author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHIRLEY TORRES, Defendant-Appellant.
    Second District
    No. 2—89—0076
    Opinion filed July 26, 1990.

      Michael D. Walsh, of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant was charged by indictment with violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)) for possession with intent to deliver 15 grams or more of a substance containing cocaine. During pretrial proceedings, defendant had three motions denied. The first was to compel the State to produce information in regard to the State’s search warrant affidavit. The second was a motion for a Franks hearing, and the third was a motion to suppress statements defendant made following her arrest. Following a jury trial, defendant was found guilty of the count charged in the indictment, and she was sentenced to a term of 15 years’ imprisonment.

On appeal, defendant raises the following issues: (1) whether the trial court erred in quashing defendant’s subpoena for information relating to the State’s search warrant affidavit; (2) whether the trial court erred in denying defendant a Franks hearing; (3) whether the trial court erred in allowing evidence concerning the purity of the cocaine; (4) whether there was prejudicial error where, at the suppression hearing, the trial court allowed the State to question defendant about the substance of the statement she wanted to suppress; (5) whether the trial court erred in denying defendant’s motion to suppress statements made following her arrest; (6) whether the trial court improperly denied defendant her right to cross-examination; (7) whether defendant was proved guilty beyond a reasonable doubt; and (8) whether defendant’s sentence was proper. For the reasons stated below, we affirm.

The facts are essentially as follows.

On June 2, 1988, at 5:30 p.m., Chicago police officers, working in conjunction with the Drug Enforcement Agency, executed a search warrant for defendant’s residence and found a bag containing two bags of white powder and a briefcase containing a large sum of cash.

Agent August Lett testified he found a bag with the name “Lerner” in the bedroom closet which contained inside it two bags of white powder. One of the bags contained 32 smaller bags of the powder. Lett also found directly beneath the Lerner bag a briefcase containing cash totaling $42,500. Lett noticed that the closet contained male and female clothing. There was no furniture in the bedroom as the residents were moving. He confronted defendant with the substance and the cash and arrested her. Agents Thomas Bridges and Thomas McDermott were present at this time. Lett read defendant her Miranda rights, reading from a card and asking defendant to state after each right whether she understood. She stated she did. Then, Agent Bridges asked defendant whether there was any more contraband in the residence and whether she had a scale. She responded, “No. I buy pre-packaged kilos.” Later, at the police station, Agent Lett prepared a written rights and waiver form, which defendant refused to sign.

Agent Bridges testified that Agent Lett advised defendant of her Miranda rights by reading her all her rights and then asking her if she understood. Bridges asked defendant if there was any more contraband in the house, and she responded no. He also asked her if she had a scale, and she responded that she did not use a scale because she bought prepackaged kilos. Agent McDermott testified he did not recall whether Agent Lett asked separately whether defendant understood each right or whether she was asked this at the end of the reading of her rights. McDermott also did not recall whether Lett or Bridges asked the defendant questions after she was advised of her rights, though he first stated on direct examination that Agent Lett asked the questions.

The parties stipulated that the substance seized from defendant’s residence was 947 grams of cocaine with a purity content of 95%. Lett and Bridges testified that one would not ordinarily possess such a large amount of high purity cocaine for personal consumption.

Betty McCain was called to testify by defendant. She testified that she was a moving company employee who had been to defendant’s house to help her with her packing. On May 23, 1988, she saw the master bedroom closet and noticed male and female clothing. On May 26, 1988, she was at defendant’s residence and saw a man named Diego Meza in the master bedroom.

Defendant testified that her boyfriend, Diego Meza, moved into her residence two days prior to June 2, 1988, and shared the master bedroom with her. For three months prior to this time, Meza spent much of his time at her residence. Defendant had seen the briefcase seized from her house at defendant’s apartment two weeks before June 2. She remembered that, when defendant moved into her house, he carried the briefcase into her bedroom. She first testified she did not know where in the bedroom Meza put the briefcase, but on cross-examination she stated she knew it was in the closet. She did not know there was money in it. Defendant testified that the Lerner bag was a bag she received at a store where she bought clothing the weekend before June 2. The bag did not have plastic liners when she brought it home. She never saw Meza with the bag.

Defendant told the officers when they presented her with the search warrant that there was no cocaine in her house. Defendant denied being confronted with the cocaine or the cash at her house. She saw the police take these items, but she was not confronted with them, and she was not read her rights after she was arrested. She told the police she did not have a scale, and she had nothing else in the house, but she did not state that she bought prepackaged kilos.

Other facts necessary to this appeal will be discussed within the context of their relevance to the issue to be decided.

Defendant first contends the trial court erred in quashing her subpoena duces tecum. Defendant subpoenaed Agent Thomas Bridges of the Chicago police department to produce information referred to in his complaint for a search warrant of defendant’s residence. In his affidavit, Bridges stated he received information from an informant that the informant had been to the residence of a woman named Shirley who took him to the living room and allowed him to try some cocaine. She showed him a package that she stated was a kilogram of cocaine. Bridges stated he had worked with the informant for two years, and the information had always proved correct by surveillance. Further, on three occasions, the informant gave information which resulted in seizures of controlled substances, the cases of which were now pending in the courts. Bridges also stated he ran defendant’s name through the National Narcotics and Drug Enforcement computer and learned defendant was a documented multikilo distributor of cocaine. Finally, Bridges stated that, since the time the informant had been to the residence, the police kept the residence under constant surveillance and the only person to enter or leave since that time was defendant.

Defendant subpoenaed Bridges to produce the case numbers of the three cases resulting from the informant’s information and a computer printout of the information provided by the National Narcotics and Drug Enforcement computer. On appeal, defendant argues this information should have been provided because it was a reasonable request relevant to her defense. She argues that all information concerning the veracity of the affiant’s statements in the search warrant complaint is available for discovery. We find defendant fails to recognize the applicable law on this issue.

In People v. Rodriguez (1983), 119 Ill. App. 3d 575, 577, the court pointed out that prior to the decision in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, Illinois law prohibited a defendant from impeaching the veracity of the sworn statement in support of a search warrant. In Franks v. Delaware, the Supreme Court announced a limited exception to this ban, stating that, while there is a presumption of validity with respect to an affidavit supporting a search warrant, where a defendant makes a substantial preliminary showing that an affiant, knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant’s affidavit, defendant is entitled to a hearing if the false statement is integral to the probable cause determination. 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.

Rodriguez went on to note that, without some discovery, a Franks claim regarding the reliability of an informant may be difficult to prove (Rodriguez, 119 Ill. App. 3d at 578); however, citing United States v. Dorfman (N.D. Ill. 1982), 542 E Supp. 345, it ruled that, in light of the presumption of validity of an affidavit in support of a search warrant, defendant must make some preliminary showing that the affiant’s statements concerning his anonymous informant were deliberate falsehoods. (Rodriguez, 119 Ill. App. 3d 575.) The court ruled defendant failed to make any showing whatsoever that the affiant’s statements concerning the existence or reliability of his anonymous informant were deliberate falsehoods. Therefore, defendant’s wide-reaching request for police documents, including, among other things, all search warrants by the affiant officer for a two-year period, was properly denied. Rodriguez, 119 Ill. App. 3d at 576-78.

In People v. O’Toole (1987), 164 Ill. App. 3d 23, this court addressed whether a defendant was entitled to information regarding the time of the alleged meeting described in the search warrant affidavit. After discussing Rodriguez and People v. Freeman (1984), 121 Ill. App. 3d 1023, we held that defendant must meet a burden of a preliminary showing less substantial than under Franks (see People v. Freeman, 121 Ill. App. 3d at 1028-30) before disclosure would be warranted. (O’Toole, 164 Ill. App. 3d at 27-28.) We ruled that the trial court erred in ordering the State to divulge the time of the alleged meeting described in the affidavit because defendant failed to meet his burden of proof, however insubstantial, where defendant submitted no reasons whatsoever in support of his discovery requests regarding the underlying affidavit. (O’Toole, 164 Ill. App. 3d at 28.) We noted that defendant had not argued any justifications that the mention of the date in the search warrant was inadequate or made a preliminary showing impossible. O’Toole, 164 Ill. App. 3d at 28.

O’Toole and Rodriguez establish that a defendant is not simply entitled to information related to a search warrant affidavit because it appears relevant. Rather, defendant must meet a burden of a showing less substantial than that in Franks before discovery will be allowed. Exactly what a defendant must show to meet this burden is not entirely clear from the two cases. In Rodriguez, the court held that defendant must make some showing that the affiant made a deliberate falsehood in the affidavit. This requirement is in line with the showing required under Franks. In O’Toole, however, we appeared to state that a defendant could meet the burden by arguing that a preliminary showing would be impossible without the information. An arguable interpretation of this statement is that a defendant need not allege a falsehood in the affidavit, so long as he alleges that it would be impossible to make a preliminary determination of the affiant’s veracity without the information. We find, however, that this interpretation is inconsistent with the basic presumption of validity attached to the warrant affidavit. Therefore, we find defendant must offer some showing that there is reason to believe the affiant made a deliberate or reckless falsehood.

It is clear in this case that defendant has failed to meet her burden, however insubstantial, to compel disclosure of the information she requested. Defendant made no argument in support of her subpoena that the affiant had made false statements in the affidavit complaint. Defendant argued only that it would be extremely difficult to determine the veracity of the police officer’s affidavit. She contends the information regarding the case numbers of the three other cases may determine the truthfulness of the complaint. She made no claim that she had any reason to believe the officer made false statements. At this stage, defendant’s arguments suggest she was using the discovery process to engage in a fishing expedition. As stated in O’Toole, attempts to elicit further information not contained in the affidavit without an initial showing of necessity amounts to a fishing expedition by the defendant and opens the door to potential abuse. O’Toole, 164 Ill. App. 3d at 28.

Defendant next argues that the court erred in denying her motion for a Franks hearing. As already stated, to obtain a Franks hearing, defendant must make a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit. Furthermore, defendant must show that the allegedly false statement is necessary to the finding of probable cause. (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676; see also People v. Lucente (1987), 116 Ill. 2d 133.) In Lucente the court explained that this standard was one that lies somewhere between mere denials on the one hand and proof by a preponderance of the evidence on the other. “Put another way, the preliminary burden must be sufficiently rigorous to preclude automatic hearings in every case, but not so onerous as to be unachievable.” (Lucente, 116 Ill. 2d at 152.) The determination as to whether there has been a substantial showing sufficient to warrant a hearing must be made by the trial judge, and will, to a degree, be the final decision. Lucente, 116 Ill. 2d 133.

Turning to defendant’s motion, defendant charged that the alleged events stated in the officer’s complaint did not occur at the date and place stated by the officer’s informant. In his affidavit, Agent Bridges stated that the informant had been at defendant’s house and sampled cocaine within the last 48 hours. Exactly when this 48-hour period began is not certain. The affidavit was signed and sworn on June 2, but the time that it was signed and sworn is not specified. The warrant was issued at 4:05 p.m. June 2. Defendant also charges that the officer was not present at the house at the time alleged in the affidavit. Bridges stated that the house had been under surveillance since the time the informant was there and the only person to enter or leave was defendant.

In support of her motion, defendant attached affidavits from herself, James Mohnke and Marina Giraldo. Defendant stated in her affidavit that, on May 31, the only individuals at her home were employees of a moving company who were moving her furniture from 12 to 6 p.m., her four children, her boyfriend, Diego Meza, and her babysitter, Marina Giraldo. On June 1, no one other than these people were at the house. The moving company employees were at the house from 12 to 8 p.m. On June 2, defendant left the house at 7:45 a.m. with her children and her baby-sitter and drove away in her automobile, returning with the same occupants at 9 a.m. The only person present when she returned was Diego Meza. At 10:30 a.m., defendant left the residence by herself in her car. She returned at 12:30 p.m. and remained at the house until 2 p.m. The only people at the house until 4:30 p.m., when she left the house again, were her children and her housekeeper. (Defendant does not explain the apparent discrepancy between her statement that she remained at the house until 2 p.m. and her next statement that she left the house at 4:30 p.m.) Defendant returned to the house at 5:30 p.m. At no time on June 2, 1988, did defendant show anyone cocaine in her residence.

Marina Giraldo’s affidavit essentially corroborated defendant’s. She stated she was present at the house on May 31 and June 1 and saw no one except the same people stated in defendant’s affidavit. On June 2, she left with defendant at 7:45 a.m. and returned at 9 a.m. Giraldo stayed at the house the rest of the day. Defendant left the house at 10:30 a.m. At 11:30 a.m., Diego Meza left the house. Also at 11:30 a.m., defendant returned. Defendant next left the house at about 12:30 p.m. and returned at 2 p.m. She left again at 4 p.m. and returned at 5:30 p.m. Giraldo stated that the residence consisted of a living room, dining area, kitchen and four bedrooms. She saw no individuals in the living room on June 2 other than those mentioned.

Mohnke stated that he was an employee of the moving company who moved furniture at defendant’s residence on May 31 from 12 to 6 p.m. At the residence were defendant, defendant’s four children, Diego Meza and defendant’s housekeeper. There was also a person helping whose name was not known. On June 1, Mohnke returned to the house with a helper at 12 and worked until 8 p.m. At no time did he see any other individuals about the house, and at no time did he hear defendant discuss the sale of cocaine.

We find defendant’s affidavits fail to establish a substantial preliminary showing under Franks. This case is unlike Lueente, cited by defendant, where the affidavits submitted by defendant established that defendant was not at his residence at the time the alleged transaction occurred. (Lucente, 116 Ill. 2d at 153.) Defendant’s affidavit amounts to no more than a denial, and the other affidavits do not substantially establish that Agent Bridges made false statements in his affidavit.

The affidavits do not substantially demonstrate that Bridges falsely stated that an informant had sampled cocaine in the living room within 48 hours from the time he signed the affidavit. Mohnke’s affidavit covered only from 12 to 6 p.m. May 31 and 12 to 8 p.m. June 1, thus leaving a vast time frame uncovered. Giraldo’s affidavit does not substantially establish that, during the 48-hour period in question, she would have seen a person in defendant’s living room discussing a purchase of cocaine. She stated she was at the residence on the days in question and that no one, other than defendant, defendant’s children, and Diego Meza, was in the living room on June 2, but she did not state that she was in the living room at all times or that defendant was in her sight at all times.

Defendant’s affidavits also fail to show substantially that Bridges’ made a false statement when he stated that, from the time the informant left the house, no one except defendant left or entered the residence. Bridges’ stated the informant was at the house within the last 48 hours from some point on June 2. The warrant was issued at 4:05 p.m. It is likely that Bridges completed the affidavit at some time just before 4:05 p.m. Thus, the 48-hour time frame could be 48 hours just prior to 4:05 p.m. Defendant’s affidavits establish that, on June 2, Diego Meza left the house at 11:30 a.m. and the only person to enter or leave the house after him was defendant. Thus, if the informant entered the house after 11:30 a.m. when defendant was home for certain periods of time before 4:05 p.m., then Bridges’ statement would not be false. Even assuming arguendo that this statement was false, this showing would not be enough to warrant a Franks hearing. Without this fact, the search warrant complaint still establishes probable cause in that it describes an informant’s sampling of cocaine and describes the informant’s reliability. See Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.

Next, we find no merit to defendant’s contention that the trial court erred in admitting into evidence testimony of the purity of the cocaine seized at defendant’s residence. Defendant argues that, because the statute under which she was charged with possession with intent to deliver, section 401(a)(2) of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)), does not require the illegal substance to have a certain purity level, the evidence of the purity is irrelevant. We disagree. Intent to deliver is necessarily proved by circumstantial evidence. (People v. Friend (1988), 177 Ill. App. 3d 1002, 1021.) Evidence which tends to show that an amount of a controlled substance would not be possessed for personal use, such as the amount and purity of the drug, is clearly relevant to a charge of possession with intent to deliver. People v. Johnson (1986), 143 Ill. App. 3d 122, 129.

We also find no merit to defendant’s next contention that, during defendant’s motion to suppress, the trial court erred in allowing the State to question defendant about the substance of the specific statement defendant sought to suppress. Defendant contends the contents of the statement were not relevant to the issue of whether defendant received her Miranda warnings or gave a voluntary statement. We need not decide whether this testimony was irrelevant because there is no evidence that defendant was prejudiced by this testimony. The trial court is presumed to recognize and disregard incompetent evidence presented to it. (People v. Richardson (1988), 123 Ill. 2d 322.) There is no evidence in the record that establishes that the trial judge’s decision on the suppression issue was influenced by testimony of the defendant’s statement.

Defendant also argues the trial court erred in denying her motion to suppress post-arrest statements where she was not advised of her Miranda rights. Defendant testified at the suppression hearing and at trial that the police did not advise her of her rights when they arrested her at her residence. Three police officers testified to the contrary. Defendant argues that the police officers’ credibility is called into question because defendant later refused to sign a waiver of rights at the police station. A trial court’s determination that a confession is voluntary will not be reversed unless it is contrary to the manifest weight of the evidence. (People v. Terrell (1989), 132 Ill. 2d 178, 198.) In this case, the issue comes down to one of whom to believe. Generally, a court of review should not encroach upon the trier of fact’s function of weighing credibility. (People v. Morgan (1986), 112 Ill. 2d 111, 136.) Here, the trial court’s determination that defendant’s statement was voluntary is not contrary to the manifest weight of the evidence. The fact that defendant later decided not to sign a waiver form does not cast sufficient doubt on the officers’ testimony that she had earlier stated she understood her rights and voluntarily spoke to the officers. See People v. Jennings (1986), 142 Ill. App. 3d 1014, 1031.

Defendant next contends she was denied a constitutional right to a fair trial when the trial court precluded her from further cross-examination of a witness. Cross-examination of witnesses is a matter of right; however, the latitude to be afforded in such examination is largely within the discretion of the trial judge, and, absent a clear abuse of discretion resulting in manifest prejudice to defendant, the trial court’s determination will not be disturbed on appeal. (People v. DeSavieu (1983), 120 Ill. App. 3d 420, 428.) As will be shown below, the instance in question here does not show an abuse of discretion or prejudice to defendant.

Defendant was precluded from a second re-cross-examination of Agent Bridges in regard to his report, known as a DEA Form 6. On cross-examination, defendant asked Bridges about a section of the report entitled “details” which included six numbered paragraphs. This section, Bridges testified, took up approximately half of a page and was followed by a page and a quarter description of what was taken and how it was disposed. On redirect examination, the officer testified that the report stated defendant was read her constitutional rights and described the questions asked of her and her responses. On recross-examination, Bridges testified that the only details under the “details” heading included defendant’s statement and the fact she was advised of her rights. On further redirect, Bridges testified there were numerous details in the report in regard to where the police were, what they found, where they found it, and who was present. On further re-cross, defendant asked Bridges to what details he was referring. At this point, the court stopped the defendant from further questioning, stating that the witness had been examined back and forth and back and forth.

We find the trial court’s ruling is entirely appropriate. There is nothing in the record to indicate that defendant was precluded from obtaining information that had not already been thoroughly covered by both counsel. Moreover, defendant does not explain how this instance could have resulted in any prejudice. Defendant refers to the significance of her post-arrest statement in arguing this point. Yet, there is no reasonable inference that defendant’s attempt at further re-cross-examination would have shed any more light on the circumstances surrounding defendant’s post-arrest statement.

Next, we address defendant’s contention that the State failed to prove her guilty beyond a reasonable doubt. A defendant’s conviction will not be reversed on appeal unless it is concluded that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261.

Defendant contends the State failed to prove beyond a reasonable doubt that she possessed cocaine with an intent to deliver because there was evidence that she shared her bedroom in which the cocaine was found with her boyfriend, Diego Meza. To prove possession, the State must prove beyond a reasonable doubt that defendant had knowledge of the presence of the cocaine and that it was within defendant’s immediate and exclusive control. (People v. Rush-Bey (1987), 152 Ill. App. 3d 17, 22.) Proof that defendant controlled the premises where the drugs were found gives rise to an inference of knowledge and possession. (Rush-Bey, 152 Ill. App. 3d at 22.) In this case, there is proof that the cocaine was found in defendant’s residence in her bedroom closet. Moreover, defendant’s statements after her arrest that there was nothing else in the house and that she only bought prepackaged kilos clearly defeats her contention that she had no knowledge of the drugs found in her closet. This evidence, along with the evidence concerning the amount and purity of the cocaine, and the $42,500 cash found in the closet, provides sufficient evidence to find defendant guilty of possession with intent to deliver.

Finally, defendant contends her sentence of 15 years’ impris-onment was an abuse of discretion. A defendant’s sentence will not be altered on review unless it is shown that the trial court abused its discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153.) We conclude that the record does not show an abuse of discretion in this case.

Defendant contends the court failed to consider the following mitigating factors: (1) defendant’s lack of criminal history; (2) defendant’s stated remorse; (3) the letters from defendant and defendant’s daughter; (4) defendant’s prior employment background; (5) defendant’s cooperation with DEA agents and her participation in GED classes; (6) defendant’s potential for rehabilitation; and (7) defendant’s testimony and letter stating that the drugs were brought into her home by her boyfriend. Defendant acknowledged that the court considered defendant’s family as a mitigating factor.

The record does not demonstrate that the trial court failed to consider these factors. Where mitigation evidence is before the court, it is assumed the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Foreman (1987), 153 Ill. App. 3d 346, 358.) Defense counsel referred to the mitigating factors in argument. The trial court stated that it had read the presentencing report and heard the arguments of counsel. There is no evidence that the mitigating factors were not considered.

Defendant’s sentence of 15 years’ imprisonment is not an abuse of discretion. At the time of defendant’s arrest and conviction, one convicted of possession with intent to deliver more than 15 grams of cocaine was sentenced as a Class X felon (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)), subject to no less than six years and no more than 30 years’ imprisonment (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(3)). While the defendant is correct that mitigating factors were present in this case, it is also true that defendant was convicted of a serious offense. The trial court took note of the quantity of cocaine seized, 946 grams, and the community’s concern over the distribution and sale of cocaine. In drug-related cases, the amount of a controlled substance is relevant to the determination of the seriousness of the offense. (Foreman, 153 Ill. App. 3d at 358.) As was stated in People v. Foreman:

“The objective of restoring a defendant to useful citizenship is to be accorded no greater consideration than that which establishes the seriousness of the offense, and the prime responsibility for striking the proper balance between these two factors rests with the trial court.” (Foreman, 153 Ill. App. 3d at 358.)

We find the trial court’s decision reflects a fair consideration of the mitigating factors and the seriousness of the offense. See also People v. Edwards (1984), 128 Ill. App. 3d 993 (12-year sentence for unlawful possession with intent to deliver where defendant had no criminal record, was self-employed, and supported his family not an abuse of discretion); People v. Atencia (1983), 113 Ill. App. 3d 247 (18-year sentence for possession with intent to deliver cocaine not improper even though defendant had no prior convictions and had a wife and three children).

Nor do we find defendant was prejudiced by the State’s argument to the court in which the State referred to the newer sentencing guidelines effective July 1, 1988, under section 401.1 of the Illinois Controlled Substances Act, which stated that one convicted of possession with intent to deliver more than 900 grams shall be sentenced to no less than 15 years and no more than 60 years (Ill. Rev. Stat. 1987, ch. 56½, par. 1401.1(3)). In referring to this statute, the State made clear that it was not suggesting that defendant should be sentenced under these new guidelines. Rather, it noted the statute as evidence that the legislature considered this a serious offense. Given that defendant’s sentence was 15 years less than the maximum of 30 years under the proper statute in her case, there is no reason to believe the trial court was improperly influenced by the State’s reference to the enhanced sentencing guidelines for drug offenses.

The judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT THOMAS, Defendant-Appellant.
    Second District
    No. 2—89—0857
    Opinion filed July 26, 1990.

      William P. O’Connor, of Orland Park, George P. Lynch and James J. Flynn, both of George Patrick Lynch, Ltd., and Edwin C. Thomas III, of Bell, Boyd & Lloyd, both of Chicago (David M. Novak, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Robert Thomas, was charged with driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)), driving with an alcohol concentration of .10 or more (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(1)), improper lane usage (Ill. Rev. Stat. 1987, ch. 95½, par. 11—709), and battery. A jury acquitted defendant of battery but convicted him of the three counts under the Illinois Vehicle Code. The trial judge entered convictions of driving under the influence of alcohol and improper lane usage and sentenced defendant to one year of probation, a fine of $750 plus costs, and counseling.

On appeal, defendant raises the following questions: (1) whether he was prejudiced by improper prosecutorial comments during closing argument; (2) whether the arresting officer had a reasonable suspicion to stop his car; (3) whether the trial court erred in admitting the result of his breathalyzer test where he initially refused and later volunteered to take the test; (4) whether proper foundation was introduced to admit the results of the breath test; and (5) whether the court erred in allowing evidence of his initial refusal to take the breathalyzer test and whether his fifth and sixth amendment rights were violated. For the reasons stated below, we affirm.

Initially, we note that the State correctly charges defendant with a gross violation of Supreme Court Rule 341(e)(6) (113 Ill. 2d R. 341(e)(6)). Defendant’s statement of facts is an extremely argumentative, slanted statement that is of no assistance to those who must review his case. We hope that in the future this court will not see such blatant disregard for the rules from counsel.

From our review of the record, we summarize the evidence at trial as follows.

Police officer John Barnacle, a police officer for 5V2 years, testified as follows. On February 25, 1988, at 1:35 a.m., he was traveling south on Route 83 when he observed a black Cadillac 100 feet ahead, traveling in the left inside lane. The car went halfway into a left turn lane without signaling and then merged back to the inside lane. The car went about 15 feet into the turn lane for one to two seconds. It then twice merged halfway into the outside lane of traffic. Barnacle activated his lights, and the Cadillac stopped in the left lane. Then, it made a 90-degree turn, crossing over the outside lane, and turned into a gas station where it stopped. The temperature at the time was in the 30’s, and it was a clear night.

Defendant got out of the car and met Barnacle in the parking lot. Defendant had slurred speech and a strong odor of alcoholic beverage from two feet away. He was unsteady on his feet. When Barnacle asked him if he knew the time and day, defendant responded that it was around midnight Friday. It was actually 1:35 a.m. Thursday morning. Barnacle then requested defendant to perform field sobriety tests. First, Barnacle instructed defendant to place his feet together, heel to toe, while he listened to the instructions. Defendant repeatedly took his foot away during the instructions. Defendant then began the walking heel-to-toe test before Barnacle instructed him to begin, even though Barnacle told him not to begin until he was instructed. Barnacle told defendant to take nine steps, heel to toe, along a crack in the pavement. Defendant took nine steps but failed to walk heel to toe. He took normal steps, and he swayed when he walked. Defendant repeated the test at his own request and failed it in the same manner. Defendant also failed to complete the one-leg stand test. Defendant could not stand on one leg and count to 30. Barnacle placed defendant under arrest for driving under the influence of alcohol. Defendant was handcuffed because he pulled away from Barnacle after being told he was under arrest. Defendant swore at Barnacle and the other officer at the scene.

At the police station, Barnacle asked whether defendant would take a breathalyzer test. Defendant stated he wanted to talk to his attorney before he took the test. Barnacle told him he did not have a right to an attorney, and, if he would not take the test before talking to his attorney, it would be considered a refusal. Defendant was allowed a phone call. As Barnacle stood near defendant on the phone, defendant struck him in the chest. After defendant’s brother, an attorney, arrived at the police station and consulted with defendant, defendant stated he wanted to take the breathalyzer test. Barnacle allowed defendant to take the test.

Barnacle observed defendant for 20 minutes before he took the test. In administering the test, Barnacle followed the operational checklist approved by the Department of Public Health (Department) for the Intoxilyzer 5000, a machine he stated was approved by the Department. The readout from the test stated that defendant had a blood-alcohol concentration of .19.

Barnacle took a 40-hour class for training on use of the Intoxilyzer 5000. The class curriculum was approved by the Department. After completion of this class, he was certified to use the Intoxilyzer 5000 and has been recertified every year since. The machine used to test defendant was inspected and certified February 5, 1988, and March 11, 1988, by a representative from the Department. The Department required inspection within 45 days of consecutive months. On cross-examination, Barnacle stated he was not qualified to answer questions about the inner workings of the machine.

Patrick Curtis testified for defendant as follows. He was employed at the gas station where defendant and the officer were parked on February 25, 1988. The temperature that night was 32 degrees below zero with the wind chill. Defendant and the officer were 20 feet from the office where he was standing. He saw defendant stand on one leg for 10 to 15 seconds and then put it down and raise the other leg and stand on it for the same amount of time. Then he saw defendant perform the “arm test.” There was no testimony from anyone else about an arm test. He also saw defendant walk heel-to-toe for four to five feet. Defendant did not stagger or stumble. Defendant and his brother returned to the station at 3:30 a.m. and asked him if he had seen defendant’s wallet. He did not notice an odor of alcohol on defendant. At this time, he witnessed defendant’s driving for 10 minutes as defendant drove his car from the parking lot onto the road. In his opinion, defendant was not under the influence of alcohol. On cross-examination, he testified that that there were two gas islands between the road and the gas station office where he said he was standing 20 feet from the defendant and the officer.

John Bederka testified as an expert on the Intoxilyzer 5000 machine. He holds a master of science degree in organic chemistry and a doctor’s degree in pharmacology. Back in 1968 he worked with infrared technology, which he explained was behind the workings of the Intoxilyzer 5000. He found the Intoxilyzer 5000 to be a crude instrument for measuring the percentage of alcohol in a person’s bloodstream because the machine was set for the average person, but not everyone fell within the average setting of the instrument. He explained that the ratio of air to alcohol in the lungs differed for different people and that this ratio did not necessarily correspond to the person’s blood level of alcohol. Thus, if a person had a low ratio of air-to-alcohol content in his lungs, the machine would render a high reading, but the person may not have such a high content of blood-alcohol, and vice versa. Bederka had not tested defendant to determine whether he had an average ratio and did not know otherwise whether defendant’s ratio fell within the average level. Bederka also stated that he had never used a breathalyzer machine and had never written about the machine.

Robert Wasz testified that, on February 24, 1988, he was with the defendant at a restaurant in Oak Brook Terrace where they attended a board of directors meeting that later turned into a dinner and more business discussion. The board meeting began about 7:30 p.m. and lasted for an hour to two hours. No alcoholic beverages were served at the board meeting. After the meeting, everyone had a cocktail and ordered dinner. Defendant probably had some wine with dinner. After dinner, everyone drank coffee because serious matters were still being discussed. He left the restaurant about midnight and was not sure whether defendant walked out with him or not. In his opinion, defendant was not intoxicated. On cross-examination he stated he was not counting defendant’s drinks or paying attention to what he drank.

Edwin Thomas, defendant’s brother, testified he did not detect an odor of alcohol coming from defendant at the police station. Defendant had no difficulty walking when he saw him. He brought defendant back to his car at the gas station and followed him out of the station as defendant drove home. He noticed nothing unusual about defendant’s driving. In his opinion, defendant was not under the influence of alcohol.

Defendant testified as follows. He had two glasses of wine during dinner after the board meeting. He had a full meal for dinner. He drank his first glass of wine at about 10 p.m., and after dinner he drank decaffeinated coffee for about IV2 hours. When he left the restaurant at about 12:30 or 12:45 a.m., he was not under the influence of alcohol. While driving south on Route 83, he proceeded south of Hinsdale when he saw Officer Barnacle’s police car, traveling north, make a U-turn and follow behind him. Defendant did not drive outside his lane of traffic. When the officer put his lights on, he slowed down, put on his blinker, and crossed over to the gas station on the right side of the road. He never stopped in the left lane.

Defendant got out of the car and walked toward the officer, about 20 feet from the gas station office. It was very cold and windy. He asked the officer why he was stopped, and the officer asked for his driver’s license. He showed his driver’s license and asked again why he was stopped. The officer told him he wanted him to take some tests. He agreed to take the tests. He walked heel-to-toe without difficulty and successfully performed the one-legged stand counting to 10. His speech was not slurred. He did not struggle with the officer or call him names after he was arrested. Nor did he strike the officer at the police station.

Defendant introduced into evidence a copy of a weather report stating that the weather at O’Hare Airport on February 25 ranged from 14 to 27 degrees. At 3 a.m., it was 15 degrees.

In rebuttal, Officer Barnacle testified that he was not driving north on Route 83 prior to stopping defendant.

In his first argument, defendant contends the prosecutor made numerous prejudicially improper comments during closing argument. A prosecutor is generally permitted wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to defendant. (People v. Thompkins (1988), 121 Ill. 2d 401, 445.) A court will consider the context of the language used, its relationship to the evidence, and its effect on defendant’s right to a fair trial (Thompkins, 121 Ill. 2d at 445) in determining whether the prosecutor’s comments constituted a material factor in defendant’s conviction (People v. Clark (1972), 52 Ill. 2d 374; People v. Lyles (1985), 106 Ill. 2d 373, 391). An instruction that closing arguments are not evidence and any statement not based on the evidence should be disregarded tends to cure possible prejudice from improper remarks. (People v. Smith (1982), 111 Ill. App. 3d 895, 906.) Also, where a timely objection is made to improper argument, the court can usually correct the error by sustaining the objection or instructing the jury to disregard the remark. (People v. Carlson (1980), 79 Ill. 2d 564, 577.) With these principles in mind, we consider defendant’s contentions.

First, defendant contends the State improperly commented on defendant’s failure to call a witness. The prosecutor stated:

“If Mr. Lynch [defense counsel] wanted Officer Svehla [the other officer at the scene] here so badly he could have subpoenaed him.”

The trial court sustained defendant’s objection. The State acknowledges that, ordinarily, it is improper for the State to comment upon a defendant’s failure to call a witness (People v. Smith, 111 Ill. App. 3d at 906), but contends it was not improper in this case because the comment was invited by defense counsel. We agree. Here, defense counsel brought out that the State had not called the other officer at the scene, raising an inference that the officer would not have corroborated Officer Barnacle’s testimony. Thus, the defendant invited the State’s comment, and, therefore, it was not improper. See Smith, 111 Ill. App. 3d at 907; People v. Angelly (1988), 167 Ill. App. 3d 477, 485.

Second, defendant, citing People v. Meredith (1980), 84 Ill. App. 3d 1065, argues the prosecutor improperly referred to defendant’s exercise of his right to counsel. Meredith is distinguished from this case. In Meredith, the prosecutor stated that defendant called his attorney because he knew he shot two people. The court ruled that this was reversible error because it equated the exercise of a constitutional right to an inference of an admission of guilt, thus penalizing defendant for exercising his right. (Meredith, 84 Ill. App. 3d at 1071-72.) In this case, the prosecutor’s comments did not raise an inference that defendant contacted his attorney because he knew he was guilty.

The prosecutor discussed the fact that defendant called his brother, an attorney. This fact was mentioned merely as a fact in the sequence of events from the time defendant was arrested to the time that he left the station. Furthermore, as defendant’s brother testified as a witness at trial, it was not improper to comment on the fact that defendant called him to the station. The prosecutor also mentioned defendant’s attorney when he stated defendant decided to take the breathalyzer test after he talked to his brother and decided enough time had passed. While there is an inference of guilt in this statement, the prosecutor was not arguing, as in Meredith, that the inference arose from the fact that defendant contacted or spoke to his attorney. Rather, the inference arose from the fact that defendant changed his mind about the breath test. Thus, we do not find this comment improper.

Third, defendant argues the prosecutor misrepresented facts by misrepresenting the distance from O’Hare Airport to the scene of the accident. The prosecutor stated the airport was an hour to an hour and a half from the scene. This comment was made in regard to the weather report from O’Hare Airport that defendant introduced into evidence. Defendant argues on appeal that the distance was only 15 miles. At trial, there was no discussion of the distance or traveling time from the scene to O’Hare. The prosecutor’s statement was improper as it was not based on the evidence. (See People v. Smith, 111 Ill. App. 3d at 906.) Furthermore, though there was no evidence of the distance or traveling time to the airport from the scene, we recognize that the prosecutor’s statement was likely an inaccurate account of the time it would take to get from the scene to the airport. Nonetheless, we fail to see how this comment could have substantially prejudiced defendant. The issue of the distance to the airport was a remote collateral issue relevant only to the collateral issue of the weather conditions on the night in question. There is no reasonable possibility that the prosecutor’s comment prejudiced defendant.

Fourth, defendant argues the prosecutor engaged in unwarranted disparagement of defense counsel when he made the following comment:

“Mr. O’Connor asked the officer wasn’t it 15 degrees out, minus 30 wind chill factor? That’s what Mr. O’Connor wanted the evidence to show. Wouldn’t you know, in strolls Mr. Curtis, what a coincidence. What was the weather like, Mr. Curtis? Well, it was about 15 degrees out and the wind was really blowing. It was about 30 degrees below zero wind chill factor out that night. Little coincidence, ladies and gentleman, don’t you think? Little coincidental. Wouldn’t you know Mr. Curtis says the exact same thing Mr. O’Connor said.”

Unless based on some evidence, statements made in closing argument by the prosecutor which suggest that defense counsel suborned perjury are improper. (People v. Emerson (1983), 97 Ill. 2d 487, 497.) As the prosecutor’s comments raise an inference that defense counsel suborned perjury, and there is no evidence that defense counsel suborned perjury, the comments are improper. The comments do not, however, reach a level of prejudice that requires reversal. Cases that have typically found remarks of this nature to be reversible error have involved much more direct and blatant attacks against defense counsel. See Emerson, 97 Ill. 2d 487, 498 (prosecutor stated all defense attorneys try to “dirty up the victim”); People v. Weathers (1975), 62 Ill. 2d 114, 118-20 (prosecutor charged defendant’s attorney with lying and with attempting to create reasonable doubt with confusion, indecision and misrepresentation); People v. Starks (1983), 116 Ill. App. 3d 384, 394 (prosecutor stated jury should not be “hoodwinked” and “fooled” by “that defense, that pack of lies” and expressed chagrin at having to listen for 45 minutes to “the most ridiculous double talk” by defendant’s counsel); People v. Brown (1983), 113 Ill. App. 3d 625, 630 (prosecutor repeatedly called defense counsel a “slickster,” a “mouthpiece,” and a liar).

Fifth, defendant argues that the prosecutor improperly attempted to place the weight of the court behind the State’s case. The comment objected to came within the following argument:

“Everything is a cock and bull story. Mr. Thomas is the unluckiest guy in the world here and we are all standing here and we are all making this up against Mr. Thomas because we all have an axe to grind and we don’t like Mr. Thomas. Unluckiest guy in the world. If the evidence wasn’t sufficient in this case, he would have told you it wasn’t.” (Emphasis added.)

Following this comment, defendant immediately moved for a mistrial. The judge denied the motion but sustained the objection. The italicized comment was clearly an improper reference to the trial court. The comment is prejudicial in that it places the integrity of the court behind the State’s case. It allows an inference that the State’s case has been endorsed by the court. A similar type comment was held improper in People v. Weathers (62 Ill. 2d at 119-20). In Weathers, the prosecutor argued that the court knew defendant had committed the crime. (Weathers, 62 Ill. 2d at 119.) The trial court sustained defendant’s objection, stating, “I agree with that. I don’t know that. Everybody knows that, but the jury will decide.” (Weathers, 62 Ill. 2d at 119.) Weathers ruled that the way the objection was sustained was not adequate to cure the error and held that this comment along with other improper comments constituted reversible error. Weathers, 62 Ill. 2d at 120.

The State argues in this case that the record does not make clear that the State’s comment was in reference to the trial court. This is not persuasive. The only reasonable interpretation is that the prosecutor was referring to the trial court when he used the pronoun “he.” It would make little sense for the prosecutor to refer to defendant or defense counsel in this context. Clearly, defendant and his counsel had already made clear to the jury that they believed the evidence was not sufficient.

The difficult question in this case is whether this comment substantially prejudiced defendant so as to require reversal. After careful consideration, we conclude that it did not. This case does not rise to the level of impropriety in People v. Weathers, where the prosecutor made several clearly prejudicial comments along with the comment about the trial court. (Weathers, 62 Ill. 2d at 118-20.) In this case, other comments were improper, but none were clearly prejudicial. Also, we believe the comment in Weathers was more prejudicial than in this case, as the prosecutor stated that the court knew defendant was guilty, and the trial court’s comments after the objection were somewhat confusing. In the case at bar, the comment went to the sufficiency of the evidence, not guilt, and the trial court made no confusing comments in sustaining the objection. We also look to the evidence in making our decision, and we find the State had a strong case against defendant. The officer’s testimony was corroborated by the result of the breathalyzer test. The only other witness to the field sobriety tests, Patrick Curtis, did not present entirely credible testimony. He testified to a field “arm test” that neither defendant nor the officer testified took place. He also stated, more than once, that in observing defendant drive from the parking lot to the road later than night, he observed defendant’s driving for 10 minutes, a highly implausible feat.

In his next issue, defendant contends in the heading to his argument that the police officer lacked probable cause to arrest him; therefore, there was no basis for his conviction for improper lane usage. Within the argument portion of this issue, however, defendant argues that the officer lacked a reasonable suspicion to make the stop and asserts that the fruits of the stop should have been excluded. Defendant’s argument is confusing in that he addresses three standards in the same breath: probable cause, reasonable suspicion, and insufficient evidence to convict. Since the defendant only discusses the issue of the officer’s reasonable suspicion in his argument, we find the other issues are waived. 113 Ill. 2d R. 341(e)(7).

Defendant’s argument is all the more confusing because of the procedural sequence that transpired below. Defendant filed a motion to suppress, alleging the State lacked probable cause to arrest and violated defendant’s right to due process. At the hearing, the State contended that a hearing was unnecessary because there had already been a summary suspension hearing in which defendant challenged the officer’s reasonable suspicion to stop his car, and the trial judge found in favor of the State. The court allowed defendant an opportunity to offer more evidence on the issue of probable cause as alleged in his motion. Defendant elected to stand on the arguments presented at the summary suspension hearing in regard to probable cause and proceeded only on the due process issue. The record from the summary suspension hearing has not been made a part of the record on appeal. Thus, it appears that, in regard to issues of suppression due to the State’s alleged lack of reasonable suspicion and probable cause, defendant has failed to include the relevant portion of the record. An appellant has the burden to present a sufficiently complete record, and, in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Nonetheless, since, in determining the correctness of a trial court’s decision on a motion to suppress, an appellate court may consider evidence presented at trial (People v. Pettis (1989), 184 Ill. App. 3d 743, 752), we will consider the issue according to the evidence presented at trial.

A trial court’s decision on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Collins (1987), 154 Ill. App. 3d 149, 151.) Whether a stop is justified is determined by whether the officer had a reasonable, articulable suspicion of criminal activity. (People v. Repp (1988), 165 Ill. App. 3d 90, 94.) At trial, Officer Barnacle testified that he stopped defendant because he observed him merge halfway into another lane on three occasions. Defendant denies this conduct and argues that Barnacle’s testimony is unbelievable because he testified that defendant traveled into the other lane of traffic for one to two seconds, traveling about 15 feet each time. Defendant argues that the speed limit on the road was 45 miles per hour and defendant would had to have traveled 10 miles per hour to have gone only 15 feet in one second. Defendant’s argument does not persuade us. Barnacle’s testimony need not be read under scientific scrutiny. Barnacle stated that 15 feet was an estimate. The trial court could have properly found that 15 feet was a believable estimate where the officer testified that he was traveling behind defendant and where the amount of time was only one to two seconds. We find the trial court properly decided that the officer’s testimony was more believable than defendant’s. See People v. Morgan (1986), 112 Ill. 2d 111, 136 (a court of review should not encroach upon the trier of fact’s function of weighing credibility).

We find without merit defendant’s contention that his initial refusal to take a breath test precluded the State from introducing the results of the breath test he later requested. In People v. Romano (1985), 139 Ill. App. 3d 999, 1007, this court held that an initial refusal did not bar admission of the results of a later test. See also People v. Frazier (1984), 123 Ill. App. 3d 563, 567-68 (there was no reason to prohibit a driver from taking a test if he or she has reconsidered an initial refusal).

Defendant next contends the State failed to offer a sufficient foundation for admission of the breath test result. In People v. Clark (1989), 178 Ill. App. 3d 848, 855, this court noted the foundational requirements for admission of a breath test result as stated in People v. Orth (1988), 124 Ill. 2d 326, 340:

“(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the ‘printout’ sheet can be identified as the tests given to the motorist.”

Defendant argues that the State failed to introduce a proper foundation to show that the breathalyzer machine was reliable and accurate. We disagree. Officer Barnacle testified that the instrument was inspected by the Department of Public Health every 45 days within consecutive months and had been inspected and certified on February 5, 1988, and March 11, 1988. The State entered into evidence copies of stamps that documented the certification on these dates. The stamps state that the instrument was accurate and precise within the limits prescribed by the Department and are signed by the inspector. The State also entered entries made by the inspector in the police department’s breathalyzer logbook, which state that the instrument was certified on the date signed by the inspector.

We find this evidence sufficient to establish that the machine was approved by the Department and tested regularly for accuracy. (People v. Hester (1980), 88 Ill. App. 3d 391; People v. Black (1980), 84 Ill. App. 3d 1050.) Defendant’s contention that Officer Barnacle was not qualified to testify to this evidence is also not persuasive. In People v. Hester (88 Ill. App. 3d at 394-95), this court ruled that a page from the instrument logbook was admissible as a public document, and, under People v. Black (84 Ill. App. 3d 1050), the testifying officer need not have personal knowledge of the events and procedures summarized in the logbook. In People v. Black (84 Ill. App. 3d at 1053), the court ruled that a decal attached to the breathalyzer instrument fell under the public document exception to the hearsay rule. Further, the court held that the officer could testify to the contents of the decal, which was left attached to the machine back at the station, based on his personal knowledge of its contents. Black, 84 Ill. App. 3d at 1053.

Defendant also argues that since he presented testimony that the breathalyzer machine was unreliable, the State had to offer more proof in making proper foundation. Defendant fails to cite any authority for this position, and it is not persuasive otherwise. We find defendant’s argument goes to the weight of the evidence, not to whether the evidence was admissible.

In his last issue, defendant actually raises three issues: (1) whether the court erred in allowing evidence of defendant’s initial refusal to take the breath test; (2) whether statements made by defendant following his stop and later arrest should have been suppressed where defendant was not read his Miranda rights; and (3) whether defendant was denied his right to counsel.

As to the first issue, the Illinois Vehicle Code provides that evidence of a refusal is admissible in a criminal action. The relevant section states:

"If a person under arrest refuses to submit to a chemical test under the provisions of Section 11 — 501.1, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.2(c).)

In spite of this statute, the Appellate Court for the Third District ruled in People v. Naseef (1984), 127 Ill. App. 3d 70, that, where a refusal is followed by submission to testing, it is not admissible. The court noted that, prior to 1982, a defendant's refusal was inadmissible (Ill. Rev. Stat. 1981, ch. 95½, par. 11—501(h)) and held that the legislative intent behind allowing a refusal into evidence was to provide an incentive to take the test, and the legislature did not intend to include drivers who initially refused but later submitted to the test. (Naseef 127 Ill. App. 3d at 73.) Rather, the legislature intended to provide a driver with a continuing option to prevent admission of his refusal by taking the test. (Naseef, 127 Ill. App. 3d at 73.) The State acknowledges this case, but cites People v. Roberts (1983), 115 Ill. App. 3d 384, 387, where this court held that evidence of a refusal to take field sobriety tests was admissible as it was similar to other circumstantial evidence of consciousness of guilt which may be inferred from a defendant’s conduct. We note that Roberts is distinguishable in that the defendant in Roberts did not later submit to a test.

We believe Naseef is wrongly decided, and we decline to follow it. In our opinion, the Naseef court engaged in unnecessary statutory construction of a perfectly clear, unambiguous statute. When the language of a statute is unambiguous, the only legitimate function of the courts is to enforce the law as enacted without resorting to supplementary principles of statutory construction. (People v. Lueloff (1987), 161 Ill. App. 3d 432, 435.) The language of the statute here states unequivocally that evidence of a refusal is admissible in a criminal proceeding. In Naseef, the court inappropriately added a new provision to the statute: that is, that a defendant has the continuing option to deny admission of a refusal by taking the test. We note that the court cited no evidence, such as legislative debate, to indicate that the legislature intended to include this option. Furthermore, we add that neither Illinois statutes nor the due process clause of the United States Constitution requires that a defendant be informed that a refusal could be used against him or her at trial. See Ill. Rev. Stat. 1987, ch. 95½, par. 501.1(c); South Dakota v. Neville (1983), 459 U.S. 553, 566, 74 L. Ed. 2d 748, 760, 103 S. Ct. 916, 924.

As we recently held in Roberts, evidence of a refusal is relevant to show consciousness of guilt. (Roberts, 115 Ill. App. 3d at 387.) The fact that a defendant later submits to a test does not make evidence of a refusal irrelevant. The evidence may be less probative, but we find it is still relevant to show consciousness of guilt. In the instant case, the State properly argued that defendant later decided to take the test because he decided that enough time had passed since he had ingested the alcohol. We finally note that there is no fifth amendment bar to this evidence. The United States Supreme Court has ruled that a refusal to take a blood-alcohol test is not an act coerced by the officer, and, thus, it is not protected by the privilege against self-incrimination. South Dakota v. Neville (1983), 459 U.S. 553, 564, 74 L. Ed. 2d 748, 759, 103 S. Ct. 916, 923; see also People v. Roberts, 115 Ill. App. 3d at 387-88.

Next, we find no merit to defendant’s argument that statements he made at the stop prior to his arrest should be suppressed. A driver stopped for a traffic violation is not in custody until or unless he has been arrested. (People v. Nunes (1986), 143 Ill. App. 3d 1072, 1075.) Thus, any statements made by defendant before his arrest are admissible. (Nunes, 143 Ill. App. 3d at 1075.) Defendant also argues that evidence of his resistance to handcuffing and his foul remarks to the police must be suppressed because this evidence came after his arrest and before he was read his Miranda rights. This is not persuasive. Miranda safeguards come into play whenever a person in custody is subject to direct questioning or its functional equivalent. (People v. Scott (1987), 159 Ill. App. 3d 459, 463.) Here, the only evidence that came as a result of police questioning is defendant’s refusal to take a breath test and his refusal to submit to field tests at the police station. As already explained, these are not acts protected by the right against self-incrimination. Roberts, 115 Ill. App. 3d at 387-88.

Defendant lastly contends that his sixth amendment right to counsel was violated. This argument is without merit. As the State notes, defendant’s argument seems to be one sounding more in the fifth amendment, which was just addressed. At any rate, assuming defendant contends that he had a right to confer with counsel before submitting to a breath test or a field sobriety test, this argument is without merit. The decision of whether to submit to a breath test is not a critical stage in the proceedings such that a defendant has a right to confer with counsel. People v. Okun (1986), 144 Ill. App. 3d 1066.

The decision of the circuit court is affirmed.

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE LUND

text:
    TERESA M. MILLIGAN, Indiv. and as Mother and Next Friend to Debra Lynn Cange, a Minor, Plaintiff-Appellant, v. THOMAS KEVIN CANGE, Defendant-Appellee.
    Fourth District
    No. 4—89—0659
    Opinion filed July 26, 1990.

      Paul R. Wilson, Jr., of Wilson & Lanto, P.C., of Rantoul, for appellant.
    Curtis W. Myers, of Law Offices of Curtis W. Myers, of Pontiac, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal arises from decisions in a paternity proceeding in the circuit court of Ford County. The action for paternity was filed on April 1, 1987, by Teresa M. Milligan individually and as mother and next friend to D.L.C., a minor child, petitioner, although the child was born on February 26, 1983. Paternity was admitted by respondent, Thomas Kevin Cange, and an order establishing respondent’s liability was entered.

A recitation of the evidence is necessary to understand petitioner’s contentions on appeal.

The trial court entered an order on October 19, 1987, providing, in relevant part, that respondent pay temporary child support of $40 biweekly, commencing October 2, 1987. On April 1, 1988, petitioner filed a petition for a rule to show cause, alleging that respondent had failed to make child support payments subsequent to January 1988. Respondent filed a motion to abate child support, alleging that he was unemployed and had no money with which to pay support.

The trial court conducted a hearing pursuant to petitioner’s motion and entered an order on May 13, 1988. The trial court found, in pertinent part, that (1) respondent’s failure to pay child support was not contumacious, (2) an arrearage of $120 existed in the payment of support, and (3) respondent was a full-time student with no income or property with which to pay child support. Accordingly, the court abated child support, found respondent in arrears in the payment of support in the amount of $120, and reserved the remaining issues.

On December 12, 1988, petitioner filed a motion to establish child support, which additionally requested that the court order the respondent to procure employment (see Ill. Rev. Stat. 1989, ch. 40, par. 2515.1 (eff. Jan. 1, 1989)). The parties subsequently entered stipulations. On February 17, 1989, the court entered an order according to the parties’ stipulations which provided, in relevant part, that respondent was to pay child support in the amount of $25 per week, commencing Monday, February 20, 1989. The court also found that the arrearage in temporary child support cited in the court’s order of May 13, 1988, had been paid. The cause was continued to May 12, 1989, for hearing on all remaining issues.

On May 5, 1989, petitioner filed a second petition for a rule to show cause, alleging that respondent made only 7 of 12 child support payments due through May 8,1989.

The cause came for hearing on the issues of birthing expenses, post-birth support, and attorney fees on May 12, 1989. Petitioner testified that she is the mother of a child born February 26, 1983. The girl was conceived when petitioner was 14 and respondent was 19 years old. Petitioner paid all medical expenses associated with the child’s birth and has paid all of the child’s medical expenses since her birth. Counsel introduced petitioner’s exhibit Nos. 1, 2, 3, and 5, which are copies of medical bills reflecting those expenses.

Petitioner stated that she owns a home in Melvin, Illinois, valued at $30,000, in which she and the child reside. Petitioner also owns a 1985 Pontiac Firebird, valued at $5,300. Petitioner’s only other asset is her checking account, which contains a balance of approximately $90. Petitioner’s exhibit No. 6 is an affidavit prepared by petitioner, reflecting monthly living expenses of $1,541 incurred by petitioner and her daughter. The affidavit also states the value of petitioner’s home and automobile.

When questioned about attorney fees, petitioner stated that she paid a $450 retainer in order to bring this action some years ago and has been unable to pay any fees since then. Petitioner’s exhibit No. 7, an affidavit of attorney fees incurred from March 1987 through May 4, 1989, reflects that petitioner owes counsel approximately $2,500 in fees.

Petitioner explained how she supported the child from the time of the child’s birth. Petitioner received a $550-per-month social security payment from the time of her father’s death until she reached age 18. Respondent lived with petitioner prior to and approximately one month after the birth. Petitioner’s social security payments were the couple’s sole means of support, as respondent was a full-time student at Illinois State University (ISU). Other than the filing of the instant complaint, petitioner did not ask respondent for any contribution toward birthing or medical expenses.

In May 1983, three months after the birth, petitioner went to court in an effort to obtain an early distribution of a trust fund established after her father’s death. Petitioner received $1,000 per month from the trust until she reached age 18, at which time she received a lump-sum distribution from the trust in the amount of $40,000 to $45,000. These funds were used to pay for birth expenses, and to purchase a home and a car. Petitioner stated that over the years she has borrowed against her home “to make ends meet” and “to support my daughter.” She is indebted to the Roberts State Bank in the amount of $8,500.

Petitioner testified that she first requested child support from the respondent in late 1983, but she received no support. At that time, respondent was residing in Fairbury, Illinois. Shortly after this initial request, the respondent moved to Alaska and the petitioner never asked him for support again. When asked whether respondent refused to pay support, petitioner stated, “I don’t remember. I am not clear on all these things. I am not sure whether he refused it. I am not sure whether I said forget it. I am not sure whether it just didn’t happen. This is a long time ago. I can’t remember a lot of what went on.” Petitioner admitted that in December 1988, during a period in which respondent was not required to pay child support, he sent her $500.

From October 1986 to May 1987, petitioner was married to Mike Milligan. During their marriage, Milligan was employed and helped provide support for the petitioner and her daughter.

Petitioner attended one semester of community college since the birth, earning three “B’s” and one “A” in accounting courses. She hoped to pursue a bachelor’s degree, but could not afford to continue her education. Petitioner’s financial affidavit reflects that she is employed at Terra International in Champaign and earns a weekly gross income of approximately $240.

When asked why she was having difficulty making ends meet, petitioner stated that she had recently returned to work from a two-month disability leave following surgery in March. Petitioner also stated that she suffered a stroke since she filed this action in 1987, and will require permanent medication for her condition. Petitioner described the child’s health as “fine.” Petitioner added that the child is covered by health insurance and that all of her child’s medical bills are paid.

Since the child was bom, petitioner has not, on a regular basis, received any communications from the respondent inquiring as to the child’s health or well-being. Petitioner stated that she has done nothing to prohibit respondent from communicating with her or her daughter.

Respondent testified both as an adverse witness and on his own behalf. Because his testimony of May 12, 1989, is occasionally incomplete, the facts are supplemented with information provided by respondent at prior hearings. Respondent testified that he is 27 years old and is the father of petitioner’s child, D.L.C. Respondent is unemployed and attends Purdue University on a full-time basis. He stated that he anticipated graduation in December 1989, with a degree in actuarial science.

Respondent stated that he lived with petitioner for a few months before the child’s birth and for two to three months after the birth. He had no income from any source at the time of the child’s birth. His mother paid his tuition at ISU during that period. Respondent left the petitioner and their child when the petitioner was 15 years old. Respondent admitted that he knew there were certain costs associated ■with raising the child but, from the time he moved out of petitioner’s home to the time petitioner filed suit, he contributed nothing to the child’s support.

Respondent discussed his academic and employment history at length. From 1979 to 1980, respondent was employed by the Pittsburgh Tube Company, earning $3.35 per hour. From 1980 to 1983, respondent was enrolled at ISU. During that period, respondent completed two years toward his bachelor’s degree. After he moved out of petitioner’s home in 1983, respondent quit school for one semester and moved in with his mother in Fairbury, Illinois. He lived with his mother for five months and attended summer school at ISU. In August 1983, respondent moved to Anchorage, Alaska, and began working for Northway Development, earning approximately $10 per hour.

In January 1984, respondent returned to Illinois and attended the University of Illinois for one-half semester. Respondent explained that “halfway through the semester my father died, so I withdrew, and I went back to work in the middle of 1984.” Respondent continued his employment with Northway from the time of his return to Alaska in 1984 through June 1987. While in Alaska, respondent lived in a home owned by his family. He paid for property taxes and homeowner’s insurance. In July 1987, respondent voluntarily terminated his employment to attend Purdue University. Respondent testified that he was already enrolled when he learned that petitioner had filed the instant complaint.

While he resided in Alaska, respondent owned a Corvette, which he sold in May or June 1987 before he returned to college. Respondent netted approximately $7,000 in the sale of his car, which he used to pay bills.

Counsel for respondent introduced respondent’s exhibit No. 1, which states respondent’s income from 1983 through 1987. The form sets forth respondent’s adjusted gross income for that five-year period as follows: 1983 $11,600; 1984 $7,615.09; 1985 $24,351.70; 1986 $21,880.26; and 1987 $13,914.19. Respondent testified that during the years 1985 and 1986, when he earned over $20,000 per year, he spent the money he earned for “living, bills, and things.” He stated that the cost of living in Anchorage is “much higher” than in Illinois. During this period, he was never asked to pay support. Respondent’s only recollection of petitioner asking for support was a conversation in August 1983. At that time, petitioner and respondent had tentatively agreed to $120-per-month support, but could not agree upon a visitation schedule, so their negotiations ended. Respondent stated that he and petitioner could not agree to visitation because “I don’t think she wanted me to see [the child].”

Respondent has not been employed since he returned to college. He resides with his fiancee, who has provided for his support since July 1987, with some income on respondent’s behalf coming from student loans. He testified that he and his fiancee intend to marry in July 1989. Respondent’s fiancee earned her “art, restaurant-hotel administration” degree from Purdue University and is employed as a receptionist. Respondent’s grade-point average is 5.7 on a 6.0 scale. He stated that he is seeking employment with an insurance agency, but has no post-graduation employment prospects.

Respondent has no savings or assets other than a television set and a checking account with a balance of “maybe $50.” Respondent added, “It is possible that I could have an inheritance, but I can’t say it will be within six months or a year.” He testified that the estate consists of residential lots and homes located in Anchorage, Alaska. Distribution will be shared among eight children.

Respondent owes $16,500 in student loans and stated that he expects to borrow an additional $5,000 to $6,000 in order to complete college. He estimated that by the time of his graduation in December 1989, he will owe approximately $22,000 to $23,000.

Respondent testified that he has been paying support since the court entered its order of February 17, 1989, requiring him to pay $25 per week. After reviewing respondent’s exhibit No. 2, the court concluded that respondent was current in his payments, although respondent had, in fact, paid the petitioner in lump sums rather than the weekly payments directed by the court’s order.

The court entered a judgment order on July 21, 1989, in which it found that petitioner’s claim for her expenses of pregnancy and delivery was time barred, and should not be awarded in any event because petitioner never made a demand upon respondent to pay these expenses. The court additionally held that the petitioner “has chosen to retain private counsel and she should pay her attorney fees.” The court ordered respondent to pay retroactive child support at $200 per month for a 19-month period between August 1985 and April 1987, with credit for a $500 payment made in December 1988, and entered judgment for the retroactive child support in the amount of $3,300. However, the court stayed execution of its judgment until respondent graduates from college and is gainfully employed or until he enjoys his inheritance.

Petitioner appeals, contending (1) the trial court abused its discretion in denying attorney fees; (2) the trial court erred in awarding retroactive child support only for a period from August 1985 through April 1987; (3) the trial court did not award an adequate amount of child support for the retroactive period; and (4) the trial court did not have authority to stay execution of the retroactive support judgment.

I

Both section 9 of the Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1359), which was in effect when the child was bom, and section 17 of the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2517) provide for attorney fees. Section 17 of the Parentage Act provides:

“Costs. Except as otherwise provided in this Act, the court may order reasonable fees of counsel, experts, and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times determined by the court.” Ill. Rev. Stat. 1985, ch. 40, par. 2517.

Effective January 1, 1989, section 17 of the Parentage Act (Ill. Rev. Stat. 1989, ch. 40, par. 2517) provides that payments are “to be paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act.”

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 508) provides for the award “after considering the financial resources of the parties” so that “a party lacking sufficient financial resources” is able to obtain representation. We find this is basically a codification of existing case law.

To justify an allowance of attorney fees, the party seeking relief must show financial inability to pay and the ability of the other party to pay. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 572, 521 N.E.2d 621, 624.) A court may consider a party’s prospective as well as his current income in setting maintenance or awarding attorney fees. In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 327, 522 N.E.2d 738, 742; In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 263, 507 N.E.2d 71, 77.

While the trial court appears to have given serious consideration to the financial circumstances of the parties, in relation to child support, the only specific reference to the award of attorney fees is as follows:

“Attorney Myers’ argument is well taken that Teresa could have [elicited] the aid of the Ford County State’s Attorney to prosecute this cause for her. She has chosen to retain private counsel and she should pay her attorney fees. Thomas has also incurred attorney fees and he should pay same.”

Petitioner objects and correctly contends that a decision based upon such a reason is erroneous. The statute entitling the mother to representation by a State’s Attorney in a paternity action was intended to provide an alternative procedure to retaining private counsel, and does not preclude her from retaining private counsel and petitioning the court for the related attorney fees. (Ivanyi v. Granoff (1988), 171 Ill. App. 3d 411, 426, 526 N.E.2d 189, 200; People ex rel. Adams v. Sanes (1968), 41 Ill. 2d 381, 384, 243 N.E.2d 233, 235.) We determine that the trial court considered and based its decision upon an improper factor in making the determination as to attorney fees. This matter must be sent back for reconsideration by the trial court.

II

Petitioner next contends that retroactive child support should have been awarded from the effective date of the Parentage Act, July 1, 1985. The trial court order setting retroactive support stated:

“Thomas should pay retroactive child support to Teresa for nineteen months past at $200 per month. Thomas should be given credit for the $500 payment previously made. The aforementioned nineteen months encompasses [sic] the time period between August of 1985 and April of 1987. Thomas clearly had the ability to pay support during said period.”

Prior to discussing this contention, we initially find it necessary to overrule a prior decision of our court in People ex rel. Causley v. Jackson (1988), 171 Ill. App. 3d 464, 527 N.E.2d 16. There, this court held that retroactive child support payments were not provided for by the Paternity Act. Our theory was that since the Paternity Act was controlling and the only remedies available to the petitioner were those in effect at the time of the child’s birth, it was improper to allow retroactive child support, even though paternity was established under the Parentage Act. Since our opinion in Causley, the Second Appellate District has ruled on this to the contrary in In re Paternity of Hubbard (1989), 186 Ill. App. 3d 234, 542 N.E.2d 432. The additional analysis of the question in Hubbard leads us to now conclude that our decision in Causley was incorrect.

The evidence indicated respondent was working in Alaska between the middle of 1984 to June 1987. His income in 1985 was $24,351.70, which was the highest of any year from 1983 through 1987. The 19 months’ support provided by the trial court evidently excluded August 1985 and April 1987. Retroactive child support is authorized by section 14(b) of the Parentage Act (Ill. Rev. Stat. 1985, ch. 40, par. 2514(b)), which provides:

“The Court may order any child support payments to be made for a period prior to the commencement of the action, including payments to reimburse any public agency for assistance granted on behalf of the child. In determining whether and the extent to which such payments shall be made for any prior period, the court shall consider all relevant facts, including the factors for determining the amount of support specified in the ‘Illinois Marriage and Dissolution of Marriage Act,’ approved September 22, 1977, as amended, and other equitable factors including but not limited to:
(1) the father’s prior knowledge of the fact and circumstances of the child’s birth;
(2) the father’s prior willingness or refusal to help raise or support the child;
(3) the extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs or attempted to seek or require his help in raising or supporting the child;
(4) the reasons the mother or the public agency did not file the action earlier; and
(5) the extent to which the father would be prejudiced by the delay in bringing the action.”

It is apparent from the record and the trial court’s July 21, 1989, order that the court gave consideration to the relevant factors. However, the evidence does not justify the failure to include July and August of 1985 when assessing the monthly retroactive payments. The facts as shown by the evidence were no different in July 1985 than they were in September 1985. The inferred expenses for the return to Illinois and the return to school in late spring of 1987 provide justification for the trial court’s cutoff at that time. The award ordered for retroactive child support should have included the months of July and August 1985, and must be modified to so provide.

III

Petitioner contends that the amount of the retroactive support was inadequate. The amount of the retroactive child support is to be determined by giving consideration to section 14(b) of the Parentage Act, which incorporates section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 505). (Ill. Rev. Stat. 1989, ch. 40, par. 2514(b).) The facts in the present case presented a somewhat difficult decision because of the unemployed student status of the respondent. The inheritance information was uncertain, as was the exact nature of the respondent’s future employment. We note that, as of the date of the order appealed, both the Parentage Act and the dissolution act had been amended to add statutory provisions pertaining specifically to unemployed persons owing duty of support (see Ill. Rev. Stat. 1989, ch. 40, pars. 2515.1, 505.1). Under the dissolution act, the finding of the trial court as to the proper level of child support will not be reversed unless it is against the manifest weight of the evidence. (See, e.g., In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 260, 547 N.E.2d 590, 596; In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 617, 528 N.E.2d 1075, 1088; Knox v. Knox (1975), 31 Ill. App. 3d 816, 823, 334 N.E.2d 891, 896.) We conclude the same standard of review applies to awards under the Parentage Act.

IV

The petitioner argues that the trial court lacked the authority to order execution stayed as to the judgment for retroactive support, until respondent “becomes employed on a full-time basis or receives his inheritance mentioned herein.” We agree.

Supreme Court Rule 305 provides courts the authority to stay enforcement of a judgment, pending appeal, upon the motion of the appellant. (107 Ill. 2d R. 305.) There is no provision in the supreme court rules granting courts authority to sua sponte stay enforcement of a judgment at law until such time as the party against whom it is rendered is in a better position to comply with it.

Respondent cites Pearce v. Miller (1903), 201 Ill. 188, 66 N.E. 221, for the proposition that courts possess such equitable power to control their judgments. However, Pearce is distinguishable. In Pearce, the trial court entered a judgment by confession against the respondent on an overdue note. Respondent moved to quash execution of the judgment and requested leave to plead a defense. The trial court granted stay of execution of the judgment. The Illinois Supreme Court commented on the propriety of the trial court’s stay of execution of its judgment:

“In the exercise of equitable powers resting in the court in the control of judgments confessed on notes and bonds under powers of attorney, the superior court was authorized to hold the rights of the parties in statu quo until it had given consideration to the questions raised by the affidavits.” Pearce, 201 Ill. at 190, 66 N.E. at 221.

Pearce differs from the case before this court in two respects. First, the Pearce court stayed execution of its judgment in response to a motion by the respondent. The trial court in this case stayed execution sua sponte. More importantly, the narrow language of Pearce suggests that the court’s holding is limited to its facts.

We know of no statutory or common law authority for the trial court’s stay of execution of its order in this case.

The unfettered right to stay execution for monetary judgments invites problems. If petitioner wants to protect her interest by garnishment or other proceedings in the Alaskan estate proceedings, she should be allowed that opportunity.

The trial court order refusing the award of attorney fees is reversed and remanded for reconsideration based upon the dictates of this opinion. No additional hearing is necessary. The portion of the order that fixes the monthly amount of retroactive child support at $200 per month and provides for a credit of $500 is affirmed, but the denial of the retroactive support for July and August 1985 is reversed and, on remand, the judgment shall be increased by $400. The order staying execution is reversed.

Affirmed in part; reversed in part, and remanded with directions.

KNECHT, P.J., and GREEN, J., concur.