author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM A. FARRELL, Defendant-Appellant.
    Fourth District
    No. 4—88—0453
    Opinion filed March 31, 1989.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald F. Robinson, State’s Attorney, of Winchester (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following verdicts of guilty by a jury, the circuit court of Scott County entered judgments against defendant Malcolm A. Farrell for the offenses of theft over $300, armed robbery, residential burglary, and armed violence, in violation of sections 16 — 1, 18 — 2, 19 — 3, and 33A — 2, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 16 — 1, 18 — 2, 19 — 3, 33A — 2). On June 6, the court sentenced defendant to five years’ imprisonment for the theft conviction, 25 years’ imprisonment for the armed robbery conviction, and 25 years’ imprisonment for the armed violence conviction, with all sentences to run concurrently. The court imposed no sentence on the residential burglary conviction. Defendant now appeals.

The evidence established that on January 28, 1988, Paul and Mary Hoots awoke at 4 a.m. to find a black man with a gun in their home. While he tied them up, they heard him speaking to a second man. The black man was observed to be wearing white tennis shoes. An investigation, after the assailants left, established that items they took included a VCR, a small wooden chest containing silverware, four watches, a wedding ring, a pillowcase, and cash. It was discovered entry was gained by breaking a garage -window, where some footprints were found. Also found in the house was a flashlight which did not belong to the Hoots.

On February 18, law enforcement officials went to defendant’s girlfriend’s house to arrest him. Defendant attempted to get away by climbing on the window ledge of the apartment. At the time, he was wearing white tennis shoes, which the police confiscated. One expert testified these shoes could have made the shoe prints found by the broken window, and another testified defendant’s fingerprint was found on the lens of the flashlight.

On February 22, defendant gave a statement to Sergeant John Yelliott stating he was with Michael Murphy and another unknown subject at the time of the crime, but he never entered the house. The others entered and brought out a VCR and a pillowcase containing a wooden case of silverware. Murphy told defendant he tied up a couple that was in the house. Defendant sold some of the property for Murphy.

Defendant gave a similar statement to Officer Jerry Lieb on February 25. Finally, a friend of defendant saw defendant and Murphy together on January 28 around 5 a.m. At that time, Murphy had a pillowcase and a small wooden box. The jury found defendant guilty on all charges.

Defendant contends the court erred by denying his motion to suppress and allowing admission of the statements he made to Yelliott and Lieb. He believes the State violated his sixth amendment right to counsel, asserting that these statements were taken after he had expressed a desire for an attorney.

On February 22, defendant was arraigned. At that time, the court explained that defendant was entitled to an attorney. The following exchange took place:

“In the traditional sense, the right to a lawyer means a right to a lawyer whom you’d select, one you’d pick out, a lawyer in whose ability and integrity you have confidence. Oftentimes, we find that men in your position don’t have money enough, or financial resources enough, to hire a lawyer of their own choice, and if that’s true, and if they make request for it, a public defender is appointed, but traditionally, a man such as you has a right to say, T want to hire John Doe,’ or whatever his name is. T know him, or I’ve heard of him. I believe he’s a good lawyer. I’m persuaded that he’s a good lawyer, and I’m sure he’ll work for me,’ and if you intend, of course, to hire a lawyer of your own selection, you may do so. On the other hand, as I said, if you haven’t got the money, we’ll see that you have a public defender, and he’ll be an experienced and competent defense attorney.
Do you understand me?
THE DEFENDANT: Yeah.
THE COURT: You going to hire a lawyer, Mr. Farrell?
THE DEFENDANT: Yes, sir.
THE COURT: Sir?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Are you in a position at this time to tell me his name?
THE DEFENDANT: Not at the moment, no.”

As it turns out, defendant never did retain counsel, and the court appointed him one on March 4.

Later, on February 22, Yelliott sought to interview defendant. Defendant was advised orally and in writing of his Miranda rights and, stating he understood them, signed a written waiver. He then gave the questioned statement.

On February 25, Lieb sought to interview defendant about a different crime. One item taken from the other burglary was found at the scene of the Hoots crime. Defendant was again advised of his Miranda rights and orally waived them. He then gave a statement which included discussion of the Hoots offense.

The resolution of this case involves the analysis of two United States Supreme Court cases. The first, which defendant cites, is Michigan v. Jackson (1986), 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404. There, the defendants appeared at their arraignment and requested court-appointed counsel. Prior to the defendants meeting with their counsel, the police interviewed them. In each case, they were properly advised of their Miranda rights and waived them. The Court determined these waivers were improper, and the statements should have been suppressed.

The Court held that in asking for appointment of counsel, defendants were not asking for counsel just for representation at trial, but were requesting counsel’s services for every critical stage of the prosecution. (Jackson, 475 U.S. at 633, 89 L. Ed. 2d at 640, 106 S. Ct. at 1409.) The Court noted that, pursuant to Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, once a defendant has requested counsel, advice of rights and acquiescence in police-initiated questioning cannot establish a valid waiver. (Jackson, 475 U.S. at 635, 89 L. Ed. 2d at 641, 106 S. Ct. at 1410.) Accordingly, the Court concluded that once a defendant has invoked his sixth amendment right by requesting counsel at his arraignment, the State could not initiate any conversation with defendant, and any evidence gained through such a conversation should be suppressed.

The second case, which the State relies on, is the recent decision in Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389. There, the defendant was indicted for murder. Subsequent to the indictment and prior to arraignment, defendant was interviewed by the police. After being advised of his Miranda rights and waiving them, he gave an inculpatory statement.

The Court initially noted that the Jackson decision turned on the fact that the accused had asked for the help of a lawyer in dealing with the police. (Patterson, 487 U.S. at _, 101 L. Ed. 2d at 271, 108 S. Ct. at 2394.) It observed that in this case, there was no such request. Thus, while the defendant’s sixth amendment rights came into existence at the time of the indictment, without a request by defendant to speak with counsel, the police could initiate a conversation with defendant. The Court went on to hold that in such a situation, a post-indictment interview, a waiver of the Miranda rights by defendant would not only waive his fifth amendment rights but also his sixth amendment rights. (Patterson, 487 U.S. at _, 101 L. Ed. 2d at 272, 108 S. Ct. at 2395.) Accordingly, the Court found the statement admissible.

The current status of the law, thus, appears to be that if at arraignment a defendant requests appointment of counsel, he has invoked his sixth amendment right, and the State cannot initiate a conversation with him. However, after an indictment, while his sixth amendment right has come into existence, unless he requests counsel, the State can initiate an interview, and the admonishment and waiver of the Miranda rights will waive the defendant’s sixth amendment right for purposes of the interview. The critical factor appears to be whether defendant has requested the help of a lawyer in dealing with the police.

In the present case, defendant was under arrest, and it is evident his sixth amendment rights had come into existence. (See People v. Thompkins (1988), 121 Ill. 2d 401, 433, 521 N.E.2d 38, 51.) The question for us, then, is whether defendant’s assertion that he would hire his own counsel is such that it invokes the holding in Jackson, in which case the police could not interview him. If it is, then defendant’s waiver of his Miranda rights has no effect, and the statements should be suppressed. If it is not, then, pursuant to Patterson, defendant’s valid waiver, after being advised of the Miranda warnings, also effectively waived his sixth amendment rights, and the statements are properly admissible.

We conclude defendant’s statement that he would retain counsel is not such a clear assertion of his right to counsel as to bring it under Jackson.

In Illinois, it is settled that not every reference to an attorney should constitute an invocation of the right to counsel. (People v. Krueger (1980), 82 Ill. 2d 305, 311, 412 N.E.2d 537, 540; People v. Smith (1984), 102 Ill. 2d 365, 373, 466 N.E.2d 236, 240, rev’d on other grounds (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490; People v. Wieland (1984), 123 Ill. App. 3d 576, 582, 462 N.E.2d 1256, 1260.) In Krueger, the court held the defendant’s statement, “Maybe I need an attorney,” did not constitute an effective request for counsel. The court explained:

“We do not believe, however, that the Supreme Court intended by this language [in Miranda v. Arizona] that every reference to an attorney, no matter how vague, indecisive or ambiguous, should constitute an invocation of the right to counsel. ***
*** We hold that the officers did not violate defendant’s Miranda rights, for, in this instance, a more positive indication or manifestation of a desire for an attorney was required than was made here.” (Krueger, 82 Ill. 2d at 311-12, 412 N.E.2d at 540.)

In Smith, the court held that a defendant must clearly assert his right to counsel to invoke the Miranda protections. (Smith, 102 Ill. 2d at 373, 466 N.E.2d at 240.) Thus, if a defendant’s statement concerning his desire for counsel is ambiguous, the interrogation is allowed to proceed.

While these cases dealt with requests for counsel under the fifth amendment, we see no reason why this analysis should not equally apply to requests for counsel under the sixth amendment. A review of United States Supreme Court cases makes clear that analysis under the fifth and sixth amendments is often interchangeable. See Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880; Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404; Patterson, 487 U.S. _, 101 L. Ed. 2d 261, 108 S. Ct. 2389.

Defendant’s statement that he intended to retain some unnamed attorney is, to our minds, an ambiguous assertion of his right to counsel. The cornerstone of the Jackson decision is that a defendant is desiring counsel to act as a medium, as evidenced by his asking for the help of a lawyer in dealing with the police. (Patterson, 487 U.S. at _, 101 L. Ed. 2d at 271, 108 S. Ct. at 2394.) This desire is clearly evident when a defendant requests appointed counsel, as in Jackson, or indicates to the court that he has retained, or is in the process of retaining, a named counsel. The vague assertion that he intends to retain some attorney falls short of evidencing this desire. In the latter situation, it is not inappropriate for the State to initiate an interrogation. This decision finds further support in a footnote to Patterson, where the Court stated:

“We note as a matter of some significance that petitioner had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities. Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect. ***
Indeed, the analysis changes markedly once an accused even requests the assistance of counsel.” Patterson, 487 U.S. at _ n.3, 101 L. Ed. 2d at 271 n.3, 108 S. Ct. at 2393-94 n.3.

We wish to emphasize that by our holding, we are not suggesting that defendant, by his ambiguous statement, has somehow waived any of his constitutional rights. Our decision is limited to the question of whether, under the facts in this case, the police can initiate further questioning. Defendant is still entitled to be given his Miranda warnings before any statement is elicited. Thus, if he does desire the presence of counsel, he can clarify his previous ambiguous statement at the time he is advised of his right to counsel by the police, and all questioning will cease.

In the present case, defendant, after being advised of the Miranda rights, which include a right to counsel, validly waived them, which further indicates his statement at the arraignment was not an attempted assertion of his right to counsel. In fact, defendant never did retain counsel, and counsel was subsequently appointed for him on the day of his preliminary hearing.

Prior to both interviews, defendant was meticulously given the Miranda warnings. In each case, he knowingly and voluntarily waived these rights. These waivers also acted as informed waivers of his sixth amendment right to counsel. (Patterson, 487 U.S. at _, 101 L. Ed. 2d at 272, 108 S. Ct. at 2395.) Accordingly, we hold the court’s decision denying defendant’s motion to suppress was correct.

Lastly, defendant argues correctly, and the State concedes, that since residential burglary is the underlying felony for the armed violence conviction, and both arose out of the same physical act, the conviction for residential burglary must be vacated. (See People v. Costales (1988), 166 Ill. App. 3d 234, 240, 520 N.E.2d 421, 425.) It is so ordered.

Affirmed in part and vacated in part.

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


source: Caselaw Access Project

author: JUSTICE GREEN PRESIDING JUSTICE McCULLOUGH,

license: Public Domain

text:
      In re S.L.S. (The People of the State of Illinois, Petitioner-Appellee, v. S.L.S., Respondent-Appellant).
    Fourth District
    No. 4—88—0454
    Opinion filed April 6, 1989.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court;

On May 13, 1988, a petition was filed in the circuit court of Cham-paign County alleging S.L.S. was a delinquent minor (Ill. Rev. Stat. 1987, ch. 37, par. 805 — 3) because he had committed the offenses of obstructing justice and driving without a valid driver’s license. On May 25, 1988, an adjudicatory hearing was held at which S.L.S. admitted commission of the charge of obstructing justice. The other charge was then dismissed. The court found S.L.S. to be a delinquent minor. Subsequently, a dispositional hearing was held, and, on June 23, 1988, S.L.S. was committed to the Department of Corrections. S.L.S. has appealed.

On appeal, the sole contention of the minor is that the circuit court lacked jurisdiction to enter the decree of delinquency because his father, Junior Smith, had not been served or notified of the filing of the petition as required by sections 2 — 15 and 2 — 16 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, pars. 802 — 15, 802— 16). The father’s name and his residence, which was within Cham-paign County, were stated in the petition. He had appeared in court but not until the dispositional hearing. The mother was properly served and appeared at the adjudicatory hearing.

The most significant case in regard to the requirements of service or notice prior to entry of adjudicatory orders is still People v. R.S. (1984), 104 Ill. 2d 1, 470 N.E.2d 297. There, the supreme court upheld an appellate court decision reversing a circuit court judgment finding a minor delinquent and committing him to the Department of Corrections. (In re R.S. (1983), 117 Ill. App. 3d 698, 453 N.E.2d 139.) That minor’s parents were divorced but lived in the same city at the addresses listed in the delinquency petition. The minor had lived with his mother but was in the physical custody of his father at the time of the proceedings. The mother had not been served with summons or given notice of the filing of the petition and, unlike the father here, did not appear at any of the proceedings.

Prior to its decision in R.S., in the case of In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, the supreme court held that failure to serve or give notice to a noncustodial parent listed in a petition alleging delinquency did not result in grounds to arrest a judgment of delinquency when the petition set forth that the name and whereabouts of the noncustodial parent were unknown. The court concluded that the attenuated nature of the relationship between this father and his blood son born out of wedlock was such that the father was not a necessary party, and proceeding without him did not deprive either the minor or the father of the due process rights as described in the case of In re Application of Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.

In R.S., the supreme court distinguished the situation there, where service upon the mother could easily have been obtained, from the situation in J.W., where only notice by publication, likely to be futile, could have been given in regard to the father. The R.S. court determined no decision needed to be made as to whether the mother was an indispensable party, because, in any event, the statutory notice requirements had not been complied with. The majority held that the failure to notify the mother deprived the court of subject matter jurisdiction of the proceedings. A three-justice minority concurred in the result but concluded the failure to follow the notice procedure did not deprive the court of subject matter jurisdiction but was merely reversible error.

In the case of In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848, the opinion noted the dispute within the court on the jurisdiction issue discussed in R.S. but did not delve further into the matter. In that case, the court held that, when the whereabouts of a parent are stated in the petition to be unknown, any failure of the petitioner to exercise diligence in locating that parent is waived if not raised in the circuit court. Since R.S. and J.P.J., the supreme court has not spoken on the issues involved here.

The State argues that the holding in J.P.J. negates any complaint by the minor as to the lack of notice to the father here because that issue was not raised in the trial court. We cannot agree. Waiver was applied in J.P.J. under circumstances where the petition set forth that the whereabouts of the parent were unknown. Here, the petition contained a statement as to the residence of the father.

After the supreme court decision in J.W., various courts, including this court, took a somewhat expanded interpretation of the precedent of J.W. in regard to notice to noncustodial parents. We stated: “Unless a minor shows some significant relationship with a noncustodial parent that is affected by the adjudication, he cannot *** later be heard to complain about lack of notice” to the noncustodial parent. (In re S.W.C. (1982), 110 Ill. App. 3d 695, 698-99, 442 N.E.2d 961, 964; see also In re Stokes (1982), 108 Ill. App. 3d 637, 439 N.E.2d 514; In re Vaught (1981), 103 Ill. App. 3d 802, 431 N.E.2d 1231.) The State takes the position here that the unserved father was not a custodial parent of the minor and did not have a close relationship with the minor. Citing the above cases, the State contends the court properly proceeded without service on the father.

Mostly because of hearsay information in the probation officer’s report presented for the dispositional hearing, the record does indicate the father, who was divorced from the mother when the minor was three years old, was not close to the minor and did not have custody of him. However, we do not interpret R.S. to allow a failure to serve a parent whose name and address are known even where the parent has no custody or close relationship with the minor. The R.S. opinion gives little indication of the relationship of the minor to the mother, who had not been served. However, the court did say that, regardless of whether she was an indispensable party, statutory notice to her was required because of the availability of her address.

The dispute as to whether failure to serve a parent entitled to service deprives the court of subject matter jurisdiction is not an issue here because, as in R.S., the judgment is being attacked directly and not collaterally. The issue was raised for the first time on appeal. The R.S. opinions in the appellate and supreme courts give no indication whether question of service on the absent parent was ever raised there in the trial court. Yet, even the supreme court minority, who found the failure of service not to be jurisdictional, agreed the failure of notice to the mother was reversible error and deemed the error to be preserved.

In the case of In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501, contention was also made that the court could not properly proceed because the minor’s custodial mother was not served. However, the mother had actual notice and appeared at the adjudicatory hearing. The supreme court concluded that the rights of the minor were properly protected. Similarly, in the case of In re R.R.S. (1988), 118 Ill. 2d 544 (supervisory order), citing J.W., the supreme court reversed our decision in In re R.R.S. (1987), 160 Ill. App. 3d 548, 514 N.E.2d 192, where we had set aside an adjudication of delinquency where the minor was not served with process before the adjudicatory hearing but had appeared at the adjudicatory hearing and was represented by counsel.

Here, the unserved father did appear, but unlike the mother in J.W. and the minor in R.R.S., the unserved father did not appear at the adjudicatory hearing but later at the dispositional hearing. If the issue in regard to the father was merely one of obtaining personal jurisdiction over him, perhaps his later appearance would satisfy that question. However, according to the majority opinion in R.S., the service upon or appearance of a parent determines subject matter jurisdiction. (R.S., 104 Ill. 2d 1, 470 N.E.2d 297.) If that is so, the circuit court did not have subject matter jurisdiction to enter the adjudicatory order and that jurisdiction could not be obtained subsequently. Even if the issue is only one of error, as contended by the R.S. minority, the lack of service on or process of the father at the adjudicatory hearing would render the adjudicatory order erroneous and subject to attack on the direct appeal. The R.S. court indicated that the primary purpose of affording the parents an opportunity to be present at significant juvenile delinquency proceedings is the aid the parent can give to the minor. That aid cannot be supplied by a subsequent appearance.

Accordingly, under the precedent of R.S., we reverse the adjudicatory and dispositional orders in this case and remand the case to the circuit court of Champaign County for further proceedings.

Reversed and remanded.

KNECHT, J., concurs.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

As pointed out by the majority, the minor’s natural father was listed on the petition as respondent, his address was known but he was never served with a copy of the petition. It also should be pointed out that he is a noncustodial parent. The adjudicatory hearing held on May 25, 1988, provided for a dispositional hearing, and notices were served on both the mother and father of the dispositional hearing set for June 23, 1988, and they were present for that hearing. The father never objected to the prior proceedings in this case and cannot now object and, likewise, the minor cannot object for the failure of the father to have been served with the original petition.

It is not a question of jurisdiction. There was subject matter jurisdiction, and the question is whether the failure to serve the father with the delinquency petition is error such that the trial court should be reversed. It was not.

In In re R.R.S. (1987), 160 Ill. App. 3d 548, 514 N.E.2d 192, rev’d (1988), 118 Ill. 2d 544, 521 N.E.2d 864 (supervisory order), where the minor was not served with a copy of the delinquency petition until after the adjudication, this court found that the minor could not enter his appearance, and personal jurisdiction of the minor could only be obtained by service of process, and that the circuit court’s order was void as to the respondent minor. The supreme court in a supervisory order reversed our decision in R.R.S., citing In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501. In J.W., it was found that the adjudication of delinquency was not defective for failure to serve the minor’s mother where she had actual notice and appeared without objection.

This court stated in People v. Land (1988), 169 Ill. App. 3d 342, 350, 523 N.E.2d 711, 715:

“Consequently, where a juvenile, or any named respondent, appears before the court and participates in proceedings, he waives the formality of service of process and voluntarily submits to the jurisdiction of the court.”

In the case before us, the adjudicatory hearing was held on May 25, 1988, the father not having received notice. However, a supplemental petition charging aggravated battery was filed on June 6, 1988, and the father served with a copy of the supplemental petition and summons on June 9, 1988, set for a hearing on June 22, 1988. Nothing appears to have happened on June 22, 1988, but on June 23, 1988, the mother, father, and minor were before the court. The court stated that they were there for a dispositional hearing as to the adjudication on May 25, 1988, and at the conclusion of the hearing, the minor was committed to the Department of Corrections. The charge which was filed in the supplemental petition of June 6,1988, was then dismissed.

Here, we have the father before the court for a dispositional hearing; he makes no objection to any prior hearings wherein he was not present; the probation officer’s report shows that the father did not have a significant involvement until the last few weeks before the hearing of June 23, 1988; and S.L.S., represented by a guardian ad litem, did not object. S.L.S. cannot now complain.

Consistent with our decision in Land, the supreme court’s supervisory order in R.R.S., and the supreme court’s decision in In re J.P.J. (1985), 109 Ill. 2d 129, 485 N.E.2d 848, the trial court should be affirmed.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN WARREN EVELAND, Defendant-Appellant.
    Fourth District
    No. 4—88—0427
    Opinion filed March 23, 1989.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Brett Irving, State’s Attorney, of Pittsfield (Kenneth R. Boyle, Robert J. Biderman, and Michael K. Blazicek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On March 31, 1988, defendant John Warren Eveland was convicted by a jury in the circuit court of Pike County of the offense of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — l(aXl)) as the result of the death of his daughter, H.E. On June 10, 1988, defendant was sentenced to a 45-year term of imprisonment. Defendant appeals.

Defendant’s sole argument is that the trial court committed reversible error by not granting a mistrial when evidence of prior unrelated criminal conduct allegedly perpetrated by the defendant against his family was testified to by one of the State’s witnesses.

PACTS

The undisputed evidence clearly establishes H.E., a 2-year-old, 33-inch tall, 24-pound girl, died on December 14, 1987, as a result of a beating which occurred that morning. She had been beaten with a belt, a wire hanger, and a toy guitar, none of which blows caused the fatal injury. She had suffered a nonfatal head injury. Death was the result of, probably, a single severe blow by a blunt object to the abdomen which tore apart her liver and fractured one left rib and one right rib. The death-causing injuries could not have been caused by a spanking.

The events of the morning leading up to the fatal injury to H.E. were basically related by two witnesses, her mother, Melinda Eveland, and her father, the defendant.

According to Melinda Eveland, on December 14, 1987, Melinda and defendant were living together in Pittsfield, Illinois, with their two children, T.E., a son three years old, and H.E., a daughter recently two years old. Melinda and defendant arose around 9 a.m., at which time both children were in the living room, in their pajamas, watching television. It was snowing, and defendant told Melinda to go to Wal-Mart and obtain a cover for their boat, which was parked in the backyard of the residence property. Melinda was hurried by defendant to make the trip to Wal-Mart and did not completely dress for the day. She went directly to Wal-Mart, purchased the tarp, and returned home, entering the kitchen door. According to Melinda, defendant came running at her in anger and said: “If you ever leave me with a mess like this, I swear I’ll kill you.” Melinda ended up on the floor by falling, being shoved, or pulled down.

Melinda got up from the floor and went into the living room, and found H.E. nude, partially on the floor and partially on a cushion, lying on her stomach. She pulled H.E. up, noticed a large bruise over an eye, and took her to her bed in the children’s room, covering her with a blanket. T.E. was in the room picking up his toys and appeared scared. H.E.’s eyes were opened, and she said, “Mommy, Mommy,” to Melinda. Defendant came into the room and said H.E. had to get up and pick up her toys, just like T.E. Melinda tried to get H.E. to stand, but H.E.’s legs were limp.

Defendant directed Melinda to pick up the mess in the bathroom, and she left the children’s bedroom with H.E. lying on the bedroom floor. Melinda stated she heard defendant say, “I hate this little bitch,” and saw him raise his bare foot “[mjaybe knee high.” He was standing over H.E., and Melinda heard a thud that was not consistent with the sound of a foot hitting the floor. Defendant was very angry, and Melinda, without defendant’s awareness, obtained her coat and decided to leave the residence. She heard bath water running, and heard defendant say, “You’re going to take one too.” As she was leaving, she heard a splash and a thud.

Melinda left the house, driving her automobile to defendant’s mother’s home, could not find her mother-in-law, but later met her mother-in-law while driving on one of the streets in Pittsfield. After talking to her mother-in-law, both women eventually proceeded to the police station where Melinda talked to Officer Floyd Moss, who soon left for the Eveland home. A few minutes later, the police dispatcher told Melinda to go to the hospital. After arriving at the hospital, she was told H.E. was dead.

Melinda had bathed H.E. on the evening of December 13, and the only bruise she was aware of was one on H.E.’s temple, which was different from the one she saw over H.E.’s eye that morning. At the hospital, defendant told Melinda H.E. had fallen in the bathtub.

Melinda is five feet tall and weighs 98 pounds.

Defendant testified he arose on December 14, 1987, saw snow coming down, and stated that he “asked” Melinda to go and get a tarp for the boat. “There was an argument” — “just verbal.” While Melinda was gone, he “swatted” H.E. a couple of times for taking things off the Christmas tree. He then started to dress, found H.E. again taking “stuff” off the tree, “swatted her on the bottom a couple times,” picked her up, took her to the bathroom, and noticed her dirty diaper. He removed the diaper, put it in the sink, started to run bath water, told H.E. to stay there, and went for T.E. Upon returning, he “noticed that [H.E.] had thrown her dirty diaper into the bathtub.” He wrung out the diaper in the stool, and took it to the kitchen trash can. Melinda walked in, having returned with the tarp. Defendant denies any confrontation when Melinda came into the house and denies Melinda fell to the floor. He did ask her to talk with H.E. He stated, “I was just a little upset.” Defendant testified he saw Melinda go pick up H.E., and “raise her arm,” assuming for disciplinary purposes. He went to the bathroom to clean the tub, taking “approximately maybe ten minutes or so.” Defendant came into the bedroom. “[Melinda] seemed to be upset and seemed to be out of breath,” and had covered H.E. in her bed. Defendant testified he “told [Melinda] that she couldn’t put [H.E.] to bed like that because [he] knew that she was still dirty.” He uncovered H.E, picked her up, carried her to the bathroom, and sat her in the tub. He noticed nothing unusual about H.E. except she was “very quiet.”

Defendant left the bathroom, found Melinda had left, and the car was gone. He went to get T.E. and “heard a bang on the bathtub as if something had fallen or hit on the side of the tub.” He found H.E. sitting in the tub in a “daze[d] or woozy” condition. He noticed “a mark over her left eye.” He picked her up, dried her and, being concerned, attempted to call his mother and others for assistance. Eventually, defendant took H.E. out to his jeep so he could take her to the hospital. Officer Moss arrived at this time and took defendant, who was crying and emotional, together with T.E. and H.E., the short distance to the hospital.

The evidence indicates, for all practical purposes, H.E. was near death or dead upon arrival at the hospital.

ALLEGED ERROR

On cross-examination of Melinda Eveland, an attempt was made to impeach her testimony relating to defendant’s stomping on H.E. by showing she did not mention that fact and the “I hate this little bitch” statement in initial statements to the authorities. Jill Sheppard, attending nurse in the emergency room at the time of H.E.’s admission, was called as a witness by the State, in part, for the purpose of relating Melinda’s statement at the hospital on December 14, 1987, that “[defendant] was so mad at [H.E.] that he was beating her, he stomped on her, and threw her in a cold bathtub.” In the course of obtaining this testimony, after objections to the leading nature of the State’s questions by defense counsel, the following question by the State, answer by Nurse Sheppard, and motion by defense counsel took place:

“Q. [Prosecutor]: And what I would like for you to do now is limit yourself to any more detailed description of anything she claimed [defendant] might have done on the morning of December 14, 1987. Tell us what, if anything, of that variety she told you about.
A. [Nurse Sheppard]: She told me that he did this. She told me directly that he had beat her several times and that he had spanked the kids several times with a belt.
[DEFENSE COUNSEL]: Objection, Your Honor. Ask for mistrial.”

Following the motion for mistrial, the trial judge excused the jury, heard arguments, indicated his concern with this statement of prior violence, and eventually recalled the jury into the courtroom, sustained the objection to the statement, and admonished the jury to disregard the last question and answer. He emphasized the answer was not proper, and asked the jurors to wipe it from their minds. He emphasized the jury’s oath to follow the court’s orders and instructions.

THE LAW

The general rule relating to the admissibility of evidence of other crimes is amply described in People v. Wallace (1983), 114 Ill. App. 3d 242, 248-49, 448 N.E.2d 910, 915, as follows:

“Generally, evidence that the accused committed other crimes unrelated to the offense charged is inadmissible if presented merely to establish his propensity to commit crimes (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200), for such evidence may ‘overpersuade the jurors and cause them to convict the defendant as an “evil person” worthy of punishment rather than because he is guilty of the crime charged’ (People v. Butler (1978), 63 Ill. App. 3d 132, 139, 379 N.E.2d 703, 708).”

Erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal (People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, 244):

“In such cases, a conviction will be upheld only if the properly admitted evidence is so overwhelming that no fair minded jury could have voted for acquittal (see People v. Tranowski (1960), 20 Ill. 2d 11, 17, cert. denied (1960), 364 U.S. 923, 5 L. Ed 2d 262, 81 S. Ct. 290) or, to put it another way, only if the record affirmatively shows that the error was not prejudicial (People v. Romero (1977), 66 Ill. 2d 325; People v. Stadtman (1974), 59 Ill. 2d 229).” Lindgren, 79 Ill. 2d at 141, 402 N.E.2d at 244.

See also People v. Carlson (1982), 92 Ill. 2d 440, 449, 442 N.E.2d 504, 508.

Generally, a prompt objection to an improper answer which is sustained cures the error, but the proper inquiry is whether the defendant was deprived of a fair trial. (People v. Cunningham (1984), 130 Ill. App. 3d 254, 265, 473 N.E.2d 506, 515.) Evidence or statements of prior or subsequent misconduct can strongly tend to lessen the credibility of a defendant, and striking it from the record might not eradicate it from the minds of the jury. See People v. McCray (1978), 60 Ill. App. 3d 487, 490, 377 N.E.2d 46, 48; People v. Scalisi (1926), 324 Ill. 131, 144, 154 N.E. 715, 720.

In the present case, we find Nurse Sheppard’s statement of prior violence does not warrant reversal because the record affirmatively shows the error was not prejudicial. (Lindgren, 79 Ill. 2d at 141, 402 N.E.2d at 244.) This is based on our conclusion that no fair-minded jury could have voted for acquittal regardless of the statement.

The evidence clearly shows H.E. died as a result of a severe blunt blow fracturing two ribs and tearing apart her liver. There is no evidence that the mother inflicted such a blow. The whippings did not cause the injury. The head injuries did not cause the death. All of the mother’s actions, running from the house, seeking help from her mother-in-law and, ultimately, from the police, strongly substantiate her testimony of the defendant’s violent conduct. Such conduct is not consistent with a person who has not been threatened. The argument that a fall in the tub caused the injury is inconsistent with all of the medical testimony. The testimony concerning the blow by defendant’s foot to the small child’s abdomen is the only reasonable testimony consistent with the medical evidence. Melinda Eveland’s testimony of what occurred is the only evidence consistent with the uncontroverted physical facts.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LAWLER, Defendant-Appellant.
    Fourth District
    No. 4—88—0268
    Opinion filed March 23, 1989.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Larry R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and William P. Ryan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant was charged with one count of aggravated criminal sexual assault. (III. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).) The defendant was 25 years old at the time of the incident and the victim was 12 years old. After a jury trial, the defendant was convicted and sentenced to 15 years’ imprisonment. Defendant appeals, alleging the trial judge abused his discretion in finding the complaining witness competent to testify. Defendant also appeals the trial court’s order assessing costs of a transcript on appeal against his bond proceeds.

The complaining witness, D.Y., was a mildly mentally retarded girl, 13 years old at the time of trial. On January 24, 1988, immediately before trial, a hearing was held to determine her competency to testify. She knew her name, age, address, grade in school, and the names and ages of the other children in her household. She told the prosecution she had promised to tell the truth when sworn in and said she would. She understood it was bad to tell a lie in the courtroom. She replied, “No, I don’t,” to the question, “[D]o you know the difference between when somebody tells the truth and somebody tells a lie?” She said she did not know if it would be a lie if defense counsel said the judge had a hat on. The witness also said she had trouble remembering things and could not recall the previous Halloween, Christmas, and what she did on her birthday, which was 21k weeks ago.

The judge found the witness was responsive to questions and communicated well, knew the meaning of the oath within the requirements, but characterized her recollection as “not good.” His impression was the witness definitely had not been coached. The judge found her competent to testify and said her competency to recall the occurrence could be brought out in cross-examination.

At trial, D.V. testified she lived with her parents, three brothers, one sister, Jolene, a friend of her mother’s, and Jolene’s three children. She said the defendant had touched her “private part” with his “private part” before Christmas. The incident had occurred in the bedroom of her house when the defendant was living there. K.R., Jolene’s eight-year-old daughter, and the victim’s 11-year-old sister were also in the bedroom at that time. The victim did not at first tell anyone about the incident but Jolene's daughter did. D.V. then told “the cops” and a doctor. On cross-examination, D.V. stated she had trouble remembering the incident but then stated she could remember.

Virginia Vogel, the victim’s stepmother, testified D.V. was mildly mentally disabled. D.V. slept in a bedroom with her 11-year-old sister, who was also mentally retarded, and with K.R., Jolene’s daughter. The defendant, David Lawler, Virginia Vogel’s 25-year-old cousin, lived in the household during October. On October 23, 1987, the defendant received a check and said he was “going out partying.” Mrs. Vogel left the house at 6 p.m. and when she returned at 8 p.m. the defendant was gone. On November 4, 1987, K.R. told her something unusual had happened. After talking to D.V., Virginia Vogel reported the assault to the police.

Police officer Michael Rearden testified he had spoken with D.V. on November 4 and the girl said she had been sexually assaulted.

K.R., Jolene’s daughter, testified she was eight years old and in the second grade. During the night, about a week before Halloween, she and D.V. were asleep on a bunk bed in their bedroom. Lawler came into the bedroom and woke K.R. up. She asked where D.V. was. The defendant said D.V. was in another bed in the bedroom. The defendant then went over to the other bed, took off his shorts and got into bed with D.V. He was naked. K.R. later told D.V.’s mother what had happened.

A physician, Dr. Terry Balagna, testified he examined D.V. on November 4, 1987, and found she had a perforated hymen. He could not tell when it had been perforated or the cause. The perforation could have been caused by an adult male penis.

The defendant, David Lawler, stated he did not have sex with D.V. on the night in question. He went to three bars on the evening of October 23, had one drink at each bar, and then went to two restaurants with a friend named Kevin. He got home at daylight. He stated he did not get drunk and denied making any incriminating statements to the police. Police officer Diane Beggs testified she questioned the defendant on the evening of November 5, 1987. At first the defendant denied the allegations of sexual assault. Then, about midway through the interview, the defendant said he had sexual intercourse with the ■victim. The two other girls were also present in the bedroom. He said he had been very drunk that night. In rebuttal, the officer stated Lawler never mentioned going to the restaurants with a person named Kevin. Defendant told Officer Beggs he had met an out-of-town girl at a bar and had sex with her. He stated he had this girl on his mind when he returned to the girls’ bedroom and had sexual intercourse with D.V. Toward the end of the interview, the defendant began crying and said he wanted to tell D.V.’s mother he had not meant to hurt her stepdaughter when he had intercourse with her and he was sorry.

The jury returned a verdict of guilty and the defendant was sentenced to 15 years’ imprisonment. At the sentencing hearing, the defendant said he wanted to appeal. The judge ordered the cost of the transcript be paid from the balance of Lawler’s bond proceeds.

A determination of competency by a trial judge is not to be set aside unless it amounts to an abuse of discretion or is based on a manifest misapprehension of some legal principle. People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 11-12, cert. denied (1967), 388 U.S. 920, 18 L. Ed. 2d 1366, 87 S. Ct. 2141.

Chronological age is not the determining factor in competency hearings. The proper inquiry is whether the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth. People v. Garcia (1983), 97 Ill. 2d 58, 75, 454 N.E.2d 274, 280.

Of the four criteria for determining competency of a witness, the trial judge cited one factor of being of some concern — the witness’ ability to recollect. Although D.V. did recall the names and ages of the other children in her household and the date of her birthday, these are not events. She could not remember what she did on Halloween, Christmas, or her birthday. She did remember her birthday was several weeks previous. However, the witness exhibited no difficulty remembering the occurrence of October 24, 1987.

In In re A.M.C. (1986), 148 Ill. App. 3d 775, 780, 500 N.E.2d 104, 107, a five-year-old victim of aggravated criminal sexual assault was, upon questioning, unable to demonstrate a temporal awareness of time, days, dates, and holidays. The appellate court said this failing did not appear to hurt her description of the incident.

Even though the witness’ ability to remember events appeared questionable to the trial judge after the competency hearing, the modern tendency is to permit a questionable witness to testify and allow this testimony to be impeached. (People v. Seel (1979), 68 Ill. App. 3d 996, 1006, 386 N.E.2d 370, 378.) The defense was not able to impeach D.V.’s testimony. In fact, it was corroborated in part by the testimony of J.R. The only contradiction of D.V.’s testimony was the defendant’s uncorroborated statement that he was out till daylight on the night in question. Also, the witness did not seem to be confused or unable to answer the questions in testifying during trial about the occurrence.

In the competency hearing, the witness gave contradictory answers to questions concerning her ability to appreciate truth and falsehood. The prosecutor asked her if she knew the difference “between when somebody tells the truth and when somebody tells a lie.” She replied, “No, I don’t.” The witness may have believed the prosecutor was asking if she could tell whether or not a person is lying. The witness said she did not know if it was good or bad to tell a lie but later stated she had promised to tell the truth when sworn in and she would tell the truth. When asked if it was important to tell the truth in a courtroom, she replied “yes.” The record reflects she may have been confused when called on to answer questions with a “yes” or “no.” She may also have had trouble answering hypothetical questions — “If I said the judge had a hat on would that be true?”

The defendant argued D.Y. testified she knew the difference between a lie and the truth only when the prosecution asked leading questions. In People v. Spencer (1983), 119 Ill. App. 3d 971, 979, 457 N.E.2d 473, 485, an adult complaining witness was mute, did not know standard sign language, and was mildly to moderately mentally retarded. Her testimony, using gestured responses and anatomically correct dolls, was upheld. In that case, the court held the allowance of leading questions was within the discretion of the trial judge. The court found that given the witness’ physical disability, there was no abuse of discretion in allowing leading questions. See also People v. Bell (1985), 132 Ill. App. 3d 354, 362-63, 476 N.E.2d 1239, 1245, cert. denied (1985), 474 U.S. 852, 88 L. Ed. 2d 127, 106 S. Ct. 153 (mentally retarded adult).

In Spencer (119 Ill. App. 3d at 977, 457 N.E.2d at 478), the court noted it was difficult to tell whether the mute and mentally retarded witness was answering the questions or expressing her agreement with the idea contained therein. The court ruled this problem went to her credibility, not her competency to testify. In People v. Daniels (1987), 164 Ill. App. 3d 1055, 1075, 518 N.E.2d 669, 683, the 10-year-old witness said she did not know what an oath was and did not know what the judge or her mother would do to her if she lied. She was found competent to testify because she said she knew to tell the truth meant to tell what happened. Also, there was no evidence the witness lied on the stand.

In a recent fourth district case, People v. Born (1987), 156 Ill. App. 3d 584, 588-89, 509 N.E.2d 125, 127, a four-year-old girl was allowed to testify. She had responded she did not know what it meant to answer questions truthfully but then stated she knew what it meant to tell the truth and what it meant to tell a lie. The court found an imperfect response does not invalidate a finding of competency in light of the totality of the responses. Instead of characterizing the witness’ answers as contradictory, the court said this confusion “evinces instead the minor’s ability to relate to basic concepts of truth and falsehood simply phrased, as opposed to a slightly more complex query.”

In the instant case, the witness may well have given ambivalent answers as to knowledge of truth and falsehood. However, the record reflects she did respond she would tell the truth, the truth being to tell what happened, when asked in an understandable manner. The witness may have had trouble answering hypotheticals. She may also have had trouble understanding the content of some questions concerning truth and falsehood. The judge said the witness had definitely not been coached. There is ample testimony to support the trial judge’s finding of D.V.’s competency.

Since the controlling factor is the degree of intelligence, not the child’s chronological age, it is irrelevant D.V. did not possess the intelligence of an average 13-year-old. Moreover, the trend of recent cases is to allow very young children to testify. (People v. McNichols (1986), 139 Ill. App. 3d 947, 952-53, 487 N.E.2d 1252, 1256-57 (witness was four at the time of the offense and five at the time of trial).) The proper inquiry was what intelligence she did possess and whether she met the aforementioned criteria for determining competency of a witness.

Considering the totality of the complaining witness’ testimony and the recent trend to allow testimony, we hold the trial court did not abuse its discretion in allowing the testimony to stand.

Even if the complaining witness had not testified, the overwhelming weight of the remaining evidence would still support the verdict. There is the testimony of K.R., the eight-year-old who is not mentally retarded and who witnessed the defendant get into bed naked with the victim. There is also the testimony of the physician, who stated the victim’s hymen had been perforated at some time, such perforation not inconsistent with sexual intercourse. There is also the testimony of Officer Beggs, who stated the defendant had confessed to sexual intercourse with the victim.

We now turn to defendant’s argument that the money remaining from his bond should not have been applied to the cost of a transcript on appeal. Supreme Court Rule 607(b) provides a free transcript shall be made available to an indigent defendant who is entitled to an appeal. (107 Ill. 2d R. 607(b).) It does not address the issue of whether the bond proceeds may be applied to the cost of a transcript for an indigent. This issue has been recently addressed by the fourth district in People v. Bond (1989), 178 Ill. App. 3d 1020, where the court said the defendant was entitled to proceed under Rule 607(b) and the trial court improperly assessed the cost of the transcript against the defendant. Bond did not address the parties’ arguments in the instant case, so a discussion of this issue is still in order.

The allowance and recovery of costs, being unknown at common law, is entirely statutory and must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197.) The cases cited by the defendant refer to the common law rule that the costs of criminal prosecution are not assessed against the defendant. However, the instant case concerns the cost of appeal — not the cost of the trial court proceedings. Therefore, the strict construction rule would not necessarily apply in this case. The general rule is that all provisions shall be liberally construed in order to effect the intent of the legislature. (Ill. Rev. Stat. 1987, ch. 1, par. 1002.) This rule of construction also applies to supreme court rules. 107 Ill. 2d R. 2(a).

The supreme court specifically provided for free transcripts to indigents in Supreme Court Rule 607(b). In Rule 607(a) (107 Ill. 2d R. 607(a)), the supreme court allowed for a statutory exception for compensation and reimbursement for expenses of an appointed attorney. (See Ill. Rev. Stat. 1987, ch. 38, par. 121 — 13.) (This was held constitutional and not a violation of due process in People v. Kelleher (1983), 116 Ill. App. 3d 186, 189-91, 452 N.E.2d 143, 145-47.) Rule 607 makes no exception for applying bail money to the cost of the transcript. The supreme court did make an exception for attorney fees. Even if the rule need not be strictly construed, it is in keeping with the supreme court’s intent to adhere to the rule unless there is an expressed exception allowed.

The common law rule that the defendant in criminal cases should not bear costs in trial court proceedings evinces a general policy favoring statutory exceptions only. However, we are not holding that any fees or costs imposed on a criminal defendant on appeal must be statutorily imposed.

In People v. Nicholls (1978), 71 Ill. 2d 166, 176, 374 N.E.2d 194, 198, the court acknowledged some inconsistency in allowing bond proceeds to be applied to attorney fees and not to the cost of an indigent’s transcript. Finding no legislative intent to the contrary, the court held a reasonable construction of the two rules compelled the assessment of costs for attorney fees. Conversely, a reasonable construction of the two rules would indicate the supreme court did not intend for bond proceeds to be applied toward a transcript on appeal.

Citing People v. Nicholls (1978), 71 Ill. 2d 166, 177, 374 N.E.2d 194, 198, the State argues under section 110 — 7(h) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7(h)), the deposit of 10% of the bail constitutes a fund from which a judgment for fíne and costs against the defendant may be satisfied, regardless of whether or not the defendant personally put up the money. The problem with this argument is that the fee for the transcript is not a fíne or cost imposed as a result of a judgment against the defendant.

The defendant also argues any statute mandating that a criminal pay the cost of a transcript would conflict with Rule 607(b) and would, therefore, be unconstitutional as a violation of the separation of powers doctrine. However, as the defendant notes, the State has made no argument there is such a statute. Furthermore, the defendant raises this argument for the first time in his reply brief and, therefore, it is waived. Pinsker v. Kansas State Bank (1986), 142 Ill. App. 3d 216, 222, 491 N.E.2d 826, 829; 107 Ill. 2d R. 341(e)(7).

Because the trial court lacked authority to seize the bond proceeds to pay for the transcript, the defendant did not waive this issue by failing to object at trial court. (Compare People v. Hodges (1983), 120 Ill. App. 3d 14, 16, 457 N.E.2d 517, 518-19 (defendant does not waive right to challenge assessment of costs by failing to object).) The trial court improperly assessed the defendant for the cost of the transcript.

We affirm the judgment of conviction and sentence entered in the circuit court of Macon County. We reverse the order to pay the costs of the transcript from the defendant’s bond proceeds and remand to the court with instructions to refund to the defendant the sum of $48.

Affirmed in part; reversed in part and remanded.

McCULLOUGH, P.J., and SPITZ, J., concur.


author: JUSTICE LUND JUSTICE GREEN,

text:
      In re MARRIAGE OF RANDY GUSTAFSON, Petitioner-Appellee, and PAULA GUSTAFSON, Respondent (Charles Robert Stone et al., Intervenors-Appellants).
    Fourth District
    No. 4—88—0906
    Opinion filed April 6, 1989.

      Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellants.
    Ronald E. Boyer, of Boyer & Thompson, Ltd., of Watseka, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

The circuit court of Ford County denied the petition of Charles Robert Stone and Mildred Helen Stone for intervention and custody, under the authority of section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)), in a custody modification proceeding, wherein petitioner Randy Gustafson, former son-in-law of the Stones, was seeking custody of his daughters, Shannon Michelle Gustafson and Sarah Lindsey Gustafson, from respondent Paula Gustafson, his former wife. The Stones appeal.

This is a case of first impression. Section 601 of the Act provides, and has provided since the October 31, 1977, effective date of the Act, as follows:

“Jurisdiction — Commencement of Proceeding, (a) A court of this State competent to decide child custody matters has jurisdiction to make a child custody determination in original or modification proceedings as provided in Section 4 of the Uniform Child Custody Jurisdiction Act as adopted by this State.
(b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
(1) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or
(ii) for custody of the child, in the county in which he is permanently resident or found; or
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.
(c) Notice of a child custody proceeding shall be given to the child’s parents, guardian and custodian, who may appear, be heard, and file a responsive pleading. The court, upon showing of good cause, may permit intervention of other interested parties.” III. Rev. Stat. 1987, ch. 40, pars. 601(a), (b), (c).

The Stones contend they have standing to intervene and seek custody under section 601(bX2), arguing that respondent no longer has physical custody of Shannon and Sarah, having transferred physical custody to the Stones. They further contend the dissolution judgment filed June 10, 1983, when awarding custody to respondent, effectively deprived petitioner of physical custody, although granting reasonable visitation rights and finding both father and mother fit parents. The Stones alternatively contend petitioner gave up physical custody status by acquiescing in the Stones taking physical custody.

Courts have held that grandparents do not have standing under section 601(bX2) where a custodial parent dies while living, together with the child, at the grandparents’ residence, and where the noncustodial parent has provided support and visitation. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150; In re Custody of O’Rourke (1987), 160 Ill. App. 3d 584, 514 N.E.2d 6.) Hearings have been required when there was some doubt whether a parent had surrendered physical custody, with the burden placed upon the nonparent intervenor to establish the required allegation of no parent having physical custody. In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 527 N.E.2d 131; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 524 N.E.2d 728.

A custody dispute litigated under section 601(bX2) would be decided upon the best interests of the children. If the Stones were to seek custody under the provisions of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.) or the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.), they would be burdened with a comparatively strict standard of those acts in contrast to the best interests test. See Santa Cruz, 172 Ill. App. 3d at 782, 527 N.E.2d at 135.

The facts presented by the record are relatively simple. Shannon, age 12, and Sarah, age 7, are the children of petitioner and respondent. A Ford County circuit court dissolution judgment, filed June 10, 1983, awarded custody of the two girls to respondent, subject to petitioner’s right of reasonable visitation. Both parents were found to be fit parents. Petitioner was to pay $165 per month per child for child support. This amount was increased to $180 per month per child as of January 1, 1987, pursuant to an order entered October 21,1987.

Mildred Helen Stone and Charles Robert Stone are the parents of respondent. Respondent has not lived with her parents since graduating from high school. On August 15, 1988, respondent delivered Shannon and Sarah to the Stones in Paxton, Illinois, saying she could no longer care for them. The two girls began living with the Stones, with the Stones providing for them. Petitioner, who lives in Gilman, Illinois, has paid support and, prior to August 15, exercised his visitation rights. On October 11, 1988, after discovery of the transfer by respondent, petitioner filed a petition for modification of custody. The Stones, in turn, filed a “Petition to Intervene and for Custody” on October 19, 1988. Following a hearing on November 7, 1988, the trial court, on November 17, 1988, entered an order denying the Stones standing under section 601(b)(2), saying, in part:

“In this case, the mother was awarded custody in the marital settlement agreement adopted by the court and incorporated in the judgment of dissolution entered on June 10, 1983. She lived separately from her parents and had the children with her until late August, 1988, when she told her parents she could not care for them and asked them to take care of the children. At that time the children moved into their grandparents’ home and were enrolled in the fall semester of public school from that address. On October 11, 1988, the father filed a petition seeking, inter alia, a change of custody to him.
The mother had legal custody from June 10, 1983, forward. Legal custody cannot be changed except by court order. The grandparents came into physical possession of the children through the fortuitous occurrence of the mother leaving them there. This is exactly the kind of circumstance the cases indicate the statute does not extend standing to. A party cannot come into possession of the children by abduction or collusion and thus obtain standing. Such a rule would encourage that conduct and discourage the statutory intent.
There may well be circumstances where one parent leaves children with third parties and the third parties obtain physical custody through that act. Perhaps the whereabouts of the other parent is unknown, or the other parent is incapacitated, or dead, or simply unwilling to accept custody. Under those circumstances the third party could well be found to have physical custody and thus have standing under the statute to petition for legal custody. Intervening petitioners have offered no evidence that this is that case.
The petition for leave to intervene is denied.”

Regardless of the Stones’ allegation, the evidence does not indicate petitioner acquiesced in, or agreed to, the transfer of the two girls to the Stones.

On appeal, we are confronted with defining “physical custody” as it is used and intended to be used under section 601(b)(2).

Our supreme court’s only pronouncement relating to section 601(b)(2) standing is set forth in Peterson (112 Ill. 2d 48, 491 N.E.2d 1150), where the dissolution judgment found both parents fit, but awarded custody to the mother. The mother, while terminally ill, lived with her parents, who assisted in the care of the child of the parties. The father regularly exercised his visitation and lived in the same block. Upon the mother’s death, the grandparents sought custody, arguing standing under section 601(bX2). The supreme court held that the father had physical custody of the child upon the mother’s death and denied the grandparents’ standing claim.

The Peterson decision, at first blush, would appear to repudiate the Illinois decisions holding that upon the death of the custodial parent, the noncustodial parent is not immediately vested with custody. (See Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140; Mackie v. Mackie (1967), 88 Ill. App. 2d 61, 232 N.E.2d 184.) However, in Milenkovic, the custodial mother was murdered, allegedly by the father, and the children were placed in the temporary custody of a nonparent. In Mackie, the mother and child lived with the grandparent from June 1960 until the mother’s death on October 5, 1964, and the child continued to live with the grandmother thereafter. From June 1960 until October 1964, the father had only seen the child on one occasion and, then, by chance.

The second district opinion in In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 510 N.E.2d 555, appeared to carry on the Milenkovic and Mackie rule, while recognizing the Peterson case. The McCarthy court said:

“To have standing under section 601(b)(2), petitioners must prove that, upon the death of Yvonne McCarthy on July 12, 1985, Nicole and Clayton, Jr., were not in the physical custody of the respondent. It has long been the law in Illinois that the death of a custodial parent after a final divorce judgment has been entered does not automatically revert custody to the surviving parent. (Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 212.) When a divorced custodial parent dies, the court has the power to determine who should have custody of a child even though the legal custody of the child is not in anyone immediately following the death of the legal custodian. (93 Ill. App. 3d 204, 212.) This reasoning arises from the well-established concept that the best interests of the children are the foremost considerations in the custody determinations. Ill. Rev. Stat. 1985, ch. 40, par. 602; In re Wheat (1979), 68 Ill. App. 3d 471.
In the instant case, respondent did not have physical custody of the minor children immediately after Yvonne’s fatal accident. Respondent sought physical possession by filing a petition for custody on July 15, 1985.” (Emphasis in original.) McCarthy, 157 Ill. App. 3d at 383, 510 N.E.2d at 558.

We note the McCarthy court was basically concerned with the father’s 11-month delay in objecting to the maternal grandparents’ and maternal aunt’s intervention under section 601(b)(2). McCarthy reversed the trial court, which had dismissed the intervenors, based upon the Peterson decision.

In O’Rourke, the third district affirmed the dismissal of the maternal grandparents without hearing, where the mother, who had been granted custody by the dissolution judgment, died and the father sought custody. The intervention was sought under section 601(c), but the affirmance used lack of standing under section 601(b)(2) as justification. The O’Rourke court said:

“The final error asserted by the petitioners is that the trial court erred in granting a change of custody to the natural father without any findings of fact as required in contested custody cases. (See In re Custody of Carter (1985), 137 Ill. App. 3d 439, 484 N.E.2d 1175.) The instant case cannot be considered a contested’ custody case once the Dickinsons have been dismissed from the proceeding. The supreme court in Peterson stated that, when the custodial parent dies, the minor child will then be considered to be in the physical custody of the surviving natural parent even though the child is actually staying -with someone else. This is a departure from earlier cases which held that the death of a custodial parent after a divorce judgment had been entered does not automatically revert custody to the surviving parent. (E.g., Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140; Mackie v. Mackie (1967), 88 Ill. App. 2d 61, 232 N.E.2d 184.) In the absence of any indication that the father would not be a fit custodian for his two daughters, we must consider the final order granting custody to him as a confirmation of the change in custody which had already occurred. We hold that order to have been properly entered.” O’Rourke, 160 Ill. App. 3d at 587-88, 514 N.E.2d at 8.

The second district decision in Santa Cruz (172 Ill. App. 3d 775, 527 N.E.2d 131) was filed on August 1, 1988, and involved a dispute between the grandmother and the daughter over custody of the daughter’s young child. The trial court’s dismissal of the grandmother’s intervention because of the lack of standing under section 601(b)(2) was affirmed. The Santa Cruz opinion carefully analyzed most, if not all, of the relevant cases and specifically recognized a natural parent’s paramount right to the care, custody, and control of his or her child or children, citing In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231. (See Santa Cruz, 172 Ill. App. 3d at 782, 527 N.E.2d at 135.) The Santa Cruz opinion noted “interestingly” the above-quoted statement from the O’Rourke opinion.

In the present case, we have the custodial parent seemingly surrendering her custodial possession by delivering the child to her parents. We must determine whether the grandparents can seek custody under section 601(b)(2), thus placing the natural father in the position of litigating the custodial issue on the basis of best interests of the children. We note the validity of the trial court’s suggestion when it emphasized the importance of the dissolution court’s sole jurisdiction to change physical custody.

The Peterson case recognizes the inherent paramount right of a natural parent. Logically, a parent determined fit, who has maintained reasonable visitation and interest, should have the same rights whether the parent awarded custody dies or abandons the child or children. In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 545, 440 N.E.2d 1036, 1042, which is referred to in Peterson, states “a natural parent’s superior right to the care, custody and control of his child (Townsend) should not be deprived absent strict compliance with the statutory provisions involved.”

The examination of the transcript of evidence of the November 7, 1988, hearing clearly indicates the Stones rested their claim to standing on the fact respondent had been awarded custody, and she had given up physical custody to them. The position taken was that they had physical custody, and neither parent had physical custody. There was no emphasis on petitioner’s unfitness or acquiescence.

We conclude the wording of section 601(bX2) was not intended to allow the Stones standing under the specific facts of this case. We emphasize that the presence of evidence of unfitness or acquiescence might call for a different conclusion. A decision to the contrary in the present case would be an open invitation for fraud in the custody process. An unfit or erring custodial parent should not be able to encroach upon the superior rights of the noncustodial parent by transferring her physical custody to some otherwise fit third party.

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

Affirmed.

SPITZ, J., concurs.

JUSTICE GREEN,

specially concurring:

I concur in the decision of the majority to affirm and agree with the thorough explanation given in the majority opinion. I concur specially merely to respond to the logical argument of petitioners to intervene that “physical custody,” as described in section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act), means physical custody in the ordinary sense, and the record is clear that neither parent had “physical custody” at times pertinent here. Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).

The problem of statutory interpretation involved here arises because of tension between a very strong public policy of the State and the language of section 602 of the Act. The public policy is that which recognizes the paramount right of natural parents to the care, custody, and control of their children as explained by the majority and as set forth in the case of In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231. The statutory language is that of section 602(a) of the Act which states that in custody proceedings under the Act, “[t]he court shall determine custody in accordance with the best interest of the child.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 602(a).

Accordingly, as the majority points out, persons having standing to proceed under section 601 of the Act can obtain custody of a child by merely proving that the best interests of the child would be served by that custody. Section 602(a)(1) of the Act does state that in making a custody determination, “the wishes of the child’s parent or parents” shall be given consideration (Ill. Rev. Stat. 1987, ch. 40, par. 602(a)(1)), but that statement is insufficient to protect the paramount parental right enunciated in Townsend. Thus, when a parent having legal custody dies (Peterson, 112 Ill. 2d 48, 491 N.E.2d 1150; O’Rourke, 160 Ill. App. 3d 584, 514 N.E.2d 6) or leaves a child with others (Santa Cruz, 172 Ill. App. 3d 775, 527 N.E.2d 131) and the other parent has shown interest in the child and makes a timely request for legal custody, the courts narrowly construe the provisions of section 601(b)(2) which give nonparents standing to seek custody.

If the phrase “physical custody” be given its plain and ordinary meaning, one cannot accurately say that the noncustodial parent obtained “physical custody” of the child upon the death of the custodial parent in Peterson or O’Rourke. Rather, the decisions can only be based upon a theory that, because of the noncustodial parent’s interest in the child and prompt request for custody, he obtained a constructive “physical custody.” Similarly, here, where the father had shown interest in the children and made a request for legal custody in less than two months from the time the mother gave up her “physical custody,” a constructive “physical custody” in the father is implied. This case differs from Santa Cruz, where the conduct of the custodial parent was not deemed to be a surrender of “physical custody,” as the evidence here would indicate an abandonment of her “physical custody.”

Under the strong public policy of this State of protecting the predominate rights of the natural father of these children to his care, custody, and control, he is protected from having to defend in a proceeding where he could be deprived of custody merely because the best interests of the children would be served in the custody of their grandparents. The petition to intervene alleged that the father “was not capable of providing a proper home for the children.” As the majority has stated, if this is so, the children can only be protected by a proceeding (1) under the Juvenile Court Act of 1987 to determine if, upon going into the father’s custody, the children are neglected or abused (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 3), or dependent (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 4); or (2) under the Adoption Act, to determine whether the father is an “unfit person” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)).


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBRA FAY BOLDEN, Defendant-Appellant.
    Fourth District
    No. 4—88—0451
    Opinion filed March 31, 1989.

      Daniel D. Yuhas and Allen H. Andrews, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

The issue in this appeal arises from the decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, where the supreme court held that, absent mitigating circumstances not present here, the giving of Illinois Pattern Jury Instructions, Criminal No. 7.02 (2d ed. 1981) (IPI Criminal 2d) (murder), IPI Criminal 2d No. 7.04 (voluntary-manslaughter — provocation), and IPI Criminal 2d No. 7.06 (voluntary manslaughter — intentional—belief of justification), when used together, constitute “grave error” which is not waived by the failure of the defendant to object to the instruction at trial. Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.

In Reddick, error in those instructions in two cases was considered in the line of direct appeals from circuit courts to appellate courts and then to the supreme court. Here, we consider the effect of combining the IPI murder instruction with the IPI instruction on voluntary manslaughter — intentional—belief of justification — in the context of defendant Debra Fay Bolden’s appeal from a dismissal of her petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1), where relief can only be obtained for violation of constitutional rights. (People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212.) Also, unlike in Reddick, we consider the question after this court held on direct appeal of her conviction that no reversible error resulted from giving the instructions. People v. Bolden (1985), 132 Ill. App. 3d 1047, 477 N.E.2d 1380, appeal denied (1985), 108 Ill. 2d 574.

Defendant contends her post-conviction petition set forth that she was entitled to have her murder conviction and sentence set aside for improper instruction of the jury as we have described because: (1) under Reddick, the error was of constitutional dimension, depriving her of her right to due process; (2) Reddick should be applied retroactively; and (3) our prior decision on direct appeal that the error in instruction was not reversible is not res judicata as to her present rights under the instant post-conviction petition.

After a jury trial in the circuit court of Sangamon County, defendant was convicted of the offense of murder on May 1, 1984. She was subsequently sentenced to a term of 22 years’ imprisonment. Her appeal to this court and our affirmance followed. This court held the giving of the instructions was error for the reasons described in Reddick, which we will explain. However, this court determined the proof of defendant’s guilt, including the proof which negated the existence of the elements which would have reduced the culpability of defendant’s conduct to that constituting voluntary manslaughter, was very strong. The error was held to be harmless.

The instant proceedings were initiated on December 1, 1987, when defendant filed a pro se post-conviction petition in the circuit court of Sangamon County. Counsel was then appointed, and he stood with the pro se petition, which alleged the jury had been improperly instructed as to murder and voluntary manslaughter. After a hearing without evidence being introduced, the circuit court dismissed the petition. This appeal followed.

The Illinois jury instructions in issue here state:

“To sustain the charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of_; and
Second: That when the defendant did so,
[1]he intended to kill or do great bodily harm to
or
[2] he knew that his act would cause death or great bodily harm to_;
or
[3] he knew that his acts created a strong probability of death or great bodily harm to_;
or
[4] he [(was attempting to commit) (was committing)] the offense of_
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (IPI Criminal 2d No. 7.02.)
“To sustain the charge of voluntary manslaughter, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of_; and
Second: That when defendant did so,
[1]he intended to kill or do great bodily harm to
or
[2] he knew that his acts would cause death or great bodily harm to_;
or
[3] he knew that his acts created a strong probability of death or great bodily harm to_; and
Third: That when the defendant did so he believed that circumstances existed which would have justified killing _; and
Fourth: That the defendant’s belief that such circumstances existed was unreasonable.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” IPI Criminal 2d No. 7.06.

The Reddick court held the instructions there were erroneous when given together because: (1) the two voluntary manslaughter instructions require the State to prove the factors which reduce what would otherwise be murder to voluntary manslaughter while, ordinarily, the defendant is the party seeking to reduce the severity of any conviction which might be obtained; and (2) the instructions place the burden of establishing the factors reducing the severity of such a conviction on the defendant while a defendant’s contention he is guilty, at most, of voluntary manslaughter must be treated in the same manner as an affirmative defense (Ill. Rev. Stat. 1985, ch. 38, par. 3 — 2), thus placing the burden on the State to negate the existence of those factors beyond a reasonable doubt. The Reddick opinion indicated the error in the giving of these tendered instructions would be mitigated when, in closing argument, counsel properly explains the burden of proof to the jury. The court noted that in People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248, proper explanation of the burden of proof mitigated error in failing to give a proper instruction on the subject. There, in a homicide case, the court had failed to instruct the jury that the State had the burden to prove the force used by the defendant was not justified but the court held the omission was not plain error. No such explanation was given in Reddick, and none was given here.

In Reddick, the supreme court made no express statement as to whether the error in instructions was of constitutional dimension or whether the precedent of the decision was to be applied prospectively or retroactively. The opinion did note that its holding requiring the State to negate the mental states which would reduce the crime involved to voluntary manslaughter “will have only limited application” because Public Act 84 — 1450 (1986 Ill. Laws 4221) has placed on the defendant the burden of proving the mental state reducing the severity of the offense. (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 146.) This would indicate the court did not intend its decision to be one which both concerned a constitutional right of an accused and was intended to have retroactive effect. If both of those aspects existed, the decision would not have “only limited application,” as many of the homicide convictions of the past decade would be subject to attack in post-conviction proceedings. The instructions involved were in common use.

Viewing the question of retroactive application first, we conclude the decision must be applied in that manner. The purpose for having the jury properly instructed is to enhance the accuracy of trials. When that is the purpose of a new constitutional principle, the precedent of the decision is to be given retroactive application. (Solem v. Stumes (1984), 465 U.S. 638, 643, 79 L. Ed. 2d 579, 587, 104 S. Ct. 1338, 1342.) Thus, if the Reddick precedent is of constitutional dimensions, it should be applied retroactively. If no new constitutional principle arises from the case, in the absence of direction in the opinion, the common law rule should prevail, which would also require the precedent to be applied retroactively. People v. Laws (1981), 84 Ill. 2d 493, 419 N.E.2d 1150.

The question here of whether the error in instructions was one of constitutional magnitude recognizable in a proceeding on a post-conviction petition was not present in Reddick. There, the issue was whether the improper instructions constituted plain error which could be considered on direct review from the conviction despite failure to raise the issue earlier which would have otherwise waived the question. Any statement by the Reddick court that constitutional error occurred would have been dictum. However, the court did not pronounce any dictum in that regard.

Similar to the situation in Reddick, in People v. Brooks (1988), 175 Ill. App. 3d 136, 529 N.E.2d 732, the Appellate Court for the First District was faced, on direct appeal of a conviction, with a claim of error in the giving of the improper jury instruction, in question here, when the issue was not timely raised. That court determined it needed to decide whether the Reddick precedent set forth a newly pronounced constitutional right of accuseds in order to determine whether retroactive application should be given to the precedent. The court in determining the right pronounced was one constitutionally protected apparently relied strongly on the Reddick language describing the error as “grave.” (Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147.) Similar emphasis has been placed on the use of the word “grave” by defendant here. However, that adjective has been used to describe plain error which permits that type of error to be considered for the first time on direct appeal without any consideration of whether a constitutional right has been violated. (People v. Berry (1984), 99 Ill. 2d 499, 504, 460 N.E.2d 742, 744; People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864; People v. Tannenbaum (1980), 82 Ill. 2d 177, 182, 415 N.E.2d 1027, 1030.) To interpret the use of the word “grave” as constituting constitutional error would negate the Reddick court’s stated intent that the decision “have only limited application.”

Subsequent to Brooks, the Appellate Court for the First District again faced the application of Reddick in People v. Flowers (1989), 192 Ill. App. 3d 292. There, as here, the appeal was from a circuit court’s dismissal of a post-conviction petition following a conviction where the jury had been given similar improper instructions in regard to the offense of voluntary manslaughter. The Flowers court reversed, holding the error in instructions was of constitutional dimension, because the improper instruction relieved the State of its burden of persuasion beyond a reasonable doubt to an essential element of the offense, thus depriving the defendant of due process. The court cited the case of Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965. We do not agree with the Flowers court.

Had the Reddick court intended to proclaim that the longstanding IPI instructions in issue, when used together, violated a constitutional right of defendant, that court would likely have cited United States Supreme Court decisions upon which such a right would be based. It did not do so. We do not find a basis in United States Supreme Court decisions for such a holding. We agree that at times pertinent voluntary manslaughter was an included offense of murder. (People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.) In Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, the Court held that a statute which prohibited included offense instructions in capital cases was a deprivation of due process. Dictum in Hopper v. Evans (1982), 456 U.S. 605, 611, 72 L. Ed. 2d 367, 373, 102 S. Ct. 2049, 2053, indicated due process required giving included offense instructions in noncapital cases.

No United States Supreme Court case has held that due process is denied when an imperfect instruction is given in regard to an included offense.

In Francis, the Court held that an instruction creating a presumption shifting the burden of proof on an element of the crime which the State is constitutionally required to prove denied an accused due process. Here, the improper instructions created no presumption, but they did improperly place the burden of proof. The question of whether the State is constitutionally required to bear the burden of persuasion of negating the existence of mitigating factors which reduce the severity of the offense committed by the defendant Bolden here is a complex question involving the relationship between the decisions in Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, and Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319. (See 1 W. LaFave & A. Scott, Substantive Criminal Law §1.8(b), at 68-71 (1986).) The determination that the State is constitutionally required to bear that burden of persuasion would be relevant to the validity of Public Act 84—1450 as described in Reddick. The Illinois Supreme Court clearly did not intend to delve into this issue in Reddick. We should not do so here.

For the reasons stated, we conclude that the Reddick court did not intend to set forth a principle of constitutional law. Thus, no precedent exists to find constitutional error to have been properly set forth in defendant Bolden’s post-conviction petition. We need not decide whether the doctrine of res judicata was a further bar to her claim. We affirm the judgment of the circuit court dismissing that petition.

Affirmed.

LUND and KNECHT, JJ., concur.