author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PACE, Defendant-Appellant.
    Second District
    No. 2 — 90—0626
    Opinion filed February 21, 1992.

      George Patrick Lynch, Ltd., and M. Jacqueline Walther, of Kielian & Walther, both of Chicago (George P. Lynch, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Joseph Pace, appeals his conviction after a jury trial for first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1) and armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18—2). Concurrent sentences of natural-life imprisonment for first-degree murder and 30 years’ imprisonment for armed robbery were imposed. On appeal, defendant raises 10 issues. For the reasons expressed below, we reverse and remand for a new trial.

The 10 issues on appeal are whether: (1) the trial court erred in denying defendant’s motion for automatic substitution of judges; (2) the trial court erred in refusing to give a tendered instruction on accomplice testimony; (3) reversible error occurred when photographs of decedent and containers of human blood were sent back to the jury; (4) defendant’s statements to police should have been suppressed because the police failed to allow defendant’s mother into the interview room; (5) statements of a coconspirator should have been excluded as hearsay; (6) evidence that defendant was accused of prior thefts from the theater was improperly admitted; (7) prejudicial error resulted from admitting into evidence knives found in defendant’s car; (8) a venireman’s comments that he could not be impartial were prejudicial; (9) the prosecutor’s rebuttal argument was improper; and (10) the sentence imposed was excessive.

Defendant’s convictions stem from his participation in the murder of Ronald Roberts. Roberts was a manager at the Cineplex Odeon Theater in the Fox Valley Mall in Aurora, Illinois. On December 23, 1988, defendant, Thomas Olds and Steven Schoppe met at the Music-land store in Joliet, Schoppe’s place of employment, to discuss their plans for that evening. Defendant, 16 years old at the time of the incident, suggested that they go to the movies because they could get in for free. Defendant had been employed at the theater until late November 1988. Defendant also wanted to pick up his last paycheck. Defendant left his job due to cash shortages in his register.

Schoppe testified that when the group decided to go to the movies, defendant said that they could rob the place. Schoppe thought he was joking, but defendant began to explain his plan. Defendant said he would get money from the manager’s office when defendant went to get his check. The manager usually let defendant go into the office alone, and Olds would help by distracting the manager. Schoppe stated that he told the other two to “count [him] out.”

After leaving Musicland, the three went to Schoppe’s house and then to another friend’s house, Brendan Mahoney. Defendant went inside Mahoney’s house while Schoppe and Olds remained in the car. Mahoney testified that defendant asked him to go to the movies. Mahoney declined because he was afraid of Olds. Olds was angry with Mahoney because he would not get a weapon for Olds. Defendant told Mahoney that Olds would not be angry if he gave Olds some gloves. Defendant took some gloves and went back to the car.

Schoppe testified that while defendant was gone, Olds showed him a knife that was on the floor under the front seat. Olds told Schoppe that the knife belonged to Cory Hamerla, a friend of Olds. After 15 to 20 minutes, defendant returned, and they drove to an abandoned house between Plainfield and Aurora. Defendant told Olds and Schoppe that the house was a place where friends went to drink. They left the house without going inside and went to the theater.

The Cineplex Odeon theaters at Fox Valley Mall are in two separate buildings, the “big” building and “small” building. At approximately 7 p.m., the three went to the big theater and walked in without paying admission. Defendant signed a sheet and spoke to one of the employees. They remained in the big theater watching two movies for approximately two hours. They left the theater and went back to the car. Schoppe testified that defendant again talked about robbing the theater. Again, defendant and Olds told Schoppe that they really were not going to go through with the plan. They got in the car and drove to the small theater building.

Defendant went into the small theater and let Olds and Schoppe in through a back door. They went in and watched a movie for approximately 45 minutes. According to Schoppe, during that time defendant left the movie twice by himself and a third time with Olds. Defendant’s first two trips were for candy and the bathroom. The third time, defendant told Olds that the manager was alone. Schoppe testified that he asked Olds if they were “really going to do this” and they said “yes.” Schoppe stayed at his seat and watched the movie.

A short time later, defendant and Olds returned, and the three left through the same back door they entered. At the car, Olds squatted next to the car door until he was let in. Schoppe further testified that Olds had a wet spot on his coat. Defendant had no stains on his clothing. According to Schoppe, defendant said “I can’t believe I did that. I feel like a scumbag.” Later, when questioned by police, Schoppe told them that Olds made those statements.

While in the car, defendant told Schoppe that he had the $20 he owed Schoppe. Schoppe also testified that he saw Olds “fiddling with some money.” Schoppe did not take any of the money and told them to take him home.

Schoppe testified that defendant and he had discussed robbing the theater on previous occasions. Defendant told Schoppe that it would be easy to go in, grab the cash box and walk out. Defendant did not discuss using violence to get the money.

Around midnight on December 23, Ronald Roberts was found dead in the office of the small theater. He had been stabbed several times in the back, stabbed in the abdomen, stabbed in the skull and had his throat cut. One of two safes in the office was open and was empty, except for some coins. An empty cash box was on the floor. The assistant manager estimated that $1,100 was in the safe.

The morning after the incident, defendant went back to Mahoney’s house. Defendant returned $20 he had borrowed from Mahoney. Mahoney testified that he noticed defendant had a lot of money with him and asked defendant where he got it. Defendant told Mahoney that he robbed the theater with Olds and that Olds had done everything. Defendant also told Mahoney that the manager, Roberts, had been killed and that the “blood looked fake, just like in the movies.” Mahoney testified that defendant also told him previously that if defendant were to rob the theater, it would be necessary to kill any witnesses.

Before the night of the robbery, defendant also told his plan to Thomas Kastrati, his neighbor. Kastrati testified that defendant told him Mahoney had said it would be easy to rob the theater and that Mahoney would get guns. Defendant had also said that Olds wanted to rob the theater and would kill whoever was working that night. Kastrati also testified that defendant took him to the abandoned house. Defendant told Kastrati to bring a knife, which he did.

Kastrati was working at the theater on the night in question. Defendant had asked him that morning to sneak him into the theater. Kastrati testified that he told defendant no. That evening, Kastrati saw defendant at the small theater building at approximately 9:30 p.m. Defendant told Kastrati he was going to get his check after the movie and was not going to rob the theater.

After the incident, the police questioned Kastrati. Kastrati testified that the police asked him where defendant might hide something. Kastrati took the police to the abandoned house. There, they found a bloodstained jacket and a bloody knife hidden in the basement.

Defendant was subsequently taken into custody by the Aurora police on December 25, 1988. He was picked up while backing out of his driveway. A search of defendant’s trunk produced, among other things, a bag of bundled money and two knives in sheaths hidden under a tire. Later that day, the police went to Cory Hamerla’s house. Hamerla gave the officers a canvas bag, with Thomas Olds’ name on it, that contained bundles of money. Hamerla also showed the officers a bag in the trunk of Hamerla’s car that contained a pair of pants and boots. Both bags belonged to Olds. Hamerla testified that Olds came to his house on December 24, 1988, and asked Hamerla to keep those items for him. Hamerla also testified that he lent Olds a knife. Hamerla identified it in court and said Olds told him the tip of the knife broke off in a man’s head. Olds told Hamerla that he stabbed Roberts by himself.

Defendant arrived at the Aurora police station after his arrest at approximately 5 p.m. on December 25. The police told him that his parents had been notified. At 5:30 p.m., defendant spoke with a juvenile officer, Ed Sweeney. Sweeney testified that he read defendant his Miranda rights and defendant waived his right to remain silent by signing a waiver form at 5:55 p.m. Sweeney testified that after signing the waiver form defendant asked him if he could stop answering questions if he chose to do so. Sweeney told defendant that he could stop answering questions at any point he wished. Sweeney left the room while defendant was questioned, but told defendant he would be right outside the room if defendant needed him. Defendant claims that he asked for his parents before questioning began and was told that they were being located.

Approximately 15 or 20 minutes after defendant was read his rights and questioning began, defendant’s mother arrived at the station. Sweeney testified that he took defendant’s mother to another room and explained defendant’s situation to her. Defendant was questioned for about 5 to 15 minutes more after his mother arrived at the station. Malorie Peterson, defendant’s mother, testified that she arrived at the station around 6 p.m. and was at the station for about one-half hour before she saw defendant.

At approximately 6:30 p.m., an assistant State’s Attorney entered the room where defendant was being questioned. Defendant asked whether his parents had arrived. He was told that his mother was at the station. Defendant then told the officers that he would not make any more statements until he spoke with his parents and an attorney. The officers ended their questioning.

Two Aurora police officers, Al Tiegelmann and Gregory Anderson, testified that defendant stated that he and Schoppe went to the big theater to watch some movies. Defendant said that they then went to the small theater to watch another movie and pick up his check. They left afterwards. When defendant was asked about Olds, defendant stated that Olds was with defendant and Schoppe at the big theater, but remained there when Schoppe and he went to the small theater. Defendant denied any involvement in the homicide.

Defendant was convicted of first-degree murder and armed robbery. He was sentenced to natural-life imprisonment for the murder and 30 years’ imprisonment for armed robbery. His post-trial motions and motion to reduce sentence were denied on June 4, 1990. A timely appeal was filed on the same day.

MOTION FOR SUBSTITUTION OF JUDGES

Defendant first contends that his conviction must be reversed because his motion for substitution of judges was improperly denied. Defendant’s case was originally assigned to Judge Robert Nolan. Judge R.A. Cox picked up Judge Nolan’s call after Judge Nolan’s retirement. Judge Nolan’s retirement was effective December 5, 1988, according to the sworn affidavit of the assistant court administrator for the 18th Judicial Circuit.

Judge Cox presided over the case in courtroom 209 beginning on December 30, 1988. Judge Cox heard motions and made substantive rulings on the case. On April 26, 1989, Judge Cox presided over a hearing on defendant’s motion to quash the arrest and suppress evidence. On June 12, 1989, after issues had been briefed by both sides, Judge Cox heard arguments and said he would rule in writing within that same week.

Thereafter, Judge Cox had a heart attack. A memorandum written by Chief Judge Carl Henninger and dated June 29, 1989, was distributed to the courthouse staff, Judge Lucas and Judge Telander. In the memo, Judge Henninger assigned Judge Cox’s court call to Judge Brian Telander “until [Judge Cox’s] return.” Judge Telander sat in Judge Cox’s courtroom during this time, courtroom 209. Judge Telander’s courtroom was 205.

On the next court date, July 17, 1989, Judge Telander presided for Judge Cox. He stated that “[Judge Cox] would like a date the first week of August” to rule on the outstanding motion. The case was continued until August 2, 1989. On August 2, Judge Telander told the parties that “[Judge Cox] asked me if you could return to the courtroom on the 21st. The ruling will be in writing, and I [Judge Telander] will publish it.” The matter was continued until August 22 at 9 a.m. “for Judge Cox’ [sic] ruling.” The case was again continued until August 25th.

On August 25, Judge Telander told the parties that the ruling by Judge Cox would be in that day, but “it [needed] to be typed and reviewed by Judge Cox.” The case was continued until September 7, 1989. On August 28, Judge Cox wrote a letter denying defendant’s motion. On September 7, Judge Cox’s ruling was entered by Judge Telander’s order which stated that the motion was denied “for the reasons set forth in Judge Cox’s written opinion of 8/28/89.”

At the hearing on September 7, Judge Telander continued the case until September 29 for ruling on defendant’s new motion to quash search warrant and suppress evidence and a motion to suppress statements, which was filed on June 20, 1989. On September 29, the matter was continued until October 19,1989.

On October 19, Judge Thomas Callum was present in courtroom 209. Judge Callum had been assigned to courtroom 209 pursuant to an administrative order by Chief Judge Henninger, according to the sworn affidavit of the administrative assistant to the chief judge of the 18th Judicial Circuit. Judge Callum told the parties that he sat on the coroner’s jury in the case so he was recusing himself. He continued the case until October 27.

On October 27, the case was transferred to the presiding judge for reassignment due to Judge Callum’s conflict. Judge John Bowman, then presiding judge for Criminal I Division, formally assigned the matter to Judge Telander “for all further proceedings.” An order by Judge Telander, filed on October 27, continued the case until November 6,1989, in courtroom 205.

On November 6, 1989, defendant made a motion for substitution of judges. Judge Telander denied the motion stating that the motion to quash the search warrant and suppress evidence was a motion filed in front of him. He also stated that the motion for substitution of judges was not filed at the earliest possible time.

Defendant argues that Judge Bowman’s order assigning Judge Te-lander to the case placed the case on Telander’s trial call. He also argues that Judge Telander made no substantive rulings on the merits of the case while he was substituting for Judge Cox, which he claims would preclude a motion for substitution of judge. See People v. Emerson (1987), 122 Ill. 2d 411, 424.

The State argues that defendant can be charged with knowledge of the assignment to Judge Telander before he was formally assigned to the case on October 27, 1989, citing People v. Hanson (1983), 120 Ill. App. 3d 84, 87. The State claims that the case was Judge Telander’s immediately after Judge Cox’s ruling denying the motion to suppress was entered. The additional motions to quash the search warrant and suppress statements were for Judge Telander to rule upon. Only a scheduling conflict between the court and defense counsel prevented Judge Telander from ruling on the motion on September 29, 1989.

Section 114—5(a) of the Code of Criminal Procedure of 1963 states:

“(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two judges as prejudiced.” (Ill. Rev. Stat. 1987, ch. 38, par. 114—5(a).)

Defendant was charged by indictment with three counts of first-degree murder and one count of armed robbery. First-degree murder may be punishable by death or life imprisonment. (See Ill. Rev. Stat. 1987, ch. 38, pars. 1005—5—3(c)(1), 1005—8—1(a)9l).) Thus, under section 114 — 5(a), defendant may name two judges as prejudiced. Defendant’s motion complied with section 114—5(a) in naming both Judge Telander and Judge John Nelligan as prejudiced.

The substitution of judges is an absolute right provided a timely, good-faith motion is filed alleging that the judge is prejudiced. (People v. Walker (1988), 119 Ill. 2d 465, 470.) Section 114—5(a) should be liberally construed to promote substitution and guarantee a fair and impartial trial. (Walker, 119 Ill. 2d at 470-71; People v. Redisi (1989), 188 Ill. App. 3d 797, 801.) If the motion for substitution of judges is improperly denied, all subsequent action by the trial court is void. Redisi, 188 Ill. App. 3d at 801.

Defendant relies on People v. Flowers (1977), 47 Ill. App. 3d 809, as the case most similar factually to the case at hand. In Flowers, the matter was assigned to Judge John Moran’s courtroom after several continuances were granted by other judges. Judge Moran subsequently granted three continuances. On October 7, 1975, the case was called in Judge Moran’s courtroom, room 1410, but Judge Robert Sulski was substituting for Judge Moran that day. Over defendant’s objection, who answered ready and demanded trial, the State was granted a continuance. On November 25, Judge Zafiratos was presiding in room 1410. Both sides were ready for trial, but the case was reassigned instanter to Judge Sulski. At that point, defendant moved for substitution of judges. Judge Sulski denied the motion stating that the statutory 10-day period had passed since the case was first put on his trial call.

The Appellate Court, First District, reversed stating that there was no question the motion was made before Judge Sulski ruled on any substantive issues. The court also held that the case was placed on Judge Sulski’s trial call when the formal assignment was made on November 25, 1975. The court’s reasoning is particularly pertinent and worthy of repeating verbatim:

“It is true that on October 9, 1975, when defendant appeared in Room 1410, Judge Sulski was on the bench. Even though Judge Sulski was only substituting that one day for Judge Moran, the case could have proceeded to trial before Judge Sulski that day. Indeed, the defendant demanded trial and objected to the State’s motion for a continuance. However the State was granted a continuance and the crucial fact is that when the continuance was granted the defendant no longer had any cause to believe that Judge Sulski would be the trial judge when the case again came up for trial, and thus had no further opportunity or reason to move (within the 10-day statutory period) for a substitution from Judge Sulski. The defendant could not have known then that his case would not remain in Room 1410, nor could he have known that the case would be reassigned, let alone that it would be placed on Judge Sulski’s call in another courtroom. Only when that in fact occurred on November 25, 1975, did defendant again know that Judge Sulski was assigned to preside at his trial.” Flowers, 47 Ill. App. 3d at 811-12.

Although Judge Sulski substituted for Judge Moran for only one day in Flowers, the reasoning is applicable to this situation. Judge Telander did preside over five appearances by the defendant while substituting for Judge Cox, but did not rule on a substantive issue. The closest he came to that was when he entered the order on Judge Cox’s ruling on the motion to quash defendant’s arrest. The fact that Judge Telander was presiding for Judge Cox did not automatically put that case on his trial call.

The State’s argument that the case became Judge Telander’s after Judge Cox’s ruling has no merit. The remaining two appearances over which Judge Telander presided resulted in no substantive rulings. Further, defendant is not deemed to have knowledge that the case was Judge Telander’s at that point because Telander was still a substitute for Judge Cox sitting in Cox’s courtroom. Defendant may have wasted his motion for substitution of judges by replacing a judge who was assigned to the case temporarily.

The State’s argument that Judge Telander could have made a substantive ruling on September 25, 1989, concerning defendant’s motion to quash the search warrant and suppress statements parallels the argument made in Flowers. As the court stated in Flowers, once the continuances were granted by the judge, the defendant no longer had reason to believe that particular judge would be the trial judge or would be assigned to the case. Similarly, defendant here had no idea at each appearance whether Judge Telander would remain a substitute for Judge Cox or whether Judge Cox would return. Also of significance is the fact that the case remained in courtroom 209, Judge Cox’s courtroom, until formal assignment to Judge Telander.

The State’s reliance on Hanson (120 Ill. App. 3d 84) is also misplaced. There, a jury docket was filed setting Hanson’s trial for October 25, 1982, in front of Judge Hastien. On October 4, defense counsel’s request for a continuance to the “next jury docket” was denied, but Hanson was granted a continuance on October 25. A jury docket filed January 10, 1983, again set Hanson’s case for trial before Judge Hastien. Defendant made a motion for substitution of judges which was denied. The judge’s order was affirmed on appeal because Hanson was on notice in October 1982 that the case was set before Judge Bastien. Here, no documentation was filed assigning the case to Judge Telander before October 1989. Defendant cannot be charged with the same knowledge held by the defendant in Hanson.

The State also relies on People v. Aldridge (1981), 101 Ill. App. 3d 181, for the proposition that counsel’s experience in a particular court system and knowledge of court procedures can be significant in charging defendant with knowledge of a judicial assignment. In Aldridge, the circuit court had one felony courtroom that judges were assigned to on a rotating monthly basis. Defendant was charged with knowledge of which judge was being assigned next because this information had been published and counsel was aware of the rotation system.

This case is inapposite to defendant’s situation. Judge Telander was not assigned through a standard procedure, but was assigned through an “inter-office memo.” Defendant cannot be charged with knowledge of a procedure that is not uniformly applied or routinely published for courtroom participants.

Fairness dictates that defendant is charged with knowledge of the assignment to Judge Telander when the case was formally assigned to him by Presiding Judge Bowman on October 27, 1989. Thus, defendant’s motion for substitution of judges made on November 6 was timely. We hold that the trial judge erred in denying defendant’s motion. As such, we reverse the defendant’s conviction and remand for a new trial.

Because we conclude that the denial of defendant’s motion for substitution of judges entitles him to a new trial, we need not address defendant’s remaining contentions. However, we address the issues that may arise on retrial.

ACCOMPLICE INSTRUCTION

Defendant’s second contention is that the trial court erred in refusing to give a jury instruction on accomplice testimony. We first note that defendant argues on appeal that Hamerla, Mahoney and Kastrati could all be considered accomplices. Because defense counsel only argued that Hamerla was an accomplice at the time the instruction was tendered, we deem defendant’s argument waived as to Ma-honey and Kastrati. See People v. Travis (1988), 170 Ill. App. 3d 873, 889.

The test for determining whether an accomplice instruction should be given is whether there is probable cause to believe the witness is guilty as a principal or on an accountability theory. (People v. Cobb (1983), 97 Ill. 2d 465, 476.) Based on this test, we conclude that the trial court did not err in refusing to give the accomplice instruction. Defendant argues that Hamerla could be considered an accomplice because he supplied Olds with the murder weapon and helped Olds conceal evidence after the fact. As such, defendant suggests that Hamerla might have known of the plan in advance. Defendant concludes that under these circumstances there was probable cause to believe Hamerla could have been indicted under the accountability theory.

We agree with the State’s argument that defendant improperly views probable cause as a minimal threshold. Probable cause is not satisfied by asserting that a witness “might have known of the plan in advance.” Defendant further relies on People v. Furby (1990), 138 Ill. 2d 434, for the proposition that a person furnishing items used in furtherance of the offense can be held accountable. However, the evidence failed to show that Hamerla had the “intent to promote or facilitate [the commission of the offense.]” (See Ill. Rev. Stat. 1987, ch. 38, par. 5—2(c).) Without sufficient evidence of intent, Hamerla could not be found guilty on an accountability theory. We hold that the trial court did not err in refusing to give the accomplice testimony instruction.

PHOTOGRAPHS AND BLOOD IN JURY ROOM

Defendant’s third contention is that reversible error occurred when photographs of the decedent and containers of human blood were sent to the jury room. Defendant argues that the prejudicial effect of both the photographs and the blood outweighed their probative value. These items, defendant claims, are not needed to establish a material fact in controversy in the case. Additionally, defendant asserts that some of the photographs were taken in such a way as to enhance their prejudicial impact.

The photographs displayed decedent’s wounds. Three pictures showed the knife wound to decedent’s neck, which extended from ear to ear. Two other pictures were of the decedent’s skull showing the wound where the knife fragment was found. Another picture displayed six stab wounds to decedent’s back. The final two pictures depicted slicing wounds to decedent’s fingers. The blood in the containers came from the crime scene.

It is the trial court’s function to weigh the probative value and prejudicial effect of evidence. (People v. Shum (1987), 117 Ill. 2d 317, 353.) The trial court has discretion in deciding when evidentiary items should be taken into the jury room, and its decision will not be reversed absent a showing of prejudicial abuse. (Shum, 117 Ill. 2d at 353.) Photographs that are relevant to establish a fact in issue are not inadmissible because they are gruesome or disgusting. People v. Lucas (1989), 132 Ill. 2d 399, 439.

We agree with the trial court’s decision that the photographs had significant probative value. The number, location and angle of the wounds, which are displayed in the photographs, are relevant in determining whether more than one knife was used to make the wounds. The number of wounds is also relevant in determining whether the decedent lost a large amount of blood. The lack of blood on defendant’s clothing was a point of controversy between the two sides. Further, showing different angles of the decedent’s wounds does not enhance the prejudicial effect of the photographs.

The cases cited by defendant do not require a different result. In People v. Lefler (1967), 38 Ill. 2d 216, and People v. Landry (1977), 54 Ill. App. 3d 159, the photographs were not probative because, for the most part, the photographs displayed incisions made during the autopsy and not the wounds inflicted during the crime. In People v. Garlick (1977), 46 Ill. App. 3d 216, the photographs were not probative because the defendant admitted that he committed the offense and was using the insanity defense. In the case at hand, the photographs were relevant to the jury’s determination of whether defendant participated in the stabbing.

Defendant’s claim that the containers of blood had no probative value has merit. The State claims that the blood was given to the jurors to corroborate the chain of custody testimony. Yet, defense counsel made no objection to the chain of custody. There was testimony that defendant had blood of the victim’s type on his shoe. But, the jurors did not need the actual blood to verify or reject this testimony.

Although we find that it was error to send the containers of blood to the jury, the error was harmless. In determining whether error is harmless, the issue is whether the jury might have relied upon the evidence in reaching its verdict. (People v. Parmly (1987), 117 Ill. 2d 386, 396.) It is speculative at best to believe that the jurors relied on a container of blood in finding defendant guilty of first-degree murder and armed robbery. More likely, the jurors viewed the containers of blood and determined that the blood would not help them reach a decision.

SUPPRESSION OF DEFENDANT’S STATEMENTS Defendant contends that the statements he made to the police should be suppressed because his mother was at the police station but was not allowed to see him. He argues that when he, a 16-year-old, was isolated from his mother by the police, the police did not exercise proper care in assuring that his statement was free from compulsion.

Defendant does not claim a violation of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.), but his argument implicitly raises this issue. Section 5—6 of the Act requires that a delinquent minor’s parents be notified that the minor has been taken into custody. The minor also should be taken to a juvenile officer. (Ill. Rev. Stat. 1987, ch. 37, par. 805— 6(2).) In People v. Arias (1989), 179 Ill. App. 3d 890, the court found that section 5—6 of the Act was violated when police refused the minor’s request to contact his father.

We find that section 5—6 was not violated here. We believe the result would be different if defendant asked to speak with his mother and the request was denied. However, when defendant asked for his parents, he was told that his mother was at the station, at which point all questioning ceased.

Even assuming arguendo that section 5—6 of the Act was violated when defendant’s mother was not allowed to see him, defendant’s statement should not be automatically suppressed. As with adults in custody, the test to determine whether the statements given should be suppressed is the totality of the circumstances test. (Arias, 179 Ill. App. 3d at 898; People v. Stachelek (1986), 145 Ill. App. 3d 391, 401.) Factors that the court considers to determine whether a statement was voluntary include the defendant’s age, experience, intelligence and physical condition as well as whether defendant was threatened, physically abused or promised anything in exchange for a statement. (People v. Martin (1984), 102 Ill. 2d 412, 427; Stachelek, 145 Ill. App. 3d at 401.) The violation of section 5 — 6 of the Juvenile Court Act is only one factor in determining whether the defendant’s statement should be suppressed. Arias, 179 Ill. App. 3d at 897; People v. McGhee (1987), 154 Ill. App. 3d 232, 236-37.

Based on the totality of the circumstances, we hold that defendant’s statements should not be suppressed. Defendant testified that he understood his Miranda rights. Defendant was indeed a minor, but the evidence does not reflect that he lacked the intelligence to understand what was happening. Defendant spoke with a juvenile officer before answering questions. The record does not reflect that defendant was threatened, physically coerced or promised anything in exchange for his statements. Defendant was not deprived of food or sleep. He was not unreasonably detained. Even if defendant’s mother’s request to see her son is considered as a factor weighing in favor of suppressing defendant’s statement, this factor alone does not mandate that defendant’s statement be suppressed.

The three cases cited by defendant to support his argument are distinguishable. In People v. Knox (1989), 186 Ill. App. 3d 808, the defendant was not able to see his mother and a juvenile officer was not present. In McGhee (154 Ill. App. 3d 232), and People v. Berry (1984), 123 Ill. App. 3d 1042, the totality of the circumstances warranted that the juvenile’s statement be suppressed. Here, the totality of the circumstances warrants that defendant’s statement not be suppressed.

HEARSAY STATEMENTS OF COCONSPIRATOR

Defendant next contends that error occurred when the statements of his coconspirator, Olds, were introduced through Hamerla’s testimony. Hamerla testified that the day after the incident Olds told Hamerla that he (Olds) was in trouble. Olds had robbed the theater and killed the theater manager. Olds did not know what to do with the money. On cross-examination, defense counsel elicited testimony from Hamerla that Olds told him the tip of the knife Hamerla lent Olds was broken in the victim’s head. Hamerla also testified on cross-examination that Olds said that he stabbed the manager by himself. On redirect examination, Hamerla testified that Olds said defendant told Olds to kill the manager because defendant was scared.

Defendant argues that Olds’ statements were not made in furtherance of and during the conspiracy. He claims that Olds’ comments to Hamerla were admissions of guilt and Olds’ reason for killing Roberts, both of which are not statements made to further the conspiracy or conceal the offense. The State argues that the testimony on direct examination was within the coconspirator exception. The State adds that the testimony on redirect examination was invited by the cross-examination.

The coconspirator exception to the hearsay rule allows statements in furtherance of and during the conspiracy to be admitted against other coconspirators upon a prima facie showing of a conspiracy. (Parmly, 117 Ill. 2d at 393.) Coconspirator statements made after the fact to conceal the offense are also admissible under the coconspirator hearsay exception. People v. Link (1981), 100 Ill. App. 3d 1000, 1006.

We find that Olds’ conversations with Hamerla elicited on direct examination came within the coconspirator hearsay exception. Olds told Hamerla that he had stolen money and needed to know what to do with it. Olds explained to Hamerla that the money was taken from the theater and the theater manager was killed. The entire premise of Olds’ conversation with Hamerla was to seek advice about what to do with the stolen money. Olds wanted Hamerla’s help in concealing the crime. As such, the conversation elicited on direct examination between Olds and Hamerla was admissible.

Defendant also argues that the testimony on redirect examination was inadmissible. On cross-examination, defense counsel evoked testimony from Hamerla that Olds told him about the stabbing in detail. We find that this testimony did invite the redirect testimony that defendant told Olds to kill the manager. Defense counsel brought out the testimony that Olds stabbed the victim by himself. This testimony allowed the prosecution to admit the remaining part of that conversation to show whose idea it was to kill the theater manager. If one party introduces part of a statement, the opposing side may introduce the remaining part of the statement to convey its full meaning to the jury. (People v. Williams (1985), 109 Ill. 2d 327, 334.) We conclude that Hamerla’s statements on redirect examination were admissible as invited responses.

EVIDENCE OF PRIOR THEFTS

Defendant’s sixth contention is that the trial court erred in admitting evidence that defendant was accused of prior thefts from the theater. Kevin Mooney, a manager at the Cineplex Odeon Theater, testified that defendant was employed by the theater in 1988. In November 1988, defendant was given the alternative to quit or be fired because his cash register had been short. The State contends that this testimony does not automatically imply that defendant stole money from the theater. Even if construed as evidence of prior theft, the State argues that it is admissible to show defendant's motive.

Evidence of other crimes is admissible for almost any purpose other than to show the propensity to commit crimes. (People v. Mc-Kibbins (1983), 96 Ill. 2d 176, 182.) Other crimes evidence is relevant to prove design, motive, knowledge or modus operandi. (Lucas, 132 Ill. 2d at 429.) The trial court’s decision to admit evidence of other crimes will not be reversed absent a clear showing of an abuse of discretion. People v. Smith (1990), 199 Ill. App. 3d 839, 852-53.

We hold that the trial court did not abuse its discretion in allowing Mooney’s testimony. While defendant argues that there was a “strong implication” of prior theft by defendant, that is only one inference that may be drawn from that testimony. Defendant may have had difficulty in making change or was generally careless in running a cash register. Even assuming a strong implication of prior theft by defendant, the testimony is relevant to show his potential motive of revenge toward the managers at the theater. As such, the evidence was admissible.

We note that defendant argues in a footnote in his brief that a proper limiting instruction should be given when the jury is presented evidence of prior misconduct. Defendant seems to be implicitly arguing that the court’s failure to do this constituted plain error. The two cases cited by defendant, People v. Conners (1980), 82 Ill. App. 3d 312, and People v. Manley (1971), 133 Ill. App. 2d 882, do not support defendant’s plain error argument. In Conner, the instruction given was so broad as to create a prejudicial effect. In Manley, the court refused to give an instruction concerning the defendant’s prior conviction. Manley is distinguishable because no instruction was requested by defendant in this case. Generally, the court is under no obligation to give instructions not requested by counsel. People v. Carlson (1980), 79 Ill. 2d 564, 583.

KNIVES ADMITTED INTO EVIDENCE THAT WERE NOT THE MURDER WEAPON

Defendant contends that it was error to admit into evidence two knives found in the trunk of his car. The State counters that this issue has not been properly preserved for appeal. We agree.

An issue must be raised both in the trial court and in defendant’s post-trial motion to be preserved for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) “Catch-all” arguments in post-trial motions do not preserve unspecified claims of error on appeal. (People v. Bailey (1979), 77 Ill. App. 3d 953, 956.) The failure to preserve an issue for appeal results in waiver. Shum, 117 Ill. 2d at 348.

Defendant argues that this error was raised at trial and included in his post-trial motion under his claim of error for denying his motion in limine concerning testimony about the knives. Preserving the issue of testimony about the knives is not the same as preserving the issue of whether the actual knives should have been admitted. We hold that this issue is waived.

Assuming no waiver, the trial court did not err in admitting the knives. The knives are admissible if there is evidence to connect them with the defendant and with the crime. (People v. Miscichowski (1986), 143 Ill. App. 3d 646, 652.) It is not necessary to show that the particular weapon was the one used in the offense. People v. Johnson (1966), 35 Ill. 2d 516, 518.

The knives were found in defendant’s automobile, thus connecting defendant to the weapons. Defendant argues that the knives were admitted solely to suggest that defendant was a violent person. However, other evidence was presented from which it can be inferred that the knives were connected to the armed robbery. The number of stab wounds on decedent’s body is evidence that more than one person may have stabbed decedent. There was testimony that defendant obtained a knife from a friend shortly before the crime. Also admitted were defendant’s statements that he would have to kill whoever was in the office during the robbery. We find that this evidence is sufficient to connect the weapons found in defendant’s car with the offense.

We find issues 8 through 10 to be moot and choose not to address them.

Defendant’s conviction is reversed, and the case is remanded for a new trial because his motion for substitution of judges was improperly denied. The other six issues we addressed do not support a reversal of his conviction. We note that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable doubt. This does not mean we are making a finding as to defendant’s guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy. People v. Taylor (1979), 76 Ill. 2d 289, 309-10.

Reversed and remanded for a new trial.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    TIMBERLINE, INC., Plaintiff-Appellant, v. TIMOTHY TOWNE, d/b/a Towne Development, et al., Defendants-Appellees (David Horwitz et al., Defendants).
    Second District
    No. 2 — 91—0614
    Opinion filed February 6, 1992.
    Rehearing denied March 25, 1992.

      Warren G. Fox, of Ori, Fox & Associates, of Waukegan, for appellant.

      Wayne B. Flanigan, of Kuseski, Flanigan & Associates, and James J. Babowice, of Brydges, Riseborough, Morris, Franke & Miller, both of Waukegan, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Timberline, Inc., appeals from an order of the circuit court of Lake County which dismissed count I of its first amended complaint against defendants Timothy Towne, d/b/a Towne Development, First National Bank of Lake Forest, trust No. 8133, William A. McLaughlin, David Horwitz, Maureen Horwitz, Bank of Northern Illinois, N.A., as trustee of trust No. 3137, Bank of Northern Illinois, N.A., and the Lake Group, Inc.

Plaintiff raises two issues on appeal: (1) whether the trial court erred in dismissing count I of its complaint, which sought specific performance of a real estate contract based on the court’s finding that the contract was not enforceable because defendant Towne did not create a binding contract by signing as the agent of the land trust; and (2) whether the trial court also erred in finding that count I should be dismissed because the description of the property contained in the agreement was not definite enough to allow an award of specific performance.

On November 22, 1989, plaintiff filed its verified amended complaint against Timothy Towne, d/b/a Towne Development (Towne), and First National Bank of Lake Forest, trust No. 8133. In count I, plaintiff sought specific performance of a real estate contract. The contract was attached to the complaint as exhibit “A.” In the contract, Towne was identified as the seller and plaintiff as the buyer. The property was described as follows:

“PROPERTY: Shopping Center, the ‘Center’. Approximately 174,200 square feet of a parcel consisting of 15 acres, more or less, at or near the intersection of State Route 137 at its intersection with Butterfield Road, located at the South-East comer of said intersection, Libertyville, Lake County, Illinois; and located along the southeasterly side of the ‘center’ bounded on the north by State Route 137 and on the south a distance of approximately 631 feet south of said State Route 137, in Libertyville, Illinois, as depicted on the preliminary sketch of the ‘Center’ attached hereto as exhibit ‘A’.”

Attached to the contract was a sketch of the property. The sketch showed a tract of land, and, at the top, a parcel was outlined and designated “P.I.Q.,” presumably meaning “property in question.” The I top line was marked 631.47 feet. I

The contract also stated:

“For and in consideration of the sum of $50,000 to be applied against the purchase price at closing, Seller agrees to sell to Buyer the above described property, at a price of $3.50 per foot. (The actual purchase price shall be determined by Seller’s architect based upon the actual square footage of property to be conveyed to Buyers [sic]).”

The contract was executed on June 30, 1987. It was signed by the vice-president of plaintiff and by Towne under the designation “First National Bank of Lake Forest Trust #8133.” Under Towne’s signature were the words, “Agent for the Trust.”

Plaintiff’s amended complaint alleged that the property described in the contract was part of a five-acre parcel described in a plat of survey. The plat of survey was attached to the amended complaint as exhibit “B” and included a legal description of the five-acre parcel. The complaint also alleged that title to the real estate described in the contract was held by the First National Bank of Lake Forest, trust No. 8133, and that Towne had a beneficial interest in the trust with the power to direct conveyance. The complaint further alleged that plaintiff paid $50,000 to defendants and was ready, willing and able to perform its part of the contract. Plaintiff also alleged that defendants refused to perform their obligations under the contract and returned the $50,000 earnest money.

Also attached to the complaint was the affidavit of Robert Hall, plaintiff’s president. Hall stated in his affidavit that plaintiff had previously purchased parcels of real estate from Towne which were held in trust with Towne as beneficiary. Copies of previous contracts for the purchase of real estate signed by Towne were attached to the affidavit.

In count II of the amended complaint, plaintiff sought damages for defendant’s breach of contract.

On December 20, 1989, defendants filed a motion to dismiss the amended complaint pursuant to section 2—615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), alleging that no contract existed because Towne signed the contract in a representative capacity, as agent for the land trust. Defendants asserted that Towne did not sign the contract in his individual capacity and could not, as beneficiary, sign as agent for the trustee. They concluded that neither defendant was therefore bound by the agreement.

The court denied defendants’ motion on January 31, 1990. Defendants filed an answer on March 7, 1990. They admitted that record title to the property was held in the name of the trustee and that Towne owned 50% of the beneficial interest in the trust but denied that Towne had the power to direct a conveyance of the property. Defendants included three affirmative defenses with their answer. These were: (1) that the acceptance of the offer to purchase by the agent of the trust did not conform to the offer to purchase property from Towne; (2) that the contract stated that closing was to take place no later than December 1, 1987; and (3) that plaintiff abandoned any rights it may have acquired pursuant to the purported contract by insisting on modifying the terms of the contract.

On September 5, 1990, defendants filed a motion to withdraw their answer to count I of the amended complaint and sought leave to file a motion to dismiss based upon plaintiff’s alleged failure to join necessary parties to the proceedings. The motion was denied, but plaintiff was granted 28 days to add certain necessary parties.

On October 18, 1990, plaintiff therefore added William McLaughlin, David Horwitz, Maureen Horwitz, Bank of Northern Illinois, N.A., as trustee of trust No. 3137, Bank of Northern Illinois, N.A., and the Lake Group, Inc., as defendants. All were alleged to have an interest in the subject property. The court later entered an order dismissing David Horwitz and Maureen Horwitz from the lawsuit with prejudice based upon their allegation that they had no interest in the property which was the subject of the suit. Plaintiff has not appealed from this order, and the Horwitzes are not parties to this appeal. The remaining defendants added by plaintiff on October 18, 1990, will be referred to collectively as “additional defendants.”

On December 26, 1990, McLaughlin filed a motion to dismiss plaintiff’s amended complaint pursuant to section 2—619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). McLaughlin alleged that a contract executed by the beneficiary of a land trust as agent of the trustee is void and unenforceable. He further alleged that, on the date the contract was executed, he was the owner of 50% of the beneficial interest in the land trust which held title to the subject property. McLaughlin also alleged that the amended complaint should be dismissed because an accurate legal description of the property could not be determined from the contract alone.

Attached to McLaughlin’s motion was his supporting affidavit and a copy of the trust agreement for trust No. 8133. The agreement stated that Towne had a 100% interest in the real estate described in the agreement. A provision in the agreement also stated:

“The beneficiaries are not the agents of the trustee for any purpose and do not have any authority to contract or to execute leases or do any other act for or in the name of the trustee or to obligate the trust personally or as trustee.”

McLaughlin also attached a copy of an assignment, dated December 31, 1986, which stated that Towne assigned 50% of his beneficial interest in the land trust to McLaughlin. It also stated, “[a]ny Power of Direction held by me under this Trust hereafter shall be exercised by: Timothy J. Towne.” (Emphasis added.)

On January 4, 1991, the remaining additional defendants filed their own section 2—619 motion to dismiss count I of plaintiff’s amended complaint. These defendants incorporated McLaughlin’s arguments and also argued that the contract attached to plaintiff’s complaint could not be enforced under the Statute of Frauds (Ill. Rev. Stat. 1989, ch. 59, par. 1 et seq.). They contended that the Statute of Frauds was not satisfied because Towne did not have authority in writing to sign as agent of the trust.

Plaintiff filed a response to McLaughlin’s motion arguing that the issues raised had previously been raised in a motion to dismiss which was denied and that the trust agreement and assignment showed that Towne retained all power of direction.

On February 20, 1991, following a hearing, the court entered an order which granted the motions to dismiss filed by the additional defendants. The court found that Towne retained sole power of direction over the land trust but that he did not create a binding contract by signing as agent of the trust. The court also found that the “legal description contained within the agreement is not specific enough so as to be enforceable in an action seeking specific performance.” The order also granted plaintiff leave to file additional pleadings, and plaintiff filed a second amended complaint which added two counts against Towne.

Plaintiff’s motion to reconsider was subsequently denied, and plaintiff brought this timely appeal pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Plaintiff first argues that the trial court erred in dismissing count I of its amended complaint because a justiciable issue existed regarding whether an enforceable contract was created when Towne signed the contract as agent for the trust. We agree.

The purpose of a section 2—619 motion to dismiss is to provide a means to dispose of issues of law or easily proved issues of fact (Nagy v. Beckley (1991), 218 Ill. App. 3d 875, 878), and such a motion may be granted when the claim asserted against the defendant is barred by other affirmative matter defeating the claim (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 708). A trial court should grant a motion to dismiss if, after construing the documents in the light most favorable to the party opposing the motion, the court finds no disputed issues of fact. (Nagy, 218 Ill. App. 3d at 878.) In deciding the merits of the motion, the court must assume that the well-pleaded facts of the plaintiff’s complaint are true (Nagy, 218 Ill. App. 3d at 878) and cannot determine disputed factual issues without an evidentiary hearing (Chicago Housing Authority v. Taylor (1990), 207 Ill. App. 3d 821, 827; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703-04).

In this cause, the motions to dismiss asserted, as affirmative matter, that the contract was unenforceable because it was executed by the beneficiary of the land trust as agent for the trust and because it did not comply with the Statute of Frauds. The court granted the motion, specifically relying on Prodromes v. Poulos (1990), 202 Ill. App. 3d 1024.

In Prodromos, the plaintiff was also seeking specific performance of a real estate sales contract. The contract similarly named the beneficiary of the land trust as the seller, and the beneficiary signed the contract as agent for the trust. The trust agreement in Prodromos also included a provision which stated that a beneficiary did not have authority to contract in the name of the trustee. The Appellate Court, First District, held that the contract at issue could not be enforced under the Statute of Frauds because it was not signed or ratified by the party to be charged, the trustee of the land trust, and because the beneficiary of a land trust cannot enter into a valid contract to convey title to trust property as agent of the trustee. (Prodromos, 202 Ill. App. 3d at 1028-31.) The Prodromos court relied on Seaberg v. American National Bank & Trust Co. (1976), 35 Ill. App. 3d 1065, and Feinberg v. Great Atlantic & Pacific Tea Co. (1970), 131 Ill. App. 2d 1087, in reaching the latter conclusion.

In Seaberg, the plaintiffs were attempting to obtain specific performance of a contract purportedly created by their acceptance of an option to purchase real estate. The court determined that the plaintiffs were not entitled to specific performance because the option was not properly exercised by the plaintiffs. (Seaberg, 35 Ill. App. 3d at 1073.) The court also found that the plaintiffs could not prevail because the title to the property at issue was held in a land trust and the option agreement was signed only by the beneficiary of the land trust. (Seaberg, 35 Ill. App. 3d at 1070.) The court rejected the plaintiffs’ argument that an enforceable agreement existed because the beneficiary executed the option agreement “as agent of the Trustee” and thus bound the trust. (Seaberg, 35 Ill. App. 3d at 1070.) The court applied the following principle of law:

“The beneficiary of a conventional land trust, as used in Illinois, may under appropriate circumstances enter into a valid contract to convey title to the trust property. He may do so not as agent of the trustee but in his capacity of beneficiary. This right is limited to situations in which the trust agreement vests in him the sole right to direct the trustee to convey title. Such a contract will be mutually enforceable by the beneficiary as seller and the buyer where it expressly, or by reasonable construction, provides for exercise by the beneficiary of the power to direct conveyance.” Seaberg, 35 Ill. App. 3d at 1069-70.

In Feinberg, it was the beneficiary of the land trust seeking to enforce a lease agreement. The beneficiary had signed the lease as “authorized agent” of the trustee. (Feinberg, 131 Ill. App. 2d at 1089-90.) The court held that, when a beneficiary signs an agreement “as agent of the trustee contrary to the provisions of the trust agreement, the contract is not enforceable.” Feinberg, 131 Ill. App. 2d at 1091.

We note that the court in Prodromos did not discuss the numerous cases which have found agreements to sell or encumber real estate enforceable where the beneficiary of a land trust enters into the agreement in his capacity as “beneficiary” and has the power to direct conveyance of the property. (See Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 394; Giannini v. First National Bank (1985), 136 Ill. App. 3d 971, 987; Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 903; First National Bank of Barrington, Trust No. 11-1317 v. Oldenburg (1981), 101 Ill. App. 3d 283, 289-91; Jacobs v. Carroll (1977), 46 Ill. App. 3d 74, 79-81; House of Realty, Inc. v. Ziff (1972), 9 Ill. App. 3d 419, 421-22; see also Parkway Bank & Trust Co. v. Gleich (1991), 213 Ill. App. 3d 444, 452-57 (summary judgment improperly granted to defendant buyer where question of material fact existed regarding whether enforceable contract was formed when general partner of beneficiary limited partnership signed agreement as beneficiary); Scholwin v. Johnson (1986), 147 Ill. App. 3d 598, 603 (notice of forfeiture signed by beneficiary of land trust was valid).) We also note that cases have held that an enforceable agreement is created when the beneficiary of a land trust contracts as seller to cause title to be conveyed to the purchaser even though the purchaser is not specifically advised of the existence of the trust. See Lampinen v. Hicks (1979), 73 Ill. App. 3d 376, 377-79; Rizakos v. Kekos (1977), 56 Ill. App. 3d 404, 406-08.

The majority of the cases cited in the above paragraph relied on language in Madigan v. Buehr (1970), 125 Ill. App. 2d 8, which was also not cited by the Prodromos majority. In Madigan, the court held that a real estate contract was not enforceable where the plaintiff, the beneficiary of a land trust, represented herself as the owner of the property in the contract and in the complaint. The Madigan court proceeded to state, however, in an often-quoted passage:

“[I]t cannot be said that a beneficiary can never contract to sell the trust property. He may do so under appropriate circumstances, not because he has power to convey title or to execute a deed, or because he is the agent of the trustee or stands in its stead, but because the trust agreement gives him ‘control of the selling’ and the right to direct the trustee to convey title to whomever he designates. Since he has the power to designate conveyance he may contract to exercise that power. If the sales contract is one in which this power is explicitly exercised, or if it is one which, because of the disclosure of the trust and the beneficiary’s status, can be construed as exercising this power, the contract is enforceable against both the beneficiary and the purchaser.” Madigan, 125 Ill. App. 2d at 16-17.

This view, and the principle recited in Seaberg, are consistent with the actual operation of a land trust. It is well established that the trustee of an Illinois land trust has both legal and equitable title to the property, and the beneficiary’s interest is therefore personal property and not real property. (In re Estate of Alpert (1983), 95 Ill. 2d 377, 382; In re Estate of Bork (1986), 145 Ill. App. 3d 920, 926.) However, it is also true that “ ‘the Hlinois land trust gives the beneficiary full and complete control over the management, use, and disposition of the property, just as if he had legal title.’ [Citations.] During the life of the land trust, the trustee can act only upon the direction of the beneficiary.” (Parkway Bank & Trust Co. v. Gleich (1991), 213 Ill. App. 3d 444, 449, quoting Haswell & Levine, The Illinois Land Trust: A Fictional Best Seller, 33 De Paul L. Rev. 277, 278 (1984).) It is the realities of the land trust and not the formalities which should be of importance to courts. See Lampinen, 73 Ill. App. 3d at 379.

In this cause, defendants do not dispute the trial court’s finding that Towne had the sole power of direction over the land trust. Towne was designated as seller in the contract and signed the contract as agent for the trust. Hall’s affidavit stated that plaintiff had previously purchased property from Towne when Towne acted as beneficiary of other land trusts holding title to the property. We fail to see any dispositive distinction between the situation where a beneficiary creates a binding, enforceable contract by signing as beneficiary and the situation here, where a beneficiary with the sole power of direction signed as agent. We conclude that a question of fact has been raised regarding whether Towne was actually acting in his capacity as beneficiary (see Seaberg, 35 Ill. App. 3d at 1069) and whether the contract in this cause “is one which, because of the disclosure of the trust and the beneficiary’s status,” can be construed as exercising the power to direct conveyance (see Madigan, 125 Ill. App. 2d at 17).

We therefore decline to follow Prodromos and agree with Justice Egan’s conclusion in his lengthy and persuasive dissent that a “defendant should not be permitted to take advantage of the fact that he misrepresented to the plaintiff that the defendant was an agent of the trustee.” (Prodromos, 202 Ill. App. 3d at 1037 (Egan, J., dissenting).) Defendants have not argued on appeal that the agreement did not satisfy the Statue of Frauds. We note, however, that Justice Egan, in his dissent, has persuasively argued that the Statute of Frauds does not apply in this type of situation. (Prodromos, 202 Ill. App. 3d at 1037 (Egan, J., dissenting).) As a disputed issue of fact exists, defendant’s section 2—619 motion to dismiss should not have been granted without an evidentiary hearing.

Plaintiff next argues that the trial court erred in determining that the description of the property was not definite enough to allow an award of specific performance. Defendants contend that the property cannot be identified without extrinsic evidence, the plat of survey attached to plaintiff’s amended complaint as exhibit “B.” We again conclude that a disputed issue of fact exists.

A court may not award specific performance of a contract for the sale of land unless the contract is clear, definite and complete, and describes on its face the tract of land to be sold. (Douglas Theater Corp. v. Chicago Title & Trust Co. (1991), 210 Ill. App. 3d 301, 311; Calvary Temple Assembly of God v. Lossman (1990), 200 Ill. App. 3d 102, 105.) A written contract is not void for uncertainty in the description of the land sold if, from the words employed, the description can be made certain by extrinsic evidence of facts, physical conditions, measurements or monuments referred to in the contract. (Alter v. Moellenkamp (1961), 23 Ill. 2d 506, 510; Koch v. Streuter (1905), 218 Ill. 546, 557.) “The contract must either describe the land to be conveyed with such certainty that from the writing itself a deed can be drawn conveying the property intended, or it must furnish the means of identifying it with such certainty that from it a surveyor, by the aid of extrinsic evidence, can locate the property.” Welsh v. Jak stas (1948), 401 Ill. 288, 296; see also Kane v. McDermott (1989), 191 Ill. App. 3d 212, 217.

The trial court relied on our recent decision in Calvary Temple in determining that the description of the property was not sufficiently definite. We conclude, however, that Calvary Temple is inapposite. In Calvary Temple, the plaintiff sought specific performance of a real estate contract for the sale of a 31.1-acre parcel of property which provided that one of the sellers would retain a life estate in “the residence which he occupies on the subject property.” (Calvary Temple, 200 Ill. App. 3d at 104.) This court reversed the trial court’s award of specific performance, stating that the description of the life estate to be retained was insufficient. We noted that “[i]t is not clear from the face of the agreement if this estate includes any land around his home, the garage, any storage sheds, or only the home structure itself” and that a “clear or unambiguous description of the life estate was never placed in evidence.” Calvary Temple, 200 Ill. App. 3d at 107.

In this cause, the contract described the location of the property and stated that it was approximately 174,200 square feet. The contract also included a drawing of the entire parcel owned by the land trust with an outline of the subject property drawn in. We conclude that this description is much more complete than the description of the property to be conveyed in Calvary Temple. The contract does not appear to be ambiguous on its face.

We conclude therefore that the information contained in the contract may be sufficient to show with the necessary certainty the property to be sold. (See Koch, 218 Ill. at 558; Bamberg v. Griffin (1979), 76 Ill. App. 3d 138, 146; see also Annot., 73 A.L.R.4th 135, 187-89 (1989).) A factual question thus remains regarding whether sufficient information is included in the contract so that it can be located by a surveyor. Therefore, defendants’ motion to dismiss should not have been granted on this basis. Cf. Guel v. Bullock (1984), 127 Ill. App. 3d 36, 41 (summary judgment improperly granted where the plaintiff could prove a set of facts which would allow enforcement of the contract).

For the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and NICKELS, JJ., concur.


author: JUSTICE DUNN

text:
    JERRY M. AUFOX et al., Indiv. and as Parents and Next Friends of David Aufox, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT No. 113 et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0339
    Opinion filed January 31, 1992.
    Rehearing denied March 26, 1992.

      Jerry M. Aufox, of Bensenville, pro se, for appellants.
    Jeffrey R. Zehe, James T. Ferrini, and Michael R. Grimm, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., and Scariano, Kula, Ellch & Himes, both of Chicago (Imelda Terrazino, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs Jerry and Teresa Aufox appeal from orders of the circuit court of Lake County, dismissing counts I and II of their complaint against defendants Board of Education of Township High School District No. 113 et al. and granting defendants summary judgment on the remaining three counts. The issues on appeal are: (1) whether defendants’ disclosure to attorneys representing the Board in administrative hearings concerning the special education placement of plaintiffs’ son, David, of information from school records concerning his placement violates the Illinois School Student Records Act (Act) (Ill. Rev. Stat. 1989, ch. 122, par. 50—1 et seq.); (2) whether defendants’ disclosure of such information to the clerk of the circuit court of Lake County in a complaint seeking judicial review of the decisions made in the aforementioned administrative hearings violates the Act; and (3) whether plaintiffs waived any protections provided by the Act against the above disclosures. We affirm.

The following facts are not disputed. The Board of Education of Township High School District No. 113 (Board) is the supervisory authority for Highland Park High School. David, who suffered from a behavior disorder, entered the high school in August 1988. In October 1988, the school district proposed placing David in a self-contained behavioral disorders program at the high school. Jerry and Teresa felt this program was inadequate to meet David’s needs. They sought and received a hearing pursuant to sections 14— 8.02(f) and (g) of the School Code (Ill. Rev. Stat. 1989, ch. 122, pars. 14— 8.02(f), (g)) to challenge the proposed special education placement. Such a hearing is known as a Level I hearing. In the meantime they removed David from Highland Park High School and enrolled him at Valley View School, a private residential facility in Massachusetts.

The hearing officer issued a five-page order on February 18, 1989, approving the school district’s proposed placement of David. Jerry and Teresa appealed the order pursuant to section 14—8.02(h) of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 14-8.02(h)). This is known as a Level II appeal. The reviewing officer concluded that David should be placed in a residential facility such as Valley View. He declined Jerry and Teresa’s request for partial reimbursement of expenses incurred to that date from sending David to Valley View because that facility had not been approved by the Illinois State Board of Education. Both the reviewing officer’s report, which was dated May 22, 1989, and the hearing officer’s report discussed David’s behavioral problems and their nature.

Section 14—8.02(j) of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 14 —8.02(3)) permits any party aggrieved by the reviewing officer’s decision in a Level II hearing to bring a civil action for judicial review in the circuit court within 120 days. On July 20, 1989, the school district, through its retained attorneys, filed a complaint in the circuit court of Lake County for judicial review of the reviewing officer’s decision. Copies of that decision and the hearing officer’s order were attached to the complaint as exhibits. In those copies all letters of plaintiffs’ last name following the first letter were blacked out so that they were referred to as Jerry A., Teresa A., and David A. The caption and body of the school district’s complaint referred to plaintiffs in the same manner.

Jerry and Teresa filed an answer to the school district’s complaint and a counterclaim on August 17, 1989. In the counterclaim they sought review of the reviewing officer’s decision to deny their request for payment of a portion of the expenses incurred because of David’s enrollment at Valley View. The counterclaim adopted and realleged several paragraphs of the school district’s complaint including a paragraph which incorporated a copy of the reviewing officer’s decision into the complaint.

On September 21, 1989, articles about the above case appeared in two local newspapers, the News/Voice and the Highland Park News. Neither article disclosed the identity of plaintiffs, referring to them only as Jerry A., Teresa A., and David A. The News/Voice article was a brief summation of the nature and background of the school district’s suit. The Highland Park News article contained similar information although in greater detail. Both articles indicated that David was a high school student with behavioral disorders.

The school district suit and the counterclaim were subsequently dismissed pursuant to the agreement of the parties. On December 22, 1989, however, plaintiffs filed the lawsuit which led to the instant appeal. The named defendants were the Board, seven Board members, the school district superintendent, and two officials of Highland Park High School. Plaintiffs alleged in their second amended complaint that various defendants violated the Act by (1) allowing the school district’s attorneys who prepared the complaint for judicial review of the reviewing officer’s decision access to copies of that decision and the hearing officer’s decision; (2) revealing the contents of those two decisions to the Lake County circuit court clerk by attaching copies of them to the complaint for judicial review; and (3) revealing the information to the two newspaper reporters who authored the September 21,1989, articles.

Defendants filed a motion to dismiss the complaint. The motion was granted as to counts I and II, which only contained allegations concerning the first two alleged violations of the Act which were listed above. The remaining three counts, which contained allegations that certain defendants revealed information to the reporters who wrote the articles, were not dismissed at this point. Defendants later filed a motion for summary judgment with regard to these counts. Each individual accused in the complaint of revealing the information mentioned in the articles to the two reporters submitted an affidavit stating that he or she did not do so. Both reporters submitted affidavits stating that the information they published was obtained by reviewing the court file of the case filed by the school district. The Highland Park News reporter’s affidavit stated that she received confirmation of much of that information during a telephone conversation with Alan Sraga, one of the school district’s attorneys.

The above affidavits were submitted in connection with defendants’ motion for summary judgment. Plaintiffs filed no counteraffidavits. The trial court granted the motion in an order dated February 28, 1991. Plaintiffs appeal from that order and the earlier order granting the motion to dismiss with respect to counts I and II.

Plaintiffs contend that the school district’s disclosure of the decisions in the Level I and II hearings to the attorneys representing the district in the case initiated by the complaint for judicial review of those decisions violated the Act. Section 6 of the Act (Ill. Rev. Stat. 1989, ch. 122, par. 50—6) prohibits release, transfer, disclosure, or dissemination of school student records or information contained in the records except in the circumstances specified in that provision. Section 2(d) defines a school student record as any writing or other recorded information concerning a student and by which the student can be individually identified maintained by a school or at its direction or by a school employee. (Ill. Rev. Stat. 1989, ch. 122, par. 50—2(d).) The Act divides school student records into student permanent records and student temporary records, the contents of which are subject to regulation by the State Board of Education. Ill. Rev. Stat. 1989, ch. 122, pars. 50—2(e), (f).

The parties do not dispute that the decisions from the Level I and II hearings are school student records. A State Board of Education regulation states that all records relating to special education placement hearings and appeals are student temporary records. (See 23 Ill. Adm. Code §375.10 (1985).) Section 6 of the Act does not authorize the disclosure of student records to attorneys representing a school district in special education placement proceedings.

Nevertheless, as defendants point out, section 14—8.02(g) of the School Code (Ill. Rev. Stat. 1989, ch. 122, par. 14—8.02(g)) permits any party to a Level I hearing to be represented by counsel. It would seem impossible for an attorney to represent a school district at a hearing concerning a student’s special education placement without access to information from school records concerning that placement. Furthermore, the mere fact that the school district can have an attorney present at such a hearing will almost inevitably result in the attorney discovering confidential information about the student which is brought out at the hearing. We therefore conclude that the legislature in enacting section 14—8.02(g) intended to permit school districts to reveal to attorneys representing the district at special education placement hearings information from school records concerning the student who is the subject of the hearing.

Section 14—8.02 of the School Code therefore conflicts with section 6 of the Act (Ill. Rev. Stat. 1989, ch. 122, par. 50—6), which provides no exception permitting school districts to release information from school records to their attorneys. When there is an irreconcilable conflict between two statutes, the one which was more recently adopted will abrogate the other to the extent they are inconsistent. (In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 258.) This is because it cannot be presumed that the legislature intended to enact contradictory provisions. People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 363.

Section 50—6 of the Act became law on March 24, 1976 (see Ill. Rev. Stat. 1977, ch. 122, par. 50—6). Section 14—8.02 of the School Code became law on August 25, 1978 (see Ill. Rev. Stat. 1979, ch. 122, par. 14—8.02). We therefore conclude that section 14—8.02 of the School Code abrogates section 6 of the Act to the extent that the provisions are inconsistent. Accordingly, a school district may reveal the contents of a student’s school records to an attorney representing the district in proceedings concerning the student’s special education placement. Because the school district’s circuit court lawsuit was a continuation of such a proceeding, the district’s release of the Level I and Level II hearing decisions to its attorneys was proper and was not actionable.

Plaintiffs also argue that by attaching the Level I and II decisions to their complaint for judicial review certain defendants violated the Act by releasing information from school student records to the clerk of the circuit court of Lake County. Section 6(a)(6) of the Act (Ill. Rev. Stat. 1989, ch. 122, par. 50 —6(a)(6)) states, however, that school student records or information contained therein may be released “[t]o any person as specifically required by State or federal law.” Section 14—8.02(j) of the School Code states that if a party files a civil action in the circuit court to challenge the decision made in a Level II hearing, “the court shall receive the records of the administrative proceedings” (Ill. Rev. Stat. 1989, ch. 122, par. 14—8.02(j)). The word “shall” generally connotes a mandatory obligation. (New-kirk v. Bigard (1985), 109 Ill. 2d 28, 33.) We therefore conclude that transmission of the records from the Level I and II hearings including the decisions to the circuit court is required if a party files a complaint for judicial review of the Level II decision.

The clerk of the court in each judicial circuit has the statutory duty of preserving the files and papers of the court (see Ill. Rev. Stat. 1989, ch. 25, par. 13). Therefore the required transmission of the record of administrative proceedings, including the two decisions, to the circuit court is, in effect, a required transmission to the circuit court clerk, the official designated to preserve the court’s files and papers. Defendants’ disclosure to the clerk was therefore an authorized disclosure under the Act.

Prior to the time a disclosure of student records required by State or Federal law is made, the student’s parents must receive written notice of the nature of the information to be released, an opportunity to inspect and copy the records, and an opportunity to challenge the contents of the records. (Ill. Rev. Stat. 1989, ch. 122, par. 50—6(a)(8).) It is obvious that the purposes of this provision are to ensure that parents will be aware of any information to be released and will have a chance to challenge the accuracy of that information. Defendants violated this provision by failing to give prior written notice to plaintiffs of the records to be disclosed in connection with the complaint for judicial review.

An individual may waive his or her statutory rights, however. (Raimondo v. Kiley (1988), 172 Ill. App. 3d 217, 223-24.) Waiver is the intentional relinquishment of a known right. (Sexton v. Smith (1986), 112 Ill. 2d 187, 193.) A waiver may be express or implied, and it may arise from the conduct or words of the party waiving the right. Sexton, 112 Ill. 2d at 194.

Plaintiffs contend that they had a right to prior notice of the filing of the school district’s complaint in order to take measures to restrict disclosure of the Level I and Level II decisions which were attached as exhibits to the complaint. Plaintiffs’ actions, however, are completely inconsistent with the assertion of such a right. The two newspaper articles were not published for more than a month after plaintiffs filed their answer and counterclaim. In the meantime, plaintiffs took no steps to have the court file impounded (see Deere & Co. v. Finley (1981), 103 Ill. App. 3d 774, 776) in order to prevent public access to its contents. Instead, in their answer and counterclaim, which was a publicly filed document, plaintiffs acknowledged that the contents of the copies of the Level I and Level II decisions attached to the complaint were accurate. They also adopted into the counterclaim the copy of the Level II decision attached to the school district’s complaint. Under these circumstances plaintiffs acquiesced in the disclosure of the information and waived the asserted right.

For the above reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CAREY CURRY, Defendant-Appellant.
    Second District
    No. 2 — 89—1371
    Opinion filed February 26, 1992.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

A jury found the defendant, Carey Curry, guilty but mentally ill of the crimes of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8—4(a), 9—1(a)), armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A—2) and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12—4(a)). The trial court convicted him of the attempted murder charge and sentenced him to 18 years’ imprisonment. He appeals the dismissal of his post-conviction petition under section 122—6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 122—6). He contends that the circuit court should have conducted an evidentiary hearing regarding his claim that he was denied the effective assistance of counsel. The issue on appeal is whether the transcript of the trial showed trial counsel was ineffective for failing to advise the psychiatrist of the date of the commission of the crime and for failing to cite the correct law regarding the admissibility of the psychiatrist’s opinion. We affirm.

The offenses arose from an incident on October 14, 1982, in which defendant shot Porter Robbins on a street in Waukegan. On January 10, 1983, the trial court found defendant mentally unfit to stand trial, but it granted the petition showing recovery on July 21, 1983. Trial commenced on July 25, 1983. Defendant pleaded not guilty by reason of insanity and by self-defense. After the eyewitnesses testified to the circumstances surrounding the shooting and whether Robbins held a knife, defendant testified on his own behalf. Defendant testified that Robbins had threatened him with a knife over a period of two days.

Defendant also testified that he was not taking his medication at the time of the shooting. At the time of trial, he was taking around 6,000 milligrams of Thorazine and Cogentin. He had been institutionalized 12 times in the past for mental illness. He had been released for a year and a half, and when his prescriptions were depleted he did not bother to refill them. On cross-examination, defendant said he knew what he was doing when he shot Robbins; defendant shot in self-defense before Robbins could reach him with a knife. On redirect examination, defendant denied that he had ever been mentally ill and stated that he refused his medication because he did not think he needed it; he considered the medication to be an attempt to make him into a zombie.

During a break in the testimony, the prosecutor asked the court for a two-minute recess to talk to a rebuttal witness. The court also granted her time to talk to Dr. Goldman, the psychiatrist, who had examined defendant on November 1, 1982. After the recess, the prosecutor moved to exclude him as a witness, stating:

“With all respect to the doctor, he had asked me, right now, what was the date of the date [sic] of the occurrence. So, I am presuming that he did not know it was October 14th. I told him it was a few weeks before that. He said that he would not be able to give an opinion as to insanity on the date of October 14th, 1982, but that when he examined him on or about the 1st of November, 1982, he would have that opinion.
I think that the case law is pretty ample, in People versus [Dunigan (1981) 96 Ill. App. 3d 799], 421 Northeast 2d 1319, it clearly states that the day before, day after, or two weeks after is not significant, that there has to be an opinion as to sanity or insanity on the day of the offense.
So, I'm going to ask that the witness not be called.”

The trial court stated that it had a problem with the defense trying to imply that defendant was legally insane on the date of the occurrence based on a determination on a later date, but it had no problem with evidence suggesting defendant was mentally ill. Defense counsel stated he would “stick to mental illness” for which he was planning to tender a jury instruction. The court granted a prospective evidentiary ruling which it termed as an order in limine: if Goldman would not give an opinion that defendant was insane on the date of the occurrence, then he could not testify to insanity on later dates. If Goldman would testify regarding mental illness at the time of the occurrence, he could testify as to mental illness on later dates.

Dr. Goldman testified that he had examined defendant on a couple of occasions over the three years prior to the offense. He diagnosed defendant at those times as suffering from schizophrenia, which is manifested by a severe disorder of thought, a lack of logical consequences, delusional thinking, and a lack of normal emotional responses. It is a chronic illness that continues for many years. Defendant was prescribed as large a dose of medication as Goldman had ever seen, including 80 milligrams of Haldol and 2,000 milligrams of Thorazine per day. Defendant had been admitted 12 times to the Department of Mental Health, and Goldman reviewed those records.

During the November 1, 1982, examination, defendant was too uncooperative to give his mental history. Goldman then testified that “I, in all honesty, must say that I cannot be certain of what his mental state was in October. I can only be certain of what it was in November, when I saw him.” Goldman did say that in October defendant was suffering from schizophrenia. When defendant took his medicine he was rational, although he still lacked insight. Alcohol also accentuated defendant’s delusional thinking. In Goldman’s opinion, defendant had not been taking his medicine around November 1.

Defendant was found guilty but mentally ill and convicted of attempted murder. His counsel filed neither a written post-trial motion nor a notice of appeal. Defendant subsequently filed a post-conviction petition in which he claimed that trial counsel was ineffective. An attorney was appointed to represent him in the post-conviction proceedings. The circuit court dismissed the petition without an evidentiary hearing.

On appeal, defendant contends that trial counsel was ineffective because he did not inform his expert witness of the date of the commission of the offense and because he failed to cite the relevant authority regarding the expert witness’ opinion. Defendant also contends that trial counsel should have distinguished the holding of Dunigan. In Dunigan, the trial court excluded a lay witness’ recollections of the defendant which occurred 10 and 16 months after the crime. (People v. Dunigan (1981), 96 Ill. App. 3d 799, 820.) Only the insanity occurring during a crime can excuse the defendant, not insanity before or after the crime. (96 Ill. App. 3d at 820.) The Dunigan court also cited cases in which psychiatric examinations taken four to six months after the crime were too remote to be probative of defendant’s state of mind the day of the commission of the offenses. 96 Ill. App. 3d at 820.

In contrast, defendant now cites People v. Zemola (1972), 9 Ill. App. 3d 424, 429, and the cases cited in it, to show that a doctor could testify regarding a defendant’s past state of mind based on subsequent examinations. We agree with the Zemola court that most opinions of insanity delivered during trial are based on subsequent examinations. Dunigan is easily distinguishable because Dr. Goldman examined defendant only two weeks after the crime as well as a number of times before the crime, and the level of schizophrenia, a chronic condition, was affected by defendant’s failure to take his medication. Had Dr. Goldman an opinion of defendant’s sanity the day of the offense, he could have given it based on the foundation provided to the court.

The problem with defendant’s argument, however, is that he does not conform it to the test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and People v. Albanese (1988), 125 Ill. 2d 100, 106. Defendant must show that “but for” his counsel’s errors, the results of the trial would have been different. If there is a lack of sufficient prejudice to the defendant, the claim of ineffective assistance will be denied. (Albanese, 125 Ill. 2d at 106.) Defendant does not explain how he was prejudiced by his counsel’s failure to distinguish Dunigan. Defendant’s witness stated that he had no opinion regarding defendant’s sanity on October 14, 1982. Even if counsel had distinguished Dunigan, the results of the trial would be the same because the examining psychiatrist would offer no relevant opinion of defendant’s sanity.

In fact, the record does not show that the trial court’s prospective evidentiary ruling was ever put into play. On cross-examination, Goldman repeated that he did not have an opinion of defendant’s sanity on October 14. At the time of his November 1 examination, Goldman knew the date of the commission of the offense, which was two weeks prior. Goldman again would not venture an opinion whether defendant could appreciate the wrongfulness of his behavior on October 14 or whether he was able to conform his conduct to the requirements of the law.

The prosecutor also adduced that defendant displayed bizarre behavior during the examination. Defendant had not been malingering or trying to pretend he was insane. Defendant was suffering from paranoid schizophrenia on November 1, 1982. He was unable to conceptualize the purpose of the examination or to communicate adequately. The clinical picture of his insanity was clear. Goldman based his opinion on the examination, defendant’s demeanor and behavior, the previous examinations, the review of other medical documents and defendant’s response to medication. The fact that defendant had a clear recollection of the events of October 14 would only confirm Goldman’s opinion that defendant was acting in a catatonic state. Defendant was mentally ill during the trial and was more mentally ill at the previous time. Defendant’s denial of his insanity reflected his lack of contact with reality. If defendant had been drinking, in all probability he would have become increasingly disorganized and unable to conform his behavior to that required by society. On redirect examination, Goldman testified that defendant was currently mentally ill because a normal person would lapse into a coma under the massive doses of anti-schizophrenia drugs defendant was taking. Defendant could not be faking his schizophrenia because of this fact.

We include this testimony here because it reveals that the prosecutor adduced all the evidence which could have been excluded by the trial court’s evidentiary ruling. Thus, defendant suffered no prejudice from counsel’s failure to contest the purported trial error.

Moreover, we are not convinced that the trial court made an error in its evidentiary ruling. The expert witness stated twice that he had no opinion regarding defendant’s sanity at the relevant time. Thus, the facts upon which his opinion could have been based were irrelevant and could be properly excluded. We do not rule that no psychiatrist could extrapolate a subject’s insanity on a certain date by noting his prior insanity, his later insanity and a lack of medication, but we note that this witness was unwilling to do so. He would not venture an opinion. (See People v. Taylor (1971), 1 Ill. App. 3d 1053, 1062.) Thus, we do not see that the trial court erred or that trial counsel erred for failing to correct the court.

Finally, we do not find that trial counsel erred in failing to inform the witness of the date of the offense. Goldman testified that he knew the date of the offense when he examined defendant. Goldman was also informed of the date only four days prior to the trial, as reflected in the transcript of the July 21,1983, fitness hearing.

For the above reasons, the order of the circuit court of Lake County denying defendant’s post-conviction petition is affirmed.

Affirmed.

DUNN and NICKELS, JJ., concur.