author: JUSTICE RAKOWSKI

text:
    NEIL HALLENBECK, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Eastern Airlines, Inc., Respondent-Appellee).
    First District (Industrial Commission Division)
    No. 1—91—2992WC
    Opinion filed July 24, 1992.

      Jacob N. Gross, Ltd., of Chicago, for appellant.
    Jobin & Flynn, of Chicago, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Claimant, Neil Hallenbeck, appeals the order of the circuit court which dismissed his petition for judicial review of an Illinois Industrial Commission (Commission) decision for lack of subject matter jurisdiction and found that, assuming jurisdiction, the order claimant sought review of was not against the manifest weight of the evidence. While we find that the trial court did have jurisdiction, we agree that the Commission’s decision was not against the manifest weight of the evidence.

The pertinent facts are as follows. Claimant, a 57-year-old aircraft mechanic, first worked for the employer, Eastern Airlines, Inc., in 1968. On October 1, 1985, claimant was asked to turn on the power of an airplane. In the process of doing so, he fell from a ladder, injuring his knee. Claimant testified that he wrote a note to William Scapelli, his foreman, the day of the accident, requesting Scapelli to make out the required report. One or two days later, claimant testified, he engaged in a conversation with Scapelli, and asked Scapelli if he had made out the injury report. According to claimant, Scapelli replied that he had not had time to make out the report, and further that Scapelli made no reply when claimant asked him if he had received claimant’s note. Scapelli, on the other hand, testified that he had not received the note and knew nothing of the October 1,1985, accident.

After the accident, claimant continued to work until April 23, 1986. From that date until July 14, 1986, claimant did not work. When he returned to the job on July 14, 1986, claimant was unable to perform mechanic work. In November of 1986, claimant took some vacation time before undergoing surgery upon his left knee on December 1, 1986. Claimant was subsequently released for work on May 4, 1987.

On October 2 and 9, and November 12, 1985, claimant saw Dr. Pokornowski. On these occasions, he was given a cortisone shot in the left knee and painkilling pills. On April 28, 1986, claimant was referred to Dr. Mains, an orthopedic surgeon, who prescribed a proximal tibial osteotomy of the left knee with valgus placement. Claimant’s operation was performed on December 1, 1986; he was discharged from the hospital on December 14, 1986. Dr. Mains subsequently released claimant to return to work on May 4, 1987. Dr. Hut-son, the employer’s medical examiner, permanently limited claimant to desk duty on April 28, 1987. The employer, however, did not offer claimant a desk job.

On August 13, 1987, Dr. Dachman diagnosed claimant’s medical problems as (1) obesity, (2) hypothyroidism, (3) a history of polio involving his right lower leg, (4) osteoarthritis of the left knee, and (5) status post left tibial osteotomy. Dr. Dachman indicated that claimant could not continue in his employment capacity as a mechanic. Dr. Barry Lake Fischer examined claimant and testified that claimant would be restricted in any occupation from climbing, standing, kneeling, squatting, walking, climbing stairs or ladders, and pulling, lifting or carrying in excess of 50 pounds.

Claimant himself testified to continuing pain in the left knee, and balance impairment which requires the use of a cane when climbing stairs or walking more than a block or two.

Claimant filed an application for benefits with respect to the October 1, 1985, injury. On December 18, 1987, the arbitrator rendered a decision, awarding claimant 564/7 weeks of temporary total disability, $22,094.77 in necessary first aid, medical and surgical benefits, permanent total disability and additional compensation under sections 16, 19(k) and (1) of the Illinois Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 138.16, 138.19(k),(l)). On September 11, 1990, the Commission modified the arbitrator’s award, awarding claimant 326/7 weeks of temporary total disability at $494.67 per week and $293.61 per week for a period of 126 weeks due to a finding of 63% permanent loss of use of the left leg.

On September 19, 1990, claimant filed a petition to correct clerical error in the Commission’s decision. This petition prayed that the September 11, 1990, decision be modified to reflect the award indicated in the Commission’s prior, January 17, 1989, predecision memorandum. The predecision memorandum had awarded claimant temporary total disability for a period of 826Ar weeks, permanent loss of use of 70% of the left leg, and additional medical expenses, while the pre-decision memorandum denied additional compensation under sections 16 and 19 of the Act. The employer responded to claimant's petition on September 21, 1990, and claimant filed a reply on September 24, 1990.

On October 16, 1990, the Commission issued its corrected decision and opinion on review. Therein, the Commission stated:

“The Commission further notes that the ‘predecision memorandum’ issued on January 17, 1989 contained a clerical/computational error in the amount of weeks of temporary total disability benefits awarded, which is herein corrected to reflect the correct number of weeks in accordance with the evidence. The Industrial Commission at that time incorrectly and inadvertently computed temporary total disability benefits commencing October 2, 1985, whereas the parties stipulated that [Claimant’s] period of total disability commenced on April 23, 1986 and further evidence adduced confirmed [Claimant’s] intermittent periods of temporary total disability to April 28, 1987, *** and therefore the Commission finds that [Claimant] was temporarily and totally disabled for 32-6/7 weeks.”

The Commission’s corrected decision further stated that claimant’s permanent loss of use of the left leg was to the extent of 70%, awarded $23,064.02 in medical expenses, and denied additional compensation for penalties under the Act.

Next, claimant filed for judicial review with the circuit court, seeking review of the October 16, 1990, decision — not the September 11, 1990, decision. The circuit court raised the issue of whether it had subject matter jurisdiction due to the absence of a letter of recall of the Commission’s first decision. The circuit court questioned the validity of the October 16, 1990, decision in the absence of a recall letter. Accordingly, the circuit court remanded the matter to the Industrial Commission with directions to the Commission to search its records for the letter of recall.

On June 11, 1991, the Commission held a hearing. There, the Commission found that the recall provisions of the Act had in fact been complied with. The commissioner based this determination upon both the fact that Commission procedures allowed for the issuance of a corrected decision only pursuant to a recall letter, and upon the fact that there were extra copies of the first decision in the file, whose presence could only be explained by the existence of a proper recalling of that decision. The commissioner further stated that he had spoken with an administrative assistant who had assured the commissioner that despite the absence of a letter of recall in the file, a letter of recall had indeed been timely issued. In short, the Commission found that it had employed proper recall procedures, which invalidated the September 11, 1990, decision and validated the October 16, 1990, decision.

Upon review once again, however, the circuit court ruled that due to the fact that there was no letter of recall in the record, it lacked subject matter jurisdiction to review the October 16, 1990, decision, and the original decision remained in effect. The court added that the Commission’s finding that claimant was not permanently totally disabled was not against the manifest weight of the evidence, and that the Commission’s finding that penalties were not appropriate was not against the manifest weight of the evidence.

The threshold issue we address is whether the circuit court erred in determining that it was without power to review the October 16, 1990, decision. The trial court determined that the sending of a letter of recall of the parties was “implicitly” a requirement under section 19(f), and in using a standard of “strict compliance” with section 19(f), determined that it was without power to review the October 16, 1990, decision.

Section 19(f) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(f) (the Act) provides in relevant part:

“The decision of the Commission *** shall *** be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for review herein specified shall begin to run from the date of the receipt of the corrected award or decision.”

In ruling that it was without subject matter jurisdiction to review the case, the circuit court relied upon the following cases: Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 451 N.E.2d 866; Whitmer v. Industrial Comm’n (1989), 187 Ill. App. 3d 409, 543 N.E.2d 267; and E.L. Kaplan Trucking Co. v. Industrial Comm’n (1990), 195 Ill. App. 3d 640, 553 N.E.2d 37. We find the foregoing authority distinguishable.

In Arrington, the supreme court held that an attorney’s affidavit, which represented that a check for payment of probable costs of the record had been mailed to the Commission’s secretary, was insufficient to establish section 19(f)(l)’s (Ill. Rev. Stat. 1981, ch. 48, par. 19(f)(1)) requirement that a claimant seeking review of a Commission decision exhibit to the clerk of the circuit court a receipt showing such payment. In Whitmer, the claimant filed a summons to both the Commission and respondent’s attorney, a certificate of mailing and a receipt for payment of the record to the Commission. However, the claimant failed to file a written request for issuance of summons, as required by section 19(f)(1). The court affirmed the circuit court’s dismissal of claimant’s review for lack of subject matter jurisdiction. Finally, the E.L. Kwplan case did not involve section 19(f), but rather involved the claimant’s failure to establish entitlement to expedited benefits under section 19(b — 1) of the Act. Ill. Rev. Stat. 1985, ch. 48, par. 19(b — 1).

In the case sub judice, unlike all of the cases the trial court relied upon, it is clear that claimant properly and timely sought correction of the initial decision, and properly and timely sought review of the corrected, October 16, 1990, decision. The failure involved, if any, was that of the Commission in failing to issue a letter of recall. It should be noted that section 19(f) does not expressly state that a letter of recall must issue in order for a decision to be properly recalled. In arguing that the proper issuing of a letter of recall is a prerequisite to subject matter jurisdiction of the circuit court, the employer cites the cases of P P G Industries, Inc. v. Industrial Comm’n (1982), 91 Ill. 2d 438, 438 N.E.2d 173, and American Can Co. v. Industrial Comm’n (1986), 149 Ill. App. 3d 83, 500 N.E.2d 544. In PPG, the court interpreted section 19(f) to mean that the 15-day limitation therein applied to the time the original decision must be recalled and not to the time in which the original decision was issued. PPG did not say that a letter of recall was a prerequisite to jurisdiction, and has been interpreted as referring to the time frame in which the initial step of recall (i.e., the motion for correction) must be taken. See American Can Co. v. Industrial Comm’n (1986), 149 Ill. App. 3d 83, 86, 500 N.E.2d 544.

In American Can, the court noted that PPG’s use of the word “recall” was limited to the facts of PPG (149 Ill. App. 3d at 86), and the court held that an employer’s refiling of its original summons for a workers’ compensation review under the same case number as the initial summons, without filing a second bond, was improper in that the employer was required to file a new summons because the original summons was premature and hence void. (149 Ill. App. 3d at 87.) American Can, like PPG, did not discuss the requirement that a letter of recall be issued. Likewise, neither case discussed the consequences of the Commission’s failure to issue a letter of recall, or the consequences of a case being recalled in a different manner.

In the case sub judice, the Commission itself, upon remand, specifically found that a letter of recall had been issued, or put more generically, that the original Commission decision had been properly recalled. The Commission based this determination on its own knowledge of its recall procedures, and a representation to the Commission by an administrative assistant that a letter had in fact been issued, despite the fact that it was not in the file and apparently not in the possession of respondent’s counsel.

Recently, we have held that a written request for a summons, though not including all of the requirements of section 19(f)(1), was sufficient to substantially comply with the statute. (See Chambers v. Industrial Comm’n (1991), 213 Ill. App. 3d 1, 571 N.E.2d 1001.) We have similarly held that the circuit court erred in dismissing claimant’s cause based upon a failure to designate a return date on a request for summons, as section 19(f)(1) was substantially complied with. (Advance Transportation Co. v. Industrial Comm’n (1990), 202 Ill. App. 3d 449, 559 N.E.2d 1038.) In these cases, the claimants did what the statute required of them, albeit ineffectually. Here, any error in the review process was not claimant’s, and the Commission found that the case was properly recalled. Accordingly, we hold that the circuit court did have subject matter jurisdiction.

The question remains whether the Commission’s corrected decision was against the manifest weight of the evidence.

Claimant relies upon a number of cases in arguing alternatively that he fit into the “odd-lot” category, and that he established he was permanently and totally disabled. In the recent case of Marathon Oil Co. v. Industrial Comm’n (1990), 203 Ill. App. 3d 809, 815-16, 561 N.E.2d 141, the court observed:

“An employee is totally and permanently disabled under workers’ compensation law where he is unable to make some contribution to industry sufficient to justify payment of wages to him. [Citation.] He must show that he is, for practical purposes, unemployable. [Citation.] A person need not be reduced to a state of total physical helplessness, but is totally disabled when he cannot perform services except those that are so limited in quantity, dependability or quality that there is no reasonably stable market for them. [Citation.]
The employee bears the burden of proving each element of his case, including the extent and permanency of the injury. [Citation.] It is within the province of the Commission to determine the factual issues, to decide the weight to be given to the evidence and reasonable inferences to be drawn therefrom, and to assess the credibility of witnesses. The Commission’s determination of these issues will not be set aside unless it is against the manifest weight of the evidence. [Citation.]”

In Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 546-47, 419 N.E.2d 1159, the court stated:

“Under A.M.T.C., if the claimant’s disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the burden is upon the claimant to establish the unavailability of employment to a person in his circumstances. However, once the employee has initially established that he falls in what has been termed the ‘odd-lot’ category (one who, though not altogether incapacitated for work, is so handicapped that he will not be employed regularly in any well-known branch of the labor market [citation]), then the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant [citation].” (Emphasis in original.)

In the case at bar, the medical evidence clearly established that claimant, due both to his previous conditions of ill-being and condition of ill-being which resulted from the October 1985 accident, could not return to work as a mechanic. However, the medical reports of Drs. Hutson and Dachman established that claimant was released for desk or bench work. The ability to perform sedentary work has been considered as a factor militating against a finding that one is permanently and totally disabled. (See Interlake, Inc. v. Industrial Comm’n (1981), 86 Ill. 2d 168, 427 N.E.2d 103.) Likewise, a claimant’s failure to search for work within his restrictions is a factor which militates against a finding of permanent and total disability. See, e.g., Lukasik v. Industrial Comm’n (1984), 124 Ill. App. 3d 609, 465 N.E.2d 528.

Claimant has not pointed to any evidence, other than his age, which would suggest he is not employable in a well-known branch of the labor market. In this respect, the case is unlike Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 876, 536 N.E.2d 773, which claimant relies upon, where we affirmed a Commission decision that claimant was permanently and totally disabled. In Illinois-Iowa, there was testimony about claimant’s age, education and prospects for rehabilitation, including the testimony of a vocational consultant. This testimony included evidence that the claimant was illiterate with a third-grade education, and had worked exclusively for the employer. Here on the other hand, the record reveals that claimant had completed high school, and prior to working for the employer had worked in a factory, driving a truck and as a mechanic. As such, we are not convinced that claimant established odd-lot status. Under the circumstances, the Commission’s determination that claimant’s condition was not one of total and permanent disability, and that his temporary total disability lasted from the date of accident to an initial return to work, and from the day he underwent surgery to the day he was initially released to return to work (a period of 326h weeks), is not against the manifest weight of the evidence.

Further, based upon the conflict in testimony between claimant and Scapelli (claimant’s foreman) as to notice, and on the fact that claimant had other medical problems and preexisting medical ailments, the Commission’s determination that penalties were not properly awardable under sections 16 and 19 of the Act is not against the manifest weight of the evidence.

Accordingly, the circuit court’s dismissal of claimant’s case is reversed, and the October 16, 1990, decision of the Commission affirmed.

Circuit court reversed; Industrial Commission affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER and H. LEWIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    REED-CUSTER COMMUNITY UNIT SCHOOL DISTRICT No. 255-U, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees.
    First District (1st Division)
    No. 1—90—2803
    Opinion filed July 27, 1992.

      Sonnenschein, Nath & Rosenthal, of Chicago (Frederic S. Lane, Patricia W. Hatamyar, and Deborah M. Neyens, of counsel), for petitioner.
    Murphy, Timm, Lennon, Spesia & Ayers (Douglas F. Spesia and Neil T. Goltermann, of counsel), and Sidley & Austin (Alan P. Bielawski, of counsel), both of Chicago, for respondents.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Reed-Custer Community School District No. 255-U seeks administrative review of a final order of the Illinois Pollution Control Board (the Board) which denied its petition to revoke the certification of Commonwealth Edison Company’s (CWE’s) Braidwood cooling pond as a “pollution control facility” for real property tax purposes as defined under section 21a — 2 of the Revenue Act of 1939 (the Act) (Ill. Rev. Stat. 1987, ch. 120, par. 502a — 2). Plaintiff contends on appeal: (1) the Board’s conclusion that CWE did not obtain the certification by misrepresentation or fraud is against the manifest weight of the evidence; (2) the Board erred in concluding that the “primary purpose” of the pond was pollution control; and (3) the Board erred in failing to find that the pond was excluded from “pollution control facility” status because of certain statutory exceptions under section 21a — 2 of the Act. We affirm.

CWE’s Braidwood Nuclear Power Station and cooling pond are located in the Reed-Custer school district in Will County. Braidwood Station is designed to generate electricity using steam produced by nuclear power. Simplified, the process works as follows.

Fuel in the reactor core produces heat which is captured in a primary loop of water. The primary loop of water is a pressurized closed-loop system which captures huge amounts of heat without boiling. A secondary closed loop of water captures the heat of the primary loop thereby turning the water in the secondary loop to steam. The steam is then passed through a turbine where the energy from the steam is converted to mechanical energy. The mechanical energy turns the turbine to drive a generator which produces electricity. Water from Braidwood’s 2,537-acre cooling pond is used in yet a third loop of water to condense the steam contained in the secondary loop. The now condensed water in the secondary loop is returned to be heated again and again.

As a result of the condensing process, the temperature of the tertiary loop water is increased roughly 20 to 22 degrees. This heated water is returned to the cooling pond to cool and circulate for several days. After cooling, the water is pumped through large pipes back to the condensers, where it is heated again. In total, the water requirements of the third loop are a continuous flow of about 3,250 cubic feet per second (cfs). The Braidwood facility occupies a total of 4,454 acres.

The Kankakee River, at its cl sest approach, is approximately three miles east of Braidwood Station. The flow of the river is not sufficient to provide the 3,250 cfs of water required to cool the reactor; however, the river does supply 90.8 cfs of water to the cooling pond in 4.5-mile-long pipes. This water is necessary to compensate for evaporation, seepage and the 43.2 cfs of “blowdown” water pumped through pipes to the river. “Blowdown” is cooling pond water whose discharge is necessary to maintain the proper water chemistry in the cooling pond.

In April 1985, CWE first filed its application to certify the Braidwood cooling pond as a “pollution control facility” under the Act. A successful certification results in the removal of the pollution control facility from the local tax rolls for real property assessment:

“§21a — 1. Statement of policy. It is hereby declared to be the policy of the State of Illinois that pollution control facilities should be valued, for purposes of the real property tax laws of this State, in relation to of the fair cash value of their economic productivity to their owners.” Ill. Rev. Stat. 1987, ch. 120, par. 502a — 1.

Section 21a — 2 of the Act defines “pollution control facilities” as follows:

“any system, method, construction, device or appliance appurtenant thereto, designed, constructed, installed or operated for the primary purpose of eliminating, preventing, or reducing air and water pollution as the term ‘air pollution’ or ‘water pollution’ is defined in the ‘Environmental Protection Act’ ***.
For purposes of assessments made after January 1, 1983, ‘pollution control facilities’ shall not include, however, (a) any system, method, construction, device or appliance appurtenant thereto, designed, constructed, installed or operated for the primary purpose of (i) eliminating, containing, preventing or reducing radioactive contaminants or energy, or (ii) treating waste water produced by the nuclear generation of electric power, (b) any large diameter pipes or piping system used to remove and disperse heat from water involved in the nuclear generation of electric power ***.” Ill. Rev. Stat. 1987, ch. 120, par. 502a — 2.

CWE’s April 1985 certification request to the agency consisted of a completed certification form, promulgated by the agency, and a cover letter submitted by CWE’s tax director. Relevant to the issue of whether CWE’s certificate was obtained by fraud or misrepresentation are the following statements within the application and letter.

In section D of the application form, the agency requested a “[narrative description of the pollution control facility, indicating that its primary purpose is to eliminate, prevent or reduce pollution.” CWE responded:

“The Braidwood Cooling Pond receives water from the station condensers and allows waste heat to dissipate into the atmosphere prior to the recycling or discharging of this cooling water into the Kankakee River. The pond was designed to meet thermal discharge limitation contained in the Illinois Pollution Control Board Rules and Regulations, Chapter 3: Water Pollution, Section 203(i).”

In section E of the application, the agency requested the fair cash value and the net salvage value of the Braidwood pond, the productive gross and net annual income of the pond, and the value percentage which the pond bears to the value of the entire facility. CWE responded that the fair cash value of the pond was $43,222,496; that the pond had no net salvage value; that productive gross annual income was “not applicable”; that the productive net annual income was “none”; and that the requested percentage was “none.”

In the signature section of the application, the director of CWE’s property tax department certified that the information contained within the application was true and correct and that the “facilities claimed herein, are ‘pollution control facilities’ as defined within [section 21a — 2 of the Act].”

As for the cover letter, the following statements appear:

“Enclosed is the application for certifying (APC Form 151) the Cooling Pond at the Braidwood Generating Station.
The following narrative description of the pollution control facility is submitted:
2. Please see attached drawings. Note that neither the cooling pond [n]or its associated facilities are related to manufacturing of any kind.
8. Because this facility deals solely with the thermal pollution in regards to cooling the circulating water from the station, no contaminants are removed or disposed of by this operation.
9. The attachments include Figure 2.1 — 3—Site Boundary, Restricted Area Boundary and Cooling Pond, Figure 2.4 — 1—Site Characteristics and Changes to Existing Drainage Features and Figure 3.4 — 1—General Layout of Braidwood Cooling Pond.
For specific information regarding the technical or operating data of the pond and the equipment, contact *** [at] *** of the Company’s Environmental Affairs Department. For general information, contact *** [at] *** of my staff.”

On May 9, 1985, the agency denied CWE’s application for certification of the Braidwood pond. The stated basis for this rejection was the then recent legislative amendment to section 21a — 2, which added the second paragraph to that section, thereby excluding certain facilities from the definition of “pollution control facility.” At about the time the agency was considering CWE’s Braidwood certification, the agency was also evaluating CWE’s request to recertify its cooling pond at the Dresden Nuclear Power Station. The Dresden cooling pond had been certified as a pollution control facility, but upon passage of the amendment to section 21a — 2, the Board determined that the amendment required de-certification. On administrative review before the circuit court of Cook County, the decertification was vacated and the cause remanded to the Board for further hearings. On remand, the Board reinterpreted the language of the amendments, concluding that the Dresden certification should be reinstated.

Following the Board’s recertification of the Dresden cooling pond, CWE requested in November 1985 that the agency reactivate its earlier request for certification of the Braidwood pond. Relevant to this appeal is the following statement contained within CWE’s request: “As you know, the litigation involving decertification of cooling lakes and towers has now been completed and all such [pollution control facilities] are still certified.”

On April 10, 1986, without conducting a public hearing, the agency certified the Braidwood cooling pond as a “pollution control facility” under the Act. The certified facility is defined as follows:

“Those improvements which constitute the cooling pond: external dikes, internal dikes, emergency spillway, water seepage control, the piping, pump station and screen house providing make-up water to the cooling pond.”

On December 31, 1987, plaintiff filed its “petition to revoke certification of pollution control facility” with the Board. Plaintiff invoked section 21a — 6 of the Act, which provides:

“§21a — 6. Powers and duties of the certifying boards. Before denying any certificate, the Pollution Control Board shall give reasonable notice in writing to the applicant and shall afford to the applicant a reasonable opportunity for a fair hearing. On like notice to the holder and opportunity for hearing, the Board may on its own initiative revoke or modify a pollution control certificate *** whenever any of the following appears:
(A) The certificate was obtained by fraud or misrepresentation;
(B) The holder of the certificate has failed substantially to proceed with the construction, reconstruction, installation, or acquisition of pollution control facilities ***;
(C) The pollution control facility to which the certificate relates has ceased to be used for the primary purpose of pollution control and is being used for a different purpose.” Ill. Rev. Stat. 1987, ch. 120, par. 502a — 6.

In its petition, plaintiff directed the Board to the previously quoted statements in CWE’s certification application and alleged that such statements were fraudulent and misrepresentative in that they misled the Board into believing that the primary purpose of the Braidwood pond was pollution control, rather than providing the Braidwood power plant with a readily available supply of cooled water — a nonpollution control purpose.

CWE moved to dismiss the petition on the ground that the Board had no jurisdiction under the Act to consider third-party revocation petitions. On February 25, 1988, the Board rejected CWE’s motion, reasoning that section 21a — 6 does not expressly prohibit third-party revocation petitions and, further, that such petitions should be encouraged due to the Board’s limited ability to uncover possible fraud and misrepresentation. CWE has not sought review in this court of the Board’s order denying its motion to dismiss, and we assume its validity for purposes of this appeal.

The Board held an evidentiary hearing on the petition at which testimonial and documentary evidence was received relative to the truth of the matters asserted in CWE’s application, the mechanical workings of the Braidwood station and pond, and the primary purpose of the cooling pond. Much of this evidence has already been detailed above and, for the reasons which follow, we believe it largely unnecessary to detail this evidence further.

On August 30, 1990, the Board, with one member dissenting, issued its opinion and order denying plaintiffs petition for revocation. In its order, the Board recognized that the Act limited its reviewing authority to determining whether CWE knowingly made false statements in its application and not whether, in the first instance, CWE’s certificate for the Braidwood pond was correctly issued. Although recognizing its limited role, the Board did in fact discuss the primary purpose of the cooling pond. While the Board did not directly so hold, its opinion arguably reads as if the Board believed that the primary purpose of the cooling pond was pollution control. In any event, after considering each of the alleged statements, the Board found that they were not inaccurate.

On October 2, 1990, plaintiff sought administrative review in this court pursuant to Supreme Court Rule 335 (134 Ill. 2d R. 335) and section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1987, ch. HV-k, par. 1041), the latter permitting “any party adversely affected by a final order or determination of the Board [to] obtain judicial review *** within thirty-five days after entry of the order.”

Turning to the merits of plaintiff’s appeal, we agree with the Board that its authority under section 21a — 6 of the Act to “revoke or modify a pollution control certificate” was limited to the determination of whether CWE obtained its certificate by fraud or misrepresentation. Contrary to plaintiff’s arguments on appeal, the Act simply did not permit the Board to review whether, in the first instance, CWE’s cooling pond was properly certified under the Act as a pollution control facility. Once the Board certified the cooling pond in April 1986, modification and revocation could only occur under the limited grounds specified under section 21a — 6 of the Act. In this case, plaintiff alleged that revocation was proper because of false statements made to the Board during the application process. Accordingly, the Board’s review was limited to determining whether, indeed, CWE made false statements during the application process. Simply put, whether the Braidwood cooling pond is in fact a “pollution control facility” as defined by section 21a — 2 of the Act was not before the Board.

Nor do we believe that plaintiff can do indirectly what the legislature prohibited directly. The determination of whether any statement in CWE’s application was indeed false did not turn on whether, in fact, the primary purpose of the pond was other than pollution control. CWE’s statements were to be measured by assessing whether CWE answered the questions asked and whether the responses given were accurate. By arguing that the primary purpose of the cooling pond was not pollution control, and then measuring statements within the application against that primary purpose, plaintiff is merely bootstrapping its own argument.

On appeal, we are thus presented with reviewing the Board’s finding that CWE did not obtain its pollution control certificate by fraud or misrepresentation. The Board’s determination relative to whether a given statement was fraudulent is a question of fact, and the Board’s determination is prima facie true and correct. (HI. Rev. Stat. 1987, ch. 110, par. 3 — 110.) Where the findings of fact are against the manifest weight of the evidence and it is clearly evident that the Board should have reached the opposite conclusion, the reviewing court may reverse the agency’s finding of fact. (City of Freeport v. Illinois State Labor Relations Board (1990), 135 Ill. 2d 499, 507, 554 N.E.2d 155, 159.) As discussed below, the Board’s findings of fact regarding the accuracy of CWE’s statements are not against the manifest weight of the evidence.

The first statement to which we are directed appears in the application form, and is CWE’s response to section D of the form, which requested a “narrative description of the pollution control facility, indicating its primary purpose is to eliminate, prevent or reduce pollution.” CWE responded:

“The Braidwood Cooling Pond receives water from the station condensers and allows waste heat to dissipate into the atmosphere prior to the recycling or discharging of this cooling water into the Kankakee River. The pond was designed to meet thermal discharge limitations contained in the Hlinois Pollution Control Board Rules and Regulations, Chapter 3: Water Pollution, Section 203®.”

Plaintiff contends that this statement is fraudulent or misleading as the primary purpose of the cooling pond is not pollution control but to supply water to cool the condensers. To support its argument that the above statement is fraudulent or misleading, plaintiff cites to the testimony of its expert, who testified that the primary purpose of the cooling pond is to provide a supply of cool water for the production of electricity.

As noted earlier, plaintiff cannot bootstrap its argument by reclassifying the primary purpose of the cooling pond. Whether CWE’s narrative description was inaccurate turned on whether CWE truthfully answered the question asked. We believe that when the narrative description of the cooling pond is compared to the workings of the facility as a whole, the Board appropriately found that the statement was an accurate narrative description of the pollution control facility. While plaintiff would assert that CWE could have been more specific, we have been directed to nothing within the application questionnaire which required such specificity. In fact, had the Board sought additional information, CWE gave the Board the names and numbers of whom to call if any questions regarding the pond arose. This is hardly fraud and misrepresentation.

The second and third statements to which this court is directed appear in CWE’s cover letter to the agency which accompanied CWE’s application. In the letter, CWE stated:

“Enclosed is the application for certifying (APC Form 151) the Cooling Pond at the Braidwood Generating Station.
The following narrative description of the pollution control facility is submitted:
2. Please see attached drawings. Note that neither the cooling pond or its associated facilities are related to manufacturing of any kind.
8. Because this facility deals solely with the thermal pollution in regards to cooling the circulating water from the station, no contaminants are removed or disposed of by the operation.”

Plaintiff contends that paragraphs 2 and 8 are fraudulent and misleading because the cooling pond, contrary to paragraph 2, is directly related to manufacturing as it supplies large quantities of water essential to the process of manufacturing electricity. Plaintiff further notes that none of the drawings submitted by CWE demonstrate how the cooling pond functions or how it is connected with the plant. As for paragraph 8, plaintiff contends the cooling pond does not deal “solely with the thermal pollution” but also serves many other purposes.

With respect to these paragraphs, the Board found that paragraphs 2 and 8 were not inaccurate when read in their context. The Board also found that the drawings CWE submitted “accurately depicted the stated method of heat dissipation in the cooling pond.” We affirm these findings.

The Board properly noted that paragraph 2 must be read in context. The paragraph immediately preceding this paragraph states as follows:

“With a two unit operation at the rated power condition, the circulating water flow through the condensers will be approximately 3250 cfs with an approximate rise in water temperature of 22 [degrees] F. Cooling water in this pond is routed by a series of internal dikes that provide an extended flow path to ensure necessary cooling.”

Clearly, if CWE were attempting to misrepresent the role of the cooling water as not being related to manufacturing, it would have omitted the above paragraph. This paragraph shows that the cooling water plays a role in the production of electricity. CWE must have intended the term “manufacturing” in paragraph 2 to describe something other than the process conveyed in the above paragraph; otherwise, redundancy would occur. Thus, the manifest weight of the evidence supports the Board’s conclusion that paragraph 2, when read in context, is not fraudulent or misleading.

The same can be said for paragraph 8. Clearly, the thrust of this paragraph is to demonstrate that the cooling pond serves to cool, not treat contaminants or sewage emanating from the plant. The use of the word “solely” only serves to highlight this distinction. The Board interpreted paragraph 8 in this context, and we defer to its finding.

Finally, regarding the drawings CWE submitted, plaintiff presupposes inaccurately that the application form requested certain information which CWE omitted. The application only referred to the inclusion of a “process flow diagram describing the pollution control facility.” The diagrams CWE presented exhibit an aerial view of the pond, the flow direction of water, the location of dikes and the plant location. Accordingly, the Board’s conclusion that the drawings were neither fraudulent nor misleading is supported by the evidence.

Plaintiff next directs this court to CWE’s November 6, 1985, letter to the agency which requested reactivation of CWE’s certification application. CWE had appealed a Board decision to decertify certain other pollution control facilities unrelated to the Braidwood plant. On remand from the circuit court, the Board certified these facilities. The above letter followed, stating in part, “[a]s you know, the litigation involving decertification of cooling lakes and towers has now been completed and all such PCF’s are still certified.”

Plaintiff contends the letter contains two implicit misrepresentations, and the Board failed to so find. First, CWE failed to emphasize “the obvious and critical distinctions between the Dresden cooling pond and the Braidwood cooling pond.” Second, “CWE implied that all ‘cooling lakes and towers’ were to be treated identically without regard to the individual facts of each, and that they were all ‘PCF’s.’ ” (Emphasis added.) The Board concluded that the letter was not inaccurate in that the “PCF’s” to which CWE referred were only those involved in the recently concluded litigation and not the Braidwood facility.

Plaintiff’s arguments are unpersuasive. Plaintiff reads into the letter that which is not there. Clearly, CWE was merely referring to the recently ended litigation and its result. The Braidwood facility is not even mentioned or implied. Accordingly, the Board appropriately rejected plaintiff’s argument.

Plaintiff next directs this court to part E of CWE’s application for certification which addressed the cooling pond’s “fair cash value if considered real property,” “net salvage value if considered real property,” “productive gross annual income of control facility,” “productive net annual income of control facility,” and “percentage control facility-bears to whole facility value.” CWE responded to these requests by giving a fair cash value of $43,222,496. CWE stated that the facility had no gross or net income and bore no percentage to the entire facility. In its attached letter, CWE itemized the $43 million figure and noted that the cost of procuring the land underneath the pond had been excluded.

Plaintiff contends that as the facility could not operate without the pond, and because the plant generates huge revenue for CWE, the pond must have some derivative annual income. Plaintiff also asserts that as the pond’s underlying land has value, the pond must have a net salvage value at least equal to the value of the underlying land. Accordingly, plaintiff contends that CWE’s statements to the contrary are false. The Board rejected all these arguments.

As noted by the Board, plaintiff presented no evidence to counter CWE’s figures, nor did plaintiff elicit any testimony from CWE’s witnesses on this matter. Absent evidence to counter CWE’s figures, the Board’s conclusion is not against the manifest weight of the evidence.

Moreover, regarding CWE’s income figures, section 21a — 3 of the Act provides:

“For the purposes of this Act, earnings shall be attributed to a pollution control facility only to the extent that the operation thereof results in the production of a commercially saleable byproduct or increases the production or reduces the production costs of the products or services otherwise sold by the owner of such facility. For the purposes of this Section the land underlying a cooling pond shall not be considered a part of a pollution control facility.” (Ill. Rev. Stat. 1989, ch. 120, par. 502a — 3.)

Plaintiff has not directed this court to any evidence which shows that CWE’s Braidwood pond produces the type of earnings defined in the statute. Moreover, the value of the underlying land is not to be considered a part of the pollution control facility. Accordingly, plaintiff has failed to show that the various figures CWE listed were false.

Finally, under the first sentence of section 21a — 3, the various figures which CWE allegedly misrepresented are relevant only after a pollution control facility has been certified. Thus, the figures had no bearing on the Board’s decision-making process relative to whether the cooling pond met the definition of a “pollution control facility.” Accordingly, plaintiff can make no showing that CWE’s certification was “obtained by fraud or misrepresentation” (emphasis added) as a result of these figures.

In summary, plaintiff’s entire case is nothing more than an attempt to have the Board and this court decertify the Braidwood cooling pond as a pollution control facility. As noted, the Board’s review in this case was limited to determining whether the CWE’s certification was obtained by fraud or misrepresentation. This court’s role is even more limited as it sits only to review the Board’s factual findings on the fraud or misrepresentation issue. Under our limited role of review, we determine that the manifest weight of the evidence supports the Board’s conclusion that CWE did not obtain its certificate by fraud or misrepresentation.

For the foregoing reasons, the order of the Board denying plaintiff’s petition to revoke certification of the Braidwood cooling pond is affirmed.

Affirmed.

CAMPBELL and MANNING, JJ., concur.

       Although not contested by CWE or the Board, we agree with plaintiff that it timely filed its administrative review petition with this court. Section 41 of the Environmental Protection Act expressly provides for a 35-day filing period following the entry of the order complained of. This time period controls over the shorter, 30-day period, provided under our Supreme Court Rule 303(a), which is incorporated by reference in Rule 335(h)(1). See County of Cook, Cermak Health Services v. Illinois State Local Labor Relations Board, (1991), 144 Ill. 2d 326, 579 N.E .2d 866.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. R.B. (Impleaded), Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0573
    Opinion filed July 31, 1992.

      Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Janet Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a bench trial, 15-year-old defendant R.B. was convicted of aggravated battery and armed violence (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 4, 33A — 2), adjudicated a delinquent and sentenced to a four-year probation term pursuant to the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.). On appeal, defendant raises the following issues: (1) whether an illegal seizure occurred prior to his formal arrest; (2) whether defendant’s statement was involuntary; (3) whether the youth officer was a material witness who should have been produced or whose absence should have been explained; and (4) whether defendant was proved guilty beyond a reasonable doubt. Codefendants, defendant’s brother Camerino, Bassem Abdallah, Miguel Hernandez, Tony Hernandez and Rudy Hernandez, were tried separately and are not involved in this appeal. (This court affirmed the conviction of codefendant Bassem Abdallah by Rule 23 order No. 1 — 90—0792.)

Prior to trial, defendant moved to quash arrest and suppress evidence. At the suppression hearing, the State presented the testimony of the following witnesses: Officers Robert Schaefer, John Bloore, Steven Casto, Richard Vallandigham, William Drish and Assistant State’s Attorney Michelle Katz. Their testimony established as follows.

On February 25, 1989, at about 11 a.m., while investigating the homicide of Gonzolo Hernandez and battery of Jose Arellano, Officers Schaefer, Bloore and Casto went to defendant’s home in Chicago. The police had been to the home one week before to question defendant’s brother Camerino about the attack. Defendant answered the door and admitted the officers. The officers informed defendant that they were investigating the same case and asked defendant if he would accompany them to the Area 1 police station. Schaefer testified that defendant agreed and that Schaefer escorted him to the back of the apartment to get a jacket. The officers asked whether defendant’s parents were home and were told that they were not. When the officers told defendant’s sister, Olga, that she could come to the station, she responded that she could not leave because she was caring for an infant sibling. Bloore told Olga that defendant was going to the station with them and gave her his business card. The officers escorted defendant outside to the police car, where they questioned him for 15 to 30 minutes about the homicide. Defendant denied any knowledge. The officers drove defendant to Area 1 police station for questioning, picking up codefendant Miguel Hernandez on the way. When they arrived at Area 1 between 1 and 1:30 p.m., the officers took defendant to a small room and began questioning him again about the murder. Schaefer gave defendant a soda and asked whether he was hungry, to which defendant responded negatively. Schaefer then spoke with defendant for 90 minutes about the murder and told him that the police had information that defendant may have been present. At about 2:15 p.m. defendant admitted his presence at the murder, but denied that he shot the deceased. After defendant made this statement, the officers transported him to the Area 3 police station, where the homicide case was assigned, and placed defendant in an interview room. The officers testified that they did not read defendant his rights, nor contact his family or a youth officer before they moved him to Area 3. Bloore, Casto and Schaefer each testified that they did not physically or psychologically coerce defendant, or witness any other officer doing so.

Upon defendant’s arrival at Area 3 between 3 and 3:30 p.m., Val-landigham read defendant his rights, then he and Schaefer questioned defendant further. Vallandigham testified that they still considered defendant a witness, not a suspect. Throughout this questioning, the officers did not handcuff or arrest defendant, and he was free to go, although they did not communicate this to him. Between 3:15 and 3:30 p.m. defendant admitted that he participated in the attack which resulted in the deceased’s death. The police informed defendant that he was under arrest and handcuffed him to the wall, and Vallan-digham left to get defendant a soda. When Vallandigham saw defendant’s 16-year-old brother, Camerino, who had come to the station to look for defendant, Vallandigham took Camerino to the third floor for questioning and subsequently arrested him in connection with this offense. At 3:30 p.m., Officer Bloore telephoned defendant’s home and told Olga that they had moved defendant from the Area 1 to the Area 3 police station. The parents were not at home at this time. Vallan-digham contacted youth officer Patricia Kos between 4:30 and 5 p.m. Detectives Drish and Conley questioned defendant for 15 to 20 minutes at about 6 p.m. in the presence of youth officer Kos. Assistant State’s Attorney Michelle Katz interviewed defendant for 20 to 30 minutes at about 9:30 p.m. in the presence of Drish, Kos, and Assistant State’s Attorney Laura Lambur after she informed defendant of his rights and told him that he could be tried as an adult. When she spoke with defendant again at about 11 p.m., defendant indicated that he would give a court-reported statement. Katz testified that she also asked defendant whether he wanted to use the bathroom, or whether he was hungry or thirsty, to which defendant responded in the negative. Defendant gave his written statement at about 12:30 a.m. on February 26, 1989, in the presence of Katz, Lambur, Drish and Kos. At about 2 a.m., defendant read the statement, made several corrections, then signed it.

Defendant testified at the hearing and presented the testimony of his mother, father, sister, brother and Miguel Hernandez.

Defendant testified in his own behalf that he was 15 years old on February 26, 1989. The officers came to his home at about 10 a.m. and entered the home without permission. They told him that they were taking him to the station for questioning. When defendant walked to a back bedroom to get his shoes and sweatshirt, one of the officers followed him. The officers told his sister Olga that they were taking him for questioning. One officer put his arm on defendant’s shoulder, then escorted him to the police car outside in which Miguel Hernandez was waiting. Defendant went voluntarily, but felt that he “didn’t have no choice.” According to defendant, the police handcuffed him to the wall when they arrived at the station, then handcuffed him to a chair during the questioning. Defendant testified that one of the officers struck him, causing his nose to bleed. Defendant asked to speak to his parents, but the officers did not allow him to call home. After about two hours, the officers took him to the Area 3 police station. Defendant rode in the police car with his hands cuffed behind his back. At the station, he was handcuffed to a pole on the wall and questioned for two hours. He denied involvement in the incident, but the officers refused to accept his answers to their questions and told him to tell the truth. The police then told him that codefend-ant Miguel Hernandez signed a statement indicating that defendant killed the deceased. At about 5 or 5:30 p.m. the officers told him that he was not going home. The officers told him the facts about the homicide and told him what to tell the assistant State’s Attorney. At about 11 p.m., he asked for something to eat, but was refused. When he spoke with Assistant State’s Attorney Michelle Katz at about 11:30 p.m., he gave her the answers that the police told him to give. Defendant first saw the youth officer when he gave his written statement. Defendant testified that at about midnight the officers told him that he could call his parents after he made a statement. He did not talk to or see any family members while at either police station. He stated that he asked for something to eat, but that the officers would not give him anything to eat or allow him to make a telephone call until he signed a statement.

Defendant’s sister, Olga, testified that on the morning of February 25, 1989, two officers knocked on the door of the family home and entered without invitation. They asked her whether her brother Ca-merino was home, and she told them that he was not. The officers then said, “Well let’s take him,” indicating defendant. One of the officers told defendant to get his jacket and shoes, “grabbed him from the shoulder,” then walked to a back bedroom with defendant and waited while he got his jacket and shoes. The officers told Olga that they were taking defendant outside to their car to ask him some questions and exited the house with a “tight grip” on defendant’s shoulder. They entered the police car, then drove away. The police did not tell Olga where they were taking defendant or give her a phone number or address. In the late afternoon, Olga and Camerino went to two police stations, looking for defendant. Camerino went into the second police station alone, while Olga waited in the car. When Camerino did not return after one-half hour, Olga entered the station and was told that the police were questioning both defendant and Camerino, and that Camerino would be home about 8 p.m. Olga then returned home.

Miguel Hernandez testified that the police picked him up at his house at about 9 a.m. on February 25, 1989, then drove to defendant’s house. The officers picked up defendant and drove them to the police station. The officers did not handcuff defendant or Hernandez while in the car, but handcuffed both of them when they arrived at the station. The officers then questioned defendant and Hernandez separately. Between 2:30 and 3 p.m., the officers took defendant and Hernandez to another police station.

Defendant’s mother testified that she and her husband left the house about 9 a.m. on February 25, 1989, to go shopping and returned home around noon. Both of them remained at home for the rest of the day. No police officers telephoned or visited while they were at home. When defendant had not returned by dinnertime, she asked Olga and Camerino to try to locate him.

Defendant’s father testified that when he returned home around noon on February 25, 1989, his daughter told him that the police had taken defendant away. He stated that he was home all day and that the police never called the house about defendant. Olga went out to look for defendant, and when she returned between 5 and 6 p.m., she told him that defendant was in the police station at 39th and California.

At the conclusion of the evidence, the trial court denied defendant’s motion to quash arrest and suppress evidence. In so ruling, the trial court found that defendant was not under arrest initially; he voluntarily accompanied the officers to the Area 1 station; and he was not arrested until he made an incriminating statement between 3:15 and 3:30 p.m. The trial judge also rejected defendant’s argument that youth officer Kos was a material witness.

The following pertinent evidence was adduced at the trial: Jose Arellano testified that on February 19, 1989, at about 12:30 a.m. he and the deceased left a friend’s home and walked toward a bus stop near 48th and Ada in Chicago. A gray Chevrolet Impala car stopped and four or five boys exited, screaming gang slogans. Arellano turned and saw the boys coming at him and the deceased with baseball bats. Arellano recognized the two boys holding the bats as Tony and Rudy Hernandez. Tony struck him on the head and arm with a bat, and the other boys attacked the decedent. Arellano did not identify defendant or any of the other codefendants.

Officer Schaefer testified that when he and Officer Bloore went to codefendant Bassem Abdallah’s home on February 19, 1989, in connection with their investigation, they observed a gray Chevrolet Impala in front of the house. He returned to Abdallah’s home on February 25 and saw the car parked in the garage. Officer Thomas Brankin testified by stipulation that while investigating this case, he went to 48th and Ada Streets in Chicago where he observed a trail of blood and drag marks leading to a nearby garage door.

Assistant State’s Attorney Michelle Katz testified that she spoke with defendant in an interview room at the Area 3 police station at about 12:30 a.m. in the presence of youth officer Kos and Detective Drish. Katz advised defendant of his rights, which he indicated that he understood. Defendant then made a statement which a court reporter transcribed. Defendant reviewed the statement, made several corrections, then signed it.

Defendant testified in his own behalf that the contents of his statement were not true, and that although he denied involvement in the homicide, the police did not accept this. He changed his story only after the police told him that codefendant Miguel Hernandez accused him of shooting the deceased. According to defendant, the police supplied the facts contained in the statement. On the night of the attack, defendant was at home watching rented videos. The testimony of defendant’s parents corroborated his alibi.

After a trial, defendant was found not guilty of first degree murder and attempted first degree murder, but guilty of armed violence and aggravated battery. The trial court subsequently entered a delinquency finding and sentenced defendant to a four-year probation term.

Initially, we note that this court will not disturb the ruling of a trial court on a motion to suppress unless the decision is against the manifest weight of the evidence. (People v. Holloway (1981), 86 Ill. 2d 78, 426 N.E.2d 871.) Custodial interrogation on less than probable cause violates the fourth amendment whether or not the technical trappings of a formal arrest existed. (People v. Lucy (1990), 204 Ill. App. 3d 1019, 562 N.E.2d 1158.) Therefore, the question of when defendant was arrested is not answered by evidence of the time when defendant was told that he was under arrest, booked or fingerprinted. (People v. Lucy, 204 Ill. App. 3d 1019, 562 N.E.2d 1158.) Rather, the test is whether in view of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. (Michigan v. Chesternut (1988), 486 U.S. 567, 100 L. Ed. 2d 565, 108 S. Ct. 1975.) In this case, it is undisputed that the police lacked probable cause to arrest defendant when they transported him from his home to the Area 1 police station. Therefore, the question is whether a seizure occurred prior to his formal arrest.

We find the following cases, cited by defendant in support of his claim that his fourth amendment rights were violated, instructive: Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983; and People v. McGhee (1987), 154 Ill. App. 3d 232, 507 N.E.2d 33.

In Dunaway, the State Police had information that possibly linked defendant to the crime, but had insufficient evidence to get a warrant. The police located defendant at a neighbor’s home, drove him to the police station, placed him in an interrogation room and questioned him after advising him of his Miranda rights. Defendant waived his right to have an attorney present and eventually made incriminating statements. Defendant was not booked, nor was he told that he was under arrest or that he was free to go. The United States Supreme Court characterized the detention as “in important respects indistinguishable from a traditional arrest” (Dunaway, 442 U.S. at 212, 60 L. Ed. 2d at 835-36, 99 S. Ct. at 2256), and held that the police violated the fourth amendment when, without probable cause, they took defendant from his home and transported him to the police station for questioning.

In People v. Vega, the police questioned the 16-year-old defendant at the station about a homicide. Several weeks later, they arrived at defendant’s home, told him to “get his jacket,” and took him to the police station for questioning. They did not ask defendant’s mother to accompany them, nor did they indicate that defendant could refuse to go. Defendant testified that he went with the police because he felt “like [he] didn’t have a choice.” (Vega, 203 Ill. App. 3d at 35-36, 560 N.E.2d at 985.) Upon arriving at the station, the officers put defendant into a locked interview room alone. Although the officers testified that defendant was free to go, they never communicated this to him. This court concluded that defendant was seized prior to his formal arrest, relying upon the following factors: he was not questioned at home where he was found; defendant was not told that he could refuse to accompany the officers; he was transported to the police station in the back of a squad car; he was not given the option of arranging his own transportation to the station; he was never informed that he was free to leave; and his age and his lack of extensive experience with the criminal system. Based upon these facts, this court concluded that an arrest occurred when defendant was initially taken from his home.

In McGhee, at about 5 p.m., the police went to the home of defendant’s uncle, where the 16-year-old defendant lived, and told defendant about their murder investigation. The officers asked defendant to accompany them to the police station, but did not tell him that he was not required to go. One of the detectives gave his business card to defendant’s uncle. The police drove defendant to the station and placed him in an interrogation room. At 6 p.m. defendant was advised of his Miranda rights and denied any knowledge of the murder. During a second interview, at 8 p.m., the police again read defendant his rights, then told him that his companion made a statement implicating him. Defendant admitted that he was present, but denied any participation in the murder. At 11 p.m. defendant’s mother telephoned the station and spoke to defendant. At 11:30 p.m. she went to the station, but was not allowed to speak with defendant. At 2 a.m. the assistant State’s Attorney interviewed defendant after advising him of his rights and telling him that he would be tried as an adult. Defendant persisted in denying participation in the murder. At about 4 a.m. a youth officer was called, and defendant gave a court-reported statement which he reviewed and initialled. This court reversed defendant’s conviction and remanded for a new trial, concluding that given the circumstances, a reasonable person would have believed that he was under arrest and that defendant was thus seized within the meaning of the fourth amendment. McGhee, 154 Ill. App. 3d at 237, 507 N.E.2d at 36; see also People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910.

Based upon the foregoing authority and an analysis of the relevant factors, and relying only on the undisputed evidence, we believe that the police seized defendant prior to 3:30 p.m. when he was formally arrested. The officers told defendant they were investigating the homicide, then asked him to accompany them to the police station instead of questioning him at his home. Contrary to the State’s claim, we are unpersuaded that defendant’s safety would have been jeopardized if they questioned him at home. The officers did not tell defendant that he could refuse to accompany them, or give him the option of arranging his own transportation. Defendant stated that he felt that he “had no choice.” Moreover, it is undisputed that an officer followed defendant into his bedroom and waited as he retrieved his shoes and sweatshirt. (See People v. Lucy, 204 Ill. App. 3d 1019, 562 N.E.2d 1158.) Importantly, the State did not rebut defendant’s and Olga’s testimony that an officer “grabbed” defendant’s shoulder as they exited the house. The police questioned defendant for 15 to 30 minutes in front of his home, and defendant denied involvement in the attack. The police transported defendant to the station in a squad car, and upon arrival at the station, they put defendant in a small room and questioned him for about 90 minutes about the murder in which he continued to deny involvement. (Cf. People v. Booker (1991), 209 Ill. App. 3d 384, 568 N.E.2d 211.) The police abruptly terminated the interrogation when defendant admitted his presence, then transferred defendant to the Area 3 station. Moreover, the record does not indicate that defendant consented to such move, or that he was told he could refuse to go. Further, although the officers testified that defendant was free to leave, they never conveyed this fact to him. (People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654.) We also consider defendant’s age and his lack of extensive experience with the criminal justice system. (People v. Cole (1988), 168 Ill. App. 3d 172, 522 N.E.2d 635.) Under these facts, we believe that a reasonable person in defendant’s situation would not have believed that he could refuse to accompany the police to the station or that he was free to leave once at the station. Even if defendant initially accompanied police voluntarily, we believe that his presence escalated to an involuntary seizure at some point at either the Area 1 or Area 3 police station. (People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103.) In any event, defendant was illegally seized prior to his formal arrest, and we accordingly reverse the trial court’s contrary finding.

The State asserts that even if defendant was illegally arrested or seized, sufficient attenuation existed to purge defendant’s statement from the taint of any illegal seizure. We need not address this issue, however, in light of our determination that defendant’s statement was involuntary.

Defendant maintains that his statement was involuntary because it was obtained without allowing him to consult with a youth officer or family member and after holding him for more than 15 hours without food and questioning him repeatedly.

Juvenile confessions are to be carefully reviewed to ensure that they are voluntary and not coerced, suggested, or the product of a juvenile’s ignorance of rights, his adolescent fantasy, fright or despair. (People v. Holcomb (1989), 192 Ill. App. 3d 158, 548 N.E.2d 613; People v. Racanelli (1985), 132 Ill. App. 3d 124, 476 N.E.2d 1179.) The test is whether, under the totality of the circumstances, the statement was made freely, without compulsion or inducement of any sort (Haynes v. Washington (1963), 373 U.S. 503, 10 L. Ed. 2d 513, 83 S. Ct. 1336), with consideration given to the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) Considering the totality of the circumstances, and particularly the absence of a youth officer or parent prior to incrimination, we conclude that the trial court improperly denied defendant’s motion to suppress his statement and quash arrest. In so finding, we again rely only on the undisputed evidence.

Section 3 — 8 of the Juvenile Court Act provides as follows:

“(2) A law enforcement officer who takes a minor into custody without a warrant *** shall *** immediately make a reasonable attempt to notify the parent *** that the minor has been taken into custody and where the minor is being held; and the law enforcement officer shall without unnecessary delay take the minor to the nearest juvenile police officer designated for such purposes ***.” HI. Rev. Stat. 1989, ch. 37, par. 803 — 8(2).

This court has stated that the failure to telephone a juvenile defendant’s parents, or the absence of a parent during questioning, is a factor in determining voluntariness, but is not determinative of whether defendant’s confession should be suppressed. (People v. Stachelek (1986), 145 Ill. App. 3d 391, 495 N.E.2d 984; In re J.S. (1984), 121 Ill. App. 3d 927, 460 N.E.2d 412.) However, where the State failed to take appropriate steps to ensure that a juvenile defendant had an opportunity to confer with an interested adult, either a parent or a youth officer, this court has held that the police conduct rendered his confession inadmissible. People v. Knox (1989), 186 Ill. App. 3d 808, 542 N.E.2d 910.

We find People v. Knox instructive on this issue. In Knox, the 15-year-old defendant was lawfully arrested at his home at 9:15 p.m. Although the police told defendant’s father that he could accompany defendant to the police station, defendant’s father indicated that he could not leave because he was caring for young children. At the station, the police advised defendant of his Miranda rights, then interviewed him for about 45 minutes, beginning at 9:45 p.m. Defendant’s mother arrived at the station about 10 p.m., but was not permitted to see defendant. At midnight, the police told her that defendant had confessed and that she should go home. An assistant State’s Attorney interviewed defendant for 15 to 20 minutes at 1:45 a.m., and defendant signed a written confession at 2:20 a.m. This court reversed the trial court’s denial of defendant’s suppression motion on the ground that the police failed to exercise “requisite care *** to assure defendant’s statement was not free of compulsion.” (Knox, 186 Ill. App. 3d at 813, 542 N.E.2d at 913.) The court wrote:

“We are most concerned that defendant’s statement was made before defendant had an opportunity to confer, prior to questioning, with an adult interested in his welfare, either his parents or a juvenile officer.” (Emphasis added.) Knox, 186 Ill. App. 3d at 813, 542 N.E.2d at 913.

The court stated that the failure to have a youth officer or parent present is “material to determining the voluntariness of defendant’s statement.” (Knox, 186 Ill. App. 3d at 815, 542 N.E.2d at 915.) In so ruling, the Knox court distinguished People v. Stachelek. In Stachelek, the police arrested the 15-year-old defendant at about 7 a.m., then took him to the police station in investigation of a homicide. He waited in an interview room until about 8:30 a.m. when a youth officer arrived. After he was advised of his Miranda rights, and told that he could be tried as an adult, defendant made an oral statement. The youth officer spoke with defendant again at 1 p.m. Defendant gave another oral statement at 3:30 p.m. and gave a written statement at 4:30 p.m. Defendant’s parents were not notified of his arrest. This court affirmed the trial court’s denial of defendant’s suppression motion, rejecting defendant’s claim that the failure to notify his parents rendered the circumstances surrounding the interview coercive. The Knox court distinguished Stachelek on the ground that defendant there conferred with a youth officer before he made any statement, characterizing this distinction as “crucial.” Knox, 186 Ill. App. 3d at 815, 542 N.E.2d at 914; Cf. People v. Bobe (1992), 227 Ill. App. 3d 681; In re J.S., 121 Ill. App. 3d 927, 460 N.E.2d 412.

Here, as in Knox, defendant did not confer with an adult interested in his welfare before he was questioned or before he made an inculpatory statement. Rather, the evidence reveals that the police interrogated defendant at least three times before they notified a youth officer. Taking the State’s evidence as true, a youth officer was not present until 6 p.m., almost four hours after defendant admitted his presence at the attack and three hours after defendant initially incriminated himself. Nor does the State’s evidence indicate that Kos ever conferred with defendant, but only that she was present during the interrogations occurring after 6 p.m. The State claims that the police did not contact a youth officer earlier because the police considered defendant merely a witness, not a suspect, prior to that time. The evidence, however, refutes this claim. When defendant admitted shortly after 2 p.m. that he was present during the attack on the deceased, the police immediately stopped questioning and transferred defendant to the Area 3 police station, where they read defendant his rights, told him that he could be tried as an adult, then questioned him further. Such police conduct belies the State’s claim the police treated defendant as a witness. Although the police initially may have considered defendant a witness, their conduct suggests that they considered him a suspect as early as 2 p.m. The police, however, failed to contact a youth officer until 5 p.m., after transfer to the Area 3 police station, after further interrogation, after defendant’s inculpatory statement between 3:15 and 3:30 p.m., and after his formal arrest. Nor does the record suggest that a youth officer was unavailable prior to that time. Cf. People v. Holcomb, 192 Ill. App. 3d 158, 548 N.E.2d 613.

Moreover, it is undisputed that the police did not attempt to telephone defendant’s parents until after defendant incriminated himself, thereby effectively precluding him from conferring with any “adult interested in his welfare” prior to questioning. (Knox, 186 Ill. App. 3d at 813, 542 N.E.2d at 913.) At worst, the police purposefully precluded defendant from conferring with a youth officer or his parents until after he made inculpatory statements and was formally arrested. At best, the police simply “subjected defendant to the same routine questioning of a criminal suspect without special regard for his youth.” (Knox, 186 Ill. App. 3d at 814, 542 N.E.2d at 914.) Either scenario casts doubt upon the voluntariness of defendant’s statement. Under Knox, defendant’s inability to confer with a youth officer or parent prior to incriminating himself is material in determining the voluntariness of defendant’s confession.

We conclude that the absence of an adult interested in defendant’s welfare contributed to the coercive circumstances surrounding the interrogation. Moreover, although defendant received Miranda warnings at about 3 p.m, the record does not support the conclusion that defendant knowingly waived his rights. Nor did defendant sign a waiver of rights form. Defendant was only 15 years old at the time of the interrogation and was questioned repeatedly by several police officers and assistant State’s Attorneys at two different police stations. Further, although it appears likely that defendant was the focus of the police investigation, the police lacked probable cause to arrest him. Other factors affecting voluntariness include: lack of food for more than 15 hours (Reck v. Pate (1961), 367 U.S. 433, 6 L. Ed. 2d 948, 81 S. Ct. 1541) and extended period of isolation from family and friends (Ashcraft v. Tennessee (1944), 322 U.S. 143, 88 L. Ed. 1192, 64 S. Ct. 921). Based upon the above, we cannot say that the totality of these circumstances supports a finding that defendant’s confession was neither coerced nor involuntary. Accordingly, the trial court erred in denying defendant’s suppression motion.

We next consider defendant’s claim that he was not proved guilty beyond a reasonable doubt because his confession was unreliable. The State concedes on appeal that the evidence introduced did not establish defendant’s presence or participation in the attack, but claims that the independent evidence “substantially corroborated” defendant’s statement. In his statement, defendant confessed that he participated in the attack on Gonzolo Hernandez and Jose Arellano. Our review of the record, however, indicates that none of the independent evidence implicates defendant. Although Arellano testified that he and the deceased were attacked by four or five boys, he identified only Rudy Hernandez and Tony Hernandez, and failed to identify defendant or any of the others. Nor did the other State’s evidence establish defendant’s involvement in the attack. Although their testimony bolstered the circumstances of defendant’s confession, the testimony of Officer Schaefer and Detective Brankin failed to affirmatively link defendant with the crime. Without defendant’s confession, we believe this record fails to show defendant’s guilt beyond a reasonable doubt. Defendant’s conviction for aggravated battery and armed violence, therefore, must be reversed.

For the herein stated reasons, defendant’s conviction and sentence of probation is reversed.

Reversed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE TULLY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY CAMPBELL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—0881
    Opinion filed July 29, 1992.

      Rita A. Fry, Public Defender, of Chicago (Mary C. Arundel, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Joseph P. Roddy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE TULLY

delivered the opinion of the court:

Defendant Tony Campbell was indicted for the murder of Larry Wallace. Following a jury trial, Campbell was convicted of first-degree murder and sentenced to 40 years’ imprisonment. Defendant appeals the conviction as well as the sentence.

On December 12, 1986, Larry Wallace visited a friend in an apartment building at 140 North Wood Street in the City of Chicago. Wallace entered the building around midnight, and while in the building’s vestibule, Wallace was gunned down by unknown assailants. The examining pathologist adduced the cause of death to be multiple gunshot wounds to the chest, back, buttocks, hip, thigh and cheek. The stipulated testimony of a firearms expert indicated that the seven bullet casings recovered were of a type used in a submachine gun (an “Uzi”), and a .25 automatic handgun.

Sheila Wilkerson testified that on the evening of the murder, defendant, along with Napoleon English and Vernon Holman, visited her apartment at 141 North Wolcott Street. This building is part of the Henry Homer Homes housing project and is located across a field from the 140 North Wood budding, also part of the housing project. Wilkerson said that all three were members of a gang, the Vice Lords, and that she had previously sold cocaine for Napoleon English. Defendant arrived with a bag, containing gun parts. Napoleon English phoned someone and explained that they were going to "make a hit” at midnight when the police detectives changed shifts. English told defendant to phone Sylvester Brown, who arrived shortly thereafter. English then took an Uzi out of his coat, and defendant and Vernon Holman assembled the gun parts into shotguns. Sylvester Brown pulled a small black handgun from his sock.

All four men left the building and walked to the building at 140 North Wood. A couple of seconds later, Wilkerson heard multiple gunshots, resembling a machine gun and a shotgun. From her window, she saw all four men standing in the parking lot of the neighboring building. Wilkerson also stated that her building was controlled by the Vice Lords gang and that 140 North Wood was controlled by a rival gang, the Gangster Stones.

Aaron Ramey testified that he was about 30 feet from the building’s southside entrance when he heard rapid gunfire. He then saw three men exit the northside of the building, running across the field toward the 141 Wolcott building. Two were carrying shotguns, approximately 24 to 30 inches in length. A few seconds later he saw Tony Campbell exit the southside of the building. He saw Campbell’s face from about 30 feet away. He stated that Campbell was carrying a long gun, with a clip hanging from its barrel. All four men ran into the building adjoining the 141 Wolcott building. Ramey had known Tony Campbell for about 11 years.

Ramey then entered the lobby of the 140 Wood building and found the body of Larry Wallace in a pool of blood. When the police arrived, Ramey told them what he had witnessed and identified Tony Campbell as one of the assailants. Ramey said that he and the victim had been associated with the Gangster Stones many years previously. He admitted knowing many members of the Gangster Stones and he knew that Tony Campbell was a member of the Vice Lords.

On appeal, defendant asserts five errors: (1) the trial court failed to strike testimony regarding gangs and the gang affiliations of defendant and victim; (2) the trial court improperly commented on evidence during cross-examination; (3) two of the State’s closing arguments were improper, denying defendant a fair trial; (4) the State failed to prove defendant guilty beyond a reasonable doubt; and (5) the 40-year sentence was excessive, in light of defendant’s rehabilitative potential.

We first consider the evidence of gang affiliations. Officer Toussas testified that the Vice Lords gang controlled the 141 Wolcott building and that the Gangster Stones controlled the 140 Wood building. He also said he knew defendant to be a member of the Vice Lords. Defense counsel motioned to strike this testimony. The trial judge indicated that had an objection been made during the testimony, he might have sustained it, but to strike it post-factum would be pointless, since it was already in evidence.

Proof of gang membership is admissible where such membership is related to the offense charged. (People v. Wadley (1988), 169 Ill. App. 3d 1036, 1043-44, 523 N.E.2d 1249, 1255; People v. Calderon (1981), 98 Ill. App. 3d 657, 660, 424 N.E.2d 671, 673; People v. Miller (1981), 101 Ill. App. 3d 1029, 1034, 428 N.E.2d 1038, 1043.) Such evidence is relevant, where it demonstrates a common design or plan. To this end, it may supply defendant’s motive for committing the offense tried. (People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840, 854, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) In addition to being probative as to motive, the evidence must somehow be tied to defendant. For instance, gang-related evidence has been held inadmissible where there is no reasonable basis to infer that defendant knew about a particular gang conflict or was in fact associated with any gang. People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900, 907.

In the instant case, both Sheila Wilkerson and Aaron Ramey testified, prior to Officer Toussas, that they knew defendant to be a member of the Vice Lords gang. In fact, it was the defense counsel who questioned Ramey as to his gang affiliations and those of defendant. Sheila Wilkerson testified that defendant was a member of the Vice Lords, that the Vice Lords controlled her building and that the Gangster Stones, a rival gang, controlled the building where the victim was shot. During all of this testimony, defense counsel never once objected to the introduction of gang-related evidence. Wilkerson also testified that Napoleon English stated the “hit” would be on “the Stones.” Given the activities of defendant on the night of the murder, it can reasonably be inferred that defendant knew of the Vice Lords and its rival gang, the Gangster Stones. The gang-related evidence was not only “related” to the offense charged, it was a central issue in the murder of Larry Wallace. For all of these reasons, we find that the trial court properly admitted the testimony of Officer Toussas concerning gang activity.

The next issue on appeal concerns the following comments by the trial court, during the cross-examination of Detective Victor Switski:

“DEFENSE: You also looked pursuant to your investigation for a Kenny Hardy, did you not?
WITNESS: Correct.
DEFENSE: You also looked for a man named Jimmie Lee, is that correct?
STATE: Objection, Judge.
THE COURT: What is the significance? That objection is sustained. Ask the next question.
DEFENSE: Well, you didn’t just go looking for Tony Campbell, correct?
WITNESS: Correct.
DEFENSE: You did look for Jimmie Lee and Kenny Hardy?
STATE: Objection.
THE COURT: His answer is yes. So what. Let’s go.
DEFENSE: Fine. You looked for them after having a conversation with these witnesses, correct?
WITNESS: Correct.”

In a later motion for a mistrial, the defense counsel objected to the “so what” comment of the court, indicating it was an improper comment on the evidence. The trial judge denied the motion, explaining that he was referring to the significance of the question. The trial judge believed that defense counsel was trying to elicit hearsay from witnesses at the scene, who gave these two other names to the detective being cross-examined. The trial judge also noted he was helping defense counsel by keeping out hearsay from these witnesses about whether Tony Campbell had committed the shooting.

Because a jury may be unduly influenced by the comments or actions of the trial judge, every defendant is entitled to a trial free from improper or prejudicial remarks by the presiding judge. (People v. Heidorn (1983), 114 Ill. App. 3d 933, 936, 449 N.E.2d 568, 572.) Consequently, it is incumbent upon the trial judge not to do or say anything which might convey his feelings or opinions of the case in the presence of the jury. (People v. Santucci (1962), 24 Ill. 2d 93, 98, 180 N.E.2d 491, 493.) A new trial may be warranted where the trial judge invades the province of the jury, by commenting upon the credibility of particular witnesses (People v. Brown (1990), 200 Ill. App. 3d 566, 577, 558 N.E.2d 309, 315), by repeatedly admonishing or interrupting counsel (People v. Eckert (1990), 194 Ill. App. 3d 667, 673, 551 N.E.2d 820, 824), by displaying a hostile attitude toward a witness in a criminal trial (People v. Marino (1953), 414 Ill. 445, 451, 111 N.E.2d 534, 537), or by injecting humor into the proceedings (People v. Bernatowicz (1952), 413 Ill. 181, 188, 108 N.E.2d 479, 483).

In this case, the trial judge did improperly comment upon the testimony of the witness with his “so what” remark. Although the judge later explained that he was referring to the legal relevancy of the question and was attempting to exclude hearsay testimony, these explanations were not discussed in the presence of the jury. Moreover, the average juror would not understand the legal significance of the judge’s remark. A lay person would understand the judge’s comment to signify that the question posed was totally insignificant and not to be considered by the jury.

While we find this comment to be improper, we cannot say that this single remark denied defendant a fair trial. Defense counsel asked the same question three times, and it was only after the third time that the trial judge remarked, “So what. Let’s go on.” It would appear as though the judge was trying to both caution counsel for asking repetitious and improper questions and to expedite the proceedings. (See People v. Merz (1984), 122 Ill. App. 3d 972, 978, 461 N.E.2d 1380, 1385.) Considering the record in its entirety, we cannot say that this single comment by the trial judge denied defendant a fair and impartial trial.

The third issue on appeal concerns two of the prosecutor’s comments during closing argument. First, defendant asserts that the following remarks of the prosecutor apprised the jury of defendant’s failure to testify on his own behalf, and thus, his constitutional rights were violated:

“[T]here are six people in the world who could have told you what happened in that apartment on December 12th. One was a year old at the time, so he couldn’t do it. Four others armed themselves *** and left. That only leaves one person. Without that one person you would have never heard about this conspiracy, about this plan to get the Stones.”

A prosecutor may not directly or indirectly comment on a defendant’s failure to take the stand in his own defense. (People v. Lyles (1985), 106 Ill. 2d 373, 390, 478 N.E.2d 291, 297, cert. denied, (1985), 474 U.S. 859, 88 L. Ed. 2d 141, 106 S. Ct. 171.) Any such comment would violate a defendant’s fifth amendment right against self-incrimination. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Ill. Rev. Stat. 1989, ch. 38, par. 155 — 1.) The appropriate standard for determining a fifth amendment violation is whether or not the comments at issue were intended or calculated to direct the jury’s attention to the defendant’s failure to testify. (People v. Quinn (1988), 173 Ill. App. 3d 597, 602, 527 N.E.2d 905, 909.) For instance, a prosecutor may highlight the fact that the State’s evidence is uncontradicted (People v. Starks (1988), 169 Ill. App. 3d 588, 600, 523 N.E.2d 983, 991), where the defendant is the only one who could contradict it (People v. Leonard (1988), 171 Ill. App. 3d 380, 386, 526 N.E.2d 397, 400-01), so long as such comments do not direct attention to the defendant’s silence.

The prosecutor’s comments in this case emphasize the fact that a key witness, Sheila Wilkerson, was the only testifying witness who could have explained the plot to make a “hit” on a rival gang member. The only direct remark about defendant was that he “armed [himself] and left [the apartment.]” Nothing was directly or indirectly said about defendant’s silence at trial or his failure to testify on his own behalf. Of course, one could draw the inference that defendant could have contradicted Sheila Wilkerson’s version of the facts had he testified. But the prosecutor did not even directly mention that Wilkerson’s testimony was “unrebutted” or “unrefuted.” Because the prosecutor did not unequivocally direct the attention of the jury to defendant’s silence at trial, we cannot conclude that these remarks violated defendant’s right against self-incrimination.

The second series of closing remarks refer to defendant’s relationship with Sheila Wilkerson, who testified at trial that she sold narcotics for Napoleon English, a participant in the murder plot:

“[Sheila Wilkerson] has nowhere to go.
Him [defendant] and his buddies are using her to push their narcotics. They come to her house on a daily basis. *** They used her folks. They used her to sell dope.”

Defendant argues that he was never directly implicated in the drug-dealing activities of Napoleon English and Sheila Wilkerson. He contends these remarks amounted to a misstatement of the evidence, implying he was guilty of other crimes and prejudicing his right to a fair trial.

While it is improper for a prosecutor to misstate evidence during closing argument to the jury, such conduct warrants reversal only where it is a material factor in the defendant’s conviction. (People v. McKnight (1979), 72 Ill. App. 3d 136, 145, 390 N.E.2d 379, 387.) Arguments and statements based upon the facts in evidence, or upon reasonable inferences drawn therefrom, are within the scope of proper argument. (People v. Terry (1984), 99 Ill. 2d 508, 517, 460 N.E.2d 746, 750.) Sheila Wilkerson testified that she sold cocaine for the Vice Lords. She also identified defendant as a member of the Vice Lords. This testimony was elicited by defense counsel in an effort to impeach the credibility of Wilkerson. Based upon the evidence, we find it was reasonable for the prosecutor to infer that defendant was involved in the drug-selling activities of the Vice Lords and Sheila Wilkerson. In any case, we do not find that these comments were material to defendant’s conviction.

We next consider whether the State proved defendant guilty beyond a reasonable doubt. Defendant argues he was convicted based upon insufficient or tainted evidence. First, there were no eyewitnesses to the shooting of Larry Wallace. Secondly, two of the State’s witnesses, Sheila Wilkerson and Aaron Ramey, possibly had a motive to lie. Wilkerson testified that just prior to her grand jury appearance, the police officers who escorted her told her that she could be charged with murder and her infant son would be taken from her. Another officer told her if she did not cooperate, she would go to jail. Aaron Ramey, who allegedly witnessed defendant fleeing the scene of the crime, had been formerly affiliated with the Gangster Stones, a rival gang. Ramey kept in contact with friends in the gang and knew that the victim, Larry Wallace, was a Gangster Stone. He also knew defendant to be a member of the Vice Lords.

Once a defendant has been found guilty, upon judicial review, all evidence is to be considered in a light most favorable to the prosecution. The relevant question is whether, after considering the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73, citing Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.) It is the jury’s function to determine the accused’s guilt or innocence and a conviction will not be overturned unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. People v. Eyler (1989), 133 Ill. 2d 173, 191, 549 N.E.2d 268, 276.

Defendant argues, and we agree, that the evidence against him is entirely circumstantial. Defendant, however, incorrectly asserts that the proper standard of review is the reasonable hypothesis of innocence test. Under this standard, where the evidence is wholly circumstantial and presents an alternative hypothesis consistent with innocence, this hypothesis should be adopted in preference to guilt. However, the Illinois Supreme Court has rejected this standard by applying the reasonable doubt test to affirm convictions based entirely upon circumstantial evidence. People v. Linscott (1986), 114 Ill. 2d 340, 500 N.E.2d 420, rev’d and remanded (1987), 159 Ill. App. 3d 71, 511 N.E.2d 1303, vacated (1991), 142 Ill. 2d 22, 566 N.E.2d 1355; People v. Hendricks (1990), 137 Ill. 2d 31, 560 N.E.2d 611; People v. Eyler (1989), 133 Ill. 2d 173, 549 N.E.2d 268.

Although the State’s evidence is circumstantial, this is not a close case. Shortly before the murder, a key witness, Sheila Wilkerson, saw defendant with three other males and overheard their plans to “make a hit” on a member of the Gangster Stones gang. They armed themselves with various guns, one of which was an Uzi submachine gun. She then saw all four standing in the parking lot just outside the building where the shooting occurred. A few seconds later she heard the sound of rapid gunfire. Aaron Ramey heard the same gunfire. Immediately thereafter, he saw three males running from the scene. A fourth male fled from about 30 feet away in a well-lit area. He identified this man to be defendant, Tony Campbell. Campbell was carrying a long gun with a clip under its barrel. The bullets and casings later recovered were consistent with an Uzi and an automatic handgun.

All of the foregoing evidence was presented to the jury. The defense counsel did not present any evidence to refute or rebut this evidence. We, therefore, hold that the evidence in this case was sufficient to support defendant’s conviction.

Finally, we examine whether the sentence imposed was excessive. In aggravation, the State presented defendant’s prior criminal record, indicating a robbery conviction, aggravated assault and criminal damage to property. The trial judge also noted that defendant was the one who supplied the weapons to the other assailants, describing him as one of the “ring leaders.” In mitigation, the defense relied upon the “weight of the evidence that the State presented at trial.” On his own behalf, defendant denied committing the crime.

The trial court is the proper forum for determining a suitable sentence and the court’s decision in this regard is entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) A 40-year sentence for murder is within the statutory limits set forth in the Unified Code of Corrections. HI. Rev. Stat. 1987, ch. 38, par. 1005-8-l(aXlXa).

This was a senseless, gang-related killing. These gangs attempt to control entire neighborhoods, turning playgrounds and parks into combat zones, where enemy lines are drawn and innocent people become discarded casualties. Given the circumstances of the crime, the criminal record of defendant, his lack of remorse and the absence of mitigating factors presented to the trial court, we cannot say that a 40-year sentence for murder was an abuse of discretion.

For all of the foregoing reasons, the decision of the circuit court of Cook County is affirmed in all respects.

Affirmed.

GREIMAN, P.J., and CERDA, J., concur.