminal liability by implicating the codefendant and the suspect’s statements were corroborated by the officers’ personal knowledge of the details of the crime. The supreme court acknowledged that no independent verification existed that the codefendant was the person im volved in the criminal conduct, but concluded that the portion of the suspect’s statement which was verified lent credence to the remaining unverified portion. James, 118 Ill. 2d at 225, 514 N.E.2d at 1003.

Even more corroboration exists in the instant case than in James. At the time of Dukes’ arrest, in addition to Dale’s statement implicating his brother Dukes, in which he gave specific details of the incident and was not absolved from liability, the police were also aware that the offenses were committed by two black males, one named “Tommie,” that “Tommie” Dale had been seen leaving the “Your Place Lounge” with Eddie on the night of the commission of the offenses, and that a man identified as Dale’s brother was seen with Dale leaving a bar located near the victims’ apartment around the time of the commission of the offenses.

We reject Dukes’ argument that James has been undermined by the United States Supreme Court’s decision in Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, where the Court labeled an accomplice’s confession that incriminates a defendant as “presumptively unreliable.” The Court’s statement was made in reference to testimony used for determining guilt, not for the purpose of the probable cause determination. We, therefore, hold that the trial court’s determination that the officers had probable cause to arrest Dukes is not manifestly erroneous.

Dukes next argues that his fourth amendment rights were violated when he was arrested in his home without a warrant. Absent exigent circumstances, the fourth amendment prohibits the police from making a nonconsensual entry into a person’s home to effectuate an arrest without a warrant. (U.S. Const., amends. IV and XIV; Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The circuit court found exigent circumstances justified the warrantless arrest.

In determining whether exigent circumstances are present to justify a warrantless arrest, lower Federal courts have utilized the factors outlined in Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385: (1) the gravamen of the offense; (2) whether the suspect is reasonably believed to be armed; (3) whether there is a clear showing of probable cause; (4) whether there is strong reason to believe the suspect is in the premises; (5) the likelihood that the suspect will escape if not swiftly apprehended; (6) whether the police entry was peaceful; and (7) whether the entry is made at night. The Illinois Supreme Court has added other nonexhaustive factors as relevant to the determination, including whether the offense has been recently committed and the existence of a deliberate or unjustified delay. (People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677.) These factors serve merely as guidelines and are not to be rigidly applied in each case. The guiding principle in a court’s determination is reasonableness. White, 117 Ill. 2d at 216-17, 512 N.E.2d at 685.

After evaluating the circumstances present in the case at bar under the above guiding factors, we conclude that the trial court did not err in finding the existence of exigent circumstances here. Subsequent to Dale’s implication of Dukes, the police here continued their investigation in the field, aware of the grave, violent crimes involved. During their investigation, they recovered a suitcase believed to be taken from the scene of the crimes after going to the home of both defendants’ mother. A strong likelihood existed that Dukes could escape due to the fact that Dukes’ brother was in custody for the crimes and the police had visited the home of defendants’ mother in pursuit of their investigation. Dukes’ arrest was also effectuated peaceably.

While Dukes emphasizes that the passage of time from the commission of the offense to his arrest was a full year, we do not believe this dictates against finding an exigency of circumstances here. The circumstances in the instant case are not like those in People v. White (1987), 117 Ill. 2d 194, 512 N.E.2d 677, where police learned of the defendant’s identity but did not effectuate the arrest until two weeks later, during which time they could have procured a warrant. The police in the instant case learned of Dukes’ identity on the same day of his arrest and thereafter diligently pursued their investigation until his arrest.

Furthermore, we believe an additional reason exists for upholding Dukes’ warrantless arrest. The State’s burden of proving that consent was freely and voluntarily given (Bumper v. North Carolina (1968), 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1792) was satisfied through the testimony of the officers who effectuated the arrest. Although the trial court did not base its ruling on the issue of consent, a judgment may be sustained on any grounds discernible from the record. People v. Bolden (1987), 152 Ill. App. 3d 631, 637, 504 N.E.2d 835, 839-40.

Consent may be given by a third party who has control over the premises (United States v. Matlock (1974), 415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988; People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608; People v. Kraman (1981), 96 Ill. App. 3d 390, 421 N.E.2d 346), although consent will not be found by a mere showing of acquiescence to a claim of lawful authority. (Bumper, 391 U.S. at 548-49, 20 L. Ed. 2d at 802, 88 S. Ct. at 1792.) The officers’ testimony that they were invited into the apartment by Dukes’ live-in girlfriend upon merely announcing that they were police officers and looking for Dukes supports a finding of consent here.

Finally, even assuming the illegality of Dukes’ arrest, exclusion of Dukes’ post-arrest statements is not warranted here because they were not obtained by exploitation of the illegality of the arrest. The United States Supreme Court in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, has identified four factors in determining whether the taint of the illegal arrest is dissipated: (1) whether the defendant received Miranda warnings; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct.

The first Brown factor, the issuance of Miranda warnings, alone does not attenuate an illegal arrest. (Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) The second Brown factor, the temporal proximity of the arrest and confession, has been attacked as not considering the inherently adverse effects of prolonged illegal incarceration. (In re R.S. (1981), 93 Ill. App. 3d 941, 945, 418 N.E.2d 195, 199; Dunaway, 442 U.S. at 220, 60 L. Ed. 2d at 841, 99 S. Ct. at 2260 (Stevens, J., concurring).) Thus, while Dukes was in custody for over a 27-hour period, we do not believe this alone dissipates the illegality of the arrest.

Turning to the third Brown factor, the Supreme Court in Brown did not define what constitutes an intervening factor. The State urges that the intervening circumstance here is Dukes’ confrontation with Dale’s statement. Some case law and commentators have identified one kind of intervening circumstance as a confrontation of the arrestee with untainted evidence which produces a voluntary desire to confess. In re R.S., 93 Ill. App. 3d at 947, 418 N.E.2d at 199; 3 W. LaFave, Search & Seizure § 11.4(b), at 637 (1978); Commonwealth v. Barnett (1977), 471 Pa. 34, 369 A.2d 1180.

In People v. Gabbard (1979), 78 Ill. 2d 88, 398 N.E.2d 574, the Illinois Supreme Court found an intervening circumstance to purge the taint of the illegal arrest where the defendant was confronted with a sketch prepared prior to his arrest and was advised that he was identified in a lineup. In reaching its conclusion, the Gabbard court cited a Pennsylvania case with facts similar to the instant case. In Commonwealth v. Wright (1975), 460 Pa. 247, 332 A.2d 809, the court found an intervening circumstance to purge the taint of the illegal arrest where the defendant had initially denied participation in the crime after his arrest, but then confessed after an accomplice was arrested and made a statement to police implicating the defendant, which he later repeated in the defendant’s presence.

Similarly, we find that Dukes’ confrontation with his accomplice’s untainted statement, which was obtained prior to his arrest, was an intervening circumstance that purged the taint of any illegal arrest.

Dukes next contends that he was denied a fair trial by the trial court’s failure to ask certain voir dire questions requested by the defense. In People v. Zehr (1984), 103 Ill. 2d 472, 477, 469 N.E.2d 1062, 1064, the Illinois Supreme Court outlined six points that prospective jurors should be interrogated concerning: (1) the defendant’s presumption of innocence; (2) that a defendant is not required to offer any evidence on his own behalf; (3) their knowledge of the premise that a defendant must be proved guilty beyond a reasonable doubt; (4) whether they would hold a defendant’s failure to testify against him; (5) whether they would have any prejudice against returning a verdict of not guilty were they to find the State failed to sustain its burden beyond a reasonable doubt; and (6) whether they would have any prejudice against returning a verdict of guilty were they to find the State sustained its burden of proof.

Despite requests from the defense, the trial court in the instant case did not interrogate the jurors individually concerning defendant’s right not to testify and whether the jurors would hold his failure to testify against him. The court did, however, instruct the jurors as a group concerning defendant’s right not to testify or provide evidence both before and after the impanelment of the jury. The court also individually questioned the jurors as to whether they had any problem following the law.

In People v. Emerson (1987), 122 Ill. 2d 411, 426-27, 522 N.E.2d 1109, 1114, the Illinois Supreme Court explained that Zehr was not an “attempt to prescribe a precise formula for trial judges to use in ascertaining jurors’ *** attitudes.” In Emerson, the trial court did not individually interrogate the prospective jurors on the defendant’s presumption of innocence and whether they had any objection to that principle, but had instructed the prospective jurors as a group that the court was the boss of the law, queried whether anyone would refuse to follow the law as given to them, and described the presumption of innocence by giving an explanational hypothetical. Although the Zehr questions in issue here are not the same as those at issue in Emerson, we also find that the trial court here substantially complied with Zehr by instructing the prospective jurors as a group as to defendant’s right not to testify and asking the jurors individually as to whether they had a problem following the law.

The case cited by Dukes as analogous to the instant case, People v. Starks (1988), 169 Ill. App. 3d 588, 523 N.E.2d 983, is distinguishable. In Starks, the court reversed the defendant’s conviction for failure to adequately comply with the Zehr points concerning the burden of proof, the presumption of innocence, defendant’s right not to testify and whether the jurors would hold that against him. The court there gave instructions to the group as a whole as to these points. Unlike the instant case, however, its instructions were given after the jury’s impanelment. The Starks court emphasized this fact: “[W]hile instructions at the end of trial covered the legal subject matter of the three voir dire questions at issue, no preimpanelment question posed to prospective jurors individually or as a group tested them specifically as to their attitude toward defendant’s failure to testify.” Starks, 169 Ill. App. 3d at 593, 523 N.E.2d at 987.

Addressing the trial errors claimed by Dukes, we consider his contention that the trial court’s admission of certain testimony violated his sixth amendment confrontation rights. Although the trials of Dale and Dukes were severed and Dale’s statement implicating Dukes was admitted in their simultaneous trials outside the presence of the jury, Dukes argues that three statements made during the testimony of State witnesses, when viewed together, violated the rule established in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Bruton established that a codefendant’s sixth amendment right of confrontation can be violated where another defendant’s out-of-court admissions that implicate the codefendant are introduced into evidence, even where limiting instructions are given to the jury.

The three statements referred to by Dukes were made in the following contexts. Detective Grefshiem made the first statement during direct examination concerning his investigation of the offenses. Grefshiem stated that he first spoke to Middleton, then brought Dale into the station for questioning, had a conversation with Dale, and next drove to Dukes’ home and arrested him.

The second statement was also made by Grefshiem, but on redirect examination. On cross-examination, defense counsel had suggested that Dukes was held after his arrest without reason. Counsel asked, among other questions, why Dukes was held in custody even after he was not identified in the lineups. Upon the State’s side-bar request, the trial court ruled that the State could elicit that the detectives were involved in taking the court-reported deposition of Dale on November 8, 1984. Grefshiem thereafter testified over Dukes’ objection as to his continued investigation, including the fact that Dale had made a statement and that he was involved in the taking of that court-reported statement.

Assistant State’s Attorney Brogan made the third statement in issue during redirect examination. On re-cross-examination, defense counsel asked Brogan if he had checked the facts of Dukes’ statement with police reports and other evidence for accuracy. When Brogan queried defense counsel as to what evidence he referred, defense counsel stated “[t]he evidence that was given in the statement.” On redirect examination, Brogan then testified over Dukes’ objection that, when he took Dukes’ statement, he was aware of a statement made by someone else and that he checked Dukes’ statement against that statement and found it accurate.

To support his position that these statements together violated his sixth amendment confrontation rights, Dukes cites Illinois cases finding no distinction between the introduction of a codefendant’s confession which states the defendant was an accomplice and the introduction of indirect evidence that accomplishes the same. (People v. Clark (1959), 17 Ill. 2d 486, 491-92, 162 N.E.2d 413, 417; People v. Causey (1984), 127 Ill. App. 3d 1080, 1083, 470 N.E.2d 18, 20.) These cases are inapposite to the case at bar because they involve situations where the jury was indirectly made aware that the defendant was the person whom the codefendant implicated in his statement which had been introduced into evidence. Dale’s statement here was admitted outside the presence of the jury, and the testimony of the State’s witnesses does not refer to the content of Dale’s statement.

Moreover, we need not decide whether an indirect suggestion that the defendant’s statement was corroborated by a nonadmitted codefendant’s statement, known by the jury to have implicated the defendant, would violate the first defendant’s confrontation rights because we do not believe that the three statements here can be found to make such a suggestion. First, only Grefshiem’s statement that he had a conversation with Dale and then arrested Dukes even remotely suggests that Dale implicated Dukes in his statement. It has been held, however, that it is proper for a police officer to testify as to the steps taken in an investigation even when the testimony might suggest that a nontestifying witness implicated the defendant. (People v. Johnson (1987), 116 Ill. 2d 13, 506 N.E.2d 563; People v. Dixon (1982), 105 Ill. App. 3d 340, 434 N.E.2d 369.) Second, Brogan’s testimony did not indicate whose statement he checked Dukes’ statement against for accuracy. Several State witnesses had given statements to the police during their investigation. The admission of this testimony, therefore, did not violate Dukes’ sixth amendment confrontation rights.

We next consider Dukes’ contention that the trial court committed reversible error in allowing the rebuttal testimony of a medical intake worker. The State introduced rebuttal testimony, through a stipulation following the court’s evidentiary ruling over defense objection, that Watkins, a medical intake worker at Cook County jail, examined Dukes on November 9, 1984, at Cook County jail, that defendant made no complaint of chest pain to him and did not request to see a doctor, and that he would testify that the report made at the time indicated no bruises found on Dukes’ body.

Generally, rebuttal testimony is deemed inadmissible where it serves simply to contradict a collateral matter (People v. Buchanan (1981), 98 Ill. App. 3d 193, 423 N.E.2d 1333; People v. Buckner (1984), 121 Ill. App. 3d 391, 459 N.E.2d 1102), but it will be admit-. ted where the defendant raises an issue in his direct examination, even though it may be collateral to the facts which the State must prove to establish its case (Buckner, 121 Ill. App. 3d 391, 459 N.E.2d 1102). The trial court’s decision concerning the admissibility of rebuttal testimony is within its sound discretion and should not be reversed absent a showing of abuse of that discretion. People v. Rios (1986), 145 Ill. App. 3d 571, 495 N.E.2d 1103; Buckner, 121 Ill. App. 3d 391, 459 N.E.2d 1102.

We find that the trial court did not abuse its discretion in admitting this evidence because Watkins’ testimony rebutted a material issue raised by Dukes in his direct examination at trial. On direct examination, Dukes testified that Grefshiem hit him in the chest and that he was forced to sign a confession. He also testified that when he was first admitted to Cook County jail on Friday, November 9, 1984, following his alleged coerced confession, he requested to see a doctor but did not see one until the following Monday. On cross-examination, over Dukes’ objection, he admitted that a paramedic examined him, but testified that he complained to him about chest pains. Because Dukes raised the issue of coercion, Watkins’ rebuttal testimony was proper to attack his testimony concerning matters relevant to that issue.

We now consider Dukes’ contention that he was not proven guilty beyond a reasonable doubt. Dukes argues that since the only evidence linking him to the crime is his confession, which is of questionable validity, it is not sufficient to convict him beyond a reasonable doubt. The record does not support this contention. First, as previously established, Dukes’ statement is not of questionable validity. Second, Dukes’ statement concerning the details of the incident was corroborated by the physical evidence and by Eddie’s testimony. Finally, in addition to Dukes’ confession, Middleton’s testimony, as well as Dukes’ own admission at trial, clearly placed Dukes at the “Your Place Lounge” on the night in question. Moreover, Middleton’s testimony also established that Dukes and Dale were seen together leaving the bar shortly before the crimes were committed. This evidence amply supports a finding that Dukes committed the crimes here beyond a reasonable doubt.

As to the last trial error claimed by Dukes, we do not believe the four instances of prosecutor’s comments referred to by Dukes denied him a fair trial. Two of these, Dukes argues, were improper statements on facts not in evidence or misstatements of the evidence. While it is improper for prosecutors to misstate the evidence or make argument as to facts not in evidence (People v. Beier (1963), 29 Ill. 2d 511, 194 N.E.2d 280; People v. Giangrande (1981), 101 Ill. App. 3d 397, 428 N.E.2d 503), the comments in question here, viewed in their entire context, were not improper. The first, the prosecutor’s reference to “Eddie Thompson’s testimony that Clarence Dukes tied her husband up,” did not imply that Eddie identified Dukes. This comment occurred in the prosecutor’s discussion concerning the issue of accountability and Dukes’ statement that Dale performed the acts in question. The statement clearly referred to Eddie’s testimony as to the acts performed by each of the men. Furthermore, any confusion was obviated by defense counsel’s objecting statement that Eddie “never said Clarence Dukes tied anyone up. What she said was some other second person,” the court’s clarification that “[s]he said the other man,” and the prosecutor’s corrective statement, “[s]he testified the second man tied her up, and he says he’s the second man.”

The second situation involving allegedly improper prosecutorial remarks involves the prosecutor’s hypothetical cross-examination as to the defense’s response had Eddie identified Dukes as the offender. We find the prosecutor’s remarks were fair comment on the incredulity of the prior defense argument that the State witnesses were unbelievable and the lack of evidence as to the identity of Dukes as the offender. See People v. Morando (1988), 169 Ill. App. 3d 716, 734, 523 N.E.2d 1061, 1074 (prosecutor’s comments as to his pretrial thoughts, “what is the Defense possibly going to be,” found to be proper expressions of incredulity at prior defense argument).

The two remaining prosecutorial comments, Dukes argues, improperly shifted the burden of proof to him. In commenting on Dukes’ testimony, the prosecutor remarked that the defense objected to the State’s attempts to question Dukes as to the events occurring on the night of the crimes and that Dukes did not deny his participation in the crimes. It is established that the State may not comment that evidence was not introduced because the defense objected to its introduction. (People v. Wilson (1984), 123 Ill. App. 3d 798, 463 N.E.2d 890; People v. Ray (1984), 126 Ill. App. 3d 656, 467 N.E.2d 1078; People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402.) It is equally clear, however, that the credibility of the defendant is a proper subject in closing argument. People v. Grayson (1980), 89 Ill. App. 3d 766, 411 N.E.2d 1177.

The prosecutor also remarked that Dukes’ mother did not testify for her son to explain the presence of the suitcase in her home. It is improper for a prosecutor to comment on a defendant’s failure to call a witness unless the prosecutor shows the witness is equally available to both parties or the witness is an alibi witness. (People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) Although the State argues that this comment was invited by defense counsel’s request in argument that the jury send a message to Dukes’ family that the liberty of their “son” would not be taken away based upon insufficient evidence, we do not believe the prosecutor’s comment was justified by these defense remarks. Nonetheless, improper remarks generally do not constitute reversible error unless they result in substantial prejudice. (People v. Sanders (1988), 168 Ill. App. 3d 295, 522 N.E.2d 715; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) In light of the strong evidence of guilt here, we find the remark to be harmless error.

Turning to defendants’ contentions concerning their sentences, Dukes argues that his sentence should be reversed on grounds that the trial court had the wrong sentencing range in mind. Subsequent to finding Dukes “death eligible” in the first phase of the death-sentencing hearing, the trial court concluded that there were sufficient mitigating factors to preclude the imposition of a death sentence and thereafter sentenced Dukes to an extended term under sections 5 — 5—3.2(b) and 5 — 8—2(a)(1) of the Unified Code of Corrections (the Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5— 3.2(b), 1005 — 8—2(a)(1)). Dukes first asserts that the court had the wrong sentencing range in mind because it found Dukes “death eligible” under the Illinois death penalty statute (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(d)), which he argues violates the Illinois and United States Constitutions. We need not determine whether the unconstitutionality of the statute would require a reversal under these circumstances, as we are bound by the Illinois Supreme Court’s rulings upholding the constitutionality of this statute (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809; People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346; People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Del Vecchio (1985), 105 Ill. 2d 414, 475 N.E.2d 840; People v. Free (1986), 112 Ill. 2d 154, 492 N.E.2d 1269; People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830). Although the United States District Court for the Central District of Illinois, in an opinion filed April 29, 1989 (United States ex rel. Silagy v. Peters (C.D. Ill. 1989), 713 E Supp. 1246), has declared the Illinois death penalty statute to be unconstitutional, the Illinois Supreme Court, in subsequent cases affirming death sentences, has noted that it is not bound by this decision because, in passing on Federal constitutional questions, State and lower Federal courts occupy the same position and lower Federal courts exercise no appellate court jurisdiction over State courts. People v. Del Vecchio (1989), 129 Ill. 2d 265; People v. Coleman (1989), 129 Ill. 2d 321; People v. Harris (1989), 129 Ill. 2d 123; People v. Brisbon (1989), 129 Ill. 2d 200.

Dukes also asserts that the court had the wrong sentencing range in mind because it incorrectly found Dukes to be “death eligible,” thereby having an erroneous belief as to the maximum possible sentence. It is not necessary that we determine whether the trial court erred in finding Dukes “death eligible” because we find the trial court did not rely on any “death eligibility” standards in imposing Dukes’ sentence. The extended-term provisions under which Dukes was sentenced provide that a defendant convicted of murder may be sentenced to an extended term ranging from 40 to 80 years if the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 5—3.2(b), 1005 — 8—2.) The trial court specifically found Dukes’ conduct to be brutal and heinous and indicative of extreme and wanton cruelty.

Dukes relies solely on a fourth district case, People v. Hargis (1983), 118 Ill. App. 3d 1064, 456 N.E.2d 250, to support his position. The defendant in Hargis was found to be “death eligible” but was given a natural life sentence under section 5 — 8—1(a)(1)(b) of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b)). The court there stated that the trial court’s erroneous belief that the defendant could have been sentenced to death required resentencing. We do not adopt this reasoning. Hargis relied on People v. Marquis (1977), 54 Ill. App. 3d 209, 369 N.E.2d 372, wherein the appellate court remanded the case for resentencing because the trial court erroneously believed the offense to be a “Class A” misdemeanor instead of the correct “Class B” misdemeanor classification, although the sentence imposed fit within the “Class B” misdemeanor sentencing range. In contrast to the Marquis court’s imposition of a sentence based upon a greater sentencing range, the trial court in the instant case had already determined that it would not sentence defendant under the death penalty statute and looked to other statutory sentencing provisions. Moreover, unlike Hargis, where the trial court relied on the factor it erroneously found to make the defendant death eligible in sentencing the defendant under the “natural life” sentence, there is no indication that the trial court in the instant case sentenced Dukes based upon any improper factors.

Dukes next contends that his extended term of 80 years is excessive and unfairly disparate to the extended term of 60 years received by Dale. Although a reviewing court must not defend an arbitrary and unreasonable disparity in sentences between similarly situated codefendants, it should not disturb a sentence where the disparity is warranted by differences in the nature and extent of the defendants’ participation in the offense. People v. Godinez (1982), 91 Ill. 2d 47, 434 N.E.2d 1121.

While the record shows no significant differences in defendants’ backgrounds, it supports the trial court’s belief that Dukes participated in the offense to a greater extent than Dale. The court found that Dale was guilty of the murder by accountability and that it was Dukes who personally beat and kicked the 60-year-old victim and tied him in the particular manner that was likely to result in his death. Contrary to Dukes’ assertions, the record does not demonstrate that Dale was the instigator. Based upon the record, we find that the trial court did not abuse its discretion in giving Dukes an 80-year extended term and a greater sentence than that given to Dale.

As to Dale’s contention, he argues that his extended term of 60 years for murder and concurrent terms of 30 years for rape, 30 years for home invasion, 15 years for residential burglary, and seven years for robbery are excessive. He asserts that the 60-year extended term does not fairly reflect his degree of fault in the death of the deceased where he was found guilty only by accountability.

It is established that extended-term sentences for brutal and heinous conduct may apply to accomplices as well as principals. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) The court here acted under the statutory guidelines in imposing the extended-term sentence. The extended term was proper in view of the brutal and heinous conduct here. Dale was not a passive observer of this conduct. He initiated the contact with the victim, assisted Dukes in obtaining the cord used to tie the victim, and did nothing to stop Dukes as he beat and tied the victim. Thus, we find the trial court did not abuse its discretion in sentencing Dale.

In summary, Dale’s sentences are affirmed. Dukes’ case is remanded to the circuit court for a Batson hearing. Depending upon the outcome of the Batson hearing, Dukes’ convictions and sentences will be affirmed or he will be granted a new trial consistent with this opinion.

Affirmed in part and remanded with instructions.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    FEDERAL INSURANCE COMPANY et al., Plaintiffs-Appellants, v. ECONOMY FIRE & CASUALTY COMPANY, Defendant-Appellee.
    First District (1st Division)
    Nos. 1—87—1218, 1—87—1275 cons.
    Opinion filed September 29, 1989.

      Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellant Federal Insurance Company.

      Corboy & Demetrio, P.C., of Chicago, for appellant Marirose Johnson.
    Williams & Montgomery, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Plaintiffs appeal from an order granting summary judgment to the defendant in a declaratory judgment action. For the reasons stated below, we affirm the judgment of the circuit court.

The record discloses the following. On October 6, 1979, Jay T. Michel (Jay), an employee of Michel Masonry Company (Michel Masonry), was involved in an accident while driving an automobile owned by Michel Masonry. A passenger in the car, Marirose Johnson, filed suit for personal injury against Jay, Michel Masonry and the drivers of the other two automobiles involved in the accident.

Jay's father, Elwood Michel, had a personal estate protector umbrella policy with Economy Fire and Casualty Company (Economy) for excess coverage. In December 1980 Economy denied coverage to Jay. National Grange Insurance Company and Federal Insurance Company (Federal) defended the claim against Jay and Michel Masonry and settled for the limits of their policies. Economy refused to participate in either the defense or the settlement of the suit. Pursuant to the settlement, Jay obtained a full release from the plaintiff and assigned to her any rights he may have against Economy for its failure to defend.

Johnson and Federal filed a declaratory action against Economy, alleging that it had breached a duty to defend and indemnify Jay pursuant to the insurance policy. Plaintiffs claim that the allegations of the original complaint triggered Economy’s obligation to defend Jay and Michel Masonry and that Economy’s refusal of coverage was wrongful.

The parties filed cross-motions for summary judgment. Plaintiffs’ motion alleged that Economy had a duty to defend Jay pursuant to his father’s policy and that it wrongfully failed to defend or participate in the settlement. They claim that since Economy neither defended under a reservation of rights, nor sought a declaratory judgment as to coverage, it was estopped from denying coverage; and consequently, plaintiffs were entitled to summary judgment.

Economy based its motion for summary judgment on the fact that it had no duty to defend Jay because he was not an insured under the policy. The court denied plaintiffs’ motion and granted Economy’s motion for summary judgment.

The plaintiffs’ appeals have been consolidated, and they argue that Economy should be estopped from denying coverage since: (1) it failed to defend under a reservation of rights or to file a declaratory action as to coverage, and (2) it improperly asserted the attorney-client privilege to the communication which formed the basis of its decision to deny coverage.

When reviewing a trial court’s entry of summary judgment, the reviewing court’s sole function is to determine whether the trial court properly concluded that there were no genuine issues of material fact; and if there were none, whether judgment for the movant was correct as a matter of law. Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865; Van Vactor v. Blue Cross Association (1977), 50 Ill. App. 3d 709, 365 N.E.2d 638; Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.

In determining whether an insurer owes a duty to defend the insured, courts look to the four corners of the complaint brought against the insured. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193, 355 N.E.2d 24.) When an insurer contracts to defend its insured, it must do so unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 393, 442 N.E.2d 245; Clemmons v. Travelers Insurance Co. (1981), 88 Ill. 2d 469, 475, 430 N.E.2d 1104. See also Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 52, 514 N.E.2d 150.

Pursuant to these principles, two requirements must be satisfied before an insurer’s duty to defend arises: (1) the action must be brought against an insured, and (2) the allegations of the complaint must disclose the potential of policy coverage. (Murphy v. Peterson (1984), 129 Ill. App. 3d 952, 957, 473 N.E.2d 480.) If the allegations of the complaint reveal that the action was not brought against an insured and that there was no potential for coverage under the policy, there is no duty to defend the underlying action (MFA Mutual Insurance Co. v. Crowther, Inc. (1983), 120 Ill. App. 3d 387, 390, 458 N.E.2d 71), and the insurer can justifiably refuse to defend. La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 920.

Plaintiffs contend that Jay was potentially insured as: (1) any person using an automobile owned by, loaned to or hired for use in behalf of the named insured (paragraph 111(b)(1) of Economy’s insuring agreement), or (2) with respect to a nonowned automobile, any relative, provided the actual use thereof is with the permission of the owner (paragraph 111(b)(2) of the insuring agreement). Defendant, on the other hand, asserts it had no duty to defend Jay because (1) he was not an insured under the policy, and (2) it did not have a duty to defend an insured until the insured’s liability exceeded the coverage provided by the underlying insurance. Economy maintains that it is clear from the face of the complaint that Jay was not an insured, and consequently, that there was no potential for coverage.

In the instant case, neither of the foregoing requirements is satisfied. First, no person or entity insured by Economy was named as a defendant in the complaint filed by Marirose Johnson. Marirose sued Jay and the other defendants individually. She sued Michel Masonry in its corporate name. Elwood Michel, the named insured under Economy’s policy, was never named as a defendant in the underlying action. No third-party action was ever filed against Elwood Michel.

Second, all of the allegations in the underlying action were directed against Jay as the operator of an automobile involved in an accident which was owned by Michel Masonry. The complaint alleges that Jay was acting as an agent and authorized employee of Michel Masonry at the time of the occurrence. The complaint does not allege that the automobile had been loaned to or hired for the father’s use. Moreover, there was never any allegation in Marirose Johnson’s complaint that Jay was in any manner connected with or acting on behalf of his father, Elwood Michel. Hence, the allegations of Marirose Johnson’s complaint reveal that the action was not. brought against Elwood Michel, the insured, and that there was no potential for coverage pursuant to paragraph 111(b)(1) of the Economy policy.

For Jay to be an insured pursuant to paragraph 111(b)(2), he must have been a “relative” using a “non-owned automobile,” with the owner(s) permission. “Relative” was defined by the policy as a relative of the named insured who is a resident of the same household. A “non-owned automobile” was defined by the Economy policy as any automobile not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.

The record discloses that the underlying complaint did not allege that Jay was a relative of Elwood Michel or that the automobile in question was a nonowned automobile, as defined in Economy’s policy. Consequently, there was similarly no potential for coverage under this provision of the insuring agreement. Under these circumstances, the potential for “coverage cannot be inferred merely because the son of the insured is named in a lawsuit.” Murphy v. Peterson (1984), 129 Ill. App. 3d 952, 958, 473 N.E.2d 480.

We briefly discuss Economy’s argument that an excess carrier has no duty to defend an insured until the insured’s liability exceeds the coverage provided by the underlying insurance(s). Economy’s policy contains separate provisions concerning liability and defense. The liability section provides that the company agrees to indemnify the insured for the ultimate net loss in excess of the retained limit which the insured shall become legally obligated to pay as damages because of personal injury of property damage. “Ultimate net loss” means the total sum which the insured or any insurer of the insured becomes obligated to pay in settlement or satisfaction of a loss for which the insured is liable either by adjudication or compromise.

The defense-settlement section provides, in part:

“With respect to any sum for which the insured is alleged to be legally obligated but for which damages are not payable (1) under the insuring agreements of any underlying policy(ies) or insurance described in Schedule A of the declarations, or (2) under any other underlying insurance available to the insured, or (3) due to the exhaustion of the limit of liability through the payment of damages under the insuring agreements of an underlying policy(ies) or insurance, but covered by the terms and conditions of this policy *** the company shall: (a) defend any suit against the insured alleging personal injury or property damage and seeking damages on account thereof.”

The policy provides that Economy has a duty to defend an insured “when the insured is alleged to be legally obligated” for damages exceeding the coverage provided by the underlying insurance. Thus, in the event Jay was an insured pursuant to the policy and the claim exceeded the underlying coverage, Economy would have had a duty to defend.

Plaintiffs contend that notwithstanding the foregoing analysis or a determination whether an insurer is a primary or excess carrier, when faced with a complaint it believes is not covered by its policy, an insurer must either defend the suit under a reservation of rights or seek a declaratory judgment that there is no coverage. The plaintiffs further contend that if the insurer does neither and refuses to defend, then it is estopped from alleging later that the insured was not covered by the policy or that there are policy defenses. (La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451, 408 N.E.2d 298. See also Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 387 N.E.2d 700.) We disagree as noted above and conclude that Economy is not estopped to assert its noncoverage in the underlying action. We find that the trial court properly granted summary judgment to Economy. There was no genuine issue of material fact presented here since the underlying complaint failed to allege negligence against an insured or any other potential for coverage.

Moreover, we believe that the cases relied on by the plaintiffs are distinguishable from the case at bar. They involve either (1) the situation wherein the insurer failed to indemnify an action based on an exclusion in the insurance policy, or (2) the situation wherein the primary insurer’s duty to defend its insured was at issue. In the present case, no entity or individual insured by Economy was ever made a party to the underlying complaint, and further, the Economy policy provided excess coverage, not primary coverage. Primary insurance coverage is coverage whereby, under the terms of the policy, liability attaches immediately upon the happening of the event that gives rise to liability. Primary insurers generally have the primary duty of defense. Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted. Whitehead, v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 442 N.E.2d 1362.

Plaintiff Marirose Johnson, in her motion to file additional authority, relies on Standard Mutual Insurance Co. v. General Casualty Cos. (1988), 171 Ill. App. 3d 758, 765, for the proposition that an insurance company, “by acknowledging coverage under the policy,” acts in a manner to show an “intentional relinquishment” of its rights to later deny coverage. We believe that Standard Mutual v. General Casualty is distinguishable. In that case, General' Casualty recognized the validity of its policy for one claim and then argued that the entire policy was null and void when another claim arising out of the same incident was made. Here, Economy initially claimed, in a letter to one of the other insurance carriers, that its policy may have potentially covered the incident. However, after its investigation and determination by legal counsel that there was no coverage, Economy maintained that neither Jay or Michel Masonry was insured by any provisions of the insuring agreement pursuant to the allegations of the underlying complaint.

Therefore, we do not find Standard Mutual apposite here. Next, the plaintiffs contend that Economy should be estopped from denying coverage because it asserted the attorney-client privilege to the communication which formed the basis of its decision to deny coverage. The communication the plaintiffs are referring to is the opinion Economy solicited from its attorney concerning whether it was required to provide coverage for Jay. Plaintiffs learned of the communications during their deposition of Mr. Unish, Economy’s vice-president and director of claims. Mr. Unish testified that coverage was denied Jay on the advice of Economy’s attorney.

Plaintiffs argue that Mr. Unish’s consultation with his attorney was for the purpose of “business advice” or “corporate decision making.” Economy, on the other hand, asserts the solicitation of an opinion whether it was required to provide coverage or participate in the litigation was clearly legal advice.

We believe that the communication between Economy and its attorney is irrelevant to the disposition of this case, and that further, there is no reason why the plaintiffs should be entitled to that communication. The issue here is not why counsel opined that Economy should deny coverage, but whether Economy was justified in its refusal to defend and its denial of coverage. As noted earlier, Economy’s denial was not wrongful.

Moreover, we note that even if the issue of the attorney’s opinion had any bearing on this case, the attorney notes and memoranda of oral conversations, including any opinions to Economy, are not routinely discoverable and are normally protected under the attorney-client privilege. Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.

Accordingly, for the reasons above stated, we affirm the judgment of the circuit court.

Judgment affirmed.

CAMPBELL and QUINLAN, JJ„ concur.


author: JUSTICE O’CONNOR

text:
    NORBERT W. DAVIS, Plaintiff-Appellant, v. GEORGE W. DUNNE, as Chairman of Commissioners of Cook County, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2501
    Opinion filed September 29, 1989.

      Goldman & Marcus, of Chicago (Arthur R. Ehrlich and Gerald A. Goldman, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Alison E. O’Hara and Iris E. Sholder, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Norbert Davis, a civil service employee, sued George Dunne, president of the Board of Commissioners of Cook County, alleging violation of Cook County Civil Service Commission Rules, after defendant Albert Weston was promoted ahead of Davis. The trial court granted Dunne’s motion to dismiss with prejudice for failure to state a claim. Davis appeals.

In April 1969, Norbert Davis was employed with the Cook County Environmental Control Department as an inspector I, grade level 15. Davis was appointed chief investigator in 1970. In March 1985, Albert Weston, also an employee of the Cook County Environmental Control Department at grade level 15, was promoted to inspector II, with an increase to grade level 17.

On April 7, 1987, Davis filed a complaint against Dunne and Weston, alleging violation of Cook County Civil Service Commission Rule VIII, which provides in relevant part:

“Sec. 1. Vacancies shall be filled by promotion in all cases where it is practicable, on the basis of ascertained merit, examination, and seniority. All examinations for promotion shall be competitive, and in order to create or increase competition, ranks may be combined for the purpose of promotion. Lines of promotion shall be determined by the Commission. Lines of eligibility for promotion shall be defined, specifying in the examination announcement by title of position the particular ranks entitled to take such promotional examination. The method of and the rules governing any promotional examination and the method of certifying shall be the same as provided for applicants to open competitive examinations except that the Commission shall submit to the appointing officer the names of not more than three applicants having the highest rating for each promotion.”

Davis alleged that because Weston had been promoted without a competitive exam or registered list of the three most eligible candidates, and the promotion was not based on seniority or merit, Rule VIII had been violated. Davis requested that Weston’s promotion be declared null and void, and that he be awarded the position of inspector II, and alternatively, that he be awarded the position of inspector II without changing Weston’s position. Davis further requested costs, fees, and such other relief as the court found appropriate.

Davis argued that the violation of Rule VIII constituted a violation of “An Act to revise the law in relation to counties ***” (Civil Service Act) (Ill. Rev. Stat. 1987, ch. 34, par. 905 et seq.). Section 61.50 of the Civil Service Act provides: “[a]ny person who shall willfully, or through culpable negligence violate any of the provisions of this Act or any rule promulgated in accordance with the provisions thereof shall be guilty of a Class B misdemeanor.” (Ill. Rev. Stat. 1987, ch. 34, par. 1139.) Section 61.52 provides:

“Prosecutions for violations of this Act may be instituted either by the Attorney General, the State’s Attorney for the county in which the offense is alleged to have been committed, or by the commission acting through special counsel. Such suits shall be conducted and controlled by the prosecuting officers who institute them, unless they request the aid of other prosecuting officers.” Ill. Rev. Stat. 1987, ch. 34, par. 1141.

On October 14, 1987, Dunne moved to dismiss Davis’ action, asserting that the Civil Service Act provided no private right of action. The trial court agreed, finding that enforcement of the Civil Service Act was limited to the Attorney General, State’s Attorney, or Civil Service Commission, and dismissed Davis’ claim with prejudice. Davis appeals.

Davis argues that a private right of action should be implied from the Civil Service Act (Ill. Rev. Stat. 1987, ch. 34, par. 905 et seq.), because the Act meets the criteria set forth in Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849, which allows a private cause of action where (1) the alleged violation contravenes the public policy of the statute, (2) the plaintiff was within the class of individuals the statute was meant to protect, (3) the plaintiff’s injury was one which the statute was meant to prevent, (4) there is a clear need for a private remedy, and (5) nothing in the statute limits the available remedies to those listed in the statute. (Sawyer Realty, 89 Ill. 2d at 389.) Here, the trial court ruled that the enumeration of three specific governmental agencies to conduct prosecutions indicated an intent to limit remedies to the criminal penalties. We agree.

The presence of criminal penalties alone does not necessarily bar a private right of action. (Rhodes v. Mill Race Inn, Inc. (1984), 126 Ill. App. 3d 1024, 1026, 467 N.E.2d 915, appeal denied (1985), 101 Ill. 2d 593.) The Civil Service Act, however, does not apply to an area of broad public interest, such as the legislation addressed in Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849 (Real Estate Brokers and Salesmen Licensing Act (Ill. Rev. Stat. 1977, ch. 111, par. 5701 et seq.)), or Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353 (Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.)), or Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 128 N.E.2d 691 (Election Code (Ill. Rev. Stat. 1951, ch. 46, par. 17 — 15)). Rather, the Act applies to the relatively narrow realm of civil service employment, authorizing election of commissioners in Cook County and providing a framework for appointment, promotion, and removal of civil service employees. The limitation both on the entities that may pursue remedies under the Act and the type of remedy those entities may seek, and the narrow scope of the Act, indicates an intent to limit the remedies to those it provides.

Notwithstanding the intent to limit remedies, the statute fails to satisfy other elements of the Sawyer Realty test. Although defendant Dunne correctly states that “the purpose of the Act is to ensure a competent civil service for governmental bodies” (see Hacker v. Meyrs (1961), 33 Ill. App. 2d 322, 179 N.E.2d 404), it cannot be gainsaid that its purpose is facilitated by ensuring that civil service employees have tenure in their positions, and that appointments and promotions are based on merit and not influenced by bribery, political loyalties, discrimination of any kind, or any other form of corruption. Clearly, violation of the Act contravenes public policy. Given the narrow focus of the statute, however, it does not necessarily follow that the Act was intended to protect persons such as Davis, was intended to remedy the injury Davis alleged, or that there was a clear need for a private right of action to meet the aims of the Act.

Although a statute’s purpose may serve public policy, that purpose alone does not imply a private right of action; it is proper to inquire whether the statute is remedial in nature. (Rhodes v. Mill Race Inn, Inc. (1984), 126 Ill. App. 3d 1024, 1027, 467 N.E.2d 915, appeal denied (1985), 101 Ill. 2d 593.) Here, the Act prescribes procedures for appointment, promotion, and removal of civil service employees, and prohibits certain discriminatory and politically based misconduct. The Act does not seek to redress wrongs, and therefore, is not remedial in nature. Although the Act protects, in its observance, civil service employees such as Davis, it does not, in its breach, provide a civil remedy for those employees.

In summary, Davis brought a claim pursuant to the Civil Service Act, but given the narrow focus of the Act, and its specific limitations on who may prosecute under the Act and the remedies they may seek, the Act was not intended to support a private right of action. In the absence of a private right of action, dismissal of Davis’ claim with prejudice was proper and is accordingly affirmed.

Affirmed.

MANNING, P.J., and BUCKLEY, J., concur.


author: JUSTICE CERDA

text:
    MAUREEN ZIMMERMAN et al., Plaintiffs-Appellants, v. ABBOTT LABORATORIES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—2502
    Opinion filed September 29, 1989.
    Robbins, Rubinstein, Salomon & Greenblatt, Ltd., of Chicago (Richard Lee Stavins and Thomas K. Tryboski, of counsel), for appellants.
    Robert G. Epstein and Richard E. Favoriti, both of Burditt, Bowles, Radzius & Ruberry, Ltd., of Chicago, for appellees E.R. Squibb and Sons, Inc., Olin Corporation, and Olin Mathieson Chemical Corporation.

      Hugh L. Moore and Ann Marie Walsh, both of Lord, Bissell & Brook, of Chicago, for appellee Abbott Laboratories, Inc.
    Richard C. Bartelt and Richard C. Palmer, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellee Eli Lilly and Company.
    Stephen E. Sward and Jill M. Rappis, both of Rooks, Pitts & Poust, of Chicago, for appellees M err ell Dow Pharmaceuticals, Inc., and Dow Chemical Company.
    Algimantas Kezelis, of French, Rogers, Kezelis & Kominiarek, Ltd., of Chicago, for appellees Colgate-Palmolive Company and Lakeside Laboratories, Division of Colgate-Palmolive Company.
    Robert L. Nora and Don M. Sowers, both of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee Merck and Company, Inc.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiffs, Maureen and Robert Zimmerman, appeal from the dismissal of their strict liability counts against defendants, manufacturers and sellers of the drug which allegedly was ingested by Maureen’s mother and caused Maureen to contract cancer. The trial court held that the counts were barred by the statute of repose contained in section 13 — 213 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(d)). The statute of repose was enacted after the date of plaintiff’s alleged exposure to the drug, and Maureen’s discovery of the injury occurred after the effective date of the statute of repose.

On July 2, 1986, plaintiffs sued numerous defendants which had in 1955 and 1956 manufactured, marketed, promoted, sold or distributed the drug diethylstilbestrol (DES), used to prevent miscarriages and spontaneous abortions. It was alleged that Maureen’s mother ingested DES while she was pregnant with Maureen, who was born on July 13, 1956. Count I, for negligence, alleged that as a result of cervical cancer contracted from exposure to DES in útero, her uterus was surgically removed and that she was at risk for developing cancer in the future. Maureen also alleged that she did not know and could not reasonably have known of the injury until January 1986, when she was diagnosed as having cervical cancer, and that she could not reasonably have known that the injury was caused by the wrongful acts of another until February or March 1986, when she consulted an attorney. Count II brought by Maureen was based upon strict liability in tort. Count III was based upon negligence and alleged that Robert was deprived of the society of his wife Maureen. Count IV brought by Robert was based upon strict liability in tort. Two additional counts of negligence were brought by Maureen and Robert separately against defendant Eli Lilly & Company.

Maureen swore in an affidavit that prior to 1972 she became aware that her mother took DES while pregnant with her in 1955 and 1956 and that DES could cause cancer in female offspring. Beginning in approximately 1972, when Maureen was 16 years old, and continuing until approximately 1975, she had annual Papanicolaou smear tests to detect cancer. From approximately 1975 to 1984, she had such a test every six months. In addition, she had an annual microscopic pelvic examination each year from 1972 to 1984 to detect cancer. Between June 1985 and January 1986 she was examined by a gynecologist as part of treatment for secondary infertility at least 16 times. Many of these examinations were to detect cancer. All her examinations until January 1986 were negative for cancer. In January 1986 she was diagnosed as having cervical cancer.

The strict liability counts II and IV of the second amended complaint were dismissed with prejudice on the basis that they were barred by the applicable statute of repose. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(d).) The trial court stated that plaintiffs’ position was that the sale of DES occurred prior to the effective date of the statute of repose so that plaintiffs were entitled to a reasonable opportunity to file their action after the effective date. Plaintiffs also argued that a reasonable time to file their action was within eight years after the statute of repose’s effective date, because the statute of repose stated that in no event may an action be filed eight years after the date of the personal injury.

In dismissing the counts, the trial court referred to an earlier DES case in which the trial court had “borrowed” the four-year limitation of the statute of repose for medical malpractice actions (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212) and applied it to the period following the enactment of the products liability statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(d)) and thereby held that plaintiffs had to have filed their action within four years of the January 1, 1979, effective date of the statute of repose. The order also provided that there was no just reason to delay enforcement or appeal of the order.

Plaintiffs argue that the eight-year limit provided by the products liability statute of repose is the reasonable time in which they could file their action after the enactment of the statute of repose. Defendants argue that the trial court’s ruling was consistent with and supported by the Illinois Supreme Court decisions.

Section 13 — 213 of the Code of Civil Procedure prohibits products liability actions based on the doctrine of strict liability in tort from being commenced after 12 years from the date of the first sale, lease or delivery of possession by a seller or after 10 years from the date of the first sale, lease or delivery of possession to its initial user, consumer, or other nonseller, whichever period expires earlier, of any product claimed to have injured plaintiff. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b).) Notwithstanding this provision, if the injury occurred within one of these periods, plaintiff may bring the action within two years after the date on which he knew or should have known through reasonable diligence of the existence of the personal injury. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(d).) However, the statute of repose provides that “in no event shall such action be brought more than 8 years after the date on which such personal injury *** occurred.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(d) (enacted originally as Ill. Rev. Stat. 1979, ch. 83, par. 22.2(d)).) The statute of repose provides that it applies to even those causes of action accruing before its effective date of January 1, 1979.

A period of repose is one which is intended to terminate the possibility of liability after a defined period regardless of a potential plaintiffs lack of knowledge of his cause of action. (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 422-23, 490 N.E.2d 665.) The general rule is that when a statute of limitations is shortened or provides for a limitations period when one did not previously exist, a plaintiff is permitted a reasonable time to sue if the cause of action arose before the date of the statute. (111 Ill. 2d at 420.) The period which is scrutinized for its reasonableness is between the statute’s effective date and thé date on which the preexisting cause of action would be barred under the new statute. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 233, 447 N.E.2d 408.

An amendment to a statute of limitations which decreases the time in which an action may be filed should not be applied retroactively to instantaneously bar existing causes of action. (95 Ill. 2d at 230.) Causes of action based upon injuries which occurred many years prior to the statute of repose’s effective date but which were not discovered until after the effective date would be barred as of the effective date. Moore held that the statute of repose could not be applied retroactively to bar causes of action upon its effective date. (95 Ill. 2d at 232.) The court held that persons whose actions were so barred had a reasonable time to file their actions after the statute of repose’s effective date. (95 Ill. 2d at 237.) In the Moore case, the causes were remanded for determinations of whether they were filed within a reasonable time.

The Moore concurring opinion stated that it was consistent with the legislative intent that an injured person discover and commence his medical malpractice action within four years and that a person injured prior to the effective date of the statute of repose be required to discover his cause of action and file his complaint within four years after the effective date. (95 Ill. 2d at 243.) Defendants in this case argue that the special concurring opinion in Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675, was not “based on” what was a reasonable time. Despite the concurrence’s opinion that the result was just, it stated that the majority opinion implicitly held that the eight-year period of repose was the reasonable time. (111 Ill. 2d at 486.) The statement was not contradicted in the majority opinion but, on the other hand, the majority did not state what a reasonable time was and remanded the case. The majority held that the action, which was filed within three years of the effective date of sub-paragraph (g) of section 13 — 213, was timely filed.

In Mega (111 Ill. 2d 416, 490 N.E.2d 665), the Illinois Supreme Court held that a reasonable time to file for plaintiffs whose actions were barred upon the effective date of the medical malpractice statute of repose could not extend beyond the time of the statute of repose. (111 Ill. 2d at 422.) In other words, such plaintiffs could not bring their actions more than four years after the statute’s effective date of 1976. See also Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 490 N.E.2d 675 (medical malpractice action filed more than four years after effective date of statute of repose was barred).

In Costello v. Unarco Industries, Inc. (1986), 111 Ill. 2d 476, 490 N.E.2d 675, a products liability action filed within two years of discovery of the cause of action and within three years of section 13— 213(g)’s effective date was found to have been timely filed. (111 Ill. 2d at 484.) The court found analogous the cases involving the medical malpractice statute of repose and stated that applicable were the rationale of the special concurring opinion in Moore and the majority opinion in Mega. But Costello stated that it did not need to decide what a reasonable period was. 111 Ill. 2d at 484.

In Blazek v. Nicolet, Inc. (1988), 173 Ill. App. 3d 324, 527 N.E.2d 568, plaintiff argued that a reasonable time to file her products liability cause of action was at the minimum the eight year period of repose. The court held that the cause of action filed approximately seven years after the statute of repose’s effective date was not timely filed. Blazek implicitly rejected the approach of equating the reasonable time for a plaintiff to file after the effective date with the length of the statute of repose. We hold that plaintiffs’ action in the instant case, filed approximately 7V2 years after the statute of repose’s effective date, was untimely and was therefore barred. Costello, 111 Ill. 2d 476, 490 N.E.2d 675.

The judgment of the circuit court is affirmed.

Affirmed.

FREEMAN, P.J., and RIZZI, J., concur.